CHOW WAI TAK v. MR LI CHI HO, A MAGISTRATE SITTING AT SHATIN MAGISTRACY AND ANOTHER

HCAL 1721/2020

[2020] HKCFI 2494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1721 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  There are two applications before the court:

(1)  an application for leave to apply for judicial review of a warrant (“the Warrant”) issued on 21 August 2020 by Mr Li Chi Ho, a magistrate (“the Magistrate”) sitting at Shatin Magistracy, upon the application of the Director of Food and Environmental Hygiene (“the Director”); and

(2)  an application for an interim injunction to restrain the Director from executing the Warrant or applying for an extension of the Warrant to a later date or for a fresh warrant if the Director allows the Warrant to lapse until the final determination of the application for judicial review or further order of the court.

BACKGROUND FACTS

2.  The Applicant is the owner of Flat 02, 29^th Floor, Kam Ngar House (Block H), Kam Ngar Ying Court, Ma On Shan, Hong Kong (“the Applicant’s Flat”), which is occupied by him and his wife.

(i)     Stage I - confirmation of water seepage

3.  On 15 February 2019, the Joint Office of the Buildings Department and Food and Environmental Hygiene Department (“the Joint Office”) received a water seepage complaint (“the Complaint”) from the occupier (“the Complainant”) of the flat (“the Complainant’s Flat”) directly underneath the Applicant’s Flat.

4.  In response to the Complaint, the Joint Office commenced investigation in April 2019.  On-site investigation conducted at the Complainant’s Flat on 18 April 2019 revealed an average moisture content above 35% (with a range between 25.0% and 42.5%) on the kitchen ceiling, and an average moisture content below 35% (with a range between 17.6% and 26.9%) on the bathroom ceiling of the Complainant’s Flat.  The Complainant suggested that the source of seepage might be rain water penetration from a defect in the external wall of the building.  However, taking into consideration that the seepage apparently persisted during non-rainy days, the Joint Office considered that the source of seepage could be from the Applicant’s Flat.

5.  The Joint Office’s staff were, however, unable to inspect the Applicant’s Flat on 18 April 2019 because it was under lock and key.  A Notice of Appointment was left in the mailbox of the Applicant’s Flat requesting him to arrange a convenient time for the Joint Office’s staff to conduct an inspection of his flat.  No response was received by the Joint Office to that notice.

(ii)    Stage II - initial investigation

6.  On 28 May 2019, the Joint Office’s staff made a further visit to the Applicant’s Flat and found the Applicant.  The Joint Office’s staff informed the Applicant of the Complaint and the purpose of the visit.  With the Applicant’s consent, the Joint Office’s staff entered the Applicant’s Flat and carried out a “Colour Water Test” in the bathroom and kitchen of the Applicant’s Flat.

7.  On 1 August 2019, the Joint Office’s staff attended the Complainant’s Flat to review the result of the Colour Water Test. On inspection, the originally affected kitchen ceiling was found to be dry and thus no moisture content measure was taken.  However, the bathroom ceiling was detected to have a moisture content above 35% (with a range between 21% and 40.2%).  A sample was collected from the bathroom ceiling for analysis by the Government Laboratory.  A negative result was returned on 26 August 2019, meaning that the source of seepage could not be identified by the Colour Water Test carried out on 28 May 2019.

8.  On 6 September 2019, the Joint Office wrote to the Applicant informing him that despite the Colour Water Test carried out on 28 May 2019, they could not confirm the source of the water seepage.  The Joint Office further stated that, due to the persistence of the water seepage problem, it would consider referring the Complaint for professional investigation.

(iii)   Stage III - professional investigation

9.  On 18 October 2019, the Joint Office issued a letter to the Applicant informing him that the Joint Office would assign the case to a consultant, Easy Living Consultant Limited (“the Consultant”), to further investigate the Complaint.

10.  On 26 October 2019, the Consultant contacted the Applicant to make an appointment for on-site investigation at the Applicant’s Flat, but the Applicant refused the appointment.

11.  On 30 October 2019, the Consultant visited the Complainant’s Flat.  Upon inspection, moisture content above 35% (with a range of between 9.7% to 52.3%) was detected on the bathroom ceiling.  The originally affected kitchen ceiling, which was found to be dry on 1 August 2019, was now detected to have a moisture content below 35% (with a range between 15.8% and 26.2%).

12.  On the same day (30 October 2019), the Consultant visited the Applicant’s Flat, informing the Applicant that:

(1)  Water seepage persisted in the Complainant’s Flat, but the source of the seepage had not yet been identified.

(2)  The Consultant intended to carry out two further tests to find out the source of the water seepage, namely -

(a)  a Ponding Test in the bathroom and kitchen (including the adjacent balcony) of the Applicant’s Flat; and

(b)  a Water Spray Test on the walls enclosing the shower area in the bathroom of the Applicant’s Flat.

(3)  Protective measures (water bags) would be taken prior to carrying out the above tests to protect the furniture in the bathroom and kitchen, and the affected areas would be cleaned up after completion of the tests.

