Gainfield Investment Ltd and Another v. Lam Yi Lai and Others
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DCCJ 3736/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3736 OF 2014 --------------------
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-------------------- DECISION -------------------- 1.At the pre-trial review (“PTR”) of this case before me on 6 June 2016, the parties raised an interesting jurisdictional point. 2.In short, the plaintiff’s solicitors have recently discovered that the rateable value of the land in dispute, namely, the property situated at 4th Floor, No 2B Tak Shing Street, Kowloon, Hong Kong (“the Property”) is at HK$257,400, which exceeds the HK$240,000 limit stipulated under s 35 of the District Court Ordinance, Cap 336 (“DCO”). This raised the question of whether the District Court still has jurisdiction to hear this claim under s 35 of the DCO. Brief history of the proceedings 3.Before addressing this issue, it will be appropriate for me to set out the brief history to the present proceedings:-
Discussion 4.s 35 of the DCO provides:-
5.There is no dispute that the jurisdiction of this court is limited to the rateable value of $240,000 under s 35 of the DCO. The issue before me is whether the relevant time for determining the rateable value for the purpose of s 35 is at the commencement of the proceedings or at the time when the case is due for hearing or determination. 6.This involves a question of interpretation of s 35 of the DCO. 7.The legal principles on statutory interpretation are not in dispute and are helpfully summarized by Deputy District Judge Winnie Tsui in Ng Cho Chu Judy v Chan Wing Hung [2016] 1 HKLRD 1073 at §76. In a detailed and comprehensive review of the legislative history of the DCO (see §§79-85), its purpose (see §§86-95), the context under which it was enacted (§§96-104), the learned deputy judge said (at §94):-
8.The particular statutory provision under consideration in Ng Cho Chu Judy is s 36 and not s 35 of the DCO, although the principles in relation to statutory interpretation are the same. Applying the principles set out in §76 of the Judgment, the learned deputy judge followed Ma Yu Cheung v Yu Wai Chun, DCMP 268/2001, unreported, 22 November 2001, a decision of HH Judge Andrew Cheung (as the Chief Judge of the High Court then was) and adopted the liberal approach in the interpretation of s 36 of the DCO. See §118 of the Judgment. 9.It should be noted that s 19 of the Interpretation and General Clauses ordinance, Cap 1 also provides that:-
10.I agree with Mr Lawrence Ng, counsel for the defendants, that this court should adopt a liberal approach in the interpretation of s 35 of the DCO. 11.In adopting the liberal approach, I agree with Mr Ng that the following factors point strongly to the conclusion that the rateable value of the property should be determined at the time when the proceedings were issued:-
12.Mr Anthony Chow, counsel for the plaintiffs, submits that the court should take a literal approach in interpreting s 35 of the DCO and that the court should determine the rateable value of the land at the time of hearing and determining of the case in accordance with the wordings of s 35. He admits that the plaintiffs are not able to identify any authority directly on point. Mr Chow further submits that while the plaintiffs are keen to proceed with the trial set down before this court in August, they are more concerned that the judgment to be made by this court upon trial is not open to challenge for lack of jurisdiction by the defendants. According to Mr Chow, that is the reason why the plaintiffs prefer to take a more cautious approach. 13.The plaintiffs suggest this court to make an order to transfer the case to the CFI while keeping the scheduled trial dates in August 2016 in the District Court; then by consent the parties would seek an order of the CFI under s 44 of the DCO to transfer the present action back to the District Court; and then the parties to proceed with the trial in this court as scheduled. 14.While I fully understand why the plaintiffs would take a cautious approach in the matter, I cannot agree with the suggestion that the proper date of determining whether the court has jurisdiction over the matter should be at the time of hearing and determining the matter for the following reasons:-
Conclusion 15.For the above reasons, I find that the District Court has jurisdiction to hear this claim. 16.I would like to thank the plaintiffs’ solicitors for bringing this matter to the court’s attention. I consider that it was right and proper for them to do so. As the parties have agreed, I think the proper costs order to make for the time spent in arguing this interesting jurisdictional point should be costs in the cause. 17.I should also thank both counsel for their helpful assistance despite the shortage of time in preparing the submissions.
Mr Anthony Chow, instructed by Zhong Lun Law Firm, for the 1st and 2nd plaintiffs Mr Lawrence Ng, instructed by Au-Yeung, Cheng, Ho & Tin, for the 1st, 2nd and 3rd defendants |
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