Too busy? Teresa Cheng’s book says it’s not a defence
The new justice secretary, at the centre of an illegal structure scandal at her home, should have heeded the lessons on construction law on which she had written a book
“I understand that the public would have higher expectations of our senior officials. I also understand that it might not be good enough to say [that] such overlooking is due to being too busy … I hope councillors can be more tolerant.”
Carrie Lam Cheng Yuet-ngor,
SCMP, January 12
Let me contribute another instance of why it might not be good enough for our newly appointed justice minister, Teresa Cheng Yeuk-wah, to offer the lame excuse of “being too busy” to notice extensive illegal structures in her home.
On the website of British legal publishers Sweet & Maxwell is a promotion of a new book – Construction Law and Practice in Hong Kong, Third Edition. It is an update from a previous edition in 2012.
The blurb for it tells us that in Hong Kong “ … there continues to be demand for a relevant and useful publication about construction law” and that this one “informs readers about all aspects of construction law and incorporates new developments in the law”.
First on the list of the two authors is, yes, you guessed it, Teresa Cheng, Senior Counsel, Des Voeux Chambers.
I have not bought a copy. They want HK$3,020 for one. But a friend has let me peek into his copy of the 2004 edition and it deals comprehensively with what constitutes unauthorised building works and the culpability of the builders and owners of such properties.
Under the heading Wilful concealment of substandard works, for instance, it says that concealment from the Building Authority may actually be deemed conspiracy to defraud.
I would have thought that any structure built without approval and occupied without inspection must automatically be considered substandard and that excluding a 538 sq ft hidden basement from even mortgage documents constitutes concealment.
But if fraud seems a hard word to use, I also have in front of me the findings of a 15-year-old court case in which Teresa Cheng argued for a strong line on the definition of illegal structures. Any breach of regulation should be considered illegal, she said.
The judge disagreed with her, mind you, but in the findings, which she had to read closely as an obligation to her client, the judge did use the word “criminal” when discussing building works undertaken without approval.
I also do not see how she can now shift blame for her illegal structures on the previous owners and builder of her home when a paragraph of her book headed Normal duties of owners includes among these duties the maintenance and repair of structures and finishes.
Does she really mean to tell us that she never exercised these duties although stating in print that they are her duties, or that she never noticed in exercising them that her home exhibited all the classic evidence of illegal structures? She furthermore makes it clear in her book that the burden of proof for allowing a defence of reasonable but mistaken belief rests with the defendant.
As a chartered engineer, a barrister active for many years in construction law, who has argued illegal structure cases in court and published a book on construction law, she may argue it was all a mistake but she cannot, without inviting extreme ridicule, argue that in her case it was reasonable.
One gem in her book was how an ancient king of Babylon ruled that a builder of a substandard house should be put to death if it collapses and kills someone. Well, hers has not fallen yet, let alone killed anyone, and no one demands execution. But we do now need her resignation as justice minister.
To everything there is a season, Carrie, but this is not one to be tolerant. You have to sack her now. She cannot stay.