BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 14/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 14 OF 2014
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JUDGMENT
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A. INTRODUCTION

1. This is the application by the Building Authority (“the BA”) to judicially review the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 13 November 2013.

2. By way of the Decision, the Tribunal by majority allowed the appeal by Mr Yu (the interested party) and set aside the Dangerous Hillside Order (“the DH Order”) issued by BA to Mr Yu on 17 October 2008.  The DH Order is in relation to a feature located adjacent to Lot Nos 556 and 577 in DD 185.  I will refer to Lot Nos 556 and 557 conveniently as “the Lots”.

3. In this judicial review, the BA seeks an order to quash the Decision and remit the appeal to the Tribunal for reconsideration.

4. As I will explain later, the judicial review turns on what is the proper construction of the meaning of the word “appertain” contained in the relevant Government leases relating to the Lots.[1]

B. BACKGROUND

B1. The Lots and the relevant Government leases

5. Mr Yu is the owner of Lot No 556 and one of the trustees of Lot No 557.  The Lots were respectively subject to New Grant No 8481 and New Grant No 8482 (collectively “the Government Leases”).  As identified by the Tribunal at paragraph 6 of the Decision, the Government Leases were deemed to have incorporated all the terms and conditions contained in Schedule B provided in the gazetted Government Notification No 364 of 1954.

6. One of these conditions is condition 6 of Schedule B (“Condition 6”).  For the present purposes and the purposes of the appeal, Condition 6 provides relevantly as follows:

“6. … And also that the Lessee shall and will from time to time, and at all times when, where, and as often as need or occasion shall be and require, at his or her and their proper costs and charges, well and sufficiently Repair, Uphold, Support, Maintain, Pave, Purge, Scour, Cleanse, Empty, Amend and Keep the messuage or tenement, and all other erections and buildings at any time standing upon the said premises and all the Walls, Banks, Cuttings Hedges, Ditches, Rails, Lights, Pavements, Privies, Sinks, Drains, and Water-courses thereunto belonging and which shall in any wise belong or appertain unto the same, in, by, and with all and all manner of needful and necessary reparations, cleansing and amendments whatsoever, the whole to be done to the satisfaction of the District Officer. And the said messuage or tenement, erections, buildings and premises, being so well and sufficiently repaired, sustained and amended, at the end or sooner determination of the term granted shall and will peaceably and quietly deliver up to His said Majesty. And also that the Lessee shall and will during the term granted as often as need shall require bear pay and allow a reasonable share and proportion for and towards the costs and charges of making building, repairing and amending all or any roads, pavements, channels, fences and party walls, draughts private or public sewers and drains requisite for or in or belonging to the said premises...” (emphasis added)

7. Condition 6 is also generally referred to as the General Maintenance Condition (“the GMC”).  I will use these terms inter-changeably in this judgment.

B2. The issue of the DH Order and the appeal

8. It was BA’s view that there is a Feature No 7SW-B/C726 (“the Feature”) adjacent to No 192 Pai Tau Village (“House No 192”), Shatin, which is in turn adjacent to the Lots, that was liable to become so dangerous that it would or likely to collapse thereby causing or likely to cause a risk of injury to persons or damage to property.

9. The Feature is a soil cut slope in L-shape facing southwest with the length of 40m, a maximum height of 14m and a slope angles between 45-70°.  House No 192 is located near the toe of the Feature.  There are also three other cottages at the Feature toe, of which two are on the west and one is on the east of the Feature.  Beyond the crest of the Feature is a vegetated natural hillside.

10. It is common ground that the Feature is not located within the Lots but lies within Government land adjacent to the Lots.

11. Under section 27A of the Buildings Ordinance (Cap 123) (“the BO”),[2] the BA may effectively order a person to maintain and repair the Features if he is a person who, under the terms of a Government lease, is under such an obligation to do so.

