DR LEUNG KAM CHUNG KENNETH v. MS CHEN HIU YIN

CACV 304/2023, [2024] HKCA 565

On Appeal From [2023] HKCFI 2359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 304 OF 2023

(ON APPEAL FROM HCAL NO 1220 OF 2023)

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BETWEEN

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an appeal by the Applicant, Dr Leung, against the decision of Coleman J dated 20 September 2023[1] refusing to grant him leave to apply for judicial review. The matter arose out of a complaint of alleged water seepage from the Applicant’s premises (“Premises”) situated at Rooms C & D, 1/F, Windsor Mansion, 17 Austin Avenue, Tsim Sha Tsui, Kowloon (“Building”).

Background

2.  On 10 January 2022, a complaint was received by the Food and Environmental Hygiene Department (“FEHD”) from a security guard of the management office at the Building concerning water seepage suspected to have originated from the Premises owned by the Applicant.

3.  Investigations were carried out by officers of FEHD between March and May 2022. Further investigation by officers of the Kowloon Regional Joint Office (“Joint Office”), set up jointly by the Buildings Department and FEHD, requiring entry into the Premises was considered necessary. On 5 May 2022, the Joint Office affixed a Notice of Intended Entry outside the Premises stating that they intended to enter the Premises on 11 May 2022. However, on 11 May 2022, the Premises were locked and entry could not be made. There followed correspondence between the Applicant and the FEHD, but there was no agreement reached for consensual entry into the Premises for investigation.

4.  On 13 July 2022, the Putative Respondent, Ms Chen Hiu Yin, as a Health Inspector of the FEHD, applied at Kwun Tong Magistracy for a warrant to effect entry into the Premises, pursuant to section 126 of the Public Health and Municipal Services Ordinance (Cap 132) (“PHMSO”). That section relevantly provides as follows:

“ 126. General powers of entry

(1) Subject to the provisions of this section, any public officer authorized in writing by a public officer (referred to in this section as the authorizing authority), shall, on producing, if so required, some duly authenticated document showing his authority, have a right to enter any premises, vehicle, vessel or aircraft at any time between the hours of 7 a.m. and 7 p.m., and, in the case of any workplace or any premises or vessel used for business purposes, at any time during which work or business is carried on—

……

(d) for the purpose of carrying out any tests the carrying out of which is authorized under the provisions of this Ordinance;

……

(2) If it is shown to the satisfaction of a magistrate on sworn information in writing—

(a) that admission to any premises or vessel has been refused or that refusal is apprehended, or that such premises are unoccupied or such vessel unattended, as the case may be, or that the occupier or attendant is temporarily absent, or that the case is one of urgency, or that an application for admission would defeat the object of the entry, or that it is reasonable for the purposes of this Ordinance in the circumstances of the case that entry be effected between the hours of 7 p.m. and 7 a.m.; and

(b) that there is reasonable ground for entry into the premises or vessel for any such purpose as aforesaid,

the magistrate may by warrant in the form of Form B prescribed in the Seventh Schedule authorize any public officer authorized in that behalf by the public officer for whose purposes such entry is necessary to effect entry, if need be by force:

Provided that such warrant shall not be issued unless the magistrate is satisfied either that notice of the intention to apply for a warrant has been given to the occupier of the premises or to the person in charge of the vessel, as the case may be, or that the premises are unoccupied or the vessel unattended, or that the occupier or attendant is temporarily absent, or that the case is one of urgency, or that the giving of such notice would defeat the object of the entry, or that it is reasonable for the purposes of this Ordinance in the circumstances of the case that entry be effected between the hours of 7 p.m. and 7 a.m.

……”

5.  The warrant was granted by a magistrate on the same date (“1^st Warrant”). Communications with the Applicant followed, but no consensual arrangement was reached for the execution of the 1^st Warrant. Eventually, on 16 September 2022, with the assistance of the police, the 1^st Warrant was executed via forcible entry.

