The Secretary for The New Territories v. Lee Pui Leung

LDLR000001B/1981

Lands Tribunal - practice- whether decision on the hearing of a review may itself be the subject of a further review - comparison between review provisions of Lands Tribunal, District Court and Magistrates Court - Sections 11 and 11A lands Tribunal ordinance, Cap. 17, Rule 26 Lands Tribunal Rules, Cap 17.

IN THE LANDS TRIBUNAL OF HONG KONG

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Crown Lands Reference No. 1 of 1981

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Coram: TRIBUNAL : His Honour Judge Cruden sitting as President, Lands Tribunal

Date: 30th day of September, 1982.

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JUDGMENT

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1. The short question to be determined is whether there can, under the Lands Tribunal Ordinance, Cap. 17, be a review of a review.

2. In these proceedings the applicant originally applied to the Lands Tribunal to determine the amount of compensation payable to the respondent as a result of the Crown resuming certain land at Tsuen Wan under the Crown Lands Resumption Ordinance, Cap.124. The application was heard by a Lands Tribunal of which I was not a member. That Tribunal delivered its decision on the 8th day of January 1982 when the respondent was awarded compensation of $1,425,000. From that decision both parties applied for a review pursuant to Section 11A of the Lands Tribunal Ordinance. The application for a review was granted and the same members of the Tribunal sat for the subsequent review hearing. On the 21st day of June 1982 the Tribunal delivered its decision on the review.

3. On the 19th day of July 1982 the respondent applied for a further review, again pursuant to Section 11A.

4. This application for a further review appeared to raise a preliminary point of law, namely whether the Lands Tribunal has power to hear an application for a further review. In pursuance of my statutory powers I elected to intervene and determine the preliminary point of law.

5. The review application in which the Tribunal's decision was delivered on the 21st day of June 1982, was held purports to Section 11A. The present application for review also purports to be made under section 11A. Section 11A provides :

6. The principal Ordinance was enacted on the 1st day of  December, 1974. Section 11A was added in 1978 by the Lands Tribunal (Amendment)Ordinance 1978 No. 80/78.

7. Miss Yuen, for the respondent, first submitted that in considering the jurisdiction issue which has arisen, the Tribunal was to assume, for the purposes of this application, that the substantive grounds for a review are prima facie sufficient and are not frivolous or vexatious. For the limited purposes of this preliminary issue I, of course, make that assumption.

8. Secondly, it was submitted that the Lands Tribunal is a creature of statute and the Tribunal's statutory powers are decisive of the issue. Again I accept that submission. Turning to those statutory powers it is undisputed that the answer to the question before the Tribunal is a matter of statutory interpretation. The respondent submits that under the Lands Tribunal ordinance, whether a literal or purposive approach is adopted, where the Tribunal has already delivered a decision on a review application under Section 11A, it has the further power under section 11A, subsequently to review its decision on the prior review.

9. Adopting a literal interpretation, Miss Yuen pointed out that Section 11A (3) empowers the Tribunal to review "any decision". There are no express words in Section 11A which restrict the meaning of "any decision" to the original decision. Nor are there any express words which exclude a decision on a prior review from being further reviewed.

10. I was also referred to Section 11(1) which provides that subject to any appeal rights, which are limited to points of law, the decision of the Tribunal in determining the amount of compensation payable "shall be the final determination thereof". It was submitted that any apparent conflict between Sections 11 and 11A is removed if those sections are considered together. It is then clear that as to questions of fact the Tribunal makes the final determination either originally or, if an application is granted under Section 11A,on a review. In other words there is no appeal from the Tribunal on a finding of fact.

11. On a point of law the position is different. There is an appeal by way of case stated on a point of law under Section 11(2).

12. The position under Section 11A was contrasted with the different position under Section 53 of the District Court Ordinance, Cap. 336 where, in the exercise of its civil jurisdiction only, the District Court has the power to review a prior judgment or order. Whereas Section 11A refers simply to a "decision" of the Tribunal and makes no distinction between the original decision and the review decision, in the District Court Section 53(3) expressly distinguishes between :

13. Counsel for the respondent conceded that because of these different statutory provisions there is clearly no power in the District Court, in its civil jurisdiction, further to review a prior review. She further submitted that the analogous power of magistrates to review a prior determination under Section 104 of the Magistrates Ordinance, Cap.227 was drafted in such a different manner as to be of no help in deciding the position under our Section 11A.