13.  According to the Applicant:

(1)  the Consultant said that they intended to perform the Ponding Test also in the living room of the Applicant’s test;

(2)  the Applicant indicated his consent to the Consultant carrying out the Ponding Test and Water Spray Test in the bathroom and kitchen, but refused to allow the Consultant to carry out the Ponding Test in the living room and hallway.

14.  The Applicant’s reason for objecting to the Ponding Test being carried out in the living room and hallway is that the flooring of the living room and hallway is made of wood, as is the furniture placed therein.  As such, the flooring and furniture would be at risk of damage by the colour water used in the Ponding Test[1]. The Applicant further says that due to their old age (in their 80s) and poor health, he and his wife are unable to move the furniture out of the way for the Ponding Test to be carried out.

15.  On the other hand, it is the evidence of the Director that:

(1)  there was no mention by the Consultant that the Ponding Test would be carried out in the living room and/or hallway (ie, the corridor between the kitchen and bathroom) of the Applicant’s Flat;

(2)  despite the above explanation, the Applicant refused to give his consent to allow entry into his flat by the Consultant to carry out the Ponding Test and Water Spray Test.

16.  On 31 October 2019, the Applicant contacted the Joint Office stating that the Consultant had visited his flat on 30 October 2019, and claiming (amongst other things) that the Consultant had indicated that the Ponding Test and Water Spraying Test would be carried in the kitchen, bathroom and hallway of his flat.  The Joint Office explained to the Applicant that the Ponding Test and Water Spraying Test would only be carried out in the kitchen and bathroom (including the adjacent balcony). The Joint Office also reassured the Applicant that its workers would clean up the affected areas after completion of the tests.  Nevertheless, the Applicant maintained his objection to the Consultant entering his flat to carry out the said tests.

17.  On 2 and 10 January 2020 and 21 May 2020, the Director’s representatives, with prior notice, attempted to enter the Applicant’s Flat for the purpose of carrying the Ponding Test and Water Spraying Test.  They were unable to do so because no one answered the door.

(iv)   The application for the Warrant

18.  On 4 May 2020, the Director issued to the Applicant a “Notice of Intention to Apply for Warrant of Entry” by registered post, which was successfully served on the Applicant on 8 May 2020.

19.  On 28 May 2020, the Director’s representatives visited the Complainant’s Flat.  Upon inspection, the bathroom ceiling was found to have a moisture content above 35% (with a range between 12.3% and 39.5%), and the kitchen ceiling was also found to have a moisture content above 35% (with a range between 47.1% and 89.0%).

20.  By a letter dated 1 June 2020 to the Food and Environmental Hygiene Department, the Applicant’s lawyers, Messrs Yu, Chan & Yeung (“YCY”) reiterated that the Applicant would not consent to the Ponding Test being carried out in the living room.  Further, YCY requested that they be given at least 2 clear days’ written notice of any intended application for a warrant to enter the Applicant’s Flat.

21.  On 26 June 2020, the Joint Office issued a reply to YCY confirming, amongst other matters, that:

(1)  The Ponding Test and Water Spray Test would only be carried out in the bathroom and kitchen (including the original balcony) of the Applicant’s Flat.

(2)  The Consultant would protect the furniture in the bathroom and kitchen with water bags during the carrying out of the tests, and would clean up the affected areas after completion of the tests.

(3)  The Consultant had never mentioned that the above tests would be carried out in the living room or corridor of the Applicant’s Flat.

(4)  No tests would be carried out in the living room and corridor of the Applicant’s Flat.

(5)  Depending on the water seepage condition in the Complainant’s Flat, a Reversible Pressure Test on the water supply pipes to the Applicant’s Flat might be required to be carried out to identify the source(s) of the water seepage.

The Joint Office also pointed out that water seepage was usually caused by defective building fabrics or installations and/or the lack of proper building maintenance, and it was the responsibility of the owners/occupiers concerned to maintain their buildings and to ensure environmental hygiene.  The Joint Office again requested for the Applicant’s co-operation to enable the water seepage in the Complainant’s Flat to be investigated.  There was no response to the Joint Office’s letter dated 26 June 2020.

22.  On 14 August 2020, the Joint Office issued a letter to YCY informing them that its Health Inspector would apply to the Shatin Magistrates’ Court on 21 August 2020 for a warrant to effect entry into the Applicant’s Flat under s 126(2) of the Public Health and Municipal Services Ordinance, Cap 132 (“the Ordinance”).  Section 126 of the Ordinance, so far as relevant, states as follows:

“General power 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 …

(a) for the purpose of ascertaining whether there is, or has been, on or in connection with the premises, vehicle, vessel or aircraft any contravention of the provisions of this Ordinance, being provisions which it is the duty of the authorizing authority to enforce;

(b) for the purpose of ascertaining whether or not circumstance exist which would authorize or require the authorizing authority to take any action, or execute any work, under the provisions of this Ordinance …

(c) for the purpose of taking any action, or executing any work, authorized or required by the provisions of this Ordinance to be taken or executed by the authorizing authority;

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

(e) generally, for the purpose of the performance by the authorizing authority of his functions under the provisions of this Ordinance:

Provided that admission to any premises or vessel, not being premises or a vessel used for business purposes or as a workplace, shall not be demanded as of right unless not less than 2 hours’ notice in writing of the intended entry has been given to the occupier of such premises …

(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 …

(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…”

23.  By a letter in reply dated 20 August 2020, YCY on behalf of the Applicant maintained his objection to the carrying out of the Ponding Test in the Applicant’s Flat, and suggested that other tests (such as tests involving the use of infrared or microwave detectors) could be carried out with the Ponding Test being used as a last resort.  YCY also requested the Joint Office to provide copies of their letters dated 1 June 2020 and 20 August 2020 to the magistrate for his consideration of the application for the warrant.

