Wan Kwok Keung v. Director of Lands
Read the full judgment text of LDLR 4/2016 on BabelCite. This Lands Tribunal judgment was delivered on 31 May 2019.
1. These are the applications by the 9 applicants, by way of 9 corresponding summonses dated 28 March 2019, for
Cited by 1 case · Cites 7 cases
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LDLR 4 - 12/2016 (Heard Together) [2019] HKLdT 38 LDLR 4/2016 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LANDS RESUMPTION APPLICATION NO 4 OF 2016 ___________________
___________________ LDLR 5/2016 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LANDS RESUMPTION APPLICATION NO 5 OF 2016 ___________________
___________________ LDLR 6/2016 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LANDS RESUMPTION APPLICATION NO 6 OF 2016 ___________________
___________________ LDLR 7/2016 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LANDS RESUMPTION APPLICATION NO 7 OF 2016 ___________________
___________________ LDLR 8/2016 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LANDS RESUMPTION APPLICATION NO 8 OF 2016 ___________________
___________________ LDLR 9/2016 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LANDS RESUMPTION APPLICATION NO 9 OF 2016 ___________________
___________________ LDLR 10/2016 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LANDS RESUMPTION APPLICATION NO 10 OF 2016 ___________________
___________________ LDLR 11/2016 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LANDS RESUMPTION APPLICATION NO 11 OF 2016 ___________________
___________________ LDLR 12/2016 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LANDS RESUMPTION APPLICATION NO 12 OF 2016 ___________________
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__________________ D E C I S I O N (Leave to Appeal out of Time) __________________ Introduction and Background 1.These are the applications by the 9 applicants, by way of 9 corresponding summonses dated 28 March 2019, for
2.On 14 December 2007 (“the Resumption Date”), the Director of Lands resumed 116 private agricultural lots with a total area of about 16,453 square metres in the vicinity of Upper Lam Tsuen River, She Shan River and Upper Tai Po River, Tai Po, New Territories. 3.By 9 Notice of Applications to Determine Compensation for Land Resumed under the Lands Resumption Ordinance, Cap 124 (“the LRO”) dated 7 July 2016, the applicants applied to the Tribunal to determine the amount of compensation to be paid in respect of lots owned by the applicants that were resumed (“the Lots”). 4.After the trial held on 26, 27 and 30 November 2018, the Tribunal handed down the Judgment determining the compensation of the various Lots as follows:
5.In gist, the Tribunal, accepting the expert’s opinion of the respondent, found the best use of the Lots was open storage with pedestrian access only. 6.On 21 February 2019, the applicants applied for extension of time for review of the Judgment but such applications were ultimately withdrawn at the hearing on 4 March 2019 with costs to the respondent. 7.On 28 March 2019, the applicants took out the present applications. By consent of the parties, the Tribunal shall dispose of these applications on paper without oral hearing. Applicable Legal Principles 8.Under Section 11(1)(a) of the Lands Tribunal Ordinance (“LTO”), a decision of the Tribunal in determining the amount of compensation payable by the Government (acting on whose behalf, the Director of Lands) shall be the final determination thereof. However, under section 11(2) of the LTO, any party to the proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law, subject to section 11AA. 9.Section 11AA(1) of the LTO requires leave to be granted by the Tribunal or the Court of Appeal before an appeal under section 11(2) can be made. 10.Pursuant to rule 30B(2)(a) of the Lands Tribunal Rules (“LTR”), the applications for leave to appeal must be made to the Tribunal within 28 days from the date of the Judgment, ie within 20 February 2019 in the present case. 11.Section 11AA(6) provides also that leave to appeal shall not be granted unless the Tribunal is satisfied that:
12.Such criterion of “reasonable prospect of success” was described in SMSE v KL [2009] 4 HKLRD 125 at para 17 by Le Pichon JA (as she then was) as involving the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful” without having to be “probable”. 13.Whilst rule 30D of the LTR provides that the Tribunal may extend the time for applying for leave to appeal, an extension of time for appeal is a matter which lies within the discretion of the court. The factors which are normally taken into account in deciding whether to grant an extension of time include:[1]
