ORIENTAL GENERATION LTD AND OTHERS v. LUK YUNG AND OTHERS

LDCS 4000/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE APPLICATION NO. 4000 OF 2013

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DETERMINATION ON COSTS

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1. On 29 February 2016, after a 16-day trial this tribunal handed down its judgment granting an order for sale of all undivided shares of and in Kai Tak Mansion (“KTM”) pursuant to the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“LCSRO”). A costs order nisi was made in favour of all the Respondents (collectively “Rs”) except the 47^th Respondent[1]. By their summons of 11 March 2016, the Applicants (collectively “As”) seek to vary the said order nisi. This is the hearing of the said summons vis-à-vis the 22^nd, 33^rd, 34^th, 40^th and 44^th Respondents (hereafter referred to as R22, R33, R34, R40 and R44 respectively, or the said 5 Rs collectively) with R47 taking over R22’s interest on costs and thus the conduct of this application. R47 had been a director of R22 until assignment of her interest to the As after trial.

2. At the commencement of the hearing, Mr Mok, counsel for the As, proposed that the As were willing to accept no order as to costs. This was rejected by Mr Bosco Cheng of counsel acting for the said 5 Rs.

The Defending Parties, Issues, Trial and the Judgment

3. When the Application proceeded to trial, there were 46 Rs. Despite service having been effected, many of them had never shown up. Some of them, though with legal representation, adopted a passive role and their attendance of hearings and trial was excused. Of those attending trial and actively defending the Application, they can be divided into two main groups, namely, those who are unrepresented and represented.

The Unrepresented Group

4. The unrepresented group comprises R2, R8, R9, R13 and R17. All are owners of residential units except R13 who owned a shop. They mainly contested that the As had not taken reasonable steps to acquire their units. They disagreed on the existing use value (“EUV”) of their respective units and the redevelopment value (“RDV”) of the KTM site adopted by the experts of the As and the said 5 Rs. However, they did not rely on any expert evidence. After trial, the tribunal was satisfied that reasonable offers had been made. The As’ valuation was basically accepted, subject to minor modification.

5. The As eventually agreed to have the said costs order nisi made absolute in favour of these unrepresented Rs. Save and except R13 and R17 whose costs are to be taxed if not agreed, the costs of R2, R8 and R9 were disposed of by summary assessment on 11 July 2016.

The Represented Group

6. The actively defending represented group comprises the said 5 Rs. They are represented by 3 firms of solicitors. R22, R33 and R34 are represented by one firm while R40 and R44 each by a separate firm. At the interlocutory stage they acted as 3 groups. At trial, they were represented by 2 teams of counsel, with R22, R33 and R34 as one team led by Mr Bernard Mak and Mr Bosco Cheng (“1^st represented team”), and R40 and R44 as another team led by Mr George Hui (“2^nd represented team” and collectively “the 2 represented teams”).

7. The said 5 Rs are all CPS holders. The four of them acquired from R22 their respective CPSs. Mr Mok, counsel for the As, complained that the timing and circumstances under which the sale took place were very suspicious and were with a view to extracting an unfair and more than reasonable sale price from the As.

The Unusual Transactions

8. R22 acquired 84 out of 100 CPSs of the KTM in 1998 for long term investment[2]. It rented them out for rental income. In around 2007, there had been attempts by some owners to have KTM sold for redevelopment. By 2010 these attempts proved to be a failure. In July 2010, the As started another round of acquisition, leading eventually to this Application.

9. Many of R22’s CPSs had been used for a purpose other than car parking purpose in breach of KTM’s lease conditions. There were complaints made to the Lands Department, leading to threatened re-entry by the Government. It was R47’s evidence at trial that she had been indifferent then as to the use the CPSs were put to[3]. At last, R22 paid a forbearance fee of $1 million and purged all breaches before the Government withheld re-entry[4]. It is the tribunal’s finding that the fear for further payment and re-entry by the Government was the genuine reason for R22 ceasing its non-conforming car parking business instead of waiting for redevelopment as alleged.

10. The As were unable to acquire from R22 any of its CPSs. They lodged their LCSRO Application on 21 February 2013. However, not long before the Application, R22 sold to each of R33 and R34 a CPS[5]. After the said Application, 7 more CPSs were sold to different purchasers on various dates[6]. All these purchasers were subsequently joined as Rs. R33 and R34 (teaming up with R22) were pre-Application purchasers while R40[7] and R44[8] were post-Application purchasers. R22 was still holding 76 CPSs at the time of trial.

11. Further, not long before the commencement of the As’ Application, R22 mortgaged another batch of 18 CPSs together with other securities, including a Thailand property to R41, which is a BVI company, for a loan of US$7 million. It is the As’ evidence that the Thailand property was untraceable and non-existent. The net worth of the other securities was only around US$1.6 million. The As queried how R22 could be able to raise such a huge loan of US$7 million on the strength of securities worth substantially less. It was explained by R47 that the money was required for a joint investment in Thailand, and the mortgagee, R41, was a company controlled by her relatives [9]. Although the non-existence of the Thailand security was denied, R47 admitted full security for the loan was not asked for[10].

12. The said 5 Rs complained that the As had not taken reasonable steps to acquire their CPSs. Both EUV and RDV were also heavily disputed. Surveyor Mr Keith Siu was appointed by the 1^st represented team to deal with the EUV while Ms Sat Wei Ling was appointed by R40 to deal with the RDV. The As appointed surveyor Mr Charles Chan.

EUV

13. It is fair to say that the difference in EUV of residential units and shops between Mr Chan and Mr Siu lies in the choice of comparables, the adjustment factors and the applicable rates of adjustment. However, for CPSs, Mr Siu adopted an investment method based on, inter alia, rental incomes supplied by R22. On the other hand, Mr Chan used the usual direct comparison method. The valuations arrived at by them differs substantially, and the difference is attributable solely to their different methodologies.

14. The total EUV of the 100 CPSs valued by Mr Siu was $79,475,000[11], while that attributable to those owned by the said 5 Rs was $60,698,000[12]. The corresponding valuations arrived by Mr Chan were only $45,400,000[13] and $36,150,000[14]. For CPSs, Mr Siu’s assessment represents respectively 75%[15] and 68%[16] over and above that by Mr Chan.

15. After trial, the tribunal rejected Mr Siu’s valuation method and accepted that of Mr Chan. The latter’s valuation on CPSs was accepted in its entirety. If Mr Siu’ assessment were to be accepted, the said 5 Rs altogether took up roughly about 5.4796% of the interest in KTM[17]. The said 5 Rs’ share in KTM was assessed by the tribunal to be only 3.2302%[18]. From this perspective, the claims of the said 5 Rs had been, by reason of their EUV valuation, inflated by about 70%[19].The following is a summary of the valuations of the residential units, shops and CPSs given by the respective experts and those assessed by the tribunal. They are repeated in order to show the sharp difference between the CPS valuations arrived at by Mr Siu (who changed his valuation several times at trial) and those of Mr Chan and the tribunal:

	Mr Siu’s valuation	Mr Chan’s valuation	The Tribunal’s assessment
Unit price of reference domestic unit	$5,225/ ft2 [20]  or 56,242/m2  [21]	$62,400/m2 [22]	$64,900/m2 [23]
Unit price of reference shop	$17,910/ ft2[24]  or $192,783/m2  [25]	$211,000/m2[26]	$232,000/m2[27]
Uncovered CPS	$420,000[28]	$410,000[29]	$410,000[30]
Covered CPS	$889,000 to $2,213,000 initially, or $394,000 to $1,967,127[31], or $352,000 to $1,821,000[32] , or $1,010,000 or $930,000 after several revisions at trial[33]	$510,000[34]	$510,000[35]
Ramped covered CPS		$260,000[36]	$260,000[37]

16. Mr Mok submitted the EUV of CPSs proposed by the said 5 Rs was greatly exaggerated. It was done at the same time when several CPSs were sold at unusually high prices and the aforesaid mortgage created on the security of, inter alia, 18 CPSs for an exceedingly high loan. These were orchestrated moves to dress up a high market value of the CPSs. Coupled with other unusual features including the litigation tactics deployed by the said 5 Rs (see [65] to [66] below), Mr Mok invited the tribunal to draw an adverse inference against the said 5 Rs that they entered into a scheme to make the As as painful as possible with a view to extracting an as high as possible and more than fair compensation from the As. The transaction prices of CPSs disposed of by R22 shortly before and after the Application  are set out as  follows:

R	Date of Agreement (CPS No.)	Transaction Price ($)	Market Value assessed by As[38] (1/12/2012) ($)	Market Value assessed by Rs[39] (1/12/2012) ($)
R33	30/05/2012 (CPS28)	1,760,000	510,000	1,269,000
R42	20/12/2013 (CPS29)	1,920,000	260,000	1,540,000
R43	20/12/2013 (CPS30)	1,920,000	510,000	1,540,000
R34	06/09/2012 (CPS35)	1,780,000	510,000	1,540,000
R44	11/06/2014 (CPS36)	1,900,000	260,000	1,540,000
R44	12/12/2013 (CPS37)	1,900,000	510,000	1,540,000
R40	04/11/2013 (CPS49)	1,890,000	510,000	1,406,000
R39	07/06/2013 (CPS100)	1,988,000	410,000	420,000
R46	15/09/2014 (CPS66)	1,730,000	410,000	420,000

   AP & TP Consultant

17. Shortly before trial, R40 requested further expert evidence from an authorized person (“AP”) and a town planning expert (“TP consultant”). The former was to assess the impacts on plot ratio by the several land restrictions imposed by the outline zoning plans while the latter prospect of success of As’ impending application to the Town Planning Board (“TPB”). Both would affect the KTM’s valuation. The said request was subsequently granted by the tribunal on 3 February 2015. Because of this late application, the trial had to be divided into 2 parts. The trial originally fixed for 2 March 2015 was to deal with all issues other than the RDV. Issues relating to RDV were postponed to 27 April 2015.

18. Additional expert reports applied by R40 were eventually prepared by the parties. However, such reports were not relied on by R40.

RDV

19. Before trial, the parties’ valuation experts were able to agree on the following 3 important parameters:

i) The plot ratio achievable for the KTM site redevelopment[40];

ii) The RDV for redevelopment of the KTM was 2,293 million; and

iii) The land premium required to remove the building height restriction contained in the Government Lease of KTM (“GL-BHR”) was $1,697 million[41].

20. However, Ms Sat proposed that, in addition to the land value which had been agreed, there should be a “hope value”. In a nutshell, her opinion was that since the As were then pursuing legal proceedings in the High Court to declare the GL-BHR having no effect (“interpretation proceedings”), some purchasers would be willing to purchase the KTM site at a premium just in case the As might succeed in the interpretation proceedings. If that happened, the height restriction would be gone with nil payment of land premium. She came to a view of a site value of $2,557 million (revised to $2,527 million and subsequently $2,805 million), beyond which it would be unlikely that a purchaser would be willing to take the risk[42]. The “hope value” is basically either $264 million or $234 million. The main reason why there were several figures cropping up was that Ms Sat had revised her valuations at trial upon request of counsel for the said 5 Rs using different assumptions.

