李滿堯 v. 屋宇署建築事務監督

CACV 589/2018

[2020] HKCA 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 589 OF 2018

(ON APPEAL FROM HCAL 594 of 2018)

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BETWEEN

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(ON APPEAL FROM HCAL 599 of 2018)

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BETWEEN

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(Heard together)

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J U D G M E N T[1]

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Hon Au JA (giving the judgment of the court):

A. Introduction

1.  This case concerns two applications (“the Two Applications”) for leave to apply for judicial review of a number of decisions by the Appeal Tribunal (Buildings) (“the BAT”) dismissing the applicants’ respective appeals against various building orders:

(1) HCAL 594/2018 (Mr Lee as the applicant) concerns certain unauthorized building works on Portion C10 of the Roof of Wing Hing Industrial Building (Rear Block), 14 Hing Yip Street, Kowloon (“Property 1”).

(2) HCAL 599/2018 (Madam Tsoi as the applicant) relates to two items of unauthorized building works on Factory C4 on 13/F, Wing Hing Industrial Building (Rear Block), 14 Hing Yip Street, Kowloon (“Property 2”) and Portion C4 of the Main Roof of Wing Hing Industrial Building (Rear Block), 14 Hing Yip Street, Kowloon (“Property 3”) respectively.

2.  The Two Applications were heard together by Chow J (“the Judge”) on 22 November 2018.  By way of his judgment dated 5 December 2018 (“the Judgment”), the Judge dismissed both of them.

3.  On 18 December 2018, Mr Lam Chit Man (“Mr Lam”) filed and signed a Notice of Appeal (“the NOA”) under this appeal, seeking to appeal the Judgment.  In the NOA, Mr Lam claimed he is the authorized representative of the applicants.  Annex D to the NOA is a purported authorization by Madam Tsoi (“the Purported Authorization”) in respect of certain dealings of Properties 2 and 3, contained in a statutory declaration of 27 December 2007.

4.  Apparently, Mr Lam also appeared before the Judge seeking to address the court for and on behalf of both applicants. He also made the application for leave to apply for judicial review under HCAL 599/2018 purportedly on behalf of Madam Tsoi.  Although the Judge heard Mr Lam on a de bene esse basis, he finally concluded that Mr Lam was not permitted to represent or make submission on behalf of Mr Lee, and that he also did not have locus to apply for leave for judicial review for Madam Tsoi.

5.  The Judge explained this in the Judgment at [12], [20] - [21] as follows:

“12. There is one other matter that I should deal with. Although Mr Lee [under HCAL 594/2018] appeared in person at the hearing, he requested that Mr Lam Chit Man (‘Mr Lam’) should be permitted to make oral submissions on his behalf. This request was objected to by Ms Chan, Government Counsel, on behalf of the Building Authority. The court heard Mr Lam (on a de bene esse basis), and informed the parties that it would deal with the question of whether Mr Lam ought to be permitted to make submissions on behalf of Mr Lee in the judgment to be handed down in due course. At the hearing, Mr Lee informed the court that the affirmations and written submissions filed in these proceedings were prepared by Mr Lam, and he adopted the contents of those documents in support of his application. There is no evidence to show that Mr Lam possesses any special knowledge, training or expertise which would make it appropriate for him to be permitted to make submissions on behalf of Mr Lee. Also, the submissions that Mr Lam in fact made add nothing of substance to what has already been stated in the affirmations and submissions. Overall, there is no good reason why Mr Lam should be permitted to represent, or make submissions, on behalf of Mr Lee at the hearing. In any event, having considered such submissions as were made by Mr Lam, I do not consider that any reasonable grounds for judicial review have been disclosed in Mr Lee’s application.

…

20. Mr Lam, purportedly as the authorised representative of Madam Choy [Madam Tsoi], made an application for leave to apply for judicial review of the BAT’s decisions [under HCAL 599/2018] by filing (i) a Form 86 dated 10 April 2018 which was signed by him only, and (ii) an affirmation made by him on 9 April 2018. Madam Choy did not appear at the hearing on 22 November 2018. Instead, Mr Lam appeared at the hearing purportedly as Madam Choy’s authorised representative.

