The Commissioner of Rating & Valuation v. Chan Ho Chin, Colin

LDMR000048B/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS REFERENCES APPLICATION

Application No. LDMR 48 of 2000

_________________

	The Commissioner of Rating & Valuation	Applicant
	AND
	CHAN Ho-chin, Colin	Respondent

Coram: H.H. Judge LAM

Date of Hearing: 27 July 2001

Date of Ruling: 27 July 2001

___________________

RULING ON COSTS

___________________

1. In my judgment dated 26 June 2001, I make an order nisi for costs that the respondent should bear the applicant's costs of this application.

2. By a summons dated 7 July 2001, the respondent applied for such costs order nisi to be varied. In the summons, the respondent asked for the following relief:

"(1) the respondent should bear the applicant's costs of this application and the costs order nisi be varied as follows:

(a) the costs of and incidental to the preliminary issue of whether or not the failure of the respondent to commence work on the date given in the possession order constitutes a strict liability offence and that attracts the penalty being applied for automatically should be borne by the applicant and paid to the respondent by the applicant;

(b) subject to aforesaid, respondent should bear the applicant's costs of this application; and

(c) costs to be taxed in accordance with the scale of costs set out in the schedules to Order 62 Rules of District Court if not agreed; and

(2) alternatively, the respondent shall bear the applicant's costs to such extent in percentage or manner as the tribunal thinks just and equitable."

3. The so-called preliminary issue referred to in the summons arose in this manner. At a hearing on 7 March 2001, before Deputy Judge Tong, there were arguments before the learned judge as to whether it was necessary to have a site visit. That was proposed by the respondent and, in response to that, the applicant submitted that whether there would be a penalty is a matter of strict liability offence, therefore it is not necessary for the tribunal to have a site visit.

4. There was no formal application for trial of preliminary issue before Deputy Judge Tong. However, in the light of those submissions, Deputy Judge Tong ordered, on 7 March 2001, inter alia, that

"Preliminary argument will be held on

(a) whether or not the failure of the respondent to commence work on the date given in the possession order constitutes a strict liability offence and will attract the penalty being applied for automatically, and

(b) whether or not site visit is to be carried out will be a matter for the trial judge."

5. With regard to that order, since there has not been any formal application for trial of preliminary issue, my own construction is that it was only, at the most, a direction that the issue of strict liability, if I may so call it, could be argued at the beginning of the hearing. There was, in fact, no separate hearing for trial of preliminary issue in this case.

6. When the matter came before me on the first day of the hearing, that was 18 June 2001, both parties cited the case of Sonic Development Limited, [1999] 2 HKLRD 477 decided by His Honour Judge Yung, in which the tribunal held that, in the exercise of the discretion under section 55A(5)(b), the tribunal will have regard to the circumstances of the case. Further, in the light of the fact that the section used the word "may", this clearly is a matter of discretion and the tribunal must have regard to all the circumstances.

7. In the light of all these, both parties agreed that the tribunal has to consider the evidence and the point about strict liability was not argued as a preliminary point. Rather, the points which the parties relied upon were argued after the close of the evidence by way of closing submissions; and a site visit did take place on the second day of the hearing. I have already explained in detail the reasons for my decision in my judgment dated 26 June 2001 in this matter and I would not repeat the same again.

8. It is right, as submitted by Miss Ho who appeared today on behalf of the respondent, that, in that judgment, I did not hold that the applicant succeed on each and every point they raised; there were points which were raised which I rejected. However, the question is whether, just because of that, I should order costs in the proceedings be apportioned in the manner as suggested by the respondent in their summons dated 7 July 2001.

9. I was referred to the case of Funco Limited v. Secretary for Justice HCAL 106/1999, a decision by Hartmann J on 19 July 2001. In that decision, Hartmann J applied the principles set out by the English Court of Appeal in the case of Re: Elgin Data (No. 2) [1993] 1 All ER 232. The principles as set out by Norse LJ at page 237 are as follows:

"The principles are these:

(1) costs are in the discretion of the court;

(2) they should follow the event, except when it appears to the court that in the circumstances of the case some other orders should be made;

(3) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs.

