Benver Co Ltd v Appeal Tribunal (Buildings Ordinance) [2023] 2 HKLRD 1201, [2023] HKCFI 842

Philip Dykes SC, Tim Kwok and Nicole Chun represented the applicant in Benver Co Ltd v Appeal Tribunal (Buildings Ordinance) [2023] 2 HKLRD 1201, [2023] HKCFI 842.

X was the registered owner of a property in respect of which the Building Authority (the BA) issued two building orders requiring X to demolish five alleged unauthorised building works (UBWs). X sought to appeal against the building orders. Subsequently, the BA withdrew both building orders and issued a fresh building order requiring X to demolish two alleged UBWs. X also sought to appeal against that building order. Preliminary hearings were held by the Appeal Tribunal (Buildings Ordinance) (the BAT) in respect of both “parallel” appeals, pursuant to s.49 of the Buildings Ordinance (Cap.123) (the BO), to determine whether “good cause” had been shown to hold a full appeal hearing. During an adjournment at the second preliminary hearing, the BAT directed that: (i) the parties should provide colour aerial photographs of the property (the Aerial Photograph Direction); and (ii) there should be a joint site inspection of the property (the Site Inspection Direction) (collectively, the Decisions). After X sought leave to apply for judicial review against the Decisions, the BAT indicated that it would not carry out the proposed site inspection. The BAT stayed the making of closing submissions in the two building appeals pending the outcome of X’s present application for leave to apply for judicial review. Challenging the Decisions, X argued that: (i) only a “full hearing” but not a “preliminary hearing” would engage the BAT’s powers under s.53 of the BO to order the inspection of premises; (ii) the wide and unlimited power under s.53 must be subject to judicial scrutiny against various constitutional rights; (iii) the BAT’s decision to take evidence at the site inspection would assist the BA to X’s disadvantage and was accordingly unfair; (iv) the BAT should determine the issue of “good cause” at a preliminary hearing on the materials placed before it by the parties, without the aerial photographs it sought; (v) the BAT’s decision to acquire aerial photographs would assist the BA and disadvantage X and so was unfair; and (vi) the BAT’s power to “receive” evidence under s.50(1)(c) connoted passivity on its part. The main issues were: (i) whether the BAT was able to use its powers under s.50(1)(c) of the BO to direct that evidence be gathered for its benefit or whether it had to rely on the evidence presented by the parties to the appeal; (ii) whether the BAT was able to direct that it would enter and inspect premises under s.53(1) of the BO when conducting a preliminary hearing of an appeal pursuant to s.49; and (iii) whether the power of inspection under s.53(1) of the BO was compatible with art.29 of the Basic Law, which guarantees freedom from arbitrary or unlawful intrusion into the home.

Held, dismissing the application, that:

• (1) There was futility in the challenge to the Aerial Photographs Direction since quashing that decision could not stop the BA from producing the aerial photographs on its own initiative, as the part-heard preliminary hearing continued before the BAT. X did not and could not seek as part of the relief a mandamus prohibiting the BA from doing so. (See para.36.)
• (2) The Court’s judicial review jurisdiction was of a supervisory nature and not meant for micro-managing the activities of subordinate tribunals or administrative decision-makers. Ordinarily, the Court would not entertain such application in respect of an intermediate or procedural decision and there were no exceptional circumstances to justify that course here (Financial Secretary v Wong (2003) 6 HKCFAR 476, Wong Ho Ching v Appeal Tribunal (Buildings Ordinance) [2020] HKCFI 2738 applied). (See paras.38-42.)
• (3) A preliminary hearing under s.49 of the BO was to determine if the appeal should be weeded out at an early stage or allowed to proceed to a full hearing. It was not a process to see if the BA could produce sufficient evidence to justify the issuance of building orders in the first place. The preliminary hearing was also not a striking out and the BAT was not bound to take the factual assertions of an applicant at their highest. (See paras.45-46.)
• (4) X’s suggestion that the BAT had a “passive power” and could only consider evidence placed before it by the parties made little sense in the context of a tribunal hearing, and was contrary to the clear sense of the wider provisions in s.50 of the BO. Nor did the word “receive” in s.50(1)(c) connote such passivity. Further, the power under s.50 was not limited to “full appeals” as such restriction would be contrary to the express wording of the section (Longest Profit (Hong Kong) Ltd v Appeal Tribunal (Buildings) (CACV 60/2013, [2014] HKEC 169) explained). (See paras.48-51, 56.)
• (5) As there was no question of any site inspection at the preliminary hearing stage, the proposed challenge against the Site Inspection Direction was either academic or hypothetical. If there was to be an examination of the legality of the powers granted to the BAT, that should occur in a case where the BAT was maintaining that it had and would actually exercise such powers (Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, R (Leticia McKenzie) v London Borough of Waltham Forest [2009] EWHC 1097 (Admin) applied). (See paras.61-64.)
• (6) The site inspection power under s.53 of the BO was not limited to a full appeal under s.50 but could be exercised in a preliminary hearing under s.49. (See para.66.)
• (7) X’s constitutional challenge against the BAT’s power of entry under s.53 of the BO was not reasonably arguable: (See paras.65, 67.)
  • (i) Where the purpose of entering and inspecting was for the determination of an appeal, and the steps taken by the BAT must be at any reasonable time, that could not be described as arbitrary;
  • (ii) Merely asserting that certain words in the section might be described as “vague” did not create legal uncertainty or the absence of prescription by law; and
  • (iii) Given the prevalence of multi-storey buildings in Hong Kong, absent the power to enter buildings for purposes relevant to building safety, it was difficult to see how building safety could be enforced; it was no argument to say that the BAT need not be equipped with such a power because the BA already had it, as the BAT was independent from the BA.

[The above is excerpted from the headnote to the report in HKLRD.]