24.  On 21 August 2020, the Director made an application to the Magistrate for a warrant to effect entry into the Applicant’s Flat.  As requested by YCY, copies of their letters dated 1 June 2020 and 20 August 2020 were placed before the Magistrate for his consideration of the application.

25.  On 21 August 2020, the Magistrate issued the Warrant under s 126(2) of the Ordinance authorizing representatives of the Director to enter the Applicant’s Flat to execute his duties under the Ordinance.  It is expressly stated in the Warrant that it can only be executed on or before 30 September 2020 and the Warrant will automatically lapse after 30 September 2020 unless it has been extended.

(v)    The current position

26.  On 24 August 2020, YCY lodged papers with the court seeking (i) leave to apply for judicial review of the Warrant, and (ii) interim relief to restrain the Director from executing the Warrant pending the final determination of the application for leave to apply for judicial review. On the same day, the court gave directions to YCY for (i) service of the papers on the Putative Respondents, and (ii) an oral hearing of the application for interim relief on 26 August 2020.  YCY served the relevant papers on the Department of Justice on 25 August 2020.

27.  By a letter dated 25 August 2020, the Joint Office informed the Applicant that the Director had obtained the Warrant to effect entry into his flat to conduct inspection and tests for the purpose of ascertaining the source of the water seepage, and the Director’s authorized officers intended to execute the Warrant.  A copy of the Warrant was enclosed with the Joint Office’ letter of 25 August 2020.  The Joint Office also wrote to YCY on 25 August 2020 informing them that the Director had obtained the Warrant, and confirmed that their letters dated 1 June 2020 and 20 August 2020 had been placed before the Magistrate for his consideration of the application for the Warrant.

28.  On 25 August 2020, the Director’ representatives visited the Complainant’s Flat.  It was found that (i) the moisture content on the kitchen ceiling was above 35% (with a range between 26.4% and 69.9%), and (ii) the moisture content on the bathroom ceiling was also above 35% (with a range between 14.5% and 99.9%).  Based on these latest findings, the Director considers that the water seepage problem in the Complainant’s Flat has deteriorated.  The Director also considers that the water seepage may be caused by issues with the water supply system in the Applicant’s Flat, and it is necessary to carry out the Ponding Test, Water Spray Test and Reversible Pressure Test in the Applicant’s Flat to trace the source of the water seepage. On that occasion, the Complainant also complained that the water dripped from his kitchen ceiling would fill up a bowl placed underneath the dripping point in about 2 days.  However, the Applicant says that no water dripping was observed in the kitchen ceiling of the Complainant’s Flat during a mutual inspection on 28 August 2020.

29.  As confirmed by Ms Carol Lee (for the Applicant) at the hearing on 21 September 2020, the Applicant’s current position is that he objects to the Director’s representatives entering his flat to carry out the Ponding Test and Water Spray Test in the kitchen (including the balcony) and bathroom.

APPLICATIONS FOR JUDICIAL REVIEW AND INTERIM INJUNCTION

30.  On 25 August 2020, the Application made the present application for leave to apply for judicial review.

31.  On 26 August 2020, the court, upon the Director’s undertaking not to execute the Warrant for a period of 4 weeks up to 23 September 2020, adjourned the hearing of the application for leave to apply for judicial review and the application for interim relief to 21 September 2020, and gave directions regarding evidence to be filed by the parties.

32.  On 17 September 2020, the Applicant issued an inter partes summons seeking an interim injunction against the Director from executing the Warrant pending the determination of the application for judicial review or further order of the court.

33.  In the Form 86, the Applicant raises the following grounds of judicial review:

(1)  Ground 1A: the Director failed to take into account relevant considerations when exercising his powers to apply for the Warrant[2];

(2)  Ground 1B: the Director failed and/or neglected and/or refused to bring a relevant matter or matters to the Magistrate’s attention, namely (i) YCY’s letters dated 1 June 2020 and 20 August 2020 and the fact that the Applicant had expressly consented to the Director’s representatives entering into his flat, and (ii) there were other viable tests to find out the source of the water seepage[3];

(3)  Ground 2: the Magistrate erred in law and/or failed to take into account relevant considerations[4];

(4)  Ground 3: the Warrant is defective, on the “presumption” that it does not specify or define the ambit of the Director’s power once entry into the Applicant’s Flat is effected[5].

