A A
B B
HCMA 694/2014
C C
IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
MAGISTRACY APPEAL NO. 694 OF 2014
F (ON APPEAL FROM STS 10681/2013) F
____________
G G
BETWEEN
H H
HKSAR Respondent
I I
J and J
K K
TSE YEE PING Appellant
L ____________ L
M M
Before: Hon A Wong J in Court
N Date of Hearing: 29 May 2015 N
Date of Judgment: 15 June 2015
O O
______________
P P
JUDGMENT
Q ______________ Q
R R
1. The Appellant was summonsed for the offence of “Failing to
S S
comply with an order of the Building Authority without reasonable excuse”1.
T He appeared before a Deputy Special Magistrate (hereinafter called the T
U 1 U
C on t r a r y t o s e c t i on 4 0 ( 1 B A ) o f t h e B u i l d i n g s O r d i n a n c e , C a p . 1 2 3 .
V V
A
-2-
A
B Magistrate) and was convicted after trial. He now appeals against the B
conviction.
C C
D 2. The trial was conducted in Chinese. However, submission of D
both parties at the original trial was prepared in English. So was the
E E
Statement of Findings prepared by the Magistrate. For the purpose of this
F appeal, the Perfected Grounds of Appeal as well as the written submission of F
the Appellant was prepared in English. In the circumstances, parties are in
G G
consensus that the judgment of this appeal be prepared in English.
H H
I PROSE CUTION C ASE I
3. The Appellant is an indigenous villager. He owns a piece of land
J J
in the New Territories by virtue of a New Grant of 14 December 1981. He
K built a 3-storey village house on this land. K
L L
4. The subject matter in this case is a canopy erected on the roof of
M this house. M
N N
5. Evidence of the prosecution was adduced by way of Admitted
O Facts2 which contained the following information : O
P (1) The Appellant has been the owner of the premises since P
14 December 1981;
Q Q
(2) An inspection on 29 January 2011 revealed that there was
R
a canopy on the roof of the premises; R
S (3) The Shatin District Lands Officer confirmed on S
9 February 2011 that :
T T
2
U Pag e 4 i n th e A pp eal Bu ndl e. U
V V
A
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A
B (a) The canopy had not been approved by the Lands B
Department;
C C
(b) It was not exempted works under the Buildings
D D
Ordinance (Application to the New Territories)
E
Ordinance (hereinafter called the NT Ordinance);
E
(c) It’s erection had not been approved or consented by
F F
the Building Authority; and
G G
(d) It was not exempted works under section 41(3) of
H the Building Ordinance. H
(4) On 30 March 2011, the Building Authority made an order
I I
under section 24(1) of the Buildings Ordinance
J (hereinafter called the Order) 3ordering the Appellant to J
remove the canopy and reinstate the parts of the building
K K
so affected by the canopy within 30 days after service of
L the Order; L
M (5) A compliance inspection on 4 July 2011 revealed that the M
canopy remained intact;
N N
(6) On 17 August 2011, the Building Authority issued the
O O
first warning letter to the Appellant;
P (7) On 11 April 2012, another inspection revealed the canopy P
was still intact;
Q Q
(8) On 20 June 2013, the second warning letter was issued;
R R
(9) On 6 August 2013, the canopy was found intact in an
S inspection. S
T T
3
U E xh i b i t P 5 . U
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A
B DE FEN CE C ASE B
6. At the trial, the Appellant elected to testify.4 He was the only
C C
witness called in the trial. The Magistrate accepted his testimony to be true
D and accurate and gave it full weight.5 D
E E
7. According to the Appellant, the building was built in 1985 and
F
was built to the maximum allowable dimensions as stipulated in the New F
G
Grant, i.e. 35 feet (length) x 20 feet (width) x 25 feet (height). The District
G
Land Office issued a Certificate of Compliance which is dated 1 July 1985.
H H
I
8. He started to build the canopy in 1986. The works completed
I
by 1987.
J J
K 9. In 2011, he enlarged and strengthened the canopy. The canopy
K
was enlarged from 400 square feet to about 460 square feet. The dimensions
L L
of the canopy then became approximately 6.5 meter (length) x 5 meter
M (width) x 2.7 meter (height). M
N N
10. The works carried out was merely maintenance and repair
O works. There were changes regarding building material : from metal water O
pipes / quadrate pipes to GMS quadrate pipes which are less susceptible to
P P
rust. Columns and crossbeams were strengthened so that the canopy became
Q more sturdy. Q
R R
S S
T T
4
H i s t e s t i m on y w a s s u m m a r i z e d i n p a r a g r a p h s 6 – 8 i n t h e St a t e m e n t o f
Findings.
5
U See parag raph 4 of th e Stat em en t of Fi ndin gs. U
V V
A
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A
B FI NDI NGS OF T HE MA GISTR AT E B
11. As the prosecution case was presented by way of Admitted
C C
Facts and the testimony of the Appellant was accepted by the Magistrate.
D Issues of the case are legal only. D
E E
12. Whilst Counsel representing the Appellant at trial 6 had
F
presented lengthy written submission, the Magistrate said the issues of the F
G
case are :
G
(1) Had the canopy been in existence prior to the NT
H H
Ordinance and the related Regulations coming into effect;
I and I
J (2) Whether the Order falls under section 24 of the Buildings
J
Ordinance.
K K
L 13. In addressing the issues, the Magistrate found that the changes, L
maintenance or repair done in 2011 had made the canopy a new canopy as
M M
there were substantial changes both in structure and form.
N N
14. She also found the works done to the canopy building works
O O
within the meaning of the Buildings Ordinance. As she did not regard the
P canopy the same as it had originally been erected, she further found that it P
could not be regarded as being exempted from the Buildings Ordinance and
Q Q
the related Regulations.
R R
S S
T T
6
U M r K M C h on g a n d M r D a r r e n P o o n , w h o a l s o r e p r e s e n t e d t h e A p p e l l a n t . U
V V
A
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B B
15. In the premises, she found that the works are unauthorized
C C
under the Buildings ordinance and that the Order was rightly made and valid.
D D
16. The Appellant had not obtained any approval or consent from
E E
the Buildings Department, nor was there a Certificate of Exemption under
F the NT Ordinance. F
G G
17. As the Magistrate found that the overall height of the building
H exceeded the height limit stipulated in the NT Ordinance, she was of the H
view that the building is not exempted from the regulatory provisions.
I I
J 18. All in all, the Magistrate found that the Appellant had J
contravened section 14 of the Buildings Ordinance. She said she found no
K K
evidence in respect of any reasonable excuse the Appellant could rely upon
L for failing to comply with the Order. L
M M
19. As it was her finding that the canopy amounted to a new
N
structure erected in 2011, she found the submission that section 40(1BA) of N
O
the Buildings ordinance lacks retrospective effect irrelevant.
O
P P
GR OUNDS OF A PPEA L
Q 20. The Appellant is represented by Mr KM Chong and Mr Darren Q
R
Poon 7 who also represented the Appellant at trial. They advanced
R
13 grounds of appeal, which may be summarized as follows :
S S
T T
7
Wi t h o u t d i s r e s p e c t t o M r P o on , f o r c on v e n i e n c e s a k e I w i l l on l y r e f e r t o
U M r C h on g l a t e r. U
V V
A
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A
B B
(1) The Appellant was deprived of a fair trial as the
C Magistrate made a finding departed from the prosecution C
case;
D D
(2) There was no evidence to support the following findings
E E
of the Magistrate :
F (a) The works constituted ‘unauthorised building F
works’ within the meaning of the Building
G G
Ordinance; and
H H
(b) The works created a substantial change both in
I structure and in form thereby making the canopy I
of new structure;
J J
(3) The Magistrate failed to consider the effect of individual
K relevant statute and / or the combined effect of the K
statutes upon the canopy which was found to have
L L
already been built and completed in existence prior to 7
M
October 1987; M
N (4) The Magistrate failed to consider the defence of N
reasonable excuse;
O O
(5) The Magistrate failed to consider whether only the 2011
P P
extension of the canopy constituted unauthorized
Q building works and if so whether the Appellant should be
Q
found guilty as the information in the summons
R R
complained of the entire canopy;
S (6) The Magistrate erred in not holding that, prior to S
16 October 1987, there was no concept of unauthorized
T T
building works (hereinafter called UBW) in the New
U U
V V
A
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A
B Territories and / or such concept did not apply to the type B
of village house in question, and therefore there was no
C C
UBW to trigger off the power to issue the Order and to
D prosecute for non-compliance of the Order; D
E
(7) The Magistrate erred in not holding that the canopy was
E
lawfully built and did not constitute UBW as it was in
F F
existence prior to 7 October 1987, before the Buildings
G Ordinance (Application to the New Territories), Cap. 121
G
(hereinafter called the New NT Ordinance) which does
H H
not have retrospective effect was enacted;
I (8) The Magistrate erred not to have held that the New I
NT Ordinance does not have retrospective effect and that
J J
the change of the law on UBW did not outlaw building
K works which had already been completed; K
L (9) The Magistrate erred in not holding that there was no L
evidence to show that the enlargement of the already
M M
existing canopy and replacement of water pipes fall
N within the definition of building works or exempt work N
as provided in the Building Ordinance;
O O
(10) The Magistrate erred in not dismissing the summons on
P P
the ground that there was no contravention of any
Q provisions of the Buildings Ordinance which did not
Q
apply to any structure completed prior to
R R
16 October 1987 even if it had been built without
S authority; S
(11) In the absence of expert evidence, there was no evidence
T T
to show whether the works fall within the definition of
U U
V V
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A
B building works or exempt works as provided in the B
Buildings Ordinance; and
C C
(12) The Magistrate erred in not finding that the Appellant
D D
had a reasonable excuse not to comply with the Order.