21. Ms Sat’s proposed hope value was rejected after trial. The RDV was fixed by the tribunal at the figure originally agreed between Mr Chan and Ms Sat.

The Open Offers made by the As to the said 5 Rs

22. It is not in dispute that the As have made to each of the said 5 Rs 2 open offers which were higher than that assessed by the tribunal. The first was made on 18 February 2015 (“February offer”) and the second on 23 April 2015 (“April offer”). The February offer was made 11 days before the first part of the trial commenced while the April offer 3 days before the second part of the trial:

		February Offer	April Offer	The Tribunal’s assessment
i)	R22	$69,974,470	$72,076,117	$69,354,078
ii)	R33	$1,054,268	$1,085,933	$1,045,608
iii)	R34	$1,054,268	$1,085,933	$1,045,608
iv)	R40	$1,054,268	$1,085,933	$1,045,608
v)	R44	$1,591,738	$1,639,546	$1,577,584

The As’ Proposed Costs Order

23. By reasons of the above, it is Mr Mok’s submission that the costs order (including all costs reserved) should be varied in the manner or along the direction[43] set out in [25] below. Mr Mok relies on the “compensation approach” enunciated by the Court of Appeal (“CA”) in Good Faith Properties Ltd v Cibean Development Co Ltd[44]. Regarding what “compensation approach” is meant Mr Mok relies on Purfleet Farms Ltd v Secretary of State for Transport, Local Government and the Regions[45]. It is Mr Mok’s submission that since Purfleet was cited with approval in Good Faith, the CA must have intended the principles elaborated in Purfleet and other English authorities to be adopted in its entirety in Good Faith otherwise the CA should have made it clear there.

24. Mr Mok submitted a “twin-starting point” proposition.  It is his submission that in a LSCRO case, the minority can be regarded as “successful” or “unsuccessful” depending on how much he can achieve after trial compared with any unconditional offer made to him by the majority. In the present case, as from the February offer, the said 5 Rs cannot be regarded as a “successful claimant”. Thus the As’ costs incurred thereafter should be borne by the said 5 Rs. The said 5 Rs’ expert costs should also be disallowed because such costs were either wasted or unreasonably incurred. It is also the As’ case that the said 5 Rs are related and concerted parties but chose to be represented by 3 legal teams for some perceived forensic advantage. Legal costs were unnecessarily increased. This amounts to unreasonable conducts. Since there is bound to be difficulty in the taxation to ascertain how much legal costs have been inflated by the multiple representations, Mr Mok suggested a lower scale as in the following sub-paragraph (v). Mr Mok submitted that alternatively, a percentage discount of the overall costs can be made by the tribunal. 

25. It is proposed the costs order nisi be varied to as follows:

i)   R40 do pay to the As all costs (including counsel’s fee) of and incidental to the preparation of:

(a)  The As’ expert report by their AP Barry Fegan Will dated 27 February 2015; and

(b)  The As’ expert report by their TP consultant Theresa WS Yeung dated 26 February 2015 with certificate for counsel to be taxed on High Court Scale if not agreed;

ii)   There will be no order as to costs incurred by R22/R47, R33, R34, R40 and R44 in respect of the following items:

(a)  All costs of and incidental to (including the preparation of) R40’s expert report by her AP Ng Kin Siu;

(b)  All costs of and incidental to (including the preparation of) the R40’s expert report by her TP consultant To Lap Kee Kenneth dated 9 March 2015;

(c)  All costs of and incidental to (including the preparation of) the evidence of Mr Siu, the valuation expert of R22/47, R33 and R34, given in these proceedings, including all his valuation reports filed in these proceedings and his oral evidence given during the trial; and

(d)  All costs of and incidental to (including the preparation of) the evidence of Ms Sat, the valuation expert of R40, given in these proceedings, including all her valuation reports filed in these proceedings and her oral evidence given during the trial;

iii)  Save as provided in (i) and (ii) above:

(a)  The As do pay costs of:

(1)  R22/47, R33 and R34 with certificate for one counsel;

(2)  R40 with certificate for counsel; and

(3)  R44

in these proceedings which were incurred up to 18 February 2015, i.e. the date of the February offer, but also subject to the provision in (v) below; and

(b)  The R22/47, R33, R34, R40 and R44 do pay the costs of the As in these proceedings as from 19 February 2015 with certificate for counsel, to be taxed on High Court scale if not agreed;

iv)  Alternative to what is provided in (iii) above, there be no order as to costs in these proceedings between the As and the said 5 Rs, save as provided in (i) above;

v)   In the event that the As are required to pay any costs to the said 5 Rs, the As do pay 80% of costs of each of the said 5 Rs (excluding those as provided in (ii above), to be taxed on District Court scale, if not agreed;

vi)  The costs of this application be provided for with certificate for counsel.

The said 5 Rs’ Proposed Costs Order

26. Mr Cheng appears to have no quarrel with Mr Mok on the legal principles applicable to the present case, i.e. the compensation approach in Good Faith as well as its meaning supplemented by Purfleet (supra).  The gist of the said 5 Rs’ case on costs is as follows:

i)   It was not unreasonable for the said 5 Rs not to accept the February offer because:

(a)  The February offer came very late: just 6 working days before the trial scheduled to commence on 2 March 2015;

(b)  The said 5 Rs were not in a position to make an informed decision as to whether they should accept the February offer on their merits or not. By then Ms Sat had not yet come up with her RDV; and

(c)  The February offer did not provide for costs.

ii)   The said 5 Rs should have accepted the April offer, which was lapsed on 6 May 2015, because the amount offered therein exceeded the shares received by them;

iii)  The said 5 Rs should be entitled to costs up to 6 May 2015, the last date for acceptance of the April offer;

iv)  Regarding costs incurred after 6 May 2015, the said 5 Rs accepted that they should bear one-third of the As’ costs for the hearings on 12 and 13 May 2015, and half of the As’ costs for the written submission on the admissibility of expert evidence; and

v)   Other than costs as specified in sub-paragraph (iv) herein, no further costs incurred by the said Rs for defending the proceedings should be disallowed for such costs were neither being wasted nor unreasonable.

Discussion

The Compensation Approach

27. Good Faith is a CA authority squarely on costs under the LSCRO. When the case was before the tribunal, a sale order was made after trial. The grounds of defence raised at trial by the only minority respondent included valuation and reasonable steps to acquire its interest. From the length of the hearing, it was a full-blown and perhaps a “no stone unturned” dogfight between the parties. The tribunal considered the minority respondent had been unable to establish its defence. It was asked to bear the majorities’ costs, save and except certain items of costs which the majorities had to incur anyway.

28. The tribunal came to its conclusion on costs despite the fact that its assessment was higher than the majorities’ open offer, though the minority’s open offer was considered far too high. In particular, the tribunal in Good Faith rejected expressly the compensation approach to LCSRO applications.

29. On appeal the CA considered that the statutory regime under the LSCRO gives protection to property right of a minority, which is entrenched constitutionally by the Basic Law, on at least two levels.

30. For the first level, the minority may choose to refuse the majority’s offer on various grounds including grounds unrelated to money. The majority then has to invoke a statutory process in order to obtain an order. It cannot be regarded as a legal wrong for a minority to reject an offer even though such an offer may meet the statutory reasonable steps requirement under s.4(2)(b): see [12] of Good Faith. The majority then has to demonstrate to the tribunal that certain statutory criteria have been met, e.g. age and state of repair, etc, before the tribunal would order a sale. The proceedings are therefore statutory means to justify the exceptional interference with right of private ownership. The right to raise objections is part and parcel of the process without which the process cannot be a fair one:  see [18] of Good Faith.

31. As for the second level protection, even on a balance the private rights of the minority are to be interfered with and an order for sale is made against the wish of the minority, he should be entitled to receive a fair and reasonable share of the sale proceeds. The compensation should not be easily diminished by an inordinate burden on costs otherwise the objective that the minority receiving fair and reasonable compensation under the LSCRO would be defeated: see [11], [19] and [20] of Good Faith.

32. The CA then considered what costs approach being consistent with the second tier safeguard for the LCSRO cases should be adopted: see [26] of Good Faith.

33. The CA in Good Faith went through certain English authorities, particularly, Purfleet. It appears that when exercising the discretion, the starting point is that the costs of litigation should fall on him who caused it[46]. In [28] of Good Faith, the CA considered paragraphs 29, 36 to 38 of Purfleet by Potter LJ a concise summary of the compensation approach. After citing the said paragraphs of Purfleet, the CA confirmed the said approach on costs applicable to LSCRO proceedings[47]. Lam V-P also referred to paragraph 43 of Purflect: see [44] of Good Faith. The principles comprised in the compensation approach referred to in Good Faith can broadly be summed up as follows:

i)   A successful claimant, i.e. a claimant who is awarded more than the amount of an unconditional offer by the acquiring parties, should be entitled to his costs incurred in the proceedings in the absence of “special reason” to the contrary;

ii)   Whether there is any “special reason” is a judgment of the tribunal;

iii)  Wasted, or unnecessary costs incurred because of conduct of the claimant such as abandoned issues, unnecessary adjournments, failure to comply with directions, etc may qualify as “special reasons”;

iv)  “Special reasons” should only be regarded as established where the item of costs or issue raised was such that it could not on any sensible basis be regarded as part of the reasonable and necessary expenses of determining the amount of disputed compensation;

v)   Exaggeration alone is not enough in the event of a large disparity between the sum claimed and the sum awarded. The matters to which the tribunal should have regard are:

(a)  The reasons for that disparity;

(b)  Their effect on the conduct of the claim.

vi)  For (a), if the reasons are defensible, in the sense that there was a legitimate, albeit unsuccessful, argument put forward in support of a figure, that does not justify a sanction in costs;

vii)  For (b), if, in any event, the effect on the proceedings in terms of time spent and costs incurred in disposing of the issue or argument concerned is relatively insignificant, adverse order is unlikely;

viii)  If exaggerated claim is based on valuation opinion, it will rarely be appropriate to make an adverse order against the successful claimant because valuation is an inexact science;

ix)  If the exaggeration is due to choice of comparables because there is no close or obvious comparables available, there is bound to be legitimate room for argument and difference of opinion. That should not ordinarily invite a penalty in costs on grounds that its assertion or resultant discussion has taken up the time of the tribunal unnecessarily;

x)   That, however, does not lead to the conclusion that the claimant’s conduct in exaggerating his claim can be of no relevance;

xi)  [48]Disallowance of a proportion of the claimant’s costs will usually only be justified where the tribunal is satisfied that:

(a)  No competent valuer could reasonably have regarded the comparable as of real relevance or assistance in the valuation exercise;

(b)  As a result of its introduction and discussion, a significant amount of the tribunal’s time has been wasted and the proceedings unduly prolonged;

(c)  No equivalent or near equivalent proportion of proceedings has been spent dealing with issues unreasonably and unsuccessfully raised by the acquiring party;

(d)  The amount or proportion of the costs disallowed is proportionate to the time wasted.

xii)  [49]Costs sanction can be imposed in plain cases where the rejection of an offer or pursuit of a line of opposition is obviously unreasonable, e.g. the exaggeration was the product of the claimant’s reliance on expert evidence which should have been recognized as unreliable; and that the decision to rely on that evidence had led to the waste of substantial time and expense. The sanction can range from depriving the claimant of costs and even asking it to bear the applicant’s costs in a serious case for those hopeless challenges;

xiii)  If experts engaged by both sides have adopted polarized positions and there have been lack of realistic offer and/or counter-offer, it may be appropriate to order each party to bear his own costs.