(4) where improperly or unreasonably, the court may not only deprive him of his costs but order him to pay the whole or a part or the unsuccessful party's costs".

10. Miss Ho submitted, on behalf of the respondent, that this is a case which falls within paragraph 3 and 4 of those principles. She submitted that there has been an increase -- or, rather, a significant increase in the cost of the proceedings because of the strict liability point raised by the applicant and, at the end of the day, they failed on that point. Although Miss Ho said she relied on paragraph 4, she did not elaborate on why she said that that issue was raised improperly or unreasonably, although she did submit to me that the section or the wording of the relevant section in this case is clear.

11. As I said during the course of the argument, the test is not whether this point was raised as preliminary issue. In fact, if one examines the course of the proceedings carefully, one would see that this point was not formally raised as a preliminary issue and has not been dealt with as a preliminary issue. There hasn't been any formal application for trial of preliminary issue and there hasn't been any separate hearing for preliminary issue. It was just a point raised by the applicant with a view to short-circuit the need for a site visit. But, at the end, as explained by me, both parties accepted that there would be a site visit.

12. Coming back to the test as set out in Elgin Data (No. 2), on the first limb, that is, paragraph 3 in that dicta, I have asked myself whether this strict liability issue has caused a significant increase in the length or cost of the proceedings. In my judgment, the answer is no.

13. Miss Ho said that the respondent had spent quite a number of hours in preparation on this point but that does not lie comfortably with her submission that, in fact, the wording of the section is clear. Furthermore, one has to bear in mind that it is not just an increase in the costs incurred which would be sufficient to satisfy this requirement. What is required is that there should be a significant increase because, otherwise, this exception would apply to almost every case where the successful party fails on some of the issues. Inevitably, there would be time and cost spent on those issues by both sides. If the court is to accept any increase as suffice to trigger this exception, this would no longer be an exception; rather, it would become the general rule.

14. So, before the court start to exercise a discretion by following this principle, there must be a significant increase in the length or cost of the proceedings. Applying that to the present case, I do not regard the raising of this point about strict liability as contributing significantly to the cost of the proceedings. Therefore, the respondent cannot rely on paragraph 3 in that dicta to ask for a departure from the general rule.

15. As to paragraph 4, as I have said, the respondent has not elaborated during the course of argument as to why it was submitted that the points were raised improperly or unreasonably. The fact that the section is clear is neither here nor there.

16. I am not prepared to say that the applicant raised this allegation improperly or unreasonably, bearing in mind that there is very few case law on this subject at the time of the hearing. I do hope that my judgment in this case will elucidate some of the issues regarding the application of that section. However, with regard to the present application, I hold that the respondent did not successfully make out a case that the applicant had raised this issue improperly or unreasonably.

17. In the circumstances, I would dismiss the application of the respondent in their summons of 7 July 2001 and my order nisi would become absolute with regard to costs.

	H.H. Judge LAM
	Presiding Officer
	Lands Tribunal

Representation:

Mr. HO Chi-sum, S.G.C. for the Secretary for Justice, for the Applicant

Ms Esther HO of M/S Wong, Hui & Co., for the Respondent

LDMR000048A/2000

HEADNOTE

Section 53A(5)(b) Landlord & Tenant (Consolidation) Ordinance - penalty for failure to comply with conditions for possession - duty of applicant asking for possession on the ground of rebuilding to supply accurate information to the Tribunal - conflict between Chinese version and English version of the section - implication of variation of conditions regarding penalty proceedings - inexcusable conducts.

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No. LDMR 48 of 2000

_________________

	The Commissioner of Rating & Valuation	Applicant
	AND
	CHAN Ho-chin, Colin	Respondent

Coram: H.H. Judge LAM

Dates of Hearing: 18 June 2001 & 19 June 2001

Date of Judgment: 26 June 2001

___________________

J U D G M E N T

___________________

1. On 28th June 1999, Judge Chow granted an order in Lands Tribunal LT 2723 to 2726 of 1996 giving Chan Ho Chin possession of Lot No.692 in Survey District No. 3 also known as No.79 Hoi Pong Road East, Lei Yue Mun ["the Site"] on the ground of rebuilding. Paragraph 2 of that order stipulated that the rebuilding work (including any demolition that is required) had to be commenced on 1st November 1999 and completed by 1st November 2000. These conditions were imposed pursuant to Section 53A (2) of the Landlord and Tenant (Consolidation) Ordinance Cap.7.