12. It is the BA’s position that Mr Yu as the lessee is obliged under the Government Leases to maintain and repair the Feature.  Thus, in the exercise of its power under section 27A of the BO, the BA issued the DH Order to Mr Yu to require him to do so.

13. Dissatisfied with the DH Order, Mr Yu appealed to the Tribunal the BA’s decision to issue the same.

14. Although he did not challenge the dangerousness of the Feature, Mr Yu argued in the appeal that, as a matter of construction, he was not liable under the GMC to maintain the Feature which falls on Government land and outside the Lots.

15. On this construction ground, the BA on the other hand contended that the Feature is one of those features that is “in any wise … appertain unto” the Lots or the buildings or erections erected on the Lots as provided in Condition 6.  As such, Mr Yu had an obligation to maintain it.

16. Other than the construction ground, Mr Yu also argued in the appeal that he should not be responsible for maintaining and repairing the Feature because (a) the Feature was cut by the Government and therefore the Government should be responsible for its maintenance; (b) there was another nearby feature (Feature 7SW-B/R7) on Government land which was cut and made by the owner of the adjoining lot whereby the Government had taken up the maintenance responsibility; and (c) the Government had previously assumed maintenance responsibility towards Section 3 of the Feature (ie, Feature 7SW-B/726(3)) (collectively, “the Other Grounds of Appeal”).

17. The Tribunal heard evidence from both the BA and Mr Yu in respect of all of the grounds raised in the appeal.

B3. The Decision

18. As mentioned above, one of the grounds of appeal related to the construction of the GMC as to whether, on a proper construction, Mr Yu has an obligation to maintain and repair the Feature which lies outside the Lots.

19. Central to that ground was the contentions relating to what is the proper meaning of the word “appertain” in the following part of the GMC:

“…And also that the Lessee shall … sufficiently Repair … the messuage or tenement, and all other erections and buildings at any time standing upon the said premises and all the Walls, Banks, Cuttings Hedges, Ditches, Rails, Lights, Pavements, Privies, Sinks, Drains, and Water-courses thereunto belonging and which shall in any wise belong or appertain unto the same,…” (emphasis added)

20. For this question, the Tribunal by a majority of two to one came to the conclusion that, as a matter of construction, (a) the word “appertain” bore the same meaning as the word “belong”; and (b) that meaning only refers to features that are located within the lot granted under the relevant Government lease.  In coming to this conclusion, the Tribunal agreed with and followed the majority decision of another Tribunal in Building Appeal Case No 368 of 2005 (“the Savoy Case”) dated 16 August 2011.  The Tribunal was also of the view that the gazetted Chinese translation version of the GMC supported this construction.

21. The Tribunal explained these conclusions at paragraphs 31 and 35 - 42 of the Decision as follows:

“31. 在「夏蕙苑」一案中 [ie, the Savoy Case]，三位委員接納上訴人就 ‘appertain’ 一詞的詮釋，他們參考上訴人所援引的 Barlow V Rhodes (一個1833年刊於 S. C. 3 Tyr. 280 的案例) 認為 ‘appertain’ 與 ‘belong’為同義詞，而 ‘belong’，只包括在範圍內的事物，因此在地段範圍以外的都不屬於 ‘belonging or appertaining to the lot owners’ (見「夏蕙苑」一案M46至M64段)。

…

審裁小組的結論

35. 本審裁小組以二比一的比數認為上訴人並沒有責任維修該斜坡。

36. 周幹文委員接納建築事務監督於上文第24至34段的論點，而其他二位委員則作以下裁決。

37. 建築事務監督引述 The Shorter Oxford English Dictionary (第三版)，建築物上訴審裁小組案件編號49-2009第10段及建築物上訴審裁小組案件編號50-2009第10段中 ‘appertain’ 一詞可包括的範圍延伸至該等地段以外的地方。

38. ‘Appertain’ 在字典中的不同詮釋，有着其參考的作用，但不能決定性地說出其中的某個詮釋適用於《一般保養條款》中。建築事務監督必須有其他的理據來支持上述的論點。

