BUSINESS RIGHTS LTD. v. THE BUILDING AUTHORITY

IN THE COURT OF APPEAL

1993, No. 212
(Civil)

- Headnote -

Bill of Rights - Whether s27(1)(a)(ii) and s43(2) Buildings Ordinance conflict with Articles 10 and 14 Bill of Rights - meaning of "independent and impartial tribunal" - "rights" of owner to use and enjoy property not engaged when District Judge makes closure order under s27(1) Buildings Ordinance - whether the Rules governing appeals to Buildings Appeal Tribunal fail to meet requirements of "fair and public hearing" in Article 10 Bill of Rights. Held (Court of Appeal): appeal against District Judge's closure order dismissed.

IN THE COURT OF APPEAL

1993, No. 212
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. On 26 November 1993 His Honour District Judge Downey made a closure order under section 27(1)(a)(ii) of the Buildings Ordinance in respect of a three-storied building at Shek O. That building was put up at the end of 1990 without approval of plans by the Building Authority and without consent to commence work contrary to s14(1) of the Ordinance, and thereafter occupied without an occupation permit issued under s21(1). Plainly, serious criminal offences have been committed, as provided for in s40(1) of the Ordinance. I note that neither the owner, its directors nor the contractor who carried out the building works have been prosecuted.

2. Not surprisingly, the Building Authority sought to have the building demolished. A demolition order was made on 30 January 1991 under s24(1) of the Buildings Ordinance requiring demolition of the house within 21 days. That order was never appealed and stands unchallenged. The process of enforcement has taken over three years and has been in vain to this day. It is not necessary for the purposes of this judgment to refer to that sorry history, except by way of background. The order which the District Judge made was pursuant to a notice dated 8 October 1992 which provided as follows:

"Notice is hereby given that it is intended to apply to a District Judge for a closure order in respect of the building at House No. 26 .... on the 8th day of January 1993 ..... pursuant to s27(1)(a)(ii) of the Buildings Ordinance in order that demolition work can be carried out without danger to the occupiers or to the public....".

Section 27(1), as relevant, states:

"(1) Upon the application of -

(a) The Building Authority, where he is of the opinion that-

(i) any building is dangerous or liable to become dangerous .....

(ii) any building should be closed in order to enable any works, which he is empowered to carry out or cause to be carried out under this Part, to be carried out without danger to the occupiers or to the public; ......

the District Court shall on being satisfied that notice has been given in accordance with the provisions of subsection (2) make a Closure Order ......"

3. The District Judge on the hearing of the application was satisfied that the provisions of subsection (2) had been complied with and accordingly made the order sought, rejecting the appellant's arguments that he did not have the jurisdiction to make the order as s27 of the Buildings Ordinance was inconsistent with the Hong Kong Bill of Rights and had since 8 June 1991 been repealed pursuant to s3(2) of the Hong Kong Bill of Rights Ordinance.

4. The appellant now appeals to this court, arguing that the judge was wrong in law, as s27 of the Buildings Ordinance is inconsistent with Articles 10 and 14 of the Bill of Rights. The reference to the whole of section 27 puts the argument too wide. Section 27 deals with a number of situations including, for instance, ss(1)(b) which concerns applications for closure orders by owners. The appellant has in this case no interest in any exercise of discretion by the Building Authority further than that done under ss(1)(a)(ii). The constitutional challenge must in effect be confined to the vires to make closure orders under that subsection. Any other matter would be hypothetical and academic as far as this appellant is concerned.

Article 10

5. Article 10, where relevant, states:

"All persons shall be equal before the courts and tribunals. In the determination of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law".

6. Mr. Fung QC's argument, as I understand it, is this:

(I) S27(1) does not enable a property owner to test the opinion of the Building Authority, as the District Judge is required to make the closure order once he is satisfied that the statutory requirements for notice have been complied with under ss(2). He has no discretion in the matter.

(ii) the only avenue open to the property owner to challenge the exercise of discretion by the Building Authority under s27(1) is by way of appeal to the appeal tribunal established under Part VI.

(iii) The appeal tribunal is not an "independent and impartial tribunal" in terms of Article 10 since, of the three members constituting the quorum, one of them would have been nominated for appointment by the Building Authority, in accordance with s43 of the Buildings Ordinance.

