HKSAR v. JOY EXPRESS LTD

HCMA706/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.706 OF 2004

(ON APPEAL FROM ESS 1817 OF 2004)

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J U D G M E N T

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Background

1. Joy Express Limited (the defendant) was summonsed for the offence of being the owner of building works, between 22 July 2003 and 13 November 2003, at external wall of Cheong K. Building (“the Building”), Nos.84-86 Des Voeux Road Central, Hong Kong, did, without reasonable excuse, fail to comply with an order C/TA/10254/01/HK of the Building Authority (“the Authority”) served under section 24(1) of the Buildings Ordinance, Cap.123 (“the Ordinance”) on 5 December 2001 requiring the carrying out of the works namely, to demolish the unauthorized building works, and to reinstate the affected part(s) of the building in accordance with the plans approved by the Authority.

2. The defendant entered a not guilty plea and was convicted by the learned magistrate after trial.  The defendant sought to appeal against the conviction only.  At the appeal hearing the defendant engaged Mr Choy to make representations on its behalf.  Mr Choy’s company, Bing Choy & Associates, had acted for the defendant before and he defended the defendant at the trial.  Submissions were made by Mr Choy and the respondent, and I had adjourned the matter for deliberation.

3. The learned magistrate had written the Statement of Findings in English and Mr Choy had also addressed the court in English.  Hence, despite the fact that the trial was originally conducted in Chinese, I considered it appropriate to write this judgment in English.

The evidence

4. The magistrate had given a succinct summarize of the factual background in paragraphs 3 to 7 of the Statement of Findings.  I would not repeat the details here and suffice to say what had transpired was that in early 2001, it had come to the notice of the Authority that two metal structures were being constructed and later completed at the external wall of the Building.  They were of considerable size and attached to different sides of the Building.  One covered the height of four levels (from 4/F to 8/F) and the other covered three levels (from 3/F to 6/F).  As shown in the photographs produced, they were used to support two advertising signs of comparable size.  There was never any formal approval given for their construction, and the Authority had corresponded with Mr Choy in relation to the structures while they were being built.

5. Mr Choy had once written to the Authority enclosing his own report stating that the structures would pose no safety risk.  However, the Authority took a different view.  Written warnings were issued to the defendant but the defendant took no action.  Eventually the Authority issued a demolition order (“the Order”) dated 5 December 2001 for which the defendant was given 60 days to demolish the two structures.  There were further written warnings and the notice of intended prosecution was finally issued in June 2002.  The defendant was first prosecuted in July 2002 and it was convicted in the Eastern Magistracy in November 2002.  The defendant’s appeal against conviction was duly dismissed by Bokhary J in March 2003.  As the structures still remained unremoved, the Authority gave another warning and then took out the second prosecution under section 24(1) of the Ordinance in January 2004.  The case was heard by a different magistrate, Mr Eddie Yip, in May 2004 and the defendant was again convicted.  The defendant appealed against the conviction and that was the subject matter of the hearing before this court.

The grounds of appeal

6. At the trial, the defence did not really challenge the basic facts of the prosecution case regarding the construction of the structures and the warnings given by the Authority, but Mr Choy had extensively cross-examined PW3, an officer from the Authority.  After the close of the prosecution case, Mr Choy did make a half-way submission, but the magistrate ruled against the defence.  There was no defence witnesses called and Mr Choy proceeded to make a final submission relying on similar arguments regarding the interpretation and applicability of the relevant sections in the Building Ordinance (Cap.123) and the Public Health and Municipal Services Ordinance (Cap.132).

7. Mr Choy had raised a number of legal issues for the consideration of this court.  At one stage he had applied for all transcripts of the trial to be made available.  I had granted his application only in relation to the transcript of PW3.  Mr Choy stated that he would obtain, with his own resources, the other parts of the transcripts of the trial.  However, he later decided that it was not necessary to do so.  Hence, the only additional material obtained during the adjournment was the transcript of PW3 which had been included in the appeal bundle and was referred to by Mr Choy in his further submissions in the resumed hearing. 