34. It is Mr Mok’s submission that the CA in Good Faith set out the principles in the context of a “successful claimant”, of which the minority in that case was one: see [33(i)] above. However, in the present case, the said 5 Rs are “unsuccessful claimants” as from the February offer which beat the tribunal’s final assessment. Though Mr Mok and Mr Cheng differ on whether the said 5 Rs should be tied to the February offer or the April offer to become an “unsuccessful claimants”, and whether the relevant date should be the date of offer or expiry, it is their common ground that conceptually, there is “successful” and “unsuccessful” claimant in the compensation approach for LSCRO cases, and the liability for costs should reverse when the said 5 Rs becomes “unsuccessful claimants”.

35. Mr Mok relied on the following passage by Chadwick LJ in Purfleet to support his proposition that unsuccessful claimant should, prima facie, be paying costs of the acquiring party:

“[42] As Lord Nichols pointed out, in the passage in Director of Buildings v Shun Fung Ltd [1995] 2 A.C. 111, 125 to which Potter L.J. has referred, a claimant whose land has been taken from him under compulsory powers is entitled to “compensation for losses fairly attributable to the taking of his land”. In a case where the acquiring authority have made an unconditional offer of an amount of compensation which exceeds the amount subsequently awarded on a reference to the Lands Tribunal, it can be seen that (at least prima facie) the costs incurred by the claimant in pursuing the reference after the offer has been made are not fairly attributable to the taking of his land; those costs are attributable to the claimant’s attempt to obtain more than the amount of the loss in respect of which he is entitled to compensation.”

36. The main thrust of Mr Mok’s submission is this. Good Faith and other line of authorities including Penny’s Bay Investment Co Ltd v Director of Lands[50] were decided by applying the English compensation approach on costs. Accordingly, the successful and unsuccessful “twin-starting point” concept discussed in Purfleet should also be part and parcel of the compensation approach in Hong Kong.

37. In the tribunal’s judgment, the discussion of an “unsuccessful claimant” in Purfleet was in the special context of s.4(1)(a) of the English Land Compensation Act 1961[51]. This is the Act under which Purfleet was determined. This particular provision reverses the liability to pay costs whenever an unconditional higher-than-assessment offer is made for claims under the said Act, unless there is a good reason not to do so. This is regarded as a “special rule” by the English Lands Tribunal’s Practice Directions[52], and does not appear in its Hong Kong counterpart(s), not to mention the LSCRO.

38. Further, it has been stated in Good Faith that a minority rejecting an offer falling within s.4(2)(b) of LCSRO cannot be regarded as a legal wrong[53]. In the tribunal’s judgment, Good Faith does not distinguish between a successful and unsuccessful applicant when adopting the principles distilled from the quoted parts of Purfleet. It may perhaps be the case that in Good Faith, the minority is a successful claimant[54] and therefore, it will be unnecessary for the CA to discuss the situation of a so-called “unsuccessful claimant”. However, it may perhaps be equally probable that the CA in Good Faith considers the discussion of whether or not a claimant is successful unnecessary because costs remain the discretion of the tribunal: see section 12(1) of the Lands Tribunal Ordinance, Cap 17 (“LTO”). The important question fell to be decided in Good Faith is the broad principles governing the exercise of such discretion in LSCRO cases, i.e., the compensation approach or that in ordinary hostile litigation.

39. Section 12(1) of the LTO provides:

“The costs of and incidental to all proceedings in the Tribunal are in the discretion of the Tribunal, and the Tribunal has full power to determine by whom and to what extent the costs are to be paid.”

40. According to the express English provisions, a party is only prima facie liable for costs when the offer exceeds the tribunal’s assessment. Such provision is lacking in the LSCRO. In light of the overall tenor of Good Faith, this tribunal prefers not to accept there being an automatic shift of burden or some sort of hard and fast rules regarding “unsuccessful claimant” as suggested or implied by Mr Mok once the majority’s offer beats the tribunal’s assessment. In the tribunal’s judgment, even the minority is regarded as “unsuccessful” in the English context, all relevant circumstances, including of course the minority’s explanation for not accepting the offer, its conduct subsequent to the offer etc, must be examined before deciding whether costs as from a particular date should be disallowed, or even paid by the minority. The offer may influence, but not automatically dictate the costs outcome. The tribunal still retains its discretion on costs in the circumstances. It is an exercise similar to identifying the “special reasons” discussed in Good Faith: see [33] above.

41. This tribunal will bear in mind the aforesaid principles when considering costs in the present case.

Mr Siu’s Expert Evidence on EUV

42. Mr Siu’s evidence has been severely criticized by the tribunal. Mr Mok has set out a list of the tribunal’s criticism in his skeleton[55]. The tribunal does not intend to repeat them all here. To name a few, Mr Siu adopted an unusual investment approach as against the usual direct comparison method. When doing capitalization, he simply turned a blind eye and/or failed to raise queries to the rental incomes provided when there was obvious evidence suggesting the incomes being generated in breach of the lease conditions, and was incomplete. Although it was confirmed at trial he had not been told by R22 any of the Government’s enforcement actions[56], had he done the necessary land search of the CPSs which a prudent expert should have done, the enforcement action would have been discovered. He in fact knew that the CPSs in question had been used for purposes other than car parking in breach of lease conditions.

43. Further, the CPSs valuation arrived at by him showed an unusually wide range and is irrational, irreconcilable with each other which, we are sure, no professional independent valuer would have satisfied without raising further enquiry with R22. He did nothing but an averaging exercise. The following assessments discussed in the main judgment[57] are very telling of the irrationalities and unreasonableness of Mr Siu’s assessment:

	CPS	Valuations by Mr Siu	Tribunal’s Assessment
i)	CPS 14 (Covered CPS)	$1,010,000	$510,000
ii)	CPS 15 (Ramped CPS)	$1,515,000	$260,000
iii)	CPS 16 (Covered CPS)	$1,053,000	$510,000
iv)	CPS 45 (Covered CPS)	$1,967,127/$1,821,414[58]	$510,000
v)	CPS 46 (Covered CPS)	$842,666/$766,060[59]	$510,000

44. Apart from non-disclosure of the Government’s enforcement action aforesaid to Mr Siu by R22, the tribunal has not forgotten the fact that R22 had also not told Mr Siu about its payment to the Government of the $1 million forbearance fee. These are all crucial matters relevant to valuation which R22 ought to have disclosed but did not. One such letter among a series of them from Government was not disclosed until after a contested discovery application taken out by the As. The tribunal believes, on a balance, the withholding of material information to Mr Siu and to the As by R22 is deliberate.

45. Instead of admitting the weakness of his assessment, Mr Siu appeared to have lost his independence and advanced for the said 5 Rs totally unacceptable explanations, such as the pre-enforcement rentals might have already reflected the enforcement risk[60]. He even suggested that he had ways to ask for a modification of lease conditions without payment of premium[61].

46. What appears totally unacceptable to the tribunal is that despite the apparent problems of Mr Siu’s valuation, the said 5 Rs together with their respective legal teams chose to embrace such valuations and engaged with the As until the very last minute. Substantial time and effort were spent on the EUV issues as a result. It is not a case where the said 5 Rs were so unfortunate that they bumped into a valuer who happens to perform sub-standard. In the circumstances of this particular case the tribunal believes the said 5 Rs were acting in concert to exaggerate their claims deliberately. Assuming (without accepting) that the penalty of $1 million as well as the enforcement action of the Government was only disclosed for the first time in or about September 2014 by R22 to its legal advisors through R47’s witness statement[62], the legal teams of the said 5 Rs should have discovered the problems of Mr Siu’s valuation by then. No adjustment whatsoever was made. Mr Siu remained uninformed of the essential information. He was even asked to give further opinion on that basis. The tribunal believes it is a case where there is a deliberate exaggeration of claim by the concerted action of Mr Siu, the said 5 Rs and their legal teams. The exaggeration brought about by the inflated EUV alone is about 70%[63], and is significant at any rate.

47. The EUV of one’s unit relative to the overall EUV of the site will determine one’s interest in the final sale proceeds. Any inflation of one’s EUV would bring about a negative spill-over effect on other minorities’ interest. Mr Siu’s failure to inspect the residential units, or even ask to do so when he was doing his valuation[64], is very telling of his lack of interest in valuation of the non-CPS portions. The overall picture shows that the said 5 Rs are conducting the litigation in a totally unacceptable and unethical manner with Mr Siu’s assistance. Although Mr Siu did provide valuation regarding the non-CPS portions of KTM, against such background they are merely window-dressing and unhelpful. It added unnecessary burden and length to the trial respecting the CPS’s portion. 

48. This is a case where the said 5 Rs pursued an issue (i.e. the EUV of the CPSs) in a totally unreasonable and unacceptable manner with no real chance of success. No competent valuer would have used the investment method based on problematic rentals to come up with the EUV of the CPSs in question. In the tribunal’s judgment, not only is it appropriate to disallow all fees of Mr Siu incurred by those relying on his valuation (his contribution towards non-CPS valuation is considered minimal and not reliable) as well as the legal costs incurred by the 2 represented teams on the EUV (including the time spent by Mr Siu in giving oral evidence in court), it is a suitable case that the said 5 Rs be asked to shoulder the costs of and occasioned by the As in dealing with Mr Siu’s evidence on CPS’s EUV, including a part of Mr Chan’s fee on the said EUV issues, such costs to be shared by the said 5 Rs on a joint and several basis.

49. According to the tribunal’s record, about 5 days of the first part (lasted for 10 days) of the trial were spent by Mr Chan and Mr Siu on the question of EUV. Of these 5 days one day was spent on inspection and the rest shared by Mr Siu and Mr Chan, roughly, on an equal basis.

50. It is estimated 50% of Mr Chan’s reports on EUV were dealing with the EUV questions/issues raised by Mr Siu on the CPS valuation. A broad brush approach will be adopted in the overall assessment of costs.

Ms Sat’s Expert Evidence on RDV

51. Similar submission was made about Ms Sat’s evidence by Mr Mok. The land value assessed by Mr Chan and Ms Sat had been agreed prior to the 2^nd part of the trial at $2,293 million. Had Ms Sat not raised the concept of “hope value”, it was likely the second part of the trial would last for at most 1 day for cross-examination by the unrepresented parties. Alternatively, with a view to supporting the argument for “compensation for a lost chance”, the issues concerning “hope value” more particularly described in the following paragraph made clear, the second part of the trial on RDV could comfortably be finished within 2 days. The hope value inflated the RDV by about 10.2% to 11.5%[65]. Mr Mok had particularly highlighted certain comments of the tribunal in his skeleton[66].