6.  Tests and investigation were conducted at the Premises on 16 September 2022. On subsequent dates in October and November 2022, follow-up inspection and tests were conducted at the G/F Lobby. Among other things, fluorescent effect under UV light for colour dye used at ponding test on the floor slab of the shower area of a bathroom and spraying test at the enclosing walls of the shower area of a bathroom of the Premises on 16 September 2022 was subsequently detected at the affected area of the G/F Lobby ceiling on 11 October 2022. Investigation reports were duly issued based on which the Director of Food and Environmental Hygiene (“Director”) was satisfied there was water seepage from the Premises to the ceiling of the Lobby of the Building and that it amounted to nuisance. Therefore, the Director issued a “Nuisance Notice” dated 6 December 2022 to the Applicant, pursuant to section 127(1) of the PHMSO, requiring him within 28 days to abate the nuisance and do what is necessary for preventing the recurrence of the nuisance and for that purpose to repair satisfactorily the floor slab including the enclosing wall of the shower area of the bathroom at the Premises to prevent water seepage to the premises below at the G/F Lobby. Section 127(1) provides as follows:

“127. Provisions for securing abatement of nuisances which may be dealt with summarily

(1) The Authority, if satisfied of the existence of a nuisance to which this section applies, may cause a notice in the form of Form C specified in the Seventh Schedule (referred to in this section as a nuisance notice) to be served on the person by reason of whose act, default or sufferance the nuisance arose or continues … requiring him to abate the nuisance within the period specified in the notice, and to do such things as may be necessary for that purpose, and the notice may, if the Authority thinks fit, specify any works to be executed for the purpose aforesaid:

……

The Authority may also, by notice under the foregoing provisions of this subsection or by further notice, require the person on whom the notice is served to do what is necessary for preventing the recurrence of the nuisance to which the notice relates and, if the Authority thinks it desirable, specify any works to be executed for that purpose, and a notice containing such a requirement may, notwithstanding that the nuisance to which it relates may for the time being have been abated, be served if the Authority considers that the nuisance is likely to recur on the same premises or in the same vessel.”

7.  Subsequent inspection of the G/F Lobby by the Joint Office in May and June 2023 showed that the moisture content at the affected area was high which indicated that water seepage had persisted. The Joint Office considered that inspection and tests were required to ascertain whether any repair work had been conducted at the Premises in accordance with the Nuisance Notice. However, officers of the Joint Office were unable to gain entry to the Premises on three dates in May 2023, notwithstanding that a “Notice of Intended Entry” had been issued to the Applicant on 11 May 2023 and affixed outside the Premises the next day. A further “Notice of Intention to Apply for Warrant of Entry” was sent to the Applicant by registered post on 22 May 2023 (which was returned unclaimed) and also affixed outside the Premises on 23 May 2023, but no arrangements were made for entry to the Premises on a voluntary basis.

8.  The Joint Office considered that it was necessary to apply for another warrant for entry into the Premises and did so on 5 June 2023. The magistrate asked for detailed investigation records and documents to support the application, and subsequently also asked the Joint Office to address the issues raised by the Applicant in his letter of 26 May 2023 to the Registrar of the Kwun Tong Magistrates’ Court. On 6 July 2023, the Putative Respondent renewed the application at Kwun Tong Magistracy for a warrant in order to enter the Premises to conduct investigation and tests to check if repair works had been carried out and to re-examine the source of the water seepage. The information laid before the magistrate gave a detailed response to the points raised by the Applicant in the letter mentioned above. The warrant to effect entry into the Premises was granted by a magistrate on the same date (“2^nd Warrant”).

9.  On 19 July 2023, the Applicant filed a Form 86 to seek leave to apply for judicial review. The respondent to the intended judicial review was specified as Ms Chen Hiu Yin, the Putative Respondent. The decision in respect of which relief was sought was stated as “Warrant to Effect Entry into Premises issued on 6th of July 2023 by Magistrate Lau Suk Hang under the application by the Respondent, Information No. 5061, Writ No. 6802”. However, the magistrate was not included as an independent respondent. Apart from a certiorari to set aside the 2^nd Warrant, the Applicant sought an order to prevent the Putative Respondent from applying for a warrant for entry into the Premises without providing the complainant’s name and their written statement of complaint to the Applicant and without first organising a meeting between the complainant and the Applicant.

10.  Pursuant to the court’s directions, a 19-page Initial Response together with a bundle of 30 relevant documents were lodged with the court by Mr Alvin Hor, Government Counsel, on behalf of the Putative Respondent on 18 August 2023.

11.  Coleman J heard the application for leave to apply for judicial review on 18 September 2023, with submissions from the Applicant acting in person and from Mr Hor representing the Putative Respondent. On 20 September 2023, the judge handed down his judgment in writing, dismissing the application for leave and ordering the Applicant to pay the Putative Respondent’s costs (“Judgment”).

The judge’s Judgment

12.  The judge identified the decision the Applicant sought to impugn as the decision of the Putative Respondent in applying for the 2^nd Warrant (“Decision”),[2] and identified the Applicant’s grounds for judicial review as the following three grounds, with the first two being at the core of the Applicant’s concerns:[3]

“(1) The application for the 2^nd Warrant was unlawful because the Putative Respondent had failed to provide the name of the complainant and his or her written statement of complaint for perusal by the Magistrate and the Applicant.

