BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDING)

HCAL 8/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS
NO. 8 OF 2004

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J U D G M E N T

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Introduction

1.  This application for judicial review was commenced by the Building Authority (“BA”) on 19 January 2004.  It seeks to challenge the determination given by the Appeal Tribunal (Building) (“the Tribunal”) on 30 October 2003.  The interested party was the registered owner of a domestic unit on the top floor and roof top of a multi-storey building in Tai Po (“Siu”).  In brief, the Tribunal (by a majority) allowed Siu’s appeal against the order issued by BA to demolish the unauthorised building works erected on the roof top and to reinstate the affected part of the building to accord with the approved plans.

The Tribunal’s Determination

2.  The determination of the Tribunal has much to do with a letter dated 9 November 1981 from the District Office, Tai Po (“the amnesty letter”).  The more important parts read as follows:-

“	Information Circular
	Enforcement Action Against Illegal Roof-top/
	Podium/Court-yard Structures

I would like to inform you that in accordance with the existing policy on dealing with illegal roof-top or other unauthorized structures erected on multi-storey buildings in the New Territories any such structure erected after … 27th February, 1975 should be demolished.  This amnesty date was agreed between the Executive Council of the Heung Yee Kuk and the Secretary for the New Territories following a meeting on 27th February, 1975.  Immediately following the amnesty date, photographs were taken in respect of all illegal roof-top structures in Tai Po Market.  The District Office has since been taking enforcement action and a good number of illegal roof-top structures erected after the amnesty date of 27.2.75 have been demolished.

Further the problem of illegal roof-top/podium/court-yard structures has recently been discussed by the Tai Po District Board and the decision by the Board was that the District Office should instantly demolish all those illegal structures found under construction …

As some members of the public may still be unaware of the policy on illegal structures erected on multi-storey buildings, I should therefore be grateful if you would … explain the contents of this letter to the occupants of your building … ” (emphasis supplied).

The amnesty letter was addressed to all the chairmen of the mutual aid committees and owners incorporated in the Tai Po District.

3.  Several things flow from the amnesty letter:-

(a)	the District Office, Tai Po must have been the authority in the Tai Po District for taking enforcement action against illegal structures in Tai Po in the period around 1981;
(b)	although there was no clear and express statement to such effect, judging from the reference to a meeting for discussing illegal structures which was attended by the Secretary for the New Territories (“the Secy”), it is probable the various District Offices were the authority for taking such action in the New Territories around the said period;
(c)	the Government regarded the arrangement to amount to (at least) a policy of granting an amnesty to illegal structures erected before the said amnesty date;
(d)	because the amnesty letter was expressly addressed to all the chairmen of mutual aid committees or owners incorporated in Tai Po, it was clearly intended by the Government that the amnesty be made known to the residents there so as to ensure (among other things) the policy was clearly understood by them.

4.  According to the Tribunal’s determination, the underlying facts were apparently undisputed.  Siu and his wife purchased the subject property in 1965 or 1966.  The illegal structure (the interior of which was used as a sitting area, bedrooms, a kitchen and a toilet) was erected in 1967 (quite some time before the “amnesty date”).

5.  Further, in about 1976, the Secy was the land authority responsible for the land administration in the New Territories.  It was part of his responsibility to formulate the Government policy regarding illegal structure clearance work.  The Director of Public Works (“the Director”) was the land authority for the urban areas in Hong Kong, Kowloon and New Kowloon.   Staff working under the Director were often seconded to the District Offices to advise on and carry out enforcement work relating to illegal structures.  Neither the Building Department nor BA was in existence then.

6.  The Tribunal was constituted by 4 members (including its chairman).  What in essence divided the majority and the minority in its determination was the effect of the amnesty letter.  The majority considered that the word “amnesty” therein should be given the meaning that it had an irreversible effect.  In other words, once an “amnesty” has been given, those falling within its terms are “pardoned” unless material change of circumstances takes place.

7.  On the other hand, the minority held the view that to give such meaning to the word “amnesty” would result in an unacceptable fetter on BA’s discretionary powers conferred by the Buildings Ordinance (Cap. 123).  Reliance was placed upon the court of appeal’s decision in Ho King-kwan v. Attorney General [1986] HKLR 1148,1152A (a decision referred to by Building Authority):-

“I cannot, for my part, accept the submission that the applicant’s legitimate expectation was that no further enforcement action would ever be taken against him on the basis of fire-hazard so long as there was no change in the nature or disposition of the roof structure; an expectation which would imply an intolerable fetter on the Authority’s discharge of its statutory duties” (per Kempster JA; Cons VP and Yang JA (as he then was) agreeing).

