QUEBOSTOCK LTD v. THE BUILDING AUTHORITY AND OTHERS

Ordinance, construction of, principles applicable to.

Construction, intention of legislature and nature of Ordinance as a guide to.

Construction, no application of expressio unius rule where context otherwise dictates.

Construction, "may" must always mean may, and can never mean must.

Construction, "may", whether use in a permissive, directory or mandatory sense, dependant on context within an Ordinance having regard to its nature and intention.

Construction, "may" used in several different senses within the same part of an Ordinance, having regard to the immediate context.

Construction, "may" used in several different senses within the same section of an Ordinance, having regard to the .immediate context.

Buildings Ordinance, "may", use of in different paragraphs, sub-sections and sections, to imply imposition of different degrees of duty on Building Authority.

Words and Phrases, "may", whether conferring a discretion, enabling, directory or imperative.

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JUDGMENT

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1. Mr. Bernacchi moves, on consensually-short notice, by leave granted by me on 7th June, for Judicial Review of a decision of the Appeal Tribunal constituted under section 43 of the Buildings Ordinance, which I shall refer to in this judgment as "the Ordinance", whereby that body decided, in the manner permitted by paragraph 2 of the First Schedule to the Ordinance, that it had no jurisdiction to hear an appeal by the present applicant, lodged to it against an order made by the Building Authority on 14th January 1985 under section 24 of the Ordinance, in respect of some property in Stanley Market. The gentlemen comprising the 2nd Respondent have informed me, through the medium of Mr. Strawbridge, that they do not wish to appear and take part in the Motion, and that they are content to leave the 1st Respondent to argue the cause for them.

2. I need not go into the history, or even the nature, of that appeal, for its merits are in nowise touched on in the present proceedings; suffice it to say that, for the purposes of this Motion, no one suggests to me that that is an appeal which is bound to fail for want of merit.

3. The Tribunal's power is contained in section 43(1) of the Ordinance, which limits it to hearing appeals only from such decisions of the Building Authority made in his discretion on any act, matter, or thing, as are made subject to the exercise of his discretion by the Ordinance. The Tribunal held that it had no jurisdiction because that particular order of the Building Authority was not one made in the exercise of discretion under the Ordinance; in other words, that section 43(1) of the Ordinance does not confer a discretion on the Building Authority.

4. The relief sought is certiorari to quash the Tribunal's decision, a declaration as to the applicant's right of appeal, and a mandamus to direct the Tribunal to hear the appeal.

5. To reach my decision has involved an examination of Parts II and VII of the Ordinance, which is well known as a Private Practitioner's delight and as a Crown Counsel's nightmare. Indeed, when being taken through the Ordinance by Mr. Bernacchi and Mr. Strawbridge, I am reminded of that passage in the judgment of Moult, J., which appears in the judgment of Sir Denys Roberts, C. J., in The Personal Representatives of the Estate of WONG Sai -chuen, deceased v. TAM & Anor.⁽¹⁾

"The draftsman cannot have been in control himself. Nobody could have got the law into this state or purpose

6. This Motion turns on a short but by no means simple point, namely the effect of the word "may" in section 24 of the Ordinance: I was asked to decide if it meant "must" or if it meant "may".

7. At this point, I feel obliged to reiterate what fell from Cotton, L. J. in In re Bake, Nichols v. Baker⁽²⁾

"I think that great misconception is caused by saying that in some cases "may" means "must". It never can mean "must", so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases, where a Judge has a power given him by the word "may", it becomes his duty to exercise it.'',

and what fell from Talbot, J. in Sheffield Corporation v. Luxford: Sheffield Corporation v. Morell ⁽³⁾:-

""May" always means may. "May" is a permissive or enabling expression; but there are cases in which, for various reasons, as soon as the person who is within the statute is entrusted with the power it becomes his duty to exercise it.".

I have borne that in mind throughout this judgment.

8. The definition of "may" in the Oxford Dictionary runs to nine full columns, but, so far as Ordinances are concerned, there are but four constructions of it: one; as conferring an enabling power; two; as directory; three; as conferring a discretion of a limited nature; and, four; as conferring an unlimited discretion. Frequently it is easy to decide which construction to put on it, but, in the case of the Ordinance, various draftsmen over the past 29 years have scattered "may" and "shall" and "may if in the opinion of" like confetti over the Ordinance, leaving the bewildered reader to try to discover which colour of the "may" confetti has fallen on to the particular section he is reading.

9. If this matter were free of authority, I would have no hesitation in saying that section 24(1) gave the Building Authority complete discretion, but it is not se free, and it behoves me first to analyse the authorities and then the Ordinance itself.

10. I will not start at the beginning, but content myself with the 16th of April, 1683 that is, with Alderman Backwell's Case ⁽⁴⁾. Lord North, then Lord Keeper of the Great Seal, was petitioned by several of the Alderman's creditors to issue a commission of bankruptcy against him. The statute provided that the Chancellor may grant such a commission. Lord North said at page 153:-

"Though the words in the Act of Parliament were the Chancellor may grant, a commission of bankrupt, yet that",

meaning the word "may",

"was in effect "must", and it had been so resolved by all the judges.".