14.Further, an application for an extension of time should be supported by an affidavit deposing to any facts relied on by the applicant and giving a full account of, and explanation for, the whole of the delay since time expired in an application for extension of time apply for leave: Hong Kong Civil Procedure 2019, Vol 1, para 59/2A/10; KNM v HTF, HCMP 288/2011 (unreported, dated 7 September 2011) at para 16, per Fok JA (as he then was). 15.Where a delay is inexcusable (even if it is insubstantial), the applicant faces a higher threshold, ie the party must show a real prospect of success on the merits and not simply the test of a reasonable prospect of success: KNM v HTF, supra at paras 19-20. Extension of Time 16.In this regard, Mr Nicholas Oh (“Mr Oh”), counsel for the applicants, explains the reasons for the delay as follows:
17.Mr Oh further submits that the length of the delay in the present case is not serious: it was only 36 days from the deadline of 20 February 2019 and there is no or minimal prejudice to the respondent in the present case; whether or not the intended appeal succeeds, the only difference is the amount of compensation payable to the applicants. 18.In Re Irshad Muhammad [2018] HKCA 864, the application for extension of time for leave to appeal was late for more than 5 weeks, ie like the present case and the length of delay was described by the Court of Appeal as substantial. In the present case, the Tribunal also considers that the length of delay is substantial. 19.Secondly, the Tribunal accepts the submissions made by Ms Ebony Ling (“Ms Ling”), counsel for the respondent, that the applicants’ delay is inexcusable for the following reasons:
20.Given the applicants’ delay is inexcusable, we consider that they must show a real prospect of success on the merits and not simply a reasonable prospect of success. Leave to Appeal 21.Under section 12 of the LRO,
22.At para 41 of the Judgment, the Tribunal concluded that as the expectancy of obtaining the building licence for the subject lands which affects the intrinsic value of the Lots falls squarely within the words of section 12 (c) of the LRO, the best use of the Lots cannot be New Territories Exempted House (“NTEH”) developments. Further at para 42 of the Judgment, we explained that as there was no evidence before the Tribunal that as at the Resumption Date, the Lots were or had been surrounded by any NTEH developments, in most likelihood, the NTEH developments that building licences for which had subsequently been granted in the surroundings had benefited from the Resumption which had improved the accessibility of the environ. At para 43, as particularly evidenced by the physical features of the Lots, for instance, the aerial photo taken in 2007, we agreed with the expert for the respondent that the best use of the Lots was open storage with pedestrian access only (as opposed to vehicular access), such as nursery for growing and selling of plants and flowers, storage of goods/stuff such as metal scrap etc. 23.In relation to the “as of right” exception under section 12(c) of the LRO, Mr Oh submits that one must be careful to distinguish what the Government can do from whether the applicant can enforce the granting of any licence, permission, lease or permit as of right. He emphasises that the refusal by the Government to grant licence, permission, lease or permit which is in breach of a Basic Law right would be susceptible to enforcement of that right eg by judicial review, and should be considered as falling under the “as of right” exception. 24.The right relied upon by Mr Oh is Article 40 of the Basic Law which states that:
25.The interplay between this Article 40 of the Basic Law and the Small House Policy implemented by the Hong Kong Government has been recently discussed in considerable depth in the judgment of Kwok Cheuk Kin & Another v Director of Lands & Others [2019] HKCFI 867. 26.As described in para 9 of Kwok Cheuk Kin’sjudgment, the prevailing Small House Policy now provides for a Building Licence on land owned by the applicant himself at nil premium, or at a full-rate premium in relation to post-1898 villages. The Free Building Licence was granted to indigenous inhabitants free of any premium if the inhabitant decided to build a village house on his agricultural land for his own use. 27.The report titled “The New Territories Small House Policy” dated February 1980 cited in para 122 of Kwok Cheuk Kin’sjudgmentstates the following in relation to the Free Building Licence:
