HKSAR v. POON LOK TO OTTO

TMS15101/2018

[2019] HKMagC 3

IN THE TUEN MUN MAGISTRATES’ COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

SUMMONS CASE NO. 15101 OF 2018

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STATEMENT OF FINDINGS

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Overview

1.  The defendant was convicted after trial for a summons alleging that he, being the owner of House 3 of Villa De Mer, No. 5 Lok Chui Street, Tai Lam, Tuen Mun, New Territories (“House 3”), knowingly constructed a pool structure (“the Pool Structure”) therein without first obtained from the Building Authority his approval in writing and his consent in writing for the commencement of the said building works[1], and he was sentenced to a fine of HK$20,000.

2.  He now appeals against both conviction and sentence.

Conviction

3.  By this summons, it is incumbent upon the prosecution to prove:

(a)  that the construction or erection of the Pool Structure falls within the meaning of “building works” under the Building Ordinance, Cap.123 (“the Ordinance”);

(b)that such works were commenced and carried out without the prior approval and consent from the Building Authority; and

(c)  that the defendant knew that such works were commenced and carried out before approval and consent form the Building Authority were obtained (“mens rea”).

4.  At trial, it is common ground that the only issue falls to be determined is (a), ie whether the Pool Structure constituted “building works” under the Ordinance, whilst (b)[2] and (c)[3] are not in dispute.

The prosecution case

5.  The prosecution called two factual witnesses, namely PW1 and PW2, and an expert Mr. Pang[4] to testify.

6.  In this case, the basic facts, which are undisputed, come from two sets of the Admitted Facts[5], the unchallenged live evidence of PW1 and PW2, approved building plans[6] and photographs[7].

7.  The defendant and his daughter became co-owners of House 3 on 15 November 2012.[8] At all material times he resided at House 3.[9]

8.  On 9 January 2018, PW1, a Building Surveyor of the Buildings Department, visited House 3 for an on-site inspection during which the Pool Structure was found erected in the exterior garden area.

9.  As shown in photographs[10] taken during the said inspection, the Pool Structure was situated adjacent to House 3 in the garden area; its sides were covered by timber-like boards which look closely resemble the materials of the floor finishes[11]; it was filled with water with a blue-coloured plastic cover on top[12].  By visual inspection, PW1 found a plastic pipe and metal box attached to the Pool Structure but there was no drainage system connected.[13]

10.  The dimensions of the Pool Structure were: 2.5m (W) x 4.65m (L) x 1.24m (H).  The total maximum volume was approximately 14.4m³.[14]

11.  The aerial photographs of the garden of House 3 taken on 2 April 2017 confirmed that the Pool Structure did not exist prior to that date.[15] Thus, the Pool Structure was erected between 2 April 2017 and 9 January 2018.

12.  On 19 January 2018, a minor works submission was made to the Building Authority for the removal of the Pool Structure and the same was eventually dismantled and removed. [16]

Mr. Pang’s opinion[17]

13.  Mr. Pang is a Registered Architect of the Architects

Registration Board and an Authorized Person (Architect) under the Buildings Ordinance, Cap. 123.  He joined the Buildings Department as a building surveyor in 1996 and was appointed as the Chief Building Surveyor of Fire Safety Section in 2015.  He is now the Chief Building Surveyor of Minor Works and Signboard Control Section.[18]

14.  At the time of writing of the reports, the Pool Structure had been removed.  He therefore relied entirely on the documentary records that made available to him.[19] His opinion is mainly on whether the Pool Structure falls within the meaning of a “building” or “building works” under the Ordinance.

15.  In summary, he, having referred to the information relating to the Pool Structure, relevant provisions including the definitions of “building” and “building works” under section 2 of the Ordinance and the decision of the Appeal Tribunal (Buildings) in Leung Lai So v The Building Authority, Case No.44 of 2005, opined that the Pool Structure constituted a “building” and “building works” under the Ordinance.

16.  In his analysis, Mr. Pang individually considered each of the following factors [20]:

(1)nature and intended use;

(2)degree of fixation;

(3)degree of permanence;

(4)size;

(5)presence of associated facilities;

(6)ease of assembling; and

(7)ease of removal.

