Chan Shiu Chong v. Director of Lands

LDLR 1/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDLR 1 OF 2012

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BETWEEN

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LDLR 2/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDLR 2 OF 2012

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BETWEEN

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LDLR 3/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDLR 3 OF 2012

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BETWEEN

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LDLR 4/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDLR 4 OF 2012

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BETWEEN

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LDLR 5/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDLR 5 OF 2012

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BETWEEN

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DECISION

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1.The applicants have applied for these 5 cases to be “consolidated” in the sense that they should be tried before the same court immediately one after the other.

2.The application is opposed by the Director who is the respondent in all 5 cases.

3.It is common ground that the Tribunal may order consolidation in the sense advocated if there are some common questions of law or fact to be tried.

4.According to Mr Lester Lee (counsel for the applicants):

“8. The 5 properties … are located within 3 block radius from one another and along or adjacent to the same stretch of Hai Tan Street: see map printouts [A/Tab-2].

…

10. All of the 5 applications raises the identical issue as to what is the correct basis of assessment for compensation under the ordinance and, in particular, the extent (if any) of the ‘development value’ of the 5 properties. All 5 Applicants will rely on the evidence from the same expert.

…

12. … in the event that the question of development potentiality is challenged by the Respondent, it is evident that even the factual issues in all 5 applications will significantly overlap.

13.       In addition, LDLR 4 and 5 of 2012 both may potentially raise the further identical issue of ‘unauthorised users’.”

5.Mr Lee has suggested an 11-day trial if there is consolidation.

6.On the part of the Director, Mr Chisum Ho, Senior Government Counsel suggests that a direction to the effect that one of the cases be tried first with the other cases stayed in the meantime is sufficient to address the applicants’ concerns.  He estimates that 4 days would be enough for the trial of the first case.

7.Having heard the argument, I decide in favour of the Director.

8.The Court of Appeal has recently restated the test to be applied in deciding if a resumed property has any redevelopment potential: see Siu Sau Kuen v The Director of Lands, unreported, CACV 180/2012, 31 July 2013 at para 33-34:

“Whether, on a balance of probabilities, the evidence discloses that, as at the date of resumption, redevelopment of the property resumed was likely. Such likelihood may be demonstrated by:

(i) actual proposals by the applicant to redevelop the property (or unlikelihood demonstrated by the absence of such proposals) whether on its own or by merger with other properties, or

(ii) evidence of redevelopment in the vicinity of the resumed property (whether accompanied by evidence of redevelopment plans for the resumed property or not), so long as such evidence of redevelopment in the vicinity supports a finding that redevelopment on its own or merger of the resumed property with other properties giving rise to a viable redevelopment scheme was likely within a reasonably foreseeable time scale.”

9.So, each applicant bears the burden of satisfying the Tribunal that redevelopment of his resumed property was likely. 

10.Mr Ho points out that the properties concerned are situated at different locations and have different characters:

Application	Location	Size
LDLR 1/2012	G/F (subject to tenancy) & Cockloft, No 187A Hai Tan Street, Kowloon	73.18 sq m (yard + space)
LRLR 2/2012	G/F (subject to tenancy) & Cockloft, No 248 Tung Chau Street, Kowloon	74.13 sq m (yard + space)
LRLR 3/2012	G/F & Mezzanine Floor, No 220 Hai Tan Street, Kowloon (no tenancy)	88.44 sq m (yard + space)
LRLR 4/2012	G/F & Mezzanine Floor, No 7 Pei Ho Street, Kowloon (subject to oral tenancy)	78.6 sq m (yard + space)
LRLR 5/2012	G/F & Mezzanine Floor, No 13 Pei Ho Street, Kowloon (subject to tenancy)	71.05 sq m (yard + space)

11.What the applicants have hoped to achieve by consolidation is for the Tribunal to consider the sum total of their evidence as opposed to the evidence of each case separately.  The Director’s suggestion will facilitate that.  If the applicants would consolidate their efforts in their bid to convince the Tribunal that redevelopment of the vicinity of their properties was likely, they can put in all their evidence at the trial of the first case. 

12.Mr Lee says that the applicants have agreed to fund the consolidated trial together and it may be difficult for them to make alternative arrangement.  But I am not dictated by their agreement.  In my view, the Director’s suggestion may turn out to be more favourable to them. 

13.As presently estimated, the course suggested by the Director would entail initially a 4-day trial.  If the applicants succeed in their argument, the Director will be guided by the judgment in future negotiation/mediation with them.  If the applicants lose the argument notwithstanding their concerted effort, the remaining applicants would need to think twice before retrying based on his evidence alone.  Even if (for whatever reason) the remaining cases require a trial, much time in the subsequent trial can be saved if the parties would accept the findings in the previous judgment.  On the other hand, a consolidated trial is estimated to last 11 days.  In my view, it is likely that the Director’s suggestion would mean less costs for the parties and the resources of the Tribunal (in terms of the diary of a Presiding Officer and a Member) can be more fairly distributed.

14.Mr Lee has taken other minor points in the course of his argument.  Suffice for me to say that I have considered them all and I do not think they would tip the scale.  For example, he suggests that given the prevailing low interest rate environment his clients prefer to receive the compensation as soon as possible so that they may invest the money to earn a better return.  In my view, it would be easier for the parties to prepare one case for trial and for the court to find a timeslot for a 4-day trial.  This is contrasted with the monstrous task of preparing for an 11-day trial involving 5 cases. 

15.For these reasons, I am not persuaded by the applicants to order consolidation and their summonses are dismissed.  I shall leave it to the parties to discuss and suggest which case should come on for trial first and what consequential directions (such as filing of evidence) are necessary.  They should report back jointly within the next 28 days.  Once they have decided which case should go first, I shall then stay the other cases pending the trial of the first case.

16.I see these consolidation applications as a case management initiative and order the costs of and incidental to these applications to be in the respective cause of each case with certificate for counsel.  To facilitate taxation in future (if any), the costs of today’s hearing shall be split equally amongst the cases.

Mr Lester Lee, instructed by Cheung, Chan & Chung, for the applicants

Mr Ho Chi Sum, SGC, for the Department of Justice, for the respondent