8.  Several other matters were also dealt with in the Tribunal’s determination.  First, at one stage, BA’s witness suggested to the Tribunal Siu’s illegal structure might pose a fire hazard for the building because it was a single-staircase building.  Siu disagreed with that suggestion.  The majority’s determination records that, ultimately, BA’s witness accepted that it was quite possible to improve the fire escape route to meet the basic fire escape requirements.  The minority’s determination stated that BA’s witness admitted there was a great probability of the fire escape requirement being satisfied.

9.  Secondly, as regards the argument that the amnesty would “unlimitedly restrict” BA’s statutory discretionary power, the majority opined that the amnesty is only applicable to pre-1975 illegal structures (which are reducing in number over time with the demolition of the buildings on which they were erected).

10.  Thirdly, even for pre-1975 illegal structures, the majority said that BA should still be able to exercise its power conferred by s. 24B (priority demolition for imminent danger to life or property, serious detriment to amenities, public nuisance and so on) or s. 26 (order for demolition or remedy for dangerous buildings), Cap. 123.

11.  Fourthly, even the majority appears to accept that the policy laid down in the amnesty letter can be changed.  The Tribunal’s determination recorded that:-

“As soon as [BA] has successfully repealed the said ‘27.2.75 Amnesty’ … the majority of [the Tribunal] will be quite prepared to immediately revert the above decision to turn to the full support of [BA’s] full scale enforcement of his targeted … clearance Programme … ” (para. 5.2 thereof).

That there was no evidence before the Tribunal about a change of policy can be gathered from the following passage’s of its determination:-

“… evidence given by [BA’s witnesses] [was] … not … helpful as most of them .. had not even heard about [the amnesty letter] … ” (para. 3.2 thereof);

“… [BA] … had not made any investigatory consultation on the background & surrounding details of the “27.2.75 Amnesty Date Policy” … [No] such further information or evidence could be supplied … ” (para. 3.5 thereof);

“[one of the witnesses] only joined Tai Po District Office on 2 October 2002 and … was not aware of the existence of [the amnesty letter].  On being asked how he would handle a case like this should he discover similar [illegal structures] … he gave a somewhat ambiguous answer.  He said he might seek guidance from the headquarters of Land Department … [But] whatever Lands Department’s decision … he would refer the relevant complaints to [the Building Department]” (para. 5(4) thereof).

12.  The majority allowed Siu’s appeal but imposed a condition that the fire escape route at the roof-top level should immediately be reasonably improved to BA’s satisfaction.

13.  There are paragraphs in the Tribunal’s determination which apparently are related to the discussion about the meaning of the word “amnesty”.  In view of the grounds put forth in support of this application (see para. 17 to 18 below), those paragraphs are summarised below.

14.  The majority took the view that the amnesty was still valid after 1997 because of Article 8, Basic Law which preserves all the existing laws.  It remains in force unless there is new evidence of new offence, or it has been repealed by higher authority in future.  Because an amnesty could only have come from the highest authority, it should be inferred that the amnesty letter was consented to by the then Governor.  The pronouncement by the highest authority of an amnesty has the effect of enacted law; hence, the amnesty should have intrinsic legal power to over-ride any court verdict and/or any local statute.

15.  The majority also thought that an “amnesty” means a “pardon” and generally is “irreversible” although it was also said in the determination the Tribunal would be prepared to support the applicant’s full scale enforcement action as soon as Building Authority had repealed the amnesty: see para. 5.2, Tribunal’s determination and para. 11 above.

Grounds of this Application

16.  The grounds set out in the Form 86A (Notice of Application for Leave to Apply for Judicial Review) can be summarised as follows.

17.  The majority erred in law and/or has taken into account irrelevant matters:-

(a)	it erred in law in finding there is no provision in Cap. 123 which empowers BA to take action against illegal structures pardoned by the amnesty.  It is submitted a public authority (which BA is) cannot exercise a dispensing power by waiving compliance with the law;
(b)	it erred in law in finding that the amnesty is part of the existing law within the meaning of (and therefore preserved by) Article 8, Basic Law.  It is submitted by BA the amnesty was only a policy;
(c)	it erred in finding that the amnesty must have had the prior consent of the then Governor and should have “intrinsic legal power” to override any court verdicts and local ordinance.