(iv) Where, in effect, an aggrieved owner has no proper means under the statute to ventilate his grievances over the Building Authority's exercise of discretion, the appeal tribunal not being an "independent and impartial tribunal", the provisions of s27(1) in turn fail to satisfy the minimum requirements of Article 10.

(v) Moreover, since the rules permit the tribunal to refuse to hold an inquiry, and to shut out an aggrieved owner in limine, this breaches the requirement of a "fair and public hearing" under Article 10.

7. The District Judge concluded that as there was "adequate machinery for appealing against every decision of the Building Authority prior to the final act of enforcement", the fact that the District Court had only a very narrow scope to exercise any true judicial function in a section 27(1)(a)(ii) application did not make the statutory provision inconsistent with the Bill of Rights.

8. Ultimately, the appeal before us is focussed on this point.

9. Mr. Fung's fundamental point, as I understand it, is that, on a constitutional challenge to the vires of s27 and s43 of the Buildings Ordinance, the particular merits of the individual before the court is not relevant: if, as he puts it, there is "systemic" and "endemic" imbalance and partiality in the statutory appeal procedures, then the statute does not measure up to the requirements of the Bill of Rights and, whatever the individual merits or demerits of the appellant's case, the appellant must succeed, and the court would declare as a matter of general law that the impeached statutory provisions have been repealed as being inconsistent with the Bill of Rights. In examining Mr. Fung's submissions we cannot overlook this fact: whether the matter before the District Judge be a "suit at law" or not in terms of Article 10 of the Bill of Rights, the appellant had no "rights" in any real sense to be protected. What the Building Authority sought in this case was an order under s27(1)(a)(ii) to enable demolition works to be carried out without danger to the occupiers or to the public. The appellant had neither the right to erect the building nor the right to occupy the building: those acts were undoubtedly illegal. What the Building Authority has been seeking to do is to end the illegality.

"Independent and impartial tribunal"

10. Mr. Fung's argument, in essence, is that the appeal tribunal established under Part V1 of the Buildings Ordinance is constitutionally defective because, in terms of Article 10 of the Bill of Rights it is neither "independent" nor "impartial". The argument is focussed on s43(2) of the Buildings Ordinance which says:

"(2) The tribunal shall consist of not less than 3 members appointed by the Governor, of whom one shall be nominated by the Building Authority, one shall be an authorized person and one shall be appointed to represent property owners."

11. In viewing the position broadly and addressing the "systemic defect" which Mr. Fung says is inherent in the statutory scheme, my conclusion is as follows.

12. Firstly, the words "independent and impartial" in Article 10 are well known to the law. The citation of cases in the European Court of Human Rights dealing with the proper construction of Article 6(1) of the European Convention in the context of the various statutory schemes in those cases does not assist us greatly in construing those words in the Hong Kong Bill of Rights. For instance, Belilos v. Switzerland 10 EHRR 466 which dealt with a Police Board whose single member was a lawyer from police headquarters; or Langborger v. Sweden 12 EHRR 416 which concerned a Housing and Tenancy Court whose lay assessors had close links with two associations both of which had an interest in the matter in issue; or Campbell and Fell v. United Kingdom 7 EHRR 165 which involved a Board of visitors of prisons. Whether those bodies were held to be "independent and impartial" in the overall context of the statutory purposes to be served in those cases is of marginal relevance to the determination of the issues in this case.

13. What we are concerned with here, quite simply, are the minimum standards of independence and impartiality which are deemed acceptable in the eyes of the court, and these must be judged against the entire statutory scheme under the Buildings Ordinance with which we are concerned.

