RONALD WILSON, LI DO WAI & TANG SO HA AND OTHERS v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 165/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 165 OF 2012

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J U D G M E N T

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1. This is an application for judicial review in respect of a decision of the Appeal Tribunal (Buildings) dated 6 September 2012 (respectively “Decision” and “Tribunal”). The Decision concerned 9 cases. Four of the appellants, namely, the present applicants are challenging the Decision. Leave to apply for judicial review was obtained by them on 9 January 2013.

2. After a preliminary hearing held on 21 February 2012 and for the reasons set out in the Decision, the Tribunal did not accept that there was any good reason for holding a full hearing and dismissed, inter alia, the appeals of the applicants against the demolition and re-instatement orders (“Orders”) issued by the Building Authority (“BA”) against them pursuant to s 24 of the Buildings Ordinance, Cap 123 (“Ordinance”).

Background

3. The applicants are the registered owners of their flats in Flora Garden, No 50 Cloud View Road, Hong Kong (“Building”):

1^st applicants: Flat B1, 12/F

2^nd applicants: Flat B1, 9/F

3^rd applicants: Flat B1, 18/F

4^th applicants: Flat B2, 12/F

4. The Building was one of the target buildings designated by the Buildings Department (“BD”) under the “Blitz UBW Clearance Operation 2010” (“Blitz 2010”), which was a large scale operation for removal of unauthorized building works (“UBW”).

5. On 14 May 2010, BD issued letters to the owners or occupiers of the Building, informing them, inter alia, that it had appointed Wealthy Gate Architects & Associates Ltd as the contract consultant (“Consultant”) for the clearance operation in respect of UBW of the Building.  The Consultant would be responsible for investigating UBW and dilapidation found in or on the Building, on the external walls and in common areas, and for handling the administrative works of the related removal orders, warning notices or repair orders.

6. On that same day, the Consultant issued letters to the owners or occupiers of the Building, informing them that the Building was one which BD had inspected and targeted for clearance of UBW on the external walls, in common areas and on cantilevered slab balconies, and advising them to make arrangements to remove their UBW as early as possible without waiting for orders from BD.

7. Between 10 June 2010 and 20 October 2010, the Consultant sent qualified technical staff to inspect, inter alia, the applicants’ flats.  They identified three common types of UBW in deviation with the approved plans, namely, structure on and over the flower bed (“Type A”); structure on and over the fin (“Type C”) and metal frame attached to the external wall supporting mechanical parts (“Type D”).  These UBW had been carried out without having first obtained BA’s approval of building plans and consent for commencement of such building works under s 14 of the Ordinance:

Applicants	Flat	Type of UBW	Particulars
1st	B1, 12/F	A, C & D	2 structures on and over the fin facing Nos 51-67 Cloud View Road (Coral Court); A structure on and over the flower box facing Coral Court; and A metal frame supporting a mechanical plant attached to the external wall facing Flat B3, Block 3, Flora Garden
2nd	B1, 9/F	A & C	A structure on and over the flower box facing Coral Court; and  2 structures on and over the fin facing Coral Court
3rd	B1, 18/F	A, C & D	2 structures on and over the fin facing Coral Court; A structure on and over the flower box facing Coral Court; and A metal frame supporting a mechanical plant facing Coral Court
4th	B2, 12/F	A & C	2 structures on and over the fin facing Coral Court; and A structure on and over the flower box facing Coral Court

8. The technical staff responsible for inspecting the applicants’ flats had prepared inspection reports, which were vetted and endorsed by an Authorized Person.

9. On 14 December 2010, BA issued and served the Orders on the applicants as owners, requiring them to demolish the UBW and to reinstate the parts of the Building so affected by the UBW in accordance with the plans approved by him.

10. On 3 January 2011, the applicants filed their Notices of Appeal against the Orders.

11. On 31 January 2011, the applicants filed their Statements of Particulars pursuant to the Building (Appeal) Regulation, Cap 123L.

12. On 4 May 2011, BA filed the Respondent’s Representation.  BA took the position that no good cause had been shown for holding a full hearing and requested the Tribunal to hold a preliminary hearing to determine the matter under s 49 of the Ordinance.

