Billboard Advertising Management Ltv v Building Authority

CourtHigh Court (Hong Kong)
Judgment Date27 December 2013
Judgement NumberHCAL114/2013
Subject MatterConstitutional and Administrative Law Proceedings
HCAL114/2013 BILLBOARD ADVERTISING MANAGEMENT LTV v. BUILDING AUTHORITY

HCAL 114/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 114 OF 2013

____________

IN THE MATTER of an Application by BILLBOARD ADVERTISING MANAGEMENT LIMITED for Leave to Apply for Judicial Review pursuant to Order 53, rule 3 of the Rules of the High Court, Cap 4A

and

IN THE MATTER of the Buildings Ordinance, Cap 123

_____________

BETWEEN

BILLBOARD ADVERTISING MANAGEMENT LIMITED Applicant

and

BUILDING AUTHORITY Putative Respondent
____________

AND

HCAL 147/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 147 OF 2013
____________

IN THE MATTER of an Application by BILLBOARD ADVERTISING MANAGEMENT LIMITED for Leave to Apply for Judicial Review pursuant to Order 53, rule 3 of the Rules of the High Court, Cap 4A

and

IN THE MATTER of the Buildings Ordinance, Cap 123

_____________

BETWEEN

BILLBOARD ADVERTISING MANAGEMENT LIMITED Applicant

and

BUILDING AUTHORITY Putative Respondent
____________

AND

HCAL 148/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 148 OF 2013
____________

IN THE MATTER of an Application by GOLDEN ADVERTISING CONSULTANCY LIMITED for Leave to Apply for Judicial Review pursuant to Order 53, rule 3 of the Rules of the High Court, Cap 4A

and

IN THE MATTER of the Buildings Ordinance, Cap 123

_____________

BETWEEN

GOLDEN ADVERTISING CONSULTANCY LIMITED Applicant

and

BUILDING AUTHORITY Putative Respondent
____________
(Heard together)
Before: Hon Au-Yeung J in Court
Date of Hearing: 27 November 2013
Date of Decision: 27 December 2013

______________

D E C I S I O N

______________

1. These 3 applications for leave to apply for judicial review are heard together as they involve a common core issue, namely, after the Building Authority (“BA”) has issued a building order for demolition of a signboard against a person whom it regarded as “person for whom a signboard was erected”, does it have a duty to issue further building orders against a person who subsequently emerges and claims to be the owner of the signboard? The applications for interim injunction in HCAL 114 of 2013 will be determined upon resolution of this core issue.

BACKGROUND

2. The applicants (“BAML” and “GACL” respectively) and the relevant building orders are set out below:

Table 1


Case number
Applicant Location of
signboard

Date of building orders

Addressee of building orders

HCAL 114/2013

BAML (previously known as Easy Crème Management Ltd)

2 signboards erected on the external wall of Heung Hoi Mansion, Nos. 28-32 O’Brien Road (“the O’Brien Road Signboard”)

18.5.2011
27.9.2011

Easy Groups Ltd (later changed its name to HKTAL)易通集團有限公司

HCAL 147/2013

BAML

signboard erected on the external wall of Nos. 72-74 Percival Street (“the Percival Street Signboard”)

10.12.2011

Easy Group Ltd
易通集團有限公司

HCAL 148/2013

GACL

signboard erected on the external wall of Nos. 26-30 Canal Road West (“the Canal Road Signboard”)

3.12.2010

Easy Groups Ltd
易通集團有限公司

3. Pursuant to investigations, BA found that the Signboards had the following inscriptions/logos on them:

Table 2


Location of signboard

Graphic Logo

Inscription

O’Brien Road Signboard
3/F signboard
After the 2/F signboard was erected, it merged with the 3/F signboard to become an integrated signboard

“Easy Groups”
“EASY GROUP”

“AD HERE HOTLINE 2988 8348”
“Planning by: 易通集團 AD HERE HOTLINE 2988 8348”

Percival Street Signboard

“EASY GROUPS”

“易通集團2988 8348”

Canal Road Signboard

Small tag attached to scaffolding during construction bearing the graphic logo “EASY GROUPS”
Email complaint letter and photo showing same logo

Small tag attached to scaffolding during construction bearing the inscription “易通集團2988 8348”
Email complaint letter and photo showing inscription “AD HERE HOTLINE 2988 8348”

4. BA’s investigation showed that Easy Groups Limited (EGL") was marketing signboards on its website (www.eghk.com). The “contact us” page on the website showed the telephone number of the Hong Kong headquarter of Easy Groups Ltd to be 2988 8348, matching that on the Signboards. On such bases, BA verily believed that EGL was the party “for whom” the Signboards had been/was being erected within the meaning of section 24(2)(c)(i) of the Building Ordinance (“BO”). BA accordingly issued the Building Orders in Table 1.

