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The Incorporated Owners Of Tak Fan Lau v The Building Authority

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date12 April 2021
Neutral Citation[2021] HKCFI 902
Year2021
Judgement NumberHCAL2206/2020
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL2206/2020 THE INCORPORATED OWNERS OF TAK FAN LAU v. THE BUILDING AUTHORITY

HCAL 2206/2020

[2021] HKCFI 902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2206 OF 2020

________________________

BETWEEN

THE INCORPORATED OWNERS
OF TAK FAN LAU		 Applicant
and
THE BUILDING AUTHORITY Putative Respondent

________________________

Before: Hon Chow J in Court

Date of Hearing: 30 March 2021

Date of Decision: 12 April 2021

________________________

D E C I S I O N

________________________


INTRODUCTION

1. This is an application for leave to apply for judicial review of the decision (“the Decision”) of the Building Authority (“BA”) on 7 October 2020 refusing to withdraw the Building Order No CUC/109-11/0001/15 dated 14 December 2018 (“the Building Order”).

BASIC FACTS

2. The Applicant is the incorporated owners of Tak Fan Lau (“the Building”), at Nos 2-20, Tak Wah Street, Tsuen Wan, New Territories, Hong Kong, erected upon Lot No 2149 in Demarcation District No 449 (“the Lot”). The Applicant was incorporated on 8 July 1987.

3. Adjacent to the Building, on one side within the Lot, is a private lane (“the Lane”) which, apparently, has been adversely possessed since around 1966. At present, the Lane is occupied by Wing Fat Aluminium & Steel Gate Limited (“Wing Fat”) carrying on business in the name of Wing Fat Metal and Sanitary Ware under a tenancy granted in 2018 by Tse Choi Chun (“Madam Tse”), the widow of the late Chong Kong Sing, deceased (“the Deceased”), who first erected a structure on the Lane and carried on business there as adverse possessor in 1966. The Deceased passed away in 2014.

4. It is not in dispute that, (i) subject to the issue of adverse possession, the Lane is a “common part” of the Building, and (ii) the structures on the Lane constitute unauthorised building works for the purpose of the Buildings Ordinance, Cap 123 (“the Ordinance”). In what follows, references to “Section” or “s” shall be to the Ordinance.

5. On 14 December 2018, BA issued and served the Building Order on the Applicant requiring it to (i) demolish the structures on the Lane, and (ii) reinstate the parts of the Building so affected in accordance with the plans approved by BA, such works to be commenced within 30 days, and completed within 60 days, of the date of the Building Order.

6. On 9 May 2019, an inspection of the Lane by BA’s consultant revealed that the structures complained of remained intact. By a letter dated 18 September 2019, BA informed the Applicant that, in view of its failure to comply with the Building Order, he was contemplating the institution of prosecution of the Applicant under s 40(1BA).

7. According to the Applicant:

(1) When it received the Building Order, it did not know that the Lane was within the boundary of the Lot[1].

(2) On 1 March 2019, the Applicant instructed Ho & Tam, its current solicitors, to assist in dealing with the Building Order. On or about 24 April 2019, Ho & Tam engaged a professional surveyor to ascertain whether the Lane was within the boundary of the Lot. On or 28 July 2019, the surveyor advised the Applicant that the Lane was within the boundary of the Lot[2].

8. On 30 August 2019, the Applicant commenced an action in the District Court (DCCJ No 4712 of 2019, “the DC Action”) against Wing Fat to (i) recover vacant possession of the Lane, and (ii) require Wing Fat to dismantle and remove the structures thereon and reinstate the Lane to its original condition, with a view to complying with the Building Order. Subsequently, Madam Tse was joined as the 2nd Defendant in the DC Action.

9. By a letter to the Buildings Department (“BD”) dated 3 October 2019, Ho & Tam informed BD of the DC Action and requested BD to withhold taking action under the Building Order until the completion of the civil action.

10. In their respective Defence / Defence and Counterclaim filed on 11 October 2019 and 31 October 2019, Wing Fat and Madam Tse raised the defence of adverse possession of the Lane for over 12 years since the 1970s/1966, and contended that the paper owner’s title to the Lane had been extinguished by virtue of ss 7, 8 and 17 of the Limitation Ordinance, Cap 347.

11. By a letter to BD dated 5 November 2019, Ho & Tam informed BD of the defence of adverse possession of the Lane raised by Wing Fat and Madam Tse, and stated that the Applicant “might admit adverse possession of the subject land by [Madam Tse], and hence the subject land no longer forms part of the common area of [the Applicant’s] building, [the Applicant] may not have the power to evict the Defendants, nor liable under the captioned Building Order”. Ho & Tam further stated that they urgently needed to know BD’s position in respect of the Building Order in view of the defence of the adverse possession, and threatened to take legal action against BD to determine the validity of the Building Order unless a reply was received within 14 days.