11. In The King v. Barlow and Jeans, Churchwardens of the Parish of St. Warburgh in Derby ⁽⁵⁾, the Court of King's Bench had to construe the words "shall have power," in section XVIII of the Poor Relief Act, 1662. The relevant parts of that section reads:-

"...... All constables, headboroughs and tithingmen so out of purse as aforesaid, together with the churchwardens and overseers of the poor and other inhabitants of the said parish, shall hereby have power and authority to make an indifferent rate, and to tax all the occupiers of lands and inhabitants, and all other persons chargeable by the statute of 43 Elizabeth concerning the office and duty of overseers for the poor within the said parish..........".

The decision of the Court of King's Bench is reported by the late serjeant Carthew thus :-

"And as to the other objection, that the Words of the Statute are, that they may make a state, and so 'tis at their Election, whether they will make one or not: Per Curiam, where a Statute saith, that such a Thing maybe done, 'tis always understood it must be done.".^#

12. The report in 2 Salk. 608 is longer, and makes reference, at p.609, to a statute of the 23rd year of that saintly, and, I add, Lancastrian, monarch, King Henry VI. That year, so many charitable and heart-warming statutes were passed for the relief of the poor and oppressed, that I have not been able to find out which is that referred to by the late Mr. Salkeld; unless it be Chapter X, the Sheriffs' Act, in which case I regret, gentlemen, that I have been unable to find the section containing the enabling power to which the late Mr. Salkeld referred.

13. In the Michaelmas term of that same year, the same Court, in The King v. The Inhabitants of Derby ⁽⁶⁾- gentlemen, I say "the same year" because, you will recall, at that time the year began, very sensibly, at the end of winter and the beginning of spring, and New Year's Day was 25th March, but, according to the Application of English Law Ordinance^* , we are now bound to observe that Day on 1st January - the Court there held that "may" in the statute enabling the inhabitants of Derby to levy a rate on the parishes of the city in order to pay the Constables Tax did not confer on them any discretion. The relevant part of the judgment, which I shall read, is this :-

"They are not compellable, but the Statute only says, that they may, so  they have their Election, and no Coercion shall be; non allocatur; for may in the Case of a public officer is tantamount to shall; and if he does not do it, he shall be punished upon an Information."

14. Those three decisions were approved by the House of Lords in 1880, in an appeal ⁽¹²⁾ to which I shall come shortly, for reasons to which I shall refer, when I come to it.

15. A note of caution was sounded, however, by Lord Tenterden in The King v. The Inhabitants of Great Bolton. ^{(7) & (7A)} Lord Tenterden said, at pages 74⁽⁷⁾ and 230 ^(7A) respectively, in the two reports of it:-

"The safest course in this case is to give effect to the particular words of the enacting clause. Where the legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas.".

16. In The Queen v. The Tithe Commissioners for England and Wales. (In The Matter of Great Hale Tithes) ⁽⁸⁾, Denman, C.J., sitting with Coleridge, J. and Erle, J. and Wightman, J. considered, on an application for mandamus, a provision in a statute containing the words "shall be empowered". The relevant part of section VII of that Statute, 50 & 60 Victoriae c.54 - I presume that it would be called to-day the "Commutation of Tithes in England and Wales Act" - contains these words relating to the Tithe Commissioners :-

".....they shall be empowered to confirm and render valid such Agreement;.....".

The Court held that such words were not to be construed as permissive, but as imperative. Coleridge, J., strangely only on behalf of the puisne judges and not the Chief Justice - see the note at page 481 - said, at page 474 :-

"Upon the construction of the section we are of opinion that, in the cases to which it applies,"

and the late learned gentlemen, Mr. Adolphus of the Inner and Mr. Ellis of the Middle Temple, have put in italics the words "in the cases to which it applies",

"the Tithe Commissioners are bound to act under it, and must confirm according to its provisions. The words undoubtedly are only empowering; but it has been so often decided as to have become an axiom, that, in public statutes, words only directory, permissory or enabling may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice."

Although, in the event the demurrer to the return on the Motion for the Mandamus succeeded, and the Mandamus was refused.

17. In MacDougall v. Paterson⁽⁹⁾, Jervis, C. J., Maule, J., William, J. and Talfourd, J. considered "may" in the context of the jurisdiction of the County Court, and held that "may" in that context denoted an enabling power which was imperative for the judge to use. The section itself, which is section 13 of the County Courts Act 1850, dealt with costs, and the relevant words were :-

"....... the...Judge at Chambers, may thereupon, by Rule or Order, direct that the Plaintiff shall recover his Costs, and thereupon the Plaintiff shall have the same judgment to recover his Costs that he would have had if this Act had not been passed.".

