LAM AR FU PETER v. BUILDING AUTHORITY

HCAL 2259/2018

[2019] HKCFI 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2259 OF 2018

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D E C I S I O N

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INTRODUCITON

1.  This is an application for leave to apply for judicial review of the decision of the Appeal Tribunal (Buildings) (“the Tribunal”) dismissing the Applicant’s appeal in Case No 1184-2010 and ordering him to pay the Building Authority (“the BA”)’s costs of the appeal.

BASIC FACTS

2.  The Applicant was formerly the registered owner of the property (“the Property”) known as Flat C on 18/F and Roof of Block 3, Hong Kong Garden (Phase I), No 100 Castle Peak Road, Tsing Lung Tau, New Territories (“the Development”).

(i)   The 2008 Order

3.  On 20 March 2008, the BA issued a building order (“the 2008 Order”) under Section 24(1) of the Buildings Ordinance, Cap 123, to the Applicant requiring him to demolish a container structure on and over the roof of the Property which was erected without any, or any prior, approval by the BA.  By a Determination dated 26 March 2015 (“the 2015 Determination”), the Tribunal dismissed the Applicant’s appeal in Case No 903 of 2008 (“the 2008 Appeal”) against the 2008 Order.

4.  On 26 June 2015, the Applicant applied for leave to apply for judicial review of the 2015 Determination in HCAL 113/2015. The application was dismissed by Au J (as he then was) on 12 October 2015, on the basis that none of the grounds relied upon by the Applicant in support of the application was reasonably arguable.

5.  The Applicant’s application for an extension of time to appeal against the order of Au J was dismissed by the Court of Appeal on 21 December 2015 (in HCMP 2878/2015).  In the Court of Appeal’s written judgment, the Court of Appeal stated that there was no substance whatsoever in the Applicant’s intended appeal.

6.  The Applicant’s subsequent motion dated 28 December 2015 seeking leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 5 February 2016.  His further application to the Court of Final Appeal for the same relief was dismissed by the Appeal Committee of the Court of Final Appeal on 14 October 2016 pursuant to Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

(ii)   The December 2010 Order

7.  On 10 December 2010, the BA issued a building order (“the December 2010 Order”) to the Applicant requiring him to demolish a structure (“the Unauthorised Structure”) attached to the external wall of the bedroom of the Property facing Block 4 of the Development, and reinstate the parts of the building so affected in accordance with the plans approved by the BA.  The Unauthorised Structure consisted of some windows erected on the concrete fins at the external wall of the bedroom of the Property facing Block 4 which, it is not in dispute, were erected without any, or any prior, approval by the BA.

8.  The December 2010 Order replaced or superseded an earlier order issued by the BA to the Applicant dated 13 May 2010 (“the May 2010 Order”) which the BA admitted was incorrectly issued because it referred to another property belonging to the Applicant.

9.  The Applicant’s appeal against the December 2010 Order in Case No 1184-2010 (“the 2010 Appeal”) was heard by the Tribunal at a full hearing on 29 June 2015 and 30 June 2015.  The Tribunal gave its Determination of the 2010 Appeal on 18 January 2018 (“the 2018 Determination”) dismissing the 2010 Appeal.  The Tribunal further made a costs order nisi that the Applicant was to pay the BA’s costs of the appeal.

10.  Following an application by the Applicant to vary the costs order nisi and having considered the parties’ written submissions, on 19 July 2018, the Tribunal gave a Decision on Costs (“the 2018 Costs Decision”) making absolute the costs order nisi.

(iii)   The present application for judicial review

11.  On 18 October 2018, the Applicant made the present application for leave to apply for judicial review.  In his Form 86, the “Judgment, order, decision or other proceedings in respect of which relief is sought” was stated to be “Appeal Tribunal (Buildings) Case No: 1184-2010”, and the BA was named as the proposed respondent.  The Applicant failed, however, to set out any “Grounds on which relief is sought” in the Form 86.  An affidavit of the Applicant dated 12 October 2018 was filed in support of the application.  The affidavit likewise failed to set out any proposed grounds of judicial review.  It merely exhibited 5 documents, including a 65-page document entitled –

“Submission For Case #AT1184-2018 – Appeal to the High Court of HKSAR, Court of First Instance for the case of Appeal Tribunal (Buildings) #1184-2018”.

