Pacific Base Holdings Ltd and Others v. Lee Hop Biu and Others

LDCS 14000/2017

[2020] HKLdT 27

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO 14000 OF 2017

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BETWEEN

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Before: His Honour Judge S Lo, Presiding Officer of the Lands Tribunal, and Mr Lawrence Pang, Member of the Lands Tribunal

Date of Decision: 24 July 2020

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D E C I S I O N

(Leave to Appeal and Stay of Execution)

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Introduction and Background

1.Pursuant to a judgment handed down by the Tribunal on 4 June 2020 ie [2020] HKLdT 20 (“the Main Judgment”), it was ordered inter alia that the following lots (“Subject Lots”) were ordered for sale by public auction following an application for the purposes of redevelopment (“the Application”) pursuant to section 3(1) of the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“the Ordinance”):

Lot No	Address
Kowloon Inland Lot 9600 (“KIL 9600”)	65 Granville Road	Together referred to as “the 1st Lot” where appropriate
Kowloon Inland Lot 9612 (“KIL 9612”)	67 Granville Road
Kowloon Inland Lot 8807 (“KIL 8807”)	69 Granville Road	Together referred to as “the 2nd Lot” where appropriate
Kowloon Inland Lot 9586 (“KIL 9586”)	71 Granville Road
Kowloon Inland Lot 9549 (“KIL 9549”)	73 Granville Road	Referred to as “the 3rd Lot” where appropriate
Kowloon Inland Lot 9806 (“KIL9806”)	61 Granville Road	Together referred to as “the Adjoining Lots” where appropriate
Kowloon Inland Lot 10101 (“KIL 10101”)	63 Granville Road

2.By a summons dated 26 June 2020 (“Appeal Summons”), the 4^th respondent (“R4”) applied for leave to appeal against the Main Judgment. R4 also sought an order that the execution of the Main Judgment (ie the order for sale) be stayed.  By consent of the parties, the Tribunal shall dispose of the Appeal Summons on paper without oral hearing.

3.Meanwhile, in execution of the Main Judgment, the trustees appointed under the Main Judgment (Mr Andy Ngan and Ms Jenny Ma as represented by Messrs Michael Cheuk, Wong & Kee) (“the Trustees”) informed the parties by letter dated 7 July 2020 that the auction of the Subject Lots and the Adjoining Lots is scheduled to be held on 30 July 2020 (“the Auction”).

4.R4 had proposed to the parties and the Trustees to consent to an order for interim stay of execution pending disposal of the Appeal Summons.

5.The 1^st respondent (“R1”), the 2^nd respondent (“R2”) and the 3^rd respondent (“R3”) disagreed.

6.By a letter dated 8 July 2020, the Trustees stated that they were not in a position to comment on R4’s proposal for interim stay.

7.Thus, on 10 July 2020, R4 took out another summons for interim stay of execution pending the determination of the Appeal Summons by the Tribunal (“Interim Stay Summons”). The parties further agreed that the Tribunal shall dispose of the Interim Stay Summons on paper without oral hearing.

8.Mr Mok Yeuk Chi (“Mr Mok”) filed his submission dated 15 July 2020 on behalf of the applicants.

9.Mr C Y Li, SC leading Mr Adrian But (hereinafter together referred to as “Messrs Li & But”) on behalf of R1 filed their submission dated 15 July 2020.

10.Mr Albert Chan (“Mr Chan”) on behalf of R2 and R3 also filed his submission dated 15 July 2020.

11.Mr Ho SC leading Ms Chow (hereinafter together referred to as “Messrs Ho & Chow”) for R4 filed R4’s reply submissions on 20 July 2020 and 22 July 2020.

Relevant laws concerning appeal

12.Section 11AA(6) of the Land Tribunal Ordinance (“LTO”) provides that :

“(6) Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

13.The intended appellant must “show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed” (Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515 at paragraph 19).

Grounds of Appeal

14.The draft Notice of Appeal is annexed to the Appeal Summons.  Messrs Ho & Chow for R4 raise the following grounds in support of the intended appeal:

(i) the Tribunal erred in its construction and application of section 3 and section 4 of the Ordinance as set out at paragraphs 37 to 45 and concluded at paragraph 53 of the Main Judgment where in particular, the agreed evidence between Ir Chan Hei Leung Thomson (“Ir Chan”) and Ir Lo Kwok Kay (“Ir Lo”), the structural assessment experts for the applicants and R4 respectively is that the building straddling Nos 73 and 75 Granville Road (referred to respectively as No 73 and No 75 hereinafter) was designed and constructed as one single building with a single frame structure in accordance with the approved building plans so that the dissection of this single building with a single frame structure would be required if only No 73 but not No 75 were to be demolished for redevelopment (“Agreed Evidence”);

(ii) The Tribunal erred in law in holding (at paragraph 51) that it was “entirely inappropriate” for the Tribunal to impose direction intended to ensure the safety of the building standing on No 75 when only No 73 is demolished or redeveloped. In so doing, the Tribunal failed to appreciate that it had the power under sections 4(6)(a)(i), (6)(c) and (9) of the Ordinance to give any directions which are not inconsistent with other provisions of the Ordinance (ie section 4(2)(a) requiring redevelopment to be justified) when making an order for sale;

(iii) The Tribunal further erred in law (at paragraph 52) in holding that it was feasible for the redevelopment of No 73 to be carried out alone as opined by the applicant’s structural expert for the purpose of the Application pursuant to section 3(1) of the Ordinance;

(iv) For the foregoing reasons, the conclusions of the Tribunal set out at paragraph 53 are wrong in law;

(v) The Tribunal erred in law in concluding (at paragraph 140) that the applicants had taken reasonable steps to acquire all the undivided shares in the Subject Lots, including negotiating for the purchase of those shares owned by R1 to R4 on terms that were fair and reasonable, when, in light of the Agreed Evidence, no or no adequate remedial measures to address the structural stability and safety of the remaining structure on No 75 had been included in the Application;

(vi) Bearing in mind the nature, complexity and the issues involved in this case as between the applicants and R4, the Tribunal erred in making a costs order at paragraph 185(ii) that costs be awarded to, inter alia, R4 to be taxed if not agreed, with certificate for only one counsel on party and party basis at the High Court scale.

15.Messrs Ho & Chow elaborate as follows:

(i) The Tribunal was wrong in law in holding (at paragraph 37) that the provisions in sections 3(1) and 3(2) of the Ordinance would allow for the inclusion only of No 73 in the Application when No 75 was not a subject lot of the Application.

(ii) In so holding, the Tribunal failed to consider that section 3(1)(b) specifically requires the Application to be made for the purposes of redevelopment of the lot, and that by section 4(2)(a) the Application could only be allowed if the Tribunal is satisfied that redevelopment of the lot is justified. In light of the definition of redevelopment in section 2 of the Ordinance, the Tribunal is required but has failed to consider the question whether the redevelopment – ie replacing half of the building straddling Nos 73 and 75 is justified.

(iii) The Tribunal has wrongly ignored that the structure erected on the lot is central to the application of section 3 and section 4 of the Ordinance. The Tribunal has wrongly held that the focus of the Ordinance was only on the undivided share regime of the lot and not the structure erected thereon.

16.Messrs Ho & Chow submit that in light of the Agreed Evidence, the Tribunal was wrong in law and in fact in holding (at paragraphs 38, 40 and 41) that the applicants herein were entitled to choose section 3(1) and/or section 3(2)(a) but not section 3(2)(b):

(i) In so doing, the Tribunal has failed to interpret the Ordinance purposively, ignoring its legislative purpose and context. The Tribunal failed to appreciate that section 3(2) of the Ordinance was introduced to deal specifically with the situation where a building straddles more than one lot, and that in the case of buildings straddling more than one lot sharing a common staircase, ie Nos 73 and 75, section3(2)(b) should be applied and not section 3(2)(a).