52. The main criticism of the tribunal against Ms Sat’s “hope value” has been set out in detail in the main judgment, and can fairly be summarized as these:

i)   Firstly, she should have stated in her reports from the outset that the “hope value” put forward cannot be substantiated by reference to established professional valuation standards, namely, as a matter of valuation “hope value” has not yet started to engage if probability of success was below 50%[67]. She made no mention of such restriction in her first report;

ii)   Secondly, she should have made clear and be frank that she knew nothing about the prospect of the interpretation proceedings. She should have made it clear that she had never been advised, nor had she ever sought any legal advice on the prospect of success of the said proceedings. With prospect of success totally unknown, she should have realized it would be quite impossible for any investor to be able to form any view whether to take the land by paying an extra “hope value”. The weakness of her opinion was so obvious, and would have been revealed had she addressed her mind to the prospect of success. It was not until trial that she admitted the probability of success could be any anything between 0% to 99%. The tribunal cannot help suspecting she might have confused her role of an independent expert with an advocate, or she had lost her independence and simply did what she was told to do;

iii)  Thirdly, she should have stated clearly and unequivocally what she was doing was simply listing certain possible values for speculators upon request of lay clients or counsel instead of, apparently, dressing them up as professional valuation.

53. Time and expenses needed be incurred for Mr Chan to refute the “hope value” not being an acceptable “hope value” valuation by reference to established professional standards. Further, time and effort needed be spent in the cross-examination to reveal the problems of her opinions on hope value. It has to be remembered that a totally unsound opinion will not become sound even if uttered through the mouth of an expert. It is under these circumstances that the tribunal considers necessary to re-state the principles concerning independence of expert as said by Lam J (as the learned V-P then was) in Chinachem Charitable Foundation v Chan Chun Chuen[68].

54. The tribunal is of the view the two represented teams must have realized that the “hope value” cannot be substantiated by professional standards. It was because Ms Sat had later acknowledged in her rebuttal report she was aware of the required professional requirements before “hope value” can be engaged[69]. What Ms Sat in fact was doing was using the tool of IRR to come up with certain reference figures so that if the legal argument on “compensation on a lost chance” was accepted, the tribunal could have certain reference figures to turn to. However, the 2 legal teams did nothing to clarify the objective. The manner in which the “hope value” was dressed up and was fought by the 2 represented groups lead to significant amount of time being wasted and proceedings unduly prolonged to deal with Ms Sat’s views on “hope value”.

55. Having said that, the tribunal accepts that Mr Hui and Mr Mak had made arguable legal submission on the area of “lost chances” by relying on arguable authorities, some were on compensation cases. Though this tribunal rejected their proposition that a “hope value” should be awarded even though the probability of the scheme in question is less than 50%, that alone (our emphasis), according to Good Faith, is not a sufficient ground to deny the said 5 Rs’ costs. However, as will be seen below, the rejection of the February offer has an impact on the overall liability of the said 5 Rs’ liability as from the date of trial.

56. The overall assessment of the RDV issue justifies a proportion of the costs in connection with Ms Sat’s valuation be disallowed. Further, certain time and costs by Mr Chan and the As’ legal team in connection with the dealing with Ms Sat’s “hope value” must be paid by the said 5 Rs. According to the tribunal’s record, the second part of the trial on RDV lasted for 4 days, and Mr Chan and Ms Sat each taking up half of the time. As said above, at most 2 days are sufficient to dispose of the RDV issue had the hope value by Ms Sat not been raised, or left to legal submission on “lost of a chance” with clear indication that the “hope value” was not based on established valuation standards.

57. As can be seen in [71] to [91] below, costs ordered to be paid by the said 5 Rs under this head would overlap with those ordered to be paid under those paragraphs. A broad brush approach will be adopted in the overall final costs order.

AP & TP Consultant

58. It was R40 who applied for the 2 additional expert reports as aforesaid. It was granted on 3 February 2015. One major reason for the application was that the 2 additional experts’ reports could assist the valuation expert in coming up with his RDV. The tribunal then accepted argument that TP consultant and AP were in a better position to assess the prospect of success of the impending application to the TPB[70] and the maximum plot ratio achievable in the special context of KTM than valuation experts.

59. Later, all, except R40, indicated they were not relying on the 2 expert reports. The 2 reports by R40 were eventually filed on 9 March 2015.

60. On 19 March 2015, solicitor for R40 wrote a letter to the As’ solicitors indicating, inter alia, that (i) R40 would not call upon the AP and TP consultant to give evidence at trial; and (ii) the plot ratio adopted for the redevelopment model would be 8.4375[71]; and (iii) the difference in opinion of the AP and TP consultant, if any, would not be material insofar as the assessment of the RDV is concerned. As a result, without prejudice meetings of the relevant experts of the two sides were not required and the two reports not relied on.

61. Mr Mok submitted that since the 2 issues were abandoned or wasted, R40 should be disallowed costs and pay the As costs incurred in connection therewith. Mr Bosco Cheng submitted without the reports the said 5 Rs would not have known the opinion of plot ratio adopted by the Government about KTM was unlikely to be correct. R40 did not rely on the TP report because the application to the TPB was withdrawn.

62. Ms Sat’s first report was dated 9 April 2015. She mentioned nothing that she had made reference to the AP and TP consultant reports, save and except that she did mention being told the application to the TPB was withdrawn on 13 February 2015. She adopted the plot ratio of 8.4374 (which is slightly different from 8.4375 originally indicated and arrived at by R40’s AP consultant: see [60] above). Taking into consideration matters to be elaborated below about the February offer, the tribunal believes these reports had not been consulted by Ms Sat.

63. The tribunal has asked Mr Cheng why, then, in the first place the reports were asked for. Mr Cheng originally answered that they were asked for on a theoretical basis. He later supplemented that valuation expert’s views had been sought before applying for further expert directions.

64. In the special circumstances of KTM, these reports are, prima facie, relevant. Although abandoned issue may qualify as “special reason”, the burden is on the As to show that it could not on any sensible basis be regarded reasonable and necessary to have the reports prepared, or that these reports were asked for in bad faith with a view to wasting costs, etc before this tribunal would disallow costs or even reverse the costs order. The mere fact that these reports were eventually not relied on by a party does not automatically make that party liable for costs when the compensation approach on costs is adopted. This tribunal does not think the As have made out a case under this head.

Multiple Legal Teams

65. Apart from the alleged unusual transactions set out in [8] to [12] above, Mr Mok launched a heavy attack against the manners in which the said 5 Rs conducted the present proceedings. The gist of his submission is that the said 5 Rs were acting in concert with a view to extracting a more than fair and reasonable price. He highlighted the followings concerted tactical moves of the said 5 Rs:

i)   R22 sold 9 CPSs, one at a time at very high prices and mortgaged 18 CPSs as security for an unusually high amount of loan shortly before and for some time after the As’ Application. This increased the As’ costs and efforts, including joining them as Rs some even being out of jurisdictions, and taking steps to deal with the impact of the unusual high sale prices, including administering interrogatories, making discovery and conducting title investigation in Thailand;

ii)   The said 5 Rs were in close co-operation and launched concerted and strategic procedural steps. Unusual features of their cooperation highlighted by Mr Mok includes:

(a)  R40, who confirmed herself a housewife, was with a out of jurisdiction, i.e. Shenzhen, address;

(b)  Yet she purchased at $1,890,000 a covered CPS on 4 November 2013 after the LSCRO application was issued on 21 February 2013 and registered with the Land Registry on 30 July 2013. She should have been advised by lawyers of the risks involved in her investment/speculation. The final tribunal’s assessment of her share was only $1,045,608;

(c)  Despite her relatively minor interest in the overall interest of the said 5 Rs, R40 took a very active role and, apparently, upfront injected substantial costs in participating in the legal proceedings since October 2014; more active than the rest of the said 5 Rs. Such active participation was wholly disproportionate to her investment or speculation in one single CPS for which she paid an extraordinarily high prices, including,

(1) applying unsuccessfully for the discovery of various documents;

(2) applying successfully for 2 additional AP and TP consultant reports;

(3) appearing by counsel in each of the above applications;

(4) the 1^st represented team was represented by another counsel in support in each of these applications;

(5) appearing by counsel in resisting interrogatories and discovery application of the As, though unsuccessfully;

(6) retaining, apparently on her own, AP and TP consultant;

(7) retaining, apparently on her own, Ms Sat for the RDV;

(8) R22, R33, R34 and R44 provided no RDV evidence but made full use of Ms Sat’s evidence on hope value made available by R40;

(9) R40 and R44 provided no EUV evidence and made full use of Mr Siu’s exaggerated EUV;

(10) appearing by counsel throughout the trial;

iii)  By organizing matters in this way, R40 could confine her risk to bear the As’ costs to her share and keep the rest of the said 5 Rs isolated from such risk.

66. Mr Mok submits that the separate representation increased costs for the said 5 Rs and the As, and is a relevant factors when the tribunal awards costs. Since it would be difficult to ascertain by taxation how and to what extent costs had been wasted or increased by the multiple representation, Mr Mok requests any costs to the said 5 Rs be awarded on District Court scale with one certificate for counsel to reflect such unreasonable conduct. Alternatively there can be an overall discount.

67. Mr Cheng’s submission, in a nutshell, is that each of the said 5 Rs is entitled to be represented by one team of lawyers in these proceedings. Now they are represented by 2 teams with 3 firms of solicitors only. This alone is insufficient to provide a basis for the As to challenge their decision to be separately represented.

68. Given the tribunal’s conclusion that the said 5 Rs were deliberately exaggerating their claims, on a balance this tribunal accepts what Mr Mok has portrayed being part and parcel of their overall plan to extract a more than fair and reasonable price from the As. The EUV and RDV are the two most important pieces of evidence in LSCRO litigation each having a material impact on the eventual interest that a party may get. Yet each of the said 5 Rs was willing to have one essential valuation delegated to be obtained by others. The said 5 Rs were willing to have their fate so closely tied up with each other despite the apparent lack of involvement in coming up with one essential valuation evidence. The logical inference is that they were either related parties or they in fact were fully involved in each and every step taken in the proceedings as if they were one even though an application might be taken out in the name of one or some of them.  We believe both cases are applicable.

69. They made orchestrated moves. For instances, after the Application was set down[72], the 1^st represented team applied about 4 months later for, inter alia, a stay of proceedings pending final disposal of certain judicial review proceedings in the CFA. At the same time there was the discovery application of R40. Only 3 days before the adjourned argument of the staying summons[73], R40 issued the further expert directions summons. Although there is no direct finding of this tribunal that there were ulterior motive behind these applications, both summonses, if granted, would bring about an effect of postponing the trial[74]. 

70. This tribunal accepts Mr Mok’s submission that an out of jurisdiction R40 was selected to take up major procedural attacks and provide essential evidence for all the said 5 Rs was part and parcel of their scheme to isolate the rest of them from costs liability. Since they are related parties, in the tribunal’s view they are not, as suggested by Mr Cheng, entitled to say that they could each engage a firm of solicitors as of right. The tribunal believes that without the parting with ownership of some of R22’s CPSs in the manners aforesaid having the effect of isolating individual’s costs liability, the exaggeration would not have been in such an outrageous and unacceptable manner. The tribunal agrees with Mr Mok that certain discount needs be applied to reflect the tribunal’s disapproval of these unacceptable conducts. Further, as it is the tribunal’s conclusion that the said 5 Rs were related or concerted parties, it would only be fair that their costs liabilities to the As should be joint and several.

