Letter to seek demolition of basement
The Buildings Department will issue a letter advising Henry Tang Ying-yen's wife to demolish an illegal basement at her Kowloon Tong house.
Such a letter is one step short of a demolition order.
The department did not mention prosecution, under which violators can be jailed for up to two years. That option could put Tang's eligibility to contest the chief executive election in doubt.
The announcement came as government surveyors confirmed that the house at 7 York Road has an unapproved basement of about 2,000 square feet. Keith Ko Kiu-kin, a senior surveyor from the department who inspected the place, said the basement comprised several rooms and two corridors, one of which led to a backyard connected to a house owned by Tang at 5A York Road.
Ko said he could not conclude whether the basement was completed before an occupation permit for the house was issued in 2007. Tang co-owned the house until 2010. 'Because the owner has appointed a professional to work on a report, we will issue an advisory letter to the owner,' he said. 'At this stage, we will not issue a demolition order.'
Under section 24 of the Buildings Ordinance, the department will first issue an advisory letter to Tang's wife, Lisa Kuo Yu-chin, asking her to demolish the basement. If she fails to comply, a demolition order will be served. Further refusal will result in prosecution, for which the maximum penalty is a HK$200,000 fine and one year's jail.
Eric Cheung Tat-ming, a law professor with the University of Hong Kong, said there was a tougher enforcement option. Under section 40 of the same ordinance, the department could, without the need to issue a demolition order, prosecute 'anyone who knowingly contravenes' the requirement to obtain approval for beginning construction work. The maximum penalty is a fine of HK$400,000 and two years in prison.
If Tang is found to have been aware the basement was illegal before work started on it, it could derail his ambitions for the top job. Under the rules, a person convicted of an offence and jailed for more than three months may not run for election.
A buildings officer familiar with the enforcement procedure agreed this tougher option was possible. 'Prosecution is possible if there are witnesses, such as the construction workers involved, testifying that Tang or his wife did give instructions or pay for creating the basement,' he said.
'The 'knowingly' requirement means prosecution must also prove that Tang or his wife are aware that they must first obtain permission for building the basement.'
Section 40 was seldom used because of the high degree of proof needed, he added.
Lawyers are divided as to whether the couple would face the criminal charge of conspiracy to defraud the Buildings Department.
Although Tang yesterday said work on the basement started only after the permit was issued, some architects suspected the construction of the house had been undertaken to make additional excavation possible. This is because it would have been difficult to dig an underground area larger than the footprint of the house itself after it was built.
Lawyer Luk Wai-hung said if witnesses could testify that the owner and the architect had conspired to build a basement while deliberately leaving it out in the building plan drawn up for submission, there could be a case to argue fraud, even though the basement had not been built at that time.