Good Trader Ltd v. Hinking Investments Ltd

LDCS 1000/2006

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Land Compulsory Sale Application No. LDCS 1000 of 2006

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BETWEEN

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Coram:  H.H. Judge WONG, Presiding Officer, Lands Tribunal

Dates of hearing:  22 May 2007 and 2 August 2007

Date of Handing Down of Decision:  3 September 2007

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DECISION

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1.On 30 March 2007, I together with Mr. W.K. Lo, Member of the Lands Tribunal, gave judgment in this case whereby the Applicant’s application for an order for sale under the Land (Compulsory Sale for Redevelopment) Ordinance was dismissed.

2.On 19 April 2007, the Applicant filed and served a Notice of Application for Review (“the Review Application”) pursuant to section 11A(2)(a) of the Lands Tribunal Ordinance (“the Ordinance”) to review our decision made on 30 March 2007.

3.The Review Application was placed before me on 20 April 2007.  After reading the same, I decided to review the decision on the same day.  I directed the Listing Clerk of the Registry to fix a date for the review hearing.  Thus, the Registrar of the Lands Tribunal issued a Notice of Hearing for the Review Application to the parties on the same day, and the parties were notified that the Review Application had been set down for hearing on 22 May 2007.

4.On 22 May 2007, the parties came before me, sitting with Mr. Lo, for the review hearing.  However, Ms. Lan, counsel for the Respondent, raised the preliminary issue that my decision to review made on 20 April 2007 should be set aside for want of jurisdiction.  After hearing some submissions, I adjourned the hearing of this preliminary issue to 2 August 2007 for further argument before me sitting alone, so as to enable the parties to make further research on the issue.

5.On 2 August 2007, the parties came before me and made further submissions.  Ms. Lan formulates the issue as follows:-

‘Is the “decision to exercise its power” made by the Tribunal on 20^th April 2007 bad for want of jurisdiction and therefore a nullity on the ground that it was not made pursuant to section 11A?’

6.Section 11A of the Ordinance reads as follows:-

“(1)      The Tribunal may, within 1 month from the date of any decision by it, decide to review that decision and, on such grounds as it may think sufficient, may set aside, reverse, vary or confirm it.

(2)        The Tribunal may act under subsection (1)-

(a)        on the application of any party; or

(b)        on its own motion,

and on notice to all other parties to the proceedings.

(3)       If the Tribunal shall have decided, within 1 month from the date of any decision, to exercise its power of review in respect thereof, such power may be exercised at any time thereafter whether within such period of 1 month or otherwise.

…”

7.Ms. Lan submits that under section 11A of the Ordinance, the review mechanism is a three-stage process as follows:-

(1)     There is an application to review made by any party or on the Tribunal’s own motion [sub-section (2)].

(2)     The Tribunal then decides whether to exercise its power of review [sub-section (1)], and such decision has to be made

(i)       within one month from the date of the decision subject of review [sub-section (1)]; and

(ii)      on notice to all other parties [sub-section (2)].

(3)      If the Tribunal shall have decided to exercise its power of review, such power may be exercised at any time thereafter [sub-section (3)].

8.Ms. Lan contends that “on notice” in section 11A(2) must mean that there should be a prior notice to the parties and the parties must have an opportunity to make representations before the Tribunal has decided to review (the second stage as aforesaid).  In this regard, Ms. Lan relies on the following judgment of the Lands Tribunal, comprising Deputy Judge Yung (as he then was) and Mr. N.T. Poon, in Solar Max Limited v. Homex Investments Limited, LT 358 of 1997:-

“Section 11A provides clearly that the Tribunal must make the decision “on notice”.  This must mean prior notice.  That is why the date of hearing was fixed for the application for review.  The purpose is clearly to give the other party an opportunity to make representations.  Furthermore we certainly disagree that the Tribunal must invariably decide to review regardless of the merit of the application.  The provision in Section 11A(3) is to enable the full review hearing if there is one to be concluded outside the one month period and not, as Mr. Ng argued, to imply that the Tribunal is obliged to decide to review and grant a full hearing of review on a party’s application.”

9.Thus, Ms. Lan is of the view that I was wrong in deciding to review on 20 April 2007 without giving prior notice to the Respondent that I was going to decide to review and without affording the Respondent an opportunity to be heard before I decided to review, as it would not comply with section 11A(2).

