Court makes it clear that prosecution decisions are only amenable to judicial review in very limited circumstances

14 December 2020, Construction, Newsletter, by Kwok Kit Cheung,

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 charge

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:

  • BD’s EB Division Manual Part II Section 6 Instruction No 4 - Guidelines on Structural Danger (Guidelines on Structural Danger);
  • BD’s EB Division Manual Part II Section 8 Instruction No 3 - Prosecution under the Buildings Ordinance in relation to Outstanding Removal Orders (Current Prosecution Guidelines); and
  • BD’s Instruction 5.8 - Prosecution Policy for Prompt and Rigorous Action (Prosecution Policy).

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:

  • Paragraph 1 states that under the Ordinance, any person who fails to comply with a removal order against UBW without reasonable excuse shall commit an offence.  With regard to outstanding orders, vigorous prosecution under s.40(1BA) or (1BB) demonstrates to the public the determination of the BD in enforcing the orders and serves as a deterrent effect to negate some owners’ delaying tactics.  Hence, whenever strong prima facie evidence of an offence under s.40(1AA) is identified during an inspection, team leaders should make a recommendation in the inspection report whether the offender concerned should be prosecuted.
  • Paragraph 3 states that in view of the large number of outstanding removal orders and in order to make the most effective use of the available resources, team leaders should exercise their professional judgment when considering instigation of prosecution action.  In particular, sub-paragraph (a)(iv) provides that UBW posing serious hazard to life and limb, such as structures with imminent structural danger as specified in the Guidelines on Structural Danger, is a relevant consideration for instigation of prosecution.
  • Paragraph 4 states that the cases mentioned in paragraph 3 are not listed in any order of importance and all cases should be acted on as and when they come to attention.  In addition, the Building Authority's (BA’s) power or duty to prosecute is not limited to those cases, and all cases should be judged on their own merits.

Prosecution Policy

The Court referred to the following paragraphs of the Prosecution Policy:

  • Paragraph 1 states that the document is a directive for prompt and rigorous prosecution and related action under the Ordinance.
  • Paragraph 55 states that the aim is to prosecute wherever and whenever appropriate.  However, as BD’s resources are not unlimited, there may be a need for considering priorities in prosecution.
  • Paragraph 6(d) provides that priority in prosecution should be given to cases where an order issued under the Ordinance is not complied with.
  • Paragraph 7 provides that the BA’s power or duty to prosecute is not limited to cases falling within paragraph 6 and all cases should be judged on their own merits.
  • Paragraph13 provides that in a number of provisions of the Ordinance, “reasonable excuse” provides a defence.  The possibility that a defendant may advance such an argument does not constitute a reason for not prosecuting.  Usually, a defendant has an evidential burden to prove to the courts that they have a reasonable excuse for the offending act.

Court’s decision

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:

  • In the present case, the UBW comprised UBW of more than 1 storey, and an unauthorised structure built on another unauthorised structure.  Hence, the UBW was classified as being of “imminent structural danger”, attracting immediate enforcement action for its removal under the Guidelines on Structural Danger, and was one for prioritised prosecution under the Current Prosecution Guidelines.
  • The present case involved non-compliance with an order issued under the Ordinance. It was thus one for prioritised prosecution under the Prosecution Policy.

Comment

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.