18. The learned Chief Justice, at pages 769 to 770, said as follows :-

"We are not disposed to depart from the rule of construction of statutes, so frequently referred to by my Brother Parke. We consider ourselves bound to adhere to the ordinary meaning of the words used, and to their grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to some manifest absurdity or repugnance. The real point turns upon the meaning of the word "may". Does it necessarily give the courts and the judges a discretion in the three cases mentioned in the 13th section? or, was it used, - and, as we think, aptly and properly used, - to confer upon them an authority in the cases mentioned? or is it doubtful in which of these two senses it was used by the legislature? If the second is the true meaning, we adhere to the ordinary meaning of the words used, and to their grammatical construction, by holding that the courts and judges have no discretion when either of the three cases exists upon which the authority arises.":

At p.773, he referred to the case I have just mentioned, The Queen v. The Tithe Commissioners ⁽⁸⁾ thus:-

"which, we think, the support the rule, that, when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application.".

He then continued, and referred to the questions of absurdity and repugnance, which have featured in this Motion, and what he said is this:-

"But, if it be doubtful in which sense the word "may" is used, we should be justified, by the rule of construction to which we have referred, in considering whether absurdity or repugnance would not follow from holding that a discretion was given, and might accordingly modify the word so as to avoid that consequence. In our opinion, absurdity and repugnance would follow from such a construction. If the 11th section was intended to avoid the expense of a suggestion, that object would be effectually defeated by giving the judges a discretion under the 13th section",

and then he went on:-

"This further consequence would follow from holding that the word "may" confers a discretion. Wherever the plaintiff has cause of action for which he cannot sue in the county-court, and in respect of which he has not sustained the damage necessary to give costs, his right to costs may depend, not upon his success in the action, his right to costs may depend, not upon his success in the action, but upon the discretion of a judge, to be exercised at chambers, and, as it is said, without control, and without the means of compelling adverse witnesses to depose to facts which may be only within their own knowledge."

19. In Nicholl & Ors. v. Allen ⁽¹⁰⁾, The Court of Exchequer Chamber took the words "it shall and may be lawful" in the context of tolls, as imposing a duty on the proprietor of a toll bridge to keep it in repair, which illustrates the length to which courts will go, within the context of a particular Statute, to interpret the word "may" so as to produce what the Courts believe to be the purpose and intention of the legislature.

20. I come now to The Bishop of Oxford's case ^(11A) which was decided on 8th March, 1879 by a Divisional Court ⁽¹¹⁾, reversed by the Court of Appeal on 30th May, 1879 ^(11A) and was in the House of Lords on 23rd March of the following year^(12A) (a remarkable and enviable speed record). There are three passages in the Court of Appeal judgments which I feel I really should cite. In that case, there under the name of The Queen v. The Bishop of Oxford ^(11A), Bramwell, L.J. said, at pages 553 to 554:-

"I now proceed to examine the words of the section, and I confess I do so with a strong belief they will not be found to be compulsory. It cannot be doubted that the Act is very loosely drawn. In discussing the section I will leave out for the moment the bishop's alternative power to issue the commission "of his own mere motion if he thinks fit.". "It shall be lawful.". That means shall have power. Prima facie those words import a discretion, and they must be construed as discretionary, unless there be any-thing in the subject-matter to which they are applied, or in any other part of the statute to show that they are meant to be imperative per Crompton, J., In re Newport Bridge.^(1A) It is for those then who assert that these words are imperative, to prove it. I think they fail to do so. No doubt, a power given for the furtherance of justice is to be exercised and is a command. I quite assent to the remark of Mr. Justice Coleridge that "words only directory, permissive, or enabling, may have a compulsory force where the thing to be done is for the public benefit, or in advancement of public justice.". But it is to beg the question to say that that is the case here. The justice must be a justice, which it is desirable should be exercised, and not a power such as this under such circumstances as I have pointed out. No doubt the public are interested in the matter; but their interest must be that in some cases there should be no prosecution. I know the danger of laying down a rule, how impossible it is to anticipate all possible exceptions. But I think the following may be of somme use in ascertaining whether enabling words are compulsory. A statute giving a power means that it should be exercised in certain cases; where the conditions of those cases are always the same, then it must mean the power should be exercised in all those cases, and so is compulsory: see the reasoning of the judges in the above case of In re Newport Bridge ^(1A), and especially of Blackburn, J., at p.382 and what was said by the court in MacDougall v. Paterson.^(2A) An example of this is seen in the last case, where the power to give costs was made dependent on the plaintiff living twenty miles from the defendant. That was the sole condition, and of course would exist without variation in every case where it existed at all. But where the circumstances of the cases vary, then words empowering, but not commanding, are not obligatory.".

and, at page 558, Baggallay, L.J. said this:-

"Such words may have different meanings in different sections of the same statute, or even in different portions of the same section; and, whether, in any particular section of portion of a section, they are to be regarded as compulsory or as importing a discretion, must depend, not only upon the immediate context, but also upon the object and general scope of the enactment.".

