Re Lam Fu Kui
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IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) MISCELLANEOUS PROCEEDINGS NO. 24 OF 1972 -----------------
----------------- Coram : Blair-Kerr, S.P.J. and Huggins, JJ. Date: 17 April 1972 ------------------------ J U D G M E N T ------------------------ Huggins, J.: 1. By leave counsel on behalf of the Attorney General moves for an Order of Certiorari to remove into this Court and to quash an Award made by a compensation Board appointed under the Crown Lands Resumption Ordinance. The notice of resumption related to several lots but we are concerned with New Kowloon Inland Lot No.3911. One of the claimants in respect of that Lot was the Respondent, LAM Fu-kui. He accepted an offer of resettlement and free transportation of his personal affects and in addition was awarded two sums:
It is the second of these sums to which objection is taken. 2. At first it was contended that there was error on the face of the proceedings but it is now conceded that the Award contains no manifest error and it is contended only that there has been an excess of jurisdiction. What is said is that the use of the land by the Respondent for business was not in accordance with the terms of the Crown Lease and that compensation was not payable for damage to his business. The Applicant relies upon ss. 10 and 12 of the Crown Lands Resumption Ordinance, the material parts of which are:
It is then said that the evidence disclosed no business carried on by the Respondent other than that of the manufacture of plastic toys; that use for industrial purposes was not in accordance with the terms of the Crown Lease and that there was, therefore, no jurisdiction to award compensation for damage to the business. In other words the Applicant alleges an implicit finding that the use of the land was a business use which did not amount to a use for industrial purposes and that that finding, being entirely unsupported by he evidence, ought to be reversed. 3. As far as I was able to understand the argument on behalf of the Respondent it was that the Board had found that the land was being used for business, that there was no finding that it was being used for industrial purposes and that that was the end of the matter because “business purposes” and “industrial purposes” are not synonymous. 4. I accept that business and industry are not synonymous, because industry connotes a business in the course of which manual labour is done or machinery or appliances are used and, usually, in which goods are produced. Industry is frequently referred to in contrast to commerce. Thus a retail shop is a business but not an industry. If, therefore, there was evidence upon which the Board could have found that the Respondent was using the premises for a business which was not an industry we could not interfere. Neither counsel referred us to the notes of evidence and they seemed to be in some doubt whether it was proper for us to look at the affidavit which exhibited them. The difficulty stemmed from the fact that it was originally contended there was error on the face of the proceedings: where that is the contention no extrinsic evidence is admissible. But where it is sought to show excess of jurisdiction affidavit evidence will clearly be looked at. In fact the only evidence of business use was, as alleged by the Applicant, evidence that the premises were being used for the manufacture of plastic toys. Counsel for the Respondent cries to persuade us that the manufacture was only on a small scale and therefore did not come into the category of industry. I find nothing in the evidence upon which such an argument can be based. In any event I do not think that we could construe the condition as though it prohibited only large scale industry, for it is simply in these terms:
The argument could not succeed unless the industrial use were such that the court could properly apply the de minimis rule. In my view the implicit finding that the use was for business purposes which were not also industrial purposes was entirely unjustified. It follows that the implied finding that there was no breach of the condition was unjustifed. 5. The question remains, although it has not been argued before us, whether the existence of a breach of the condition is or is not a collateral issue which it is right for this Court to review upon an application for an Order of Certiorari. It is by no means always easy to decide whether an issue is collateral or is part of the very issues which the tribunal has to decide, for the distinction is a fine one. The nearest case to the present which I have found is R. v. Bradford(1). There power was given to justices to license the Surveyor of Highways to take materials for repairs to highways from the enclosed lands of any person, “such lands ... not being a … park”. A licence was given in respect of lands which the court hold to be a park, contrary to the view of the justices. The status of the lands was hold to be a collateral issue which the justices had to decide as a preliminary to the exercise of the jurisdiction given by the statute. In the present case s.10 of the Ordinance gives power to the Board to determine the compensation to be paid in respect of a resumption and nothing is there said about any limitation of the rights or interests in respect of which compensation may be given. However, s.12 makes “additional rules for determining compensation”. It is not contested here that the Respondent was entitled to some compensation and it cannot be said that the right to compensation was entirely dependent upon the issue whether there had been a breach of the condition: only the extent of the compensation was affected by that issue. In R. v. Bradford it seems that the lands as a whole were either a park or not a park: there was no suggestion that some of them might be a park and some not. However, in the present case until it was known by the Board whether the use which the Respondent was making of the land was used for industrial purposes they did not know for what the Respondent was to be compensated. In my view the question whether the use was or was not in accordance with the terms of the Crown Lease was a matter preliminary to the exercise of the Board’s jurisdiction and one which it was not for them finally to determine. That being so, this is a proper case for certiorari and in my view the Order must go. Haldarn C.C. for Applicant. P. Chan (Messrs. David Tsang & Co.) for Respondent. (1) 1908 1 K.B. 365. |