Penny's Bay Investment Co Ltd v. Director of Lands

FAMV Nos. 57, 58, 59, 60, 61, 62, 63, 64 & 65 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NOS. 57, 58, 59, 60, 61, 62, 63, 64 & 65 OF 2016 (CIVIL)

(ON APPLICATIONS FOR LEAVE TO APPEAL

FROM CACV NOS. 13, 14, 15, 16, 115, 116, 119 & 120 OF 2015)

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BETWEEN

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REASONS FOR DETERMINATION

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The Appeal Committee:

1.These are the reasons for the result announced on 11 April 2017.

2.It was as long ago as 5 May 1995 that the marine rights enjoyed by Penny’s Bay Investment Ltd (“PBIL”) at Penny’s Bay off Lantau Island were extinguished by a notice gazetted on that date. PBIL claimed compensation.  The claim has already made one trip from the Lands Tribunal to the Court of Appeal and then to the Court of Final Appeal.  That was on preliminary issues as to how the claim was to be assessed.  Those preliminary issues were resolved by Lord Hoffmann NPJ’s judgment, agreed with by the other members of the Court of Final Appeal, declaring the basis on which PBIL’s claim for compensation is to be assessed.  That judgment was handed down on 26 March 2010 and is reported at (2010) 13 HKCFAR 287.  The saga continues. On 15 October 2014 the Lands Tribunal awarded compensation in the sum of HK$10,952,500 (which it subsequently said should be HK$9,431,000 instead). PBIL’s stance is that far more compensation than that is due to it.  The stance adopted by the Director of Lands (“the Director”) is that little or no compensation is due to PBIL. PBIL and the Director each appealed to the Court of Appeal against the award made by the Lands Tribunal.  On 16 May 2016 the Court of Appeal handed down its judgment.  Neither PBIL nor the Director is satisfied with that judgment.  Each sought, and each was refused, the Court of Appeal’s leave to appeal to the Court of Final Appeal.  Whereupon each of them came to this Committee for such leave.

3.In seeking our leave to appeal to the Court of Final Appeal, each party put forward a number of questions which it contended were questions which were involved in its proposed appeal and which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.  There is nothing in the circumstances of this litigation that warrants granting leave to appeal on the “or otherwise” basis. So the test in regard to each question comes down to whether it (i) is involved in the proposed appeal of the party putting it forward, (ii) is of great general or public importance and (iii) is reasonably arguable.  With two exceptions, none of the questions put forward by either party satisfies that test. In refusing leave to appeal to the Court of Final Appeal on the questions other than those two exceptions, we respectfully agree with the reasons which the Court of Appeal gave in regard to those other questions when they refused such leave.

4.One of the exceptions is PBIL’s question: “What is the meaning and scope of a permitted user of land for ‘godown purposes’, and in particular, whether a use for ‘godown purposes’ must involve a building or part of a building, without which a use otherwise qualified as one for ‘godown purposes’ would cease to be so?”.  On this question and this question only, we grant PBIL leave to appeal to the Court of Final Appeal.

5.The other exception is the Director’s question: “Whether the Court of Appeal were correct in holding that, although [the Court of Final Appeal] had directed that different factual assumptions were to be made for the purposes of the before and after valuations, most of those assumptions could not as a matter of law lead to any differences in the two values”.  On this question and this question only, we grant the Director leave to appeal to the Court of Final Appeal.  

6.The costs of these leave applications will be, as each party has indicated that it is content that they be, costs in the appeals.

Mr Denis Chang SC and Mr Johnny Ma, instructed by Wilkinson & Grist, for the Applicant (Applicant in FAMV 57/2016)

Mr Michael Barnes QC and Mr Valentine Yim, instructed by the Department of Justice, for the Respondent (Applicant in FAMV 58-65/2016)