The February or April Offer

71. Mr Cheng submitted that the said 5 Rs were not acting unreasonably in rejecting the February offer. He relied on Wong Yik Po v Director of Lands[75] citing with approval an English authority of The Salaverry[76]. In short, his proposition is that sufficient time should be given for a proper consideration of any offer, if the dispute goes to trial and the ultimate determination principally depends on expert evidence. In Salaverry, it was considered an offer made 11 days before trial insufficient, whereas in Wong Yik Po, 4 days was considered too short. In light of these principles, he submitted that it was reasonable for the said 5 Rs not to accept the February offer:

i) The February offer was made on 18 February 2015, which was the last working day before Chinese New Year holidays ending on 22 February 2015. There were 11 days, and only 6 working days before trial scheduled to commence on 2 March 2015. The said offer was good until and inclusive of 3 March 2015. The time given was too short for the said 5 Rs to consider the offer;

ii) When the February offer was received, their counsel was busily preparing opening submission (due on 23 February 2015) in response to that of the As which had already been served on them on 13 February;

iii) The valuation expert of the said 5 Rs had not yet finished her RDV report. Its preparation was in turn dependent on the AP and TP reports which were also not yet ready. In the absence of the updated RDV report, the said 5 Rs were not in a position to make an informed decision as to whether to accept the offer. They were entitled to and in fact it was perfectly legitimate for them to wait for all reports before making up their minds;

iv) The valuation date for the offer was assessed as at 16 February 2015 and therefore it was not an updated one. Experts on both side had eventually agreed on a valuation of $2,293 million as at 31 March 2015 for trial, which was higher than the RDV adopted in the February offer[77]; and

v) The February offer did not provide for costs of the proceedings.

72. If the tribunal finds the February offer should have been accepted, Mr Cheng submits that as a fallback the cut-off date should be 3 March 2015 when the offer expired. It is because the said 5 Rs should not be deprived of the time provided under the offer. Even if under these circumstances the As still have to proceed with trial to satisfy the statutory requirements such as age and state of repairs, proving the EUV and RDV under the LSCRO. Mr Cheng submits the said 5 Rs should only bear ⅓ of the As’ costs incurred after 3 March 2015, and 50% for the written submission on the admissibility of Mr Charles Chan’s evidence arising from his disciplinary proceedings.

73. As for the April offer, Mr Cheng’s proposition is that where a claimant is unable to do better than the offer made by the acquiring party, he/she would be entitled to costs of the proceedings up to the date of the offer which exceeds the awarded sum is lapsed. He relied on Leung Chuk Yau t/a Tin Cheung Ginseng Medicine Hong v Director of Lands[78].

74. Relying on Leung Chuk Yau, he accepts that the said 5 Rs should be entitled to costs only up to 6 May 2015 when the April offer lapsed. For reasons similarly applicable to the February offer, he submits it is fair and reasonable the said 5 Rs should only bear ⅓ of the costs of the As for the hearing on 12 and 13 May 2015 because the As needed to attend the hearing anyway to make submissions on matter which they were required to establish under the LSCRO. There were still other unrepresented and missing/non-appearing parties.

75. Mr Mok relies on his twin-starting point proposition and proposes to strictly tie the cut-off date to the first date of the February offer, i.e. 18 February 2015.

76. Mr Mok’s strict cut-off date proposition does not appear to sit well with the compensation approach as a matter of principle. The tribunal prefers an approach similar to Wong Yik Po. However, each case should be determined on its own facts and all circumstances need be taken into considerations before fixing the cut-off date.

77. The tribunal does not agree with Mr Cheng on his busy counsel argument. It is because the 2 legal teams are retained to have conduct of the legal proceedings and give overall advice on the said 5 Rs’ litigation. The consideration of whether an offer is acceptable is part and parcel of such conduct and advice. It is to be remembered the present case is not one where the said 5 Rs resisted the Application on grounds other than money. R22 participated as early as in 2007 in the first round of redevelopment sale exercise. The rest of the said 5 Rs acquired their CPSs with full knowledge of the Application or intending Application. They were speculators or R22’s related parties. They were all willing to sell their CPSs at a price they considered acceptable[79]. To achieve a sum highest possible should therefore rank top in their order of priority. It is for this the legal teams were retained. Any offer should therefore have been received due consideration by the said 5 Rs’ legal teams. Once an offer is accepted, the litigation will be over. It will then no longer be necessary for the legal teams of the said 5 Rs to prepare any opening submission.

78. Regarding the subsequently agreed RDV being over and above the RDV of the February offer, the tribunal has the following two observations to make.

79. Firstly, for LSCRO cases the assessed RDV is fixed as at the date of or close to trial. It is different from resumption cases the valuation date of which is the date of resumption, i.e. a date in the past. So in a rising market, the reality is that the longer a LSCRO case is being dragged on, the higher will be the eventual RDV. However, despite market fluctuation, in coming up with any market valuation as at a particular date all potentials, including its rising potential, must have already been factored into that valuation before it can qualify as the market value as at that date. One therefore cannot say that because there was a rising market, the valuation of, says $2,293 million as at 31 March 2015 for KTM, was not its market value as at that date. That remained the market value as at 31 March 2015 no matter the market was rising or declining; otherwise no one will be able to give any valuation for a particular date unless the market is stagnant. Accordingly, as a matter of principle, whether it was unreasonable or otherwise for the said 5 Rs to accept the February offer must be judged by reference to the circumstances as at the date of the February offer, not any other date. That includes whether or not the RDV adopted as at the date of the offer was reasonable. The submission of Mr Cheng that the parties had subsequently agreed at a RDV, which was higher than the RDV of the February offer, cannot therefore be accepted as a matter of principle. Whether a market is rising or falling is only an afterthought. To accept his argument is to leave one’s present decision to be justified or condemned by future events. It encourages litigation and discourages settlement, particularly in a rising market, for the simple reason that in such market, any subsequently agreed amount must be higher than any previously unaccepted offer. A higher price agreed subsequently per se, cannot render any prior lower offer unreasonable.

80. Secondly, from the RDVs provided by Mr Chan in his valuation attached to the February offer, his final report and the one finally agreed[80], the tribunal accepts it was then a rising market. We believe the said 5 Rs do not seek to disagree. By a rough estimate there was then a rise of about 3% to 11%[81] from mid-February to end of March 2015. Despite the rising market, the February offer based on a lower RDV can still beat the tribunal’s final assessment, though marginally. Prima facie, the February offer can be regarded as a rather generous offer as at the date of offer. After going through the trial, the said 5 Rs still could not do better despite a rising market.

81. Turning to the argument that no costs were provided in the February offer, it was stated in the offer letter that if the offered purchase price was agreeable, the said 5 Rs could contact the As to discuss other terms, logically and presumably including costs incurred in the LSCRO Application. They did not accept the offer. Discussion on costs thus did never take place. If it had ever happened, the dispute on costs, like the present hearing, could have been dealt with by the tribunal in case of disagreement. We do not see this being a good ground to reject the February offer.

82. After reading Leung Chuk Yau, the tribunal does not accept it an authority to support Mr Cheng’s proposition that an offeree is entitled to costs up to the date on which the offer lapsed. Leung Chuk Yau concerned different claims settled or disposed of at different time, and were decided on its own fact.

83. This tribunal accepts some time should be given for the said 5 Rs to consult their experts before deciding whether to accept the offer. However, the time frame discussed in Wong Yik Po or The Salaverry is no useful yardsticks to the present case as what amounts to reasonable time for acceptance of an offer is fact-sensitive. Each case is to be determined on its own facts. In this connection, the tribunal notes that on 9 March 2015 (one week after the trial started on 2 March 2015), the said 5 Rs issued a joint letter to the As to, inter alia,

i)   reject the February offer; and

ii)   make a counter-offer of about $130.2 million[82]. This counter-offer is more than the tribunal’s assessment by about 76%[83]. It was stated in their counter-offer letter that according to Ms Sat’s preliminary assessment, the RDV was between $2,200 to $2,300 million[84].

84. The RDV of $2,200 to $2,300 million stated in the counter-offer came earlier than Ms Sat’s valuation of $2,321 million in her first report of 9 April 2015. Accordingly the allegation that the said 5 Rs had to wait for Ms Sat’s report is factually incorrect. It is obvious Ms Sat were ready to provide opinion on RDV, and in fact had done so, the latest, by 9 March 2015. On a balance, the tribunal believes Ms Sat’s advice must have been sought some time prior to 9 March 2015 before a structured and well-advised counter-offer duly signed by all solicitors acting for the said 5 Rs could be made on that date.

85. Although R40 filed the 2 reports by their AP and TP consultant on 9 March 2015, in fact solicitors for R40 indicated on 13 February 2015 by letter that their AP and TP consultant were in the course of “perfecting” their reports which were ready for exchange by 27 February 2015[85]. A consent summons to that effect had been filed. On 26 February 2015, solicitors for R40 even wrote to inform the As’ solicitors that they were ready to exchange. The exchange, however, did not take place for some unknown reasons. It was explained by Mr Hui at trial that R40’s solicitors did not do the exchange because R40 knew on 25 February 2015 the As’ withdrawal of its TPB application[86]. They wanted to have the reports updated on this.

86. On the first date of trial (2 March 2015), all except R40 had confirmed to the tribunal through counsel that they were not relying on the evidence of the AP and TP consultant. In the tribunal’s judgment, the withdrawal of the As’ application to TPB should not have affected in any way the expert’s assessment of the chance of success of that application. The TP assessment would be done on a hypothetical case basis anyway. R40’s TP report was self-explanatory in this regards. In addition, the plot ratio arrived at by Mr Chan, R40’s AP expert Mr Ng and Ms Sat were identical. The TPB application or its withdrawal was unrelated to the issue of plot ratio. The tribunal therefore does not believe the allegation that Ms Sat needed to consult those reports in coming up with her advice. Alternatively, the AP and TP reports, or their substantially completed reports, were ready a few days before end of February. Mr Cheng’s submission that the said 5 Rs were entitled to consult these reports appears inconsistent with the facts of this case. From the available evidence, Ms Sat did not appear to have consulted the AP and TP reports. If the tribunal were wrong, Ms Sat could still have consulted these reports which were ready a few days before end of February 2015. The tribunal does not believe the delay in accepting the February offer was because experts’ reports were not available when the said 5 Rs needed them most.

87. Although it will be unreasonable to regard 18 February 2015 as the cut-off date, it is equally unreasonable to adopt the April offer as such. Given the tribunal’s views in the preceding paragraphs, the tribunal considers the relevant cut-off date should neither be 9 April[87] nor 9 March 2015[88].

