LAM AR FU PETER v. BUILDING AUTHORITY

CAMP 70/2019

[2019] HKCA 1019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 70 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 2259/2018)

________________________

________________________

________________________

JUDGMENT

________________________

Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is the renewed application of the applicant for leave to appeal to the Court of Appeal against the decision of Chow J given on 30 January 2019 ([2019] HKCFI 201; “the Main Decision”).  In that decision, the judge, inter alia, refused to grant an extension of time to the applicant to apply for judicial review of the decision of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 18 January 2018 (“the 2018 Determination”).

2.  Notwithstanding the request of the applicant, we shall give our judgment in the present application in English.  If necessary, the applicant can contact the clerk to Lam VP to arrange for oral interpretation of this judgment to him in Chinese by appointment in the High Court Building.

3.  In the Main Decision, the judge addressed two different aspects of the application for judicial review:

(a)  The Tribunal’s substantive decision of 18 January 2018 on the merit of the applicant’s building appeal, for which leave to apply for judicial review was sought out of time (as the application was only made on 18 October 2018).  The judge refused to grant extension of time under Order 53 Rule 4(1);

(b)  The Tribunal’s decision on costs of 19 July 2018 in respect of the building appeal proceedings before it.  That aspect of the application for judicial review was not brought out of time and the judge only refused leave.  As an appeal can be brought against that part of the judge’s decision, the applicant has served a notice of appeal in CACV 68/2019 on 12 February 2019.  The appeal is pending.

4.  The applicant sought leave to appeal under Section 14AA of the High Court Ordinance in respect of the refusal of extension of time.  Such leave is necessary because the refusal of extension of time is an interlocutory order: Kwok Cheuk Kin v Leung Chun Ying [2018] 4 HKC 440.

5.  By a decision given on 9 April 2019 ([2019] HKCFI 878; “the Leave Decision”), the judge, inter alia, refused to grant leave to the applicant to appeal against the Main Decision.

6.  The applicant issued a summons dated 23 April 2019 renewing his application for leave to appeal before this Court.

7.  Having considered the papers, we consider it appropriate to exercise the power under Order 59 rule 2A(5)(a) of the Rules of the High Court (Cap 4A) to determine this application without an oral hearing on the basis of the written submissions.

8.  The present proceedings arose from a building order issued by the putative respondent on 10 December 2010 requiring the applicant to demolish an unauthorized structure attached to the external wall of a property which was formerly owned by the applicant.  By the 2018 Determination, the Tribunal dismissed the applicant’s appeal against the said building order.  The factual backgrounds were succinctly set out in [7] – [10] of the Main Decision.

9.  In essence, the judge refused to grant an extension of time due to his finding that none of the grounds of judicial review was reasonably arguable. 

Legal principles

10.  Under Section 14AA(4), the court must be satisfied that the intended appeal has a reasonable prospect of success, or there is some other reason in the interests of justice that the intended appeal should be heard. 

11.  Reasonable prospect involves the notion that the prospect must be more than fanciful without having to be probable: see SMSE v KL [2009] 4 HKLRD 125 at [17].

Discussion

12.  In his written statements lodged on 7 May 2019[1], the applicant put forth two questions inviting this Court to consider in the intended appeal.  The said questions are:

(1)  Whether the Tribunal ought to accept his submission as evidence in accordance with section 50(c)(i) of the Building Ordinance (Cap 123);

(2)  Whether the Tribunal has power to discard the legal authorities given by the High Court and the Court of Final Appeal.

13.  The following general principles should be borne in mind in the consideration of this application:

(a)  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Building Authority and the Building Appeals Tribunal (“BAT”).  The conduct of proceedings in the BAT and the exercise of case management power to regulate how and when evidence is to be submitted is very much within the province of the BAT.  The court will not intervene by way of judicial review unless the decision of the BAT in that respect is plainly unfair.

(b)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse the judge’s decision if an appellant can demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(c)  In an appeal against refusal of leave to apply for judicial review, generally the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

14.  In an application for leave under Section 14AA to appeal against the refusal to extend time for a judicial review to be brought, this Court will examine the prospect of success of an intended appeal by reference to the above principles.

Ground 1

15.  With respect of the Question (1), the judge stated at [24] of the Main Decision:

“ … the Applicant argued that, although he did not file any witness statement or give evidence at the hearing of the appeal, the Tribunal ought to have accepted his submissions as evidence in view of Section 50(c)(i) of the Buildings Ordinance, which provides that the Tribunal may “receive and consider any oral, documentary or other evidence, (including any written statement), whether on oath, affirmation or otherwise, and whether or not it would be admissible in evidence in proceedings in a court”.  This point is a non-starter because, as mentioned in paragraphs 4 and 32 of the 2018 Determination, the Tribunal’s decision was not based on any disputed evidence given by the BA’s witness.  Further, the court considers the Tribunal’s observation in paragraph 31 of the 2018 Determination relating to procedural fairness to be correct in principle ...”