13. On 27 September 2011, at the request of the applicants, BA supplied further particulars of the Respondent’s Representation.

14. On 21 February 2012, the Tribunal held a preliminary hearing to determine whether good cause had been shown for a full hearing.

15. The above matters are not in dispute.  I shall proceed to set out the applicable law which will be followed by BD’s policy of enforcement in respect of UBW, which features prominently in this application.

Law

16. The long title to the Ordinance states its purpose:

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

17. S 2 of the Ordinance defines “building works” to include:

“any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation, and includes drainage works;”

18. There is no dispute that the UBW in question (“AUBW”), which can be seen from the photographs available to the Tribunal and this court, fall within the ambit of building works as defined by s 2 of the Ordinance.

19. Part 2 of the Ordinance is concerned with and headed “Control of Building”.  There is a two-stage process involved in carrying out building works, namely, the approval stage and the commencement of building works.  S 14 of the Ordinance provides:

“(1) Save as otherwise provided, no person shall commence or carry out building works or street works without having first obtained from the Building Authority –

(a) his approval in writing of documents submitted to him in accordance with the regulations; and

(b)  his consent in writing for the commencement of the building works or street works shown in the approved plan.”

20. S 38(1)(b) of the Ordinance empowers the Secretary for Development to make regulations to provide for the manner of making application for and granting of approval of plans of building works.

21. The procedure in connection with the approval of plans of building works is governed by Part 4 of the Building (Administration) Regulations, Cap 123A.

22. Approved plans are the major reference to be used by BA for the enforcement of the provisions of the Ordinance – Lo Yin Ming v Appeal Tribunal (Buildings) [2011] 3 HKLRD 586 at §29 per Lam J (as he then was).

23. There is no dispute that AUBW are not shown on any approved plan and that they had been carried out without having first obtained BA’s approval of building plans and consent for commencement of such building works as required under s 14 of the Ordinance.

24. S 41(3) of the Ordinance provides that building works (other than drainage works, ground investigation in the scheduled areas, site formation works or minor works) in any building are exempt from ss 4, 9, 9AA, 14(1) and 21 of the Ordinance if the works do not involve the structure of the building.

25. In Mariner International Hotels Ltd v Atlas Ltd (2007) 10 HKCFAR 1, it was held (per Bokhary PJ):

“51. … In my view, Mr. Sumption is right in his submission, on the first requirement, that building works added to a building involves its structure if they serve a structural function or are capable for some reason of affecting the integrity of the structure. That is to be derived from purpose. …

52. As to the second requirement, I accept that, in terms of the exemption, building works on the roof of a building are not ‘in’ the building.  There is a purposive difference relevant to safety between building works protected from the elements by being ‘in’ a building and building works exposed to the elements. …”

26. There is controversy whether AUBW qualify as exempted works under s 41(3) of the Ordinance and I shall deal with that issue below.

27. Pursuant to s 24 of the Ordinance, where any building works have been carried out in contravention of any of the provisions of the Ordinance, BA may by order in writing require the demolition of the building works or such alteration of the building or building works as may be necessary to cause the same to comply with the Ordinance or otherwise to put an end to the contraventions thereof.

28. The word “may” in s 24 of the Ordinance denotes a discretion on the part of the BA – Quebostock Ltd v The Building Authority & Anr, CA, [1986] HKLR 467 at 476G.

29. S 49 of the Ordinance provides as follows:

“(1) The Appeal Tribunal may, in any case where it considers it appropriate to do so, hold a preliminary hearing to determine whether good cause has been shown for holding a full hearing.

 (2)  If the Appeal Tribunal determines that good cause has not been shown for holding a full hearing it shall make an order dismissing the appeal but shall otherwise hold a full hearing.”

30. Under s 50 of the Ordinance, which applies to hearing and determination of an appeal or a preliminary hearing held under s 49, the Tribunal may receive and consider any evidence, whether or not it would be admissible in evidence in proceedings in a court.

