HKSAR v. LIEM HUNG AND OTHERS

HCMA 554/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 554 OF 1999

(ON APPEAL FROM WSS 24124-24132 OF 1998)

-------------

-------

-------------------

DECISION

-------------------

1. By a Notice of Motion filed on 7 December 1999, the appellants seek a certificate from me that the questions raised in it are of great and general importance and therefore fit for submission to the Court of Final Appeal pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2. The proposed appeal to the Court of Final Appeal stemmed from my judgment delivered on 9 November 1999 on an appeal from a magistrate's decision. By that judgment I confirmed the convictions of the appellants but varied the sentence imposed on them by the Magistrate.

3. In the Notice of Motion, four questions were raised. However, on the morning of the hearing of the motion, Mr Yip, counsel for the appellants, handed in a document containing four questions which were very different from those raised in the Notice of Motion. Mr Yip informed me that he was not pursuing the questions set out in the Notice of Motion and he was concentrating on the four questions raised in this new document. I was therefore deprived of having sufficient time to consider the matters that were raised, and counsel for the respondent was similarly caught unprepared. This practice should be deplored, and I expressed my view in strong terms to Mr Yip. Although I proceeded to hear Mr Yip for the sake of saving time and costs, I must state that in future, such a practice will, at least for my part, be frowned upon and will likely be countered with an adjournment and the legal representatives of the party responsible may well be ordered to personally pay the costs thus thrown away.

4. I will now deal with the questions raised in the new document. Question 1 is premised on two factual matters, namely, (a) that the Building Authority ("the BA") when issuing the Order under section 27A(1) of the Buildings Ordinance, Cap. 123 relied on a study report ("the Report") and opined that a masonry wall was an earth retaining wall and was liable to become dangerous, and (b) that the Report wrongly proceeded on the basis of the retaining height of the wall being 4.05 metres whereas the wall had a 1.5 metre high basement measuring from the top. The question posed is whether the Order that was based on an erroneous assumption of fact by the BA is void or not? I did not allow Mr Yip to develop his arguments on this question because the so-called retaining height of the wall was never mentioned, let alone argued, before me when I heard the appeal and it was not a matter dealt with in my judgment.

5. Section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides:

"(1) No appeal shall be admitted unless leave to appeal has been granted by the Court.

(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done. ..."

6. The appellants only apply to me to certify that "a point of law of great and general importance is involved in the decision". The "decision" here means "any final decision" contained in my judgment, as is borne out clearly by section 31 of the Ordinance. As the question raised is based on a matter that had not been raised before me or covered by my judgment, and is not a point of law involved in my decision, I did not allow it to be argued. This disposes of question 1.

7. Mr Cheung, for the respondent, submitted that question 3 should be disposed of in the same manner as question 1, because it did not relate to a point of law involved in my judgment. Question 3 is based on two facts: (a) that the BA opined that the wall was an earth retaining wall, but (b) that there was unchallenged defence evidence that a masonry wall could not be an earth retaining wall and that a masonry wall was not used to support weight. The question proposed to be raised is whether the Order issued by the BA purporting to cover a "non-earth retaining wall" is void or not? The relevant part of my judgment (at p 8K-O thereof) reads:

"As to the argument that the wall was not an earth-retaining structure, I pointed out to Mr Yip that the point was not raised before the Magistrate, and that was presumably caused by the fact that the point was not open in the light of the formal admissions made by the prosecution and the defence under section 65C of the Criminal Procedure Ordinance Cap 221. In view of my comment, the point was not seriously pursued by Mr Yip; regardless, however, I think it has not merit."

8. Mr Cheung submitted that the above fact (b) was not mentioned to me when I was dealing with the appeal and therefore the question proposed by the appellants could not arise for consideration. It is difficult to remember if this fact (b) was raised when Mr Yip argued the appeal before me. Mr Yip frankly admitted that PW1 Mr Ho, the expert called by the Prosecution, gave evidence before the Magistrate to the effect that the wall was a retaining wall. He further told me that Mr Choy, the authorised person appointed by the appellants, when he gave his qualifications to the Magistrate, said to the effect that the wall was simply a masonry wall and it could not be an earth retaining wall because it did not support earth.

9. In the "Facts admitted by the defence and the prosecution pursuant to section 65C" (p 268 of the Appeal Bundle used for the magisterial appeal), there was reference to the wall concerned, namely, Feature No. 14NE-B/R 22, and there was then an admission that the lessee of Lot No. 734 in DD1 Lamma Island had an obligation to maintain the wall according to the Crown Lease of Lot No. 734 (para 6 on p 269 of the Appeal Bundle). At p 291 of the Appeal Bundle, it can be seen that under clause 9(b) of the Crown Lease, the lessee has the obligation to maintain "retaining walls". It is therefore clear that the admission included one that the wall in question was a retaining wall, for if it was merely a masonry wall and not a retaining wall, there would have been no reason for the lessees, i.e., the appellants, to have made the admission that they were obliged to maintain the wall according to the Crown Lease. Moreover, in a letter dated 29 November 1996 (p 461 of the Appeal Bundle), which was exhibited to and included in the agreed facts (see p 270 of the Appeal Bundle, para 18), the authorised person of the appellants stated that "the developer erected platform for each house with masonry walls retaining the soil/rock high above the lower houses." It is obvious that the authorised person accepted that the wall in question was a retaining wall. In view of such admissions, especially when the wall was admittedly used to retain soil or rocks, I was of the view that the point that the wall was not a retaining wall was hardly open for argument, and that the point had no merit.