12.  On 18 October 2018, the court directed an oral hearing of the leave application.

13.  On 22 October 2018, Mr Kan Sai Ping, apparently the Applicant’s authorized representative, made an affidavit in support of the leave application.  That affidavit exhibited, amongst other things, a 120-page document entitled –

“Submission for Case #HCAL 2259/2018 – Application for leave to judicial review to the High Court of HKSAR, Court of First Instance for the case of Lam Ar Fu Peter v Building Authority Appeal Tribunal (Buildings) #1184-2018”,

which was stated to be the “official submission” superseding the earlier submission referred to in paragraph 11 above.

14.  In view of (i) the failure of the Applicant to clearly identify the proposed grounds of judicial review in the Form 86, or set out the relevant background facts of the case in a logical and comprehensible manner in the Form 86 or affidavits, and (ii) the convoluted arguments raised by or on behalf of the Applicant in the two documents mentioned above, on 29 November 2018 the court directed that the BA shall have leave to attend the oral hearing and file evidence to oppose the application.

15.  On 4 January 2019, the BA filed an affirmation of Choy Lap Shing.

16.  The oral hearing took place on 18 January 2019, with the Applicant appearing in person, and Mr Jenkin Suen appearing on behalf of the BA.

DISCUSSION

17.  At the hearing, the Applicant raised 7 main grounds in support of the proposed application for judicial review.

18.  First, the Applicant complained that the Tribunal failed to deal with 2 matters raised by him, namely, (i) the Tribunal’s refusal to allow a line of cross examination by the Applicant of a witness, Ms Ng Mee-chi, called by the BA at the hearing of the appeal, and (ii) Grounds 10 and 11 of his closing submissions (“Ground 10” and “Ground 11” respectively).

(1) In respect of (i), the line of cross examination which the Applicant wished to explore with Ms Ng related to her “interpretation and opinions of the goals and spirit of enacting the Buildings Ordinance” (see paragraph 21 of the 2018 Costs Decision).  This is plainly an impermissible line of cross examination.  As pointed out by the Tribunal, the proper interpretation, purpose and objects of the Buildings Ordinance is a matter of law for Tribunal to determine, not a matter of fact for a witness to answer.

(2) In respect of (ii), Ground 10 relates to the question of whether the Unauthorised Structure is a “bay window”, and Ground 11 relates to the argument that because the Unauthorised Structure is “safe”, the BA could not demand its demolition or removal having regard to the Applicant’s constitutional rights under the Basic Law.  I shall consider the validity of Ground 10 below.  In so far as Ground 11 is concerned, it is effectively the same point which was considered by the Tribunal in paragraph 37 of the 2018 Determination.

