Fung Kai Yin v. Director of Lands

CACV000218/1996

IN THE COURT OF APPEAL

1996, No. 218

(Civil)

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Coram: Hon Nazareth Ag C.J., Bokhary & Liu JJ.A.

Date of hearing: 27 May 1997

Date of judgment: 27 May 1997

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J U D G M E N T

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Liu JA:

1. The appellant Mr Fung Kai-yin is a partner of a shop known as Hang Lam Tong Sun Yung Seafood and Medicine Co. which formerly carried on business at No. 11, Ground Floor, Ma Tau Kok Road, Kowloon. On 3 October 1992, those premises reverted to the Crown pursuant to a Notice of Resumption. The applicant's partnership was allowed to stay in those premises rent free until April 1994 when it was evicted. The partnership through the appellant applied for compensation under the provisions of the Crown Land Resumption Ordinance. On 9 July 1996 the applicant's partnership were awarded $2,060,000. The applicant sought a review from the Lands Tribunal, but the application for review was dismissed in October 1996. On 8 November 1996, the appellant lodged a Notice of Appeal. He was apparently out of time. His attention was drawn to this, but no application has been made to seek leave to extend time to appeal. The Director of Lands takes a further point on the Notice of Appeal which, it is contended, fails to specify any appealable question of law.

2. The appellant had been reminded that he was out of time. He was given ample opportunity to amend his Notice of Appeal. No effort has been made to seek an extension of time to appeal. After a considerable lapse of time and some reminders, the Notice of Appeal stands today unamended. The failure to take advantage of the opportunity given him for amending his Notice of Appeal must be taken, in the circumstances, as deliberate. So is his failure to seek leave to appeal out of time.

3. In the submission the appellant makes to us today, what is described as the Lands Tribunal's new approach to compensation calculation is sought to be impugned. His submission is difficult to follow. No specific errors of law are identified. From what we can understand, it would seem that he is raising the same arguments which were rejected by the Vice-President in Lee Sai Ho v. Director of Lands (Civil Appeal No. 176 of 1996), the judgment of which was delivered on 26 September 1996. The appellant complains, in particular, that the forced auction of Chinese herbal and medicine stock of his partnership was conducted in the wrong season. He clearly feels aggrieved by the award and what he understands to be the new approach to assessing it. But the matters he raises today in his oral submission do not seem to take his Notice of Appeal any further. The ground he gives in his Notice of Appeal reads as follows:

"The ground for review is that the calculation approach can not fulfill the fundamental principle of compensation which is to put the party who was suffered (sic) in the same position he would have been if he had not sustained the damage due to resumption."

4. Properly analysed, the appellant's complaint, so it would seem, is that the Tribunal's approach to calculation fell far short of meeting the requirements of the fundamental principle for awarding compensation. The appellant does not identify the fundamental principle on which he seeks to rely. He merely sets out in his ground, if that principle had been duly applied, the end-product which is an award to place the appellant in the same position as if he had not been affected by the resumption. The appellant must be claiming to have been under-compensated, but an inadequate award would not by itself necessarily reflect a breach of fundamental principle, whatever that is. Evidently, more causes than one could lead to an inadequate or low award.

5. In any case, the purported ground of appeal does not specify what requirement of the alleged fundamental principle the compensation awarded failed to satisfy. Without giving any particulars as to what the alleged fundamental principle is and how it is said to have been ignored, the ground fails to disclose any error of law in the Tribunal's decision for appeal.

6. In effect, the purported ground of appeal does not raise any point of law for our consideration. In our view, the purported ground of appeal is not appealable and this appeal is not competent. The appellant is also out of time. He has not even applied for leave to have time extended for appealing. Moreover, this court has time and again struck out a Notice of Appeal which gives no or no sufficient grounds. For being out of time and for putting in an unappealable ground of appeal, we feel bound to strike out the Notice of Appeal and, consequently, his appeal .

Representation:

FUNG Kai-yin, appellant in person

Mr Raymond Tam, Sr.C.C. of Crown Solicitor for respondent