2. The Commissioner of Rating and Valuation monitored compliance with those conditions. During an inspection by Mr.Wai, an officer of the Rating and Valuation Department, on 2nd May 2000, he discovered that although the tenants had vacated from the premises and electric meters had been removed, demolition works had not been commenced. Photos were taken. The Commissioner therefore commenced the present proceedings seeking penalty pursuant to Section 53A(5)(b) of the Ordinance.

The relevant legislation: the two versions

3. Section 53A(5)(b) provides as follows,

"Where there is a breach of a condition imposed under paragraph (b) of subsection (2), the Tribunal may, on the application of the Commissioner,-

(i) where the applicant for an order for possession holds the premises under a Government lease or other tenancy from the Government, decree such breach to be a breach of covenant in the Government lease or of a condition or stipulation in the tenancy and a right of re-entry under the Government Rights (Re-entry and Vesting Remedies) Ordinance (Cap 126) shall accrue to the Government; or (Amended 29 of 1998 s. 5)

(ii) in any case, impose a penalty not exceeding the market value of the premises at the time of the imposition of the penalty."

4. There is a difference in the Chinese version of Section 53A(5)(b)(ii), the subsection reads as follows,

(b) 凡有違反根據第(2)款(b)段所施加的條件，則應署長申請，審裁處可─

(i) (如申請收回管有的命令的申請人根據政府租契或其他從政府取得的租賃而持有處所)判令該項違反屬違反政府租契契諾或違反租賃條件或規定，而《政府土地權(重收及轉歸補救)條例》(第126章)所賦予政府的重收權即產生；或 (由1998年第29號第5條修訂)

(ii) (如屬其他情況)判處罰款，但不得超過處所在判處罰款時的市值。

5. Instead of "in any case", the literal translation of the Chinese expression "(如屬其他情況)" should be "in any other case". I have brought this up at the hearing. Both parties submitted that I should apply the English version.

6. This section was enacted in English in 1981 (see Section 37 of Ordinance No.76 of 1981). The Chinese version was apparently introduced later pursuant to Section 4B of the Official Language Ordinance Cap.5.

7. Section 10B of the Interpretation and General Clauses Ordinance Cap.1 is relevant.

"10B. Construction of Ordinances in both official languages

(1) The English language text and the Chinese language text of an Ordinance shall be equally authentic, and the Ordinance shall be construed accordingly.

(2) The provisions of an Ordinance are presumed to have the same meaning in each authentic text.

(3) Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted."

8. In the present case, the difference between the two versions could not be reconciled.

9. Cheung J. faced a similar problem in the context of the Estate Duty Ordinance in the case of Chan Fun Lan v. Lai Wai Chuen, HCMP No.4210 of 1996 . His approach was set out in his judgment,

"It is not possible to reconcile the two texts. The solution does not lie in giving effect to a text which favours one party as in the recent criminal case of R. v. Tam Yuk Ha (Mag. App. No. 9330/1996). This is not a workable approach because ambiguities of the two texts do not arise solely in criminal cases but in civil matters as well where there are two or more litigants. When the Court comes to the view that the authenticated Chinese text contains inaccuracies then it should not give effect to that text but should instead rely on the original legislation. This approach is justified because under s.4B of the Official Languages Ordinance where the Governor-in-Council has declared a text to be an authenticated text of an ordinance and it appears to him that there is any manifest error, omission or inaccuracy in that text, he may by order in the gazette correct that error and any such correction shall be deemed to have been incorporated in the text at the time when it was declared to be the authenticated text. One must bear in mind that the authenticated Chinese text started life simply as a translation of the original legislation and if there are errors in the translation, which are bound to arise in such a mammoth undertaking, such errors should not be given effect simply because under s.10B of the Interpretation Ordinance the two texts are said to be equally authentic."

