THE BUILDING AUTHORITY v. BUSINESS RIGHTS LTD.

CACV000212A/1993

DCMP 940/93
HCMP 3805/93
CACV 212/93

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

DISTRICT COURT MISCELLANEOUS PROCEEDINGS NO. 940 OF 1993

HIGH COURT MISCELLANEOUS PROCEEDINGS NO. 3805 OF 1993

CIVIL APPEAL NO. 212 OF 1993

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BETWEEN
	THE BUILDING AUTHORITY	Applicant
	AND
	BUSINESS RIGHTS LIMITED	Respondent

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Coram : Hon Burrell J in Chambers

Date of hearing : 23 April 1999

Date of handing down judgment : 28 April 1999

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J U D G M E N T

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1. This is a summons to review taxation. The issue in a nutshell is whether or not a lawyer employed by the Department of Justice can claim fees and refreshers for conducting litigation in court on the same basis as a self-employed barrister, or whether the costs of such representation in court should be calculated on an hourly basis in the same way that a solicitor would charge.

2. I will briefly set out the history of the matter. In 1993 and 1994 Mr Anthony Wu, who was then a Deputy Principal Crown Counsel and who is now a Deputy Law Officer (Civil), appeared on behalf of the Building Authority on three occasions. He appeared in the District Court in November 1993 and successfully conducted the litigation alone, in October 1993 when he again successfully resisted an application for leave to seek Judicial Review of the District Judge's decision and finally in May 1994 when he appeared with a member of the junior bar, Mr Philip Dykes, who successfully resisted an appeal in the Court of Appeal in the same case.

3. For every appearance by Mr Wu in court a brief fee plus refresher was claimed on the Building Authority's Bill of Costs. In the District Court hearing, the claim was for a fee of $30,000 plus four refreshers of $10,000 each plus a further $10,000 for a preliminary hearing. His brief fee for opposing the application for leave to seek Judicial Review was $25,000 plus a refresher of $10,000 and in the Court of Appeal his fees were $40,000 on the brief and refreshers of $12,000 and $6,000 plus a preliminary hearing fee of $15,000. Mr Wu had conduct of the case from the outset. Accordingly the Bills of Costs contained further claims, which were not contested, for work done "in house" similar to the work done by a solicitor before he sends out the brief to counsel, on an hourly basis. Work done by Mr Wu, as an advocate prior to the hearing, such as considering how to present the case, marshalling the facts, considering examination and cross-examination etc was not separately charged and was included in the brief fee.

4. Mr Wu's fees were disallowed on taxation and the allowable costs were calculated on an hourly basis for time spent in court at a level similar to those which a solicitor would have charged. The Master who made the order, Master Andrew Chung, was asked to review his decision. That review was heard on 17th December 1998 and in a carefully considered decision he refused to review his original order. I am now asked to review his refusal.

5. Mr Andrews who appeared for the Applicant, fairly stated at the outset that the purpose of this review was to establish a principle. If he were successful he would not seek costs of the review against the Respondent, and if unsuccessful, would not resist an order for costs. Both Mr Andrews (for the Applicant/receiving party) and Mr Clarke (for the Respondent/paying party) have been of considerable assistance. I have had the advantage of considering their succinct written submissions, their focussed oral submissions and a number of helpful authorities.

6. There has been one recent Hong Kong decision on the same or similar subject. In Building Authority v. Tam Chung Chin Dennis [1997] 3 HKC 260, Gall J stated :

" I accept that under the Legal Officers Ordinance, a legal officer has a right of appearance in all courts in the HKSAR. I hold therefore that in the circumstances where the same person acts as a solicitor in the preparation of a matter for trial in the [Department of Justice] and then proceeds to act as an applicant in the court in response to the instructions that he has prepared as a solicitor, Master Cannon was right in disallowing the brief fee and refreshers and replacing them with a proper measure of preparation as a solicitor and the proper measure of costs applicable for the attendance in court by a solicitor." (at pp. 263I to 264A)

However, he had earlier stated :

" There is no doubt that if one government lawyer performs of the preparatory work in respect of a matter to go before the court and then a second performs the entirely distinct and a separate role as counsel that the first would be chargeable in a bill of costs at the rate for a solicitor and that the latter could charge both a brief fee and the refreshers normally attributable to a barrister in private practice." (at p. 263C)

7. In a nutshell, therefore, the principle formulated by that decision was that a Government lawyer should charge on an hourly basis for his appearances in court when he has had conduct of the litigation throughout but where a new Government lawyer takes on the job of conducting the trial, an appropriate Brief fee may be charged.