14. I would accept that the test of independence and impartiality would only be satisfied thus: would a tribunal appointed under s43 of the Buildings Ordinance be considered by responsible and well-intentioned members of the public to be independent and impartial? That is, would such a tribunal be considered likely to be biased in hearing appeals? See the test to the same effect in Reg. v. Gough [1993] AC 646 at 667-G. The question for determination by the District Judge was whether s43(2) of the Buildings Ordinance satisfied this test. Appeal tribunals constituted under Part VI deal with a wide range of matters coming within the Building Authority's discretion. Appeals brought under s44 may have to be dealt with speedily, because matters of public safety may be involved: see for instance s45 which provides for emergency situations pending the determination of appeals. It may therefore be important in dealing with appeals to have at least one member of the tribunal familiar with the administration of building controls under the statutory scheme in Hong Kong. Far from s43(2) being regarded as a vice, I would have thought it a virtue. Mr. Fung's argument is that the person nominated by the Building Authority is likely to be biased in favour of the Building Authority on an appeal against the exercise of the Building Authority's discretion. Why is this so? Why should a public officer, assuming that person to be a public officer, not discharge his functions and duties imposed by law properly, independently and impartially? If such a person might be thought by well-intentioned members of the public to be likely to be biased then what about tribunals consisting of, say, dentists to hear complaints against dentists under the Dental Registration Ordinance by members of the public, or disciplinary tribunals consisting of solicitors to hear complaints against solicitors by clients under the Legal Practitioners Ordinance? Is a public officer more likely to be biased than a professional person? If s43(2) of the Buildings Ordinance is inconsistent with the Bill of Rights then many other statutory tribunals constituted to discharge appellate or disciplinary functions are likely to be similarly vitiated. It is odd that the alleged lack of independence and impartiality in those other bodies should not have been perceived by the same members of the public who are now said to be looking with disfavour at the composition of the buildings appeal tribunal.

15. I wholly agree with Mr. Fung's submission that where a body has:

(i) a role in the matter under appeal and

(ii) taken part in the adjudication of the matter,

then the body cannot be regarded as independent and impartial within the meaning of Article 10. The appeal tribunal consisted under s43(2) is in my judgment a far cry from this.

16. Secondly, it is worth mentioning that the composition of the quorum under s43(2) is plainly aimed at achieving a balance. Whilst every member of the tribunal would, of course, be required to discharge his function properly within the four corners of the statute, the section seeks to ensure that the tribunal represents a wide range of points of view. One of the three members must be a person appointed to represent property owners, and the other must be an authorised person. I cannot see how a tribunal thus constituted can be said to infringe Article 10.

Nature of proceedings under s27(1)(a)(ii)

17. In the court below Crown counsel submitted to the Judge that the exercise of function by a District Judge under s27(1)(a)(ii) of the Buildings Ordinance was not a judicial act, but merely an administrative one. This submission the Judge rightly rejected. The making of a closure order is plainly a judicial act, though the exercise of judicial function is very limited: it is in effect confined to considering whether the provisions of ss(2) have been met. The question then quite simply is whether, in the making of a closure order under s27 by the District Court, there is a determination of "rights and obligations" in "a suit at law".

18. It is necessary to identify precisely what "rights" might be engaged when a Judge makes a closure order under s27(1)(a)(ii). It is noteworthy that it comes at the tail-end of a process of law enforcement. There would have been in the first place a determination by the Building Authority that the grounds existed for making an application; generally-speaking, by the time the matter goes before the District Judge, there would be no issue left as between the Building Authority and the owner. The challenge to those acts of judgment would have come within the appeal process under s43. By the time the matter reaches the District Court under s27 there would be no "rights" left which could in any way be decisive of the ownership use or enjoyment of property. I would accordingly follow Rhind J's line of reasoning in Auburntown Ltd. HCMP No. 222 of 1993, 18/4/94 (unreported) and hold that Article 10 is not engaged when a District Judge makes a closure order under s27(1)(a)(ii). In coming to this view I do not lose sight of the fact that under ss(1)(a)(ii) there can be an application for a closure order in less extreme circumstances than those in this case. A closure order enables the occupants to be removed and the building sealed under ss(6). If such an application were made arbitrarily by the Building Authority the persons affected have the right to apply for judicial review. This is a constitutional safeguard under our law and, whilst it is not a complete answer, it does provide some remedies to aggrieved persons who complain of impropriety on the part of the Building Authority.

Fair and public hearing

19. The relevant Rules governing the procedure of the appeal tribunal are as follows:

"1(1)A person appealing from a decision of the Building Authority under Part VI of this Ordinance shall, within 3 weeks of such decision give notice in writing to the Building Authority stating the substance of the matter relating to his appeal.