17.  Amongst the above seven factors, he is of the view that nature and intended use, degree of permanence and size are three relevant variables of which he rated as “fairly” or “very” high relevance in arriving at his conclusion.  He however disregarded the remaining four factors as either irrelevant or “rather small” in terms of relevance.

The defence case

18.  The defendant did not avail himself of his right to testify but called Dr. Lau, a structural and geotechnical engineer who has over 45 years of experience in construction, design, and research in the field of civil, geotechnical and structural engineering[21], to give expert evidence on his behalf.  Dr. Lau’s opinion concentrates on the impact of the erection of the Pool Structure over the structural integrity of the garden of House 3. [22]

19.  At the outset, Dr. Lau pointed out that the Pool Structure was in fact a proprietary product available in the market called the “Endless Pool”[23]. Such pool, according to his observation, “was built from light weight steel panels in the form of prefabricated modules” with a plastic lining placing “in between the panels of the modules to form the pool”.[24]  When the pool was manually filled with water, a small pump would create circulation of water which enables one person to carry out aquatic exercise inside the pool.[25]   It was in effect a “treadmill in the water” which rested freely on bare ground without fixation.[26]

20.  In gist, having examined the approved building plans of House 3, he stated that the Pool Structure was located in the “Deep Soil Planting Area” (“DSPA”) of the garden.  According to the structural and layout plans, DSPA was designed for planting large trees on deep soil.  The total area of DSPA was 15.52m² while the total area of the garden was 79.27m².  Having checked with the structural plans and design calculations for DSPA, he confirmed that the loads or imposed loads of DSPA was designed to be 14 kPa and the same applied to the garden area.[27] He also stressed that 14kPa is a very high value which is usually used for heavy plant rooms under the Code of Practice for Dead and Imposed Loads 2011.[28]  By calculation, DSPA could take a total load of 217.28kN while the Pool Structure, if fully filled with water, would exert 132.8kN in terms of pressure on the garden structure.  By analogy, DSPA is capable of accommodating 247 persons weighing 200 ib. each without overstressing the garden structure.[29]

21.  In cross-examination, he admitted that when preparing the 1^st Report, he was mistaken as to the actual slab of the garden area in that it should be slab CGS3.[30] He however stressed that the mistake would have no impact on his conclusion as the total load of slab CGS3 is 22.5 kN/m².

22.  In a nutshell, he concluded that the Pool Structure did not overstress or overload the structure of House 3 and pose no structure implication at all.

Directions

23.  I bore in mind that the burden of proof rests squarely on the prosecution and the standard is beyond reasonable doubt, whilst the defendant has no burden to prove anything.  Given the fact that the defendant has a clear record, I reminded myself that his propensity of committing an offence is low. [31]

Assessment of evidence

24.  In reaching my verdict, I had carefully considered all the evidence and submissions.

25.  First of all, I have no difficulty in finding both PW1 and PW2 are honest and reliable witnesses as their evidence is unchallenged.

26.  Insofar as Mr. Pang’s opinion is concerned, he, in his 1^st Report, cited the Practice Note for Authorized Persons, Registered Structural Engineers and Registered Geotechnical Engineers- APP 100 (“PNAP- APP 100”) to illustrate the Buildings Department’s “concern on the structural implication” of water tanks.[32] Nevertheless, PNAP- APP 100 is a practice note on the guidelines regarding the structure plans of “Glass Reinforced Polyester Water Tanks” (“GRP water tanks”).  He stated that “[A]lthough not explicitly stated, the subject of the PNAP APP- 100 is a water tank serving a building (eg water tank forming part of the fresh water supply system)”[33].  Paragraph 2 of PNAP- APP 100 also provides that “[C]ompared with a traditional structural material such as mild steel, the high strength and low stiffness of GRP laminates means that structural design will be influenced more strongly by stiffness than strength.  Furthermore, in service conditions, the long-term performance of a load-bearing GRP component can be adversely affected by several factors including the creep properties and the environment.  Appropriate allowance for these factors should therefore be made in design to avoid premature failure.”  Thus, the objective of PNAP-APP 100 is clear and specific.

27.  In paragraph 7.5 of his 1^st Report, he carried on to state that “one cannot jump to the conclusion that all water tanks are under the control of the BO”.