8. Master Chung rightly decided that he was bound by this decision. However, he did not leave the matter there. He helpfully went on to give reasons why his decision would have been the same in any event. He decided that the application of the "indemnity principle" (to which I shall refer later in this judgment) resulted in a finding in the paying party's favour.

Stare decisis

9. It is trite to observe at the outset that this court is not bound by Gall J's decision. However it would be wrong to give an opposing judgment merely because this court held a different opinion. I refer to two short statements which amply clarify the position. Firstly from Denning J, as he then was, in Minister of Pensions v. Higham [1948] 2 KB 155, where he says :

"..... They [previous decisions] are not absolutely binding on the Superior Court itself or on the courts of co-ordinate jurisdiction but will be followed in the absence of strong reason to the contrary..."

and Lloyd LJ in R. v. Central Criminal Court ex p Francis & Francis (a firm) [1988] 2 WLR at p.633 :

" This court is always reluctant not to follow its previous decisions. But if we are persuaded that a previous decision is clearly wrong, we are bound to say so...."

The Indemnity Principle

10. Fundamental to the resolution of this matter is the indemnity principle. Both sides to this argument agree that the indemnity principle must apply. Both sides also agree that the fair costs payable to a Government lawyer in court must include a profit element. Where the parties disagree is that Mr Andrews contends that the payment of an equivalent barrister's brief fee does not offend the indemnity principle and the resulting profit element would be fair and reasonable, whereas Mr Clarke contends that such a method of costing would offend the indemnity principle and the resulting profit element would be unjustly high for the unsuccessful litigant to have to meet.

11. The principle is that costs as between party and party are given by the law as an indemnity to the person entitled to them; they are not imposed as a punishment to the party who pays them nor given as a bonus to the party who receives them. It is also usefully defined in a Practice Note in the 1998 Weekly Law Reports :

" The indemnity principle is as follows: an order for costs between parties allows the receiving party to claim from the paying party only an indemnity in respect of the costs covered by the order. Receiving parties cannot therefore recover a sum in excess of their liability to their own solicitors. On the taxation of a bill, the indemnity principle is to be applied on an item by item basis rather than on a global basis....."

12. The question to be answered is simply this, given that a Government lawyer's costs as the successful litigant should include a profit element and given that the indemnity principle must not be offended, is the proper method of charging the method used by barristers or the method used by solicitors?

The case for the Barrister's method

13. Mr Andrews submits that the Government lawyer when in court is performing the role of a skilled advocate. The specialist advocate is a barrister. A barrister's brief fee is intended to pay for three elements - firstly, his preparation for trial once instructed; secondly, his day in court and thirdly, his profit element. He submits the correct starting point is to acknowledge that the role of a Government lawyer when conducting litigation in court is directly comparable to a barrister doing the same job. If charging the unsuccessful litigation by way of "comparables" is right in principle, then Mr Wu was right to seek a brief fee in line with a brief fee that would have been made by a member of the bar because Mr Wu's preparation for trial, day in court and profit element should also be paid for.

14. In support of his submission that the "comparable" principle is the correct starting point, he referred the court to Lloyd's Bank Ltd. v. Eastwood (1975) 1 Ch. 112 (a case which was not cited in argument before Gall J in the Dennis Tam case, supra).

15. In Eastwood, where the issue was whether the rates for an independent solicitor could be charged when the work had in fact been done by a salaried "in-house" Government solicitor, it was decided :

"..... that the appropriate method of taxation of a bill of costs where a party was represented by a salaried solicitor was to treat it as though it were the bill of an independent solicitor, assessing the reasonable and fair amount of a discretionary item having regard to all the circumstances of the case and the principle that the taxed costs should not be more than an indemnity to the party against the expense he had incurred in litigation."