14. Counsel for the respondent also referred to 'Maxwell on Interpretation of Statutes'(12th Edn) at page 246 :

"

The effect of strict construction might be summed up by saying that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself."

In the substantive application, it was submitted, the dispute was precisely between the Crown compulsorily resuming land and the subject seeking compensation for the resulting loss. Any ambiguity in Section 11A as to whether the right to a further review existed should, it was submitted, be resolved in favour of the respondent subject.

15. Counsel for the respondent then submitted that if a purposive approach to Section 11A was adopted it merely reinforced the conclusion which flowed from adopting a literal approach, namely that there was power to review a prior review decision. Predictably I was referred to Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 and reminded that the general principle of statutory interpretation in Hong Kong required the Tribunal to give Section 11A "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit". It was submitted that the object of the Lands Tribunal ordinance was, inter alia, to facilitate the payment of just compensation to property owners whose land had been compulsorily resumed by the Crown. If the Tribunal erred in law there was a right of appeal to the Court of Appeal. Where the Tribunal erred on a finding of fact there was no right of appeal. The Ordinance, however, gave relief to a party against whom such an adverse finding was made, for he could apply for a review under Section 11A. If on the review a further erroneous finding of fact were made it was consistent with the object of the Ordinance that the aggrieved party should be able to apply for a further review to correct that error.

16. Mr. McCallough, for the applicant, submitted that under the Lands Tribunal ordinance there was no power to grant an application for a review of a prior review. As the respondent had already been granted a review of the original decision and that review application had been disposed of culminating in the Tribunal's decision of the 21st day of June 1982, the Tribunal simply had no jurisdiction to grant a further review.

17. As to Section 11A he immediately conceded that on a literal interpretation of the Section there was no restriction on a further review. However, he submitted that if the Section was interpreted to permit further reviews, the result would an absurdity, as there would be no finality to litigation.

18. Further it was submitted, that there was no potential conflict between Sections 11 and 11A which could only be resolved by following the respondent's approach to those sections. For it was submitted the two sections dealt with completely different matters. Section 11 provided for appeals to the Court of Appeal on points of law. Section 11A was concerned with a right of review to the Tribunal itself on findings of fact. The sections existed independently of each other.

19. As to the respondent's citation from Maxwell he pointed out that the extract formed that part of Chapter 11 headed at page 238 as "3. Strict Construction of Penal Laws". The cited extract was therefore e only applicable to penal laws. Neither the Lands Tribunal Ordinance nor the Crown Lands Resumption ordinance were penal laws. It was therefore submitted that the extract was irrelevant.

20. Mr. McCallough further submitted not only was the cited extract irrelevant, but it was dangerous to rely exclusively on any particular canon of construction collected in Maxwell. He based this on the following statement from Chapter III Cross 'Statutory Interpretation' page 42 :

21. He submitted the proper approach for a Tribunal faced with this conflict of riches was to apply Rule 3 of the four basic rules Professor Cross formulated from the mass of case law which he sets out at page 43 of his "Statutory Interpretation"  :

In formulating that rule Professor Cross relied particularly on the judgment of Lord Reid in Federal Steam Navigation Co. Ltd. v. Department of Trade and Industry (1974) 2 All L.R. 97,100.

22. Counsel for the applicant was bluntly critical of the draftsman not using in Section 11A the more precise language employed in the comparable Section 53 of the District Court Ordinance. In his submission a literal interpretation, permitting a series of reviews, would lead to such an absurdity that this was an exceptional case where the Tribunal should read words into Section 11 A. Words should necessarily be implied to limit a party's right to apply for only one review to prevent the absurdity arising.

23. In further support of that submission he cited the judgment of Lord Denning in Eddis & Anor. v. Chichester Constable & Ors. (1969) 2 Ch. 345. In that case the Court of Appeal was concerned with the proviso to Section 26 of the Limitation Act 1939. On a literal meaning of the proviso, time would have run differently in an action for conversion from an action for specific performance. Lord Denning agreed that the proviso taken literally gave rise to an absurdity. At page 358 Lord Denning was prepared to imply into the proviso the words "or its value" to prevent that absurdity arising :

24. Counsel for the applicant submits that the words "any decision" should similarly be interpreted to avoid the literal absurdity arising. "Any decision" should therefore be construed as "any decision other than a prior review decision".