(ii) By ignoring the legislative purpose and context aforesaid, the Tribunal has wrongly held that the word “or” in section 3(2) entitled the applicants in effect to disregard the fact that Nos 73 and 75 was a building sharing a common staircase, and thus erred in holding that the applicants had “an option” but was not under “compulsion” whether to invoke only section 3(2)(a) and not section 3(2)(b) in a situation involving a common staircase.

(iii) In this connection, the Tribunal further erred (at paragraph 40) in holding that a majority owner (or the applicants in the present case) needs only to qualify under section 3(1) and 3(2)(a) even in situations where the existing structure standing on the lot shared a common staircase with its neighbouring lot and the two structures were one building from a structural perspective, and that, as in the present case, a redevelopment would necessitate dissection or “cutting up” of the same.

(iv) In this connection, the Tribunal further erred (at paragraph 41) in its views that (i) section 3(2) was “to facilitate majority owners who might not be able to achieve the 80% ownership requirement in ‘a lot’ … to enable them to rely on an alternative mechanism through the average ownership of ‘2 or more lots’ connected by common staircases to satisfy the ownership requirement”; (ii) the expression used under section 3(2) “… an application under subsection (1) may cover … 2 or more lots …” indicated that it would be entirely up to the applicants as the majority owners to choose whether to rely on either section 3(1) alone, section 3(1) with section 3(2)(a) or section 3(1) with section 3(2)(b) as they wished. Such views were erroneous because the Tribunal has failed to interpret the Ordinance purposively, and has ignored its purpose and context aforesaid.

17.Messrs Ho & Chow further submit that the Tribunal erred in law in holding (at paragraph 39) that section 3(1)(b) of the Ordinance “constitutes only a description of the order … to be applied for and does not impose any other requirement” before ordering the sale; and that section 4(2) “places no attention to other lots or the building thereon which is not the subject of the Application” since the Tribunal only needs to look at: (a) the “age” and (b) the “state of repair” of the existing development on the lot (ie part of building on No 73), and not needing to consider neighbouring lot(s) (ie remaining part of building on No 75) in deciding whether redevelopment is justified.

(i) In so holding, the Tribunal has failed to appreciate that the building on No 73 is an inseparable part of the building on No 75. By ignoring the legislative purpose and context, the Tribunal has failed to appreciate that the Ordinance was not intended to apply to a situation where only a part/portion of a single building straddling more than one lot would be redeveloped and replaced.

(ii) In this regard, the Tribunal’s reliance on the definition of “building” in section 2 is misplaced.

18.Messrs Ho & Chow further submit the Tribunal was wrong in law in holding (at paragraphs 42 and 43) that “the feasibility of redevelopment [(ie “structural safety” concerns)] … has been excluded by the legislature as an irrelevant consideration by the … proviso under section 4(2)(a)”, and thus the Tribunal “is expressly excluded from taking into consideration whether or not the majority owner is ready or capable of undertaking the redevelopment”; and that the question of structural safety of the remaining building on No 75 should be “a matter left to … the Building Authority” to be dealt with after the Application stage.

(i) In so holding, the Tribunal failed to appreciate that the words in brackets in section 4(2)(a) were introduced to cater for the situation where a third party, instead of the majority owner, undertakes redevelopment, or that the majority owner lacks the capability to redevelop. Further, the Tribunal ignored that, in considering whether redevelopment (as defined in section 2) is justified under section 4(2)(a), ie whether replacing half of the building on Nos 73 and 75, thereby leaving a dissected structure on No 75 is justified, the feasibility of this redevelopment (ie structural safety concerns) must be considered in assessing its justification.

(ii) For the same reason above, the Tribunal erred in holding at paragraph 44 that adjudication of the Application only concerns “the compulsory sale of all the undivided shares of the subject lot” and not any “structural safety” question as the order for sale itself will not affect “structural safety” or “dissect” the building on Nos 73 and 75.