16. In further support of the argument Mr Andrews refers to s.17 of the pre-1997 legislation, the (Crown) Proceedings Ordinance, Cap.300, which provides that in civil proceedings in which Government is a party, costs should be awarded in the same manner and on the same principles as in cases between citizens.

17. I hope I do justice to Mr Andrews' submission when I summarize as follows. There is both authority and argument for the proposition that the work done by the Government lawyer when representing a party in court should be compared with the role of the barrister. The Costs Rules themselves make a distinction between barristers and solicitors. When the Government lawyer is doing the job of a barrister in court, that fact should be recognized and he should make similar charges. This should be the simple rule in all cases without further complications, provisos or exceptions.

The case for the Solicitor's method

18. Mr Clarke's submission boiled down to two areas of disagreement. Firstly, whilst he agreed the indemnity principle was at the forefront of the issue, a barrister's brief fee offended the principle. Secondly, whilst he agreed that the charges should include a profit element, a barrister's brief fee resulted in more than a reasonable profit and entered into the area of an unjustified bonus.

19. His concern at the end of the day, quite correctly, was for his client in this case. The taxing master had awarded a total of approximately $56,000 for all Mr Wu's appearances in court, whereas $194,000 was the total of the brief fees and refreshers claimed.

20. Mr Clarke did not necessarily argue that brief fees were wrong in principle provided they were much lower so as to reflect the true profit element. He preferred and advanced however, the hourly rate method as being more logical when applying the indemnity principle to the work of a salaried Government lawyer but nonetheless conceded that it might be fair and appropriate to charge higher hourly rates for work done in court as an advocate.

21. I have summarized Mr Clarke's submission very briefly. However, I will expand on it in the following section because I have come to the conclusion that the hourly rate method is the correct one in this case, where Mr Wu had conduct of the proceedings throughout and his appearances in court were a continuation of his work in representing his client.

Conclusion

22. For the following reasons I decline to vary the taxation order as made by Master Chung :

(a) The work actually done by Mr Wu when appearing in court in this particular case was more akin to the work of a solicitor acting as an advocate in court than that of a barrister acting as an advocate in court. Both solicitors and barristers can be competent and skillful advocates. In the District Court and when opposing the application for Judicial Review Mr Wu appeared alone. Had a barrister appeared he would have had to have appeared with his instructing solicitor. It is true that a Government lawyer need not have a solicitor sitting behind him. However, the reality of the situation was that Mr Wu had not been instructed by anyone else, he had instructed himself. A private solicitor could have appeared in those courts and, like Mr Wu, would have appeared alone.

The appearance in the Court of Appeal also supports Mr Clarke's submission. Mr Philip Dykes, who was then a junior counsel, was instructed to conduct the appeal. Mr Dykes, as a barrister, should have an instructing solicitor with him. Who was with him? Mr Wu was. In the Bill of Costs Mr Wu's name appears as the second or "junior" counsel. He sat alongside him and wore a wig. However, in my judgment, the reality of the situation was that Mr Wu was his instructing solicitor. There was no other solicitor there. Mr Wu had done all the prior solicitorial work and Mr Dykes took his instructions from him. A solicitor had no right of audience at that hearing.

(b) The profit element : In my judgment the profit element in a normal brief fee if paid to a Government lawyer would be greater than if paid to a private barrister. The increased profit element could only be regarded as a bonus and would therefore offend the indemnity principle. The "greater profit" becomes clear when one analyses what a normal brief fee is designed to pay for. A barrister is self-employed. He has greater expenses - his share of chambers' rent, his clerk's salary, secretarial and other office expenses, the cost of transport to and from court and so on. What is left after all his expenses have been paid represents his profit or taxable income. The Inland Revenue takes its share of his profit.

Obviously, if Mr Wu were paid a brief fee no-one suggests it would be his money, it would be the Department's. Although the Department's expenses for the cost of and running the building in which they work and Mr Wu's secretary and so on have to be paid for, the reality is that they are paid for in any event. Furthermore, it is Mr Wu's salary which is taxed by the Revenue. The proposed brief fee would not be directly taxed by the Revenue in the same way (or at all) as the private barrister's fee.