E (13) The Magistrate erred in finding that the canopy on the E
building had exceeded the maximum height of 7.62 meter
F F
as allowed in the New NT Ordinance.
G G
H SUBMISSI ON OF T HE RE S PONDE NT
H
21. Counsel representing the Respondent, Ms Micky Fung, SPP, put
I I
forward the following main points in submission :
J J
(1) The Magistrate was justified in making the finding that
K the canopy presently existing is a new canopy.
K
(2) The building works in relation to the canopy therefore
L L
should not be regarded as being exempted from the
M Buildings Ordinance. M
N (3) Even if the canopy is regarded as the one built in 1986, N
there is still a contravention of the relevant statutory
O O
provisions as it exceeds the maximum height as
P permitted. P
Q
(4) On either basis the building works are unauthorized and
Q
therefore the Order was rightly made and valid.
R R
(5) There was non-compliance of the Order and the
S Magistrate was entitled to find that there was no S
reasonable excuse for failure to comply.
T T
U U
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B 22. The Respondent accepted that all the relevant statutes do not B
have retrospective effect.
C C
D 23. It was also accepted that in considering whether the canopy was D
new, the Magistrate departed from the original prosecution case. However,
E E
Ms Fung submitted that no injustice has been caused as the Magistrate had
F made herself clear that she was to consider whether the canopy was new and F
the Defence had been given sufficient opportunity to address the issue.
G G
H H
DISC USSI ON AN D CONSI DE RATI ON
I 24. Having discussed with Counsel, as some of the grounds are I
inter-related, the grounds of appeal can be grouped into the following issues :
J J
(1) Did the Magistrate err in finding that the works in 2011
K K
made the canopy a new structure?
L (2) If this finding is correct, has there been an unfair trial as L
the Magistrate had departed from the prosecution case?
M M
(3) If the Magistrate erred in finding that the canopy was
N N
new, was building of the original canopy lawful, in the
O sense that no regulatory provision has been contravened? O
(4) If the building works of the original canopy was lawful,
P P
was it proper to issue the Order?
Q Q
(5) If such building works were unlawful, should the
R conviction stand? R
S
(6) If the Order is proper, was there reasonable excuse for
S
the non-compliance?
T T
U U
V V
A
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B 25. It appears to me that discussion and consideration of these B
issues are sufficient in addressing all the grounds of appeal.
C C
D
Issue 1 : Did the Magistrate err in finding that the works in 2011 made the D
canopy a new structure?
E E
26. If the finding that it was a new canopy is safe, the issue of
F retrospective effect of the relevant statutes does not arise. The works were F
carried out at a time when the current version of the Buildings Ordinance
G G
and NT Ordinance has become effective.
H H
27. The Magistrate has these to say in relation to the relevant
I I
evidence and her observation :
J J
“6. According to the Appellant’s own evidence, he built a 3-
storey building on the Premises in 1985 and it was built to the
K maximum allowable dimensions stipulated in the New Grant, i.e. K
35 ft (length) x 20 ft (width) x 25 ft (height). A Certificate of
Compliance dated 1 July 1985 was issued by the District Land
L L
Office (“the DLO”) to the Appellant.
M 7. The Appellant further gave evidence that he built a canopy M
on the roof of the aforesaid building on the Premises in 1986, and
the building works of the same was completed by 1987. Later in
N Jan 2011, the Appellant enlarged and strengthened the canopy. N
The Appellant testified that he had enlarged the canopy from 400 ft
O to 2/3 of 700 ft. He agreed that since then, the dimension of the
O
canopy was approximately 6.5m (length) x 5m (width) x 2.7m
(height) as reported in the “New Territories Exempted Houses
P Reporting Scheme for Unauthorized Building Works Report Form” P
(Exhibit P10).
Q 8. The Appellant stressed that the building works he carried out Q
on the Canopy was merely maintenance and repair works. The
R changes he made regarding building materials were e.g. from metal
R
water pipes (水喉通) / quadrate pipes (方通) to GMS quadrate
pipes ( 鉛 水 方 通 ) that are less susceptible to rust. He also
S S
strengthened the columns ( 柱 ) and crossbeams ( 橫 樑 ) so the
Canopy becomes sturdier. The size of the Canopy had also been
T increased by 20 – 30 ft. T
U U
V V
A
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B 9. Having carefully considered the evidence of the Appellant, I
B
find the Canopy in question no long the same canopy the Appellant
claimed when first built in 1986. I find the so-called “changes” or
C “maintenance” or “repair” done in 2011 had made the Canopy a C
new canopy because both the size and building material is different.
D
Even if the Canopy was not “new” for each and every nail and
D
column, I find the change to be a substantial change both in
structure and in form.”8
E E
F 28. Counsel for the Respondent, Ms Mickey Fung, SPP, supported F
the finding of the Magistrate. She submitted that the changes were
G G
substantial as the size of the canopy was increased by some 17%, the
H building materials were changed, and the columns and crossbeams were H
strengthened.
I I
J 29. There was no evidence that the original canopy had been pulled J
down and a new one erected. Indeed, this was not the effect of the testimony
K K
of the Appellant, who offered the only available source of evidence in this
L regard. L
M M
30. I accept that, in certain circumstances, taking into account the
N nature of work and degree of changes, it may be justified to say that a new N
structure has been erected as a result of the works, especially as the structure
O O
is one as simple as the canopy in question.
P P
31. In the present case, it was the submission of Mr Chong that the
Q Q
evidence lacks details9. There was no firm evidence as to how many pipes
R have been replaced. There was no evidence as to whether the cover has been R
replaced.
S S
T T
8
Parag raphs 6 – 9 of t h e Stat em en t of F indi ngs.
9
R e l e va n t p a r t o f t h e e v i d e n c e i s a t p a g e 1 3 7 a n d 1 5 0 – 1 5 3 i n t h e A p p e a l
U Bund l e. U
V V
A
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A
B B
32. Whilst the evidence of the Appellant gives a strong impression
C C
that all the pipes have been replaced, it was not definite nor clear. The
D overall evidence prevents me from agreeing to the conclusion that this is a D
new canopy, although there was certainly an extension of the canopy and the
E E
extension was substantial.
F F
33. In her written submission, Ms Fung pointed out that the
G G
prosecution was in possession of evidence that the canopy was not in
H existence between the period January and October 2010 but such evidence H
was not produced during the prosecution case at the trial. As the defence
I I
case unfolded when the Appellant testified, the prosecution applied to re-
J open its case and introduce such evidence. The application was refused by J
the Magistrate. What Ms Fung informed the Court now is not something I
K K
am entitled to take into account in forming my view.
L L
34. My finding against the Magistrate is not sufficient to dispose of
M M
the appeal. Magistracy appeal takes the form of hearing. 10 I am under a
N
duty to rehear the case based on the evidence adduced before the Magistrate N
O
and accepted by her.
O
P P
Issue 2 : Has there been an unfair trial as the Magistrate had departed from
the prosecution case?
Q Q
R R
S S
T T
10
A s d e c i d e d b y t h e C ou r t o f F i n a l A p p e a l i n C h o u S h i h B i n v H K S A R , ( 2 0 0 5 )
U 8 H K C FA R 7 0 . U
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B B
35. Mr Chong pointed out that the basis of the conviction was the
C finding of the Magistrate that the repair and maintenance works carried out C
in 2011 made the canopy a new structure. However, it was the prosecution
D D
case that the existence of the canopy constituted UBW. The defence was
E run on this understanding and therefore focused on legality of the E
construction of the canopy back in 1986. Had the prosecution put forward a
F F
case as found by the Magistrate, a different defence would be conducted,
G including calling expert evidence to show the meaning of and difference G
between ‘buildings works’ and ‘minor works’. According to section 14AA
H H
of the Buildings Ordinance, section 14(1) which provides for the
I requirement of approval and consent for commencement of building works I
does not apply in respect of minor works commenced under the simplified
J J
requirements.