18.  The majority failed to take into account relevant matters:-

(1)	the illegal structure was erected without BA’s approval and in contravention of s. 14(1), Cap. 123.  Because BA has no power under Cap. 123 to exempt it, the amnesty cannot have the legal effect of overriding Cap. 123;
(2)	BA acted on reasonable grounds at the time when the demolition and reinstatement order was issued on 9 August 2002, namely, the roof-top in question was covered by illegal structures (although some of them were later demolished (by the time of hearing before the Tribunal)).

19.  Form 86A also refers to a number of judicial decisions:-

(a)	Ho King-kwan v. Attorney General (above) (intolerable fetter on the discharge of statutory duties);
(b)	Birkdale District Electric Supply Co. Ltd. v. Southport Corporation [1926] AC 355, 364 (a public body entrusted with statutory powers and duties cannot divest itself of such powers or duties by contract or otherwise);
(c)	Western Fish Products v. Penwith DC [1981] 2 ALL ER 204 (estoppel cannot be raised to prevent the exercise of a statutory discretion or prevent the performance of a statutory duty);
(d)	Wong On v. Lam Shi Enterprises Ltd. (Government has no power to waive compliance with statutory requirements with which it is charged to enforce);
(e)	In re an Application by Ho King-kwan for Judicial Review [1986] HKLR 931, 934A-B (Building Authority has no power to promise or agree not to enforce Cap. 123 particularly where such regulations are designed for the protection of the public).

The Law on Substantive Legitimate Expectation

20.  Siu acts in person and so understandably he could not provide any assistance regarding the points of law raised in this application.  In accordance with convention, the Tribunal has not entered appearance in this application.

21.  By virtue of the emphasis placed upon the amnesty letter by Siu and the Tribunal, it is obvious that the doctrine of substantive legitimate expectation is of importance herein.  In fact, references to that doctrine can be found in some of the judicial decisions referred to in the Form 86A.

22.  For that reason, before embarking on a discussion of the merits of this application, it may be appropriate to briefly examine the recent development of that doctrine.

23.  The leading authority in Hong Kong is the Court of Final Appeal’s decision in Ng Siu Tung and Others v. Director of Immigration (2002) 5 HKCFAR 1.  For present purposes, the more important passages of Ng Siu Tung are:-

“91. The doctrine of substantive legitimate expectation … forms part of the administrative law of Hong Kong. As such, the doctrine is an important element in the exercise of the court's inherent supervisory jurisdiction to ensure, first, that statutory powers are exercised lawfully and are not abused and, secondly, that they are exercised so as to result in administrative fairness in relation to both procedural and substantive benefits …

92. The doctrine recognizes that, in the absence of any overriding reason of law or policy excluding its operation, situations may arise in which persons may have a legitimate expectation of a substantive outcome or benefit, in which event failing to honour the expectation may, in particular circumstances, result in such unfairness to individuals as to amount to an abuse of power justifying intervention by the court. Generally speaking, a legitimate expectation arises as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority. See, e.g. Attorney-General of Hong Kong v. Ng Yuen Shiu[1983] 2 AC 629 and R v. Secretary of State for the Home Department, Ex parte Ruddock & others[1987] 1 WLR 1482.

93. Central to an understanding of judicial review of decisions made within a statutory and constitutional framework where government policy is engaged is that the government or the relevant government agency must remain free to change its policy. (R v. Secretary of State for the Home Department, Ex parte Asif Mahmood Khan[1984] 1 WLR 1337 at 1347; Coughlan at 647). Likewise, its undertakings are open to modification or abandonment, subject to judicial review by the court (Coughlan at 647). But the adoption of a new policy does not relieve a decision-maker from his duty to take account of a legitimate expectation.

94. As the relevant principles of law applying to judicial review for substantive unfairness have been evolving in the course of the four very recent decisions, it is convenient to refer to Bibi because it contains a summary of the law as it has developed to this point and because the applicant’s argument is based upon the propositions which it states. First, the law requires that a legitimate expectation arising from a promise or representation, the expectation being that the promise or representation would be honoured, be properly taken into account in the decision-making process so long as to do so falls within the power, statutory or otherwise, of the decision-maker. We give emphasis to the qualification because its application in this case is of critical importance, as will appear later. If the expectation is not taken into account, the decision-maker abuses his power and acts unlawfully (Bibi, paras. 39 and 51).