10.Having considered Ms. Lan’s submissions with great care, I think there is a fundamental flaw in her contention.  Her contention will only succeed if the words “on notice” are to be interpreted to mean “prior notice”, and “prior notice” to mean “opportunity to be heard”.  Apart from the Solar Max case, Ms. Lan cannot find any other authority to support her contention in this regard, even though she has been given a long adjournment to make further research.  If the words “on notice” are not to be interpreted in this manner, Ms. Lan’s contention will simply fail.

11.The decision of Deputy High Court Judge S. Kwan (as she then was) in Lee King Sin v. Stikeman, Elliott and Ng Sau Man, HCLA 83 of 2000, as cited by Mr. Law for the Applicant, is a direct authority that goes against Ms. Lan‘s contention.  Although the Lee King Sin case concerns with the review mechanism in the Labour Tribunal under section 31 of the Labour Tribunal Ordinance, the decision in that case gives a different interpretation of the words “on notice” from Ms. Lan’s contention in the present case.  Section 31 of the Labour Tribunal reads as follows:-

“(1)   …a presiding officer may, within 14 days from the date of an award or order given or made by him, review the award or order and on such review may re-open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order.

(2)   The power conferred by subsection (1) may be exercised-

(a)   by a presiding officer of his own motion, on notice in the prescribed form to all parties;

(b)   on the application of a party within 7 days, on notice in the prescribed form to all other parties.

…”

12.The defendants in the Lee King Sin case argued that the review must be “conducted” and “heard” within the 14-day period as stipulated in section 31(1) of the Labour Tribunal Ordinance.  The hearing does not need to be completed within the 14-day period but it must be commenced within that period.  It was argued that until there is a hearing, there is no “review” as provided in section 31(1).  It was also submitted that the prescribed form in Form No.12, being the Notice of Review by a presiding officer on the application of a party, would appear to suggest that the review is the event of a hearing as the party would be notified by that notice that the Presiding Officer “will review the award/order” at the stated time and date.

13.However, Deputy Judge Kwan upheld the Presiding Officer’s view that the decision to review must be taken within 14 days from the award or order but the actual hearing could be held outside this period, and gave the following reasons:-

“12.      In section 31(2), it is provided that “the power conferred by subsection (1)”, i.e. the power of review, “may be exercised” in two ways. Where the review is by a presiding officer of his own motion, the power of review “may be exercised” on notice in the prescribed form to all parties, which is Form No.11 of the Labour Tribunal (Forms) Rules.  Where there is an application of a party for a review, the power of review “may be exercised” on giving notice to all other parties in the prescribed form, which is Form No.12.  In my view, on the clear wording of section 31(2), the power of review is exercised once the notice in the prescribed form is given.  In the present case, the Notice in Form No.12 dated 9 October 2000 was given before the expiry of the 14-day period on 12 October 2000.

13.       Thus, on the clear wording of section 31(2), the process of review is set in motion upon the giving of the Notice in the prescribed form and the power of review is thereby “exercised”. There is no support for the defendants’ submission that for the Presiding Officer to exercise the power of review under section 31(1), an actual hearing must be commenced.  I note also that the words “hearing and consideration of a review “ are used in section 31(5).  These words or similar wording are not used in section 31(1).”

(underlines added)

14.Although section 31 of the Labour Tribunal Ordinance does not have the exact wordings as section 11A of the Ordinance and there are no prescribed forms for the notice under section 11A, I think Deputy Judge Kwan’s reasoning is equally applicable in our present case.  Deputy Judge Kwan was of the view that the process of review is set in motion upon the giving of the notice and the power of review is thereby exercised, and that there is no support for the submission that an actual hearing must be commenced.  Thus, Deputy Judge Kwan did not consider that the notices under section 31(2)(a) and (b) are prior notices or a hearing must be held before the power of review is exercised, even though it is stipulated in section 31(2) that the power under 31(1) may be exercised “on notice”.  Ms. Lan submits that Deputy Judge Kwan’s interpretation is wrong, but I cannot agree more with Deputy Judge Kwan.

15.Moreover, I think the words “on notice” should not be read separately, but should be read in their context.  So for section 31(2), it should be read as “The power conferred by subsection (1) may be exercised … on notice … to all parties”, and I think it carries the same meaning as “The power conferred by subsection (1) may be exercised … by notice … to all parties”.  In other words, the power of review is triggered off by the issuance of the notice.