88. Taking all the circumstances of this case into consideration, this tribunal considers the day before trial being the cut-off date fair and reasonable. By the first day of trial, they had already got one full week to consider the offer. Although the first part of the trial was for all evidence other than RDV, the purpose of the trial was for the said 5 Rs to establish their maximum case stated before the tribunal. They had already got Mr Siu’s advice on EUV by then. The tribunal believes the said 5 Rs should have already got their RDV in mind before trial. It was R47’s evidence at trial that she had instructed valuation expert(s) to advise on valuation at around the time table set by the tribunal[89]. Expert directions were given as early as on 17 June 2014. The fact that they made a counter-offer on 9 March 2015 shows that they needed not wait until any formal reports were ready before knowing the RDV at any particular date.

89. As discussed above, the said 5 Rs exaggerated their claims by enlarging their share of EUV by about 70%[90]. The tribunal believes their rejection of the As’ both offers was mainly because they chose to embrace the exaggerated EUV. We do not believe Ms Sat’s valuation, no matter with or without “hope value”, plays any or any significant part in their rejection of the February offer. The February offer simply did not appear attractive enough to them because of the exaggerated EUV. By proceeding to trial as scheduled, the said 5 Rs had already decided to reject the February offer. They were determined to embark on a course for perpetration of a scheme to extract as much as possible a compensation from the As based on a deliberately exaggerated EUV. Substantial time, efforts and costs had to be spent as a result. Since no reasonable expert could have come to the conclusion as Mr Siu did but the said 5 Rs chose to embrace it on proper legal advice, it will be fair and reasonable that the said 5 Rs, apart from being disallowed costs as from the cut-off date, should bear some of the As’ costs. In fact as a matter of principles the said 5 Rs do not express otherwise. They only differ with the As on when the appropriate cut-off date should be and the quantum of costs payable.

90. The following is a rough estimate of the trial time:

i) for the first part of the trial (10 days), the first 5 days were spent on submission, case management of the RDV and additional expert opinion, the evidence of the structural engineer, the condition survey expert and factual witnesses. The second 5 days were spent on joint site inspection (1 day) and dealing with EUV evidence, and the evidence of Mr Chan (about 2 days) and Mr Siu (about 2 days);

ii) for the second part of the trial (4 days), all were spent on evidence of Mr Chan and Ms Sat. Roughly, the time can be split equally for the 2 experts; and

iii) for the third part of the trial (2 days), it was for closing submission of the 3 counsel and the unrepresented parties.

91. Had the case between the As and the said 5 Rs been settled by the February offer before trial, we consider the trial between the As and the unrepresented parties would last for, at most, 6 days dealing with issues raised by the unrepresented parties and those which the As needed to establish anyway statutorily. Furthermore, the main submission concerning applicability or otherwise of Mr Chan’s evidence arising from his disciplinary action came from the said 5 Rs. We therefore consider by reasons of the rejection of the February offer by the said 5 Rs, it is fair and reasonable in the circumstances, on a broad brush basis:

i)   that the said 5 Rs be disallowed their costs as from 2 March 2015, save and except 50% of the total costs payable to Ms Sat for preparing her reports on RDV ;

ii)   to bear 60%[91] of the As’ costs as from and inclusive of 2 March 2015, i.e. the date of trial, including the submission on the applicability of Mr Chan’s evidence arising from his disciplinary proceedings.

Disposition and Orders

92. The costs implications on the parties flowing from the above can briefly be summed up as follows:

A. The said 5 Rs:

i) subject to A(ii) and A(iii) immediately below, are entitled to costs up to and inclusive of 1 March 2015, i.e. the date before trial[92], with certificate for one counsel for the 1^st represented team and certificate for one counsel for the 2^nd represented team, such costs be taxed on the District Court scale to reflect dissatisfaction of escalation of costs by multiple representation and conduct of these related parties[93];

ii) should be disallowed all costs incurred for preparation of Mr Siu’s EUV reports and all legal costs by their respective legal advisors as a result of relying on such  EUV evidence[94];

iii) Should be disallowed 50% of costs incurred for preparation of Ms Sat’s reports on RDV and “hope value” and all legal costs by their respective legal advisors as a result of relying on such reports[95];

iv) Should pay 60% of the As’ costs, including legal costs  and those of Mr Chan in attending trial as from and inclusive of 2 March 2015 onward with certificate for counsel, such costs be taxed on High Court scale, to be shared by them on a joint and several basis[96]. This part overlaps with this tribunal’s indication that the said 5 Rs should bear a certain proportion of the As’ costs in dealing with Ms Sat’s evidence on “hope value”, and therefore it would be appropriate no separate order in the As’ favour in connection with the said “hope value” be made;

v) Should pay 50% of Mr Chan’s fee in preparing his reports in connection with the EUV issues, to be shared by them on a joint and several basis [97];

vi) Should pay the As’ legal costs in dealing with Mr Siu’s evidence on CPS’s EUV prior to 2 March 2015, such costs be on High Court scale, to be shared by them on a joint and several basis[98];

B. R40

i) is entitled to costs of the reports of AP and TP consultant[99];

ii) is entitled to 50% of Ms Sat’s reports on RDV[100]; and

C. The As

i) is entitled to and liable for costs as set out above.

93. As it is the tribunal’s conclusion the said 5 Rs were related and were deliberately arranging their affairs with a view to, inter alia, keeping some of them isolated from costs liabilities, it will therefore be fair their respective liabilities to pay costs to the As be joint and several. It would also be appropriate that the parties’ liabilities under the aforesaid payment heads should be set off against each other. Further, although some items of costs aforesaid can easily be ascertained, we believe there are bound to be items in this long-entangled litigation which may be caught by more than one head, making taxation difficult and costly. Substantial time and costs on taxation will be incurred.

94. On a broad brush assessment of the overall costs of this case, we believe each side’s liabilities to the other are very likely to cancel out against each other. In the circumstances of this case and with a view to saving further time and costs, we believe it is fair and reasonable to make no order as to costs between the As and each of the said 5 Rs for the Application, and the tribunal do make such order. The costs order nisi in favour of the said 5 Rs with R47 taking over the interest of R22 is therefore varied accordingly.

95. As for costs of the costs variation application, the tribunal notes that Mr Mok has made an open offer that there be no order as to costs for the Application at the commencement. It was rejected outright. Now the costs order is so varied. In any event the As can be regarded as having succeeded in the costs variation application. There is no reason why costs should not follow the event. This tribunal therefore makes a costs nisi that the said 5 Rs (with R47 substituting and in place and stead of R22) do pay the As’ costs of the costs variation application, on a joint and several liability basis, on High Court scale with certificate for counsel, to be taxed if not agreed. This is an order nisi, and will be made absolute if there is no application to vary the same within 14 days from today.

LDCS 4000/2013

LAND COMPULSORY SALE APPLICATION NO. 4000 OF 2013

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J U D G M E N T
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1.  This is an application for compulsory sale of all the undivided shares in:

(i) The Remaining Portion of New Kowloon Inland Lot No 167 (“Lot 167RP”);

(ii) Section B of New Kowloon Inland Lot No 167 (“Lot 167B”);

(iii) Section B of New Kowloon Inland Lot No 168 (“Lot 168B”); and

(iv) The Remaining Portion of New Kowloon Inland Lot No 168 (“Lot 168RP”),

which are hereinafter collectively referred to as “the Lots” and individually a “Lot”, for the purpose of redevelopment pursuant to Section 3(1) of the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“the Ordinance”). The application was made on 21 February 2013.

2.  Currently erected on the Lots are 4 rectangular blocks of 7-storey commercial/residential buildings standing parallel to each other and perpendicular to Kwun Tong Road. The 4 blocks, are respectively known as 53, 53A, 55 and 55A of Kwun Tong Road:

Block 1	No 53 Kwun Tong Road	Lot 167RP
Block 2	No 53A Kwun Tong Road	Lot 167B
Block 3	No 55 Kwun Tong Road	Lot 168B
Block 4	No 55A Kwun Tong Road	Lot 168RP

3.  Served by six common staircases, each block has 4 shops fronting Kwun Tong Road, 16 covered car parking spaces (“covered CPS” and generally “CPS”) on the ground floor plus 12 residential units on each of the 6 upper floors. The 4 blocks together with 36 uncovered CPS spread along the boundaries of the site (except the shop front) form an estate development known collectively as the Kai Tak Mansion (“KTM”). Thus, KTM comprises altogether 16 retail shops, 288 residential units and 100 CPS of which 64 are covered and 36 uncovered. The occupation permit of KTM was issued on 27 April 1962, thus it is over 50 years old.

4.  KTM is situated in the Kwun Tong/Ngau Tau Kok region abutting Kwun Tong Road, a busy 12-lane highway along which some 40 bus routes running. It is sandwiched between an 8-storey primary school and a children playground on its 2 sides. At its back there is 10-m wide slope beyond which stands the former Royal Air Force (“RAF”) Headquarters Building and Officers’ Compound (now occupied by the Hong Kong Baptist University Academy of Visual Arts) which are both 2-storey high and Grade 1 listed buildings.  Along Kwun Tong Road and to the further northwest of KTM, there is a single storey Grade 3 listed building – the Sam Shan Kwok Wong Temple. Further away from the temple is a public housing estate – Ping Shek Estate which is with limited retail activities. At the other end of KTM next to the aforementioned primary school, there is a footbridge. This is the only road crossing facility from the KTM to the other side of this part of the Kwun Tong Road which is 12-lane. Across the road, there is a public housing estate known as Kai Yip Estate. It is also with very limited retail activities.

Active Respondents

5.  Each Lot is governed by one Deed of Mutual Covenant according to which each lot is allotted 82 undivided shares so that:

(i) each of the 4 shops and 72 residential units on each lot is allotted 1/82 undivided share (making a total of 76/82 undivided shares); whereas

(ii) the remaining 6/82 undivided shares of each of the Lots are allotted to the 100 CPS in the Lots. Each of the 100 CPS is therefore allotted 1/100 undivided part of:

(a) 6/82 undivided shares of Lot 167RP;

(b) 6/82 undivided shares of Lot 167B;

(c) 6/82 undivided shares of Lot 168B; and

(d) 6/82 undivided shares of Lot 168RP.

6.  The first 3 applicants (hereinafter referred to A1, A2 or A3 where necessary), being the majority owners of the Lots took out the present applicationon 21 February 2013 (“the Application”). At that time, there were 38 respondents (hereinafter referred to R1, R2, R3 etc as the case may be) as follows:

(i) 29 were minority owners in the Application, being R1 to R23, R26, R29 to R31 & R33 and R34. Out of this group:

(a) R22 was the owner of 82 CPS who had then sold CPS 28 to R33 and CPS 35 to R34 not too long before the Application; R22 also agreed to sell CPS 66 to R46 on 15 September 2014 with a completion date within 6 months[1].

(b) The others are unit owners as follows:

Block 1, No 53 Kwun Tong Road

Unit No.	1	2	3	4	5	6	7	8	9	10	11	12
G/F (Shop)
1/F		R31							R1
2/F
3/F								R2				R3
4/F									R4
5/F
6/F

Block 2, No 53A Kwun Tong Road

Unit No.	1	2	3	4	5	6	7	8	9	10	11	12
G/F (Shop)
1/F					R5
2/F										R6		R7
3/F
4/F
5/F												R5
6/F

Block 3, No 55 Kwun Tong Road

Unit No.	1	2	3	4	5	6	7	8	9	10	11	12
G/F (Shop)
1/F
2/F								R8	R23		R29
3/F
4/F							R30	R9		R26
5/F										R10
6/F								R11	R12

Block 4, No 55A Kwun Tong Road

Unit No.	1	2	3	4	5	6	7	8	9	10	11	12
G/F (Shop)			R13
1/F
2/F	R14		R15									R16
3/F	R17									R18
4/F	R19						R20
5/F			R21
6/F

(c) R1, R3, R4, R10, R18 & R20 had entered into Sale and Purchase Agreements to sell their respective interests to A1, A2 and A3.