31. I believe that the provisions for a preliminary hearing to determine whether good cause has been shown for a full hearing are important in weeding out hopeless appeals.  However, such a determination ought to be made only in plain and obvious cases.

Enforcement policy

32. BD’s policy against UBW can be seen from “Building Department’s Enforcement Policy Against [UBW]” promulgated in April 2001 (“Enforcement Policy”):

“The problem of [UBW] is serious in Hong Kong. [BD] estimates that there are about 750,000 UBWs in Hong Kong. UBWs affect the safety of buildings. Owners should, in their own interest, take the initiative to organize for the demolition of UBWs in their premises …

In view of the very large number of UBWs in Hong Kong, [BD] takes immediate enforcement action against all new UBWs and UBWs which pose an obvious hazard to life or property. Priority will be given to the removal of the following types of such works:-

(a) items constituting obvious or imminent danger to life or property;

(b) new items, irrespective of the date of completion of the building where they have been carried out;

(c) items in or on buildings, on podiums and rooftops, in yards and lanes (including unauthorized site formation works) constituting a serious hazard or a serious environmental nuisance, as determined by [BA];

(d) major individual items;

(e) items in or on individual buildings with extensive unauthorized building works;

(f) items identified in buildings or groups of buildings targeted for large-scale operations or maintenance programmes; and

(g) unauthorized alterations to works in environmentally friendly features of a buildings (e.g. balconies, sky or podium gardens) for which exemption from calculation of gross floor area has been granted by [BA].

Every year [BD] launches a series of ‘blitz’ operations to clear at one go all external unauthorized works on hundreds of buildings. This has considerably raised owners’ compliance. [BD] will adopt this approach for major clearances, particularly those items on the external walls of buildings 20 to 40 years old and some on podiums and rooftops or in yards and lanes.  These operations will remove 150,000 to 300,000 [UBW] in five to seven years.”

33. On 30 April 2001, the Director of Buildings stated in a press release that BD would intensify enforcement actions for demolition of UBW following the Enforcement Policy:

(1)   The Director noted that it was high time for a revision of the enforcement policy following changes in circumstances and increase of resources since the policy was first established in 1988.

(2)   He believed that prompt and firm enforcement action was the key to producing a real long-term deterrent effect against construction of UBW.

(3)   He explained that the Enforcement Policy was aimed at re-focusing priorities and broadening the scope for enforcement action.

(4)   He stressed that BD was determined to remove 150,000 to 300,000 items of UBW in the next five to seven years.  This would be made possible by the Enforcement Policy and a series of blitz operations launched against UBW on external walls of buildings of 20 to 40 years old.

34. In Sky Wide Development Ltd & Ors v Building Authority, HCAL 116/2008, unrep, 24 October 2008, Lam J (as he then was) considered the Enforcement Policy and observed as follows:

“10. A very important point to note is that the policy is an enforcement policy, not a tolerance policy. It was only because of the limited resource available that priority has to be accorded to certain classes of cases. One should not construe such policy in a way to read it as an assurance to the public that no enforcement action will be taken against UBWs falling outside those categories. Nor should one read that policy as saying that no enforcement action will be taken regarding UBWs outside those categories until all prioritized cases have been dealt with.”

35. Under Blitz 2010, various UBW were targeted.  In the material before the Tribunal, there was a List of actionable UBW so targeted.  For the present purpose, the relevant categories are “dilapidated or abandoned A/C plant and ventilation duct supporting frames, metal frames or chimney” (“Item 1.4”) and “cage/solid enclosures on or attached to architectural fins, hoods or plant boxes or unauthorized conversion of architectural fins, hoods, plant boxes into balconies or bay windows” (“Item 1.10”).

36. On the issue of discretion in the enforcement carried out by BD, under Existing Buildings Division Manual Part II, Section 6 Instruction No 2 on “Common Amenity Features Erected without Approval” (“Manual”), it was provided as follows:

“ Property owners have a common need of putting up amenity features in their properties for improving their living or working environment. In recognition of such need, incentives are given in Practice Note for Authorized Persons/Registered Structural Engineers No 68, 116 and 173 for the provision of such features as security gates, air-conditioner boxes and platforms, canopies, window hoods, window flower boxes and the like at design and construction stage of new buildings, with a view to obviating the desire or temptation for UBW.