(iii) In this regard, the Tribunal also failed to construe section 3(1)(b) properly, where the purpose of the compulsory sale must be for the redevelopment of the lot, meaning that the purpose of ordering the sale is for the existing building on the lot to be demolished and replaced, and hence structural safety issues must be engaged and require proper consideration.

(iv) In this connection, the Tribunal has wrongly regarded structural safety issues as irrelevant by drawing analogy with matters such as environmental, traffic, or drainage issues. In so doing, the Tribunal has failed to appreciate the obvious relevance of the structural safety issues specifically arising in connection with the demolition and replacement of the existing building on the lot.

19.From the paragraph above, Messrs Ho & Chow submit that the Tribunal also erred at paragraph 45 that the question of adequacy of remedial measures to address the structural stability and safety of the existing structure on No 75 was not relevant at the Application stage.

20.Similarly, Messrs Ho & Chow submit, the Tribunal also erred in holding that the provision for re-entry by the Government under section 9 in the event that the demolition plan of No 73 would not be approved by the Building Authority and the resulting breach of the completion condition specified in Schedule 3 (ie 6-year requirement to complete the redevelopment and made fit for occupation) would be relevant and/or sufficient safeguard to enable the Tribunal to grant the order for compulsory sale now.

21.In so holding, Messrs Ho & Chow submit, the Tribunal ignored the fact that R4’s right to private ownership under Article 6 of the Basic Law would be overridden immediately after the compulsory sale order even if, in the end, redevelopment of No 73 were disapproved by the Building Authority and/or the redevelopment could not proceed and/or the Government were to exercise the right of re-entry of the subject property(ies).

22.Messrs Ho & Chow also contend that the Tribunal has erred in law (at paragraphs 46 to 49) in disregarding the legislative materials produced to inform the Tribunal of the legislative history and purpose of the relevant provisions, in particular, the evolvement of sections 3(1)(b) and 3(2) in question. The Tribunal has, in particular, wrongly misunderstood the purpose of production of the legislative materials tendered.

23.Messrs Ho & Chow argue that in adopting the interpretation of sections 3(1) and 3(2) as set out at paragraphs 37 to 49, the Tribunal erroneously failed to give proper or adequate regard to the legislative intent and purpose of the Ordinance (ie the statutory regime of the Ordinance gave the majority owner(s) a statutory means to override a minority owner’s right of private ownership protected under Article 6 of the Basic law for the purposes of redevelopment), and that the Ordinance was never intended to apply to a redevelopment that would involve part only of a building, or a redevelopment that would involve the dissection of an existing building, ie a replacement of only a part or portion of an existing building is not within the scope or intent of the Ordinance.

24.Messrs Ho & Chow submit that for the foregoing reasons, the Tribunal has erred in law in holding (at paragraph 27) that at the time of the filing of the Application, the applicants owned not less than the threshold percentage of the undivided shares of the relevant lots such that the ownership percentage requirements specified in the Ordinance were met and the applicants were entitled to make the application under section 3(1) for No 73 (ie the 3^rd Lot).

25.Messrs Ho & Chow submit that in construing section 3 and section 4 of the Ordinance, the Tribunal should apply purposive construction in its proper context to find its objective intention rather than looking at what may be the natural and ordinary meaning of words, citing for instance, Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196 at paragraph 29 as follows:

“(1) In construing statutory provisions, the court does not merely look at the relevant words. It construes the relevant words having regard to their context and purpose.

(2) The context of the relevant statutory provision should be taken in its widest sense and will of course include the other provisions of the statute. It may also be relevant in any given case to look at the history of the relevant provisions.

(3) Ascertaining the purpose of the statutory provision is obviously relevant, not only to help provide the relevant context, but to give meaning to the words used. In this latter respect, it is to be observed that often the meaning of words by themselves will not be clear unless regard is paid to context and purpose. Words have to be construed but they must not be construed in a vacuum.