10. I respectfully adopt the same approach, which is consistent with the submissions of the parties.

The case of the Respondent

11. Ms Esther Ho who appeared for the Respondent in the present proceedings admitted on behalf of the Respondent that actual demolition works had not been commenced on 1st November 1999. In an affirmation made by the Respondent filed in the Lands Tribunal LT Nos. 2723 to 2726 of 1996 on 27th June 2000 in support of an ex parte application for variation of the order of Judge Chow, he said in Paragraph 8 thereof that the demolition works were commenced in early June 2000.

12. The Respondent's case is that the delay in commencement of demolition works was mainly due to the difficulty in transportation of material to and from the Site. I should also mention that although Paragraph 4 of the order of Judge Chow of 28th June 1999 allowed the tenants to stay at the premises until 31st October 1999, two of them overstayed. Vacant possession of all the premises on the Site was only given to the Respondent on 3rd November 1999. Hence, the Respondent could not be expected to commence works on 1st November 1999.

13. On the authority of Secretary for Justice v. Sonics Development [1999] 2 HKLRD 477, Ms Ho submitted that the delay was excusable and the Respondent should not be penalized. She further submitted that the Lands Tribunal has in fact accepted the explanation of the Respondent because on 28th June 2000, Judge Chow granted an order on the ex parte application of the Respondent to extend the time for completing the rebuilding works to 1st June 2002.

The case of the Applicant

14. Mr.Ho Chi-sum, who appeared for the Commissioner, argued that once there was a breach of condition, the Tribunal must impose a penalty although the level of penalty would be a matter for the Tribunal in the exercise of its discretion. It could be nominal in a minor case.

15. On the facts of the present case, he submitted that the delay by the Respondent was inexcusable. The Respondent was aware of the transportation problem for some time even before he obtained the first order from Judge Chow.

16. With regard to the variation by Judge Chow, since it was made ex parte, the Commissioner was not given notice as to the same and Mr.Ho submitted that the variation did not bar the Tribunal from imposing a penalty. He drew an analogy with the extraction of premium by the Government when extending the time to a Government lessee to comply with a building covenant.

17. On the level of penalty, Mr.Ho submitted that it had to be set by reference to the market value of the Site. Based on the valuation report prepared by Ms Anita Ng which was admitted as evidence by agreement, the current market value of the Site on 2nd May 2001 was $551,000 on a vacant possession basis and $448,000 on an existing tenancy basis. He submitted that a figure in between the two was an appropriate penalty on the facts of this case.

My ruling on the law

18. In my judgment, the section clearly confers a discretion on the Lands Tribunal by the use of the word "may". This means that depending on the facts of the case before it, the Tribunal could decide whether to impose a penalty or not. I reject Mr.Ho's submission that the Tribunal only has a discretion in regard to the level of penalty but not in regard to a decision on whether to impose penalty. That clearly cannot be right.

19. Take the facts of the present case, the Respondent did not obtain vacant possession until 3rd November 1999. If that was the only delay, I cannot see any justification for the imposition of a penalty. Yet, according to Mr.Ho, the Tribunal would have no discretion and have to impose a penalty, although it could be a nominal one. I cannot accept that to be the intention of the legislature. I hold that in an appropriate case, the Tribunal can exercise its discretion by not imposing any penalty.

20. My conclusion is reinforced by reading subsection (5)(b) as a whole. It has to be remembered that the word "may" governs Section 53A(5)(b)(i) as well. The consequence for breach of condition under that limb is indeed very drastic: a right of re-entry being accrued to the Government. If Mr.Ho's construction of the word "may" is correct, the Tribunal will have no discretion in the matter but must decree accordingly. That again cannot be the intention of the legislature.

21. Turning to the case of Secretary for Justice v. Sonics Development [1999] 2 HKLRD 477, whilst it is correct that the facts of that case were different, I see no reason why the approach proposed by Deputy Judge Yung (as he then was) at p.479 D to F cannot be of general application,

"...the proper approach should be to take an overall view of the progress of the redevelopment ... If the delay is excusable, no penalty should be imposed."