12. By a letter in reply dated 6 November 2019, BA informed Ho & Tam that the request to withhold taking action under the Building Order could not be acceded to, and that failure to commence/complete the works as required by the Building Order would amount to non-compliance, thereby entitling BA to take action under ss 24(3) and 40(1BA). BA repeated the same in a further letter to Ho & Tam dated 21 April 2020.

13. On 3 March 2020, Wing Fat and Madam Tse’s solicitors (Kent Tam & Co) provided various documents to the Applicant to support their claim of adverse possession.

14. The Applicant considered that it had no evidence to dispute the defence of adverse possession raised by Wing Fat and Madam Tse.

15. By a letter dated 5 August 2020, Ho & Tam (i) sent copies of the aforesaid documents received from Kent Tam & Co to BD, (ii) stated, in reliance upon the judgment of the Court of Appeal in Wong King Lim v Incorporated Owners of Peony House [2013] 4 HKC 295, that “an incorporated owners had no right to enforce against squatter after extinguishment of title”, and (iii) demanded BD to withdraw the Building Order and vacate the registration of the same in the Lands Registry against the Building within 21 days, failing which judicial review proceedings would be instituted against it.

16. In a letter to Ho & Tam dated 19 August 2020, Kent Tam & Co expressed their willingness to deal with the matter concerning the Building Order directly with BD. Ho & Tam informed BD of the same by letters dated 28 August 2020 and 31 August 2020.

17. By a letter to Ho & Tam dated 7 October 2020, BA refused to accede to the Applicant’s demand that the Building Order be withdrawn (ie the Decision). BA’s letter stated as follows:

“ I refer to your letters dated 5 August 2020, 28 August 2020 and 31 August 2020 requesting to withdraw [the Building Order] which required the work specified therein to be completed on 11 February 2019.

After considering the circumstances of this particular case, I write to inform you that your request above cannot be acceded to. The document you submitted as provided by the 1st and 2nd Defendants of the legal proceeding of District Court Civil Action No. 4712/2019 cannot be considered as a proof of ownership of the concerned lane under the Buildings Ordinance. Please provide solid evidence for the confirmation of change in ownership of the concerned lane, entitling me to issue Order to the new owner under section 24(2)(a) of the Buildings Ordinance.

Please also note that neither the 1st, 2nd Defendants nor their solicitor had contacted me for dealing with the captioned Order.”

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

18. By a Form 86 dated 3 November 2020, the Applicant made the present application for leave to apply for judicial review of the Decision. The Applicant’s grounds of judicial review are stated in §20 of the Form 86, as follows:

“(a) As their title to the Lane has been extinguished, the owners of the Building are not the owner of the Lane within the meaning of section 24(2)(a) of the Buildings Ordinance. The Building Authority erred in law, alternatively acted unreasonably, in refusing to withdraw the Building Order against the Applicant.

(b) In demanding the Applicant to provide ‘solid evidence’ for the confirmation of change in ownership of the Lane, the Building[s] Department ignored the fact that the extinguishment of the Building owners’ title, and the acquisition by [Madam Tse] of the title, to the Lane is by the operation of the law of adverse possession, and as such there is no title document to confirm the change in ownership. The Building Authority is demanding for the impossible, and as such, has acted unreasonably.

(c) As [Madam Tse] has acquired title to the Lane and is prepared to deal directly with the Building Authority, the Building Authority should have withdrawn the Building Order against the Applicant, and instead sought to serve on [Madam Tse] the Building Order.”

19. In the Form 86, the Applicant seeks an order from the court that BA should withdraw the Building Order served on the Applicant.

THE APPLICANT HAS FAILED TO EXHAUST ALTERNATIVE REMEDY

20. Generally speaking, where there is an available statutory appeal procedure to challenge a decision made by a public body, the court would not permit judicial review to be used to challenge the appealable decision. This principle is well established in Hong Kong (see Stock Exchange of Hong Kong Ltd v New World Development Co Ltd (2006) 9 HKCFAR 234, at §§110, 114-117; Lee Chick Choi v The Director of Legal Aid [2019] HKCA 275, at §16; Canray International Ltd v Commissioner of Inland Revenue [2012] 4 HKLRD 792, at §26; and Koo Ming Kown v Commissioner of Inland Revenue, CACV 182/2013 (9 June 2014), at §11).

21. On behalf of the Applicant, Mr Cheung argues that ‘...

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