95. Secondly, unless there are reasons recognised by law for not giving effect to legitimate expectations, then effect should be given to them. Where the conduct of the public official has given rise to a legitimate expectation, then fairness requires that, if effect is not given to the expectation, the decision-maker should express its reasons so that they may be tested by a court in the event that the decision is challenged (Bibi, para. 59).

96. Thirdly, even if the decision involves the making of a political choice by reference to policy considerations, the decision-maker must make the choice in the light of the legitimate expectation of the parties (Bibi, para. 64).

97. Fourthly, it follows that if the decision-maker does not comply with the third requirement just stated, the decision will be vitiated by reason of failure to take account of a relevant consideration. The failure to take account of the legitimate expectation constitutes an abuse of power. Once the court has established such an abuse, it may ask the decision-maker to exercise his discretion by taking the legitimate expectation into account (Bibi, para. 41).

98. We would add the qualification "usually" to the statement in the preceding paragraph of the fourth proposition. We do so because the jurisdiction to review an administrative decision for failure to take account of a relevant consideration will only be exercised when the decision is materially affected by that failure. (Lau Kong Yungat 331 C-D, applying R v. Hull University Visitor, Ex parte Page[1993] AC 682 at 702 B-C; Nguyen Tuan Cuong & others v. Director of Immigration & others[1997] 1 WLR 68 at 77B; R v. Cambridge District Health Authority, Ex parte B[1995] 1 WLR 898 at 907 B-C). It is only in an exceptional case that the court will be satisfied that the failure to take account of a relevant consideration has not affected the decision (Gransden & Co. Ltd. & another v. Secretary of State for the Environment & another(1987) 54 P & CR 86 at 94). But once the court is satisfied that the outcome would not have been different had the relevant consideration been taken into account, the decision will not be quashed. The Director of Immigration relies strongly on this proposition. Its application raises another important issue to which we shall return later.

... ” (emphasis supplied).

24.  The Court of Final Appeal in Ng Siu Tung also discussed the relationship between the doctrine and the need not to undermine the general constitutional and statutory scheme:-

“112. The Director of Immigration submits that Building Authoritys' expectation is not legitimate or that it cannot be substantively enforced because substantive enforcement would be contrary to law. The principle that the court will not give effect to a legitimate expectation where to do so would involve the decision-maker acting contrary to law is fundamental (Attorney-General of Hong Kong v. Ng Yuen Shiuat 638; Coughlan at 647, 651, 656; Begbie at 1125, 1132). Consistently with this principle, the decision-maker cannot give effect to an expectation by exercising his statutory discretion "in a way which undermines the statutory purpose" (Begbie, at 1132, per Sedley LJ).

…

117. Following the Interpretation [of the Basic Law by the NPCSC on 26 June 1999], on 16 July 1999, the Legislative Council passed a resolution under s.59A of the Immigration Ordinance to amend Schedule 1. The amendment repealed para. 2(c) and substituted the following:

"(c) A person of Chinese nationality born outside Hong Kong before or after the establishment of the Hong Kong Special Administrative Region to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b)."

The new paragraph contains the time of birth limitation that was contained in the invalidated paragraph. On the same day, the Director of Immigration gazetted a new notice under s. 2AB(2)(a) to replace the former notice. It is in terms similar to the former notice.

118. These changes, made in the light of the Interpretation, reinforced the certificate of entitlement provisions in the Ordinance. Under these provisions, the Director of Immigration is precluded from verifying Building Authoritys' entitlement to right of abode or treating them in the same way as the litigants in Ng Ka Ling and Chan Kam Nga were to be treated.

119. The Director of Immigration argues that the applicants cannot have a legitimate expectation to be treated in the same way as the litigants in those cases are to be treated because the Interpretation and the validation of the certificate of entitlement scheme date back respectively to 1 July and 10 July 1997. So, according to the Director of Immigration's argument, Building Authoritys' expectation does not conform to the law as it now stands or is contrary to that law. An alternative way of expressing what in essence is the same argument is that there cannot be a legitimate expectation that the law will not be changed. (see R v. Secretary of State for Social Security, Ex parte McEntire, Popplewell J, unreported, judgment delivered on 23 March 1992).

120. …

121. Before examining the law post-26 June 1999, it is necessary to identify with greater precision what the applicants’ expectation entails. As Lord Scarman asked significantly in Re Findlay [1985] 1 AC 318 at 338, "What was their legitimate expectation?" (emphasis in original).  The applicants claim, in accordance with the principles stated in the two decisions of this Court,

(1)	that they will not be required to have a one-way exit permit issued by the Mainland authorities before being able to establish a right of abode under art. 24(2)(3) of the Basic Law - Ng Ka Ling; and
(2)	that they will be regarded as qualifying under art. 24(2)(3) of the Basic Law even though at the time of their birth, neither parent had yet acquired permanent resident status in the HKSAR - Chan Kam Nga.