21. In my view, Mr Lam ought, strictly speaking, to be regarded as the applicant for the purpose of the application in HCAL 599/2018. It is, however, questionable whether he has any standing to make the application.  From what Mr Lam said at the hearing, it would appear that he was formerly the husband of Madam Choy, and has since the date of the building orders become the registered owner of Property 2 and Property 3.  It is not necessary to resolve the question of standing in the instant case because I consider the BAT’s decisions mentioned in paragraph 17 and 19 above to be correct in law.  None of the matters raised by Mr Lam gives rise to any arguable ground of judicial review against the BAT’s decisions.”

6.  On 4 January 2019, the Registrar of Civil Appeals (“the Registrar”) made various observations and gave the following directions (among others) in respect of the NOA:

(1) The NOA was signed by Mr Lam who, however, is not the party to HCAL 594/2018 or HCAL 599/2018.

(2) Also, the appeals from these separate proceedings were sought to be lodged using the same NOA under the same appeal number.  This is procedurally improper.

(3) For these reasons, the party should file two sets of written submissions to the court by 28 January 2019 as to why the court should not strike out the NOA.

7.  On 21 January 2019, Mr Lam filed written submissions purportedly on behalf of the applicants to say why the NOA should not be struck out.

8.  First, Mr Lam says he is properly authorized by the applicants to represent them to sign and file the NOA and appear at the appeal.  This is supported by the following:

(1) The Purported Authorization.

(2) The NOA was served on the representative of the Department of Justice who represents the putative respondent but it has not objected to Mr Lam filing the NOA for the applicants.  Further, as no reply was filed within the time limit of 14 days, judgment should be entered in favour of the applicants pursuant to Order 13A, rule 2 of the Rules of the High Court, Cap 4A.

(3) The Purported Authorization complies with the requirements stipulated under the Powers of Attorney Ordinance, (Cap 31) and section 3(1)(c) of the Enduring Powers of Attorney Ordinance (Cap 501).

(4) No counter argument was ever raised in the decision of the BAT, the respondent’s affirmation or written submissions.  The Judge also failed to deny the legality of the Purported Authorization.

9.  Second, and in any event, Mr Lam submits he has since the date of the building orders become the registered owner of Properties 2 and 3[2].  In the premises, even if the Purported Authorization is invalid, Mr Lam can be the applicant for the purpose of the application in HCAL 599/2018 without any authorization.

10.  As to the Registrar’s point that it is procedurally incorrect for the appeals from the Judgment relating to the Two Applications to be brought under one appeal, Mr Lam contends that the Two Applications arose from the orders issued by the Building Authority on the same day, so Mr Lam filed a summons for the hearings to be heard together.  The Judge agreed to do so and handed down one Judgment.  If there is any procedural impropriety, it is caused by the court.

11.  It is pertinent to note that Mr Lam apparently accepts in the written submissions that he has not got any authorization from Mr Lee as he became ill after being “scared” by the Judge at the hearing.  Hence, Mr Lee can only sign the NOA when he recovers from the illness later.  Mr Lam however says even if the appeal from HCAL 594/2018 cannot proceed because of that, there is no reason why the appeal from HCAL 599/2018, where he has been properly authorized by Madam Tsoi, is not valid and cannot go ahead.

B. Discussion

12.  In our view, the NOA should be struck out for the following reasons.

13.  The essential question as to whether the NOA is invalid and should be struck out is dependent fundamentally on whether Mr Lam can purport to “represent” the applicants to file the NOA to bring the appeal against the Judgment.  It is clear that he cannot.

14.  First, Mr Lam is not the applicant under either HCAL 594/2018 or HCAL 599/2018.  He, not being a party to the Two Applications, therefore has no locus to bring any appeal from the Judgment.

15.  Mr Lam claims he has been properly authorised by the applicants (or at least Madam Tsoi) to file the NOA for them to bring the appeal.

16.  However, Order 5, rule 6(1) of the Rules of the High Court governs who and in what circumstances a party can authorise someone else to represent him in bringing and carrying on proceedings.  Relevantly, it provides:

“Subject to paragraph (2) and to Order 80, rule 2, any person (whether or not he sues as a trustee or personal representative, or in any other representative capacity) may begin and carry on proceedings in the High Court by a solicitor or in person.”