(4) In ascertaining the purpose of a statutory provision, the court adopts a flexible and open-minded approach.  The purpose may be clear from the provision itself or it may be necessary to look at the Explanatory Memorandum to the bill introducing the provision or a ministerial or official statement may be utilised for this purpose.”

26.Messrs Ho & Chow argue that, in construing section 3 and section 4 of the Ordinance, the Tribunal is mandated to have regard to the statutory requirement that any proposed sale of the undivided shares in a lot must be “for the purposes of redevelopment” of the lot.

Relevant Provisions under the Ordinance

27.In gist, R4 is challenging the Tribunal’s interpretation of the following provisions under the Ordinance:

“3. Application to Tribunal for compulsory sale of lot

(1) Subject to subsection (5), the person or persons who owns or own, otherwise than as a mortgagee, not less than 90% of the undivided shares in a lot may make an application …

(2) Without prejudice to the operation of subsection (5), an application under subsection (1) may cover—

(a) 2 or more lots where the majority owner owns not less than the percentage specified in subsection (1) of the undivided shares in each lot; or

(b) 2 or more lots—

(i) on which one building is connected to another building by a staircase intended for common use by the occupiers of the buildings; and

(ii) where the average of—

(A) the percentage of the undivided shares owned by the majority owner in the lot or lots on which one of the buildings stands; and

(B) the percentage of the undivided shares owned by the majority owner in the lot or lots on which the other of the buildings stands,

is not less than the percentage specified in subsection (1).

…

4. Determination of application

…

(2) The Tribunal shall not make an order for sale unless, after hearing the objections, if any, of the minority owners of the lot the subject of the application under section 3(1) concerned, the Tribunal is satisfied that—

(a) the redevelopment of the lot is justified (and whether or not the majority owner proposes to or is capable of undertaking the redevelopment)—

(i) due to the age or state of repair of the existing development on the lot; or

(ii) on 1 or more grounds, if any, specified in regulations made under section 12; and

(b) the majority owner has taken reasonable steps to acquire all the undivided shares in the lot (including, in the case of a minority owner whose whereabouts are known, negotiating for the purchase of such of those shares as are owned by that minority owner on terms that are fair and reasonable).” (emphasis added)

Tribunal’s view

28.With respect to Messrs Ho & Chow, we agree with Messrs Li & But and Mr Chan that the intended grounds of appeal are simply repetitions of R4’s submission already put forward at trial.  Indeed, in elaboration of the various intended grounds of appeal, Messrs Ho & Chow refer to the particular paragraphs that the Tribunal has sufficiently dealt with in the Main Judgment.

29.Mr Chan rightly submits that the entire thrust of Ground 1 is that the Application, insofar as it concerns the 3^rd Lot, can only be brought under section 3(2)(b). At its core, it is premised on and flows from R4’s refusal to accept the plain and ordinary meaning of the word “or” in section 3(2)(a) and the phrase “(and whether or not the majority owner proposes to or is capable of undertaking the redevelopment)” in section 4(2)(a).

30.Section 3(2)(a) states an application under subsection (1) may cover—

“(a) 2 or more lots where the majority owner owns not less than the percentage specified in subsection (1) of the undivided shares in each lot.”

The latter must mean the percentage of the undivided shares in “each lot” which is the subject of the Application rather than those of the neighbouring lot(s).

31.At paragraphs 34 to 35 of the Main Judgment, the Tribunal has reminded itself of the analysis of the Ordinance and the objectives of the Ordinance conducted by the Court of Final Appeal in Capital Well Ltd v Bond Star Development Ltd [2005] 4 HKLRD 363, (2005) 8 HKCFAR 578 as well as by the Court of Appeal in Good Faith Properties Ltd & Others v Cibean Development Co Ltd [2014] 5 HKLRD 534. 