25. Finally, he doubted whether on other grounds the Tribunal had jurisdiction. Under Section 11A (3), he pointed out, the Tribunal must decide within 1 month from the date of any decision whether to review that previous decision. Here the application by the respondent for a review was in time. But the Tribunal did not within that 1 month decide whether to review its previous decision. It still has not done so Instead it set down the application for hearing on the preliminary point whether it had jurisdiction to decide to hold a review under Section 11A.

26. In reply Counsel for the respondent emphasised that she did not claim that on a further review the Tribunal would have power to review findings of fact made at the original hearing.The only findings which could be reviewed on a further review were those found at the last previous review. In her submission the power to grant a further review would not conflict with the principle that there should be finality in litigation. For the findings at the original hearing could not be reopened. An applicant would be limited to attacking any findings made at the last previous review. As there was no appeal on fact there was no other alternative where a mistake of fact which arose for the first time at a review hearing could be remedied. Miss Yuen submitted that there could be no injustice in trying to get the facts right.

27. With the benefit of those submissions from both Counsel, which were advanced with considerable cogency and clarity, I must now rule whether there can be a review of a review. There appears to be no prior decisions of the Tribunal on this point. Nor are there any reported decisions on this point in relation to Section 53 of the District Court Ordinance or Section 104 of the Magistrates Ordinance. In view of the very different wording of the former Ordinance it is perhaps not surprising that apparently no party has ever attempted to argue that in the District Court there can be a review of a review.

28. Both parties are agreed that on a literal interpretation there is nothing in Section 11A which would restrict the Tribunal's power to allow a prior review to itself be reviewed. Certainly Section 11A solely uses the word "decision" to describe any conclusion the Tribunal may come to whether at an original hearing or otherwise. Section 11 also uses the term "decision". Section 11 also provides that the "decision" of the Tribunal shall be the final "determination". The Lands Tribunal Rules and in particular Rule 26 at least initially also only used the term "decision". However, under the Lands Tribunal (Amendment) Rules 1982 published in No. 21 Volume CXXIV Hong Kong Gazette on the 28th day of May 1982, I note that the word "decision" was deleted from Rule 26 and the words "judgment, decision or order" were substituted. However, Section 11A remains unamended. Clearly no distinction is   expressly made within Section 11A between a decision prior to a review an the determination at the review hearing.

29. On the other hand, what is equally clear is that in the District Court, which exercises a comparable jurisdiction, there can only be one application for review after judgment at the substantive hearing. In other words, there cannot be a further review of the findings arrived at on the review hearing. In the District Court, of course, there can be no review of any decision in the exercise of the Court's criminal jurisdiction. The power of review under Section 53 is limited to the District Court's civil jurisdiction. The provisions of the District Court limiting a party's right to one review and also an appeal to the Court of Appeal are consistent with the fundamental principle that there should be finality to litigation.

30. Counsel for the respondent strongly urged that not only was the right to a further review the proper interpretation of Section 11A but it was also a very just and necessary provision due to the restrictions on appeals to points of law. This submission has rather less weight than it would otherwise have due to the appellate practice which has evolved in Hong Kong. An examphe of that practice is what occurs under the Landlord and Tenant (Consolidation.) Ordinance, Cap. 7. Up to and including today jurisdiction thereunder has been shared between the District Court and the Lands Tribunal. From tomorrow the whole Ordinance falls within the exclusive jurisdiction of the Lands Tribunal. Appeals from the District Court under Section 68A in respect of Part II and from the Lands Tribunal under Section 119Q are limited to points of law. While there have so far been no appeals from the Lands Tribunal under Part IV there have many numberous appeals from the District Court under Part II. Indeed, they would make up the bulk of civil appeals from the District Court.

31. However, the limitation of appeals to points of law under Part II seems to have have little effect in restricting the issues argued on appeal. In many cases it seems the Ordinance might just as well have permitted general anneals on fact as well as on law. For the apparent limitation to points of law is in practice nearly meaningless. First, it is always open to an appellant to found his appeal on the point of law that the decision appealed from could not on the evidence have been arrived at by a reasonable tribunal of fact properly directed on the law. That apparent point of law is merely a formula by which, on appeal, all the findings of fact are at large. Secondly, at least some Courts of Appeal have never felt inhibited, even where the preceding global ground had not been invoked by appellant, from holding that an appeal on a distinct point of law nevertheless enables an appellate Court to come to a different finding of fact. A recent example of this latter practice is evident in the Court of Appeal's judgment in Cheng So Shi v. Madam Shing Ngan Civil Appeal No. 86 of 1982 delivered on the 15th day of September, 1982. The appeal was from the District Court under Part II of the Landlord and Tenant (Consolidation) Ordinance and therefore limited to points of law. In that judgment Cons J. A., observed :

"

Waiver is basically a question of fact and as such may be thought to be beyond the purview of this court with regard to appeals under Part II of the ordinance. However in reality it is not a question of fact, for with respect to the learned e judge below he proceeded in this respect upon a misconception of the law. He assumed it was for the landlady to prove that there had been no waiver."