A solicitor might often say to his client - if we employ a barrister there will be greater expenses. One of the reasons for the greater expenses is the cost of the barrister's self-employed status. The payment of a normal brief fee to a Government Department would result in a degree of undue enrichment over and above the barrister's profit element.

(c) Counsel's diary. An extension of the above point (b), is that if a case "goes short" in court for whatever reason, such as the case settles or has to be adjourned, the Government lawyer is required to return to his office to get on with other work. The barrister, however, had to set aside the whole day. The Government lawyer continues to earn his salary after an early return from court.

(d) In my judgment, the Eastwood case, upon which Mr Andrews relied, is not clear authority for the order he seeks and neither is it inconsistent with the stance adopted by Mr Clarke. As always, the facts are different but also the issue was not the same. It also supports the contention that a Government (employed) lawyer's costs should be the same as an independent solicitor's costs.

(e) The hourly rate method would more accurately reflect the true profit element. It is recognized that a successful party to litigation is entitled to a profit element in its costs. This applies equally to a Government Department. Anyone who goes to court risks losing and paying the other side's costs. If the Government were not entitled to some profit in their costs, the risk element would be less when the opposing party was a Government Department.

For the reasons already advanced profit is more logically and more fairly assessed by reference to an hourly rate. Mr Clarke concedes, and I do not disagree, that a brief fee method could be used but the level of the fee would have to be significantly less to ensure the bonus element in the profit was removed. It is not difficult to envisage practical difficulties in using a lower brief fee method. Such difficulties would not arise in a reasonable hourly rate method.

The Principle

23. Because the principle which this review was required to determine was whether the "brief fee" method was right or whether the "hourly rate" method was right, I do not propose to make any alterations to the costs as taxed. However, for the sake of completeness, I wish to make three final points :

1. The appropriate quantum for the hourly rate :

I wish to dispel any notion that this judgment suggests that the work of a Government lawyer appearing as an advocate is in any way routine and ordinary. All work in litigation is important from reading the writ when it first arrives to making legal submissions in the Court of Appeal. The work of the advocate conducting the case in Court is at the more important end. It requires special legal knowledge, forensic skills, competence, confidence and experience. It should be paid accordingly. It is at the cutting edge of litigation and should be paid the highest hourly rate regardless of who is appearing. The hourly rate should be equivalent to senior partner level for solicitors or even higher.

2. In addition, the Government lawyer should be able to make a separate charge for time spent in preparing how the case should be presented in court, that is work done by a barrister prior to going to court which is included in his brief fee. As a matter of interest, if Mr Wu (in 1993/4) had charged $3,000 an hour when in court plus preparation for court plus out of court work done during the trial (say, four hours before the District Court case plus one hour per day, three hours before the Judicial Review case and four hours before the Court of Appeal plus one hour per day) his total claim would have been (28 hours in court plus 16 hours out of court) $132,000. His brief fees totalled $195,000. The difference between the two is the unjust bonus.

3. This case has solely been concerned with a case where the same Government lawyer conducted the litigation from beginning to end. Gall J's decision states that if one Government lawyer instructs a second Government lawyer to be the advocate in court, the second lawyer can charge a brief fee. This decision does not suggest that the payment of a brief fee to a Government lawyer separately instructed as an advocate is incorrect provided that the quantum of the brief fee is proportionately lower than a normal brief fee so that the profit element in both is similar and thus the indemnity principle is not breached.

24. The costs of this review shall be the Respondent's.

	(M.P. Burrell)
	Judge of the Court of First Instance, High Court

Representation:

Mr Robert Andrews, inst'd by the Secretary for Justice, for the Applicant

Mr William S. Clarke of M/s Clarke & Liu, for the Respondent

CACV000212/1993

IN THE COURT OF APPEAL

1993, No. 212
(Civil)

- Headnote -

Bill of Rights - Whether s27(1)(a)(ii) and s43(2) Buildings Ordinance conflict with Articles 10 and 14 Bill of Rights - meaning of "independent and impartial tribunal" - "rights" of owner to use and enjoy property not engaged when District Judge makes closure order under s27(1) Buildings Ordinance - whether the Rules governing appeals to Buildings Appeal Tribunal fail to meet requirements of "fair and public hearing" in Article 10 Bill of Rights. Held (Court of Appeal): appeal against District Judge's closure order dismissed.