16.My view is supported by section 27A of the Small Claims Tribunal Ordinance, which reads as follows:-

“(1)   …an adjudicator may, within 14 days from the date of an award or order given or made by him, review the award or order and on such review may re-open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order.

(3)   The power conferred by subsection (1) may be exercised-

(a)   by an adjudicator of his own motion, by notice in the prescribed form to all parties;

(b)   on the application of a party within 7 days, by notice in the prescribed form to all other parties.

…”

(underlines added)

17.Section 27A of the Small Claims Tribunal Ordinance is almost identical to section 31 of the Labour Tribunal Ordinance, except the words “by notice” are used instead of the words “on notice”.  I do not see any logic to distinguish the review mechanisms in these two tribunals.  The great similarity between the two sections shows that the legislations must have intended to have the same review mechanisms for the two tribunals.  Thus, whether it is “on notice” or “by notice”, the review mechanism in the two tribunals should be the same.  When one interprets “on notice” to mean “by notice”, it is apparent that the notice would not be a prior notice, but a notice to trigger off the power of review at the same time.  No hearing at this stage would be implied from such a notice either.

18.Likewise, for section 11A(2), it should be read in the same manner, i.e. “The Tribunal may act under subsection (1) … on notice to all other parties”, or “The Tribunal may act under subsection (1) … by notice to all other parties”.  Thus, the decision to review under section 11A is triggered off by the issuance of the notice.  The notice is not a prior notice as far as the decision to review is concerned, but a means to trigger off the Tribunal’s act in deciding to review.  No hearing at the stage of deciding to review can be implied from such a notice.  Of course, there will be a hearing after the notice has been issued and before the Tribunal actually makes any order to set aside, reverse, vary or confirm the decision.  The purpose of the notice is to give opportunity to the parties to make representations before any such order is made.

19.If Ms. Lan’s contention is correct, there would be two hearings for a review: one at the time before the decision to review is made and another before any order to set aside, reverse, vary or confirm the decision is made.  I do not think that the legislation would have this intention in mind.  Just one opportunity to make representations should be enough to safeguard the party’s interest.  So, as long as the parties can make representations before any order on review is made, there should not be any prejudice to the party.  It is therefore not necessary for the parties to be heard before the decision to review is made.

20.Moreover, Ms. Lan’s interpretation, if correct, would create practical difficulties for the operation of the Tribunal.  For example, if a party makes a review application, or the Tribunal intends to review, shortly before the one-month review period expires, and there will be no time to issue notice to the parties or fix a hearing within the one-month period, does it mean that the party making the review, or the Tribunal, will then be deprived of a review?  I do not think that the intention of the legislation is to create such practical difficulties.  On the contrary, I think section 11A(3) is there to eliminate such difficulties.  Section 11A(3) allows the Tribunal to make the decision to review within one month, but the exercise of the power at any time thereafter, even after the one-month period.  I think this provision is to make sure that when there is no hearing possible within the one-month period, the Tribunal can still decide to review first, leaving the hearing to be fixed at a later time.  This also supports the interpretation that it is not necessary to have a hearing before the decision to review is made.

21.Ms. Lan then submits that it would not be right for the Tribunal to make a decision to review on an ex parte basis.  I see nothing wrong in that.  There are many instances where the Tribunal will make ex parte orders, such as issuance of writ of possession and interim stay of execution.  As aforesaid, there will be no prejudice to the parties because there will be a hearing after the decision to review is made and the parties can still make representations to the Tribunal.

22.In the circumstances, the issue raised by the Respondent must be answered in the negative.  I do not find my decision to review made on 20 April 2007 was bad for want of jurisdiction or a nullity on the ground of non-compliance with section 11A.  I am of the view that the Tribunal is entitled to make a decision to review without any prior notice or hearing.

23.I also make a costs order nisi that the Respondent do pay the Applicant costs of and incidental to the hearing of the preliminary issue to be taxed on High Court Scale if not agreed and with certificate for counsel.  If there is no application for costs in relation to the preliminary issue within the next 14 days, the costs order nisi shall become absolute.

Mr. Dennis LAW instructed by M/S Peter K.S. Chan & Co. for the Applicant

Ms. Gekko LAN instructed by M/S Tang & Lee for the Respondent