杜旭槐 訴 地政總署署長

LDGA000349/2003

LDGA349 OF 2003

香港特別行政區

土地審裁處

地租上訴申請編號2003年第349號

主審法官： 容耀榮法官

審訊日期： 2003年10月27日

判案書日期：2003年12月19日

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Judgment

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1.In 1977 the Appellant together with two other persons, presumably fellow clansmen, succeeded to certain lots of land of his grandfather. Thereupon the three persons became tenants-in-common of these lots of land with 1/4 share to the Appellant. In August 1978, the inherited property was divided among the three. One of the three became the sole owner of certain lots. As to the remainder of the property the Appellant and the other became tenants-in-common each with half share.

2.In August 1984, the Appellant and the other joint owner divided the lots into two parts so that each became the sole owner of one of the two parts. This division of property was achieved by a deed of partition and exchange.

3.The Government contended the Appellant acquired his present interest, namely the whole interest in the land 1984 when the same was transferred to him by the said deed of partition and exchange. Section 4(3) of the Government Rent (Assessment and Collection) provides that:

" An exemption from liability to pay Government rent under subsection (1) and (2) applies to an interest that is a section of or an undivided share in the land leased irrespective of any other section or of any other undivided share in the land leased not being exempted from liability to pay Government rent."

The Government's contention is that the word "an interest" in section 4(3) means the whole interest held by the Appellant and that the Appellant had this interest transferred to him by the deed of partition and exchange in August 1984. This transfer did not qualify the Appellant for exemption under section 4 and therefore it was argued that the Appellant was not exempted from liability to pay the Government rent since the transfer.

4.The Appellant's contention was that half of the interest in the land he had already held before the partition exercise in August 1984 should be exempt from government rent. The half interest is but just one section of the land. "Section" doses not necessarily mean physical division of the land. A definition of the word 'section' in Shorter Oxford Dictionary and the definition of the word in the Ordinance were cited in support of the argument. It is not disputed by him that he should be liable to the other half of interest conveyed to him in the partition exercise.

5.Exemption of indigenous villagers from paying Government rent in respect of certain leaseholds is a right or privilege granted to them. The exemption depends on the interest an indigenous villager holds and it should be noted that such interest includes equitable interest. It is envisaged that some interests in the same piece of land leased may be exempted while others not. Generally Section 4(5) provides that in such cases no exemption would be given to those interests which would have otherwise qualified for exemption. The general rule in section 4(5) is subject to the exceptions provided in sections 4(3) and (4).

6.One way to look at the transaction of the partition exercise is what the Government is propounding. However this is simplistic way. One cannot ignore the true nature of the transaction. The Appellant had already had half share of the interest. The conveyance to him was no more than the other half of interest. He was continuing to hold the original half of the interest. The present whole interest merely results from the merging of the old and new interest into one. This cannot affect the right to exemption he had acquired in respect of his old interest before partition.

7.For these reasons I rule that the Appellant is entitled to exemption for Government rent in respect of half of his interest in the land. There be a nisi order for costs in favour of the Appellant on High Court Scale with certificate for counsel to be taxed if not agreed.

申請人：由何伯華律師行轉聘Ching Wan Fung大律師代表

答辯人：由政府律師Jacky Yeung代表