16.  In our view, the judge’s analysis cannot be faulted.  Like the judge, we find the Tribunal’s view on procedural fairness correct in principle: see [31] and [32] of the 2018 Determination.  We agree with the Tribunal that even in informal tribunal proceedings such as a building appeals, it would be unfair to allow a party to introduce evidence by ambush in the guise of submission.

17.  There is no inconsistency between the adherence to the notion of fairness and Section 50(1)(c)(i) of the Buildings Ordinance.  The applicant failed to read that section as a whole.  The section says the BAT “may” receive and consider any oral, documentary or other evidence, whether on oath or otherwise, and whether or not it would be admissible in evidence in proceedings in a court. It only gives a discretion to the BAT to admit all form of materials as evidence.  By reason of the duty to act fairly, the BAT must exercise its discretion in accordance with the notion of fairness as expounded at [31] and [32] of the 2018 Determination.  This is not something new and it would be quite unacceptable if the BAT were to admit materials as evidence without regard to fairness.  

18.  It is also wrong in principle to apply the rules on admission of evidence differently simply because a litigant chooses to act in person.   

19.  The applicant has no merit in his intended judicial review based on Question (1).  This ground has no prospect of success.

Ground 2

20.  As regards question (2), the judge said the followings at [24]:

“ …In so far as it is complained that the Tribunal did not deal with some authorities referred to by the Applicant at the hearing of the appeal, the Tribunal is under no duty to deal with all the authorities mentioned by the Applicant. It is a matter for the Tribunal to decide what authorities are relevant and required to be dealt with in its determination. The court, in the exercise of its supervisory jurisdiction in judicial review, can only intervene where the Tribunal makes an error of law, or decides irrationally, or acts in a manner which is procedurally unfair.”

21.  The judge further observed in [12(2)] of the Leave Decision thus:

“ It is a matter entirely for the Tribunal to decide what authorities to refer to in its decision. The important question is not what authorities the Tribunal referred, or did not refer, to in its decision, but whether the Tribunal made any material error of law in reaching its conclusions. I do not see that the Tribunal made any such error of law.”

22.  We find the above observations correct. 

23.  In the present application (as was the application in the court below), the applicant failed to identify any specific error in the 2018 Determination with reference to the legal authorities he had referred to in the BAT hearing. 

24.  Insofar as the applicant related this ground to Ground 4 on restriction of fundamental rights by reference to provisions in the Basic Law advanced by him in his Affidavit of 22 October 2018, the relevant legal principles were discussed by the BAT at [37] reciting extensively from the previous determination of the BAT in case 903/2008.

25.  The judge adequately addressed Ground 4 at [22] of the judgment of 30 January 2019 by reference to the previous dismissal of similar challenge by the applicant in HCAL 113/2015 and the rejection of his application for extension of time to appeal in HCMP 2878/2015.   

26.  It is fallacious for the applicant to suggest that the BAT had discarded (廢棄) the authorities cited by him.  In this connection, we have nothing to add to the observations of Chow J.

27.  Having reviewed the materials before us, we find that the judge was entirely correct in refusing the applicant’s application for extension of time to apply for judicial review.

28.  The intended appeal has no prospect of success whatsoever.  Nor can we discern any reason in the interests of justice for leave to be granted.  The summons filed on 23 April 2019 is dismissed accordingly.

29.  The judge has clearly explained in his decision of 30 January 2019 that the intended application for judicial review has no merit.  The judge also explained in his decision of 9 April 2019 why leave to appeal should not be granted.  In light of these clear decisions, it is regrettable that the applicant paid no heed to the reasons given by the judge and persisted in making a hopeless renewed application to us.

30.  There is no reason why costs should not follow the event.  We order that the applicant should pay the putative respondent’s costs of this application and we would order him to pay costs on indemnity basis in line with our practice to discourage renewed applications which are plainly unmeritorious in the light of the refusal of leave by the court below, see Wong Wah On v Tsung Tsin Association [2019] HKCA 795 at [25] and the earlier cases cited thereat.  Having considered the putative respondent’s statement of costs filed on 30 May 2019, we fix the sum of the putative respondent’s costs of this application at $22,568.

31.  We further order that, pursuant to Order 59 rule 2A(8) of the Rules of the High Court (Cap 4A), that no party may request this determination be reconsidered at an oral hearing inter partes.