LIEM HUNG AND OTHERS v. HKSAR

FAMC No. 29 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 554 OF 1999)

_____________________

________________________

DETERMINATION

________________________

Mr Justice Ching PJ:

1. These applicants are the registered owners of a house in the New Territories. It has three storeys and, just beyond the perimeter of the property, there is what the prosecution describes as a retaining wall. Although the wall is situated on unallocated government land it is not in dispute that its maintenance is the responsibility of the applicants. No plans now exist from which the method of construction of either the house or the wall can be ascertained but the latter is clearly constructed of masonry. The evidence shows that the use of masonry for retaining walls is now appreciated to be undesirable and the safety of those which already exist attracted the attention of the Building Authority. The Geotechnical Engineering Office commissioned Ove Arup and Partners Hong Kong Limited, to study and report on some of them, including the one in question. As a result of that report the Building Authority issued orders to the applicants under section 27A of the Buildings Ordinance, Cap. 123. Thereafter, summonses were issued against them for having failed to comply with the last order without reasonable excuse. The Magistrate convicted them and an appeal to the Court of First Instance (Mr Justice Woo J) was unsuccessful. Applications to the judge, for leave to appeal and for certification of questions of law said to be of great general or public importance were also dismissed. The applicants now make the same applications to this Committee.

2. Section 27A(1) provides that,

Section 27A(2) provides that,

Section 40(1B)(b) provides, in part, that,

There is no dispute that the orders were served.

3. There were two orders. The first was dated 14th June, 1996, and stated, amongst other things, that the Building Authority was of the opinion that

The applicants then retained an Authorised Person, Mr Choy Bing Wing, who made a visual inspection of the wall. He asked for and was eventually given a copy of the Ove Arup report. There followed some correspondence, rather unrestrained on his part, in which he claimed that the wall was safe. The Building Authority disagreed. On 12th May, 1997, a second order was issued superseding the first and it is with this that we are concerned. It was in the same words except for the dates within which work was to commence and to be completed and except that the words 'is ... liable to become ...' were substituted for the words '... has ... been rendered ....' As in the first order, the works required were,

Again correspondence ensued and again the differences between the parties were not resolved.

4. The four questions which the applicants said were questions of law of great general or public importance were set out in a document of three pages and put before the Court of First Instance. They were then amended and it is in its amended state that they were put before this Committee. The amended version is also of three pages and consists largely of arguments and assertions of fact, sometimes clearly erroneous, couched in language which is almost impossible to understand. There can be no excuse for this. If there are questions which are said to be questions of law of great general or public importance they should be readily apparent to those representing applicants who are applying for leave to appeal and they should be easily susceptible of a short and precise statement of the questions involved. In the present application we have had enormous difficulty in trying to understand what questions of law were being put forward and the prosecution was so misled that its written submissions were concentrated upon whether an applicant should be allowed to put forward to this Committee questions which were different from those put before the court below. Mr Cheung Wai Sun, DPGC, who appeared with Mr Simon Kwan, GC, for the prosecution before us stressed the point that it was wholly unsatisfactory that different questions should be put forward and asked us for a ruling. We agree that any such position would be unsatisfactory and we appreciate his arguments. In the end, it is a question of the importance of the questions, their relevance and the degree of the differences which are important although, as pointed out in argument, the applicant can generally expect little sympathy if he changes the questions. It would be inapposite to give any more than that indication in the present application.

5. The first of the questions seems to be whether or not the wall in question was 'an earth retaining structure' at all. Regulation 64 of the Building (Construction) Regulations defines 'retaining wall' as being

This is as clear as it can be. No point was taken by Mr Choy Bing Wing in his correspondence that it was not a retaining wall and, indeed, he refers to it as such in that correspondence. The argument put before us was that a part of the wall had a void behind it. There was no evidence that this would make the rest of it any the less a retaining wall. In any event the argument raises no question of law.

6. The second question appears to be whether or not the judge at First Instance had dismissed the appeal upon a finding of fact which he himself made and with which the applicants had had no opportunity to deal. If he that is what he did, it is clear that he should not have done so and there is no question of great general or public importance involved. In any event the question seems to have been put forward as a result of a misunderstanding of the Buildings Ordinance. We do not agree with Mr Justice Woo J that the possible danger represented by a wall such as this must have been caused by an occurrence after it had been built. We also consider that simple deterioration or, in the appropriate case, a defect in design or construction would bring the matter within section 27A. When building works have been completed, such as in the present case, it is not possible to inspect anything but the surfaces. Any attempt to determine the safety of the structure is made more difficult if the plans no longer exist. Where, as here, the structure is a masonry retaining wall unsuited to its purpose it is important that its condition should be monitored. Smaller signs of deterioration may assume a greater importance. Section 27A(1) and (2) provides that where the Building Authority is of the opinion that the wall is liable to become dangerous it may require certain investigations to be carried out and for proposed remedial works, if any, to be submitted. In the present case the second order of the Building Authority did just that. Having regard to the report of Ove Arup it formed the opinion that the wall was liable to become dangerous and required that it be investigated. Part of the evidence was that cracking in the pointing had occurred. There was ample other evidence of deterioration but that was the one point singled out by the judge. He could have recited all of the signs of deterioration or perhaps have cited a better example.

7. The magistrate took the view that her court was not the proper forum in which arguments as to technical matters and the actual possibility of the wall becoming dangerous were to be decided. Section 44 of the Buildings Ordinance contains provisions for any person aggrieved by a decision of the Building Authority to appeal to the Appeal Tribunal Panel. That was not done in the present case. The judge at first instance did not see any reason why a challenge to the validity of an order on the grounds that it had not been issued in full compliance with the requirements of section 27A cannot be raised in criminal proceedings brought for non-compliance with the order. We are not to be taken as agreeing with that proposition in its full width. It may well be that where it can be clearly shown that the Building Authority has acted ultra vires, maliciously or unreasonably, or upon a mistaken factual basis, the validity of the order can and should be raised in the magistrates' court. This was not such a case. This was a case where the matter should have been taken to the Appeal Tribunal Panel.

8. The third and fourth questions may be taken together. They appear to allege that the applicants had taken all reasonable steps to comply with the order by appointing Mr Choy Bing Wing, by excavating behind the wall to expose the void and by, so it is said, considering an unnamed decision in the House of Lords. It is enough to say that they knew that no appeal had been lodged under section 44, that they knew that none of the investigative works ordered by the Building Authority had been done and that they chose to rely upon the opinion of Mr Choy Bing Wing and not to have those works done. There is nothing in this point which raises a question of great general or public importance.

9. It is unnecessary to deal with the argument that the applicants have suffered a grave and substantial injustice. The same points were raised and there is nothing in them.

10. This application is dismissed with costs.