28.  In paragraph 8.8(a) of his 1^st Report, Mr. Pang nevertheless concluded that “[T]he water pool (the Pool Structure) is a water tank per se.  Given its size, in theory, it comes under the purview of PNAP APP- 100”.  According to him, the “size” of the Pool Structure is a determinant in that PNAP APP- 100 is invoked.  In arriving at the above conclusion, he apparently lost sight of the objective of the practice note.  After all, the Pool Structure was neither made of GRP nor there is any evidence to suggest that its function was to serve House 3 as fresh water supply system.  The reasoning of his analysis is plainly unconvincing.

29.  In his closing speech, Mr. Choy SC for the prosecution properly and fairly conceded that it is not his stance that PNAP APP- 100 is applicable in this case but it is nothing more than relevant materials to be considered.

30.  Also, it is worthy to note that in paragraph 7.6, Mr. Pang referred to a sample approved plan[34] in attempt to demonstrate that it has been an accepted practice of the building industry that prefabricated swimming pools, spa pools and Jacuzzi are subject to the control of the Ordinance.  Except an approved plan, he gave no details as to its design, specifications, structural features, etc..  In the absence of those information, the sample approved plan renders no assistance and adds nothing to his analysis at all.

31.  In his assessment of the seven factors, Mr. Pang stated that two factors namely, the degree of fixation and presence of associated facilities, “cannot be considered” owing to the absence of evidence.  Moreover, in cross-examination, when it was suggested to him that the absence of one variable would weaken the prospect of a conclusion that the Pool Structure was a structure, he disagreed.  In my view, the absence of one variable must be a pointer supporting the assertion that the Pool Structure was not a structure.  Hence a proper evaluation must involve an exercise of weighting all factors before coming to a conclusion.  By simply ignoring factors which are in favour of the defence, his approach is clearly flawed.

32.  Mr. Pang rated the two factors, namely ease of assembling and ease of removal, as “rather small” in terms of relevance.  Without a doubt, the ease of assembling and removal must have bearing on the movability of the Pool Structure which might have impact on the consideration of the degree of permanence.  In his assessment, he failed to spell out the interaction between various factors except his arbitrary ratings. 

33.  As to the size factor, he stated that “the pool thus poses significant structural implication to any slab it rests on”[35] and concluded that    “[T]he pool was large and would pose significant structural implication to whatever structure of a building it might rest on.  It would also affect the drainage system of its parent building (in this case the garden).”[36]  Firstly any assessment on structural implication is beyond his expertise.  Secondly those conclusions are in effect over-generalized statements in that he failed to explain how “significant” the implication would be; why “any slab” would be “significantly stressed”; how the drainage system would be “affected”.  The analysis is not the result of any examination or inspection of the slab or drainage system concerned.  These over-generalized statements are not based on any sound basis which are far from helpful.

34.  In assessing the nature and intended use factor, Mr. Pang stated “[H]aving considered the circumstantial facts, the water pool was most likely a swimming pool equipped with certain water circulation system.  However, this cannot be proved beyond doubt. Nevertheless, given its construction and that it was fully filled with water at the time of inspection, one can say beyond doubt it was a water tank.”[37] Seemingly, he was referring to the use in accordance with the reported observation at the time of inspection when he said he was certain that it was a “water tank.  He then carried on to conclude in the next sentence that “[H]aving considered the various facts on the nature and intended use of the water pool, the implication of this relevant factor in rendering the pool to constitute a “building” or “building works” is considered to fairly high.”  Plainly, his finding is that the Pool Structure was intended to be used as a water tank by the owner.

35.  In cross-examination, when he was questioned: “a structure was used for one purpose but the same was used for another purpose, this can lead to another result?”, he replied that “he will consider the intended use, not the actual use” and “by intended use, he means the specific purpose in the minds of the designer and manufacturer”.  Later, he further averred that “actual use by the owner is another matter” when he was referred to the goldfish analogy by the defence.  His answers do not sit well with his finding that the Pool Structure was a “water tank per se” and his reasoning is rather confusing.  In his testimony, he demonstrated his preparedness to defend and justify his conclusion, albeit there were “circumstantial facts” suggested otherwise.

36.  Time and gain, the court has repeatedly articulated the duties and responsibilities of expert witness.  At this juncture, it is pertinent to encapsulate the principles set out in National Justice Compania Naviera SA v Prudential Assurance Company Ltd (Ikarian Reefer) as cited in UBC (Construction) Ltd. v Sung Foo Kee Ltd. [1993] 2 HKLR 207:

“1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation: see Whitehouse v Jordan ([1981] 1 WLR 246, 256) per Lord Wilberforce.