8. Mr Choy argued, inter alia, that the Authority had no statutory power to issue the Order.  He referred to Halsbury to remind this court of the basic principle that clear words were required before a statutory provision could be interpreted as having created a criminal offence.  He criticized the use of the term “building works” as the basis of the offence in section 24(1) of the Ordinance.  He contrasted the two terms of “building” and “building works” in the definition section and pointed out that the term “building works” is ambiguous, while the word “building” is clear.          He submitted that “building works” to him denoted an on-going process and he asked rhetorically that how could the Authority order the demolition of an activity and particularly when that activity had been completed some time ago.  He said that the Authority could only order the demolition of a “building” but not “building works”.  The Order, therefore, constituted an apparent error of law on the face of the record.  He said that a metal structure, attached to the wall of a building, could not be said to be within the definition of a building.  He pointed out that the Building Authority had the power to declare a structure to be a “building”, but it was not done in relation to the two structures.

9. Mr Choy posed another point.  He referred to the transcript and reminded the court that PW3’s evidence did not contradict the intended usage of the structures despite his attempt to muddle the issue by saying that they “could be converted for other use”.  Hence, the sole purpose of the construction of the two structures was for the support of the advertising signs, and the governing ordinance should be the Public Health and Municipal Services Ordinance, Cap.132.

10. Mr Choy submitted that Cap.132 includes a specific section dealing with advertisement signs so it was not open to the prosecution to rely on section 24(1) of the Building Ordinance.  He said that once there was a direct provision dealing with a specific subject matter, then the option of using a general section would be lost.  The Authority was entitled to issue an order for demolition but it should be made on the basis of a different section in a different ordinance i.e. Cap.132.  The evidence showed that the structures and signs were connected with advertisements, if the structures had not been properly declared to be a “building”, then the Authority could not proceed to order a demolition by using a non-specific provision.  He said that this was necessary so that members of the community would be certain of their rights and could exercise their right to advertise which had been granted by law a long time ago.

11. Mr Choy added that if the Authority was worried about the weight of the advertising signs, or that they might pose a threat to the safety of the Building, the Authority could have relied on section 26(4) of Cap.123 which is a section dealing with emergency cases, but that was never done.

12. Mr Choy also challenged the lawfulness of the subsidiary legislation based on which the notice was issued.   He sought to rely mainly on the authority of Boddington v. British Transport Police [1998] 2 AER 203, to support his contention that he was entitled to raise the legality of the Order in the criminal proceedings as there were no clear statutory words to deny him of this right.

The respondent’s case

13. Ms Ng for the prosecution had prepared a written submission and her response to the various matters raised by Mr Choy was as follows :

“	(7)	The Appellant contended that the Authority had no statutory power under section 24(1) of BO to issue the Order because there is no clear word in BO which extends the meaning of ‘building’ (or ‘building works’) to cover metal structures.
	…
	(9)	A description of the Structures had been given in HKSAR v Joy Express Limited (Supra) : please see paragraph 8 of the judgment.  Bokhary J, after referring to Good Think Consultants Limited v AG & others [1996] 4 HKC 782 and Convey Advertising Company Limited v The Building Authority Appeal Tribunal (Buildings) Case no.126/2001 (unreported), decided that the Structures were indeed ‘building works’, being ‘an addition to a building’ : please see paragraph 5 to 13 of the judgment.
	(10)	The respondent submits that this issue had been resolved and decided correctly.  Since the Structures were ‘building works’, it is not necessary, as Defendant submitted, that metal structure should be declared as ‘building’ in the gazette.  Hence the Authority had statutory power under section 24(1) of BO to issue the Order.
	(11)	The Appellant further alleged that PW3 could not produce any evidence that metal structures used as advertisement signs were ‘building works’.
	(12)	PW3 accepted that ‘advertisement sign’ did not appear in the definition of ‘building’ in BO.  But the nature of such advertisement sign is decided by reference to their size, the manner of construction and the mode of their fixation to the building : please see paragraph 8 of Convey Advertising Company Limited v The Building Authority (supra).  Whether it falls within the definition of ‘building’ or ‘building works’ is a matter of circumstances and degree : Good Think Consultants Limited v AG & others (Supra).  It is a matter of law and construction of the statute.  PW3 had not mislead the Appellant or the court in any way and his evidence did not affect the prosecution case or the correctness of the conviction.
	(13)	The Appellant raised that the Structures were governed by the Public Health and Municipal Services Ordinance (‘Cap.132’) and it was not up to the prosecution to proceed against it under BO.
	(14)	Again this issue has already being argued and decided in HKSAR v Joy Express Limited (Supra).  The court commented that (at paragraph 14 and 15 of the judgment),
		‘the mere fact that action could have been taken under the Public Health and Municipal Services Ordinance does not mean that action cannot be taken under the Building Ordinance.’”

