United Bright Ltd v. Secretary for Justice

CACV 211/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 211 OF 2012

(ON APPEAL FROM HCMP NO. 382 OF 2011)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.By a Notice of Motion of 14 April 2015, the Plaintiff seeks leave to appeal against our judgment of 18 March 2015 to the Court of Final Appeal. Directions were given for the paper disposal of the Motion, including directions for the filing of written submissions. Written submissions were filed accordingly and we have read the same.

2.In the Notice of Motion, and also in the written submissions lodged on behalf of the Plaintiff, the Plaintiff accepted our conclusions on the DDH clause.  What it wishes to appeal against is what it perceives to be our conclusion on the 2-Storey Height Restriction.   Mr Yu SC suggested that we implicitly held that the 2-Storey Height Restriction had not been abrogated by the Modification Letter. 

3.As submitted by Mr Fung SC for the Defendant, this is a misreading of our judgment.  At paragraph 14 of our judgment, we said:

“ The letter did not specifically address any modification of height restriction. However, under para (b), it was provided that the buildings (which could be blocks of flats) of 3, 4 or 5 storeys must comply with certain coverage limitations. Thus, by implication, the modification must have released the 2-storey height restriction as far as buildings of 3, 4 or 5 storeys were concerned. But there was no provision for any general release as to the requirement for the approval of the Director in respect of DDH.”

4.The 2-Storey Height Restriction was at the end of Special Condition 6:

“ (6) The design of the exterior elevations and the disposition and height of any building to be erected on the lot shall be subject to the special approval of the Director of Public Works and in no case may any building to be erected on the lot exceed 2 storeys.”

5.It should be clear from what we said at paragraph 14 that our conclusion was that the 2-Storey Height Restriction had been abrogated by the Letter of Modification. With respect to Mr Yu, we cannot understand how in light of this clear statement one can derive a conclusion based on what we said in other paragraphs of the judgment that we implicitly held that the 2-Storey Height Restriction had not been abrogated. 

6.Whether the abrogation of the 2-Storey Height Restriction without the abrogation of the DDH Clause would have any legal significance in terms of the premium that the Government may extract for further variation was not a question before us and we did not hear any submissions on the same.

7.In the circumstances, irrespective of the merit of the framed question as set out in the Motion and its great general public importance, we do not think this is a proper case for leave to be granted.

8.We shall dismiss the Motion with costs.  Having considered the statement of costs of the Defendant, we fix the costs at $100,540.

Mr Benjamin Yu SC and Mr Justin Lam, instructed by Kao, Lee & Yip, for the plaintiff

Mr Eugene Fung SC and Mr Abraham Chan, instructed by Department of Justice, for the defendant