BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 183/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 183 OF 2015

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J U D G M E N T

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Introduction

1.  The approval of the Building Authority is required for building works.  If approval is refused, an appeal lies to an appeal tribunal (“the Tribunal”).  The Tribunal consists of a chairman and not less than two members.  Some of the Tribunal’s decisions can be made by the chairman alone.  Others have to be made by the chairman and the members.  The question which this application for judicial review raises is whether an order for the inspection of documents can be made by the chairman alone, or whether it can only be made by the chairman and the members.

The facts

2.  The facts can be stated very shortly.  In June 2014, the Building Authority declined to give its approval for general building works submitted by Ronna Chao.  She appealed against that decision to the Tribunal, and in due course her solicitors requested the Building Authority to make certain documents available for inspection by them.  The Building Authority agreed to make some of the documents available for inspection by them, but not others. Ms Chao’s solicitors then made a further request for documents to be made available for inspection, and the Building Authority again refused to make some of those documents available for inspection.  Ms Chao’s response was to apply through her solicitors to the Tribunal for an order directing the Building Authority to make the documents in dispute available for inspection. 

3.  The parties agreed that the application could be determined without a hearing on the basis of written representations.  Comprehensive written submissions were filed with the Tribunal.  None of the correspondence or the written submissions addressed the question whether the application could be determined by the chairman alone, or whether it could only be determined by the chairman and the members.  In due course, the application was considered by the Tribunal.  It is said that the chairman who had been assigned to preside over the appeal determined the application alone.  He decided on 30 July 2015 that some of the documents in dispute had to be “disclosed” to Ms Chao’s solicitors within 14 days of 4 August 2015.  He used the language of discovery rather than inspection, but nothing turns on that.  The Building Authority intended to apply for leave to apply for judicial review of that decision, and it asked the chairman to stay the implementation of his decision pending the outcome of its proposed application for judicial review.  The chairman refused that application on 31 August 2015 on the basis that the Tribunal did not have the power to order such a stay, and he confirmed his unwillingness to order a stay on 8 September 2015 following the filing by the Building Authority of its application for leave to apply for judicial review. 

4.  The Building Authority had promptly applied for leave to apply for judicial review of both the decision requiring it to disclose the documents to Ms Chao’s solicitors and the decision refusing a stay.  Au J granted the Building Authority leave to apply for judicial review.  He did not identify whether that leave related to both decisions, but the challenge to the decision refusing a stay was made academic by Au J’s further order to stay the implementation of the order for “disclosure” pending the outcome of the application for judicial review.  This is the court’s judgment on that application.  The Tribunal is the respondent to the application, but in accordance with the usual convention, it is not represented and it makes no submissions.  Ms Chao is, of course, an interested party, but her solicitors have informed the court that she does not propose to participate in the proceedings. 

5.  The Building Authority’s application for judicial review has two elements.  Its primary case is that the chairman did determine the application for inspection alone, and that he did not have the power to do that.  The decision, it contends, could only have been made by the chairman and the members.  If that is correct, the chairman’s decision would have to be quashed, as it would have been made without jurisdiction, and the question whether the documents in dispute should be made available for inspection would have to be determined afresh by a chairman and the members.  The Building Authority’s alternative case is deployed in the event of the court concluding that the decision was one which could have been made by the chairman alone.  In that event, it contends that the decision to order inspection was flawed for a variety of reasons, and that the decision should be quashed on that account.  However, it asks the court to address that issue only if its primary argument fails.  Indeed, if its primary argument succeeds, it would not be appropriate for me to decide whether the documents should have been made available for inspection, as I would be usurping the function of the body responsible for deciding the matter, namely the chairman and the members.

Was the decision made by the chairman alone?

6.  The Tribunal has neither confirmed nor denied that the decision to order the disclosure of the documents was made by the chairman alone.  However, the letter from the Tribunal dated 4 August 2015 enclosing the decision talked of “the Chairman’s judgment” on the application for “disclosure” and the directions which “the Chairman” had made.  The decision itself was signed by the chairman alone, and only his name appears below his signature.  It was signed in his capacity as “Chairman ‑ Buildings Appeal Tribunal”.  And the decision itself talked of the decision‑maker in the singular, not the plural.  There were many references to “I” and none to “we”.  On that basis, I proceed on the footing that the decision was indeed made by the chairman alone. 

The legislative provisions

7.  Appeals from decisions of the Building Authority are governed by Part 6 of the Buildings Ordinance (Cap 123) (“the Ordinance”).  The Ordinance created a panel to which persons who would serve as chairmen and members would be appointed.  Section 48(1) of the Ordinance provides for the appointment from the panel of “a tribunal consisting of a Chairman and not less than 2 members for the purpose of hearing and determining” a particular appeal. 

8.  Applications for the inspection of documents for the purposes of such an appeal are provided for by section 6(1)(b) of the Building (Appeal) Regulation (“the Regulation”) made by the Chief Executive‑in‑Council pursuant to section 38(1B) of the Ordinance.  Section 6(1)(b) provides:

“(1) A party to an appeal may, by serving a notice‑

…

(b) request the other party to make available to him for inspection any document which he considers relevant to the appeal and which is in the custody, control or possession of that party or to furnish a copy of any such document.”

There is no provision expressly dealing with the power of the Tribunal to require a party to an appeal to make documents available for inspection, but there is no doubt that the Tribunal has such a power.  That is apparent from section 6(3) of the Regulation, which provides:

“A party of whom a request is made under this section shall, within 14 days beginning on the date the relevant notice is served or within the extended period, as may be appropriate, comply with such request unless the Tribunal is satisfied that the request was unreasonable or that reasonable grounds exist for not complying with it.” (Emphasis supplied)

It was pursuant to that section that Ms Chao’s solicitors applied to the Tribunal for the order for inspection. 