K K
36. It was the submission of Mr Chong that as the Magistrate found
L L
a case completely different from that of the prosecution without alerting
M
parties, the Appellant has suffered substantial injustice in that he had not M
N
been afforded a reasonable opportunity to deal with the case being
N
considered by the Magistrate.
O O
P
37. On the other hand, Ms Fung submitted that as the defence had
P
been alerted during the exchange between the Magistrate and Counsel, the
Q Q
Appellant had not been prejudiced. The Defence had been given an
R opportunity to response. There was no application of any sort from the
R
Defence.
S S
T 38. In the light of my finding of Issue 1, this issue becomes T
academic and I do not see the need to deal with it, although I find the
U U
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B submission of Ms Fung persuasive that there had not been an unfair trial B
even if there was a departure from the original prosecution case.
C C
D 39. What I am to do is to rehear the case by considering the D
evidence already adduced and decide whether the prosecution case, as it
E E
originally intended to be, is proved. The originally intended prosecution
F case, as accepted by Ms Fung, was simply that the Appellant failed without F
reasonable excuse to comply with the Order. In the final submission,
G G
Counsel representing the prosecution at trial said, “the basis of the present
H prosecution is that D erected the canopy in the premises without having first H
obtained from the Building Authority his written approval and consent, nor
I I
had he obtained a certificate of exemption.”11
J J
K Issue 3 : Was building of the original canopy lawful? K
40. The thrust of Mr Chong’s submission is this. As the village
L L
house was built in 1985, the law as provided in the Buildings Ordinance
M (Application to the New Territories) Regulations, Cap. 322, which was later M
N
repealed (hereinafter called the Old NT Regulations) is relevant.
N
O O
41. It was the submission of Mr Chong that at the material time
P
there was no concept of UBW in the New Territories and / or such concept
P
did not apply to the type of village house in question. As such, he further
Q Q
submitted that there was no contravention of any provision of the Buildings
R Ordinance and as a result the Magistrate erred in not dismissing the
R
summons.
S S
T 42. For the reasons I am to set out, I do not agree to this view. T
11
U See pag e 13 in th e App ea l Bund l e. U
V V
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B 43. As at 1985, certain regulatory provisions in the Buildings B
Ordinance are not applicable in the New Territories by virtue of
C C
regulation 3 (1) of the Old NT Regulations 12.
D D
44. Those regulatory provisions include sections 14 and 24 which
E E
are relevant to the present case.
F F
45. For the exclusion provision of regulation 3(1) to be applicable,
G G
the height limit as stipulated in regulation 3(2) of the Old NT Regulations
H has to be met : 7.62 meter. H
I I
46. This issue involves a finding of fact as to whether the house
J exceeded the stipulated height of 7.62 meters. J
K K
47. The Magistrate found that the height was exceeded. She was of
L the view that the height of the canopy should be included in the L
measurement. If this is legally right, her conclusion is supported by
M M
evidence as it was the evidence of the Appellant that the building itself was
N
built up to the maximum permissible height. N
O O
48. Height is defined in the Old NT Regulations as :
P P
“height, when used in relation to a building, means the height
measured to the highest part of the building, or, in the case of a
Q building which is roofed, to the level of the apex in the case of a Q
pitched roof or to the level of the main roof in the case of a flat
R
roof”13.
R
S S
T T
12
B u i l d i n g s O r d i n a n c e ( A p p l i c a t i on t o t h e N e w Te r r i t o r i e s ) R e g u l a t i on s ,
Cap.322, w hi ch cam e int o for ce on 1 Jul y 196 7.
13
U S e c t i on 2 o f t h e O l d N T R e g u l a t i on s . U
V V
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B 49. It was the submission of Mr Chong that as the building has a B
flat roof, height should be measured by reference to the level of the main
C C
roof. On the other hand, Ms Fung submitted that height should be
D “measured to the highest part of the building”. D
E E
50. In this regard I rule in favour of the Appellant as this is “a case
F of a building which is roofed”. Regulation 3 of the Old NT Regulations is F
applicable in the present case.
G G
H 51. By virtue of regulation 3(1), certain regulatory regulations in the H
Buildings Ordinance were not applicable to certain building works as set out
I I
in the regulation.
J J
52. Mr Chong relied on regulation 3(1)(b) and submitted that the
K K
house was one to which the regulatory provisions are not applicable.
L Regulation 3(1)(b) provides that the regulatory provisions L
M “shall not apply to building works for the alteration of or which are
M
otherwise connected with a building which is, or will when such
works have been carried out, be a building to which this regulation
N applies.” N
O O
53. In my judgment, the exclusion provision of regulation 3(1)(b) is
P not applicable in the circumstances of the present case. I do not consider P
erection of the canopy building works was for the alteration of the building
Q Q
nor was building works in connection with the building. The canopy is of
R course connected physically to the building, however in my judgment R
erection of it is not building works in connection with the building.
S S
T 54. As the exclusion provision is not applicable, section 3 of the T
then existing version of the Buildings Ordinance (Application to the New
U U
V V
A
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B Territories)14(hereinafter called the Old NT Ordinance) is relevant. Section B
3 of the Old NT Ordinance provides that :
C C
“On the commencement of this Ordinance, the principle Ordinance
(the Buildings Ordinance15) shall apply, subject to the provisions of
D D
this Ordinance, in the New Territories.”
E E
55. By virtue of this section, and my ruling in relation to regulation
F F
3 of the Old NT Regulations, the Buildings Ordinance then in force applied
G in the New Territories, covering the building and the canopy in question.
G
H H
56. The most relevant provision of the Buildings Ordinance
I (hereinafter called the Old Buildings Ordinance) which was in force at the
I
16
time the canopy was originally built is section 14.
J J
K 57. Section 14(1) of the Old Buildings Ordinance provides : K
“Save as otherwise provided, no person shall commence or carry
L out any building works or street works without having first L
obtained from the Building Authority –
M M
(a) his approval in the prescribed form of documents
submitted to him in accordance with the regulations; and
N N
(b) his consent in the prescribed form for the
commencement of the building works or street works
O shown in the approved plan.” O
P P
58. Building works is defined in the Old Buildings Ordinance as
Q including “any kind of building construction, site formation works, ground Q
investigation in the scheduled area, repairs, demolition, alteration, addition
R R
and every kind of building operation, and includes drainage work.”
S S
14
T C a p . 3 2 2 , L a w s o f H on g K on g , e n a c t e d i n 1 9 6 0 .
15 T
M y a d d i t i o n , a d o p t i n g t h e d e f i n i t i on a s p r o v i d e d i n s e c t i on 2 o f t h i s
Ordinance.
16
U Cap. 123, Laws of Hong Kong, th e 1 9 8 5 e d i t i on . U
V V
A
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B 59. In my judgment, erection of the canopy falls within the B
definition of building works as provided in the Old Buildings Ordinance.
C C
D 60. There was a certificate dated 1 July 1985 issued by the Shatin D
District Lands Office certifying that all the positive obligations imposed on
E E
the Grantee have been complied with to his satisfaction.17 It only serves as a
F certification of compliance at the time of the grant obligations, not to the F
extent of representing that the relevant regulatory provisions have been
G G
observed or are not required to be observed.
H H
61. The definition of building works in the current version of the
I I
Buildings Ordinance is almost identical with that as provided in the Old
J Buildings Ordinance. The only difference is that foundation works is J
included.
K K
L 62. It follows that the extension of the canopy is also building L
works.
M M
N
63. There is no dispute that as a matter of fact no approval or N
O
consent had been obtained for either the canopy originally built or its
O
extension.
P P
Q
64. For these reasons, the original canopy was built in contravention
Q
of the regulatory provisions then in force. The extension was also built in
R R
contravention of the prevailing regulatory provisions.
S S
T T
17
U I n e xh i b i t P 1 , p a g e 6 6 i n t h e A p p e a l B u n d l e . U
V V
A
- 20 -
A
B Issue 4 : Was it proper to issue the Order? B
C
65. The Order was issued pursuant to section 24(1) of the current
C
Buildings Ordinance, which provides :
D D
“… where any building works … have been … carried out in
contravention of any of the provisions of this Ordinance the
E Building Authority may by order in writing require – E
(a) the demolition of the … building work; or
F F
(b) (repealed);
G G
(c) such alteration of the … building works … as may be
necessary to cause the same to comply with the
H provisions of this Ordinance, or otherwise to put an end H
to the contraventions thereof …”
I I
66. The Order was made on the basis, as stated in the Order, that
J J
building works “have been carried out without having first obtained from
K (the Building Authority) the approval of building plans and consent for the K
commencement of such building works required by section 14 of the
L L
Buildings Ordinance”.