2. In existing buildings, these amenity features are commonly found, depicting a genuine need for their existence. If these features were erected without the approval and consent of [BA], they are UBW and are subject to enforcement action in accordance with the current enforcement policy. However, in recognition of the genuine need for these amenity features, a flexible approach for enforcement is adopted in handling these kinds of UBW.

3. Immediate enforcement action normally will not be taken against new or existing unauthorized amenity features meeting the following criteria:

(a) there is genuine need for such features;

(b) the features are capable of performing the functions of improving the living or working environment;

(c) they are not excessive in size taking into account the functions they are expected to perform;

(d) the features are in a sound condition;

(e) they do not pose a threat to the safety and health of any third party;

(f) they consist of temporary light-weight materials; and

(g) they are not for living accommodation.

…

5.  Whilst the above guidelines are provided to facilitate staff in handling the unauthorized amenity features, Team Leaders are reminded to examine each case on its own merits before making a recommendation to apply the flexible approach.  Depending on the circumstances of each case and with due justification, the flexible approach may also be extended to other unauthorized amenity features.  In case of doubts, staff should consult the Unit Head and/or the Section Head.”

AUBW

37. There were and are disputes on whether AUBW fall within the categories of UBW targeted under Blitz 2010.  It is the case of BA that Types A and C fall under Item 1.10, whereas Type D falls under Item 1.4.

38. Further, BA maintains that the flexible approach set out in the Manual is not applicable to AUBW.  Firstly, only Type D can be treated with flexibility under the Manual.  Secondly, the Type D in question do not meet the criteria of the Manual (see para 3(d) and (e)) due to their dilapidated condition.

Decision

39. Having considered the material placed before it and after hearing the parties, the Tribunal came to the following findings:

“In conclusion, the Tribunal finds as follows:-

1. Structures A, C, D and E are building works and their respective prior written approvals should be obtained from the BA;

2. Structures A, C, D and E all fall within the actionable list[1] so immediate action is needed;

3. Structures A, C, D and E are not exempted under S. 41(3) of the Ordinance;

4.  The BA has no power to grant retrospective approval and consent to the Structures …”

40. The Tribunal was satisfied that no good cause had been shown for a full hearing and dismissed the applicants’ appeals of the Orders.

Grounds of Judicial Review

41. The applicants were represented at the hearing by Mr Kenneth CL Chan and Mr Roland Lau.  Five grounds have been advanced by Mr Chan to challenge the Decision:

(1)   Rigidity of the Enforcement Policy;

(2)   BA implemented the Enforcement Policy in an inflexible manner;  

(3)   Errors of law and/or fact;

(4)   The Tribunal failed to exercise its own independent discretion; and

(5)   The Tribunal had fettered its own discretion.

Role of the court in judicial review

42. The court has a limited role in judicial review proceedings concerning appeals from the Buildings Appeal Tribunal.  The Ordinance has entrusted the decision-making process to a particular tribunal, which comprises experienced persons.  The court does not sit as an appeal tribunal.  It exercises a supervisory function and should only intervene on public law grounds when it can be shown that the decision of the tribunal is unlawful, unfair or irrational – The Wing On Co, Ltd & Anr v Building Authority, CACV 168/1996, unrep, 14 November 1996at pp 2-3 per Sears J; Re Ho Mei Ling [2011] 6 HKC 1 at 20D per Lam J (as he then was); Technic Investment Co Ltd v Appeal Tribunal (Buildings) [2012] 3 HKLRD 245 at §56 per Lam J (as he then was).

43. I believe that it is logical for me to deal firstly with the alleged errors of law and/or fact.

Errors of law and/or fact?

44. There are 3 points in this part of Mr Chan’s submissions.  Firstly, it is said that the Tribunal had made an order for a consolidated hearing and that is contradictory with the conclusion that no good cause had been shown for holding a full hearing.  With respect, this point is not only without merit, it is quite unfair.