32.It is also noteworthy that the finding of the Tribunal at paragraph 52 of the Main Judgment is unchallenged by R4.  In other words, all along Messrs Ho & Chow has disregarded that we have agreed with Ir Chan that the Subject Lots including No 73 can be redeveloped with suitable strengthening and stabilization works, bearing in mind that “redevelopment” as defined in the Ordinance “means the replacement of a building on (or formerly on) the lot” whereas “building” as defined in the Ordinance “means a building within the meaning of the Buildings Ordinance (Cap. 123)” which “includes the whole, or any part, of any domestic or public building or building which is constructed …”  Such finding of facts on the disputed expert evidence, unlike a question of law, is usually not appealable pursuant to section 11(2) of LTO.

33.In any event, there is nothing in the statutory regime which mandates the Tribunal to assume the role of a structural expert and/or the Building Authority in supervising the structural or safety affairs of the redevelopment scheme when making an order for sale.

34.We also accept Mr Chan’s submission that the legislative materials cited by R4 at paragraph 30 of the Supplemental Skeleton dated 13 September 2019 do not assist her:

“11. The Bills Committee has accepted suggestions from the deputations that whether or not the majority owners are capable of undertaking redevelopment should not be a factor considered by the Lands Tribunal as persons other than the majority owners may purchase the lot, and the Lands Tribunal may specify, on application of the purchaser of the lot, a period longer than six years as currently proposed in the Bill for redevelopment of the lot. The Administration will amend the Bill to achieve this effect (clause 4 and Schedule 3). Members note that after the implementation of the Bill, SPEL will consider in the light of experience whether to specify any other grounds, other than the age or state of a building, on which redevelopment of a lot is justified.”

35.In our view, the Ordinance is clearly not intended to impose and the Tribunal cannot impose on “the majority owners” or the applicants (some of them may simply have no funding or valuable asset except the undivided shares of the lot) the burden to redevelop the lot in future, but only impose such burden on the purchaser who succeeds in the auction.

36.The Ordinance also provides that after auction, the minority owners would obtain reasonable compensation in the form of a share of the redevelopment value based on the market value percentage so that Article 6 of the Basic Law is not breached.

37.Grounds 1 to 5 have no merit.

38.The Tribunal considers that it is simply audacious for R4 to advance Ground 6. Mr Mok rightly submits that it is an appeal against the Tribunal’s exercise of discretion to award costs to R4 with certificate for one counsel (but not two). Ground 6 has made no attempt to particularize in any way how the Tribunal’s exercise of discretion is wrongful.  As time and effort have been spent by R4 to argue the structural safety concern at the trial (as now repeated in the intended grounds of appeal) and R4 has failed in her contention, R4 was generously awarded costs for the trial by the Tribunal under the compensation approach.

39.We find that none of the R4’s intended grounds of appeal is arguable let alone having any “reasonable prospect of success”.  Nor there is some other reason in the interests of justice why the appeal should be heard. No leave to appeal ought to be granted.

R4’s Stay and Interim Stay Applications

40.While we have ruled that R4’s intended appeal is not arguable, it falls short of the “minimum” requirement for grant of a stay. See paragraph 9(6) of Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 per Geoffrey Ma J (as he then was).

41.In addition, the auction following a compulsory sale order must be held as soon as possible (ie the lots have to be sold within 3 months under section 5(4)(a) of the Ordinance) to best reflect the valuation made by the Tribunal at trial (ie the Reserve Price).  The Auction is due to take place on 30 July 2020.

42.As submitted by Messrs Li & But and Mr Chan, any postponement of the Auction at a later time will expose the parties including R4 to huge risks and uncertainties in current volatile market conditions. The uncertainty and probability of changes in potential bidders’ incentives and interest in acquiring the Subject Lots increase with the passing of time. Under such socio-economic climate, if the Auction is postponed because of the stay (or interim stay), the parties may not be able to obtain the price they are legitimately entitled to receive from the Auction.

43.Furthermore, even assuming that the Subject Lots can be sold later after the stay has ended or the intended appeal has been disposed of, R1 to R3 will still suffer from a whole list of further losses, such as extra interest expenses from the existing mortgage, management fees, Government rent, rates, repair/maintenance costs and time/effort for rental management by holding their properties for an indefinite period of time.