34.  In the Supplemental Skeleton Argument of Ms Lee dated 17 September 2020, at §8, and in her oral submissions, she confirmed that the Applicant had decided not to pursue Ground 3 of judicial review.

THE JOINT OFFICE’S PRACTICE FOR INVESTIGATING WATER SEEPAGE COMPLAINTS

35.  The Joint Office’s practice for investigating water seepage complaints is set out in a document entitled “Notes to Owners/Occupants - General Procedures for Investigating Water Seepage” (“the Notes”).  The following provisions in the Notes are relevant for the present purpose:

“Responsibilities of Owners and Occupants

[1] Water seepage in buildings is generally caused by defective building fabric or installations and lack of proper maintenance. Proper management, maintenance and repair of buildings, including resolving water seepage problems, are the responsibilities of building owners and occupants. The co-operation of owners and occupants concerned is essential for resolving water seepage problems. In general, if water seepage occurs in private buildings, owners should first arrange their own investigation into the cause of seepage and, as appropriate, co-ordinate with the occupants and other owners concerned for repair works.

[2] Under normal circumstances, seepage originated from penetration of rainwater through roofs, flat roofs, balconies, external walls or windows of a building or from leaking water pipes will not cause any public health implications and is not nuisance actionable by the Joint Office (JO) under the Public Health and Municipal Services Ordinance (PHMSO)(Cap. 132).

General Procedures

[5] Within 6 working days upon receipt of a report, JO staff will contact the informant to arrange an inspection to the affected premises…

[6] If water seepage nuisance is identified, JO staff will carry out investigation and non-destructive tests systematically at the premises suspected to have caused the seepage (suspected premises) so as to identify the source of seepage…

[7] In the case that access to the suspected premises for investigation is denied, JO may apply for a warrant to effect entry into premises from the Court in order to proceed with the investigation and tests.

Investigating Water Seepage Problems

[10] In general, water seepage investigation will be conducted in 3 stages.

Stage I – Confirmation of Water Seepage Condition (by JO staff)

[11] JO staff will visit the informant’s premises to record the condition of the seepage location and other relevant information. If the moisture content of the seepage area is found equal to or exceeding 35%¹ and the seepage problem is suspected to have been caused by other premises, Stage II – Initial Investigation will be carried out.

Stage II – Initial Investigation (normally by JO staff)

[12] One or several of the following tests will be conducted, depending on the circumstances of the case:

Test method	Test location	Premises involved
Moisture Content Monitoring (using moisture meter)	Wall surface/ceiling	Informant’s premises
Colour Water Test (using colour dyes)	Drainage outlet	Suspected premises
Reversible Pressure Test4	Water supply pipe and seepage area	Suspected premises and informant’s premises

[13] …If a case is so complicated that the source of seepage cannot be identified, JO will proceed to Stage III – Professional Investigation.

Stage III – Professional Investigation (normally by JO’s consultants)

[14] One or several of the following tests will be conducted, depending on the circumstances of the case:

Test method	Test location	Premises involved
Moisture Content Monitoring (using moisture meter)	Wall surface/ceiling	Informant’s premises
Ponding Test for Floor6 (using colour water)	Floor slab of bathroom/shower compartment/kitchen	Suspected premises
Spray Test for Wall7 (using colour water)	Wall surface of bath tub/shower tray/shower compartment	Suspected premises
Reversible Pressure Test (if not carried out in Stage II)	Water supply pipe and seepage area	Suspected premises and informant’s premises

1   JO will not investigate water seepage reports with moisture content below 35%.

4   Applicable to suspected leakage from water supply pipes and continuous water dripping in the seepage area …

6   The drainage outlet will be plugged before the test. The test area will be flooded with colour water and cleaned with clear water after the test. Upon completion of the test, the seepage area in the informant’s premises will be reviewed for any seepage of colour water.

7   Colour water will be sprayed on the walls of bath tub, shower tray or shower compartment. Upon completion of the test, the seepage area in the informant’s premises will be reviewed for any seepage of colour water.”

36.  The following points may be noted at this stage:

(1)  The Joint Office would normally not investigate cases where the water seepage originated from penetration of rain water through the roofs, flat roofs, balconies, external walls or windows of a building or from leaking water pipes which will not cause any health implications and is not nuisance actionable under the Ordinance.

(2)  The Joint Office will also not investigate cases where the water seepage reports indicate moisture content below 35%.

(3)  In other cases within the purview of the Joint Office, it would carry out the investigation in 3 stages.

(4)  The tests which would be used by the Joint Office or its consultants are “non-destructive”, and include the following at different stages of an investigation: Moisture Content Monitoring (using moisture meter), Colour Water Test (using colour dye), Reversible Pressure Test, Ponding Test for Floor (using colour water), and Spray Test for Wall (using colour water).  Ms Lee accepts that these tests are “non-destructive”, although she says that the Ponding Test and Spray (Water) Test are more “intrusive” than other tests such as Moisture Content Monitoring and Colour Water Test.

(5)  The “test location” of Ponding Test for Floor is at “Floor slab of bathroom/shower compartment/kitchen”, while the “test location” of Spray Test for Wall is at “Wall surface of bath tub/shower tray/shower compartment”.  Neither test would be carried out in the living room or hallway of a flat.