M M
67. The Order requires removal of the canopy and reinstating the
N N
parts of the affected building.
O O
68. The Order was made on the simple basis that the canopy was
P P
noticed. By virtue of section 24 of the Buildings Ordinance, the Building
Q Authority has the power to issue such an order. What then known to the Q
Building Authority were18 :
R R
(a) there was no permission from the Lands Department for
S S
the additional structure; and
T T
18
U Accordin g t o parag raph 4 of th e A dmi tt ed Fa cts. U
V V
A
- 21 -
A
B (b) it is not exempted works under the NT Ordinance. B
C C
69. The analysis in relation to issue 3 is only necessary as,
D subsequent to issuing of the Notice, the assertion that the canopy was D
originally built at a time before the present version of the relevant statutory
E E
provisions came into existence. It was not something known to the
F Authority at the time the Order was made. F
G G
70. In my judgment, issuing of the Order was in the circumstances
H lawful and justifiable. H
I I
Issue 5 : Should the conviction stand?
J J
71. The Appellant is charged for an offence contrary to
K section 40(1BA) of the Buildings Ordinance which was only enacted in 2004. K
It was submitted that as the canopy was originally erected much earlier than
L L
that date, the Appellant cannot be charged for this offence unless the
M provision has retrospective effect. In support of this submission, Mr Chong M
N
cited Article 12 of the Hong Kong Bill of Rights Ordinance19 and R v Tran
N
20
Viet Van .
O O
P
72. I entirely agree that the provision does not have retrospective
P
effect.
Q Q
R 73. However, at the time the canopy was noticed, section 40(1BA)
R
has already come into effect.
S S
T T
19
C a p 3 8 3 o f t h e La w o f H o n g K o n g .
20
U [1992 ] 2 HKC LR 1 84. U
V V
A
- 22 -
A
B 74. For the reasons mentioned above when Issues 3 and 4 were B
addressed, the Order was properly issued. There has been non-compliance
C C
of the Order. Unless there was reasonable excuse, the conviction should
D stand. D
E E
Issue 6 : Was there reasonable excuse?
F F
75. Section 24(1A) of the Buildings Ordinance provides that
G section 24(1) does not apply in respect of minor works commenced under G
the simplified requirements. According to section 2 of the Buildings
H H
Ordinance, simplified requirements are requirements prescribed in the
I regulations as simplified requirements for the purposes of this definition. I
There is no evidence before the Magistrate so that a finding that the works
J J
were minor works could be made.
K K
76. There is also no evidence before the Magistrate so that a finding
L L
that the works were exempt work could be made. Ms Fung pointed out that
M it was an admitted fact that the works were not exempt work. She was M
N
referring to paragraph 4 of the Admitted Facts.
N
O O
77. Notwithstanding there was criticism at the appeal against the
P
Magistrate for deciding the case in departure of the prosecution case, thereby
P
causing injustice and one of the injustice is that the Defence without notice
Q Q
was not able to call evidence in relation to minor works and exempt works,
R this argument is not available to the Appellant now as the determination is
R
based on the prosecution case as it was originally intended and on the basis
S S
that the Appellant believed it to be at the trial. Under such belief, no
T evidence in relation to minor works and exempt works has been adduced. T
U U
V V
A
- 23 -
A
B 78. The case put up by the Appellant is that only the extension B
might be unlawful, the original canopy is not. The Order however requires
C C
him to demolish the whole canopy, the original and its extension. A
D reasonable excuse therefore existed for the Appellant not to comply with the D
Order.
E E
F 79. In the light of my finding, it can only be said that the Appellant F
was at most laboring under a mis-understanding of the law. It is not a
G G
reasonable excuse.
H H
80. In this connection, I also observe that even if the Order is only
I I
valid in relation to the canopy extension, I do not consider it a reasonable
J excuse for the Appellant simply to ignore the Order without taking any step J
to clarify the position with the Authority. What he had done was making a
K K
report under the Reporting Scheme for UBW, for which he received a reply
L that the Authority was not to deal with his report further on the ground that L
an order had been issued.
M M
N
81. I have also considered the matter in the light of the certificate N
O
dated 1 July 1985 issued by the Shatin District Lands Office, as mentioned
O
in paragraph 61 above. It mentioned that the building erected on the lot is
P P
exempt from the provisions of the Buildings Ordinance. From the context it
Q is obvious and clear that what referred to was the building itself, not
Q
something erected on its roof afterwards. Besides, the Appellant was fully
R R
aware that the village house was built up to the maximum of the permitted
S dimensions, in particular the height. S
T T
82. In all the circumstances, I do not consider there was any
U reasonable excuse for not complying with the Order. U
V V
A
- 24 -
A
B CONCLUSION B
83. The Appellant failed to persuade me that the Order was not
C C
valid and that there was reasonable excuse for the Appellant not to comply
D with it. D
E E
84. I therefore dismiss this appeal.
F F
G OBIT ER G
85. Whether it is open to a defendant in a criminal trial to challenge
H H
the validity of a statutory or regulatory order was discussed and considered
I in cases such as HKSAR v Sky Wide Development Ltd. 21 , HKSAR v The I
Incorporated Owners of No. 10 Bonham Strand22 and HKSAR v Joy Express
J J
23
Ltd (N0.2) .
K K
L
86. In Incorporated Owners of No. 10 Bonham Strand, McMahon J
L
said :
M M
“I particularly emphasise that to allow such a defence may mean
the magistrate would be required to determine in a criminal trial
N issues of considerable public importance without the Director N
having any standing as a party to the proceedings. He could not
O
appeal any such decision. I do not think any sensible difference
O
can be drawn between orders in rem as in Boddington’s case and
orders in personam as in the present case. Matters of statutory
P interpretation of building or other regulatory codes of practice may P
arise in both sorts of case so as to establish an interpretation of law
or procedure without the relevant authority having an opportunity
Q Q
to argue its position before the court. That, in my view, is a
situation to be avoided.”
R R
S
87. In Joy Express Ltd (No. 2), Tong J said :
S
T 21 T
[2013 ] 1 HKLRD 613.
22
HCM A 239 /200 4.
23
U [2005 ] 2 HKC 147. U
V V
A
- 25 -
A
B “15. In para 8 of his statement of findings, the magistrate had
B
summarized the main points raised by Mr Choy at the trial and his
analysis was as follows:
C C
‘…
D D
15. In our present case, Part VI of the Buildings Ordinance
provides for the mechanism of appeal by ‘a person aggrieved
E by any decision made by the Building Authority in the
E
exercise of a discretion conferred on him under the
Ordinance’. This falls within the second scenario in
F Boddington. The defendant cannot challenge the validity of F
the Order in this Court.”
G
… G
H “22. In the circumstances, having considered the learned
H
magistrate’s reasoning and assessed the submissions by the
respondent, I could find no basis to disturb the conviction. I would
I therefore dismiss the appeal accordingly.” I
J J
88. In Sky Wide Development Ltd., Deputy Judge (as he then was)
K Andrew Chan said he entirely concurred with the observation of McMahon J. K
L L
89. In my judgment, the same principle applies to a prosecution
M arises from non-compliance of an order issued under the Buildings M
Ordinance. For reasons including what McMahon J had provided, the court
N N
hearing a prosecution brought for non-compliance of the order is in most
O circumstances not an appropriate venue to determine validity of the order. If O
there is other channel to challenge the validity of an order which is on the
P P
face properly issued, permitting a defendant to run this as defence is
Q something to be avoided. Q
R R
90. The argument that it was not up to the Appellant to challenge at
S
trial the validity of the Order indeed was advanced by Counsel representing S
T
the Prosecution 24 . She further submitted that the proper channel for the
T
24
U M s C h oi S z e M a n . U
V V
A
- 26 -
A
B Appellant to challenge the validity of the Order is to lodge an appeal B
pursuant to Part 6 of the Buildings Ordinance.
C C
D 91. The Magistrate, however, did not address this issue and did not D
decide the case along this line. This issue was not raised again in the appeal.
E E
It was against this background that I have not decided this appeal on the
F basis of the principle I consider accurate and applicable in a case like the F
present one.
