Fine Tower Associates Ltd v. Town Planning Board

FAMV No. 20 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2008 (Civil)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV No. 356 of 2006)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

Date of Hearing: 8 September 2008

Date of Determination: 8 September 2008

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.Whether there has been a deprivation of property within the meaning of Article 105 of the Basic Law is a question of fact and degree to be answered by looking at the reality rather than to the form.  The principal dispute is as to whether one should take account of the government’s willingness to modify the lease conditions, by an exchange of land if necessary, in answering that question.  Counsel for the applicant argues that one can only look at the Outline Zoning Plan’s effect on rights under the unmodified lease and that all existing rights of use have been wholly negated.  But it is contrary to principle to ignore the reality of a proposed lease modification and the development potential it carries.  There is no good reason for adopting such a blinkered approach.

2.It is also sought to be argued that an additional question arises by virtue of the government having a discretion as to granting lease modifications.   It is suggested that this results in an infringement of Article 105 by failing to provide the stipulated protection of property rights “in accordance with law”.  We do not consider that a viable issue.  As the courts below have held, the protected property rights are intrinsically subject to restrictions that may be lawfully imposed.  The use restrictions in this case were lawfully imposed under the Town Planning Ordinance.  The potential lease modification is relevant to determining the present value of the land.  It does not trigger any infringement of a fundamental right.

3.No arguable point of public importance arises and the application must therefore be dismissed with costs.

Mr Philip Dykes SC and Mr PY Lo (instructed by Messrs Chui & Lau) for the applicant

Mr Jat Sew-Tong SC and Mr Abraham Chan (instructed by the Department of Justice) for the respondent