At p.594, Thesiger, L. J. said:-

"The Language, however, of the 3rd section of that Act, read according to its natural and grammatical signification, points, in my opinion, strongly to the conclusion that a discretion has been preserved by the Act. The words "it shall be lawful", are the governing words of the section, and those words, when used in a statute, primarily import that something to be done, which but for the statute would be contrary to or at least unauthorized by law, has given to it a legal sanction or effect. But such words may, either from the nature of the act to which they refer, if the context will permit of it, or from the context itself, acquire a secondary meaning under which the thing to be done becomes obligatory. As regards the nature of the act, if it be for the public benefit or in advancement of public justice, it is an axiom, as Coleridge, J., in Reg. v. Tithe Commissioners^(1B) says, ''that words only directory, permissory, or enabling, may have a compulsory force.".

And those words are of very considerable importance in this Motion. As I have said, the decision of the Court of Appeal was upheld of appeal in the House of Lords, and the three passage I have cited were in nowise criticised or doubted

21. In the appeal in the Lords, there under the name of Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford; The Rev. Thomas Thellusson Carter ⁽¹²⁾, Cairns, L. C., in his speech, at page 225, said, after referring to the cases which I have just cited:-

".....the cases to which I have referred appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.".

Lord Penzance, at page 230, said:-

"It is surely not enough that the thing empowered to be done should be for the public benefit, in order to make it imperative to exercise that power on all occasions falling within the statute. It may be assumed that all powers conferred by statute on individuals in general public Acts, are for the, public benefit, or they would not have been conferred.";

and, later, he said :-

"These words, in a certain class of statutes, import prima facie not permission, but obligation; and must be so construed unless the conclusion that they were so intended can be displaced."

Those are very strong words indeed, falling, as they did, from one of the Lords in this very important case. At pp. 231/2, after reviewing the earlier cases that I have mentioned, he said:-

"In all these instances the Courts decided that the power conferred was one which was intended by the Legislature to be exercised; and that although the statute in terms had only conferred a power, the circumstances were such as to create a duty. In other words, the - conclusion arrived at by the courts in these cases was this - that regard being had to the subject-matter - to the position and character of the person empowered - to the general objects of the statute - and, above all, to the position and rights of the person, or class of persons, for whose benefit the power was conferred, the exercise of any discretion by the person empowered could not have been intended.".

Lord Selborne, at page 235, said :-

"I agree with my noble and learned friends who have preceded me, that the meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power.".

Lord Blackburn said, at page 241:-

"I do not think the words "it shall be lawful" are in themselves ambiguous at all. They are apt words to express that a power is given; and as, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required -on their behalf.";

He then went on to deal with the cases that I have already cited.

22. That decision has laid down the proper approach to the interpretation that should be used in this type of question, but it did not resolve the apparent conflict with the rule expressio unius eat exclusio alterius, referred to in Blackburn v. Flavelle^.(13) Leonard, J., as he then was, had no such difficulty in cutting the Gordian knot in Singway v. the Attorney-General, ⁽¹⁴⁾ to which I shall come in due course, but with this caution: none of the authorities to which I have referred appears to have been cited to Leonard, J., nor was his attention drawn to the passage in the speech of Lord Maugham, in Jennings & Anor. v. Kelly ⁽¹⁵⁾ where, at pages 218 to 219, he said:-

"It cannot, I think, be disputed that in construing a section of an Act of Parliament, it is constantly necessary to explain the meaning of the words by an examination of the purport and effect of other sections in the same Act. A number of striking examples will be found in Maxwell. This principle is equally applicable in the case of different parts of a single section, and none the less that the latter part is introduced by the words "provided that" or like words. There can, I think, be no doubt that the view expressed in Kent's Commentaries on American Law (cited with approval in Maxwell) is correct: "The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting. clause, saving clause and proviso, taken and construed together, is to prevail.".

23. Hong Kong picked up Julius ^(12), Baker ⁽²⁾ and Sheffield ⁽³⁾ in Wong Cheung-ping trading as Tai Tung Firm v. Tang Hoi. ⁽¹⁶⁾

24. Before passing on, I should pick up a remark of Somervell, L.J. in Border Rural District Council v. Roberts ⁽¹⁷⁾ where he said, at page 729, in relation to the Barlow and Jeans case ⁽⁵⁾ :-

"That last sentence, of course, obviously goes beyond what has been laid down",^*

but it is to be noted he expressed no disapproval of the decision in its own context.

25. There then followed two cases on the Fugitive Offenders Act, one on section 6 and one on section 7. In In re Shuter ⁽¹⁸⁾, the Divisional Court construed "may" in section 7 as being mandatory in the absence of sufficient cause being shewn to the contrary, and, incidentally, accepted the view of Mr. Anthony Rushford, of the then Colonial Office, that the facts disclosed no unreasonableness. Six months later the Divisional Court, again presided over by Lord Parker, C.J., in R. v. Governor of Brixton Prison & Anor.: Ex parte Enahoro⁽¹⁹⁾, held that "may" in section 6 of the same Act meant "may", and conferred a discretion on the Home Secretary. Disquieting as that may sound on a first hearing, I found those two decisions of considerable assistance.