G G
H H
I I
J (A Wong) J
Judge of the Court of First Instance
K High Court K
L L
Miss Fung Mei Ki, Mickey, SPP of Department of Justice, for the
M respondent M
N Mr K M Chong & Mr Darren Poon, instructed by K C Ho & Fong, for the N
appellant
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
HCMA 694/2014
C C
IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
MAGISTRACY APPEAL NO. 694 OF 2014
F (ON APPEAL FROM STS 10681/2013) F
____________
G G
BETWEEN
H H
HKSAR Respondent
I I
J and J
K K
TSE YEE PING Appellant
L ____________ L
M M
Before: Hon A Wong J in Court
N Date of Hearing: 29 May 2015 N
Date of Judgment: 15 June 2015
O O
______________
P P
JUDGMENT
Q ______________ Q
R R
1. The Appellant was summonsed for the offence of “Failing to
S S
comply with an order of the Building Authority without reasonable excuse”1.
T He appeared before a Deputy Special Magistrate (hereinafter called the T
U 1 U
C on t r a r y t o s e c t i on 4 0 ( 1 B A ) o f t h e B u i l d i n g s O r d i n a n c e , C a p . 1 2 3 .
V V
A
-2-
A
B Magistrate) and was convicted after trial. He now appeals against the B
conviction.
C C
D 2. The trial was conducted in Chinese. However, submission of D
both parties at the original trial was prepared in English. So was the
E E
Statement of Findings prepared by the Magistrate. For the purpose of this
F appeal, the Perfected Grounds of Appeal as well as the written submission of F
the Appellant was prepared in English. In the circumstances, parties are in
G G
consensus that the judgment of this appeal be prepared in English.
H H
I PROSE CUTION C ASE I
3. The Appellant is an indigenous villager. He owns a piece of land
J J
in the New Territories by virtue of a New Grant of 14 December 1981. He
K built a 3-storey village house on this land. K
L L
4. The subject matter in this case is a canopy erected on the roof of
M this house. M
N N
5. Evidence of the prosecution was adduced by way of Admitted
O Facts2 which contained the following information : O
P (1) The Appellant has been the owner of the premises since P
14 December 1981;
Q Q
(2) An inspection on 29 January 2011 revealed that there was
R
a canopy on the roof of the premises; R
S (3) The Shatin District Lands Officer confirmed on S
9 February 2011 that :
T T
2
U Pag e 4 i n th e A pp eal Bu ndl e. U
V V
A
-3-
A
B (a) The canopy had not been approved by the Lands B
Department;
C C
(b) It was not exempted works under the Buildings
D D
Ordinance (Application to the New Territories)
E
Ordinance (hereinafter called the NT Ordinance);
E
(c) It’s erection had not been approved or consented by
F F
the Building Authority; and
G G
(d) It was not exempted works under section 41(3) of
H the Building Ordinance. H
(4) On 30 March 2011, the Building Authority made an order
I I
under section 24(1) of the Buildings Ordinance
J (hereinafter called the Order) 3ordering the Appellant to J
remove the canopy and reinstate the parts of the building
K K
so affected by the canopy within 30 days after service of
L the Order; L
M (5) A compliance inspection on 4 July 2011 revealed that the M
canopy remained intact;
N N
(6) On 17 August 2011, the Building Authority issued the
O O
first warning letter to the Appellant;
P (7) On 11 April 2012, another inspection revealed the canopy P
was still intact;
Q Q
(8) On 20 June 2013, the second warning letter was issued;
R R
(9) On 6 August 2013, the canopy was found intact in an
S inspection. S
T T
3
U E xh i b i t P 5 . U
V V
A
-4-
A
B DE FEN CE C ASE B
6. At the trial, the Appellant elected to testify.4 He was the only
C C
witness called in the trial. The Magistrate accepted his testimony to be true
D and accurate and gave it full weight.5 D
E E
7. According to the Appellant, the building was built in 1985 and
F
was built to the maximum allowable dimensions as stipulated in the New F
G
Grant, i.e. 35 feet (length) x 20 feet (width) x 25 feet (height). The District
G
Land Office issued a Certificate of Compliance which is dated 1 July 1985.
H H
I
8. He started to build the canopy in 1986. The works completed
I
by 1987.
J J
K 9. In 2011, he enlarged and strengthened the canopy. The canopy
K
was enlarged from 400 square feet to about 460 square feet. The dimensions
L L
of the canopy then became approximately 6.5 meter (length) x 5 meter
M (width) x 2.7 meter (height). M
N N
10. The works carried out was merely maintenance and repair
O works. There were changes regarding building material : from metal water O
pipes / quadrate pipes to GMS quadrate pipes which are less susceptible to
P P
rust. Columns and crossbeams were strengthened so that the canopy became
Q more sturdy. Q
R R
S S
T T
4
H i s t e s t i m on y w a s s u m m a r i z e d i n p a r a g r a p h s 6 – 8 i n t h e St a t e m e n t o f
Findings.
5
U See parag raph 4 of th e Stat em en t of Fi ndin gs. U
V V
A
-5-
A
B FI NDI NGS OF T HE MA GISTR AT E B
11. As the prosecution case was presented by way of Admitted
C C
Facts and the testimony of the Appellant was accepted by the Magistrate.
D Issues of the case are legal only. D
E E
12. Whilst Counsel representing the Appellant at trial 6 had
F
presented lengthy written submission, the Magistrate said the issues of the F
G
case are :
G
(1) Had the canopy been in existence prior to the NT
H H
Ordinance and the related Regulations coming into effect;
I and I
J (2) Whether the Order falls under section 24 of the Buildings
J
Ordinance.
K K
L 13. In addressing the issues, the Magistrate found that the changes, L
maintenance or repair done in 2011 had made the canopy a new canopy as
M M
there were substantial changes both in structure and form.
N N
14. She also found the works done to the canopy building works
O O
within the meaning of the Buildings Ordinance. As she did not regard the
P canopy the same as it had originally been erected, she further found that it P
could not be regarded as being exempted from the Buildings Ordinance and
Q Q
the related Regulations.
R R
S S
T T
6
U M r K M C h on g a n d M r D a r r e n P o o n , w h o a l s o r e p r e s e n t e d t h e A p p e l l a n t . U
V V
A
-6-
A
B B
15. In the premises, she found that the works are unauthorized
C C
under the Buildings ordinance and that the Order was rightly made and valid.
D D
16. The Appellant had not obtained any approval or consent from
E E
the Buildings Department, nor was there a Certificate of Exemption under
F the NT Ordinance. F
G G
17. As the Magistrate found that the overall height of the building
H exceeded the height limit stipulated in the NT Ordinance, she was of the H
view that the building is not exempted from the regulatory provisions.
I I
J 18. All in all, the Magistrate found that the Appellant had J
contravened section 14 of the Buildings Ordinance. She said she found no
K K
evidence in respect of any reasonable excuse the Appellant could rely upon
L for failing to comply with the Order. L
M M
19. As it was her finding that the canopy amounted to a new
N
structure erected in 2011, she found the submission that section 40(1BA) of N
O
the Buildings ordinance lacks retrospective effect irrelevant.
O
P P
GR OUNDS OF A PPEA L
Q 20. The Appellant is represented by Mr KM Chong and Mr Darren Q
R
Poon 7 who also represented the Appellant at trial. They advanced
R
13 grounds of appeal, which may be summarized as follows :
S S
T T
7
Wi t h o u t d i s r e s p e c t t o M r P o on , f o r c on v e n i e n c e s a k e I w i l l on l y r e f e r t o
U M r C h on g l a t e r. U
V V
A
-7-
A
B B
(1) The Appellant was deprived of a fair trial as the
C Magistrate made a finding departed from the prosecution C
case;
D D
(2) There was no evidence to support the following findings
E E
of the Magistrate :
F (a) The works constituted ‘unauthorised building F
works’ within the meaning of the Building
G G
Ordinance; and
H H
(b) The works created a substantial change both in
I structure and in form thereby making the canopy I
of new structure;
J J
(3) The Magistrate failed to consider the effect of individual
K relevant statute and / or the combined effect of the K
statutes upon the canopy which was found to have
L L
already been built and completed in existence prior to 7
M
October 1987; M
N (4) The Magistrate failed to consider the defence of N
reasonable excuse;
O O
(5) The Magistrate failed to consider whether only the 2011
P P
extension of the canopy constituted unauthorized
Q building works and if so whether the Appellant should be
Q
found guilty as the information in the summons
R R
complained of the entire canopy;
S (6) The Magistrate erred in not holding that, prior to S
16 October 1987, there was no concept of unauthorized
T T
building works (hereinafter called UBW) in the New
U U
V V
A
-8-
A
B Territories and / or such concept did not apply to the type B
of village house in question, and therefore there was no
C C
UBW to trigger off the power to issue the Order and to
D prosecute for non-compliance of the Order; D
E
(7) The Magistrate erred in not holding that the canopy was
E
lawfully built and did not constitute UBW as it was in
F F
existence prior to 7 October 1987, before the Buildings
G Ordinance (Application to the New Territories), Cap. 121
G
(hereinafter called the New NT Ordinance) which does
H H
not have retrospective effect was enacted;
I (8) The Magistrate erred not to have held that the New I
NT Ordinance does not have retrospective effect and that
J J
the change of the law on UBW did not outlaw building
K works which had already been completed; K
L (9) The Magistrate erred in not holding that there was no L
evidence to show that the enlargement of the already
M M
existing canopy and replacement of water pipes fall
N within the definition of building works or exempt work N
as provided in the Building Ordinance;
O O
(10) The Magistrate erred in not dismissing the summons on
P P
the ground that there was no contravention of any
Q provisions of the Buildings Ordinance which did not
Q
apply to any structure completed prior to
R R
16 October 1987 even if it had been built without
S authority; S
(11) In the absence of expert evidence, there was no evidence
T T
to show whether the works fall within the definition of
U U
V V
A
-9-
A
B building works or exempt works as provided in the B
Buildings Ordinance; and
C C
(12) The Magistrate erred in not finding that the Appellant
D D
had a reasonable excuse not to comply with the Order.