…

122. Once Building Authoritys' expectation is expressed in these terms, as indeed it must be, if it is to accord with the principles stated in the two decisions, it is apparent that the expectation does not conform to the law as it stands and has stood since the Interpretation. Effect cannot legally be given to the expectation in the terms in which it is expressed in the preceding paragraph.” (emphasis supplied).

The Court of Final Appeal then turned to discuss the discretionary powers of the Director of Immigration under the Immigration Ordinance (Cap. 177) which are not directly relevant to this application.

The Expectation of Siu

25.  Although Siu has not expressly relied on the doctrine of legitimate expectation, because of his reliance on the amnesty letter, the only reasonable conclusion is that in effect he seeks to do so.  Likewise, although the majority decision has not expressly referred to that doctrine, by virtue of the importance the majority placed on the amnesty letter, it can be inferred that the doctrine would have been material to their decision.

26.  Before discussing whether Siu’s expectation is legitimate, as indicated in Ng Siu Tung (at para. 121), it is necessary to identify precisely what his expectation entails.

27.  If Siu had contended that his expectation is that the amnesty is unqualified and irrevocable, then in the light of the provisions of Cap. 123, that expectation cannot be legitimate because it does not conform to the law or is contrary to the law.  But it appears Siu does not necessarily have to so contend.

28.  The purpose of Cap. 123 has been set out in its long title:-

“To provide for the planning, design and construction of buildings and associated works; to make provision for the rendering safe of dangerous buildings and land; and to make provision for matters connected therewith”.

29.  Further, building works in the New Territories are also governed by the Buildings Ordinance (Application to the New Territories) Ordinance (Cap. 121).  Ss. 4 and 5 thereof provide:-

“The Director may issue a certificate of exemption in respect of any building works in the New Territories” (emphasis supplied);

“Subject to the provisions of this Ordinance, the Director shall issue a certificate of exemption in respect of building works in the New Territories-

(a)   for a building to be built by any person and to be used for non-industrial purposes;

(b)   for a building to be built by a community organization for the use of the community;

(c)   for a building to be built on agricultural land and to be used solely for agricultural purposes;

(d)   for the replacement of a temporary structure in the New  Territories” (emphasis supplied).

30.  The combined effect of Cap. 123 and 121 is that BA is empowered to:-

(a)	regulate and control “the planning, design and construction of buildings and associated works” in the New Territories (Cap. 123 read together with s. 3, Cap. 121);
(b)	ensure that dangerous buildings and land there are rendered safe (Cap. 123);
(c)	generally or specially exempt building works there from some of the provisions (including ss. 14 and 21), Cap. 123 (ss. 4, 5 and 7, Cap. 121).

31.  Among the documents produced by BA during the Tribunal hearing are:-

(a)	a document headed “Enforcement Policy” issued in May 2002 (probably by the Buildings Department),
(b)	a document headed “Enforcement Policy against Unauthorised Building Works” apparently extracted from an internal working manual of the Buildings Department;
(c)	a document headed “Building Department Intensifies Enforcement Action” dated 30 April 2001 which (according to the document at sub-para. (a) above) was a press release probably also extracted from an internal working manual of the Buildings Department.

The document referred to in sub-para. (a) above contains a statement which is of importance to this application:-

“In exercising their discretionary power, officers should consider the merits of each individual case.  In case of doubt, they may seek endorsement at a higher level or refer the matter to the [applicant] for a decision” (emphasis supplied).

32.  In brief, the said documents state that a new enforcement policy was announced on 30 April 2001.  The new policy was formulated after consulting (among other parties) all 18 District Councils.  The main features of the new policy are:-

(1)	more “Blitz” operations would be carried out.  Also, a large number of illegal structures would be cleared in one operation;
(2)	greater fairness and transparency in the exercise of the enforcement power;
(3)	immediate (rather than prioritised) enforcement action will be taken against illegal structures which cause serious health hazard or environmental nuisance to the public.  This is wider than the former policy of limiting immediate enforcement action to illegal structures which cause obvious or imminent danger
(“the new enforcement policy”).