22. Mr.Ho referred me to the dicta of Deputy Judge Yung at p.479A,

"However I cannot accept the submission that simply because the respondent is not at fault, it should not be punished. The purpose and intent of the penalty section would be defeated if the submission is right. A delinquent developer can easily avoid any penalty by selling the land to an innocent party or even to another company under its control."

In that passage, Deputy Judge Yung was dealing with the liability of an innocent successor (the respondent in the case before him) with regard to the delay on the part of its predecessor. I do not think the learned judge intended to hold that even when the whole period of delay was excusable, penalty should still be imposed. This is indeed obvious from the passages I cited in Paragraph 21 above.

23. Mr.Ho also cited the case of R. v. St. Margaret's Trust Ltd. [1958] 2 All ER 289. That was a case on the Hire Purchase and Credit Sale Agreements (Control) Order 1956. The context is entirely different from the one I have to deal with. I do not derive any assistance from that case.

24. In respect of the implication of the variation granted by Judge Chow in June 2000, Ms Ho agreed that it would not bar me from considering the merit of this application. However, she said it was a relevant matter which I should take into account.

25. It is indeed puzzling that the Respondent (or his solicitors) did not see fit to apply for variation as to the commencement date as well. At the time of the ex parte application, he was aware that works were not commenced in accordance with the original order. Ms Ho could not give me any explanation since the solicitor in her firm who handled the ex parte application had left the firm. Perhaps they thought that the completion deadline was more important and it would be sufficient to obtain a variation as to the completion date.

26. The variation was made pursuant to Section 11A of the Lands Tribunal Ordinance. Section 53A(2A) of the Landlord and Tenant (Consolidation) Ordinance provided that the usual one month's time limit for review shall not apply to the review in respect of the conditions imposed by the Lands Tribunal as to rebuilding other than in relation to payment of compensation. It means that there is no time limit for review. It was therefore open to the Respondent to apply for variation of the condition as to date of commencement of demolition works.

27. An application for variation for these conditions is normally made ex parte. The Commissioner is not notified and Mr.Ho also said that the Commissioner has no locus to appear. This is unsatisfactory. The Tribunal cannot monitor the progress of the rebuilding works by itself. The task was entrusted by the legislature to the Commissioner. The Commissioner could provide the Tribunal with relevant information in an application for variation. Of course, he could not do so if he was not notified of such application. This is perhaps an area which further thoughts should be given to in the future.

28. Bearing in mind that Judge Chow granted the extension of time for the completion of the rebuilding works, I am of the view that on the facts of this case, if an application for extension of the time for commencement of works has been made at the same time, such application would also be granted. I do not think it makes much difference (apart from possible implications on liability for costs of penalty proceedings) whether an extension for commencement of works was actually obtained.

29. However, the grant of such extension does not necessarily mean that the Tribunal must exercise its discretion by not imposing any penalty. Although whether the delay is excusable is a relevant factor in both applications, different considerations are involved. The penalty provision is for the punishment for conducts in the past. On the other hand, in the exercise of the power of review, the Tribunal is more concerned with the future, viz. when could the building be completed to satisfy the social purpose behind the legislative provisions as to rebuilding. I therefore hold that although the variation granted by Judge Chow is a relevant factor, it is not conclusive in my exercise of discretion under Section 53A(5)(b)(ii).

Whether the delay was excusable?

30. I now turn to the crucial question in the present case, viz. whether the conducts of the Respondent was excusable.

31. The Site is located at the northern side of Hoi Pong Road East, Lei Yue Mun. The vicinity is mainly occupied by village type houses and seafood restaurants. At the request of the Respondent, I have made a site visit in the morning of 19th June 2001 to familiarize myself with the accessibility to the site. I was told by a witness Mr.Shing (RW3) that in that aspect the situation has not been changed materially since 1999.

32. Hoi Pong Road East is a footpath. It is like the footpaths one find in fishing villages like Cheung Chau or Stanley. The footpath is quite narrow. Its width is about 2 metres. Vehicular traffic does not have any access. The nearest public road is Lei Yue Mun Path. At the end of that road, there is a small road with restricted accessibility to vehicles called Lei Yue Mun Prayer Road. On the day of site visit, we alighted from our vehicle at the end of that restricted road.