45. The order was stated in a letter from the Tribunal dated 24 February 2012:

“The Appeal Tribunal has made the following orders during the preliminary hearing of the captioned appeals held on 22 February 2012:

(a)  One consolidated hearing be set down for all the captioned appeal cases; …”

46. Although the order was formulated in terms which may suggest that there would be a consolidated hearing to be set down, when one examines the transcript of the preliminary hearing the true picture cannot be clearer.

47. At the outset of that hearing, Mr Ronald (a member of the 1^st applicants) who represented all the appellants applied for a consolidation order for all 9 cases, and the application was acceded to.  It clearly was a proper application by Mr Ronald because there had been no such consolidation and the hearing concerned 9 cases.

48. Two further points should be made at this juncture.  Firstly, it is clear from the transcript that the Tribunal was scrupulously fair to the appellants who were given proper opportunity to advance their case and to dispute that of BA. Secondly, although I was told by Mr Chan that Mr Ronald is not a lawyer, it appears from the material he produced in the course of the proceedings below and his conduct of the hearing that he is either legally trained or had the benefit of legal advice.

49. The purpose of the preliminary hearing was perfectly clear.  Mr Ronald said at the beginning of the hearing (after the consolidation order was made) that: “This preliminary hearing of nine cases … for the purpose of determining whether good cause has been shown … for holding a full hearing …”.

50. Towards the end of the hearing, further information was sought by the Tribunal from BA and the parties were given an opportunity to advance further submissions on such information with the appellants having the last words.  There was no mention of any consolidated hearing.  Indeed, Mr Chan accepted that apart from having a consolidation order made at the beginning of the hearing, there was no further mention of a consolidation order in the transcript.

51. As pointed out by Ms Wu who appeared for BA, none of the contemporaneous documents suggests that there was going to be a consolidated hearing after the preliminary hearing.

52. I have no doubt that the letter of the Tribunal (see para 45 above) sought to, inter alia, record the consolidation order made at the preliminary hearing.  This argument of the applicants seeks to capitalise on the unfortunate wording of the order.  There is no inconsistency between the consolidation order and the conclusion reached by the Tribunal on whether good cause had been shown for having a full hearing.  There is no merit in this complaint.

53. The second point made by the applicants is that the Tribunal erred in finding that AUBW fell within the actionable UBW under Blitz 2010.  It is argued that there was no clear and cogent evidence and the matters should go to a full hearing. A particular point was made in respect of Type D UBW because it was recorded in the Decision that “One Tribunal member finds that as to Structure D, it would be the best that the BA should have clear directives on the definition of ‘dilapidation’ ”.

54. The burden on the applicants is to satisfy this court that the finding of the Tribunal that AUBW were all within the actionable UBW is clearly wrong or irrational.  I do not begin to see how that finding is clearly wrong.  Quite the contrary, given the definitions for Items 1.4 and 1.10 and the benefit of the plans and photographs of AUBW, I believe that the finding is clearly correct.  Further, the dilapidated condition of the Type D UBW is clear from the photographs.

55. The third point of applicants concerns whether AUBW are exempted works within the meaning of s 41(3) of the Ordinance.  Mr Chan clarified at the hearing that his complaint is that the Tribunal had failed to provide proper reason for the finding that AUBW are not so exempted.

56. In the Decision, the Tribunal had identified the relevant authority on this issue – Mariner Intl Hotels Ltd, supra.  Although it is right to say that the Tribunal did not elaborate in the Decision on why the two requirements (see para 25 above) were not satisfied in relation to AUBW, it is reasonably clear from reading the same that the Tribunal took the view that the matter was plain and did not see the necessity for elaboration.  However, it should be noted that it was stated on pg 10 of the Decision:

“… Bearing in mind of purposive approach delivered by the Court of Final Appeal in Mariner International Hotels v Atlas Ltd (2007) 10 HKLRD 413, and all the documents submitted, the Tribunal has not been satisfied that the Structures fall under S. 41(3) of the Ordinance. …”

57. I am in no doubt that the matter was and is perfectly plain.  Type A UBW involve building a framed window structure on the flower bed which is an external feature of the Building.  Type C involve building a bay window on the fin which is also an external feature.  Type D are simply metal supporting structures for air-condition units attached to the external wall of the Building.  None of them can be regarded as having been carried out in the Building.  I see no merit in this complaint.

