Lai Chi Luen v. Director of Lands

LDGA000122/1998

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDGA122 of 1998

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Coram : Deputy Judge Lee

Date of Hearing : 3 May 1999

Date of Judgment : 24 May 1999

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JUDGMENT

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1. The appeal is against the decision of the Director of Lands that Lot No.2021 in D.D.244 (the Lot) did not qualify for rent concession under Section 4 of the Government Rent (Assessment and Collection) Ordinance. Cap. 515.

2. It is not in dispute that on 12th December, 1984, Lot 2021 in Demarcation District 244 was granted to Lai Chiu Hi (or Hei) by way of a small house grant registered in Si Kung New Territories Land Registry as New Grant No.6825. It was not in dispute that Lai Chiu Hi was an indigenous villager, nor that the Appellant is his third son.

3. On 31st March, 1989, an assignment under Memorial No. 141677 was registered in the Sai Kung New Territories Land Registry. By that assignment, the Appellant became a joint tenant of the Lot together with Lai Chiu Hi. Lai Chiu Hi passed away on 9th September 1994. These are not in dispute, and are found as facts.

4. By a letter dated 10th September, 1998, the Director of Lands notified the Appellant that the Lot was not qualified for rent concession. The Appellant appealed against this decision.

5. The Appellant alleged that he was appointed to become a joint tenant of the Lot for ease of management and administration only, as his father's health deteriorated. This was said to be done with the consent of his father and four brothers. The Appellant considered that he did not have exclusive rights to the property, and that it was held on trust for all his brothers and himself. There is no evidence of any deed of trust, or of the terms of the trust in question. It is not accepted that such a trust existed.

6. Section 4 (1) of the Government Rent (Assessment and Collection) Ordinance Cap.515 states :-

"Subject to other provisions of this section, an exemption from liability to pay Government rent applies to an interest held under-

(b) a small house grant made to an indigenous villager after 30 June 1984;

and-

(i) which the indigenous villager continues to hold: or

(ii) which-

(A) has not since its ceasing to be held by the indigenous villager been conveyed to any person who is not a lawful successor in the male line of the indigenous villager; and

(B) continues to be held by a person who is a lawful successor in the male line of the indigenous villager."

7. In s.2 of Cap.515, a "lawful successor" is defined as "a person, male or female, who on the death of an indigenous villager is or becomes entitled to an interest in the estate of the deceased by lawful succession and which person is a descendant through the male line of the deceased"

8. "Lawful succession " means "succession whether testate or intestate or in accordance with Chinese customary law operating in the New Territories and includes succession on a succession"

9. It is clear from the evidence that the Appellant acquired an interest in the Lot through an assignment, as a joint tenant, during the lifetime of his father. As such, he was not a "lawful successor", as he did not, on the death of his father became entitled to the interest in the estate by lawful succession. His interest was derived as a joint tenant, from the joint tenancy, and not as a "lawful successor" on his father's death.

10. The appeal is dismissed.

11. Costs to the Respondent to be taxed if not agreed.

Representation:

Miss Gloria Chan of Messrs. Ho, Lo & Yeung for the Appellant.

Mr. Gerald Wu Government Counsel for the Secretary for Justice for the Respondent.