37.  The tests mentioned in (4) above are referred to as “conventional testing methods” in a Legco Paper No CB(2)517/19-20(05) entitled “Briefing on the Work of the Joint Office for Investigation of Water Seepage Complaints” dated January 2020 (“the Legco Paper”).  In that paper, it is mentioned that the Joint Office will also use “new testing technologies”, namely, infrared thermograph (IT) and microwave tomography (MT), in various pilot districts and in more complicated cases in non-pilot districts.  The Shatin District (covering the Applicant’s Flat in Ma On Shan) is not situated within the pilot districts.  The following matters are stated in the Legco Paper:

“WATER SEEPAGE INVESTIGATION AND ENFORCEMENT ACTION BY JO

[4] As private properties are involved, upon receipt of a report on water seepage in a building, JO will carry out non-destructive investigation and tests. JO’s investigation of water seepage cases is generally carried out in the following three stages:

(a) Stage I aims to confirm that there is a water seepage condition;

(b) Stage II initial investigation includes moisture monitoring at seepage locations, colour water test of drainage pipes and reversible pressure test for water supply pipes; and

(c) Stage III professional investigation includes moisture monitoring at seepage locations, ponding test for floor slabs, water spray test on walls as well as reversible pressure test for water supply pipes. For more complicated cases and also suitable cases in pilot districts (please see paragraphs 7 and 8 for details), new testing technologies, such as infrared thermography (IT) and microwave tomography (MT), will be used.

ENHANCING EFFICIENCY OF JO

New Testing Technologies

[7] The current conventional testing methods for JO to investigate water seepage cases include moisture monitoring at seepage locations, colour water test of drainage pipes, ponding test and water spray test for floor slabs and walls as well as reversible pressure test for water supply pipes. Depending on the seepage condition, each case may involve more than one testing method. To further enhance the success rate of identifying sources of water seepage, BD commissioned a consultancy study to explore the feasibility of using the latest non-destructive testing technologies. After considering the findings of the study, JO has applied IT (mainly for detecting the areas affected by seepage) and MT (mainly for determining the source of seepage by detecting the data which reflects the moisture content of concrete floor slabs) in the Stage III investigation of all suitable cases² in Kowloon City, Wan Chai and Central and Western District since the second half of June 2018.

[8] So far, the success rate among cases using the new testing technologies and completing analysis in identifying sources of water seepage is about 78%, which is higher than that of using conventional methods (around 60%). JO has therefore since September 2019 extended the above new testing technologies to another five districts, namely Sham Shui Po, Kwai Tsing, Tuen Mun, Tai Po and the North District. For more complicated cases in non-pilot districts, if the source of seepage cannot be identified by conventional testing methods, JO will consider using the new testing technologies depending on the circumstances. JO is refining the technical guidelines and procedures relating to the use of the new testing technologies and is planning to gradually extend such technologies to other districts…

2   The new testing technologies have their limitations. For example, IT and MT cannot be effectively applied in cases involving spalling of concrete ceiling at the locations of water seepage, blockage of pipes and other facilities, or tile finishes on ceilings. Conventional testing methods have to be used in these cases.”

GROUND 1 OF JUDICIAL REVIEW DOES NOT GO TO THE LEGALITY OR RATIONALTIY OF THE WARRANT

38.  There are two sub-grounds under Ground 1 of judicial review, namely:

(1)  the Director failed to take into account relevant considerations when exercising his powers to apply for the Warrant (Ground 1A); and

(2)  the Director failed and/or neglected and/or refused to bring a relevant matter or matters to the Magistrate’s attention (Ground 1B).

39.  The “decision” under challenge in the present application for leave to apply for judicial review concerns the Warrant issued by the Magistrate, not the decision of the Director to apply for the Warrant. That this is so is clear from the subject matter referred to as the “Judgment, order, decision or other proceeding in respect of which relief is sought” in the Form 86, and from the substantive relief sought, namely, an order of certiorari to quash the Warrant.  The other relief mentioned in the Form 86 have fallen by the wayside: (i) the order of mandamus sought to compel the production of a copy of the Warrant has been abandoned by the Applicant, as confirmed by Ms Lee at the hearing, and (ii) the declaration sought that the Warrant did not comply with s 126 of the Ordinance relates to Ground 3, which has also been abandoned by the Applicant.

40.  The Warrant is an order or decision made by the Magistrate in the exercise of his judicial powers.  Even if the Director had failed to take into account relevant considerations when exercising his power to apply for the Warrant, or had failed and/or neglected and/or refused to bring a relevant matter or matters to the Magistrate’s attention, it does not necessarily follow that the Magistrate erred in law or failed to take into account relevant considerations when exercising his power to issue the Warrant (as contended by the Applicant).

41.  The Applicant has not applied to amend the Form 86 to challenge the Director’s decision to apply for the Warrant, despite the fact that the need to amend the Form 86 was expressly raised in the course of the hearing on 21 September 2020, albeit on a different matter.  The present application must therefore be considered strictly on the basis of the current Form 86 dated 25 August 2020 before the court.  Thus, even if the Applicant’s complaint under Ground 1 is valid, it cannot, of itself, lead to the quashing of the Warrant.