Can that power be exercised by the chairman alone?

9.  But who has the power to determine that application?  The chairman alone, or the chairman and the members?  Leaving aside the guidance which one might get from the statutory language, a powerful argument could be made out for saying that the application could be determined by the chairman alone.  The chairman is legally qualified.  Section 48(2) of the Ordinance provides that he or she has to be qualified for appointment as a District Judge.  The chairman would, I think, be able to decide issues relating to the enforcement of requests for the inspection of documents on his or her own.  Indeed, one might commonly expect interlocutory decisions of that kind to be made by the legally qualified chairman alone. 

10.  But you cannot ignore the guidance you get from the statutory language.  The answer has to depend on who the words “the Tribunal” in section 6(3) of the Regulation are referring to.  For that, it is necessary to go to section 2 of the Regulation, the interpretation section, which provides:

“In this Regulation, unless the context otherwise requires‑

‘Tribunal’ (審裁小組) means, in relation to a particular appeal, the tribunal appointed under section 48(1) of the Ordinance to hear and determine that appeal.”

Since the tribunal appointed under section 48(1) of the Ordinance to hear and determine the appeal consists of the chairman and the members, it follows that the reference to “the Tribunal” in section 6(3) of the Regulation was a reference to the chairman and the members, unless the context required a different view to be taken. 

11.  I have not discerned anything in the context which requires the court to take a different view.  On the contrary.  There is another provision in the Regulation, which Mr Jin Pao for the Building Authority has helpfully drawn to my attention, which shows that when it was intended for the chairman to have the power to decide a particular interlocutory decision on his or her own, the Regulation expressly provides for that.  That provision is section 13, which provides:

“(1) The Tribunal may upon application by a party extend, as regards the case to which the application relates, any time limit specified in section 4(1), 5(a) or 6(2) or (3), if it considers it appropriate to do so.

(2)   The power of the Tribunal under subsection (1) may be exercised by the Chairman.”

The absence in section 6 of a power equivalent to section 13(2) speaks volumes.  Its absence strongly suggests that unlike applications for an extension of time, an application for an order for the inspection of documents may not be determined by the chairman alone. 

12.  That distinction is by no means surprising.  Applications for an extension of time are invariably relatively straightforward, they are usually not contentious, and they will not usually involve a consideration of the merits of the appeal.  On the other hand, applications for an order for the inspection of documents will usually be contentious because the Tribunal only gets involved when the initial request for inspection has not been complied with.  Moreover, they will inevitably require the Tribunal to get into the detail of the appeal because in order to decide whether inspection is appropriate, the Tribunal will have to determine the extent to which the documents sought to be inspected are relevant to any of the issues which the appeal raises.  In those circumstances, I can well understand why the Chief Executive‑in‑Council would have wanted decisions of that kind to be informed by the expertise which the members could bring to the exercise.  Mr Pao told me today that there is nothing in the Regulation which identifies the expertise which the members should have, but the practice is for them to have the sort of expertise appropriate to the issues which appeals of this kind raise. 

Conclusion

13.  For these reasons, I have concluded that the chairman did not have the power to make the order for inspection which he did on his own.  I quash his decision.  Ms Chao’s application for the documents in dispute to be made available for inspection will have to be considered afresh by the Tribunal — this time consisting of a chairman and the members.  It would not be appropriate for the same chairman to preside over the application.  He may, albeit unconsciously, be inclined to want to decide the application in the same way as he had previously done, even if he had the additional input of the members.  In any event, no costs or resources will have been wasted by the application being remitted and heard by the members and a different chairman as the appeal is at a very early stage.  There have been no hearings as yet, and no directions for the hearing of the appeal have been given. 

14.  There are two final matters I should mention.  First, I should comment, I think, on a suggestion made by Ms Chao’s solicitors in correspondence with the Building Authority, which was that instead of making an application for judicial review, the Building Authority should have joined with Ms Chao’s solicitors in asking the chairman of the Tribunal whether he had determined the application alone and, if he had, in asking the Tribunal consisting of the chairman and the members to determine the application afresh.  That would not have been possible.  The chairman had already taken the view that the Tribunal was functus officio when it came to the application for an order for the inspection of documents — in other words, that there was no further action which the Tribunal could take in respect of the decision it had made on that application.  So the suggestion would have fallen on deaf ears. But in any event, for all I know, the chairman might well have been right in thinking that the Tribunal had no further part to play in respect of the decision. I cannot be sure about that because it depends on the extent to which a statutory body can re‑visit a decision which it has previously made.  That is not something on which it was necessary for me to be addressed.  Moreover, since there has been no challenge to the chairman’s view that the Tribunal could take no further action without its previous decision being quashed by the High Court, that is not something which I could have considered anyway.

15.  Secondly, the Tribunal reserved the costs of the application for inspection, and the two applications for a stay of the implementation of the decision made on that application, as well as making a costs order nisi in respect of an application by the Building Authority for an extension of time to comply with the order for inspection.  In the light of my quashing of the decision on the application for inspection, those orders for costs will have to be re‑visited. Mr Pao asked for those orders for costs to be quashed, and for there to be substituted in their place an order that the costs be in the cause of the appeal.  I do not think that it would be right for me to decide what the appropriate orders for costs should be.  That is a matter for the Tribunal.  So although the orders for costs must be quashed, the additional order I make is that the costs of the previous application for inspection, of the two applications for a stay and of the application for the extension of time be reserved to the Tribunal.