(2) Upon receipt of such notice the Building Authority shall convene a meeting of the tribunal.

2. If it appears to the tribunal, after due consideration of any appeal, that no good cause has been shown why an inquiry should be held, it may refuse to hold an inquiry and shall inform the appellant accordingly."

20. It is said that Rule 2 is so oppressive, permitting the tribunal to dispose of an appeal merely on the written material submitted by the appellant in accordance with Rule 1, and without a hearing, that it fails to satisfy the minimum requirements of a "fair and public hearing" in Article 10.

21. I would reject this submission as well. There must be many circumstances where the "substance of the matter" relating to an appeal is so lacking in merit that a tribunal can with confidence conclude that no "good cause" has been shown. I cannot see how it could be suggested that such a provision infringes a fundamental human right: without such a provision, the tribunal would be deprived of the ability to dismiss an appeal in limine, where it is wholly lacking in merit, or is frivolous and vexatious. How can this be in the public interest: particularly where the public might be at risk, relating to the exercise of discretion by the Building Authority covering such things as dangerous buildings (s26), defective buildings (s26A), or dangerous hillsides(s27A).

22. Mr. Fung's arguments might have more force if the Rules allowed the tribunal arbitrarily to refuse to hold an inquiry. But this is not so. There must be a "due consideration" of the written material submitted by the appellant under Rule 1(1) and the Tribunal can only refuse a hearing if "no good cause" has been shown.

23. In my judgment the question of proportionality and rationality does not come into the question at all, as there is no prima facie infringement of Article 10 of the Bill of Rights.

Article 14 of the Bill of Rights

24. Article 14 provides:

"Protection of privacy, family, home correspondence, honour and reputation

(1) No person shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks."

25. The judge dealt with this point by focussing on the words "arbitrary" or "unlawful" in Article 14. His approach has been criticized on the basis that he focussed on the individual circumstances of this appellant's case, rather than on the vires of s27 of the Buildings Ordinance. To a limited extent, Mr. Fung's criticism is justified, as at the end of the day the court is concerned not with whether in a particular case, the right protected by Article 14 has been infringed, but whether a provision in a statute, that is s27(1)(a)(ii) of the Buildings Ordinance, is inconsistent with Article 14.

26. Section 27(1)(a)(ii) sets out the legal procedure for the District Court to make a closure order on the Building Authority's application. I see nothing inconsistent with the guarantee of privacy in Article 14, and am of the view that the Judge had reached the right conclusion on this point.

27. For the reasons I have given above I would dismiss this appeal.

Nazareth, J.A.:

28. I agree that the appeal must be dismissed for the reasons given by my Lord save that I do not find it necessary to rely upon the composition of the appeal tribunal being consistent with Article 10 of the Bill of Rights. In that regard I am content to rely upon the conclusion reached by my Lord that Article 10 is not engaged.

29. Before I leave the matter I would like to record my disquiet at what I regard as an intrinsic part of the administrative procedures in question, that is a closure order, being given a judicial guise by s27(1). While it is true that the District Court has to act judicially under that provision, its sole role is to satisfy itself that notice has been given in accordance with the provisions of sub- section 2 of s27. Thereupon, it is required to make a closure order. It is the Building Authority that decides whether a building is dangerous or whether it should be closed to enable works to be done to which my Lord has referred. Why then it is the District Court that should be required by law to issue the closure order is not clear. It seems to me that the retention in the law of this provision should be re-examined.

Power, V.-P.:

30. I also agree with all that has fallen from my brother Litton. I would add only as regards the matter of partiality that it seems to me that the clear intention of the legislature in s43(2) of the Building Ordinance was to establish a balanced tribunal. It is true that the Building Authority nominates a member but who better to put forward the name of a person familiar with the operation of the authority and the application of the Building Ordinance than the Building Authority. The Governor is required under that sub-section not only to appoint an authorized person but also to appoint a person, and I use the words of the section, "to represent property owners". The middle ground is occupied by the authorized person. The balance is levelled by the appointment of a person who brings to the deliberations of the tribunal a knowledge of the interests of property owners which term, in the context of the section is, I am satisfied, meant to refer to persons who have a private as opposed to a public interest in property.

31. For the reasons given the appeal must be dismissed.