Assessment of the appellant’s submission

14. Mr Choy obviously felt aggrieved as he thought that the Authority had attempted to use improper means to take away a citizen’s general right to display advertising signs.  In considering the submissions, I had taken time to go through carefully the transcripts, the documents, the Statement of Findings and the judgment of Bokhary J.

15. In paragraph 8 of his Statement of Findings, the magistrate had summarized the main points raised by Mr Choy at the trial and his analysis was as follows :

“10. In answer to Mr. Choy’s first submission, one can see that paragraph 2 of the Order stated that the ‘building works comprise’ the 2 metal structures.  Mr. Choy purports to break up the term ‘building works’ into ‘building’ on the one part and ‘works’ on the other part.  This is not what the statue has laid down.  Section 2 of the Building Ordinance has given the definition of ‘building works’.  I do not find any legalistic basis for Mr. Choy to so break it up into 2 separate terms and then seek to show that the metal structures could not fit into any categories within the definition of ‘building’.  Further , as I see it, there is no requirement of the law to impose upon the Building Authority a duty to state to what category under section 2 of the Buildings Ordinance the subject-matter belongs.  But if there is such a requirement, the 2 metal structures were clearly an ‘addition’ within the definition of ‘building works’.

…

12.  In answer to Mr. Choy’s second, third and fourth submissions, one can see that the Building Authority is not precluded, in general or in the present case, by any statutory provision to issue a demolition order under section 24(1) of the Buildings Ordinance.  Section 26(4) of the Buildings Ordinance and section 105 of the Public Health and Municipal Services Ordinance involve different sets of considerations, such as weather conditions.  Besides, as stated in evidence by PW3, the building surveyor who proposed and finally got his superior to issue the Order, the Building Authority considered it irrelevant as to whether the 2 metal structures were for putting up signboards or not.  I can see no basis for querying why the Building Authority relied on a particular section it deemed fit.

13.  In answer to Mr. Choy’s fifth submission, one can still remember Mr. Choy saying that the House of Lords was perfectly correct in its decision in Boddington.  There the defendant was charged with breaching the law against smoking in a carriage of a train.  He was allowed to challenge the transport authority’s designation of all carriages in the train as ultra vires in the criminal procedure because of the House of Lords regarded that there were two scenarios.  The first scenario was where there was no other avenue open to the defendant to challenge the administrative decision in the relevant legislation; the defendant could challenge it in the criminal proceeding.  The second scenario was where there was such an avenue by the construction of the statue.  The facts of the case were found by the House of Lords to support the first scenario.

14.  In The Incorporated Owners of No.10 Bonham Strand, McMahon J. considered the case of Boddington and came to the finding, on the facts before him, that the statue in question could offer such an avenue to the defendant independent of the criminal proceeding and he so ruled that the defendant could not challenge the validity of the administrative decision in the criminal proceeding.  In short, the facts he found went to support the second scenario.  It differed from Boddington only in the facts as applied, not the principle.

15.  In our present case, Part VI of the Buildings Ordinance provides for the mechanism of appeal by ‘a person aggrieved by any decision made by the Building Authority in the exercise of a discretion conferred on him under the Ordinance’.  This falls within the second scenario in Boddington.  The defendant cannot challenge the validity of the Order in this Court.”

And having considered the circumstances, the magistrate concluded that the summons had been proved beyond a reasonable doubt.