33. After that, it took about 10 to 15 minutes to walk along the footpath to reach the site. There were seafood restaurants along both sides of the footpath and fish tanks were placed outside some seafood stalls. It is obvious that it would not be possible for heavy machinery to be transported to the Site through this footpath. I also accept that it would be difficult to transport the debris from the demolition works by means of this footpath. There would certainly be strong objection from the operators of the seafood restaurants. Hence, land transport was infeasible.

34. Because of this problem, the Respondent's agent Mr.Shing could not find a contractor who was willing to undertake the job. According to the evidence of Mr.Shing, he started to contact contractors for the job in about mid-1999. Some contractors did not even bother to inspect the Site. In about November 1999, a Mr.Yip (RW2) was contacted and at first he explored the possibility of using some smaller machinery which he called "Cat" for transportation and removal of debris by means of the footpath. He brought along an operator of such machinery to inspect the Site and concluded that it was infeasible.

35. He then considered the option of sea transport. The Site was in fact at the water front. Before the Chinese New Year of 2000, he found a barge operator Mr.Leung who agreed to explore the possibility with him. Afterwards, it was found out that the depth of the sea along that stretch of water front presented a problem. One has to wait for high tide (and that occurred several days within a month) to permit the barge to anchor at a suitable place.

36. At the end, sea transportation was adopted. Yip said demolition works were commenced in March 2000. Initially, the works were carried out manually without any machinery. It progressed slowly and was halted after a while. Arrangement was made for a bulldozer to be transported to the Site by sea. The demolition works were completed in about August or September 2000.

37. From the photos taken by Mr.Wai on 2nd May 2000, very little (if any) had been done at the Site up to that date. In contrast, the photos taken on 26th June 2000 clearly showed that demolition works were in progress.

38. On the evidence before me, I find that actual demolition works were commenced in early June 2000. Works done at the Site prior to that date cannot be regarded as demolition works. Mr. Yip said some furniture and miscellaneous items were removed. They could only be regarded as preparatory works at the most. They were not construction works. Mr. Yip also mentioned removal of roof of the buildings. This is inconsistent with the photos taken by Mr. Wai and I do not accept such evidence.

39. There was also some delay caused by the fact that there was electrical wiring at the Site which supplied electricity to the neighbourhood. The Respondent wrote to CLP Power on 18th February 2000 and works were completed by CLP Power on 8th June 2000.

40. Whilst the delay could be accounted for, I am of the view that the Respondent was still at fault. Even taking the transportation and other problems into account, I find that the Respondent was dilatory in handling the matter. In my judgment, all these problems should have been known to the Respondent before he applied to the Lands Tribunal for an order for possession. In fact, the Respondent admitted in his testimony before me that he was aware of the problem as to transportation in early 1999. What he said he was unaware was that no contractor would take up the job. With proper planning, all these matters should have been taken care of with solutions at hand before application for possession was heard. These were not unforeseen problems. The Respondent simply did not find any solutions to the problems before he obtained the order for possession.

41. Before he obtained the order in June 1999, he seemed to leave everything to others and did not care very much as to how he could comply with the conditions to be imposed by the Tribunal. This is not a proper attitude. After the order was made, he again left the matter to Mr.Shing. He certainly could and should have done more to speed things up. He was legally represented and the implications as to the conditions to be imposed by the Lands Tribunal should have been explained to him both before and after the order was made. He should have presented to the Tribunal accurate and realistic information as to the commencement date of demolition works and completion date of construction work. The Tribunal relied on such information to set the conditions.

42. I do not for one moment accept that the Respondent has discharged his duty just by informing the Tribunal an estimate of the usual time required for construction of a typical village house without regard to the special circumstances of the case. Yet this is what the Respondent has done in this case. The Respondent submitted to the Tribunal at the hearing in June 1999 a letter dated 8th June 1994 prepared by an authorized person which stated that the construction period was only six months. This is misleading to say the least.