39. 建築物上訴審裁小組案件編號49及50-2009於本案件沒有參考價值，原因如下：

(a) 該兩案件的判詞中顯示 ‘appertain’ 一詞的詮釋沒有充份的辯論；

(b) 上訴人沒有律師代表；

(c) 契約條款中引用的條文與本案件中的條文不同；及

(d) 沒有考慮到覆蓋的範圍。

40. 建築事務監督同意「夏蕙苑」一案的《一般保養條款》與本案的關鍵字眼是相同的。但建築事務監督不同意該案中三位案員的結論，並於上文第32段列出其理據。

41. 建築事務監督所提的理據並不充份，原因如下：

(a) Barlow V Rhodes 一案中明確地及具體地詮釋 ‘appertain’ 一詞；

(b) Jumbo King Ltd V Faith Properties Ltd & Others 及 Chitty on Contract指出法庭須要考慮所有情況去客觀、理性及合理地確立雙方的立約原意。這概括的指引並沒有抵觸 Barlow V Rhodes 對 ‘appertain’ 的詮釋。本審裁小組認為立約雙方在不清楚自己的責任範圍而立約，才不是雙的立約原意；及

(c) 詮釋政府地契的原則也不適用於本案件。建築事務監督引用的案例是政府授予一個人特權，權利及酬金時引用字眼的詮釋，而本案件所牽涉的事實是責任誰屬的詮釋。

42. 再者，上文第10段乙表第6條有關部份刊憲之中文譯本清楚顯示保養範圍不包括毗鄰該地段的該斜坡。雖然建築事務監督認為刊憲的中文譯本未能反映其英文版本全意而另外提供其譯本，本審裁小組不同意建築事務監督其譯本關於擴大保養範圍部份。縱使刊憲的中文譯本未能完全反映其英文版本全意，也有着有說服力的參考作用。”

22. In light of its conclusion on the construction point, and given that the Feature lies outside the Lots, the Tribunal therefore further concluded that Mr Yu had no obligation under Condition 6 to maintain or repair the Feature and allowed the appeal.

23. With this result on construction, the Tribunal then found it unnecessary to deal with the Other Grounds of Appeal or any of the evidence advanced in the appeal.  In other words, the Tribunal did not make any findings on the evidence adduced or determine any of the Other Grounds of Appeal.  See paragraphs 43 and 45 of the Decision.

C. THIS JUDICIAL REVIEW

C1. Grounds of judicial review

24. The BA raises three grounds of judicial review.  They are all related to the Tribunal’s reasons in coming to its conclusion on the construction of the GMC.  These grounds have been summarised by Ms Ng for the BA as follows:

(1) The Tribunal erred in law in its construction of the GMC.

(2) The Tribunal erred in law by not applying the proper and well-established principle of construction of Government leases.

(3) The Tribunal erred in law in considering the gazetted Chinese version of GMC as a persuasive reference in the proper construction of GMC.

25. I will look at these grounds in turn.[3]

C2. Ground 1 – proper construction of the word “appertain” in the GMC

26. Construction of an agreement or deed is a question of law.

27. Under this ground, Ms Ng submits that the ordinary dictionary meaning of the word “appertain” means “to belong, or be suited, proper or appropriate to, or to pertain, relate”.  See: The Shorter Oxford English Dictionary (3^rd ed).

28. Counsel further submits that as the subject sentence in the GMC says “…belong or appertain unto the same”, the parties must have intended the word “appertain” in the GMC to have a meaning other than “belong” as, otherwise, the word “appertain” would have added nothing to the word “belong” and is superfluous.  Given the general rule of presumption against redundant words,[4] Ms Ng contends that the proper meaning of “appertain” should therefore be “to relate”, which is both consistent with its ordinary and natural meaning, and is different from the meaning of the word “belong”.

29. Ms Ng then further submits that the Feature falls within the meaning of “…appertain unto the same” as it is “related” to the Lots or the Lot’s buildings and structures if it can be shown on the evidence that the Feature is:

(1) indispensible to the construction of the buildings of the Lots; and/or

(2) essential to the survival of the buildings and structures on the Lots.

30. Counsel also contends that the Tribunal’s reliance on the Savoy Case, which in turn relied on the case of Barlow v Rhodes (SC 3 Tyr 280) (1883) 1 C & M 439 at 475, to support its construction is erroneous.  She argues that Barlow can be distinguished on the basis that it was concerned with the word “appertain” contained in a conveyance agreement, while the present case is about a maintenance clause.  It is readily understandable, says Ms Ng, why the court would adopt a more restrictive construction of a clause in a conveyance, as it is concerned with the passing of title to properties.  But there is no justification for the same restrictive approach to be adopted for a maintenance clause.

31. Ms Ng therefore says the Tribunal committed an error of law in following Barlow.

32. With respect to Ms Ng, I am unable to agree that Barlow is distinguishable as contended.

33. In Barlow, the plaintiff (who was owner of Lot A) claimed against the defendants, who were owners of Lot B, for trespass.  A question raised in one of the defences was whether there was a relevant right of way passed to the predecessor owner of Lot B under the general words in the relevant deed “belonging or in any way appertaining.”

34. Lord Lynhurst, CB concluded that it could not.  His Lordship was of the view that the usual legal meaning of the word “appertaining” should be adopted, which was to mean the same as “belonging”.  He was also of the view that nothing in the circumstances of the conveyance shows that a wider meaning was intended.  The learned CB explained as follows (at p 475):

“The question in this case turns on the meaning of the words ‘appertaining,’ and ‘belonging.’ The messuage is conveyed, ‘together with all ways, roads, rights of road, paths and passages to the said hereby demised premises, or any part thereof, belonging or in anywise appertaining.’ The word ‘belonging,’ and the word ‘appertaining,’ I consider to be, as here used, synonymous; and it is quite clear, that the way which is claimed is not appurtenant to the messuage, in the ordinary legal sense of the word ‘appurtenant.’ From the case of Morris v. Edgington, it should appear that the word may receive a more extensive construction where you collect from the deed itself that such was the meaning of the parties; and, looking merely at the deed itself in that case, it was quite clear that the parties there did not intend to use the word in its strict legal sense. There is nothing, however, in the conveyance in the present case, from which I can collect that the parties have intended to use the words in other than their usual legal meaning. It has been urged upon us, that we may look at the plan which accompanied the particulars of sale. Now, without deciding whether or no we can look at the plan for the purpose of enabling us to give a different construction to these words, it is sufficient for me to say, that, looking at the deed and plan together, I am not satisfied that the words were intended to be used in any other that their ordinary legal sense. As I am not satisfied that the parties used these words in any other sense, I conceive myself bound to give them their ordinary legal meaning; and I am, therefore, of opinion, that the defendant did not make out his justification, and, consequently, that this rule should be discharged.”

35. The other members of the court[5] agreed with Lord Lynhurst.

36. I do not think this case can be distinguished from the present case as contended by Ms Ng for the following reasons.

37. First, Conditions 2 and 3 of Schedule B, which are also deemed to have been incorporated to the Government Leases, dealt with the conveyance of the Lots.  They also contain the words “appertaining” as follows:

“2. There shall except where otherwise stated be included in every Grant of ground all messuages, erections and buildings thereon, and all the easements and appurtenances whatsoever to the said premises belonging, or in any wise appertaining thereto.

…

4. Every grant shall be subject to all existing Public or Private rights and easements in, over, along through or under the said premises or in any wise appertaining thereto.” (emphasis added)

38. The same word “appertain” or “appertaining” should carry the same meaning in the Government Leases whether it is in Conditions 2, 4 or 6.  In the premises, the same usual and ordinary legal meaning of the word “appertain” as explained in Barlow concerning a conveyance would apply to Conditions 2 and 4, which should therefore also apply to Condition 6.

39. Second, the reasons underlining the Barlow decision are that it was the usual legal meaning of “appertain” to mean “belong”.  There is no suggestion that this usual and ordinary meaning is only limited to cases concerning conveyancing.

40. Third, and in any event, even in the dictionary meaning relied on by the BA, “appertain” could also mean “to belong”.

41. I therefore do not accept Ms Ng’s submissions that the Tribunal erred in law in following Barlow on the construction of the meaning of “appertain” to mean the same as “belong”.

42. As to Ms Ng’s reliance on the presumption against redundant words, it must be noted that this presumption is regarded as “particularly weak” in construing conveyancing documents.  This is so as it has been observed that a “torrential” style of drafting has been traditional for many years in certain types of documents, such as leases.  In such cases, the court cannot insist on giving each word in a series a distinct meaning because draftsmen frequently use many words either because it is traditional to do so or out of a sense of caution so that nothing which could conceivably fall within the general concept which they have in mind should be left out.[6]  As observed by Hoffmann J (as he then was) in Tea Trade Properties Ltd v CIN Properties Ltd [1990] 1 EGLR 155 at 158:

“I have never found the presumption against superfluous language particularly useful in the construction of leases. The draftsmen traditionally employ linguistic overkill and try to obliterate the conceptual target by using a number of phrases expressing more or less the same idea.”

43. I therefore do not think the general rule of presumption against redundancy assists Ms Ng.  The GMC is a clause in the Government Leases, which obviously adopted a traditional drafting style.  It should be noted that Schedule B containing these conditions was gazetted in 1954.  I am further comforted to see that in Barlow, the court also had no difficulty in concluding that the word “appertaining” bore the same meaning as “belonging”, which was also used in the same clause in the subject deed.

44. For these reasons, I do not accept that the Tribunal committed errors of law in concluding that the meaning of “appertain” in the GMC was the same as “belong”.

45. However, that is not the end of the matter.

46. As I mentioned above, the Tribunal after concluding that “appertain” means the same as “belong”, it also further concluded (in adopting the majority decision in the Savoy Case) that this meaning refers only to features that are located within the Lots.  See paragraph 31 of the Decision.

47. With respect to the Tribunal, I do not think this is correct as a matter of construction.

48. The relevant part of Condition 6 is:

“… And also that the Lessee shall and will from time to time, … Repair, Uphold, Support, Maintain, Pave, Purge, Scour, Cleanse, Empty, Amend and Keep the messuage or tenement, and all other erections and buildings at any time standing upon the said premises and all the Walls, Banks, Cuttings Hedges, Ditches, Rails, Lights, Pavements, Privies, Sinks, Drains, and Water-courses thereunto belonging and which shall in any wise belong or appertain into the same, …” (emphasis added)

49. In other words, under Condition 6, Mr Yu (as the lessee) has an obligation to maintain and repair:

(1) The Lots being “the messuage or tenement”;

(2) “All other erections and buildings standing on” the Lots; and

(3) “All the Walls, Banks, Cuttings Hedges, Ditches, Rails, Lights, Pavements, Privies, Sinks” that “belong or appertain unto” the Lots and/or all other erections and building standing on the Lots.

50. Even if “appertain” means “belong” in this part of the GMC, I do not think it means (as the Tribunal concluded) that it refers only to “Walls, Banks, Cuttings Hedges, Ditches, Rails, Lights, Pavements, Privies, Sinks, Drains, and Water-courses” that fall or lie within the Lots.

51. The word “belong” bears an ordinary and natural meaning of “be rightly assigned or appropriate to as an adjunct” or “pertain or relate to” or “be connected as a member, part, inhabitant, dependency etc”.  See The New Shorter Oxford English Dictionary.  Thus, something would be regarded as belonging to a principal matter if it is part and parcel of the principal matter by being, say, substantially connected to or dependent on the principal matter.