2. Independence assistance should be provided to the court by way of objective unbiased opinion regarding matters within the expertise of the expert witness; see Polivitte Ltd v Commercial Union Assurance Co plc ([1987] 1 Lloyd’s Rep 379, 386) per Mr. Justice Garland, and Re J ([1990] FCR 193) per Mr. Justice Cazalet. An expert witness in the High Court should never assume the role of advocate.

3. Facts or assumptions upon which the opinion was based should be stated together with materials facts which could detract from the concluded opinion.

4. An expert witness should make it clear when a question or issue fell outside his expertise.

5. If the opinion was not properly researched because it was considered that insufficient data was available then that had to be stated with an indication that the opinion was provisional (see Re J). If the witness could not assert that the report contained the truth, the whole truth and nothing but the truth then that qualification should be stated on the report see Derby & Co Ltd and Others v Weldon and Others (No.9) (The Times, November 9, 1990) per Lord Justice Staughton.

6. If, after exchange of reports, an expert witness changed his mind on a material matter then the change of view should be communicated to the other side through legal representatives without delay and, when appropriate, to the court.”

37.  Under a close scrutiny, Mr. Pang’s opinion gives rise to an impression that he has assumed the role of advocate for the prosecution case in which he appears to have failed to detach himself sufficiently to these proceedings.  I therefore rejected his opinion to which I attached no weight.

38.  As to Dr. Lau’s opinion, his observation of the Pool Structure was based on his site inspection before and after it was dismantled.  He also visited warehouse in Shatin where the alleged components were stored.

39.  The prosecution however took issue of his observation in that, as it was submitted, “there is no evidence before the Court to support the suggestion that the Pool Structure comprised only the steel panels and the plastic lining”[38], “this is entirely based on the unproven assumption that what he saw in the Shatin warehouse”[39] and “there is a vacuum of evidence connecting what he saw in Shatin with the Pool Structure.  It is clear from the cross-examination that Dr. Lau could not identify those components with what he saw in the garden.”[40]  In this regard, Mr. Choy SC prayed in aid of the decision in Regina v Turner [1975] 1 QB 834 in which the English Court of Appeal held that “those who call psychiatrists as witnesses should remember that the facts upon which they base their opinions must be proved by admissible evidence.  This elementary principle is frequently overlooked”[41].

40.  In the present case, Dr. Lau’s opinion is based upon his observation during the visit inspection and the study of the catalogue of the “Endless Pool”.  By looking at the photographs, the Pool Structure was a “swimming pool like” structure which did not suggest sophisticated design and specifications by its outlook. The issue turns on the reliability of his opinion.  In my view, the question of admissibility simply does not arise.  Indeed, his opinion is consistent with the findings from his site inspection and the documentary evidence such as photographs and catalogue.  Accordingly, I accepted his opinion in this regard.

41.  Dr. Lau’s opinion on the possible structural implication was based on a careful study of the approved building plans and the verification of the calculations carried out by the then Authorized Person of House 3.  House 3 was built over a slope while the garden was above a suspended slab CGS3 which has a total load of 22.5kN/m².  When the Pool Structure was filled with water up to 1.143m, the total volume of water was 13.28m³ representing a weight of water of 132.8kN which is equivalent to water pressure of 11.43kN/m³[42] while the total load of DSPA was 217.28kN[43].  In his Supplemental Report, he also explained that it is “the tensions in the material of the plastic liner” that resists the water pressure, not the container.[44]

42.  He also found out that the registered structural engineer overestimated the self-weight of the structural element in which the actual design imposed loads varied from 14.1kN/m² to 23.3kN/m², an extremely high value giving more reinforcement.[45] As a result, the Pool Structure posed no structural implication of the garden at House 3.  Despite the mistake as to the relevant slab CSG1 in his initial opinion of which he has clarified in his evidence, I found his opinion is the result of precise and accurate calculation giving a valid and convincing basis for his analysis.