GROUND 1A: FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS

42.  Under this ground, the Applicant argues that the Director failed to take into account three relevant matters when exercising his statutory power to apply for the Warrant:

(1)  his legitimate expectation that the Director would follow the procedures set out in the Notes in the investigation of the Complaint[6];

(2)  the fact that he had not refused the Director’s entry into his flat[7]; and

(3)  the fact that there were other ways of investigating the source of the water seepage in addition to the Ponding Test and Water Spray Test[8].

43.  In relation to the complaint under §42(1) above, Ms Lee argues that the Notes give rise to a legitimate expectation that the procedures stated therein would be followed and that the “suspected” unit, being the subject of the investigation, shall be provided with core information in relation to the progress of an investigation, such as:

(1)  whether the penetration of rainwater is a real possible source of water seepage, and

(2)  the moisture content level, in particular whether and when it drops below 35%[9].

44.  While it is correct, as earlier mentioned, that the Notes provide that the Joint Office would normally not investigate cases where the water seepage originated from penetration of rain water in some circumstances, or where the relevant water seepage reports indicate moisture content below 35%, there is nothing in the Notes to suggest that the Joint Office would keep updating the Applicant in respect of the evidence and findings arising from the Joint Office’s ongoing investigation of the cause of the water seepage such as to give rise to any relevant legitimate expectation on the part of the Applicant.

45.  The following table summarizes the evidence before the court concerning the moisture content of the affected areas in the Complainant’s Flat on various dates when measurements were taken:

	Moisture Content on Bathroom Ceiling	Moisture Content on Kitchen Ceiling	Weather conditions - (i) day of inspection (ii) preceding 2 days
18.04.2019	< 35%	≥ 35%	(i) C; (ii) C/R
01.08.2019	≥ 35%	Dry	(i) R; (ii) C/R
30.10.2019	≥ 35%	< 35%	(i) S; (ii) S
28.05.2020	≥ 35%	≥ 35%	(i) C/R; (ii) C/R
25.08.2020	≥ 35%	≥ 35%	(i) S; (ii) S

R - Rainy; C - Cloudy; S - Sunny

46.  It can be seen that:

(1)  on 4 of the 5 inspection dates, the moisture content was above 35% on the bathroom ceiling of the Complainant’s Flat; and

(2)  on 3 of the 5 inspection dates, the moisture content was above 35% on the kitchen ceiling of the Complainant’s Flat.

47.  It has not been suggested that the Joint Office should have stopped investigation as soon as there was one measurement showing a moisture content below 35%.  It has also not been suggested, and there is no evidence to show, that the water seepage in the kitchen and bathroom of the Complainant’s Flat originates from two different sources.  Whether there are one or more sources of the water seepage is something which has to be investigated by the Joint Office.  Even if the evidence relating to the findings on moisture content in the Complainant’s Flat ought to have been provided to the Applicant, I do not see that the provision of such information to the Applicant could, or would, have affected the Director’s decision to proceed with the investigation of the Complaint, including the decision to apply for the Warrant to enable his representatives to enter the Applicant’s Flat to carry out the Ponding Test and Water Spray Test.

48.  In relation to the possibility that the source of the water seepage in the Complainant’s Flat may have been rainwater penetrated through the external wall, this possibility was expressly considered by the Joint Office, which took the view that, because the water seepage persisted during non-rainy days, the “water path could be possibly from the floor above” (ie the Applicant’s Flat), and thus the matter required further investigation[10].

49.  Ms Lee submits that “[o]n those dates (the ‘Relevant Dates’) when inspections were carried [out] in the Downstairs Apartment by the Joint Office … it can be noted from both the records of the Joint Office and the Hong Kong Observatory that the Relevant Dates (or in the 2 days preceding the Relevant Dates) were mostly cloudy/rainy days in the Shatin area and it tallies with the suggestion that the water seepage is possibly caused by rain penetration through the external wall”[11].  It can be seen, however, from the table under §45 above that moisture content above 35% on the kitchen and bathroom ceilings of the Complainant’s Flat was recorded on sunny, cloudy and rainy days.  Whether to exclude the possibility of the Applicant’s Flat as being the source of the water seepage in the Complainant’s Flat is a matter of professional judgment which the Joint Office is in a much better position than the court to make.  Unless the Joint Office’s view is not supported by any evidence or is plainly unreasonable, there would be no basis for the court to interfere with such view in an application for judicial review (see U Storage Group Limited v Director of Fire Services & Director of Building [2020] HKCFI 2114, at §16, per Wilson Chan J).

50.  Ms Lee’s suggestion that the water seepage in the Complainant’s Flat may be the result of improper maintenance of the external wall of the building[12] is not supported by any credible evidence.

51.  There is nothing in the materials before the court to show that the Joint Office has acted contrary to its general procedures for investigating water seepage as set out in the Notes.

