Re Tsang Ying Chung

HCMP000166/1976

IN THE HIGH COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 166 OF 1976

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Coram: Li and Trainor, JJ.

Date of Judgment: 10th April 1976 at 9.30 a.m.

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JUDGMENT

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Li, J.:

1. This is an application for leave to apply for an Order of Certiorari to quash an award made by the Board of Arbitrators in respect of the resumption of a piece of land in the New Territories known as Lot No. 398 in D.D. 184. The reasons for the application are two-fold.

2. The first is that when the notice of resumption was given the applicant was notified that the Government would consider a surrender of the said piece of land (which was agricultural land) and a grant of building land to him in lieu thereof. Owing to special circumstances within his family the applicant was not able to obtain the signatures of all the co-owners of the said piece of land to effect a surrender so as to obtain a grant of building land before the hearing of the case before the Board of Arbitrators. As such the award was made on the basis that the land was agricultural land.

3. The second is that as a matter of policy all male issue of original owners of lands in the New Territories are always allowed to convert a portion of their holdings into building land without payment of conversion premium. The applicant's family has many male issue. Thus they have a customary right to convert the said piece of land into building land. As such the award by the Board of Arbitrators should have been made on the basis that the said piece of land is building land.

4. The applicant admits that both the aforesaid reasons were advanced to the Board of Arbitrators but says they were completely ignored.

5. The findings of the Board, though not filed as an Exhibit, were shown to this Court together with the letter containing the offer made by the Government. No record of the proceedings before the Board was exhibited to this Court, however, on page 8 of the findings of the Board it says as follows:-

"The Board has carefully considered all the evidence before it, both oral and written, and has analysed the data contained in the various documents submitted. It was considered, in all the circumstances, that the Crown's method of valuation by capitalisation of tenant rental was valid (see Crown exhibit A, Part I, para.13). The Board has unanimously decided that compensation of there dollars per square foot is adequate compensation for all the remaining forty-nine lots, the user of which was restricted to agriculture."

6. It is apparent from this document that the Board had considered all arguments and evidence before it arrived at its conclusion. There is nothing on the face of the record to suggest any error. The surrender had not been effected or accepted before the Board hearing. Paragraph (c) of Section 12 of the Crown Lands Resumption Ordinance Cap. 124 provides as follows:-

"In the determination of the compensation to be paid under this Ordinance -

Provided that this paragraph shall not apply to any case in which the grant or renewal or continuance of any licence, permission, lease or permit could have been enforced as of right if the land in question had not been resumed."

7. There is no legislation or law provide that male issue of New Territories land owners may freely convert agricultural land into erred either in applying the wrong legal principle or in adopting the wrong legal procedure. This Court is not a court of appeal from the decision of the Board of Arbitrators. While I do not say that the award is wrong but in any event, this Court would not be in a position to vary the award which has been determined by the Board according to the correct procedure and principle.

8. In the circumstances I would refuse leave to apply.

Trainor, J.:

9. I concur.

Representation: