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In the recent case, Wong Wai Yin v Buildings Department, HCAL 1722/2020, the Court dismissed the Applicant’s application for leave to apply for judicial review against a decision made by the Director of Buildings (Director) of the Buildings Department (BD) to prosecute her for failing to comply with an order to demolish unauthorized building works (UBW). The Court made it clear that in an application for judicial review, the court can only interfere with a prosecution decision in very limited circumstances, where it can be said that the decision is outside the constitutional limits of the Secretary for Justice’s power to control criminal prosecutions in Hong Kong under Article 63 of the Basic Law. In this case, the Court found that there was no arguable case for the court to interfere with the Director’s decision to prosecute or continue to prosecute the Applicant for the offence for which she had been charged.
The Applicant was charged with failing, without reasonable excuse, to comply with an order (Demolition Order) to remove UBW, served on her under s.24(1) of the Buildings Ordinance, Cap 123 (Ordinance), contrary to s.40(1BA) of the Ordinance.
Grounds of application for judicial review
The Applicant did not dispute that the works objected to by the BD were UBW, but questioned the BD’s decision to prosecute her for failing to comply with the Demolition Order. She contended that the BD had not applied its policy on prioritizing prosecution on the grounds of health and safety and had not applied its own internal guidelines correctly.
BD’s internal guidelines and prosecution policy
The Court referred to the applicable BD internal guidelines and prosecution policy, namely those found in:
Guidelines on structural danger
The Guidelines on Structural Danger provided that UBW of more than 1 storey or built on another UBW are considered to be an “imminent structural danger” that requires immediate enforcement action for its removal and/or reinstatement of the affected parent structure.
Current Prosecution Guidelines
The Court referred to the following paragraphs of the Current Prosecution Guidelines:
The Court referred to the following paragraphs of the Prosecution Policy:
The Court dismissed the application, holding that there was no arguable case for the Court to interfere with the Director’s consideration of where the public interest lay or his decision to prosecute, or continue to prosecute the Applicant. The contention that the BD had failed to apply or adhere to their own internal guidelines and prosecution policy in relation to the Applicant’s prosecution was without merit, it said, because:
An interesting point to note about this judgment is that the Court said that the BD’s policies were only policies for prioritization of enforcement action and/or prosecution and not policies for the “toleration” of any unauthorised building works and did not confer on any person who has committed offence(s) under the Ordinance any immunity from prosecution. It said that even if, for the sake of argument, the Director had acted contrary to the said policies (which was not the case here), that was still not a valid or sufficient ground for the Court to interfere with the Director’s prosecution decision in an application for judicial review.
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