Moon Yik Co Ltd and Another v. Attorney General

HCMP000314/1979

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Coram: Zimmern, J.

Date of Judgment: 26 October 1979

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JUDGMENT

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1. The Plaintiffs purchased from the Government at an auction held on 13th September 1978 inland Lot No. 8392 for a term of 75 years with an option for a further term of 75 years at a premium of over $400,000,000.

2. There is a dispute between the Plaintiffs and the Government as to the dimensions of the building which the Plaintiffs may erect on the site. Simply, and mercifully I do not have to go into details other than to say the Plaintiffs say, under the special conditions of the agreement they are entitled to erect a 38 storey building and the Government say nay only 35. The Plaintiffs by originating summons naming the Attorney General as Defendant have now applied to the Court to settle this dispute. Both parties have filed affidavits but the question is one of construction of certain of the special conditions of the agreement and ordinance. In this case no extrinsic evidence is required in aid and the arguments contained in the evidence are unnecessary.

3. I set out below the special conditions (S/C) which are primarily in issue:-

4. As can be seen S/C (11)(a) requires the Plaintiffs to erect over the areas shown coloured pink cross-hatched black and purple on the plan at a level of 10.82 metres above H.K.P.D. a podium, in simple words a raised platform.

5. S/C 12 prohibits building over the area shown coloured pink cross-hatched black save at a height of not less than 3.66 metres from the deck level of the podium.

6. S/C 13(a) prohibits building or structure other than the podium to be erected over at or above ground level within the area shown coloured purple on the plan save structures as may be approved in writing by the Director of Public Works. S/C 13(b) provides for a right of way for the public freely and without payment on foot to pass and repass over and along the podium and the passage area shown coloured purple on the plan.

7. I now describe the areas coloured (a) purple and (b) pink cross-hatched black. The site sold is rectangular in shape and bounded on two opposite sides by boundaries of 130.29 m each and the other two 46.49 m. It is common ground between the parties that each boundary abuts on to a street. The purple area shown on the plan is an area extending 6 m inwards from the four boundaries and the pink cross-hatched black another 4.5 m from the inner boundaries of the purple area. The intention is therefore clear that the passage way (the purple area) at ground level will be covered overhead all over by the podium at a height of 10.82 m from H.K.P.D. which I am told is over 6 m from ground level and the part of the podium over the pink cross-hatched black area will be covered, if at all, by the building at a minimum height of 3.66 m.

8. On the above the Plaintiffs say they are entitled to the compensation or bonus provided by Regulation 22(1) of the Building (Planning) Regulations made under the Buildings Ordinance. It reads:

"Where, between ground level and a height of not less than 5 m or, where the Building Authority is satisfied that there will be no obstruction to vehicular traffic using the street, 3.3 m above ground level, a building on a class A, B or C site is set back from the boundary of the lot on which it is erected, being a boundary that abuts on a street, and with the consent of the Government, the part of the lot that is thereby not built upon is dedicated to the public for the purpose of passage"

then follow the formulae for the calculation of the compensation or bonus which again mercifully I do not have to entertain.

9. The Plaintiffs say the regulation applies for:-

10. The Government say Regulation 22 does not apply for:

11. Mr. Widdicombe for the Plaintiffs joins issue with Mr. Graham for the Government and says if supports have that effect which they do not then the Plaintiffs can and will use cantilever for the podium and do away with the columns. Further the Plaintiffs' right to build the supports are subject to the approval of the design of the podium and its consent by the Director of Public Works. I do not think Mr. Graham is right on this point. Under S/C 11 the Plaintiffs are bound to build a podium over the area I have set out "of such design and standards as the Director of Public Works shall approve including the provision and construction of any support .... which the said Director in his sole discretion may require". This imposes an obligation on the Plaintiffs before commencement of works not only to satisfy the Building Authority of their compliance with the Buildings Ordinance but must first satisfy the Director of Public Works, inter alia, of the design of and the supports for the podium. The intended use for the purple area is clear; as a footpath for the public. If the Director were to approve of supports for the podium on the footpath it seems to me Mr. Widdicombe is right when he says such approval shows the Director's intention to secure the substance of a set back to create the footpath and supports or columns do not affect that intention, and he relies on two principles. First in the words of Hogan C.J. in The Club Lusitano v. Director of Public Works⁽¹⁾ wherein he said:

"Authorities for departing from a strict literal construction where the language can possibly be construed more efficaciously are not difficult to find. Indeed, counsel had directed attention to some of them. Craies (5th Edition) at p.80 quotes Lord Selborne in Caledonian Railway v. North British Railway as saying:-

Second he says the Plaintiffs as grantees for valuable consideration even as against the Crown is entitled to any doubt resolved in their favour should any arise in the construction of the grant. In my view the intention of Regulation 22 is to compensate an owner of land about to commence building works who sets back part of his land abutting on a street and undertakes to dedicate that part to the public for the purpose of passage. If to implement that purpose that part of the building over the intended way requires columns to be built onto the way for support and which columns do not affect the purpose which the way is intended to serve and are approved by the authorities then the mere literal construction of the Regulation ought not to prevail as it will be against the intention of the Legislature to compensate such an owner and so I hold.

12. I now turn to the second point raised by Mr. Graham. He says that the language used in S/C 13 is not that of dedication of a highway but merely that of a contract to grant a licence to the public for a term of years. There are no rights which the public can enforce. He relies on the chapter headed "Acts or conduct amounting to grant of mere licence or occupation way" in Pratt and Mackenzie's Law of Highways (21st Ed.) at p.31. He also relies on the side note to S/C 13 reading "Right of Way" as being more consistent with a licence than a dedication: On the other hand Mr. Widdicombe says first there is the contract then the act of dedication itself and it is not any the less an act of dedication because done in compliance with contract. Though the Plaintiffs as lessees are incapable of dedication without the consent of the holder in fee (and he reserves the right to argue it otherwise elsewhere if necessary) it is precisely why the Legislature has included the words "With the consent of the Government" in Regulation 22 as virtually there are no owners in fee in Hong Kong. But where the Government by contract requires the Plaintiffs as purchasers of a lease to build a pathway for the free use of the public then consent is presumed. He relies on the case of Pryor v. Pryor⁽²⁾ and says that if the Plaintiffs carry out their obligations under S/C 13 then the Plaintiffs would have dedicated under Regulation 22(1). I think Mr. Widdicombe's arguments are well founded otherwise why these words in S/C 13(b) "as if the said podium and the said passage area were part or parts of a public street"? I think the answer to this is to be found in the words of Lord Asquith of Bishopstone in East End Dwelling Co. Ltd., v. Finsbury Borough Council⁽³⁾ wherein he said:

"If you are bidden to treat an imaginery state of affairs as real, you must surely, unless prohibited from do so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it."

Surely then upon performance of the obligations under the contract the consequences and incidents of the podium and passage area being part or parts of a public street could only have flowed from dedication. Accordingly, I find and hold in favour of the Plaintiffs. The Plaintiffs have argued in the alternative an issue on estoppel which I do not now have to consider in view of my finding. I do hereby adjudge that the Plaintiffs are entitled with costs to two of the declarations sought as amended in terms.

Representation:

Widdicombe, Q.C. & R. Ribeiro (Johnson, Stokes & Master) for Plaintiffs

P. Graham for Defendant

(1) [1961] H.K.L.R. 554 @ 563

(2) (1872) 26 L.T. (N.S.) 758

(3) (1952) A.C. 109 @ 132