52. Adopting this natural and ordinary meaning and understood in the context of Condition 6, the “Walls, Banks, Cuttings Hedges, Ditches, Rails, Lights, Pavements, Privies, Sinks, Drains, and Water-courses” that are “in any wise belong or appertain into the same” would include not only those that are located within the Lots, but also those which can be regarded as part and parcel of the Lots and/or the “erections and buildings at any time standing upon” the Lots.  If they can be so regarded, they “belong or appertain” to the Lots or the erection and buildings standing on the Lots even if these features are located outside the Lots.

53. Whether any such features under consideration can be regarded as part and parcel of the Lots or the “erections and buildings at any time standing upon” the Lots is a matter of evidence to be assessed on a case by case basis.  The court in this judicial review cannot and should not attempt to give an exhaustive list of circumstances that would satisfy that.

54. However, in my view, if it can be shown by evidence that certain feature, even though lying outside the Lots, is indispensible to the construction of the buildings of the Lots and/or essential to the survival of the buildings and structures on the Lots, it is likely that such a feature could be regarded as any wise “belonging” or “appertaining” unto the Lots or the erections and buildings standing on the Lots by being substantially connected to or dependent on them.

55. For these reasons, the Tribunal is wrong in law in construing that the meaning of “appertain unto the same” in Condition 6 refers only to those features that are located within the Lots.

56. I would therefore allow the judicial review on this ground.

C3. Ground 2 – failure to apply the proper and well-established principle of construction of Government leases

57. Under this ground, it is contended that the GMC being a clause in a Government lease should be construed most beneficially for the Government as the grantor under the well established “inverted contra proferentum rule”.[7]  It is further said that the Tribunal in its construction in the Decision erred in law in failing to have regard to this rule.

58. Given my conclusion above on construction, this ground does not add anything to the challenge under this judicial review.

59. However, insofar as necessary, I am not prepared to allow this judicial review on this basis alone.  As stated by the learned editors in Chitty on Contracts, supra, at paragraph 12-086, this rule does not in any way override other principles of construction.  In this respect, it appears to me that the Tribunal’s construction in the Decision was based on its view as to what was the clear and ordinary legal meaning of the word “appertain” by applying Barlow.  Thus, the Tribunal did not think there was any ambiguity in the meaning of the word used.  In such circumstances, I am not convinced that there is any room for the application of this rule. Alternatively, even if this rule was to be applied, it could not have displaced what the Tribunal regarded as the clear meaning of the word.

C4. Ground 3 – the Tribunal was wrong in law to rely on the gazetted Chinese translated version of the GMC in its construction

60. Under this ground, Ms Ng submits that the Tribunal erred in law in relying on the Chinese translated version of the GMC as appeared in the Gazette in support of its construction.

61. Ms Ng says as a matter of principle, the court in a construction exercise should not prefer the Chinese translation to the English original text, if the English original version was inconsistent with the Chinese translated version.  As said by P Cheung J (as the learned JA then was) in Chan Fung Lan v Lai Wai Chuen (HCMP 4210/1996, 31 December 1996) at p 8:

“It is not possible to reconcile the two texts. The solution does not lie in giving effect to a text which favours one party as in the recent criminal case of R. v. Tam Yuk Ha (Mag. App. No. 9330/1996). This is not a workable approach because ambiguities of the two texts do not arise solely in criminal cases but in civil matters as well where there are two or more litigants. When the Court comes to the view that the authenticated Chinese text contains inaccuracies then it should not give effect to that text but should instead rely on the original legislation. This approach is justified because under s.4B of the Official Languages Ordinance where the Governor-in-Council has declared a text to be an authenticated text of an ordinance and it appears to him that there is any manifest error, omission or inaccuracy in that text, he may by order in the gazette correct that error and any such correction shall be deemed to have been incorporated in the text at the time when it was declared to be the authenticated text. One must bear in mind that the authenticated Chinese text started life simply as a translation of the original legislation and if there are errors in the translation, which are bound to arise in such a mammoth undertaking, such errors should not be given effect simply because under s.10B of the Interpretation Ordinance the two texts are said to be equally authentic.” (emphasis added)

62. This is applied by H H Judge Lam (as the learned VP then was) in the Commissioner of Rating & Valuation v Chan Ho-chin Colin (LDMR 48/2000, 26 June 2001) at paragraphs 9 - 10.

