Wisdom Gaining Ltd v. Wisdom Light Industrial Ltd and Others

LDCS 23000/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE APPLICATION NO. 23000 OF 2012

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BETWEEN

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DECISION

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1.On 3 June 2014, we handed down our judgment in this case (“the Judgment”) granting the applicant’s application that all the undivided shares in the land the subject of the application (“the Lot”) be sold for purposes of redevelopment.

2.This is the 1^st respondent’s application for leave to appeal against our judgment.  The application is opposed by the applicant.  The 3^rd respondent has elected not to take part in this hearing.

The Law

3.It is common ground that an aggrieved party may only appeal against a judgment of the Lands Tribunal to the Court of Appeal on the ground that the judgment is erroneous in point of law (see section 11(2) of the Lands Tribunal Ordinance), and leave will only be granted if the court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard (see section 11AA(6) of the Lands Tribunal Ordinance).

4.Therefore, the focus of the present application should be on whether we have erred in law in the Judgment.

Discussion

5.The 1^st respondent has attached a draft Notice of Appeal to its summons setting out its proposed grounds of appeal.  There are two main grounds and each is sub-divided into finer grounds.  All the grounds relate to section 4(2)(b) of the Land (Compulsory Sale for Redevelopment) Ordinance (“the Ordinance”). 

6.At the trial, the 1^st respondent disputed whether the applicant had taken reasonable steps to acquire all the undivided shares in the Lot.  The 1^st respondent’s objections have been set out in §87(a) of the Judgment, and we dealt with the objections (together with the 3^rd respondent’s objections) in §§81 – 119 of the Judgment.  Notwithstanding the objections, we concluded that reasonable steps had been taken by the applicant to acquire all the undivided shares in the Lot.

Ground 1

7.In Ground 1 of the proposed grounds of appeal, it is said that in coming to our conclusion we have erred in:

(i) failing to distinguish between pre-application and post‑application offers;

(ii) taking into account the post-application offers; and

(iii) shifting the burden of proof onto the respondents.

8.In her submission, Ms Siu (for the 1^st respondent) criticises us for ignoring her submission at trial that we should look at parliamentary material in construing section 4(2)(b).  In §93 of the Judgment, we cited the Court of Final Appeal authority of Syed Hussain to explain that there must be ambiguity in the legislation before we can turn to parliamentary material for the purpose of ascertaining the intention of the Legislature.  Notwithstanding her submission today, she has still not identified any ambiguity.

9.At the trial, Ms Siu attempted to argue, with reference to the timing of the section 3(1) report, that we should disregard all post‑application offers.  We look at the issue as a matter of statutory construction following Good Faith and rejected the argument (see §§91 – 96 of the Judgment).

10.Today, Ms Siu criticises us for failing to consider the “credibility” of Mr Chan’s RDV report dated 16 January 2012 in the light of the 1^st respondent’s objections at trial, and for allowing the applicant to rely on that report in the section 4(2)(b) exercise without giving adequate reasons.

11.With respect, we think Ms Siu is misconceived.  Given our ruling that we should not confine ourselves to pre‑application offers, we retraced and examined all the offers made by the applicant in §§81 – 82 and §§99 – 119 of the Judgment.  The purpose of the applicant in referring to Mr Chan’s RDV report dated 16 January 2012 at trial was to recount the historical fact that it had based its pre-application offers on the RDV valuation contained in that report.  We specifically dealt with Ms Siu’s technical objection in relation to that report in §§109 – 111 of the Judgment, but we refused to entertain her challenges on the valuation contained in the report for her approach was inconsistent with the Court of Final Appeal authority of Capital Well (see §§97 – 99, 112 – 113 and 117 of the Judgment).  We did say in passing that it had been reasonable for the applicant to rely on Mr Chan’s RDV report dated 16 January 2012 in formulating its pre‑application offers and we explained ourselves fully in §§106 – 113 of the Judgment.

12.It seems that Ms Siu is still confining herself to the pre‑application offers today.  In so doing, she has not addressed the more fundamental question of how we have erred in law in taking all the offers into consideration and, most important of all, in our ruling that the latest offers of the applicant fall within the range of what may broadly be regarded as fair and reasonable compensation (see §§118 – 119 of the Judgment).