43.  After the commencement of the trial, a document entitled “Structural Assessment on the Pool Structure at DSPA adjacent to House 3”[46] was disclosed to the defence by way of discovery.  In this document, the author Mr. Thomas Poon, Senior Structural Engineer of the Buildings Department, carried out calculation in respect of the possible structural implication caused by the Pool Structure on House 3 and concluded that the Pool Structure if filled with 1m of water would not overstress slab CSG 3 on which House 3 was located.

44.  Dr. Lau further explained that the author had used Y12 (12mm diameter thick high tensile steel) as the variable in his calculation, but, according to the approved structural plan of House 3, the bottom value is indeed Y20, which is 20mm diameter thick high tensile steel. Dr. Lau opined that Y20 represents three times more in strength than Y12; in other words, if the imposed load at Y12 was 22.55kPa, the imposed load at Y20 would be 67.5kPa.  Therefore, the calculation carried out by the Buildings Department is in effect wholly consistent with his conclusion.

45.  By reasons of the aforesaid, I accepted Dr. Lau’s opinion in that I found that the Pool Structure posed no structural implication of the garden at House 3.

Whether the Pool Structure constituted “building works”

46.  Section 2 of the Ordinance provides that “building works” “includes any kind of building construction, site formation works, ground works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation, and includes drainage works.”

47.  It is common ground that the above definition is non-exhaustive.  I am also mindful of the legislative aim of the Ordinance which is centered at the safety of buildings.

48.  In Leung Lai So, the Buildings Authority Appeals Tribunal set out the relevant factors to be considered in determining the question.  Leung Lai So was considered and approved by the Court of Appeal in Profit Success Development Limited, CACV87/ 2014 in which the Full Court, when dismissing the appeal, upheld the approach of the Tribunal in that case.

49.  The defence however drew my attention to the comments made by Au J in the first application for leave for judicial review application of Profit Success in which the Tribunal was criticized for failing to explain how each relevant factor was weighed and prioritized.[47]

50.  In my deliberation, I had considered all the undisputed and established facts, Dr. Lau’s opinion and all the circumstances.  In the first place, the Pool Structure was a pool installed with a counter-current system powered by a small electrical pump of the electrical requirement of 240v/60amp, supplied by an electrical socket located near the pool.[48] According to Dr. Lau, as I accept, the Pool Structure was built from 4 light weight steel panels screwed together forming a container with a plastic lining placing in between to form the pool.  It is evident from the bare ground image that it was placed freely on the ground without fixation.  It was not attached to an external water supply system nor a drainage system.  Water had to be filled manually.

51.  On fact of it, the above factors, namely lack of fixation, ease of assembling and dismantling and lack of associated facilities, appears to suggest high degree of movability.  That said, movability is not the sole factor in determining whether an object is a structure.

52.  In Cardiff Rating Authority and Cardiff Assessment Committee v Guest Keen Baldwin’s Iron and Steel Company Ltd [1949] 1 KB 285, Denning L.J. in overturning the learned recorder’s decision held:

“In this case the learned recorder seems to have thought that these were not structures or in the nature of structures because they were movable.  In my opinion, that was a misdirection.  A structure is something which is constructed, but not everything which is constructed is a structure.  A ship, for instance, is constructed, but it is not a structure.  A structure is something of substantial size which is built up from component parts and intended to remain permanently on a permanent foundation; but it is still a structure even though some of its parts may be movable, as, for instance, about a pivot.  Thus, a windmill or a turntable is a structure.  A thing which is not permanently in one place is not a structure, save that it is on occasion moved on or from its site.  Thus, a floating pontoon, which is permanently in position as a landing on piles.  So, also, a transporter gantry is “in the nature of a structure”, even though it is moved along its site.  It has the same qualities as a fixed gantry, save that it moves on its site.”

53.  In the present case, we cannot lose sight of the fact that the sides of the Pool Structure were covered with timber-like boards which were similar to that of the floor finishes.  Even though the dismantling of the weight steel side panels did not require sophisticated tools, substantial time and manpower, one must however have to remove the timber-like side boards at the outset.  Moreover, we can clearly see the bare ground after removal of the Pool Structure.  If the Pool Structure had to be moved to the other part of the garden, resurfacing work of DSPA would be inevitable.  It would then give rise to substantial cost and time implication. Given the fact that the Pool Structure was used or intended use for aquatic exercise, it is hardly likely that it would be moved occasionally or casually in light of the resurfacing work to be involved.