63. With respect, I am unable to agree with Ms Ng’s contentions.

64. It can be seen that this principle only applies where there is an inconsistency in the meaning between the original English text and its Chinese translated version.

65. In the present case, the Tribunal first reached its conclusion on the construction of the meaning of the word “appertain” to mean the same as “belong” by looking independently at the original English text of the GMC alone.  It then further concluded that, given this meaning, the word “appertain” only refers to features and things located within the Lots.  As mentioned above, in coming to these conclusions, it followed the majority decision in the Savoy Case which in turn applied Barlow.  See paragraphs 31, 40 and 41 of the Decision.

66. Thereafter, the Tribunal referred to the gazetted Chinese translated version of the GMC at paragraph 42 of the Decision as follows:

“42. 再者，上文第10段乙表第6條有關部份刊憲之中文譯本清楚顯示保養範圍不包括毗鄰該地段的該斜坡。雖然建築事務監督認為刊憲的中文譯本未能反映其英文版本全意而另外提供其譯本，本審裁小組不同意建築事務監督其譯本關於擴大保養範圍部份。縱使刊憲的中文譯本未能完全反映其英文版本全意，也有著有說服力的參考作用。”

67. Thus, the Tribunal’s conclusion on construction was reached by looking at the original English text independently.  That was why it rejected the Chinese translation version provided by the BA.  In other words, it did not come to that conclusionby preferring the gazetted Chinese translated version to the original English test.   It only said that the gazetted Chinese translated version supported its construction which was reached independently by looking at the original English text.

68. The above principle mentioned in Chan Fung Lan therefore simply does not apply.  The Tribunal committed no error of law in this respect.

69. I would also reject this ground of judicial review.

D. CONCLUSION

70. For these reasons, I would allow the judicial review on ground that the Tribunal committed an error of law in construing the word “appertain” (and thus “belong”) in the GMC to refer only to features that are located within the Lots.

71. I would quash the Decision and refer the appeal back to a differently constituted Tribunal for reconsideration.  In reconsidering the appeal, the Tribunal should have regard to the court’s construction of the meaning of the words “appertain” and “belong” in the GMC as set out in paragraphs 44 - 55 of this judgment.

72. The BA has also sought at paragraphs 4 and 5 of the Form 86 declaratory reliefs that Mr Yu is under an obligation to maintain the Feature under Condition 6 and that the DH Order was rightly issued.  These in effect amount to seeking a declaration that the appeal should be dismissed.

73. However, as I said above, whether the Feature is a feature that can fall within the meaning of “belong or appertain unto the same” (as now construed by this court) by being part and parcel of the Lots or the buildings and erections standing on the Lots is a question of fact which is dependent on the finding of the evidence.  This is a task that should only be undertaken by the Tribunal in reconsidering the appeal by assessing the evidence but not by this court in judicial review.  Moreover, it must not be forgotten that Mr Yu has also raised the Other Grounds of Appeal to say why he should not be responsible for maintaining the Feature.  The merits of these grounds may not be dependent on the conclusion of whether Mr Yu has a contractual obligation under Condition 6 to maintain the Feature.  These grounds, which have not yet been considered by the Tribunal before (see paragraph 23 above), should, if necessary, also be considered by the Tribunal in rehearing the appeal.  I would therefore refuse to grant these reliefs.  To be fair, Ms Ng did not seriously ask for these reliefs at the hearing.

74. As to costs, since the BA is successful in this judicial review in seeking to quash the Decision, I would further make an order nisi that costs of this application be to the BA, to be taxed if not agreed.  The order shall become absolute 14 days from today, unless any of the parties applies to vary it by summons before then.