Leung Siu-tip v. Commissioner of Rating and Valuation

HCMP000952/1984

IN THE COURT OF APPEAL

BETWEEN

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Coram: Roberts, C.J., Yang & Barker, JJ.A.

Date of Judgment: 12th April 1984

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JUDGMENT

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Barker, J.A.:

1. This is an appeal from a decision of the Lands Tribunal dismissing appeals by the appellant against rating assessments, which had been made upon her on the 20th December 1982.

2. The matter arises in this way: the appellant, Madam LEUNG Siu-tip, is the registered lessee from the Crown of Lot 182 Mui Wo Demarcation District No. 1, Lantau Island. She purchased this lot in 1978 and by 1982 she had erected residential buildings, three storeys high, containing twelve flats of which she owns eleven. Lot 182 is in the area - and I used that word advisedly - of Pak Ngan Heung Village.

3. Pak Ngan Heung Village is an old village, having come into existence during the Ching Dynasty. That means that it was already established before 1898 when Lantau Island became part of the Colony of Hong Kong. It is a traditional Chinese village, with village representatives, and comes within the area administered by the Mui Wo Rural Committee.

4. Madam Leung, having been assessed for rates in respect of her eleven properties on the 5th January 1983, wrote to the Commissioner of Rating and Valuation objecting to their assessments on the ground that the tenements were exempt from rates. Notwithstanding the objections the Commissioner confirmed the proposed valuation on the 13th April of last year.

5. The appellant's case before the Lands Tribunal and before us was and is that Lot 182 formed part of the traditional Pak Ngan Heung Village and, indeed, before the Tribunal, she produced a map which showed her property as No. 67 Pak Ngan Heung Village and that it did come within the traditional boundaries of that village. She also produced a letter from the District Lands Officer, Islands, Lands Department, dated the 9th February 1983 which said in relation to her lot:

"I refer to your letter dated 7th January, 1983 and wish to inform you that Lot No. 182 in D.D. 1 Mui Wo is an old schedule building lot in Pak Ngan Heung area."

6. She called before the Lands Tribunal Mr. Tsang Lin, Chairman of the Mui Wo Rural Committee, Mr. Wong Chow Fook, Vice-Chairman of the Committee and Mr. To Hay Yung, a member of the Committee and also the Pak Ngan Heung Village headman. All those three gave evidence to the effect that the appellant's Lot 182 was within the traditional boundaries of the village. They also gave evidence of a meeting on the 25th March 1980 with government officials at which, so they said, those government officials informed the meeting that the new policy under which rates would be assessed on Lantau Island properties would include an exemption which would benefit Pak Ngan Heung and other traditional villages. Mr. Tsang also gave evidence to the effect that the meeting was told that all tenements within such villages would be exempt from rates, whether the current residents were indigenous residents or more recent residents who had come from elsewhere.

7. The question of exemption from rates is dealt with by section 36 of the Rating Ordinance, Cap. 116. Section 36(1) reads so far as is relevant:

8. An area was designated in respect of Pak Ngan Heung Village on behalf of the Governor on the 25th March 1980. This designation was approved by the Deputy Financial Secretary, on authority delegated by the Governor on the 31st Deeember 1975. A plan was produced by the representative for the Commissioner of Rating and Valuation before the Lands Tribunal. The Tribunal was satisfied, as it was entitled to be, that the copy of the plan which was produced before it was a true copy of the original plan. From that plan, it is abundantly clear that Lot 182, the appellant's lot, is outside the designated area.

9. The appellant makes a number of complaints about this designated area. She says it does not follow the traditional village boundaries. She alleges that the designation was carried out otherwise than through the proper procedures in that the village representatives were not consulted nor was the Rural Committee. And she says that it goes against what she describes incorrectly as "promises" made by the government officials at the meeting of the 25th March 1980.

10. It is to be observed that that meeting took place on the very day on which the designated area was approved by the Deputy Financial Secretary and what probably happened at that meeting was that the government officials were endeavouring to explain what the designated area was and what it meant.

11. Be that as it may, we, in this Court, are quite unable to go behind the formal designation of this Area 900. In my judgment, the Presiding officer of the Lands Tribunal expressed the matter entirely accurately when he said as follows:

"The designation of an area under Section 36 (1)(c) represents an, exercise of the powers of the Governor. Whether an administrative error was made in determining the boundaries of that area, whether those boundaries are in accordance with any prior representations to villagers or even whether they are reasonable, are not matters which are reviewable by the Lands Tribunal in the exercise of its judicial powers. We have no power to go behind the formal designation of Area 900 which we are satisfied was, as a matter of law, duly designated."

12. We do not know and it is no part of our duty to inquire why the designation was made in the way it was. There may well have been very good reasons why it did not follow the traditional village boundaries. But, for the reasons which I have endeavoured to give, in my judgment the Lands Tribunal's conclusion was an inescapable one and clearly correct. It follows that these appeals must be dismissed.

13. I would add merely this: it does appear not only from what Madam Leung has told us but also from what the village representatives and the senior officials of the Mui Wo Committee have said that there is, to say the least of it, considerable resentment at the designated Area 900. Perhaps the Commissioner of Rating and Valuation in these circumstances may think that he ought to reconsider the matter. Whether or not he does so is a matter entirely for him. Even if he does, it may be that he is of the view that the plan ought to stand as it is. It would be wrong for this Court to say any more.

Roberts, C.J. :

14. I agree and I have nothing to add.

"Yang, J.A. :

15. I agree with the judgment delivered by my brother Barker and the reasons stated by him. Whilst one might feel a degree of sympathy with the appellant in that I accept the genuineness of her sense of grievance, we are in the present case dealing with an area of activity of the executive branch of government with which the Judiciary is unable to interfere. I would, however, like to add my voice to that of my brother Barker in suggesting that, perhaps, the Rating and Valuation Department might like to review their position.

Representation:

Appellant in person.

Mr. S.H. Franklin for Respondent