32. The limitation in Section 11 of a right of appeal on a point of law in reality is therefore not as restrictive as Counsel urged. Furthermore there is only one right of appeal. There is no right given to a party to bring a succession of appeals to the Court of Appeal. This is at least some indication that the Legislature would not have intended that there would be a greater right give to a party in respect of reviews.

33. In deciding which of the various competing and to some extent conflicting canons of construction I should select to apply to Section 11A I am mindful of the warnings cited from Professor Cross. I also accept that the respondent's citation from Maxwell is more relevant to penal legislation. However, it still has some relevance where the issue is one between Crown and subject although the legislation is not penal in character. I therefore do bear that principle in mind in approaching Section 11A although I give it a little less weight than if I were construing a penal Ordinance. I also give due weight to the limited nature of the respondent's submissions. Namely, that it is only the prior review which the respondent claims may be reviewed subsequently. The respondent does not suggest or attempt to argue that Section 11A permits the findings at the original hearing to be further attacked on a second review.

34. I appreciate that both of these latter submissions of the respondent argue strongly for the literal interpretation of Section 11A permitting a limited further review. I appreciate too, that 1 can only come to a contrary conclusion if words limiting applications to one review only, may be implied into Section 11A.

35. Should such words of limitation be implied? Lord Denning on a number of occasions was not reluctant to imply words into a statute where he felt that course was just and necessary. When it was put to Counsel for the applicant that this practice was often criticised by the House of Lords he ventured the opinion - nothwithstanding Lord Simonds in Magor and St. Mellon's Rural District Council v. Newport Corporation (1952) A.C. 189 and elsewhere strongly to the contrary - that statutory interpretation was one area where the previous Master of the Rolls was rarely reversed. Whatever that position may be it is quite clear that words should only be implied out of necessity where the circumstances are exceptional.

36. In my opinion that qualification is inherent in Rule 3 of Professor Cross's four basic rules. I remind myself that when the Lands Tribunal Ordinance was first enacted there was a right of appeal to now the Court of Appeal but no right of review. It was only 4 years later that Section 11A was enacted to provide for a right of review to the Tribunal itself. Except in one particular the new power which was enacted in Section 11A was substantially the same as the long prior existing power of review in civil matters in the District Court. The difference was that the amendment did not go on to make any express distinction between the original decision of the Tribunal and the later determination on a review.

37. When I consider that difference in the context of the whole Ordinance and in relation to other rights of review in Hong Kong, I am unconvinced that the Legislature intended to create a very different right of successive reviews in the Lands Tribunal. The principle in favour of finality in litigation is against such a construction. That principle is reinforced by the fact that Section 11A applies to a Tribunal and not a Court. The hoped for virtues of a Tribunal are that it will perhaps be a speedier and more informal judicial body than a court. The context in which the words "final determination" is used in Section 11 is indicative of the Legislative 's wish that claims for compensation should be determined speedily without the complications of an involved appellate structure.

38. To interpret Section 11A as allowing successive reviews would run counter to all those basic principles. After consideration I have come to the conclusion that this is an exceptional case where it is necessary to imply into Section 11A words restricting a party to one application for review. I am conscious of the fact that in any event an appeal always lies from a review hearing as well as from the original hearing. For the reasons given I am well satisfied that it was the Legislature's intention to allow only one application for review. Having come to this conclusion it is unnecessary for me to rule on the applicant's final submission.

39. I therefore hold that the respondent has no right to bring a second application for review under Section 11A even though it is limited to findings made at the prior review hearing. Accordingly this Tribunal has no jurisdiction to entertain this second application and it is dismissed on those grounds. Liberty to apply for costs and any other consequential matters is reserved.

DATED this 30th day of September, 1982.

Representation:

Miss Maria Yuen instructed by Gallant Y.T. Ho & Co. for respondent

Mr. R.A. McCallough, Senior Crown Counsel, for the applicant