IN THE COURT OF APPEAL

1993, No. 212
(Civil)

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BETWEEN
	THE BUILDING AUTHORITY	Applicant (Respondent)
	AND
	BUSINESS RIGHTS LIMITED	Respondent (Appellant)

________________

 

Coram: Hon Power, V.-P., Nazareth and Litton, JJ.A.

Dates of hearing: 17 and 18 May 1994

Date of delivery of judgment: 19 May 1994

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J U D G M E N T

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Litton, J.A.:

1. On 26 November 1993 His Honour District Judge Downey made a closure order under section 27(1)(a)(ii) of the Buildings Ordinance in respect of a three-storied building at Shek O. That building was put up at the end of 1990 without approval of plans by the Building Authority and without consent to commence work contrary to s14(1) of the Ordinance, and thereafter occupied without an occupation permit issued under s21(1). Plainly, serious criminal offences have been committed, as provided for in s40(1) of the Ordinance. I note that neither the owner, its directors nor the contractor who carried out the building works have been prosecuted.

2. Not surprisingly, the Building Authority sought to have the building demolished. A demolition order was made on 30 January 1991 under s24(1) of the Buildings Ordinance requiring demolition of the house within 21 days. That order was never appealed and stands unchallenged. The process of enforcement has taken over three years and has been in vain to this day. It is not necessary for the purposes of this judgment to refer to that sorry history, except by way of background. The order which the District Judge made was pursuant to a notice dated 8 October 1992 which provided as follows:

"Notice is hereby given that it is intended to apply to a District Judge for a closure order in respect of the building at House No. 26 .... on the 8th day of January 1993 ..... pursuant to s27(1)(a)(ii) of the Buildings Ordinance in order that demolition work can be carried out without danger to the occupiers or to the public....".

Section 27(1), as relevant, states:

"(1) Upon the application of -

(a) The Building Authority, where he is of the opinion that-

(i) any building is dangerous or liable to become dangerous .....

(ii) any building should be closed in order to enable any works, which he is empowered to carry out or cause to be carried out under this Part, to be carried out without danger to the occupiers or to the public; ......

the District Court shall on being satisfied that notice has been given in accordance with the provisions of subsection (2) make a Closure Order ......"

3. The District Judge on the hearing of the application was satisfied that the provisions of subsection (2) had been complied with and accordingly made the order sought, rejecting the appellant's arguments that he did not have the jurisdiction to make the order as s27 of the Buildings Ordinance was inconsistent with the Hong Kong Bill of Rights and had since 8 June 1991 been repealed pursuant to s3(2) of the Hong Kong Bill of Rights Ordinance.

4. The appellant now appeals to this court, arguing that the judge was wrong in law, as s27 of the Buildings Ordinance is inconsistent with Articles 10 and 14 of the Bill of Rights. The reference to the whole of section 27 puts the argument too wide. Section 27 deals with a number of situations including, for instance, ss(1)(b) which concerns applications for closure orders by owners. The appellant has in this case no interest in any exercise of discretion by the Building Authority further than that done under ss(1)(a)(ii). The constitutional challenge must in effect be confined to the vires to make closure orders under that subsection. Any other matter would be hypothetical and academic as far as this appellant is concerned.

Article 10

5. Article 10, where relevant, states:

"All persons shall be equal before the courts and tribunals. In the determination of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law".

6. Mr. Fung QC's argument, as I understand it, is this:

(I) S27(1) does not enable a property owner to test the opinion of the Building Authority, as the District Judge is required to make the closure order once he is satisfied that the statutory requirements for notice have been complied with under ss(2). He has no discretion in the matter.

(ii) the only avenue open to the property owner to challenge the exercise of discretion by the Building Authority under s27(1) is by way of appeal to the appeal tribunal established under Part VI.

(iii) The appeal tribunal is not an "independent and impartial tribunal" in terms of Article 10 since, of the three members constituting the quorum, one of them would have been nominated for appointment by the Building Authority, in accordance with s43 of the Buildings Ordinance.

(iv) Where, in effect, an aggrieved owner has no proper means under the statute to ventilate his grievances over the Building Authority's exercise of discretion, the appeal tribunal not being an "independent and impartial tribunal", the provisions of s27(1) in turn fail to satisfy the minimum requirements of Article 10.

