Group Leader Ltd and Others v. Hui Sun Fat and Others

CACV 61/2015
and CACV 110/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 61 and 110 OF 2015

(ON APPEAL FROM LDCS NO 27000 of 2011)

________________________

BETWEEN

_______________________

(HEARD TOGETHER)

____________________

JUDGMENT

____________________

Hon Lam VP (giving the Judgment of the Court):

1.We dismissed this appeal on 1 March 2016 with our Reasons for Judgment handed down on 16 March 2016. By 2 Notices of Motion of 29 March 2016, the Director of Lands, the 17^th Respondent [“the Director”], seeks leave to appeal to the Court of Final Appeal. The question set out in the Notice of Motion issued in CACV 61 of 2015 as the question of great general or public importance [“GPI”] is as follows:

“ 1.  Where undivided shares of a lot previously held by the Government as bona vacantia were assigned to a party who covenanted to the Government that he would not further dispose of those undivided shares without the prior written approval of the Government, whether the Government has locus standi to be joined as a party to or intervene in an application for compulsory sale order under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap. 545)(“LCSRO”) involving those undivided shares to allow the proper ventilation of the Government’s interest arising from the said covenant?”

2.The Notice of Motion issued in CACV 110 of 2015 set out another GPI question:

“ 1. Whether, on a proper construction of the LCSRO, the market value of a property on the lot as assessed pursuant to the requirements identified in Part 1 of Schedule 1 to the LCSRO (i.e. the existing use value) should be the price at which the property would change hands in a hypothetical sale and purchase between a hypothetical seller and a hypothetical buyer?”

3.In our judgment, we decided the question in CACV 61 of 2015 against the Director.  We also held that as a result of our determination of the issue in CACV 61 of 2015, the Tribunal should not entertain the Director’s submissions on the question raised in the context of CACV 110 of 2015.  We therefore did not consider it appropriate for us to decide the issue raised by the Director in CACV 110 of 2015.

4.In support of her application in CACV 61 of 2015, the Director basically repeated her arguments before us.  We have explained in our judgment why we rejected those arguments.  A major contention of the Director is that the expression “all the rights of any prior owner” in Section 8(1) encompasses rights which did not run with the land and were not proprietary in nature.  In light of that subsection referring to “rights of any prior owner … in or over the lot or any part thereof” and the definition of such rights in Section 8(6) (confining it to rights exercisable by virtue of ownership of an undivided share in the lot which affect the lot), we remain of the firm view the Director’s contention is not reasonably arguable.

5.Mr Mok also referred to the other statutory provisions in the Ordinance to support his contention.  We have adequately addressed the same in our judgment and we do not regard what Mr Mok said in his submissions in support of the Notice of Motion as taking the matter further.  We do not think that to be reasonably arguable.

6.For these reasons, we would dismiss the Motion in CACV 61 of 2015.  It also follows that there is no basis why the Court of Final Appeal should be troubled with the issue raised in CACV 110 of 2015.  We shall also dismiss the Notice of Motion in that appeal.

7.We shall also order the Director to pay the costs of the 1^st to 9^th Applicants in respect of the Notices of Motion, with certificate for 2 counsel, such costs are to be taxed if not agreed.

8.In the supplemental submissions of Mr Mok of 13 June 2016, counsel referred us to an affirmation of 26 February 2016 and submitted that the notices of appeal had been served on the 7^th, 10^th, 12^th to 15^th Respondents.  He further submitted that those respondents were parties to the appeals before us.  On the other hand, Mr Mok appeared to accept that there had not been any effective service of the notices of appeal on the 2^nd, 3^rd and 16^th Respondents.

9.However, from the court records, these appeals had always proceeded as appeals between the Applicants and the 17^th Respondent only.  The Notices of Appeal endorsed with certificate of service lodged pursuant to Order 59 Rule 5(1)(b) for setting down the appeals were notices of appeals endorsed only with service on the solicitors for the Applicants.  The notices of setting down lodged with the court only specified the solicitors of the Applicants as the other party to whom notices were given.  A consent summons of 26 March 2015 in CACV 61 of 2015 and a consent summons of 31 May 2015 in CACV 110 of 2015 were only signed by solicitors for the Applicants and Government Counsel acting for the 17^th Respondent.  As a result, notices of hearing were only given to these parties.

10.In the circumstances, though there may be an inaccuracy at paragraph 2 of our judgment of 27 May 2016 regarding service of the notices of appeal, we stand by our conclusions in that judgment.

Written submissions by Mr Patrick Fung SC and Ms Nancy Ngai, instructed by Lo & Lo, for the 1^st to 9^th applicants

Written submissions by Mr Mok Yeuk Chi and Mr Anthony Chan, instructed by the Department of Justice, for the 17^th respondent