Hung Kwai Hung v. Director of Lands

CACV000249/1996

IN THE COURT OF APPEAL

1996, No. 249

(Civil)

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

Date of hearing: 28 May 1997

Date of judgment: 28 May 1997

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J U D G M E N T

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Liu JA:

1. The appellant Mr Hung is duly authorised by the party or parties interested. He confirms this authorisation to-day. In addition, he obtained oral confirmation a few days ago. This appeal concerns premises at No. 6 Ground Floor, Sui Lun Street, Kowloon and the factory formerly operated in those premises.

2. On 3 October 1992 the property reverted to the Crown pursuant to a Notice of Resumption, but they stayed there rent free until April 1994. Compensation was applied for, and $2.8 million was awarded. On 22 December 1996, an application was made to review the award, which was refused. The Notice of Appeal was lodged on 11 December 1996.

3. The Director of Lands complains that the notice was out of time and that it specifies no question of law for appeal. The matter was adjourned for three months by consent, but it does not follow that leave for appealing out of time should not be properly applied for. The appellant was often reminded and has had good opportunity to make such an application and to amend the Notice of Appeal. Much time has been allowed to pass without taking any action. In these circumstances, the appellant can be taken to have been intentional and deliberate in his failure to make any application.

4. Today he submits as follows:

"I now appear in court to tell the court that the Lands Tribunal has made a mistake in awarding my compensation. If the calculation method is wrong, then later injury and death victims would not be able to receive the compensation they are entitled to."

He further complains that the Lands Tribunal adopted a wrong basis for assessing loss of profits, in terms of wages of staff in Hong Kee Electroplating Factory and Sang Kee Metalware Company. He further submits that the Lands Tribunal failed to take into account proper expenses for relocation. These are alleged errors of fact. The appellant may appeal only on points of law.

5. The grounds of appeal in his Notice of Appeal reads:

"The ground for review is that the calculation approach cannot fulfil 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 the resumption."

6. Properly analaysed, the appellant's complaint is that the Tribunal's approach to calculation failed to meet the requirements of the fundamental principle for awarding compensation.

7. The appellant does not identify the fundamental principle which he seeks to uphold. His ground merely sets out, if that principle had been applied, the end-product which is an award to place the appellant in the same position as if he had not been affected by resumption.

8. The appellant must be claiming to have been under-compensated, by itself an inadequate award would not necessarily reflect a breach of fundamental principle, whatever that is. Evidently, more causes than one could lead to an inadequate or low award.

9. 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 condescending upon 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.

10. 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. In the circumstances, his inaction must be intentional. No extension of time should be granted. This court has time and again struck out a Notice of Appeal which gives no or no sufficient grounds. Clearly for being out of time and not setting out any appealable points of law, the appellant's Notice of Appeal must be struck out. Accordingly, we strike out his Notice of Appeal and his appeal.

Representation:

Hung Kwai Hung, appellant in person, represented by Chiu Chi-wo

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