Is the Enforcement Policy rigid?

58. Mr Chan complains that the Enforcement Policy, properly understood, merely prioritises the enforcement action to be taken over UBW and such a policy frustrates the true object of s 24 of the Ordinance under which the BA has a discretion to refrain from issuing a demolition order.

59. The relevant part of the Decision (pg 8) states as follows:

“THE VALIDITY OF BA’S DECISION TO ISSUE THE SECTION 24(1) ORDERS

The main ground of appeal is that the BA’s decision to issue the Orders in an inflexible manner without considering the circumstances in each individual case. The Tribunal notes that [the Manual] provides a flexible approach for enforcement in handling unauthorised building works that can quality as amenity features.

However, the Tribunal is satisfied that, while the Manual is not applicable to Structure Types A and C, Structure Types D and E do not meet the relevant criteria therein:

(a) Structure Type D – This Structure is dilapidated.

(b) Structure Type E – This type is projecting from external walls and is wholly not permitted.

The conclusion is that the Tribunal cannot find that the BA had not exercised an [sic] flexible approach under the Manual and the BA’s decisions to issue the Orders are valid.”

60. First of all, I am unable to find any fault in the finding of the Tribunal that there was flexibility in the enforcement action taken by the BA.  In this regard, Ms Wu has rightly said that a list of non-actionable UBW had been provided under Blitz 2010:

“6.0 Non-actionable UBW

The following UBW will NOT be ordered to (sic) remove unless they are dilapidated and posting danger –

6.1. Advertising signs except item 1.13

6.2. A/C plant supporting frames projecting less than 600 mm

6.3. Supporting frames projecting less than 600 mm or radio base stations

6.4. Drying racks

6.5. Lightweight canopies projecting less than 500 mm

6.6. Acceptable amenity features

6.7. Single-storey rooftop and flat roof structures without projections except items 6.2 to 6.6

6.8. Single-storey structures erected on private lane, yard or open area unless included in other large-scale operation

6.9. Small cage outside window for genuine anti-burglary purpose

6.10.  Supporting frame of ventilation ducts for food business premises.”

61. There is no factual basis to support this part of the applicants’ case and it has no merit.

62. Much reliance has been placed by the applicants on the dicta of Silke JA in Quebostock, supra, at 476G:

“I differ, with respect, from the Trial Judge for I would hold the word ‘may’ in s24 does denote a discretion. It is not a matter of ‘all or nothing’. The Building Authority may make an order or it may not.”

63. In TechnicInvestment Co Ltd, supra, it was said by Lam J (as he then was):

“22. MrChan submitted that I was wrong in Sky Wide because according to the Court of Appeal in Quebostock Ltd v Building Authority [1986] HKLR 467, the BA has a discretion to withhold the issue of a demolition order against a UBW. If I had suggested that there were no discretion on the part of BA, I would be in error. In Quebostock Ltd v Building Authority Silke JA said at p476G,

…

23. His Lordship did continue to make the following remarks:

But it would seem quite wrong if s14 were contravened by the failure to either apply for an initial approval of plans or for the secondary approval to commence works, then the result could be that a fully erected building which has escaped the notice of the Building Authority could be ordered by him to be totally demolished without the provisions of the short and inexpensive appeal to the Appeals Tribunal under s43. Indeed if there be a duty it must be so ordered even if the Building Authority thought that the building was in every respect an admirable construction which contravened no other provision of the Ordinance nor any other zoning plan under any other Ordinance.

24.  These remarks, though entitled to respect as coming from an eminent judge in this jurisdiction, were not part of the ratio.  The issue before the Court of Appeal in Quebostock Ltd v Building Authority was whether the Building Authority had discretion not to order demolition as opposed to how the discretion should be exercised.  It would be wrong to read the case as establishing a legal proposition that it would not be a proper exercise of the discretion to order the demolition of a fully erected structure which in all other respects (apart from the failure to build in accordance with approved plans) comply with our building laws and regulations.”