16. The central ground of appeal advanced by Mr Choy was really the exclusive applicability of Cap.132 in this case.  Section 105 stipulates that :

“(1)  Where, in the opinion of the Authority, any hoarding, scaffolding or other structure erected solely for the purpose of exhibiting advertisements is dangerous, or is likely to become dangerous, by reason of its construction, wind, rain, dilapidation, its age or other cause, the Authority shall cause a notice to be served upon the owner of such hoarding, scaffolding or other structure, or upon his servant or agent, requiring him, within such reasonable period as shall be specified in the notice, to remove such hoarding, scaffolding or other structure or to do such work as may be specified in the notice to render the same safe.”

17. The apparent object of the section is to cover the situation when the “hoarding, scaffolding or other structure erected solely for the purpose of exhibiting advertisement becomes dangerous or is likely to become dangerous … .”  Hence, it is dealing with existing “hoarding, scaffolding or other structures”.  If the appellant’s argument is right, then structures can be built, in whatever form, whether or not approval is given by the Authority, and as long as they are intended and then used solely for the purpose of supporting advertisement signs, then the Authority could not, and should not enforce the provisions in the Buildings Ordinance, Cap.123, and must deal with the case according to Cap.132.  I cannot accept this argument.  A structure, when being built, regardless of its intended purpose, is subjected to the regulation of Cap.123 as long as it falls into the definition of “building” or “building works” as stipulated in the Ordinance.  Whether it is true that “building works” might not be the best choice of terminology but that is the expression chosen and adopted by the legislature.

18. The structures in the present case are correctly found by the magistrate to be “additions to a building” and therefore falls within the definition of “building works” in section 2 of Cap.123.  The Authority had issued warnings and then the demolition order according to section 14 of Cap.132.  The fact that the structures, after being built, despite the warnings, became structures which were used solely to support the advertisement signs could not, in retrospect, extinguish the Authority’s statutory power under Cap.123 to regulate the situation.

19. Apart from this “sequential” analysis, I also agree with the judgment of Bokhary J in which she dealt with similar arguments in the appeal case arising from the first prosecution.  In a very clearly written judgment, Bokhary J had analysed the issues and stated why she would dismiss the appeal.  Her decision, although not binding on this court, is certainly persuasive and I could not find any reason to disagree with her reasoning in relation to what constituted building works, and that Cap.123 and Cap.132 were not mutually exclusive in their applicability to the present situation. 

20. In fact, the Authority had warned the defendant about the “overlapping” jurisdiction of the two ordinances.  In the letter dated 5 March 2001, the Authority had written to Mr Choy and pointed out that the Department has issued a Guide on Erection & Maintenance of Advertising Signs, and a copy was attached for his reference.  The author, a Senior Building Surveyor, had drawn Mr Choy’s attention to section 3 of the Guide, which was entitled “Advice From Buildings Department” :

“	3.1	Application of the Building Ordinance (Cap 123) and Public Health & Municipal Services Ordinance (Cap 132)
		3.1.1	A sign permanently attached, fixed, annexed or secured to a building normally falls within the definition of ‘building’ or ‘building works’ and is subject to the control of the Buildings Ordinance.
		3.1.2	A sign that is liable to cause danger to the structure of a building may be removed under section 26(4) of the Buildings Ordinance.  Any structure erected solely for the purpose of exhibiting advertisements and which is dangerous or is likely to become dangerous may be removed under section 105 of the Public Health and Municipal Services Ordinance.
	3.2	Appointment of Authorized Persons & Registered Contractors
		3.2.1	Approval and consent form the Building Authority should be obtained for the erection of any advertising sign which is within the definition of building or building works under the Buildings Ordinance.” (Emphasis added)

Conclusion

21. The above advice and explanation appear to be in line with the judicial interpretation of the situation.  Unfortunately the defendant had chosen to ignore them.

22. In the circumstances, having considered the learned magistrate’s reasoning and assessed the submissions by the respondent, I could find no basis to disturb the conviction.  I would therefore dismiss the appeal accordingly.