(ii) 4 respondents were joined in case they have a claim of interest over a minority owner. They are R24, R25 R27 and R28.

(iii) 5 respondents, namely, R32, R35, R36, R37 and R38, had entered into Sale and Purchase Agreements with R16, R6, R21, R14, R11, R15 and R19 to purchase their respective interests.

7.  Apart from interest in CPS, A1, A2 and A3 altogether owned at the commencement of the Application:

(i) 71/82 undivided shares (i.e. 86.59%) in Lot 167RP;

(ii) 72/82 undivided shares (i.e. 87.81%) in Lot 167B;

(iii) 67/82 undivided shares (i.e. 81.71%) in Lot 168B; and

(iv) 67/82 undivided shares (i.e. 81.71%) in Lot 168RP

8.  A1 further owned 16 CPS (Nos. 1 to 14, 18 & 25), being allotted in total 16/100 undivided parts of:

(i) 6/82 undivided shares of Lot 167RP;

(ii) 6/82 undivided shares of Lot 167B;

(iii) 6/82 undivided shares of Lot 168B; and

(iv) 6/82 undivided shares of Lot 168RP.

9.  Accordingly, ignoring the complication of calculating the exact undivided share percentage in each Lot attributable to the 16 CPS owned by A1, at the time of filing of the Application, the A1, A2 and A3 as a whole owned more than 80% of the undivided shares in each of the Lots.

10.  Since the Application, there were the following developments resulting in some new respondents being joined and proceedings against some other respondents being discontinued:

(i) The applicants completed the purchase of the units from R1, R3, R4, R10, R18 & R20 and R5 & R7 and discontinued the proceedings against them.

(ii) Wong Wing Wah as R32 was struck out and she becomes A4 when:

(a) She completed the purchase of the respective units from R6, R16 & R31 and the proceedings against them have been discontinued[2];

(b) on 13 May 2013, R23 assigned its interest in Apartment 9, 2/F, No 55 Kwun Tong Road to R25 who was then claiming interest in the unit in turn assigned the interest to Wong Wing Wah. Proceedings against R23 and R25 have been discontinued[3].

(iii) In respect of 2 residential units each involving a challenge of the sale to the registered owners:

(a) The sale of Apartment 7, 4/F, No 55 Kwun Tong Road by R24 to R30 was challenged by R25 in HCA 1554/2012 which resulted in a judgment dated 14 November 2013 setting aside the sale. R24 is restored as the registered owner and it is prohibited by injunction orders from inter alia disposition. Proceedings against R30 have been discontinued.

(b) Proceedings against R28, the wife of R27 who is the original owner of Apartment 10, 4/F, No 55 Kwun Tong Road, have been discontinued when R28 and A4 entered into a Provisional Agreement for Sale and Purchase of the unit conditional upon R28 obtaining a rescission of the sale of the unit by the provisional liquidators of the Incorporated Owners to R26 and R28 becoming the registered owner of the unit[4].

(iv) The purchase by R35, R36, R37 & R38 of the respective units from R21, R14, R11, R15 & R19 were completed and the proceedings against R11, R14, R15, R19 & R21 have been discontinued.

(v) R12 sold Apartment 9, 6/F, No 55 Kwun Tong Road and the purchaser is joined as R45. Proceedings against R12 have been discontinued.

(vi) R22

(a) sold CPS 100 and the purchaser is joined as R39;

(b) sold CPS 49 and the purchaser is joined as R40;

(c) mortgaged CPS nos 71, 72, 75, 83-90 & 93-99 and the mortgagee is joined as R41;

(d) sold CPS 29 and the purchaser is joined as R42;

(e) sold CPS 30 and the purchaser is joined as R43;

(f) sold CPS nos 36 & 37 and the purchaser is joined as R44; and

(g) sold CPS 66 on 15 September 2014 and the purchaser is joined as R46 by the Tribunal’s Order of 3 November 2014.

All these CPS owners are outstanding respondents.

11.  In addition to the CPS-related respondents, the other outstanding respondents consist of the following:

(i) R2: Apartment 8, 3/F, No 53 Kwun Tong Road;

(ii) R8: Apartment 8, 2/F, No 55 Kwun Tong Road;

(iii) R9: Apartment 8, 4/F, No 55 Kwun Tong Road;

(iv) R13: Shop 3, No 55A Kwun Tong Road;

(v) R17: Apartment 1, 3/F, No 55A Kwun Tong Road;

(vi) R24: Apartment 7, 4/F, No 55 Kwun Tong Road;

(vii) R26: Apartment 10, 4/F, No 55 Kwun Tong Road;

(viii) R27: previous owner of Apartment 10, 4/F, No 55 Kwun Tong Road;

(ix) R35: Apartment 3, 5/F, No 55A Kwun Tong Road;

(x) R36: Apartment 1, 2/F, No 55A Kwun Tong Road and Apartment 8, 6/F, No 55 Kwun Tong Road;

(xi) R37: Apartment 3, 2/F, No 55A Kwun Tong Road;

(xii) R38: Apartment 1, 4/F, No 55A Kwun Tong Road;

(xiii) R45: Apartment 9, 6/F, No 55 Kwun Tong Road.

12.  Among the outstanding respondents:

(i) 8 respondents, being R2, R5, R7, R8, R9, R12, R13 (who had then become represented) and R17, filed their Notice of Opposition in person.

(ii) Out of the respondents acting in person:

(a) R2 filed a witness statement of 20 January 2014 and another one of 13 October 2014;

(b) R8 filed a witness statement of 20 January 2014, and a Rebuttal Report of 17 October 2014;

(c) R9 filed a witness statement of 19 December 2013, and a Rebuttal Report of 17 October 2014;

(d) R13 filed a witness statement of 3 March 2015;and

(e) R17 filed a witness statement of 21 August 2014, and a Rebuttal Report of 17 October 2014;

(iii) 6 respondents, being R29, R22, R33 & R34, R40 & R44, filed their Notice of Opposition through their legal representatives.

13.  In furtherance of the issues in dispute, out of the 7 represented respondents (including R13):

(i) R22 (being owner of 82 CPS) filed a witness statement, and together with R33 and R34 filed a Valuation Report dated 18 September 2014 prepared by its valuation expert, Mr Keith Siu (hereinafter referred to as “Mr Siu”) on the market values of all units in KTM and a Rebuttal Report dated 17 October 2014.

(ii) R13 (owner of Shop 3 of No 55A) filed a Valuation Report dated 23 September 2014  and a Rebuttal Report dated 15 October 2014  prepared by another valuation expert whose appointment was however subsequently terminated and the valuation report (as well as the rebuttal report) was withdrawn from evidence before trial.

(iii) R40 filed a Valuation Report dated 9 April 2015 only on redevelopment value prepared by its valuation expert, Ms Sat Wai Ling (hereinafter referred to as “Ms Sat”) and a Supplemental Report on “Hope Value” dated 23 April 2015.

14.  The applicants have filed the following documents in support of the Application:

(i) three witness statements of A4;

(ii) a Condition Survey Report by Mr Benson Wong (“Mr Wong”) dated 11 August 2014;

(iii) a Structural Assessment Report by Mr So Kin Shing (“Mr So”) dated 16 June 2014;

(iv) the following reports by Mr Charles Chan (“Mr Chan”) of Savills Valuation and Professional Services Limited (“Savills”);

(a) The Application Report of 18 January 2013;

(b) The Supplemental Report of 7 August 2014;

(c) The Rebuttal Report dated 16 September 2014 to R17’s witness statement;

(d) The Rebuttal Report dated 13 October 2014 to the valuation report prepared on behalf of R13;

(e) The Rebuttal Report dated 13 October 2014 to  the Valuation Report of R22, R33 & R34;

(f) The Valuation Report on redevelopment value dated 9 April 2015; and

(g) The Supplemental Report on redevelopment value dated 20 April 2015.

15.  Having set out above the background, in short, the proceedings are now being fought between the following 4 main groups, namely,

(i) the Applicants who are represented by counsel Mr Mok Yeuk Chi (“Mr Mok”);

(ii) R22, who is the owner of 82 CPS, R33 and R34 who respectively purchased 2 CPS from R22 before the Application. They are represented by the same firm of solicitors and appeared by counsel Mr Bernard Mak (“Mr Mak”) and Mr Bosco Cheng (“Mr Cheng”);

(iii) R40 and R44 who respectively purchased 2 CPS from R22 after the Application. They are represented by another firm of solicitors and appeared by counsel Mr George Hui (Mr Hui”) and

(iv) R2, R8, R9, R13 and R17 who are all acting in person and are each given opportunities during trial to give evidence, cross-examine witnesses and experts and make submission.

16.  Attendance of R35, R36, R37, R38 and R45 has been excused by order of Tribunal dated 27 February 2015. R27 filed no objection and his attendance was also dispensed of.

Section 3 of the Ordinance – Ownership of the Applicants

17.  Section 3(1) of the Ordinance requires the applicants to have not less than 90% of the undivided shares in a lot before it can make an application.

18.  Section 3(2) of the Ordinance also states that an application under subsection (1) may cover 2 or more lots where the majority owner owns not less than the percentage of the undivided shares in each lot specified in subsection (1).

19.  Section 3(5) of the Ordinance states that the Chief Executive in Council may, by notice in the Gazette, specify a percentage lower than the percentage mentioned in subsection (1) in respect of a lot belonging to a class of lots specified in the notice.

20.  The Land (Compulsory Sale for Redevelopment (Specification of Lower Percentage) Notice made under section 3(5) of the Ordinance (“the Notice”) was gazetted on 22 January 2010 and tabled at the Legislative Council meeting on 27 January 2010. It came into operation on 1 April 2010.   Section 3 of the Notice lowered the threshold for compulsory sale, insofar as it is applicable, from 90% to 80%. Section 4(1)(b) of the Notice specified one of the classes for the purposes of Section 3 as “a lot with each of the building erected on the lot issued with an occupation permit at least 50 years before the relevant date (which is the date of the Application)”.  Since the occupation permit in respect of KTM was issued[5] more than 50 years as at the date of Application, KTM is covered by the Notice and the applicable percentage is 80%.

21.  When the Application was commenced by A1, A2 and A3 on 21 February 2013, they altogether owned on average of more than 80.0% of the undivided shares in each of the Lots.  The applicants were therefore entitled to make the Application under section 3(2) of the Ordinance.

EUV as at 1 December 2012

22.  Under section 3(1)(a) of the Ordinance, the applicants have to produce a valuation report pursuant to Part 1 of Schedule 1 to the Ordinance, prepared not earlier than 3 months before the date of the Application, setting out the assessed market value of each property on the Lots:

(i) on a vacant possession basis;

(ii) assessed as if the lot could not be made the subject of an application for an order for sale; and

(iii) not taking into account the redevelopment potential of the property or the lot.