26. Padfield & Ors. v. Minister of Agriculture, Fisheries and Food & Ors, ⁽²⁰⁾ was an example of an intermediate stage, when Parliament conferred a discretion, but not an unfettered one. I will content myself with reading but one passage from the speech of Lord Reid, at page 1030:-

"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of Jaw for the court.".

27. For the purposes of section 43 of the Ordinance, it matters not whether the discretion be fettered or unfettered; if there be any, the Appeal Tribunal's decision must be quashed. The Car Owners Mutual Company Limited v. the Treasurer of the Commonwealth of Australia ⁽²¹⁾ is a good example of a statute conferring what appears to be a discretion; yet it was held by the Privy Council as conferring a duty to act, once certain pie-conditions had been fulfilled.

28. I now return to Leonard, J.'s decision in the Singway Case ⁽¹⁴⁾. He took section 16 of the Ordinance, this same Ordinance, and went through the paragraphs of subsection (1) of section 16, and, at pages 287 to 288, he distinguished between some of them, where the use of the word "may" in the subsection conferred a duty in relation to the paragraph, and others of them, where the same word "may" in the subsection conferred a complete discretion in relation to the paragraph.

29. I must now pass to the Ordinance itself.

30. Part II of the Ordinance begins at section 14 and it is headed "Control of Building."'. section 14(l) lays down this -

".....no person shall commence or carry out any building works or street works without having first obtained from the Building Authority*",

his approval or his consent, save as is "otherwise provided "Building work" is specifically defined in section 2(1) of the Ordinance and so is "street works".

31. Section 16(1), the one I have referred to, commences with these words:-

"The Building Authority may refuse to give his approval of any plans of building works where - ",

- and then follow the paragraphs to which I have referred. One of my brother judges has held that, in some of those paragraphs, the word "may" obliges the Building Authority to refuse to give his approval, and in others confers a discretion. The important one is (d), where Leonard, J. held that it in fact left no discretion in the Building Authority. Paragraph (d) refers to:-

"the carrying out of the building works shown thereon would contravene the provisions of this Ordinance...",

and then it refers to other enactments and to plans under the Town Planning Ordinance.

32. Section 17(1) provides that the Building Authority, when he has received an application in respect of building words set out in that section,

"may take such action by way of imposing conditions and requirements.....";

yet in subsection (2) it says this:-

"Where the Building Authority approves plans of building works, or gives his consent to the commencement of building works, he shall impose such conditions as the committee of review may have required.", (my emphases).

33. Section 19 deals with provision for urgent work. Subsection (1)(a) deals with an accident or emergency rendering it neceesary to shore up, underpin or demolish, and (b) deals with notice in writing. The subsection continues:-

"such work may be commenced without obtaining the Building Authority's consent.";

then it continues in subsection (2):-

"If the Building Authority considers that the emergency no longer exists he may by order in writing served on the. building owner etc... require that the building works cease until consent is obtained.".

There you have "may" simpliciter where the emergency no longer exists.

34. Section 20 deals with the resumption of suspended work and says, in subsection (2):-

"The building Authority may, upon application being made in the prescribed form, renew such consent and by order in writing impose such conditions as in his opinion are made necessary by such delay in commencement or by such suspension.".

35. Section 21 deals with the occupation of a new building. Subsection (2) prescribes as follows:-

Subsection (3):-

Subsection (6):-

"The Building Authority may refuse to issue a temporary occupation permit where, etc.".

36. Section 22 deals with the powers of the Building Authority. Subsection (1) reads as follows:-

"The Building Authority or any public officer authorised by him in that behalf may at any time enter and where necessary, in the presence of a police officer, break into any premises or enter upon any land -",

It is to be noted there that "may" is preceded by the words "in the opinion of".

Then subsection (2) reads

And subsection (3) reads:-

"If a person fails to comply with an order served on him .. the Building Authority may, without any further notice, carry out, or cause to be carried out, such work as may be necessary to ensure that the order will be complied with.

 

(4) The cost of any work carried out, or caused to be carried out, by the Building Authority .. may be recovered by the Building Authority from the person upon whom the order was served under subsection (2).".

and then there are four paragraphs there. One is to ascertain whether anything is dangerous; two is to inspect drainage works; three is to ascertain if the provisions of the Ordinance are being complied with; and four is to carry out work which he is authorised to carry out under the Ordinance. Subsection (2), for the purposes of that subsection I have just read, says:-

"The Building Authority or a public officer authorised under this section may take such steps as he may deem necessary, including the making of openings and the taking of reasonable samples.".

It is to be noted in that, subsection (2)(b) the word "may" is qualified by the words "as he may deem necessary.".