5. EGL lodged appeals to the Buildings Appeal Tribunal (“BAT”) in respect of the Building Orders on the ground that it only did taxi advertisement business and had nothing to do with the Signboards or the names of Easy Group, Easy Groups or 易通集團 at all. To avoid receiving letters and orders from BA all the time, EGL changed its name to Hong Kong Transport Advertising Limited (“HKTAL”).

6. In relation to the O’Brien Road and Percival Street Signboards, one Mr Wong Pak Keung (“Donald Wong”) appeared before BAT to give evidence on behalf of HKTAL. He initially denied but eventually admitted that the contact information (including the telephone number and address on the website www.eghk.com) was that of EGL. The details printed on the envelop enclosing the letter from EGL/HKTAL dated 19 May 2011 also corresponded to the details inscribed on the Signboards and that website. The 2 appeals were unanimously dismissed by the BAT on 8 November 2012 after preliminary hearings. There was no challenge by judicial reviews. The net result was that the O’Brien Road and Percival Street Building Orders remained valid and enforceable.

7. The appeal in relation to the Canal Road Signboard was later withdrawn by EGL/HKTAL on 15 September 2011 upon legal advice, six days before the preliminary hearing at BAT. Accordingly, the Canal Road Building Order also remained valid and enforceable.

8. BA sent the last round of reminders for demolition of the 3 sets of Signboards to HKTAL in early January 2013. A few days later, BAML and GACL suddenly emerged and claimed to be owners of the Signboards and were at all material times responsible for their construction and marketing.

9. Having purportedly provided proof to BA of their ownership, BAML and GACL asked BA to issue building orders on them. BA refused. The relevant letters of BA which form the subject of these leave applications are as follows:

Case number

Date of BA’s letters

Due date for demolition

HCAL 114/2013

5, 11 and 18 July 2013

22 July 2013

HCAL 147/2013

9 July 2013

26 July 2013

HCAL 148/2013

12 July 2013

31 July 2013

10. Three days before the O’Brien Road Signboard was due to be demolished, BAML in HCAL114/2013 applied, ex parte, for an injunction restraining BA from demolition. At that time, the draft papers for the leave application for judicial review were not even prepared. The application was adjourned pending service on the putative respondents.

11. The Applicants have since filed Forms 86 seeking orders of mandamus requiring BA to serve the Building Orders or new building orders on them; injunctions restraining BA from demolishing the Signboards until such service; and declarations that BAML and GACL were at all material times the owner of the relevant Signboards.

12. In HCAL 114/2013, BAML pursues its application for an interim injunction. Upon the undertaking of the BA not to demolish the O’Brien Road Signboard and upon fulfilment of conditions imposed by this court, the demolition was suspended.

THE APPLICANTS’ CASE

13. According to one Mr Sam Chan, BAML and GACL have at all material times been engaged in the business of signboard marketing. Since the end of 2010, Sam Chan has undergone a series of takeover in the signboard advertising industry in Hong Kong. He acquired:

(i) BAML on 10 November 2010;

(ii) EAGL (ie Easy Advertising Group Ltd) on 14 July 2011 through Ultimate Depth Limited (“UDL”), another company of Sam Chan; on 22 April 2013, EAGL changed its name to Outdoor Advertising Group Limited;

(iii) GACL through Easy Crème Management Ltd (now known as BAML) on 15 July 2011; on 7 September 2011, GACL was transferred to UDL.

14. Sam Chan claims not to know the previous owners of these companies before the takeover. The business of EGL/HKTAL was all along related to taxi advertisement. Even though EGL/HKTAL might have common owners with BAML, EAGL and GACL before the takeover, EGL/HKTAL was a separate entity and there had been no business transactions between EGL/HKTAL and BAML/GACL.

15. According to Sam Chan, service of the O'Brien Road and Percival Street Building Orders took...

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