10. It is therefore clear that question 3 has no substance. Moreover, in convicting the appellants, the Magistrate apparently accepted Mr Ho's evidence and rejected Mr Choy's relating to the nature or character of the wall. The true effect of the point proposed to be raised is whether the Magistrate had properly dealt with the aforesaid evidence, and the point, framed in whatever manner, cannot be transformed or camouflaged to be one of great and general importance that should be submitted for the consideration of the Court of Final Appeal.

11. Question 2 is whether the BA can retrospectively (after the issuance of the Order) rely on the evidence as to the "cause" based on which the Order was issued. The argument is that the BA issued the Order in reliance upon the Report which recommended that an order should be issued, but the Conclusion of the Report was based on the wall not possessing "adequate factors of safety on its stability as required by the current standard" (p 302 of the Appeal Bundle).

12. This question 2 must be looked at in the light of my judgment. At p 10J of my judgment, I held that in order to be a proper "cause" within the ambit of section 27A, it must be a cause which occurred after the structure had been built, and could not just be a mere state of affairs such as a matter of design of the wall. Mr Yip's arguments are to be effect that as the BA did not pinpoint any particular cause for reaching its decision to issue the Order, and since the only relevant evidence was that the BA relied on the Report in reaching that decision, the BA cannot retrospectively rely on a cause which was not shown to be relied upon by it when it issued the Order.

13. Factually, Mr Yip is wrong. The Report did make mention of the deterioration of the wall, which was the basis of my judgment at p 10Q-11C that "the signs of deterioration of the wall together with its inadequate factors of safety on its stability ... did amount to a proper cause based on which the BA could form a legitimate opinion under section 27A." The Report contained various references to the deterioration of the condition of the wall, as follows:

"Some vegetation were observed between the rubble stones. This indicates signs of deterioration of the mortar pointing between rubble stones. It was also observed that the re-pointing over some areas of the wall had been carried out as shown on Plate 4. Based on the above observations, the wall is considered to be in a fair condition." (P 299 of the Appeal Bundle)

"By site inspection it was revealed that there were signs of deterioration of the wall. The stability analyses indicate that the wall has an extremely low safety factor against sliding and overturning when the 'high' generalised parameters were used with wall base width based on the measurement on site. Therefore, according to Table 3 in GEO Circular No. 14/91, the wall can be concluded to be in a poor condition. Since the wall can be classified in the high risk-to-life situation, in accordance with Table 5 in GEO Circular No. 14/91, a 'D' Notice should be issued." (P 302 of the Appeal Bundle)

14. It was argued in the appeal that there was no proper "cause" for the BA to issue the Order. The argument was not raised before the Magistrate but was raised before me by the appellants' counsel. I had to deal with it and reached the conclusion in my judgment; there is little doubt that I am entitled so to do. I am plainly entitled to look at all the available evidence in the process of exercising my powers conferred by s 119 of the Magistrates Ordinance, Cap. 227 to confirm, reverse or vary a magistrate's decision. It is not, as the appellants' counsel tried to put it, that the BA relied retrospectively on the evidence. I do not agree with the appellant that question 2 in the circumstances is a point of great and general importance.

15. Question 4 is premised on the following facts, namely,

(a) the Order required investigation, analysis and report on the wall;

(b) pursuant to the advice of the BA, the appellants employed an authorised person, Mr Choy, for the purpose of carrying out the Order;

(c) Mr Choy after investigating the wall by visual inspection opined that the wall was not liable to become dangerous and reported his investigation/inspection statements to the BA; and

(d) The BA did not accept Mr Choy's said statements and the Appellants did nothing further about the Order.

Question 4 is whether there was any failure to comply with the Order on the part of the appellants when the BA did not accept the statements of Mr Choy's investigation or inspection. Mr Yip's argument is that Mr Choy did carry out an investigation as required by the Order; he analysed the situation in his mind; and he reported to the BA. I was urged that it was because the BA did not accept Mr Choy's opinion or finding that the BA insisted on the appellants complying with the Order, and it was not that the appellants had not complied with the requirements of the Order to "investigate, analyse and report".

16. The matter was dealt with in some detail at pp 11D - 13J of my judgment. The crux of the matter was that the BA was not satisfied with the investigation by mere visual inspection of the wall carried out by the authorised person, based on which the authorised person reached his own view that was contrary to the opinion of the BA. My judgment dealt with the power of the BA under section 27A(2C) of the Ordinance to require the investigation to be carried out to a standard acceptable to it and also with the circumstances under which the appellants failed to comply with the Order of the BA, resulting in my conclusion that the Magistrate was correct in convicting them for not complying with the Order. I am not persuaded that question 4, however worded, is a matter that involved a point of great and general importance that should trouble the Court of Final Appeal.

17. For the above reasons, I conclude that none of the questions proposed to be raised is qualified for consideration by the Court of Final Appeal, and I refuse to grant the certificate as sought.

18. I also make an order nisi that the appellants do pay the costs of this motion to the respondent, to be taxed if not agreed.