19.  Second, the Applicant argued that the Tribunal should not apply the “costs to follow the event” principle but ought, instead, to adopt a “low cost regime” when dealing with appeals to the Tribunal by litigants in person, drawing support from some overseas literatures.  In Hong Kong, the question of costs in an appeal to the Tribunal is governed by Section 51 of the Buildings Ordinance, which provides that the Tribunal may make such order as to costs as it thinks fit.  This confers upon the Tribunal a wide discretion on matters of costs.  As can be seen from the 2018 Costs Decision, the Tribunal did not apply the “costs to follow the event” principle rigidly, but regarded it as being a prima facie principle or a “starting point” (paragraph 16).  The Tribunal set out other considerations relevant to the exercise of its discretion on costs (paragraph 8), and stated that “in the exercise of the power given to the Tribunal under section 51(1) to award costs the Tribunal should act with a degree of restraint because in most of the cases the Appellant acts in person and may have some legitimate and justifiable grievance against the order of the Building Authority under challenge.  To that extent if the grounds of appeal are reasonable and the arguments in support are tenable and proportionate to the subject matter in dispute, it is not uncommon for the Tribunal to be sympathetic to the appellants” (paragraph 14).  The Tribunal also made it clear that it would have ordered the Applicant to bear the BA’s costs even if the “costs to follow the event” principle was not applicable to the Tribunal’s appeals generally, because (i) none of the points raised by the Applicant was meritorious or arguable, and it was “wholly unreasonable” for the Applicant to raise the grounds he “insisted and persisted resulting in a huge number of frivolous arguments presented in the course of the appeal” (paragraph 9), (ii) the Applicant repeated many of the grounds which he took, unsuccessfully, in the 2008 Appeal, which conduct the Tribunal considered to be unreasonable (paragraphs 10 and 11), and (iii) the Applicant was motivated by self-interest, instead of public interest, in pursuing the appeal (paragraph 13).  In my view, the Tribunal’s approach to the issue of costs is correct as matter of law, and its decision on costs cannot be said to be unreasonable in the Wednesbury sense.

20.  Third, the Applicant argued that the BA had a policy of “toleration” of unlawful “window” structures other than “bay windows”, and thus he had a legitimate expectation that no permission would be required for the installation or erection of the Unauthorised Structure.  The Applicant also argued that the BA’s original classification of the Unauthorised Structure as a “bay window” was incorrect.  In my view, this argument has plainly no merits, for the following reasons:

(1) As rightly pointed out by Mr Suen, the BA does not have a toleration policy as such, although he does have an enforcement policy according priorities to specific categories of UBWs which, it is well established, should not be read as saying that no enforcement action will be taken regarding UBWs outside those categories until all prioritized cases have been dealt with (see Sky Wide Development Ltd v Building Authority, HCAL 116/2008 (24.10.08), at paragraphs 10 and 18 per Lam J (as he then was); Technic Investment Co Ltd v Appeal Tribunal (Buildings) [2013] 3 HKLRD 245 at paragraphs 22 to 24).

(2) The BA’s Blitz UBW Clearance Operation 2009 (referred to in paragraph 14 of the 2018 Determination), which included the Applicant’s building as one of the target buildings for UBW clearance, is an enforcement policy and not a toleration policy.  The mere fact that an UBW does not fall within the scope of the “List of actionable UBW” under that operation does not mean that it is immune from enforcement.  In any event, paragraph 1.10 of the “List of actionable UBW” refers not just to “bay windows”, but also “Cage/solid enclosures on or attached to architectural fins, hoods or plant boxes or unauthorized conversion of architectural fins” which would cover the Unauthorised Structure in the present case (see paragraphs 15, 18 and 21 of the 2018 Determination).

(3) The fact that the BA’s consultant (Jacobs China Limited) or the BA might once have described the Unauthorised Structure as a “bay window” is irrelevant.  There is no suggestion that the Applicant did not understand that the December 2010 Order required the Unauthorised Structure to be demolished and the relevant parts of the building to be reinstated in accordance with the approved building plans, or that there was any confusion as regards the subject matter of the December 2010 Order.  As a matter of fact, the December 2010 Order did not refer to any “bay window”, but to a “Structure attached to external wall of bedroom facing Block 4”.

21.  Fourth, the Applicant argued that the existence of 2 building orders, namely, the May 2010 Order and December 2010 Order, allegedly in respect of the same structure gave rise to “double jeopardy”.  As a matter of fact, the May 2010 Order was intended to demand the demolition of the same Unauthorised Structure, but mistakenly referred to another property belonging to the Applicant (see paragraph 20 of the 2018 Determination).  More importantly, the Applicant did appeal against the May 2010 Order and was successful in that appeal, with the result that the May 2010 Order was set aside with costs to him (see paragraph 34 of the 2018 Determination).  The concept of “double jeopardy” is simply irrelevant and immaterial in the context, and on the facts, of the present case.  Further, I consider the Tribunal to be correct in taking the view that the BA was entitled, as a matter of law, to issue the December 2010 Order in substitution for, or to supersede, the May 2010 Order under Section 46(b) of the Interpretation and General Clauses Ordinance, Cap 1 (see paragraphs 35 and 36 of the 2018 Determination).