Ground 2

13.In Ground 2 of the proposed grounds of appeal, the 1^st respondent invites the Court of Appeal to give guidance for the purposes of section 4(2)(b):

(i) respecting the matters to be taken into account;

(ii) on whether such statutory duty extends beyond the commencement of the proceedings; and

(iii) on burden of proof.

Ms Siu submits that the questions posed are of great and general public importance and should be decided by the Court of Appeal in the interests of justice.

14.The fact that the Ordinance may be relatively new does not mean that it is “incomplete” or that it contains “lacuna” as submitted by Ms Siu.  The fact that the Secretary for Development has so far not made regulations under section 12(1)(b) of the Ordinance does not mean that the Court of Appeal should take it upon itself to “fill the vacuum left by the Legislature” (to use Ms Siu’s words).

15.The Court of Final Appeal has already given guidance on the section 4(2)(b) exercise in Capital Well, and we have applied them to this case.  Such guidance may not have advanced the 1^st respondent’s argument, but that is no reason to trouble the Court of Appeal for another set of guidance.  The more pertinent question is still whether we have erred in law in the Judgment.

16.In particular, we do not agree that the Court of Appeal should be asked to prescribe “a cut-off date” to exclude all post‑application offers when that requirement is not apparent from the legislation.  As we have explained in the Judgment and above, that course is not open as a matter of statutory interpretation.  Today, Ms Siu is still trying to argue with reference to extrinsic materials (eg LegCo deliberations and quotations from Dr Cruden’s book) that the Ordinance is ambiguous.  For us, that is where the fallacy of her argument lies.  She is not looking at the natural and ordinary meaning of the words used in the Ordinance.  As we have said in §96 of the Judgment, neither the context nor the purpose of the Ordinance require us to construe the words used in the way advocated by her.  Reference should be made to the Court of Final Appeal decision in Cheung Kwun Yin[1] at §§11 – 14 on the principles of statutory interpretation.

17.Lastly, we should point out that Ms Siu has read our judgment out-of-context in §§26 – 27 of her written submission.  In this case, the applicant has substantiated its EUV and RDV valuations by expert evidence. We did not rubber-stamp the applicant’s application (as Ms Siu agreed) just because the applicant had made offers based on the factual opinion rendered by leading professional surveyors.  We heard and determined the disputes raised by the respondents in accordance with section 4 of the Ordinance.  More particularly, we dealt with the disputes on EUV and RDV valuations in §§41 – 69 and 120 – 138 of the Judgment respectively, and we explained with calculation in §118 of the Judgment why we decided that reasonable steps had been taken by the applicant in relation to the 1^st respondent.  Our decision was not “subjective and arbitrary” as Ms Siu would have it.

18.For the above reasons, we are not persuaded that we have erred in point of law in the Judgment.  There is no reasonable prospect of success in the proposed appeal and we do not believe there is any other reason why the appeal should be heard by the Court of Appeal in the interests of justice. There is also no basis to stay the execution of the Judgment.

19.The 1^st respondent’s summons is dismissed with costs to the applicant to be taxed on the District Court scale if not agreed and with certificate for counsel.

(Submissions on interim stay of execution)

20.Having heard the arguments, we refuse to grant interim stay of execution.  As we have said in our main decision today, we are not persuaded that we have erred in point of law in the Judgment.  There is no reasonable prospect of success in the proposed appeal, and we do not believe that there is any other reason why the appeal should be heard by the Court of Appeal in the interests of justice.  There is simply no basis to grant interim stay even for the purpose of lodging the application for leave to appeal to the Court of Appeal and even on the basis that the 1^st respondent is prepared to put up security for costs and other attending expenses for the stay.  We therefore reject the application.

Mr C Y Li, Senior Counsel, instructed by Iu, Lai & Li, for the applicant.

Ms Jo Siu, instructed by Lui & Law, for the 1st respondent.

Attendance of the 3^rd respondent be excused.