Case Document

100%

CACV000339A/1999

CACV 339/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 339 OF 1999

(ON APPEAL FROM HCAL NO. 143 OF 1999)

______________

BETWEEN
	WONG TAK WOON	Applicant

	AND

	SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS	Respondent

______________

Coram: Keith JA and Ribeiro JA in Court

Date of Hearing: 3 March 2000

Date of Judgment: 3 March 2000

_______________

J U D G M E N T

_______________

Keith JA:

1. This is an application for leave to appeal to the Court of Final Appeal against the dismissal by the Court of Appeal of the appeal of Wong Tak Woon from the refusal by Cheung J to grant Miss Wong leave to apply for judicial review of the decision of the Secretary for Planning, Environment and Lands to recommend to the Chief Executive that her property at 19 Cross Street, Wan Chai, should be resumed under the Lands Resumption Ordinance (Cap. 124). Cheung J's order refusing her leave to apply for judicial review was not a final order because, had she been granted leave, her application for judicial review would have had to be heard. Accordingly, leave to appeal can only be granted to Miss Wong at the court's discretion under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484).

2. My reason for dismissing her appeal had been that it was not arguable that, in assessing the compensation for land resumed pursuant to a recommendation to the Chief Executive under the Land Development Corporation Ordinance (Cap. 15), account may be taken of the value of such property as would be built on the land under any proposed development. For the purposes of argument, I am prepared to assume in Miss Wong's favour but without deciding that whether such a fact may be taken into account in such an assessment is a question of great general or public importance. But in my opinion, the answer to that question is so obvious that it is not one which should be submitted to the Court of Final Appeal for decision. My reason for thinking that the answer is so obvious is set out on pp. 5O-6E of the transcript of my judgment.

3. Accordingly, for that reason I would refuse this application for leave to appeal to the Court of Final Appeal.

Ribeiro JA:

4. In my judgment handed down as part of the judgment of this Court on 11 January 2000, I agreed with Keith JA that the appeal had to be dismissed and reached that conclusion on three grounds.

5. First, I held that a judicial review of the offer of acquisition was precluded by the Ordinance because it provides the intended machinery under the Lands Resumption Ordinance for determining the value at which land should be acquired when an offer of acquisition is unacceptable to the land owner. It was my view that this left no room for an application for judicial review of an offer considered to be too low.

6. My decision obviously does not deprive the applicant of a right to a judicial determination of the proper valuation. I held that she had invoked the wrong machinery.

7. In my view, no issue of any great general or public importance arises on that ground.

8. My second ground of decision was closely related to the first. I held that it was entirely proper for the LDC to be guided by the amount of compensation achievable under the prescribed LRO machinery when deciding what would be a fair and reasonable offer since that was the fallback position if agreement could not be reached. Mr Warren Chan SC conceded, in my view rightly, that his position on valuation would be unarguable in the context of the LRO. I therefore considered it plain beyond argument that there was nothing unfair or unreasonable about grounding the offer on the valuation potentially achievable under the LRO. There is, in my view, no basis for granting leave to appeal to the Court of Final Appeal on this ground when the argument is unsustainable.

9. Thirdly, I agreed with the judgment of Keith JA that, on the facts of the case, for the reasons he gave, the offer cannot be regarded as other than fair and reasonable, and would also refuse leave on this ground as it raises no general issue.

10. I therefore conclude that there is no basis for a grant of leave to appeal to the Court of Final Appeal and so would also dismiss the application.