22.  Fifth, the Applicant argued that the Unauthorised Structure, being structurally “safe”, should be regarded as “Group B UBW” and, as such, no enforcement action should be taken having regard to the Applicant’s constitutional rights under the Basic Law.  This is the same point as Ground 11 mentioned in paragraph 18 (2) above.  The same argument was rejected by the Tribunal in the 2015 Determination (see paragraph 24 to 42 thereof).  The Applicant’s attempt to challenge that finding was dismissed by Au J in HCAL 113/2015 (see paragraph 3(3) to (4) of the Call-1 Form dated 12 October 2015), and the Court of Appeal agreed with Au J’s reasons entirely (see paragraph 8 of the Court of Appeal’s judgment dated 21 December 2015 in HCMP 2878/2015).  In the circumstances, this argument of the Applicant plainly has no substance.

23.  Sixth, the Applicant complained that the BA moved the goal post by originally describing the Unauthorised Structure as a “bay window” and subsequently referring to it as “windows erected on the concrete fins” at the full hearing.  This complaint has already been dealt with in paragraph 20(3) above.

24.  Seventh, the Applicant argued that, although he did not file any witness statement or give evidence at the hearing of the appeal, the Tribunal ought to have accepted his submissions as evidence in view of Section 50(c)(i) of the Buildings Ordinance, which provides that the Tribunal may “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”.  This point is a non-starter because, as mentioned in paragraphs 4 and 32 of the 2018 Determination, the Tribunal’s decision was not based on any disputed evidence given by the BA’s witness.  Further, the court considers the Tribunal’s observation in paragraph 31 of the 2018 Determination relating to procedural fairness to be correct in principle.  In so far as it is complained that the Tribunal did not deal with some authorities referred to by the Applicant at the hearing of the appeal, the Tribunal is under no duty to deal with all the authorities mentioned by the Applicant.  It is a matter for the Tribunal to decide what authorities are relevant and required to be dealt with in its determination.  The court, in the exercise of its supervisory jurisdiction in judicial review, can only intervene where the Tribunal makes an error of law, or decides irrationally, or acts in a manner which is procedurally unfair.

25.  In all, none of the proposed grounds of judicial review is reasonable arguable, or has a realistic prospect of success.

26.  That being the position, and having regard to the absence of any reasonable explanation for the delay in seeking leave to apply for judicial review, there is no basis to grant an extension of time in so far as the Applicant seeks to challenge the Tribunal’s decision to dismiss the 2010 Appeal on 18 January 2018.

DISPOSITION

27.  For the foregoing reasons, the court:

(1) refuses to grant an extension of time to the Applicant to apply for leave to apply for judicial review of the Tribunal’s decision to dismiss the 2010 Appeal, and dismisses the application for leave to apply for judicial review of that decision; and

(2) dismisses the application for leave to apply for judicial review of the Tribunal’s order absolute that the Applicant shall pay the BA’s costs of the appeal.

28.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here.  I consider that the BA should be entitled to be paid its costs in these proceedings, because:

(1) the present application clearly lacks any substantive merits;

(2) the Building Authority attended the hearing at the invitation of the court in view of the circumstances mentioned in paragraph 14 above;

(3) the BA has provided substantial and helpful assistance to the court;

(4) the Applicant repeated and insisted on points which have already been rejected by Au J and the Court of Appeal in his previous application for leave to apply for judicial review; and

(5) the Applicant has, effectively, had a hearing on the merits.

29.  I therefore make an order that the Applicant shall pay the BA’s costs of these proceedings, to be taxed if not agreed.