44.More importantly, a stay, if granted, will cause loss to the other parties:

(i) It will keep the other respondents from receiving their share of the net auction proceeds.

(ii) It will keep the applicants from their share of the net auction proceeds if a non-party should succeed in the Auction.

(iii) If the applicants should succeed in the Auction, the stay will delay the redevelopment project and to calculate that loss is not straight forward.

45.On the other hand, save from the simple assertion that the Auction would “terminate” R4’s proprietary rights in No 73, R4 could not spell out any actual loss or prejudice to be suffered by her. The following passages from R4’s witness statement are telling:[1]

“2. 本人, 陳偉儀， 退休， 現居於香港天后廟道95-97號康德大廈x樓x室…

…

4. … 本人是本強拍申請相關物業，　即九龍加連威老道73號三樓（“該物業”）的業主。 … 該物業是用作出租之用…。

…

7． 在取得專業意見及和本人女兒商量後， 本人認為申請人提出的收購價格不是一個合理及公平的價格。 以本人理解， 該物業位於尖沙咀核心地段， 並可以改建成商場、辦工室及酒店用途。 本人希望獲得一個合理及公平的收購價格。”

46.In that light, R4 is merely an investor in one of the units subject to the Auction; there is little ground (if any) for R4 to legitimately complain of and/or object to the Auction.  If a stay (or interim stay) is granted, it will be blatantly unfair and inconsistent with the objectives of the Ordinance as stated by the Court of Final Appeal in Capital Well, supra, that the objective of the Ordinance included:

“21. … preventing the indefinite obstruction of a redevelopment by any minority owners who may seek to extract a wholly unreasonable price or ‘ransom’ for permitting the redevelopment to proceed.”

47.We disagree with Messrs Ho & Chow that R4’s unit is used as an investment property is neither here nor there.  In Director of Lands v Yin Shuen Enterprises Limited & Another [2003] 2 HKLRD 399; (2003) 6 HKCFAR 1, the Court of Final Appeal emphasized at para 57 that where private property right has to be protected, “compensation is only required to be paid for ‘the property concerned’, that is to say for the interest acquired”.  As submitted by Messrs Li & But, if R4 successfully obtains a stay (or interim stay), it means that every minority owner can defeat the outcome of the Application by lodging an appeal on flimsy grounds.  On the other hand, R4 will not be liable to compensate the applicants and the other respondents for such loss unless R4 should undertake to indemnify the applicants and the other respondents for such loss.[2] In this regard, R4 has not offered to provide any undertaking for loss, not to mention a fortified one.

48.For the reasons set out above, the balance clearly cannot and does not lie in favour of R4 and the granting of a stay (or interim stay) of execution of the Auction.  R4’s application for stay (or interim stay) be refused.

Conclusion

49.We are of the view that this application for leave to appeal shall be dismissed as it has no reasonable prospect of success nor any other reason in the interests of justice why the appeal should be heard.  Both of the Appeal Summons and Interim Stay Summons are dismissed.

50.As costs shall follow event, we order that the 4^th respondent do pay the applicants, the 1^st respondent, the 2^nd respondent and 3^rd respondent the costs of these applications including all costs reserved, if any, on a party to party basis with certificate for one counsel at the High Court scale.  As all parties have lodged and served their respective statements of costs, we summarily assess the costs of the applicants, the 1^st respondent, the 2^nd respondent and 3^rd respondent in the respective sums of $250,000, $250,000, $90,000 and $90,000 payable forthwith.

Mr Mok Yeuk Chi, instructed by So, Lung & Associates, for the 1^st to 17^th applicants

Mr C Y Li SC leading Mr Adrian But, instructed by Vincent T K Cheung, Yap & Co, for the 1^st respondent

Mr Albert Chan, instructed by Tang & So and Woo, Kwan, Lee & Lo, for the 2^nd and 3^rd respondents

Mr Ambrose Ho SC leading Ms Anna Chow, instructed by Hoosenally & Neo, for the 4^th respondent