33.  The importance of Cap 121 to this application is this.  I note that the document referred to in para. 31(a) above considers there to be a discretionary power.  Nevertheless, for present purpose, I proceed on the assumption (but without necessarily making a definitive decision) that, in relation to the urban areas, s.24(1), Cap. 123 does impose a statutory duty on BA to take enforcement action against all illegal structures (that is, building works without having first obtained his written approval).  With regard to such works in the New Territories, however, Cap. 121 has conferred on BA a discretion to exempt those works from some of the provisions (including s. 14) of Cap. 123.

34.  Hence, Siu (or anyone in a similar position) can expect that:-

(a)	insofar as the amnesty was still in force as at the date of the issue of the removal order (9 August 2002) and the Tribunal hearing (30 May 2003), the officer(s) making the decision to issue the removal order should properly take into consideration the amnesty letter in the decision-making process (Ng Siu Tung, para. 94);
(b)	insofar as the amnesty was no longer in force because it has been replaced by the new enforcement policy, because the new enforcement policy requires the responsible officer to consider the merits of each individual case (see para. 31 above), it is still incumbent upon that officer to do so (including (arguably at least) taking into consideration the amnesty letter and the fact that the illegal structure was originally within its terms);
(c)	in any event, because the provisions of Cap. 121 (in particular, s.4) confer a discretionary power on the responsible officer, he should properly take into account (among other things) the amnesty letter when exercising that power.

Such an expectation is similar to that of the appellants in Ng Siu Tung (at para. 129 to 130 and 134 to 139) and is therefore not contrary to the law because it does not undermine the statutory purpose (namely, Cap. 123 when read together with Cap. 121).  As stated above, Cap. 121 has expressly empowered BA to exempt illegal structures in the New Territories.

35.  The Tribunal’s determination indicates that none of the matters set out in para. 34(a) to (c) above has been taken into account by the responsible officer(s): see para. 3.2, 3.5 and 5(4), Tribunal’s determination and para. 11 above.

Conclusion

36.  In view of the above matters, I find that the conclusion reached by the majority in the Tribunal’s determination to be correct.   This is because, as has been stated in Ng Siu Tung, a decision-maker who has not properly taken into account the legitimate expectation in his decision-making process “abuses his power and acts unlawfully”: para. 94 thereof.

37.  But the grounds of application in effect complains that there were procedural irregularities in the Tribunal’s determination in that there were errors of law on the face of the record: see para. 17 to 18 above.

38.  Having considered the decision in Leung Fuk Wah Oil v. Commissioner of Police [2002]3 HKLRD 653, this application should be refused irrespective of the validity of these complaints.

39.  The court of appeal said in Leung Fuk Wah Oil:-

“These two lines of views [one line emphasising the importance of procedural irregularities and the other emphasising substantial prejudice] were drawn together recently by Lord Steyn in Boddington v. British Transport Police[1999] 2 AC 143 at page 174 when he said :

“It is true that cases could occur where it might be right in regard to an established ground of judicial review to refuse a discretionary remedy and in that respect absence of prejudice may be a relevant factor .... But that is altogether different from saying that prejudice is an element that an applicant must prove to establish a ground of review. ”

Judicial review is a discretionary remedy. If the breach of the principle of fairness does not produce a substantial prejudice to Building Authority, the court is bound to take this into account in deciding whether relief should be given. This is consistent with the concept that the court should not substitute its own decision for that of the decision-maker” (para. 40);

“Having considered all the circumstances of this case, it is abundantly clear that the disclosure of the new documents to [the respondent] would not have made the slightest difference to his petition to the [applicant]. Despite the submission that new matters were raised in the undisclosed materials, many were not new matters. Also, he could either have made the representation in the petition or the matter is so apparent that no amount of arguments would have made a difference to the outcome of the appeal.

Judicial review being a discretionary remedy, if [the respondent] does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision. This is what happens here. As the judge was not invited to consider the question of discretion, we are entitled to exercise the discretion ourselves. The discretion should be exercised against the granting of any relief. The [applicant’s] appeal must be allowed” (para. 75 to 76).

40.  If the relief sought in this application was granted, and in view of para. 36 above, it would mean that the matter will be remitted back to the Tribunal for re-consideration.  But the Tribunal has already indicated that it is prepared to hear the parties again: see para. 5.2, Tribunal’s determination and para. 11 above.  Hence, the relief sought in this application is academic and unnecessary.

Costs Order Nisi

41.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be paid by BA to Siu to be taxed if not agreed.  The respondent has not attended court hearing nor has it asked for costs.  There will be no order as to costs between the applicant and the respondent.