17.  Paragraph (2) of Order 5, rule 6 deals with the situation of a body corporation.  The applicants are clearly not body corporations so this exception is irrelevant to our discussion.

18.  Order 80, rule 2 deals with the situation of a person with disability who must be represented by a next friend or guardian.  This is also not the case for the applicants.

19.  Mr Lam is not a solicitor.  Hence, the applicants cannot authorise him to begin or carry on any proceedings.

20.  Is Mr Lam acting as a trustee or personal representative, or in any other representative capacity as permitted under Order 5, rule 6(1) to begin or carry on the proceedings?

21.  In this respect, although the phrase “any other representative capacity” is not defined under Order 5, rule 6(1), properly construed, it clearly means such capacity as permitted by the pertinent Rules of the High Court (for examples, Representative parties with same interests (Order 15, rule 12); Representation of interested persons who cannot be ascertained (Order 15, rule 13); Representation of beneficiaries by trustees, executors or administration (Order 15, rule 14); Representation of deceased person interested in proceedings (Order 15, rule 15)).

22.  It is for Mr Lam to state clearly and precisely, and to satisfy the court, in which such permitted capacity he acts in seeking to sign and file the NOA “on behalf of” the applicants.  See: Shing Hai Doing v Genius Knitting Factory Ltd [1978] HKLR 305 per Mr Commissioner Liu QC (as he then was).

23.  Mr Lam has not done so.  On this basis alone, he fails to satisfy the court that he can sign and issue the NOA to file the appeal on behalf of the applicants.

24.  In any event, the court also cannot see how he falls within any of those permitted representative capacities as provided in the Rules of the High Court.

25.  In the premises, Mr Lam does not fall within any of the permitted categories to represent any of the applicants to begin or carry on these proceedings, including this appeal by signing and filing the NOA.

26.  For the same reasons, all the contentions advanced by Mr Lam to oppose the striking out are without substance:

(1) The question whether Mr Lam is permitted by the rules to issue and file the NOA on behalf of the applicants is a question of law.  Whether or not the putative respondent has taken a positive step to oppose it is neither here nor there.  As concluded above, he is not permitted to do so.  The appeal is invalidly brought and void ab initio.

(2) It is therefore also plain that Mr Lam cannot be properly authorised by Madam Tsoi through the Purported Authorization to issue the NOA, as Mr Lam is not permitted by the rules to so act.

(3) Further, even if Mr Lam has become the registered owner of Properties 2 and 3, that is neither here nor there.  HCAL 599/2018 sought to challenge the BAT’s decision and the appeal before the BAT was brought by Madam Tsoi herself, although Mr Lam purported to be her representative.  In other words, the principal in that appeal was Madam Tsoi, not Mr Lam (even if he had become the registered owner).

(4) It is again neither here nor there as to whether the argument on the validity of the purported authorization was raised at the BAT.  The question we are concerned with here is whether Mr Lam has proper capacity permitted by the rules to bring this appeal by signing and issuing the NOA purportedly on behalf of the applicants.  In any event, as mentioned above, the Judge has indeed expressly concluded at [20] - [22] of the Judgment that Mr Lam cannot represent Madam Tsoi as an applicant to bring her judicial review leave application or make submissions on her behalf.

(5) Finally concerning the Registrar’s observation on procedural irregularity, Mr Lam’s submission is also without merits.  The Judge has as a matter of case management allowed the two judicial review leave applications to be heard together.  He handed down one Judgment but at paragraph 1 made it clear that he was dealing with two separate applications.  That does not make the Two Applications under separate proceedings one single proceeding.  In the premises, the Registrar is entirely correct to say that if appeals have to be brought in relation to the Two Applications, they have to be made under two separate appeals.

27.  In the premises, Mr Lam is not entitled to bring this appeal by signing and issuing the NOA purportedly on behalf of the applicants.

C.      Disposition

28.  The appeal is therefore invalidly brought and is invalid ab initio.  We will strike out the NOA and the appeal.

29.  Given that the appeal is plainly invalid, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, we further direct that Mr Lam or the applicants are not entitled to seek an oral hearing inter partes of this striking out determination.