54.  On the other hand, the matching of the timber-like side boards of the Pool Structure with the floor finishes must be an attempt to achieve outward appearance consistency of House 3.  I agreed with Mr. Choy SC’s submission that the Pool Structure became an integral part of the garden landscape of House 3.  Therefore, in my view, the Pool Structure had a degree of permanence which was not a temporary or portable structure.

55.  The Pool Structure, with the dimensions of 2.5m (W) x 4.65m (L) x 1.24m (H), could hold a total volume of 13.28m³ with a total weight of 132.8kN creating water pressure of 11.43kN/m². According to Dr. Lau, as I accept, given its high value of imposed load in its design, the structural integrity of the garden of House 3 would not be compromised by the Pool Structure.  Nevertheless, water weight of 14,000kg as agreed by Dr. Lau in cross-examination, is in fact a substantial amount.  The DSPA where the Pool Structure located took up about 18% of the total area of the garden, ie 15.52m² against 79.27m², whereas the Pool Structure itself of 11.626m² representing about 15% of the total garden area.  Thus, the Pool Structure was of substantial size which carried substantial weight when filled with water.

56.  I should stress that under the present regime, it is the duty of the owner to seek approval and consent from the Buildings Department prior to the commencement of any “building works”. The question as to whether or not a structure poses any structural implication on the building where it locates is one of the various factors for the Buildings Department to consider in determining if approval and consent should be granted to the owner of the building.  In Chung Chun Fei v Commissioner of the Building Authority (transliteration) HCAL84/ 2015[49], Fung J in refusing leave for judicial review commented that a structure which does not affect the safety of the building does not necessarily mean that it is not an unauthorized structure.[50]

57.  Having considered all the circumstances and weighed all the relevant factors, I was satisfied beyond reasonable doubt that the Pool Structure was a structure which constitutes “building works” under the Ordinance.  Having so found, I was satisfied that all the ingredients of the summons are proved beyond reasonable doubt.  In the result, the defendant was convicted as summoned.

Sentence

58.  The defendant was convicted after trial for knowingly, without the approval and consent form the Building Authority, constructing the Pool Structure in the exterior garden area of House 3.  The Pool Structure, with the dimensions of 2.5m (W) x 4.65m (L) x 1.24m (H), could hold a total volume of 13.28m³ with a total weight of 132.8kN creating water pressure of 11.43kN/m².  The Pool Structure was erected between 2 April 2017 and 9 January 2018 before it was dismantled on or about 19 January 2018.  As found by me, it posed no structural implication on the garden area of House 3.

Plea on mitigation

59.  It was urged upon me that the defendant, now aged 78, is a “leader and pioneer in the engineering industry both locally and internationally”.  He was the president of the Hong Kong Institution of Engineers and is currently a council member in “other engineering-related disciplines”.  As a distinguished engineer, he received high honours and awards from the British Government, Hong Kong Special Administrative Region government and various universities.  Moreover, he has made profound contribution to the engineering industry, public sector, territory education and charitable works in Hong Kong.  I have indeed no hesitation to accept that he is a man of hitherto impeccable character.

60.  It was also stressed that the present contravention was not deliberate but “at most a mistake.”  Having considered the nature and facts found by the court, as it was submitted, a financial penalty is an appropriate disposal.

Sentencing

61.  There is no tariff nor sentencing guidelines laid down by the upper courts in respect of this offence.  Each case has its own facts.

62.  Under the offence-creating provision in section 40(1AA) of the Ordinance, the maximum penalty is a fine of HK$400,00 and an imprisonment of 2 years.

63.  Apart from furnishing the sentencing summary, prepared by the Building Departments, showing the range of fine varies from HK$1,000 to HK$50,000, the prosecution fairly conceded that a daily fine is not applicable in the present case.

64.  In sentencing, on one hand, I had carefully considered the nature and intended use of the Pool Structure, namely an Endless Pool or “treadmill in the water” without fixation, the fact that it did not jeopardize the structure integrity of House 3 and the existence of the unauthorized structure was likely to be brief in time, ie between 2 April 2017 and 9 January 2018; however, one the other hand, I could not lose sight of the fact that the Pool Structure, when fully filled with water, was of significant volume creating a substantial water pressure.