52.  In relation to the complaint under §42(2) above, ie that the Applicant had not refused the Director entry into his flat, the issue is not simply whether he had allowed the Director’s representatives to enter the premises, but whether they were allowed to carry out the Ponding Test and Water Spray in the bathroom and kitchen of the Applicant’s Flat. Regardless of whether there was any misunderstanding or miscommunication on 30 October 2019 concerning the proposed test areas, any such misunderstanding or miscommunication was cleared by the Joint Office’s letter dated 26 June 2020 to YCY, which stated unequivocally that no tests would not be carried out in the living room or corridor (or hallway) of the Applicant’s Flat.  The Applicant’s continued refusal to allow the Director’s representatives to enter his flat to carry out the Ponding Test and Spray Water Test based on his objection to such tests being carried out in the living room or hallway is, in my view, disingenuous.  I pause to observe that although it is stated, at §37.2 of the Form 86, that the Applicant “had consented to the Director’s admission into the Premises for the purpose of carrying out … the Ponding Test and the Water Spray Test (as per the Director’s wish) on the bathroom and kitchen floors”, Ms Lee informed the court at the hearing on 21 September 2020 that the Applicant now objects to such entry into his flat.

53.  In respect of the complaint under §42(3) above, although there may be other technologies (such as infrared thermograph and microwave tomography) that could, in theory, be deployed to investigate the source of the water seepage in this case, those technologies are not listed in the Notes and, under the Joint Office’s current policy, are not deployed outside the pilot districts.  Ms Lee’s reliance on the reference in §8 of the Legco Paper to the possible use of the new testing technologies in “complicated cases in non-pilot districts” does not assist the Applicant, because it is stated that such use will be considered only “if the source of seepage cannot be identified by conventional testing methods”.

54.  Whether it is appropriate to use the conventional testing methods, ie the Ponding Test and Water Spray Test, to investigate the source of the water seepage in the Complainant’s Flat is a matter of professional judgment for the Joint Office to determine.  There are no statutory or other mandatory provisions which require the Director to consider using the infrared thermograph and microwave tomography technologies in this case.  I do not see that the Director has acted in breach of any duty, or failed to take into account a relevant consideration, in deciding to use the aforesaid conventional testing methods in this case.

55.  As for the alleged interference with the Applicant’s rights under BOR 14 (protection of privacy, family and home), such interference can readily be justified upon the application of the well-established 4-stage proportionality test:

(1)  The proper investigation of water seepage, which is causing nuisance to the Complainant, is a legitimate aim.

(2)  The use of the conventional testing methods, ie the Ponding Test and Water Spray Test, to investigate the source of the water seepage is rationally connected to the legitimate aim.

(3)  The interference is slight.  Ms Lee accepts that the Ponding Test and Water Spray Test are non-destructive tests.  The furniture in the affected areas which cannot be moved away would be protected by water bags, and the affected areas would be cleaned up after completion of the tests.  There should be no permanent damage to the premises or the furniture. When pressed, Ms Lee was unable to point to any real or substantial harm or damage which may be caused to the Applicant from the carrying out of the Ponding Test and Water Spray Test in the kitchen (including the balcony) and bathroom of the Applicant’s Flat.  The interference in this case is no more than reasonably necessary to achieve the legitimate aim.

(4)  For the same reasons, a reasonable balance has been struck between the societal benefits arising from the application of the impugned measures and interference with the Applicant’s rights under BOR 14.

56.  In her Supplemental Skeleton Argument, at §§26-30, Ms Lee has attempted to raise various other matters in support of the contention that the Director acted ultra vires in making the application for the Warrant under s 126(2) of the Ordinance.  In particular, it is alleged that:

(1)  The Director has already carried out the Colour Water Test in the Applicant’s Flat on 28 May 2019 and there is no justification to carry out such test again, as authorized by the Warrant.

(2)  In the absence of evidence that the Applicant has at any material time habitually and improperly used his flat (for instance, flooding the kitchen or the whole of the bathroom), consideration should have been given to restricting the Ponding Test to place(s) or area(s) where water is normally found to accumulate in the usual course of use and enjoyment of the premises (eg, the shower tray only).

(3)  There was a lack of basis for carrying out the Reversible Pressure Test as authorized by the Warrant, given that there was no evidence to suggest that there was water leakage from the fresh water pipes.

57.  Since these complaints have not been raised in the Form 86, the Applicant is not entitled to rely on them.  It would be unfair to allow the Applicant to raise these complaints through Ms Lee’s submissions dated 17 September 2020 given that the Director had, in accordance with the court’s directions, already filed evidence on 9 September 2020.  In any event, I fail to see how the matters complained of can support an argument that the Director acted ultra vires in making an application under s 126(2) of the Ordinance.