64. The learned Judge went on to refer to Link Harvest Ltd v Wayhang Development Ltd [2001] 2 HKC 652 (a conveyancing action) where it was held by Recorder Edward Chan SC that, prima facie, one would expect BA to take enforcement action against UBW (at 680F-I).

65. In Building Authority v Appeal Tribunal (Building) [2005] 2 HKC 541, it was held by Chung J that there can be no legitimate expectation that an amnesty on enforcement action over UBW can be unqualified and irrevocable (at 552C-D).

66. In light of these authorities, I believe that the discretion given to BA under s 24 is circumscribed.  It cannot be exercised to defeat the purpose of the Ordinance.  Under the Ordinance, BA has the duty, inter alia, to protect the public from unsafe building works.  If the exercise of discretion means that UBW are retained, the decision must be justifiable.

Was the Enforcement Policy implemented in an inflexible manner?

67. With the benefit of hearing Mr Chan, this complaint can be boiled down to an allegation that BA should have invited the applicants to make representations before the Orders were issued.

68. As stated in paras 5 and 6 above, 2 letters were sent to the owners/occupiers of the Building before the Orders were issued.  Each of those letters provided for contact details in respect of any enquiries by the owners/occupiers.  The applicants were free to make enquiries with the Consultant or the BA, and to advance any reason why their UBW should be tolerated.  None of them has done so.

69. BA is expected to uphold the law and take enforcement action against UBW.  The applicants could not have been under any misunderstanding as to BA’s intention concerning their UBW.

70. Given the volume of UBW in Hong Kong and the fact that BA operates with limited resources, the complaint here is unreasonable and has no merit.

71. Apart from the lack of merit, this complaint is sterile.  There is no evidence to suggest that there is any unusual circumstances which may justify an exercise of discretion by BA to tolerate any of AUBW(Ihave taken into account the matters alleged in the Statement of Particulars filed by the applicants).  It should not be forgotten that judicial review remedy is discretionary.  The court may not grant relief simply because a fault can be found in the decision-making process under scrutiny if that fault is immaterial.  There ought to be some substance in the complaint.

The Tribunal’s own independent discretion

72. The final 2 complaints relate to the Tribunal’s own discretion under s 50(2) of the Ordinance and they can be dealt with together.

73. With respect, these complaints are misconceived.  The s 50(2) discretion only comes into play in the determination of an appeal after afull hearing. It is not triggered in a preliminary hearing held to ascertain if there is good cause to have a full hearing.  To demonstrate that, I shall set out the provisions of s 50 in full (the provisions of s 49 are also relevant and can be found in para 29 above):

“(1) The following shall apply in relation to the hearing and determination of an appeal or a preliminary hearing heldunder section 49-

(a) every question shall be determined by the opinion of the majority of the members of the Appeal Tribunal;

(b) where there is an equality of votes, the Chairman shall have a casting vote;

(c) the Appeal Tribunal may-

(i) receive and consider any oral, documentary or other evidence, (including any written statement),whether on oath, affirmation or otherwise, and whether or not it would be admissible in evidence in proceedings in a court;

(ii) by summons issued in the prescribed manner, require any person to attend before it at any hearing to give evidence or to produce any document;

(iii) administer oaths or affirmations;

(iv) examine on oath, affirmation or otherwise any person attending before it and require such person to answer any question put by or with the consent of the Tribunal.

(2) In determining an appeal, the Appeal Tribunal may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit.

74. It is quite plain from the above provisions that there is a discretion on the part of the Tribunal to have a preliminary hearing (s 49(1)). However, where good cause has not been shown, the appeal shall be dismissed by the Tribunal (s 49(2)).  The provisions of s 50(1) apply to both a full hearing and a preliminary hearing.  However, those of s 50(2) only apply to a determination of an appeal after full hearing.  This construction of s 50(2) is perfectly consistent with the provisions of s 49(2).

Conclusions

75. For these reasons, this application is dismissed with costs to BA to be taxed if not agreed.

76. I am grateful for the assistance of counsel in these matters.