(2) The application for the 2^nd Warrant was unlawful because the Putative Respondent had failed to organise a meeting between the complainant and the Applicant to resolve the alleged water seepage prior to making the application.

(3) The Magistrate’s decision in granting the 2^nd Warrant was wrong because she had failed to consider relevant factors and had considered irrelevant factors.”

13.  The judge further noted that bound up with those points were the Applicant’s complaints that the detail and proof of the alleged water seepage had never been provided to the Applicant, contrary to a duty to do so; that the Putative Respondent’s conclusion that there was a continued nuisance was erroneously made; and that the Putative Respondent had further acted aggressively and oppressively, abusing her power and misusing the law.[4]

14.  The judge held that the Decision was not amenable to judicial review, because it was simply a decision by the Putative Respondent to apply for a warrant, not a decision of a “decisive nature” with substantive consequence, citing, amongst others, the decision of this court in Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 at §§31 and 44.[5]

15.  In so far as there was any attack on the magistrate’s decision to grant the 2^nd Warrant, the judge said it was perfectly open to the magistrate to have been satisfied as to the three requisite matters: (1) admission to the Premises had been refused or refusal was apprehended; (2) there was reasonable ground for entry into the Premises for purposes referred to in section 126(1), which included amongst other things the purpose of carrying out tests; and (3) notice of the intention to apply for warrant had been given to the occupier of the Premises. There was no reasonably arguable public law grounds to interfere with the magistrate’s decision to issue the 2^nd Warrant.[6]

16.  Although the above conclusions were already fatal to the application, the judge went on to deal with the main complaints raised by the Applicant. As to the point that the identity of the complainant was not disclosed, the judge held that the complainant’s identity was irrelevant and its disclosure to the magistrate or to the Applicant unnecessary.[7] As to the point that the complainant had not made a complaint in writing, the judge held that it was also immaterial.[8] As regards the point that a meeting had not been organised, the judge held that there was no duty on the part of the Putative Respondent to do so, and that having regard to the tone and style of language adopted by the Applicant in his communication with the FEHD, it was “difficult to see how the Applicant would ever have engaged in appropriate and friendly or conciliatory discussion with anybody”.[9]

17.  The judge concluded that the Applicant had failed to identify any reasonably arguable ground for judicial review with any reasonable prospect of success. Accordingly, the application for leave was dismissed. The judge considered that a costs order against the Applicant was justified and gave directions for summary assessment.[10]

Grounds of appeal

18.  The Applicant’s notice of appeal runs to 32 pages. The gist of his grounds of appeal may be taken from 4 of those pages under the heading “SUMMARY”, which may be set out, in further summary, as follows:

(1) The judge erred by ignoring the leaking metal pipe, which affected the accuracy of the reading from the moisture content measurements and resulted in the wrong allegation that the source of leakage was the Premises above. This omission caused improper decision-making, including wrongful acceptance of the measurement results and unreasonable decision to enter the Premises.

(2) The judge failed to address the issue of the Putative Respondent’s failure to disclose the identity of the complainant to the Applicant in order to facilitate and expedite resolution of the seepage problem.

(3) The judge failed to address the issue of the Putative Respondent’s improper procedure of failing to obtain a written statement of complaint from the complainant.

(4) The judge failed to address the issue of the suspected forged document, namely the record of complaint, which lacked a document number. The lack of document number on official documents of the FEHD is abnormal, so that the document was probably faked.

(5) The judge failed to address the issue of the Putative Respondent’s failure to contact the complainant further to follow up on the development of the leakage. As there was only one oral conversation with the complainant, it implies that there was no more water seepage, which would be consistent with photographs taken by the applicant from June 2022 onwards.

(6) The Putative Respondent did not provide the Applicant with details of the alleged leakage. The judge erred by stating that it was the applicant’s responsibility to apply to the Joint Office for relevant information and evidence to support the alleged water leakage, instead of the Joint Office’s duty to provide the same to the applicant.

(7) The judge erred by stating that the Putative Respondent was not required by law to arrange meetings for the resolution of the alleged issue, contrary to the amicable spirit advocated in the pamphlet published by the Joint Office. It is part of the duties of the Putative Respondent to foster and nurture good public relations by endeavouring to organize meetings in order to assist the public to resolve their differences expeditiously.

(8) The judge failed to adequately address the lack of basis and reason to apply for a second warrant, when the Joint Office had done all the relevant necessary tests and investigations in the Premises on 16 September 2022.