E (13) The Magistrate erred in finding that the canopy on the E
building had exceeded the maximum height of 7.62 meter
F F
as allowed in the New NT Ordinance.
G G
H SUBMISSI ON OF T HE RE S PONDE NT
H
21. Counsel representing the Respondent, Ms Micky Fung, SPP, put
I I
forward the following main points in submission :
J J
(1) The Magistrate was justified in making the finding that
K the canopy presently existing is a new canopy.
K
(2) The building works in relation to the canopy therefore
L L
should not be regarded as being exempted from the
M Buildings Ordinance. M
N (3) Even if the canopy is regarded as the one built in 1986, N
there is still a contravention of the relevant statutory
O O
provisions as it exceeds the maximum height as
P permitted. P
Q
(4) On either basis the building works are unauthorized and
Q
therefore the Order was rightly made and valid.
R R
(5) There was non-compliance of the Order and the
S Magistrate was entitled to find that there was no S
reasonable excuse for failure to comply.
T T
U U
V V
A
- 10 -
A
B 22. The Respondent accepted that all the relevant statutes do not B
have retrospective effect.
C C
D 23. It was also accepted that in considering whether the canopy was D
new, the Magistrate departed from the original prosecution case. However,
E E
Ms Fung submitted that no injustice has been caused as the Magistrate had
F made herself clear that she was to consider whether the canopy was new and F
the Defence had been given sufficient opportunity to address the issue.
G G
H H
DISC USSI ON AN D CONSI DE RATI ON
I 24. Having discussed with Counsel, as some of the grounds are I
inter-related, the grounds of appeal can be grouped into the following issues :
J J
(1) Did the Magistrate err in finding that the works in 2011
K K
made the canopy a new structure?
L (2) If this finding is correct, has there been an unfair trial as L
the Magistrate had departed from the prosecution case?
M M
(3) If the Magistrate erred in finding that the canopy was
N N
new, was building of the original canopy lawful, in the
O sense that no regulatory provision has been contravened? O
(4) If the building works of the original canopy was lawful,
P P
was it proper to issue the Order?
Q Q
(5) If such building works were unlawful, should the
R conviction stand? R
S
(6) If the Order is proper, was there reasonable excuse for
S
the non-compliance?
T T
U U
V V
A
- 11 -
A
B 25. It appears to me that discussion and consideration of these B
issues are sufficient in addressing all the grounds of appeal.
C C
D
Issue 1 : Did the Magistrate err in finding that the works in 2011 made the D
canopy a new structure?
E E
26. If the finding that it was a new canopy is safe, the issue of
F retrospective effect of the relevant statutes does not arise. The works were F
carried out at a time when the current version of the Buildings Ordinance
G G
and NT Ordinance has become effective.
H H
27. The Magistrate has these to say in relation to the relevant
I I
evidence and her observation :
J J
“6. According to the Appellant’s own evidence, he built a 3-
storey building on the Premises in 1985 and it was built to the
K maximum allowable dimensions stipulated in the New Grant, i.e. K
35 ft (length) x 20 ft (width) x 25 ft (height). A Certificate of
Compliance dated 1 July 1985 was issued by the District Land
L L
Office (“the DLO”) to the Appellant.
M 7. The Appellant further gave evidence that he built a canopy M
on the roof of the aforesaid building on the Premises in 1986, and
the building works of the same was completed by 1987. Later in
N Jan 2011, the Appellant enlarged and strengthened the canopy. N
The Appellant testified that he had enlarged the canopy from 400 ft
O to 2/3 of 700 ft. He agreed that since then, the dimension of the
O
canopy was approximately 6.5m (length) x 5m (width) x 2.7m
(height) as reported in the “New Territories Exempted Houses
P Reporting Scheme for Unauthorized Building Works Report Form” P
(Exhibit P10).
Q 8. The Appellant stressed that the building works he carried out Q
on the Canopy was merely maintenance and repair works. The
R changes he made regarding building materials were e.g. from metal
R
water pipes (水喉通) / quadrate pipes (方通) to GMS quadrate
pipes ( 鉛 水 方 通 ) that are less susceptible to rust. He also
S S
strengthened the columns ( 柱 ) and crossbeams ( 橫 樑 ) so the
Canopy becomes sturdier. The size of the Canopy had also been
T increased by 20 – 30 ft. T
U U
V V
A
- 12 -
A
B 9. Having carefully considered the evidence of the Appellant, I
B
find the Canopy in question no long the same canopy the Appellant
claimed when first built in 1986. I find the so-called “changes” or
C “maintenance” or “repair” done in 2011 had made the Canopy a C
new canopy because both the size and building material is different.
D
Even if the Canopy was not “new” for each and every nail and
D
column, I find the change to be a substantial change both in
structure and in form.”8
E E
F 28. Counsel for the Respondent, Ms Mickey Fung, SPP, supported F
the finding of the Magistrate. She submitted that the changes were
G G
substantial as the size of the canopy was increased by some 17%, the
H building materials were changed, and the columns and crossbeams were H
strengthened.
I I
J 29. There was no evidence that the original canopy had been pulled J
down and a new one erected. Indeed, this was not the effect of the testimony
K K
of the Appellant, who offered the only available source of evidence in this
L regard. L
M M
30. I accept that, in certain circumstances, taking into account the
N nature of work and degree of changes, it may be justified to say that a new N
structure has been erected as a result of the works, especially as the structure
O O
is one as simple as the canopy in question.
P P
31. In the present case, it was the submission of Mr Chong that the
Q Q
evidence lacks details9. There was no firm evidence as to how many pipes
R have been replaced. There was no evidence as to whether the cover has been R
replaced.
S S
T T
8
Parag raphs 6 – 9 of t h e Stat em en t of F indi ngs.
9
R e l e va n t p a r t o f t h e e v i d e n c e i s a t p a g e 1 3 7 a n d 1 5 0 – 1 5 3 i n t h e A p p e a l
U Bund l e. U
V V
A
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A
B B
32. Whilst the evidence of the Appellant gives a strong impression
C C
that all the pipes have been replaced, it was not definite nor clear. The
D overall evidence prevents me from agreeing to the conclusion that this is a D
new canopy, although there was certainly an extension of the canopy and the
E E
extension was substantial.
F F
33. In her written submission, Ms Fung pointed out that the
G G
prosecution was in possession of evidence that the canopy was not in
H existence between the period January and October 2010 but such evidence H
was not produced during the prosecution case at the trial. As the defence
I I
case unfolded when the Appellant testified, the prosecution applied to re-
J open its case and introduce such evidence. The application was refused by J
the Magistrate. What Ms Fung informed the Court now is not something I
K K
am entitled to take into account in forming my view.
L L
34. My finding against the Magistrate is not sufficient to dispose of
M M
the appeal. Magistracy appeal takes the form of hearing. 10 I am under a
N
duty to rehear the case based on the evidence adduced before the Magistrate N
O
and accepted by her.
O
P P
Issue 2 : Has there been an unfair trial as the Magistrate had departed from
the prosecution case?
Q Q
R R
S S
T T
10
A s d e c i d e d b y t h e C ou r t o f F i n a l A p p e a l i n C h o u S h i h B i n v H K S A R , ( 2 0 0 5 )
U 8 H K C FA R 7 0 . U
V V
A
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A
B B
35. Mr Chong pointed out that the basis of the conviction was the
C finding of the Magistrate that the repair and maintenance works carried out C
in 2011 made the canopy a new structure. However, it was the prosecution
D D
case that the existence of the canopy constituted UBW. The defence was
E run on this understanding and therefore focused on legality of the E
construction of the canopy back in 1986. Had the prosecution put forward a
F F
case as found by the Magistrate, a different defence would be conducted,
G including calling expert evidence to show the meaning of and difference G
between ‘buildings works’ and ‘minor works’. According to section 14AA
H H
of the Buildings Ordinance, section 14(1) which provides for the
I requirement of approval and consent for commencement of building works I
does not apply in respect of minor works commenced under the simplified
J J
requirements.
