Read the full judgment text of CACV 000081/2003 on BabelCite. This Court of Appeal judgment was delivered on 6 April 2004 before Rogers VP, Le Pichon JA, Yuen JA.
Civil law – land resumption compensation – West Rail project – periodic tenancies – loss of stock and loss of profits – expert evidence – admissibility of expert employed by party's consultant – private investigation by expert witness – section 11(2) Lands Tribunal Ordinance – scope of appeal from Lands Tribunal The appellants were periodic tenants of land in Pat Heung, Yuen Long, resumed by the government on 16 January 1999 for the construction of West Rail. The 2nd appellant, Mr Chan Chuen, had previously received $5 million compensation for Barbados lily bulbs grown on land resumed in Tung Chung in 1998. In 1996-1997 the appellants entered oral joint venture agreements to grow Barbados lily bulbs on the resumed land. The 2nd appellant also entered similar joint ventures with at least 14 other farmers in the same area, generating 22 compensation claims. The Tribunal awarded $268,434 in compensation (comprising $27,417 for loss of leasehold interest, $16,532 for loss of profits from the first harvest, and $224,485 for loss of stock), far less than the nearly $19 million sought. First issue: whether Mr Cheng's expert evidence should have been excluded because he was employed by Chesterton Petty, the respondent's consultants, and had engaged in covert private investigation of key witness Mr Wong by recording a conversation without consent – held: no absolute bar to admissibility; the Tribunal properly admitted the evidence with appropriate caution and disregarded any portions tainted by the investigation – the Court of Appeal followed Regina (Factortame Ltd and others) v Secretary of State for Transport (No 8) in rejecting the apparent bias test articulated in Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg – employment by a party or its consultants does not automatically disqualify an expert witness, and the court in each case decides whether to permit the evidence and what weight to give it (Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd). Second issue: whether the Tribunal erred in rejecting third harvest compensation based on the periodic nature of the tenancies – held: no error – under Weco Textiles Manufacturers Ltd v Secretary for Transport, a periodic tenant may claim compensation based on a reasonable prospect of tenancy continuation at the date of resumption, but the appellants were bound by their pleaded case and the agreed residual terms of 533 and 502 days respectively, which were insufficient to encompass a third harvest. Third issue: whether the Tribunal erred in its calculation of loss of stock by not separately compensating for small and medium-sized bulbs and by applying an 8% discount for accelerated payment – held: no error warranting intervention – the $3.00 per bulb rate with 50% wholesale discount and 8% accelerated payment discount yielded a figure of $1.36 per bulb, which exceeded the comparison evidence from Chan Ho Farm purchases ($0.51-$1.18 per bulb) and fairly compensated for all bulb sizes – a market survey by the Agriculture, Fisheries and Conservation Department showing prices from $1.25 to $4.25 per bulb provided a cross-check. Fourth issue: whether the Tribunal erred in concluding that the bulbs were of the Chinese variety rather than the more expensive Dutch hybrid – held: this was a factual determination, not a point of law, and the conclusion was correct on the evidence. Appeal dismissed. Costs nisi in favour of the respondent.
Legal issues: Admissibility of expert evidence from consultant's employee who engaged in private investigation · Compensation for third harvest under periodic tenancies · Assessment of loss of stock including small bulbs and application of discounts · Classification of bulbs as Chinese variety or Dutch hybrid
Outcome: Appeal dismissed
Cited by 12 cases