37. Subsection (3) reads:-.

"The Building Authority may by order in writing require an authorised person to carry out such tests as may be specified in the order.".

38. Section 23, which, I must add, immediately precedes the one I have to construe, reads as follows, and I shall read only the relevant words:-

In that new section, added in 1972, you have "in the opinion of the Building Authority he may" and "may" simpliciter, and it is interesting to note that, in subsection 2(a), the word "may" without the qualification of opinion, relates to the time before which the work shall be commenced and the time by which it shall be completed.

39. Section 25 deals with changes in user. Subsection (2) provides:-

"Where in the opinion of the Building Authority any building is not suitable by reason of its construction for its present or intended use, he may by order in writing ..",

- do certain things, and there is a proviso:-

"Provided that the Building Authority may permit by notice in writing such building works as he deems necessary for the purpose of rendering the building suitable.".

Section 26 deals with dangerous buildings, yet it begins with these words:-

"Where in the opinion of the Building Authority any building has been rendered dangerous .. the Building Authority may by order in writing .. served on the owner declare such building to be dangerous or liable to become dangerous.":

It continues in subsection (2) - "may order", and there are seven paragraphs: demolition; make safe generally; specify the work should be done to make the building safe; require shoring and where it should go; require hoarding; require the closure; and specify the time.

That I find a helpful section, for the discretion, which must flow, and that Mr. Strawbridge accepts must flow, from the conjunction of the words "in the opinion of" with the words "may", relates only to the declaration of the danger or potential danger of the building, but, once the Building Authority has in fact, by the use of his opinion, come to that conclusion and given an order, the words "in the opinion of" disappear; helpful, because it is a singular section when I consider what I have to consider in section 24 and its juxtaposition to section 23. Section 26, however, does not contain any qualifying words such as "opinion" in relation to any order which is consequent upon the Building Authority's decision, made in the exercise of his discretion, that the building is dangerous or potentially dangerous.

40. Section 27(1) deals with Closure Orders. Once again, the words "in the opinion of" appear, and that is in subsection (1)(a). In subsection (4) the word "shall" appears.  In subsection (5) (b) there appear this phrase:-

"Where he thinks fit,! the Building authority may, subject to such conditions as he thinks fit.":

In subsection (7):-

"The Building Authority .may recover from the owner of the building to cost of any works that he carries out or causes to be carried out.":

I do not need to read any more of that particular section.

41. Section 27A (1) reads:-

"Where in the opinion of the Building Authority any natural, formed or man-made land, or any earth-retaining structure, has due to any cause been rendered so dangerous or liable to become so dangerous that it will collapse, or he likely to collapse, .. the Building Authority may by order in writing in the prescribed form ..".

Once again, as the Crown concedes, that must be a wholly unfettered discretion. Subsection (2), however, continues:-

There is no qualifying word to the word "may" in that sub-section.

42. Dealing with drainage in section 28, subsection (2) has the words : "Where in the opinion of the Building Authority he may by order" etc.; and, in subsection (3), "Where in the opinion of the Building Authority he may".

43. Section 28B deals with works interpreted in section 28A. It contains "may" in subsection (2), it contains "shall" in subsection (3) and in subsection (4) it prescribes this:-

"The Building Authority shall consider every objection to the relevant works .. and, by order in the presribed form, may, subject to such conditions as he considers necessary, authorize with or without alteration the carrying out of the relevant works.".

Subsection (5) prescribes that notice of authorisation under subsection (4) "shall be served by the Building Authority.": That section was added in 1982.

44. In section 29(3)(c), there appear these words:-

"The Building Authority shall not commence or authorise the commencement of such work until...... .";

but in subsection (4):-

"If any order made under subsection (2)(a) is not complied with, the Building Authority may carry out or cause to be carried out the work required thereby to be carried out.".

In subsection (6):-

"The Building Authority may recover the cost of any work carried out pursuant to the provisions of subsection (2)(b) or of subsection (4).";

yet in paragraph (b) of subsection (7) appear the words:-

"The Building Authority shall not  undertake the futher maintenance of any private street until ....":

And subsection (8) says:-

"The Building Authority may exempt from the application of this section, either wholly or in part, any private street on which no buildings front or abut.".

45. It is now quite clear that, in relation to Part II, my analogy with confetti is not unjustified Practically every canon of drafting has been broken in that Part of the Ordinance. Unhappily for me, I have to try and make sense of it. I cannot follow that words of Moult, J., to which I have already referred. I must - I am obliged to- make such sense out of it as I can, but with these preliminary observations: Two things are perfectly clear. One is that "shall" means shall, and there is no discretion whatever. The other is that, where the words "if in the opinion of the Building Authority" qualify "may", there is an unfettered discretion. Between the two, the mid-point, is the one I have to, determine, because, if "may" is directory as opposed to "shall" as mandatory, there is no discretion, either fettered or unfettered. What I have to do is to look at the halfway mark and see whether "may" in section 24 falls on the "shall" side or on the "if in the opinion of" side.