43. As I said, the Tribunal relied on the information provided by the Respondent to consider whether he was ready willing and able to carry out rebuilding works and if so what conditions should be imposed. The Tribunal has to ensure that tenants are not evicted from their homes prematurely. In the present case, the tenants had to vacate from their premises by 1st November 1999 whilst the Respondent was actually not ready to carry out demolition work until early June 2000. If the Respondent told the Tribunal in June 1999 that he still did not have a solution as to the transportation problem, the Tribunal may consider adjourning the matter until a solution could be offered.

44. Applying the approach of Deputy Judge Yung, looking at the overall progress of the redevelopment project, I find the conducts of the Respondent to be inexcusable. In this connection, I hold that it is relevant for the Tribunal to take into account of the conducts of the Respondent both before as well as after he obtained the order for possession.

The penalty

45. In the circumstances of this case, I decide to impose a penalty on the Respondent. I do not accept Mr. Ho's submission that an appropriate level of penalty is in between the two market values. The market value only set the maxima. The Tribunal must impose a penalty by reference to all relevant factors in the case before it. In the present case, the redevelopment project is a small one, the fault of the Respondent lies more in his failure to inform the Tribunal fully the relevant matters when he obtained the order for possession than in the delay after the order was made. This is not a case where the Respondent deliberately held up the rebuilding works and denied benefit therefrom. I also bear in mind that Judge Chow has varied the original order to extend the time for completion of building works to 1st June 2002. In my judgment, the appropriate penalty in this case is $20,000. I would also make an order nisi that the Respondent should bear the Applicant's costs of this application.

	(H.H. Judge LAM)
	Presiding Officer
	Lands Tribunal

Representation:

Mr. HO Chi-sum, Senior Government Counsel of the Secretary for Justice, for the Applicant

Ms. Esther HO of M/S Wong, Hui & Co., for the Respondent

LDMR000048/2000

LDMR 48/2000

香港特別行政區土地審裁處

申請編號LDMR 2000年第48宗

 

	The Commissioner of Rating & Valuation	申請人
	訴
	CHAN Ho Chin, Colin	答辯人

 

主審法官：周兆熊法官

宣判日期：2001年1月8日

 

______________

判 決 書

______________

 

1. 申請人的申請是要求土地審裁處根據土地審裁處條例（“條例”）第13條下令答辯人提供關於反對通知書內容更詳盡清楚的詳情。

2. 條例第13條有以下的規定：

“（1）審裁處可應任何一方的申請或主動要求就已向司法常務官提交的任何文件或已根據本條例第10(2)(a)條被下令須予披露的任何文件，提供更詳盡清楚的詳情。

（2）根據第（1）款提出的申請，須首先以書面提出，而該申請書的副本須送達另一方或其他各方。

（3）...............

（4）...............。”

3. 申請人要求的詳情，是基於反對通知書內所提述的下列陳述：

"(1) The agent, an experience expert in construction field engaged by the Respondent in handling the demolition work, informed the Respondent that owing to the peculiar geographic location of the site, the demolition work could not be proceeded like normal circumstances."

"(2) Eventually, the transportation of machineries and wastes was solved by engaging a freighter to handle the work,"

4. 與訟雙方告之本席雙方已作出符合第13條第（2）款的規定。

基於第（1）項陳述提供詳情申請的裁決

(a) Identify the agent by reference to his/he name, professional address and qualification; and the nature and period of experience he/she obtained in the profession.

5. 答辯人同意提供代理人的姓名、地址及資歷的詳情，但不同意提供其餘的詳情。

6. 申請人要求答辯人提供 "experience expert" 在該專業所獲得的 "nature and period of experience" 。

7. 本席需要考慮這要求與本案是否有關連；上述的要求，只不過是証明他是否專家，或他是否具有有關經驗的專家，以確定他向答辯人提出的意見（反對通知書第1(b)段）是否恰當。

8. 答辯人只須陳述上述的意見是由專家提出的，那便足夠；他無須在反對通知書內述明該專家所具有的經驗的性質及期間，這方面的資料是屬於証據方面的範圍。

9. 本案的重點在於答辯人沒有在指定日期（即1999年11月1日）展開重建工程（包括所需的任何拆卸工程）的事實是否有恰當的理由；就此點而言，專家具有經驗的性質及得到該經驗的期間是枝節的問題。