(v) Moreover, since the rules permit the tribunal to refuse to hold an inquiry, and to shut out an aggrieved owner in limine, this breaches the requirement of a "fair and public hearing" under Article 10.

7. The District Judge concluded that as there was "adequate machinery for appealing against every decision of the Building Authority prior to the final act of enforcement", the fact that the District Court had only a very narrow scope to exercise any true judicial function in a section 27(1)(a)(ii) application did not make the statutory provision inconsistent with the Bill of Rights.

8. Ultimately, the appeal before us is focussed on this point.

9. Mr. Fung's fundamental point, as I understand it, is that, on a constitutional challenge to the vires of s27 and s43 of the Buildings Ordinance, the particular merits of the individual before the court is not relevant: if, as he puts it, there is "systemic" and "endemic" imbalance and partiality in the statutory appeal procedures, then the statute does not measure up to the requirements of the Bill of Rights and, whatever the individual merits or demerits of the appellant's case, the appellant must succeed, and the court would declare as a matter of general law that the impeached statutory provisions have been repealed as being inconsistent with the Bill of Rights. In examining Mr. Fung's submissions we cannot overlook this fact: whether the matter before the District Judge be a "suit at law" or not in terms of Article 10 of the Bill of Rights, the appellant had no "rights" in any real sense to be protected. What the Building Authority sought in this case was an order under s27(1)(a)(ii) to enable demolition works to be carried out without danger to the occupiers or to the public. The appellant had neither the right to erect the building nor the right to occupy the building: those acts were undoubtedly illegal. What the Building Authority has been seeking to do is to end the illegality.

"Independent and impartial tribunal"

10. Mr. Fung's argument, in essence, is that the appeal tribunal established under Part V1 of the Buildings Ordinance is constitutionally defective because, in terms of Article 10 of the Bill of Rights it is neither "independent" nor "impartial". The argument is focussed on s43(2) of the Buildings Ordinance which says:

"(2) The tribunal shall consist of not less than 3 members appointed by the Governor, of whom one shall be nominated by the Building Authority, one shall be an authorized person and one shall be appointed to represent property owners."

11. In viewing the position broadly and addressing the "systemic defect" which Mr. Fung says is inherent in the statutory scheme, my conclusion is as follows.

12. Firstly, the words "independent and impartial" in Article 10 are well known to the law. The citation of cases in the European Court of Human Rights dealing with the proper construction of Article 6(1) of the European Convention in the context of the various statutory schemes in those cases does not assist us greatly in construing those words in the Hong Kong Bill of Rights. For instance, Belilos v. Switzerland 10 EHRR 466 which dealt with a Police Board whose single member was a lawyer from police headquarters; or Langborger v. Sweden 12 EHRR 416 which concerned a Housing and Tenancy Court whose lay assessors had close links with two associations both of which had an interest in the matter in issue; or Campbell and Fell v. United Kingdom 7 EHRR 165 which involved a Board of visitors of prisons. Whether those bodies were held to be "independent and impartial" in the overall context of the statutory purposes to be served in those cases is of marginal relevance to the determination of the issues in this case.

13. What we are concerned with here, quite simply, are the minimum standards of independence and impartiality which are deemed acceptable in the eyes of the court, and these must be judged against the entire statutory scheme under the Buildings Ordinance with which we are concerned.

