劉明 訴 地政總署署長

LDGA000432/2003

LDGA 432 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432號

主審法官：容耀榮法官

審訊日期：2004年1月15日

判案書日期：2004年3月19日

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Judgment

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1.The Director of Land has refused the application by the Appellant for exemption from Government rent in respect of the subject-land he is holding in New Kowloon. The Appellant is now appealing against the Director's decision.

2.The following facts are not disputed. The Appellant is an indigenous villager. In 1975, in exchange of an old schedule lot and on paying a premium the subject-land was granted to the Appellant as trustee for the Lau Tak Kun Cho. The Appellant was the sole trustee and beneficiary of the Cho at all material times. In 1983 the land was assigned to the Appellant.

3.Mr. Che, counsel for the Appellant in his final submission relied on only two grounds for this appeal. Other grounds in the Notice of Appeal he did not argue. It is a wise decision as I find there is no evidence on facts to support the other grounds.

4.The first ground is that the Appellant is entitled to be exempted from paying Government rent by virtue of section 4 (1)(a) of the Government Rent (Assessment and collection) Ordinance AP. 515 (' the Ordinance') which in effect provides that :

"Subject to other provisions of this section, an exemption from liability to pay Government rent applies to an interest held under an applicable lease of rural holding that an indigenous villager held on 30 June 1984, and, which (interest) the indigenous villager continues to hold."

5.Mr. Che based his second ground for exemption of Government rent on section 4 (c)(i) of the Ordinance which in effect provides that :

" Subject to other provisions of this section, an exemption from liability to pay Government rent applies to an interest held under---a resite house grant made to an indigenous villager to replace an applicable lease of a rural holding that the indigenous villager held on 30 June 1984 and which (interest) the indigenous villager continues to hold."

First Ground/s.4(1)(a)

6.The Appellant's status as an indigenous villager not being in dispute, to succeed he only need to establish facts to satisfy the following condition:

(1) the subject-land is of a lease of rural holding;

(2) he held the interest under the lease on 30 June 1984; and;

(3) he continues to hold the interest.

7.The meaning of 'rural holding' is given by section 2 of the Ordinance which provides:

"rural holding means an old schedule lot, village lot, small house or similar rural holding, and,

"similar rural holding means land granted to an indigenous villager in place of other land previously held by him."

The Appellant contended that the land was granted to him in place of the land he held and therefore falls within the meaning of 'similar rural holding' and as such, 'rural holding' as well. On the other hand the Respondent argued that the land surrendered and/or the subject-land was not granted to the Appellant but to a Cho and not to the Appellant and therefore the land does not qualify for 'similar rural holding'.

8.If one only looks at the title documents without taking further evidence, the Respondent would probably be right in refusing the Appellant's application for exemption. The evidence which is not in dispute in the case sheds different light on this matter. That the Appellant was the sole trustee for the Cho and its sole beneficiary as well is an important and crucial factor. His legal and equitable interest had merged before he surrendered the old schedule lot land and equally so when the subject-land was granted to the Cho. The Appellant is the owner of the subject-land at law and in equity. I hold that in these particular circumstances the subject-land was granted to the in place of land previously held by him.

9.For reason of the same peculiar facts of the case, the interest of the Appellant, both legal and equitable, under the lease has not changed and remained the same despite the assignment onto himself in 1983 and it is not disputed that he continued to hold such interest to date, nothing more and nothing less.

10.Having met the three conditions mentioned in paragraph 6 , the Appellant is entitled to exemption applied for and I so rule.

11.In view of my ruling I did not need to deal with the second ground of appeal. I allow the appeal and award costs to the Appellant on High Court Scale with certificate for counsel to be taxed if not agreed.

申請人：由黃許律師行Allen Che律師代表

答辯人：由律政司Brian Leu政府律師代表