46. Even if it is minutely "if in the opinion of", then, quite clearly, and the. Crown would concede, the Appeal Tribunal must have been wrong, because the discretion -it does not matter what type of discretion it is - if there is any discretion, they must be wrong.

47. I now turn to the section in question. Section 24(1) reads as follows:-

48. I would observe at this stage, that this subsection includes building works, street works, lift works or escalator works in the process of being carried out, yet those words are preceded by the word "may". In the preceding section, which I have already read, the identical situation is dealt with - "any building works, street works, lift works or escalator works" in the process of being carried out. But, in section 23, the word "may" is preceded by the words "in the opinion of", and section 23 deals with the situation where the Building Authority is empowered to make an order requiring the works to cease until such order is withdrawn; in other words, it can be used, if so required, to bring about a pause to enable the Building Authority and the contractor to consider whether, in fact, what is being done is, in truth, in contravention of the provisions of the Ordinance.

49. Section 24 deals with the situation where the Building Authority, without giving such time for pause, without giving consideration at all under section 23, is empowered to give an order requiring the building or works to be demolished, the lifts or escalators removed, and such alterations to be carried out as would effect compliance with the Ordinance or put in end to the contravention. Now, it continues:-

"and in every case specify the time within which the demolition, removal, alteration or work required by such order shall be commenced and the time within which the same shall be completed.".

It is to be noted that that part of subsection (1) dealing with time for commencement and time for completion, follows the word "may" without any qualification. That is the same situation in 24A(2)(a)(ii) which follows a subsection which refers to "opinion".

50. In section 26(2), subsection (2)(g), containing the word "may" unqualifed, follows subsection (1), which contains the word "in the opinion of".

51. Now I must return to the section which I am considering. Subsection (2) deals with an order being made under subsection (1), and contains the word "shall", and I will read the relevant words:-

"An order made under subsection (1) shall be served -".

Subsection (3) deals with the situation where there is disobedience to an order:-

"If an order made under subsection (1) is not complied the Building Authority may demolish, remove or alter or cause to be demolished, removed or altered such building works, street works, lift works or escalator works.":

Subsection (4) deals with costs and it uses these words:-

"The cost of works carried out under subsection (3) may be recovered from the persons upon whom orders had been served under subsection (2).";

it then continues:-

"and where such an order had been served on frontagers the Building Authority shall apportion such cost-".

So, now, you have a situation where "may" and "shall", are in the same subsection, and not merely in different subsections of the same section. Subsection (4) of 24A also deals, with costs in the same way, and there are others, to which I have already referred, and I do not intend to refer to them again. Now, how on earth am I to make sense out of this? It is little use looking through the Ordinance as a whole; it is little use looking through Part II as a whole, but I do feel that it is of considerable help to take sections 23, 24 and 24A together, and, possibly, section 26, because they are, to use a maxim out of context, in pari materia. Perhaps it would be better if I confine that to sections 23 and 24, but say that sections 24A and 26, while not exactly in pari materia, are close, and it is here where I find about the only help that the draftsman has given me, and I believe that what he has done is this: He has put in the words "in the opinion of" to indicate that there is a complete and unfettered discretion, and that, in such cases, an appeal must lie to the Appeal Tribunal: He has used "may" in a directory sense, so that a person aggrieved may come to this court on Judicial Review: And he has used "shall", in a consequential situation as mandatory. In other words, "You, the Building Authority, as a public officer, although empowered to do something, will be expected by the Court to do it under subsection (1), and, if you live up to our expectations, this is the way in which you will carry out your duty:" - and that is the meaning of "shall" - "If you do your duty by ordering the demolition, or the removal or the alterations, then, once you have carried out that duty, you will obey these rules: You will serve it on so-and-so, on so-and-so, on so-and-so and on so-and-so" - set out in the paragraphs in subsection (2).

52. It is only in that way that can I avoid repugnance or absurdity, repugnance - not personal repugnance - repugnance between the various portions of the Ordinance, and absurdity: Both of which words were invoked by Mr. Bernacchi in his interpretation of section 24, which, in the end, has turned out to be the opposite of mine.

53. I have reached this conclusion with the greatest of hesitation, and something akin to personal repugnance, because I, for the life of me, cannot see why the legislation should give the Building Authority complete discretion is section 23, which allows a simple, straight-forward and cheap appeal to the Appeals Tribunal, and yet should use the same word "may", in relation, inter alia, to the identical situation, in section 24 with no discretionary qualification, and thus leave the citizen, or subject as the case may be, to an expensive and difficult "appeal" to this Court, involving an application for leave to move for judicial review, a Notice of Motion in open Court, and, sometimes, a number of parties to be represented.