65.  In my view, the cost of the Pool Structure itself and the costs incurred in its construction should be one of the facts I am entitled to take into account.  The reason being that if the penalty is insignificant to the costs of an authorized structure, it would carry no deterrent effect and send a wrong message to the like-minded offenders. However, I received no assistance in this regard and was unable to take this into account.

66.  Having considered all relevant factors and all the circumstances, in my judgment, a fine of HK$20,000 will meet the justice of the case.  The defendant was accordingly fined HK$20,000.

[1] Contrary to ss 14(1) and 40(1AA) of Building Ordinance, Cap.123.

[2] Exhibit P1: paragraph 8 of the 1^st Admitted Facts

[3] Exhibit P14: paragraph 3 of the 2^nd Admitted Facts

[4] PW3

[5] Exhibits P1 & P14

[6] Exhibits P2, P4-P9 & P11

[7] Exhibits P3 & P10

[8] Exhibit P1: paragraphs 1-2 of the 1^st Admitted Facts

[9] Exhibit P1: paragraph 3 of the 1^st Admitted Facts

[10] Exhibit P3

[11] Exhibit P3(9)-(11)

[12] Exhibit P3(12)

[13] Exhibit P3(14)

[14] Exhibit P1: paragraph 7 of the 1^st Admitted Facts

[15] Exhibit P1: paragraph 6 of the 1^st Admitted Facts, Exhibit P14: paragraph 2 of the 2^nd Admitted Facts

[16] Exhibit P1: paragraph 6 of the 1^st Admitted Facts

[17] Exhibit P12: Expert Report dated 28 November 2018; Exhibit 13: Supplemental Report dated 25 February 2019.

[18] Paragraph 2.1-2.2 of Exhibit P12 & Annex 1

[19] Paragraph 4.1(a)-(f) of Exhibit P12

[20] Paragraph 8.1- 8.8

[21] Paragraphs 1-11 & Appendix JL-A1-3 of Exhibit D2

[22] Exhibit D2: Expert Report dated 22 March 2019; Exhibit D3: Supplemental Report dated 25 March 2019

[23] Appendix JL-C of Exhibit D2- the catalogue

[24] Paragraph 30 of Exhibit D2; photograph (3) & (4) at Appendix JL-G

[25] Paragraph 32 of Exhibit D2; photograph (5) at Appendix JL-G

[26] Paragraph 29 of Exhibit D2; photograph (6) at Appendix JL-G

[27] For DSPA: the total loads of 20.48 kPa contained 4 components, namely self-weight of the structure (6.48 kPa), finishes (1 kPa), soil (8 kPa) and live loads (5 kPa); the imposed loads were calculated without taking into account the self-weight structure (or dead load) component.  Paragraphs 34-41 of Exhibit D2

[28] Paragraph 44-48 of Exhibit D2; Appendix JL-E

[29] Paragraphs 50-53 of Exhibit D2

[30] Table A & B of Exhibit D2

[31] Exhibit P1: Paragraph 9 of the 1^st Admitted Facts

[32] Paragraphs 7.1-7.5 of Exhibit P12 and Annex 8

[33] Paragraph 7.3 of Exhibit P12

[34] Annex 10

[35] Paragraph 8.4 of Exhibit P12

[36] Paragraph 8.8 of Exhibit P12

[37] Paragraph 8.1 of Exhibit P12

[38] Paragraph 16 of the Prosecution Closing Submissions

[39] Paragraph 17 of the Prosecution Closing Submissions

[40] Paragraph 32 of the Prosecution Closing Submissions

[41] Regina v Turner [1975] 1 QB 834 at 840 B-C

[42] Paragraph 31 of Exhibit D2

[43] Paragraph 50 of Exhibit D2

[44] Paragraphs 5 to 9 of Exhibit D3

[45] Paragraph 43 of Exhibit D2

[46] Exhibit D1

[47] Profit Success Development Limited v Appeal Tribunal (Buildings) & Anor HCAL 94/ 2011, 8 November 2012 at para. 31

[48] Paragraph 32 of Exhibit D2

[49] 鍾俊輝及屋宇署署長HCAL84/ 2015, a Chinese judgment

[50] Paragraph 17 of the judgment: “況且, 不影響樓宇結構安全的搭建物並非不是僭建物”