Wong Wa Ing v. Hong Kong Housing Authority

HCMP001927B/1996

HCMP1927/96

IN THE HIGH COURT OF

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1927 OF 1996

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Coram : Hon Sears, J. in Court

Date of hearing : 21 January 1999

Date of judgment : 21 January 1999

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J U D G M E N T

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1. Hopefully, before I leave the bench, this is the last Rennie's Mill case I will be doing. It is slightly unusual and it has been well argued on both sides and the solicitors have prepared the papers, I thought, extremely well. It has allowed me to look at them before coming into court.

2. The basis of compensation was a right to occupy a cottage for residential purposes and I have already ruled that a person's right of compensation is only for one cottage, in other words, it is a personal right. Even though they own two cottages, if they let one out, they would still only get compensation for one. So far so good.

3. The position here is that the family had Cottage No.43 for some years. They then acquired No.44 which is next door and which had a separate permit. Historically, they were separate cottages, but on the evidence from the applicant, which I am prepared to accept, they turned the two cottages into one. They had a big family and the parents apparently rebuilt the structure to connect it with Cottage 44. In my judgment, on a fair examination of the plans, the two cottages in reality became one. The method by which this was done was to ensure that the toilet and kitchen facilities came in No.44 and not in No.43 so that Cottage 43, a two-storey building, could have a larger space for living and a larger space for bedrooms, and one had to go through it into Cottage 44. That would be perfectly normal.

4. I suppose I could sum up this case by saying "when is a house not a house" - it is not a house when it is a factory or had been used for factory purposes, which this clearly was. It was originally used for metal works and then for renovation and painting which I can see from the paint pots and all the paraphernalia that goes with this sort of business, and the applicant's son appears to have been the person operating it. It was being operated. I am sure, for the benefit of the whole family. He had what he says a small bedroom. I have substantial doubt whether it was a bedroom in that sense. It may have contained at some time a bed, it seems to me, more probably than not, it was substantially used for business purposes even though the fact that there was a bed in there. It seems to me that the whole area was really business.

5. However, as a matter of fairness, I think that I would be prepared to give some allowance of a small portion of No.44. I think Mr Ng is right when he says substantially No.44 was used for business purposes and should therefore be excluded from compensation. But as a part was used for the toilets and bathroom - the measurements produced by the applicant appears to indicate a 7.8 sq.m., I have looked at other plans when it actually might only be 6.6. sq.m., but I am prepared to assume in the applicant's favour that it was 7.8 sq.m.

6. He has received business compensation of a base figure of $664,000 odd. What I am prepared to do is to rule that he would be entitled to compensation based on the area of No.43 plus an additional 7.8 sq.m. However, he must give up his right to the compensation he has received of 7.8 sq.m. The figures I have been given would indicate that that is $27,144. The base figure that he should receive can be calculated by the parties in the light of my judgment.

Representation:

Mr Anthony K.K. Chan, inst'd. by M/s Liu, Chan & Lam, for the 23rd Applicant

Mr Peter Ng, inst'd by M/s Simmons & Simmons, for the Respondent