K K
36. It was the submission of Mr Chong that as the Magistrate found
L L
a case completely different from that of the prosecution without alerting
M
parties, the Appellant has suffered substantial injustice in that he had not M
N
been afforded a reasonable opportunity to deal with the case being
N
considered by the Magistrate.
O O
P
37. On the other hand, Ms Fung submitted that as the defence had
P
been alerted during the exchange between the Magistrate and Counsel, the
Q Q
Appellant had not been prejudiced. The Defence had been given an
R opportunity to response. There was no application of any sort from the
R
Defence.
S S
T 38. In the light of my finding of Issue 1, this issue becomes T
academic and I do not see the need to deal with it, although I find the
U U
V V
A
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A
B submission of Ms Fung persuasive that there had not been an unfair trial B
even if there was a departure from the original prosecution case.
C C
D 39. What I am to do is to rehear the case by considering the D
evidence already adduced and decide whether the prosecution case, as it
E E
originally intended to be, is proved. The originally intended prosecution
F case, as accepted by Ms Fung, was simply that the Appellant failed without F
reasonable excuse to comply with the Order. In the final submission,
G G
Counsel representing the prosecution at trial said, “the basis of the present
H prosecution is that D erected the canopy in the premises without having first H
obtained from the Building Authority his written approval and consent, nor
I I
had he obtained a certificate of exemption.”11
J J
K Issue 3 : Was building of the original canopy lawful? K
40. The thrust of Mr Chong’s submission is this. As the village
L L
house was built in 1985, the law as provided in the Buildings Ordinance
M (Application to the New Territories) Regulations, Cap. 322, which was later M
N
repealed (hereinafter called the Old NT Regulations) is relevant.
N
O O
41. It was the submission of Mr Chong that at the material time
P
there was no concept of UBW in the New Territories and / or such concept
P
did not apply to the type of village house in question. As such, he further
Q Q
submitted that there was no contravention of any provision of the Buildings
R Ordinance and as a result the Magistrate erred in not dismissing the
R
summons.
S S
T 42. For the reasons I am to set out, I do not agree to this view. T
11
U See pag e 13 in th e App ea l Bund l e. U
V V
A
- 16 -
A
B 43. As at 1985, certain regulatory provisions in the Buildings B
Ordinance are not applicable in the New Territories by virtue of
C C
regulation 3 (1) of the Old NT Regulations 12.
D D
44. Those regulatory provisions include sections 14 and 24 which
E E
are relevant to the present case.
F F
45. For the exclusion provision of regulation 3(1) to be applicable,
G G
the height limit as stipulated in regulation 3(2) of the Old NT Regulations
H has to be met : 7.62 meter. H
I I
46. This issue involves a finding of fact as to whether the house
J exceeded the stipulated height of 7.62 meters. J
K K
47. The Magistrate found that the height was exceeded. She was of
L the view that the height of the canopy should be included in the L
measurement. If this is legally right, her conclusion is supported by
M M
evidence as it was the evidence of the Appellant that the building itself was
N
built up to the maximum permissible height. N
O O
48. Height is defined in the Old NT Regulations as :
P P
“height, when used in relation to a building, means the height
measured to the highest part of the building, or, in the case of a
Q building which is roofed, to the level of the apex in the case of a Q
pitched roof or to the level of the main roof in the case of a flat
R
roof”13.
R
S S
T T
12
B u i l d i n g s O r d i n a n c e ( A p p l i c a t i on t o t h e N e w Te r r i t o r i e s ) R e g u l a t i on s ,
Cap.322, w hi ch cam e int o for ce on 1 Jul y 196 7.
13
U S e c t i on 2 o f t h e O l d N T R e g u l a t i on s . U
V V
A
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A
B 49. It was the submission of Mr Chong that as the building has a B
flat roof, height should be measured by reference to the level of the main
C C
roof. On the other hand, Ms Fung submitted that height should be
D “measured to the highest part of the building”. D
E E
50. In this regard I rule in favour of the Appellant as this is “a case
F of a building which is roofed”. Regulation 3 of the Old NT Regulations is F
applicable in the present case.
G G
H 51. By virtue of regulation 3(1), certain regulatory regulations in the H
Buildings Ordinance were not applicable to certain building works as set out
I I
in the regulation.
J J
52. Mr Chong relied on regulation 3(1)(b) and submitted that the
K K
house was one to which the regulatory provisions are not applicable.
L Regulation 3(1)(b) provides that the regulatory provisions L
M “shall not apply to building works for the alteration of or which are
M
otherwise connected with a building which is, or will when such
works have been carried out, be a building to which this regulation
N applies.” N
O O
53. In my judgment, the exclusion provision of regulation 3(1)(b) is
P not applicable in the circumstances of the present case. I do not consider P
erection of the canopy building works was for the alteration of the building
Q Q
nor was building works in connection with the building. The canopy is of
R course connected physically to the building, however in my judgment R
erection of it is not building works in connection with the building.
S S
T 54. As the exclusion provision is not applicable, section 3 of the T
then existing version of the Buildings Ordinance (Application to the New
U U
V V
A
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A
B Territories)14(hereinafter called the Old NT Ordinance) is relevant. Section B
3 of the Old NT Ordinance provides that :
C C
“On the commencement of this Ordinance, the principle Ordinance
(the Buildings Ordinance15) shall apply, subject to the provisions of
D D
this Ordinance, in the New Territories.”
E E
55. By virtue of this section, and my ruling in relation to regulation
F F
3 of the Old NT Regulations, the Buildings Ordinance then in force applied
G in the New Territories, covering the building and the canopy in question.
G
H H
56. The most relevant provision of the Buildings Ordinance
I (hereinafter called the Old Buildings Ordinance) which was in force at the
I
16
time the canopy was originally built is section 14.
J J
K 57. Section 14(1) of the Old Buildings Ordinance provides : K
“Save as otherwise provided, no person shall commence or carry
L out any building works or street works without having first L
obtained from the Building Authority –
M M
(a) his approval in the prescribed form of documents
submitted to him in accordance with the regulations; and
N N
(b) his consent in the prescribed form for the
commencement of the building works or street works
O shown in the approved plan.” O
P P
58. Building works is defined in the Old Buildings Ordinance as
Q including “any kind of building construction, site formation works, ground Q
investigation in the scheduled area, repairs, demolition, alteration, addition
R R
and every kind of building operation, and includes drainage work.”
S S
14
T C a p . 3 2 2 , L a w s o f H on g K on g , e n a c t e d i n 1 9 6 0 .
15 T
M y a d d i t i o n , a d o p t i n g t h e d e f i n i t i on a s p r o v i d e d i n s e c t i on 2 o f t h i s
Ordinance.
16
U Cap. 123, Laws of Hong Kong, th e 1 9 8 5 e d i t i on . U
V V
A
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A
B 59. In my judgment, erection of the canopy falls within the B
definition of building works as provided in the Old Buildings Ordinance.
C C
D 60. There was a certificate dated 1 July 1985 issued by the Shatin D
District Lands Office certifying that all the positive obligations imposed on
E E
the Grantee have been complied with to his satisfaction.17 It only serves as a
F certification of compliance at the time of the grant obligations, not to the F
extent of representing that the relevant regulatory provisions have been
G G
observed or are not required to be observed.
H H
61. The definition of building works in the current version of the
I I
Buildings Ordinance is almost identical with that as provided in the Old
J Buildings Ordinance. The only difference is that foundation works is J
included.
K K
L 62. It follows that the extension of the canopy is also building L
works.
M M
N
63. There is no dispute that as a matter of fact no approval or N
O
consent had been obtained for either the canopy originally built or its
O
extension.
P P
Q
64. For these reasons, the original canopy was built in contravention
Q
of the regulatory provisions then in force. The extension was also built in
R R
contravention of the prevailing regulatory provisions.
S S
T T
17
U I n e xh i b i t P 1 , p a g e 6 6 i n t h e A p p e a l B u n d l e . U
V V
A
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A
B Issue 4 : Was it proper to issue the Order? B
C
65. The Order was issued pursuant to section 24(1) of the current
C
Buildings Ordinance, which provides :
D D
“… where any building works … have been … carried out in
contravention of any of the provisions of this Ordinance the
E Building Authority may by order in writing require – E
(a) the demolition of the … building work; or
F F
(b) (repealed);
G G
(c) such alteration of the … building works … as may be
necessary to cause the same to comply with the
H provisions of this Ordinance, or otherwise to put an end H
to the contraventions thereof …”
I I
66. The Order was made on the basis, as stated in the Order, that
J J
building works “have been carried out without having first obtained from
K (the Building Authority) the approval of building plans and consent for the K
commencement of such building works required by section 14 of the
L L
Buildings Ordinance”.