28.However, the precise nature of the rights or interests (if any) enjoyed by the New Territories indigenous villagers to build small houses in their own villages is not an issue which arose for determination in the present case. 29.Even though since the beginning of the lease of the New Territories, the custom of the villagers to build houses in their village for their own occupation and on their own agricultural land held under the Block Crown Lease issued in 1905, free of premium, has been recognised. It was the Government’s position that New Territories indigenous villagers did not have any legal right to build small houses on agricultural land in the absence of a lease modification or a building licence; use of the land for any building purpose was not possible without Government’s approval. 30.In such regard, the Tribunal maintains that the most authoritative and landmark case on the applicability of section 12(c) of the LRO is Director of Lands v Yin Shuen Enterprises Ltd & Another (2003) 6 HKCFAR 1, in which the CFA faced the covenant in the Block Government Lease exactly the same as the present one and decided against the applicant in that case. 31.Also, in the present case, the building licences of the Lots have yet to be granted by the Lands Department as at the Resumption Date. Some of the applicants only applied for and obtained building licences for the remaining portions of the Lots after the Resumption Date. This demonstrates that this once in a lifetime “ding right” had not been forfeited by the resumption and not inextricably tied to the Lots resumed.[2] The applicants in the present case will be unjustly enriched by his traditional rights (if any) by obtaining compensation based on such rights when in fact, they could exercise and some had exercised their rights on the remaining land or other land afterwards. 32.In view of the above, we agree with Ms Ling that the applicants’ reliance on Kwok Cheuk Kin’scaseis misplaced because:
33.Thus, even if the applicants’ delay is excusable, we find the test of a reasonable prospect of success is still not satisfied. Nor is there any other reason in the interests of justice that the appeal should be heard. Application for leave to appeal out of time must be dismissed. Substitution Application 34.Under rule 11 of the LTR, at any stage of proceedings and either on or without the application of a party, the Tribunal may add, strike out, or substitute the name of any person as a party. 35.Further, under section 10(1) of the LTO, the Tribunal may, so far as it thinks fit, follow the practice and procedure of the Court of First Instance in the exercise of its civil jurisdiction, and for this purpose, has the same jurisdiction, powers and duties of the Court of First Instance in respect of such practice and procedure. Under this section, the Tribunal may apply, inter alia, the Rules of the High Court (Cap. 4A) (“RHC”). 36.For LDLR 8/2016, the applicant died in Hong Kong on 24 January 2001. On 24 October 2011, the Grant of Probate was granted to Madam Cheung as the sole executrix of the applicant. 37.For LDLR 10/2016, the applicant died in Netherlands on 12 February 2001. On 13 June 2011, the Grant of Probate was granted to Madam Cheung as the sole executrix of the applicant. 38.Under O.15 r.6A(3) and (4) RHC, an action purporting to have been commenced by or against a person shall be treated, if he was dead at its commencement, and the cause of action survives, as having been commenced by his estate or against it, whether or not a grant or probate or administration was made before its commencement. Further, the personal representative should be made a party of the proceedings and apply for a carry on order. 39.Unfortunately, the Tribunal was never told by the former solicitors and Counsel of the applicants at any stage that there was such a grant before the commencement of proceedings. As the said grants were issued before the commencement of proceedings, the former solicitors of the applicants shall be able to name the applicants in LDLR 8/2016 and LDLR 10/2016 as Cheung Cho Gau, the executrix of the estate of the applicants therein. The applicants are unreasonably late in making the Substitution Application after trial with no explanation given. Having said that, the Tribunal finds necessary to allow the Substitution Application so as to validate and preserve the present proceedings which will not be treated as a nullity on technicality (see 15/6A/2 of Hong Kong Civil Procedure 2019). Thus, we make an order in terms of para 1 of the summonses dated 28 March 2019 in LDLR 8/2016 and LDLR 10/2016. Costs 40.As costs shall follow event, the Tribunal orders that costs of these 9 summonses be paid by the applicants jointly to the respondent on the High Court Scale. The applicants lodged their statement of costs claiming costs of $178,212 whereas the respondent lodged her statement of costs for $67,040 only. We consider that the amount of costs claimed by the respondent is very reasonable and is summarily assessed at $67,040 payable by the applicants jointly forthwith.
Mr Nicholas Oh, instructed by Terry Yeung & Lai, for the applicants Ms Ebony Ling, instructed by the Department of Justice, for the respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Further hearings and rulings under LDLR 4/2016