14. I would accept that the test of independence and impartiality would only be satisfied thus: would a tribunal appointed under s43 of the Buildings Ordinance be considered by responsible and well-intentioned members of the public to be independent and impartial? That is, would such a tribunal be considered likely to be biased in hearing appeals? See the test to the same effect in Reg. v. Gough [1993] AC 646 at 667-G. The question for determination by the District Judge was whether s43(2) of the Buildings Ordinance satisfied this test. Appeal tribunals constituted under Part VI deal with a wide range of matters coming within the Building Authority's discretion. Appeals brought under s44 may have to be dealt with speedily, because matters of public safety may be involved: see for instance s45 which provides for emergency situations pending the determination of appeals. It may therefore be important in dealing with appeals to have at least one member of the tribunal familiar with the administration of building controls under the statutory scheme in Hong Kong. Far from s43(2) being regarded as a vice, I would have thought it a virtue. Mr. Fung's argument is that the person nominated by the Building Authority is likely to be biased in favour of the Building Authority on an appeal against the exercise of the Building Authority's discretion. Why is this so? Why should a public officer, assuming that person to be a public officer, not discharge his functions and duties imposed by law properly, independently and impartially? If such a person might be thought by well-intentioned members of the public to be likely to be biased then what about tribunals consisting of, say, dentists to hear complaints against dentists under the Dental Registration Ordinance by members of the public, or disciplinary tribunals consisting of solicitors to hear complaints against solicitors by clients under the Legal Practitioners Ordinance? Is a public officer more likely to be biased than a professional person? If s43(2) of the Buildings Ordinance is inconsistent with the Bill of Rights then many other statutory tribunals constituted to discharge appellate or disciplinary functions are likely to be similarly vitiated. It is odd that the alleged lack of independence and impartiality in those other bodies should not have been perceived by the same members of the public who are now said to be looking with disfavour at the composition of the buildings appeal tribunal.

15. I wholly agree with Mr. Fung's submission that where a body has:

(i) a role in the matter under appeal and

(ii) taken part in the adjudication of the matter,

then the body cannot be regarded as independent and impartial within the meaning of Article 10. The appeal tribunal consisted under s43(2) is in my judgment a far cry from this.

16. Secondly, it is worth mentioning that the composition of the quorum under s43(2) is plainly aimed at achieving a balance. Whilst every member of the tribunal would, of course, be required to discharge his function properly within the four corners of the statute, the section seeks to ensure that the tribunal represents a wide range of points of view. One of the three members must be a person appointed to represent property owners, and the other must be an authorised person. I cannot see how a tribunal thus constituted can be said to infringe Article 10.

Nature of proceedings under s27(1)(a)(ii)

17. In the court below Crown counsel submitted to the Judge that the exercise of function by a District Judge under s27(1)(a)(ii) of the Buildings Ordinance was not a judicial act, but merely an administrative one. This submission the Judge rightly rejected. The making of a closure order is plainly a judicial act, though the exercise of judicial function is very limited: it is in effect confined to considering whether the provisions of ss(2) have been met. The question then quite simply is whether, in the making of a closure order under s27 by the District Court, there is a determination of "rights and obligations" in "a suit at law".

18. It is necessary to identify precisely what "rights" might be engaged when a Judge makes a closure order under s27(1)(a)(ii). It is noteworthy that it comes at the tail-end of a process of law enforcement. There would have been in the first place a determination by the Building Authority that the grounds existed for making an application; generally-speaking, by the time the matter goes before the District Judge, there would be no issue left as between the Building Authority and the owner. The challenge to those acts of judgment would have come within the appeal process under s43. By the time the matter reaches the District Court under s27 there would be no "rights" left which could in any way be decisive of the ownership use or enjoyment of property. I would accordingly follow Rhind J's line of reasoning in Auburntown Ltd. HCMP No. 222 of 1993, 18/4/94 (unreported) and hold that Article 10 is not engaged when a District Judge makes a closure order under s27(1)(a)(ii). In coming to this view I do not lose sight of the fact that under ss(1)(a)(ii) there can be an application for a closure order in less extreme circumstances than those in this case. A closure order enables the occupants to be removed and the building sealed under ss(6). If such an application were made arbitrarily by the Building Authority the persons affected have the right to apply for judicial review. This is a constitutional safeguard under our law and, whilst it is not a complete answer, it does provide some remedies to aggrieved persons who complain of impropriety on the part of the Building Authority.

Fair and public hearing

19. The relevant Rules governing the procedure of the appeal tribunal are as follows:

"1(1)A person appealing from a decision of the Building Authority under Part VI of this Ordinance shall, within 3 weeks of such decision give notice in writing to the Building Authority stating the substance of the matter relating to his appeal.

(2) Upon receipt of such notice the Building Authority shall convene a meeting of the tribunal.

2. If it appears to the tribunal, after due consideration of any appeal, that no good cause has been shown why an inquiry should be held, it may refuse to hold an inquiry and shall inform the appellant accordingly."