54. But I cannot allow my personal feelings to enter into this. I record them in this judgment in the hope that Mr. Strawbridge, when he returns to his chambers, will say to somebody, "It is about time we went through this ordinance and tried to put it into shape. It's costing a lot of money in Privy Council". It would be fairly simple to put someone in a small room for about three weeks to decide which of these sections should involve an appeal to the Appeals Tribunal and which should not, and then to make such alterations as may be necessary by way of amendment to ensure that that is made patent.

55. I must now deal with Mr. Bernacchi's other submission that, even if paragraphs (a), (b) and (c) of subsection (1) are directory, and the Building Authority is expected by this Court to carry out his duty, such considerations cannot possibly apply to the three lines following paragraph (c) of subsection (1) because time, Mr. Bernacchi urges upon me, can only be a matter of discretion. How can the Building Authority know how long the carrying out of his order is going to take, what difficulties will confront the building owner, or the contractor or frontagers, and so on?

56. It is, upon its face, a very attractive argument, but I came to the conclusion when it was first advanced before me, and I have not yet been persuaded the contrary, that it is wrong. I concede that there may be an interesting point for Mr. Strawbridge to take back to his Chambers, where he could get hold of one of the draftsmen and say, "Look, this is ridiculous; you should do something about this: "Time" should be a matter that can specifically be taken before the Appeal Tribunal, and taken quickly, simply and cheaply, so that everybody concerned can have the time factor dealt with in a less formal, and in a more easy way, to the satisfaction of all, including the Building Authority, so that the necessary works can be carried out in a reasonable time.". But that is as far as I can take it. I cannot, however, hold that it, the prescription of time, is discretionary. I have already said that I am construing sections 23, 24, 24A together as being the only way I can make sense out of this Part of the Ordinance, and, if I do that it is quite clear, by looking at subsection (1) of 24A, that time is not discretionary there, and that is not a 1956 section - that is a 1972 section; so it must be a quite deliberate decision on the part of the legislature that time in this context is not discretionary. In subsection (1) of section 24A at the risk of repeating myself, the words "in the opinion of" precede the word "may", but in subsection (2) they do not; and I can think of no more clear indication that that is what is intended. There is no need for any such differential wording in section 24, because, in that section, there is no "in the opinion of" in subsection (1): And this view is borne out when I look again at sections 26(1) and 26(2). 26(1) is the clearest exercise of discretion; 26(2)(g), which deals with time, is not. Whether it ought to be, is not a matter me to say in this judgment, but, whoever dealt with this question in 1966 and 1972, clearly did not intend section 43(1) to apply. It may be that the draftsman never thought of section 43(1) when dealing with time in this way - I know not - but the legislature must be deemed, even in the face of overwhelming evidence to the contrary, to know what it is doing, and, when it has drawn the distinction to which I have just referred, in my judgment, it means that there is no discretion as to time.

57. It follows from what I have said that this Motion must be dismissed.

58. Gentlemen, this judgment being delivered extempore, some of the authorities, sections, sub-sections and paragraphs may not be in strict order. When I receive the transcription from the Court Shorthand-Writers, I will transpose them to their chronological and numerical order, if that is agreeable to you both.

(1)      (1983) H.K.L.R. 331 at p.342

(1A)   (1859) 2 E & E 377

(1B)    (1849) 14 Q.B. 459, 474, (note: that case in this Judgment is No.8)

(2)      (1890) 44 Ch.D. 262 at p.270

(2A)    (1851) 11 C. B. 755, (note: that case is No. 9 in this Judgment)

(3)      [1929] 2 K. B. 180 at pp. 183-184

(4)      (1683) 1 Vern. 152 at p.153

(5)      (1693) Carth. 293

(6)      (1694) Skin. 370

(7)      (1828) 8 B. & C. 71 at p.74

(7A)   (1828) 2 M. & R. 227 at p.230

(8)      (1849) 14 A.& E. 459 at p.474

(9)      (1851) 11 C. B. 755 at pp. 769-770 & 773-774

(10)    (1862) 31 L. J. (N. S.) 283

(11)    (1879) .4 Q. B. D. 245

(11A)  (1879) 4 Q.B. D. 525 at pp. 553-554 & 558

(12)    (1880) 5 App. Cas. 214 at pp. 225, 230, 231, 235 and 241

(12A)  (1880) 5 App. Cas. 324

(13)   (1881) 6 App. Cas. 628

(14)    [1974] H.K.L.R. 275

(15)    [1940] A.C. 206 at 218

(16)    [1947] H.K.L.R. 30

(17)     [1950] 1 K.B.  716

(18)     [1960] 1 Q.B. 142

(19)     [1963] 2 Q.B. 455

(20)     [1968] A.C. 997 at p.1030

(21)     [1970] A.C. 577

*The Laws of Hong Kong: Chapter 88, item 35 of the Schedule; and Appendix IIA, p.61

**see s.2(1) for the definition of this term.

#Sed quaere: see Border R.D.C.v. Roberts(post, p.17)

Representation:

Note to Judgment

The following cases, a not referred to in my judgment, were referred to, or cited to me:-