M M
67. The Order requires removal of the canopy and reinstating the
N N
parts of the affected building.
O O
68. The Order was made on the simple basis that the canopy was
P P
noticed. By virtue of section 24 of the Buildings Ordinance, the Building
Q Authority has the power to issue such an order. What then known to the Q
Building Authority were18 :
R R
(a) there was no permission from the Lands Department for
S S
the additional structure; and
T T
18
U Accordin g t o parag raph 4 of th e A dmi tt ed Fa cts. U
V V
A
- 21 -
A
B (b) it is not exempted works under the NT Ordinance. B
C C
69. The analysis in relation to issue 3 is only necessary as,
D subsequent to issuing of the Notice, the assertion that the canopy was D
originally built at a time before the present version of the relevant statutory
E E
provisions came into existence. It was not something known to the
F Authority at the time the Order was made. F
G G
70. In my judgment, issuing of the Order was in the circumstances
H lawful and justifiable. H
I I
Issue 5 : Should the conviction stand?
J J
71. The Appellant is charged for an offence contrary to
K section 40(1BA) of the Buildings Ordinance which was only enacted in 2004. K
It was submitted that as the canopy was originally erected much earlier than
L L
that date, the Appellant cannot be charged for this offence unless the
M provision has retrospective effect. In support of this submission, Mr Chong M
N
cited Article 12 of the Hong Kong Bill of Rights Ordinance19 and R v Tran
N
20
Viet Van .
O O
P
72. I entirely agree that the provision does not have retrospective
P
effect.
Q Q
R 73. However, at the time the canopy was noticed, section 40(1BA)
R
has already come into effect.
S S
T T
19
C a p 3 8 3 o f t h e La w o f H o n g K o n g .
20
U [1992 ] 2 HKC LR 1 84. U
V V
A
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A
B 74. For the reasons mentioned above when Issues 3 and 4 were B
addressed, the Order was properly issued. There has been non-compliance
C C
of the Order. Unless there was reasonable excuse, the conviction should
D stand. D
E E
Issue 6 : Was there reasonable excuse?
F F
75. Section 24(1A) of the Buildings Ordinance provides that
G section 24(1) does not apply in respect of minor works commenced under G
the simplified requirements. According to section 2 of the Buildings
H H
Ordinance, simplified requirements are requirements prescribed in the
I regulations as simplified requirements for the purposes of this definition. I
There is no evidence before the Magistrate so that a finding that the works
J J
were minor works could be made.
K K
76. There is also no evidence before the Magistrate so that a finding
L L
that the works were exempt work could be made. Ms Fung pointed out that
M it was an admitted fact that the works were not exempt work. She was M
N
referring to paragraph 4 of the Admitted Facts.
N
O O
77. Notwithstanding there was criticism at the appeal against the
P
Magistrate for deciding the case in departure of the prosecution case, thereby
P
causing injustice and one of the injustice is that the Defence without notice
Q Q
was not able to call evidence in relation to minor works and exempt works,
R this argument is not available to the Appellant now as the determination is
R
based on the prosecution case as it was originally intended and on the basis
S S
that the Appellant believed it to be at the trial. Under such belief, no
T evidence in relation to minor works and exempt works has been adduced. T
U U
V V
A
- 23 -
A
B 78. The case put up by the Appellant is that only the extension B
might be unlawful, the original canopy is not. The Order however requires
C C
him to demolish the whole canopy, the original and its extension. A
D reasonable excuse therefore existed for the Appellant not to comply with the D
Order.
E E
F 79. In the light of my finding, it can only be said that the Appellant F
was at most laboring under a mis-understanding of the law. It is not a
G G
reasonable excuse.
H H
80. In this connection, I also observe that even if the Order is only
I I
valid in relation to the canopy extension, I do not consider it a reasonable
J excuse for the Appellant simply to ignore the Order without taking any step J
to clarify the position with the Authority. What he had done was making a
K K
report under the Reporting Scheme for UBW, for which he received a reply
L that the Authority was not to deal with his report further on the ground that L
an order had been issued.
M M
N
81. I have also considered the matter in the light of the certificate N
O
dated 1 July 1985 issued by the Shatin District Lands Office, as mentioned
O
in paragraph 61 above. It mentioned that the building erected on the lot is
P P
exempt from the provisions of the Buildings Ordinance. From the context it
Q is obvious and clear that what referred to was the building itself, not
Q
something erected on its roof afterwards. Besides, the Appellant was fully
R R
aware that the village house was built up to the maximum of the permitted
S dimensions, in particular the height. S
T T
82. In all the circumstances, I do not consider there was any
U reasonable excuse for not complying with the Order. U
V V
A
- 24 -
A
B CONCLUSION B
83. The Appellant failed to persuade me that the Order was not
C C
valid and that there was reasonable excuse for the Appellant not to comply
D with it. D
E E
84. I therefore dismiss this appeal.
F F
G OBIT ER G
85. Whether it is open to a defendant in a criminal trial to challenge
H H
the validity of a statutory or regulatory order was discussed and considered
I in cases such as HKSAR v Sky Wide Development Ltd. 21 , HKSAR v The I
Incorporated Owners of No. 10 Bonham Strand22 and HKSAR v Joy Express
J J
23
Ltd (N0.2) .
K K
L
86. In Incorporated Owners of No. 10 Bonham Strand, McMahon J
L
said :
M M
“I particularly emphasise that to allow such a defence may mean
the magistrate would be required to determine in a criminal trial
N issues of considerable public importance without the Director N
having any standing as a party to the proceedings. He could not
O
appeal any such decision. I do not think any sensible difference
O
can be drawn between orders in rem as in Boddington’s case and
orders in personam as in the present case. Matters of statutory
P interpretation of building or other regulatory codes of practice may P
arise in both sorts of case so as to establish an interpretation of law
or procedure without the relevant authority having an opportunity
Q Q
to argue its position before the court. That, in my view, is a
situation to be avoided.”
R R
S
87. In Joy Express Ltd (No. 2), Tong J said :
S
T 21 T
[2013 ] 1 HKLRD 613.
22
HCM A 239 /200 4.
23
U [2005 ] 2 HKC 147. U
V V
A
- 25 -
A
B “15. In para 8 of his statement of findings, the magistrate had
B
summarized the main points raised by Mr Choy at the trial and his
analysis was as follows:
C C
‘…
D D
15. In our present case, Part VI of the Buildings Ordinance
provides for the mechanism of appeal by ‘a person aggrieved
E by any decision made by the Building Authority in the
E
exercise of a discretion conferred on him under the
Ordinance’. This falls within the second scenario in
F Boddington. The defendant cannot challenge the validity of F
the Order in this Court.”
G
… G
H “22. In the circumstances, having considered the learned
H
magistrate’s reasoning and assessed the submissions by the
respondent, I could find no basis to disturb the conviction. I would
I therefore dismiss the appeal accordingly.” I
J J
88. In Sky Wide Development Ltd., Deputy Judge (as he then was)
K Andrew Chan said he entirely concurred with the observation of McMahon J. K
L L
89. In my judgment, the same principle applies to a prosecution
M arises from non-compliance of an order issued under the Buildings M
Ordinance. For reasons including what McMahon J had provided, the court
N N
hearing a prosecution brought for non-compliance of the order is in most
O circumstances not an appropriate venue to determine validity of the order. If O
there is other channel to challenge the validity of an order which is on the
P P
face properly issued, permitting a defendant to run this as defence is
Q something to be avoided. Q
R R
90. The argument that it was not up to the Appellant to challenge at
S
trial the validity of the Order indeed was advanced by Counsel representing S
T
the Prosecution 24 . She further submitted that the proper channel for the
T
24
U M s C h oi S z e M a n . U
V V
A
- 26 -
A
B Appellant to challenge the validity of the Order is to lodge an appeal B
pursuant to Part 6 of the Buildings Ordinance.
C C
D 91. The Magistrate, however, did not address this issue and did not D
decide the case along this line. This issue was not raised again in the appeal.
E E
It was against this background that I have not decided this appeal on the
F basis of the principle I consider accurate and applicable in a case like the F
present one.
G G
H H
I I
J (A Wong) J
Judge of the Court of First Instance
K High Court K
L L
Miss Fung Mei Ki, Mickey, SPP of Department of Justice, for the
M respondent M
N Mr K M Chong & Mr Darren Poon, instructed by K C Ho & Fong, for the N
appellant
O O
P P
Q Q
R R
S S
T T
U U
V V