58.  In all, Ground 1A of judicial review is rejected.

GROUND 1B: FAILURE TO BRING A RELEVANT MATTER OR MATTERS TO THE MAGISTRATE’S ATTENTION

59.  The Applicant’s complaint under this ground of judicial review was mounted on a speculative basis, in the sense that the Applicant did not in fact know what materials were placed before the Magistrate in support of the application for the Warrant.  That this is so is shown by the fact that, in the Form 86, at §40.1, one of the matters which the Applicant alleges the Director “had failed and/or neglected and/or refused to bring to the Magistrate’s attention” was the “1/6 Letter and 20/8 Letter and the contents thereof”.  As confirmed in the affirmation of Cheung Suk Fun, at §§42 and 46, copies of YCY’s letters dated 1 June 2020 and 20 August 2020 were in fact placed before the Magistrate for his consideration of the application for the Warrant.

60.  It is not, in my view, proper practice for an applicant seeking leave to apply for judicial review to make an allegation without evidential basis and then hope that the respondent, in answering the application, would disclose materials which may support the application.

61.  The other matters which it is alleged the Director failed to bring to attention of the Magistrate are:

(1)  the fact that Applicant had expressly consented to the Director’s representatives entering his flat; and

(2)  the fact that there were other viable ways of investigating the source of water seepage[13].

62.  I have dealt with these matters in §§52 and 53-54 above.

(1)  As for entry to the Applicant’s Flat, it is clear that the Applicant refused to allow the Director’s representatives to enter his flat to carry out the Ponding Test and Spray Water Test in the bathroom and kitchen, which justified the application for the Warrant.

(2)  As for other ways of investigating the source of water seepage, I do not consider that the Director was under any duty to bring such matters to the attention of the Magistrate.  The question of what are the relevant matters which the Magistrate ought to take into account when dealing with an application under s 126 of the Ordinance will be considered below under Ground 2 of judicial review.

63.  In her Supplemental Skeleton Argument, at §34, Ms Lee has attempted to raise other matters which it is said the Director ought to have, but failed to, bring to the attention of the Magistrate.  Since those matters are not raised in the Form 86, the Applicant is not entitled to rely on them.

64.  I should also mention that in the Form 86, the Applicant describes Ground 1 as “The Application for the Warrant was Procedurally Improper and Ultra Vires”.  These additional labels (ie, “procedurally improper” and “ultra vires”) do not add anything of substance to the Applicant’s case.

GROUND 2: THE MAGISTRATE ERRED IN LAW AND/OR FAILED TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS

65.  In the Form 86, it is said that this ground is “the flip side of Ground 1B”, and “if the two relevant matters[14] were in fact brought to the attention of the Magistrate, he must either have erred in law when applying the test set out in section 126(2) of the Ordinance, or have failed to take those matters into account when exercising his powers to issue the Warrant”[15].

66.  The text of s 126(2) of the Ordinance has been set out in §22 above.  For the purpose of issuing a warrant under that section, a magistrate needs to be satisfied, based on sworn information in writing, of the following matters:

(1)  admission to the relevant premises has been refused or refusal is apprehended;

(2)  there is reasonable ground for entry into the premises for any of the purposes referred to in s 126(1); and

(3)  notice of the intention to apply for a warrant has been given to the occupier of the premises.

67.  Whether any matters are relevant and ought to be taken into account by a magistrate when exercising his powers to issue a warrant under s 126(2) of the Ordinance must also be judged by reference to the above statutory criteria.

68.  On the face of the Warrant, the Magistrate was satisfied of the matters mentioned in §66 above based on sworn information.  No error of law on the part of the Magistrate has been disclosed either on the face of the Warrant or on the materials before the court.

69.  The Applicant’s complaint that the Magistrate failed to take into account relevant considerations is based on the assumption that the matters referred to in §§40.1 and 40.2 of the Form 86 were brought to the attention of the Magistrate.  Again, as in relation to Ground 1B, the Applicant’s case under Ground 2 was mounted on a speculative basis without any evidential support as to what materials were, or were not, placed before the Magistrate for his consideration of the application for the Warrant.  In any event:

(1)  In respect of §40.1 of the Form 86, YCY’s letters dated 1 June 2020 and 20 August 2020 were not matters which the Magistrate was required to take into account.  There was also clear evidence that the Applicant had refused to permit the Director’s representatives to enter the Applicant’s Flat to carry out the tests which the Director considered to be necessary for the purpose of investigating the source of the water seepage in the Complainant’s Flat.

(2)  In respect of §40.2 of the Form 86, the Applicant’s argument does not get off the ground in the absence of evidence that the Magistrate was told about the so-called “other viable ways of testing for water seepage” (ie, infrared thermograph and microwave tomography technologies).

70.  Ground 2 of judicial review has no merits.

71.  In all, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

72.  For the foregoing reasons, the application for leave to apply for judicial review is dismissed.  It follows that the Applicant’s summons dated 17 September 2020 for an interim injunction is also dismissed.

73.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled and shall not be repeated here (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841).  The hearing on 21 September 2020 was inevitable in view of the Applicant’s application for an interim injunction.  Furthermore, the Applicant has effectively had a hearing on the substantive merits of the application for judicial review.  I consider that there exist special circumstances in the present case justifying an award of costs against the Applicant in respect of his application for leave to apply for judicial review.  The Applicant shall pay the costs of the Director in respect of both the leave application and the interim injunction application, including the costs reserved on 26 August 2020, to be taxed if not agreed.