20. It is said that Rule 2 is so oppressive, permitting the tribunal to dispose of an appeal merely on the written material submitted by the appellant in accordance with Rule 1, and without a hearing, that it fails to satisfy the minimum requirements of a "fair and public hearing" in Article 10.

21. I would reject this submission as well. There must be many circumstances where the "substance of the matter" relating to an appeal is so lacking in merit that a tribunal can with confidence conclude that no "good cause" has been shown. I cannot see how it could be suggested that such a provision infringes a fundamental human right: without such a provision, the tribunal would be deprived of the ability to dismiss an appeal in limine, where it is wholly lacking in merit, or is frivolous and vexatious. How can this be in the public interest: particularly where the public might be at risk, relating to the exercise of discretion by the Building Authority covering such things as dangerous buildings (s26), defective buildings (s26A), or dangerous hillsides(s27A).

22. Mr. Fung's arguments might have more force if the Rules allowed the tribunal arbitrarily to refuse to hold an inquiry. But this is not so. There must be a "due consideration" of the written material submitted by the appellant under Rule 1(1) and the Tribunal can only refuse a hearing if "no good cause" has been shown.

23. In my judgment the question of proportionality and rationality does not come into the question at all, as there is no prima facie infringement of Article 10 of the Bill of Rights.

Article 14 of the Bill of Rights

24. Article 14 provides:

"Protection of privacy, family, home correspondence, honour and reputation

(1) No person shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks."

25. The judge dealt with this point by focussing on the words "arbitrary" or "unlawful" in Article 14. His approach has been criticized on the basis that he focussed on the individual circumstances of this appellant's case, rather than on the vires of s27 of the Buildings Ordinance. To a limited extent, Mr. Fung's criticism is justified, as at the end of the day the court is concerned not with whether in a particular case, the right protected by Article 14 has been infringed, but whether a provision in a statute, that is s27(1)(a)(ii) of the Buildings Ordinance, is inconsistent with Article 14.

26. Section 27(1)(a)(ii) sets out the legal procedure for the District Court to make a closure order on the Building Authority's application. I see nothing inconsistent with the guarantee of privacy in Article 14, and am of the view that the Judge had reached the right conclusion on this point.

27. For the reasons I have given above I would dismiss this appeal.

Nazareth, J.A.:

28. I agree that the appeal must be dismissed for the reasons given by my Lord save that I do not find it necessary to rely upon the composition of the appeal tribunal being consistent with Article 10 of the Bill of Rights. In that regard I am content to rely upon the conclusion reached by my Lord that Article 10 is not engaged.

29. Before I leave the matter I would like to record my disquiet at what I regard as an intrinsic part of the administrative procedures in question, that is a closure order, being given a judicial guise by s27(1). While it is true that the District Court has to act judicially under that provision, its sole role is to satisfy itself that notice has been given in accordance with the provisions of sub- section 2 of s27. Thereupon, it is required to make a closure order. It is the Building Authority that decides whether a building is dangerous or whether it should be closed to enable works to be done to which my Lord has referred. Why then it is the District Court that should be required by law to issue the closure order is not clear. It seems to me that the retention in the law of this provision should be re-examined.

Power, V.-P.:

30. I also agree with all that has fallen from my brother Litton. I would add only as regards the matter of partiality that it seems to me that the clear intention of the legislature in s43(2) of the Building Ordinance was to establish a balanced tribunal. It is true that the Building Authority nominates a member but who better to put forward the name of a person familiar with the operation of the authority and the application of the Building Ordinance than the Building Authority. The Governor is required under that sub-section not only to appoint an authorized person but also to appoint a person, and I use the words of the section, "to represent property owners". The middle ground is occupied by the authorized person. The balance is levelled by the appointment of a person who brings to the deliberations of the tribunal a knowledge of the interests of property owners which term, in the context of the section is, I am satisfied, meant to refer to persons who have a private as opposed to a public interest in property.

31. For the reasons given the appeal must be dismissed.

Representation:

Daniel Fung, Q.C., Johnny Mok (M/S Boase & Cohen) for Appellant

P.J. Dykes, Anthony Wu (Crown Solicitor) for Respondent