(9) The judge failed to address the issue of the long lapse of time of 25 days for examination of the test results between 16 September 2022 and 11 October 2022, which would affect the accuracy of the test results.

(10) The Putative Respondent acted in a very aggressive and oppressive manner in handling this case by applying for warrants one after another and sending notices of intended entry without providing any information about the details, facts, proof and evidence of the alleged water seepage. The judge failed to address such conduct. Also, the judge misquoted and made false statements in the Judgment pertaining to the Applicant. The judge further failed to maintain his neutrality and impartiality.

19.  Before we deal with the above grounds to the extent necessary, having regard to the nature of some of the complaints made by the Applicant, it is necessary to emphasise that the courts are not tasked with supervising all aspects of administrative actions such as assessing the wisdom or desirability of executive decisions or policing the manners of government officials, their diligence or efficiency. In judicial review, the court’s function is to deal with breaches of public law, for which the focus is, broadly speaking, whether there is a substantive decision amenable to judicial review which is vitiated by an error of law, procedural unfairness or irrationality.

20.  The intended respondent to the judicial review is the Putative Respondent. The decision intended to be impugned is the Decision, i.e. the Putative Respondent’s decision to apply for the 2^nd Warrant. As such, the application for leave to apply for judicial review is misconceived and doomed to failure, because, as the judge held, the Decision is not amenable to judicial review. As stated by this court in Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise (cited above), “the decisions of [Customs and Exercise Department] to apply for warrants would not by themselves bring about substantive legal consequences, and as such they are not decisions amenable to challenge by way of judicial review” (§31), and “it is not appropriate to challenge by way of judicial review the decisions of the [Customs and Exercise Department] in making applications for warrants” (§44).

21.  The Applicant has raised no ground of appeal against this holding. Nor do we see any error in it. It follows that the Applicant’s appeal must be dismissed for this reason alone.

22.  In any event, we do not find any merit in the Applicant’s grounds of appeal.

23.  In relation to Ground 1, the existence of water droplets on the metal pipe under one of the ceiling areas affected by water seepage does not mean there was any public law wrong in the application for or the grant of the 2^nd Warrant. After all, fluorescence was detected in the G/F ceiling in October 2022 after a ponding test in the Premises on 16 September 2022, which was probative evidence that there was seepage of water from the Premises to the G/F ceiling. There is no basis for the Applicant to dispute the expertise of the investigators and allege, as he does in Ground 9, that there was too long a time gap between the ponding test in September 2022 and the detection of fluorescence in October 2022. Even if there was a possible second source of water leakage (i.e. the metal pipe photographed by the Applicant), it was open to the Joint Office to want to enter the Premises again to inspect and investigate, in order to find out whether repair works had been carried out as required by the Nuisance Notice and to re-examine the source of the water seepage. The Applicant’s allegation about the metal pipe as the alternative source of moisture was known to the Magistrate who granted the 2^nd Warrant, and who was informed by the Putative Respondent that the matter had been referred to the Water Supplies Department for investigation.

24.  As for Grounds 2 and 3, we agree with the judge that the fact that the identity of the complainant was not disclosed to the Applicant and no written statement was obtained from the complainant did not in any way vitiate the Putative Respondent’s decision to apply for, or the magistrate’s decision to grant, the 2^nd Warrant.

25.  Likewise, the allegation in Ground 5 that the Putative Respondent did not make further contact with the complainant cannot vitiate the Decision, as there was objective investigation being carried out by or on behalf of the Joint Office.

26.  In Ground 4, the Applicant made a grave allegation that the record of complaint is a forged document, on the flimsy basis that it did not bear a file number. The judge was in our view quite right to reject it as “utterly without basis”.[11]

27.  In Ground 6, the Applicant complained that the Putative Respondent did not provide him with details of the alleged leakage. As the judge pointed out, one of the Applicant’s letters was treated as an information request, and documents with information of the investigations were offered to him, but the Applicant chose not to pay HK$56 to obtain them.

28.  As to the allegation under Ground 7 that the Putative Respondent failed to arrange meetings for the resolution of the alleged seepage problem, we agree with the judge that it was not part of the legal duty of the Putative Respondent to do so. As a matter of good administration, it may be that the Joint Office will try to facilitate communication including meetings between relevant parties in appropriate cases. But given the history of communications with the Applicant in this case, the Putative Respondent cannot, in our view, be criticised for not arranging meetings between the Applicant and the complainant.