10. 申請人要求的，是 "experience he/she obtained in the profession"，而申請人所指的 "profession" 是 "construction field" 的經驗。整個反對通知書的重點是在於答辯人陳述與本案地盤有關的 "demolition work" 對重建工程產生的困難，而該專家說 "owing to the peculiar geographical location of the site, the demolition work could not be proceeded like normal circumstances." 因此，申請人要求的資料應該是有關該專家在拆卸工程（demolition work）方面所取得的經驗才對。申請人要求的 "profession" 的經驗，是 "construction field" 的經驗；Construction field 的經驗包括建造、拆卸以及其他有關的經驗；申請人的要求是包括與建造工程有關的經驗，這是與本案無關連的，故此本席拒絕這申請。

(b) State when the agent was first engaged by the Respondent in relation to the demolition and if the engagement was documented, to produce the related documentation.

11. 除提供文件外，答辯人同意這(b)項的申請。第13條並無述及有關提供文件的規定，故此本席裁決答辯人無須提供文件。

12. 答辯人同意(c)項的申請。

(d) State preciously what the agent said were the "normal circumstances."

13. 答辯人並無在反對申請書的第1(b) 段提及該代理人曾告訴他有關

"normal circumstances" 的詳情；申請人的要求是基於他有提及這些詳情的假設，而作出上述的申請，事實上答辯人的專家可能有提及這些詳情；他亦有可能沒有提及這些詳情。本席不能基於一些假設的事實而作出命令，故此本席拒絕這申請。

14. 如果申請人提出的申請是如下述 ，例如代理人是否有提及什麼是 "normal circumstances"，若有的話，請在該方面陳述，則它的申請會是較為恰當的。本席並不是申請人，即使有提出類似的申請，本席並不一定會接納這申請 ；本席提出這些例子目的是在於反映申請人的申請是不恰當的申請。

基於第（2）項陳述而要求詳情的申請的裁決

(a) State whether the Respondent was advised to engage the said freighter by the agent or otherwise.

15. 第（2）項的陳述是已經發生的事實，無論答辯人是曾受該代理人忠告與否都不會改變這事實。審裁處只是就此事實去衡量這是否對答辯人延遲展開拆卸工程恰當的理由之一。 如果反對通知書顯示這不是恰當的理由 ，但答辯人則說他是倚賴代理人的專家忠告才作出這作為的，則在這情況下答辯人是否有通過專家的忠告才僱用 "freighter" 一事才會對本案有關連；最重要的是：陳述的事實是否對延展拆卸工程構成恰當的理由，它是否有通過專家的忠告才作出這作為並不會改變它的恰當性或不恰當性。基於上述的理由，本席拒絕申請人這項申請。

16. 答辯人同意（b）項的申請。

（c）State when and how the freighter managed to handle the transportation work.

17. 答辯人同意提供 "when the freighter managed to handle the transportation work" 的詳情，但不同意提供 "how the freighter managed to handle the transportation work" 的詳情。就本案而言，重要的問題是為什麽答辯人會延遲有展開拆卸的工程。時間性的事實是重要的事實，故此 "when the said freighter managed to handle the transportation work" 是重要的事實，但是 "freighter" 怎樣去處理運輸工作，則是與時間性的事實無關。本席看不到 freighter 處理運輸工作的方式對決定答辯人就延期展開拆卸工程而提出的事實是否構成恰當的理由有何關係，故此本席拒絕申請人的申請。

18. 本席頒佈下列的命令：

1.答辯人不須提供下列申請的詳情：

"(1)(a) and the nature and period of experience he/she obtained in the profession.

(b) to produce the related documentation.

(d) 項。

(2)(a) 項；

(c) State how the said freighter managed to handle the transportation work.

2. 除上述申請的詳情外，答辯人須於14天內提供予申請人所有其他詳情的申請。

19. 申請人的申請，約有一半獲得批準，一半不獲得批準；答辯人的答辯有一半成功，一半失敗，故此本席頒令，與訟雙方各自負責本身的訟費。

 

 

 

申請人：由Secretary for Justice 代表。

答辯人：由M/S Wong, Hui & Co., Solicitors代表。