29.  As to Ground 8, the basis and reason to apply for a second warrant was set out in the information laid before the magistrate in July 2023. The fact that the Joint Office had done tests and investigations in the Premises on 16 September 2022 does not mean there was no need to enter the Premises a second time. The fact is that the tests and inspection done in September and October 2022 showed evidence that there was water seepage from the Premises to the G/F ceiling, and that the G/F ceiling was still affected by moisture and seepage in mid 2023. It was open to the Joint Offers to consider that further tests and investigation inside Premises were necessary.

30.  There is an associated point made by the Applicant that the Putative Respondent’s Initial Response submitted to the judge stated falsely that no reply was received from the Applicant to the Joint Office’s Notice of Intention to Apply for Warrant of Entry dated 22 May 2023. It might have been inaccurate to say there was no reply received, but, as the Applicant has pointed out, the same Initial Response also referred to his emails dated 25 and 29 May 2023 so there was no attempt to mislead. It was clarified at the hearing before the judge that the Putative Respondent was trying to emphasise that no alternative arrangements were made for entry into the Premises. The judge dealt with this in §33 of his Judgment, expressly rejecting the Applicant’s allegation of perjury. We do not see any error in his Lordship’s view of the matter.

31.  As to the Applicant’s allegation in Ground 10 that the Putative Respondent acted in a very aggressive and oppressive manner, the judge did not fail to deal with it. His Lordship said in §66 of his Judgment:

“ As to the Applicant’s suggestion that the Putative Respondent handled the water seepage issue in ‘a very high-handed and aggressive way’, that is more than a bit rich coming from him. Even in his last written submissions, the Applicant continued for example to describe the Putative Respondent as demonstrating her ‘very clearly the perverted aptitude and personality’. Just like the water seepage, the Applicant’s inappropriate approach has not abated. Whereas, in fact, the correspondence given to the Applicant from the Joint Office demonstrates patience and tolerance in the face of the Applicant’s offensiveness, obstruction and intransigence.”

32.  In Ground 10, the Applicant has made a serious accusation that the judge made a false statement in his Judgment. In §75, dealing with the question of costs, the judge said:

“ I also take into account the tone and language used by the Applicant throughout, including in his submissions and other written material made on this application. When, during the hearing, I suggested to the Applicant that his tone and language was inappropriate and indeed at times abusive, he seemed surprised and asked me where. When I read back to him some of the passages that I have also quoted above, his only response was to say that he is human and he lost his temper. I do not think that response is sufficient to explain away the wholly unnecessary rudeness and personal attacks which are evident in almost every communication from him.”

33.  The Applicant drew attention in particular to the words above saying that “his only response was to say that he is human and he lost his temper”. He referred us to the transcript which recorded the following exchange between him and the judge:

“ COURT :	But you haven’t – if I might say so doctor, your language in your correspondence is demonstrated far from any conciliatory or friendly approach. It’s been at times verging on abusive.
APPLICANT :	Which one, can you quote it?
COURT :	Yes, I can. The way in which you talk about the staff.
APPLICANT :	No, I haven’t.
COURT :	‘Lazy’, ‘Idiotic’: ‘Both of them are so lazy, they don’t bother to look at the floorplan to … (reads) appropriate revealing their extreme laziness. I feel sorry for your good self ...’ Writing to the director: ‘… that you have such inferior and pathetic junior staff working for you.’
APPLICANT :	Do you think they deserve this kind of comment because …
COURT :	I don’t think that language is helpful …
APPLICANT :	… why they want to enter into …
COURT :	Doctor, listen to me. I do not think that it is easy for you to stand here and talk about friendly, cooperative attitudes when you seem to have demonstrated quite the opposite.
APPLICANT :	That was because I was very upset after so long that I’ve been begging them to communicate with me. And then they want to go in to two units, that is not – not one. They should shortlist it, they should specify which unit. And this is laziness. I did not write this letter at the very beginning because I get put off. I’m a human, I have temper.”

34.  The Applicant submits that the judge omitted to say that the Applicant had said that he was upset as he had been begging the Joint Office to communicate with him, and falsely stated that the Applicant’s only response was to say that he is human and he lost his temper. We do not accept this criticism of the Judgment at all. The judge obviously and quite properly proceeded on the basis that being upset did not entitle the Applicant to use offensive language, and accurately quoted the justification for his tone and language put forward by the Applicant. The Applicant’s accusation against the judge is wholly misconceived and baseless.

Disposition and Costs

35.  For the above reasons, there is no reasonably arguable ground for judicial review. There is nothing wrong in the judge’s decision to refuse leave to apply for judicial review. The appeal is accordingly dismissed with costs. The Putative Respondent’s costs are summarily assessed in the sum of HK$66,260, reduced from the sum claimed of $69,494 as the hearing did not take the full estimated 1 hour.