23.  The Application was accompanied by an valuation report dated 18 January 2013 containing assessments of the values of all units (which are conveniently termed as the existing use values, the “EUV” of all units) in KTM on the Lots as at 1 December 2012 (“Application Report”).

24.  The Application Report was prepared not earlier than 3 months before the date of the Application, i.e. 21 February 2013 and is therefore, in our view, in compliance with section 3 of the Ordinance.

25.  However, under Section 4(1)(a) of the Ordinance,

“the Tribunal shall determine an application under section 3(1) by……,if any minority owner of the lot the subject of the application disputes the value of any property as assessed in the application, hearing and determining the dispute”

26.  In the Application Report of 18 January 2013, Mr Chan explained the method of valuation and the process of his assessment to arrive at the EUV of each unit of the Buildings.

27.  In his EUV valuation of the domestic units of the Buildings, Mr Chan adopted the following methodology :

(i) He selected Unit 6, 4/F, No 55 Kwun Tong Road as the reference unit (“the Reference Domestic Unit”) to fix the unit price.

(ii) The unit price of the Reference Domestic Unit was first assessed by making reference to market comparables.  He took into account 14 comparable transactions in 9 different buildings in San Po Kong to the northwest of Kwun Tong Road.  After making what he considered the necessary adjustments (for time, location, floor level, age, quantum, view, lighting & ventilation and noise) for all these comparable transactions, he averaged out the adjusted unit rates of the comparables save for four transactions in the upper and lower range which he considered to be out of tone to arrive at the unit price of the Reference Domestic Unit.

(iii) He then arrived at the EUV of each and every domestic unit in KTM by making adjustment to floor level, top floor effect, size, view, lighting & ventilation, noise, privacy and internal conditions relative to the Reference Domestic Unit.

28.  Similar method was used by Mr Chan in assessing the EUV of the ground floor shops:

(i) He selected Shop No 3, Ground Floor, No 53A Kwun Tong Road as the Reference Shop Unit.  He then took into account 3 shop transactions in Ngau Tau Kok to the southeast of Kwun Tong Road as comparables. After making what he regarded the necessary adjustments (for time, location & visibility, age, quantum, layout, frontage, return frontage and headroom) for all these comparables, he took the average of the adjusted unit rates of these comparables to come up with the unit price of the Reference Shop Unit.

(ii) He then came up with the EUV of the other shop units by considering the different attributes between these shop units and the Reference Shop Unit and made adjustment to the location, size, layout and frontage accordingly.

29.  Similarly, Mr Chan adopted the same method as above in coming up with the CPS’s EUV:

(i) He first selected a covered CPS with proper access as the Reference CPS.  He then took into account car parking transactions in four buildings in Ngau Tau Kok, including Tak Po Garden. After making what he regarded as the necessary adjustments (for time, location & floor level) for all these comparable transactions, he took the average of all the adjusted unit rates of these comparables to come up with the unit price of the Reference CPS.

(ii) He further took into account the different attributes between the Reference CPS and the remaining CPS and accordingly made adjustments by reference to its accessibility and whether it is an open or covered car park before coming up with the EUV of all the remaining CPS.

30.  Mr Chan updated the EUV of all KTM’s units by his Supplemental Report of 7 August 2014 when more units in KTM were available for inspection and by reference to the updated property index prepared by the Rating and Valuation Department (“RVD”).  In this supplemental report, Mr Chan basically repeated the same exercise which he did in the Application Report.

R2: Apartment 8, 3/F, Block 1 (No. 53 Kwun Tong Road)

31.  Mr Chan assessed the EUV of R2’s unit at Apartment 8, 3/F, Block 1 in the sum of $3,200,000 as at 1 December 2012 excluding redevelopment potential.

32.  Madam Ip Wai Har (“Madam Ip”), one of the registered owners of this unit, appeared on behalf of R2. She raised her concern that according to the Private Domestic Price Index published by the RVD, the prices of domestic units had increased from about 90 in early 2006 to some 283 in 2015[6] (i.e. 3.14 times) but Mr Chan’s assessment had not reflected the change. Nevertheless, Madam Ip appears to have failed to appreciate that valuation of properties should best be determined by reference to comparables instead of to a particular index which is at best an average which may not be applicable to every property particularly when there has been a substantial lapse in time: see also §60 below.

33.  Madam Ip also referred the Tribunal to an unsuccessful attempt of a joint sale for redevelopment of KTM in 2007 when she was advised by Centaline Surveyors Limited, a subsidiary of the Centaline Group that her unit could fetch about $4,800,000 or more. We consider she is totally misconceived because the said advice has taken into account the prospect of redevelopment which is not in compliance with the statutory requirement under Part 1, Schedule 1 of the Ordinance[7]. In addition, as correctly pointed out by Mr Chan in response, the reference date of the EUV should be 1 December 2012 instead a date in 2015.

34.  Madam Ip tried also to refer to certain sales in Sheung Shui in the New Territories and suggested that the transaction prices were higher than Mr Chan’s assessment of her unit. Notwithstanding Sheung Shui being a wholly different locality from the Ngau Tau Kok or Kowloon Bay where KTM is situated, Madam Ip, however, could not offer any specific sales information which might be comparable to her unit. As correctly pointed out by Mr Chan, the price range in Sheung Shui could vary considerably depending on the age, facilities and quality of the premises. Without further information and/or reasoned analysis we are afraid the mere assertion that one’s own unit is more valuable than others is of little help to one’s case.

35.  In our view, Madam Ip could not provide any useful comparable transaction that can upset Mr Chan’s assessment.

R8: Apartment 8, 2/F, Block 3 (No.55 Kwun Tong Road)

36.  R8, being the registered owner of Apartment 8, 2/F, Block 3, appeared in person. His submission, in a nutshell, is that he considers his unit assessed at $3,260,000 undervalued. However, it appears to the Tribunal that he fails to understand the difference between EUV and RDV. Most of his comments or challenges focused on the redevelopment value of KTM instead of the EUV i.e. a valuation without taking into consideration of redevelopment potential. The current value of KTM for redevelopment which he concerns most is normally termed the redevelopment value (“RDV”). It will be dealt with in the later part of this judgment when we proceed to determine the auction reserve price of the Lots pursuant to Schedule 2 to the Ordinance after satisfying that an order for sale should be granted under section 4(2) of the Ordinance.

R9: Apartment 8, 4/F, Block 3 (No. 55 Kwun Tong Road)

37.  R9 is the registered owner of Apartment 8, 4/F, Block 3. Mr Chan attributed an EUV of $3,130,000 to his unit. He remarked that Mr Chan had not made sufficient adjustment to his unit respecting location by reference to the San Po Kong comparables. It is R9’s case that KTM is located in an easily accessible location of Kowloon abutting the 12-lane Kwun Tong Road with some 40 bus routes running. Mr Chan agreed that transport might be convenient when the traffic is southeast bound but would be otherwise if someone was travelling in the opposite direction. The aforementioned footbridge over the 12-lane highway is the only road crossing facility of the region.

38.  Mr Chan explained that he had already made an upward adjustment of +5% for location having regard to, for instance, the price level of domestic units in Tak Po Garden along Kwun Tong Road, though the latter was further southeast and was more into the centre of Ngau Tau Kok, and is considered at a more convenient location than KTM. We accept Mr Chan’s explanation.

39.  R9 queried why Mr Chan did not refer to comparable transactions in other part of Ngau Tau Kok, say along Ting Fu Street. Once again, like the case of R2, R9 could not produce at all any comparable transaction that may cast doubts on Mr Chan’s assessment.

40.  R9 also queried Mr Chan’s adjustment for noise impact. It is noted that there are 12 units per floor for each of the 4 rectangular blocks of KTM. One of the short ends of each rectangular block is abutting Kwun Tong Road. The 12 units in each block are arranged in 6 rows, each with 2 units with apartment nos 1 and 2 nearest to Kwun Tong Road and nos 11 and 12 the furthest. The Reference Domestic Unit is situated at the third row from Kwun Tong Road. Mr Chan adopted an adjustment factor of -10% for noise effect for the first row and -5% for the second row. However, Mr Chan adopted a nil adjustment for the fourth row where R9’s unit is situated, and only a blanket rate of +3% for units on the fifth and sixth rows. R9 suggested a linear adjustment be adopted instead of the non-linear progressive adjustment now adopted by Mr Chan. Accordingly, said R9, his unit should receive at least some upward adjustment as it was further away from Kwun Tong Road which is the main source of noise than the Reference Domestic Unit. We are of the opinion that the drop in noise intensity is not proportional to distance in a linear relationship, but rather, to the square of the distance. Accordingly, the closer to the noise source the more severe that one may be affected. On the other hand the difference will become less significant if one is moving further away from the source. We accept Mr Chan proposed manner of adjustment for noise.

41.  R9 also suggested that according to the information from RVD[8], the saleable area of his unit should be 52.2 m² instead of 50.2 m² as now adopted by Mr Chan. Mr Chan explained that his adopted saleable area was derived from measurement of the approved building plans for the subject premises. He said he was in no position to comment on how RVD came up with their set of measurements. Mr Chan, however, confirmed that upon receipt of R9’s suggestion in December 2013, he had reviewed his set of measurements and found his were correct. Indeed, Mr Siu, the expert appointed by R22, R33 & R34, adopted the same 50.2 m² as the saleable area for R9’s unit and similar type of units in his valuation.

42.  Mr Chan explained that his measurement of saleable area is in accordance with the code of measurement practice promulgated by the Hong Kong Institute of Surveyors (“HKIS”) which is accepted by the Government. He also explained that in the old days when RVD conducted their measurement for rating purposes, they had adopted a different standard. According to him, although RVD is now reviewing and updating their measurements with a view to bringing them in line with the definition of saleable area, RVD’s exercise had not yet been completed.

43.  R9 also referred to information from the internet provided by Centadata.com that units similar to his in KTM were all described as having a saleable area of 52.2 m² instead of 50.2 m². However, there is simply no evidence from R9 as to how Centadata.com or Centaline Property Agency Limited came up with the information available in their website.  We believe that it is entirely possible that Centaline, being an estate agent, may simply be adopting the information from RVD.

44.  In further support that 52.2 m² should be used, R9 said that the same has been adopted in the joint sale for development in 2007 initiated by Centaline Surveyors Limited. Alternatively, R9 suggested that Mr Chan should have conducted on-site measurements in order to determine the saleable areas of all the premises.

45.  Mr Chan explained that on-site measurements would not usually be conducted because of the difficulty in ascertaining the thickness of external walls which, by definition of saleable area, should be included. In this connection, the Tribunal would like to refer to the Court of First Instance (“CFI”) decision in Leung Man Cheung and Others v. Secretary for Planning and Lands and Another[9]. It is considered that measurement based on the latest approved building plans should be accepted in preference to on-site measurements.

46.  Having heard Mr Chan’s evidence, we accept the saleable area of R9’s unit having a measurement of 50.2 m².

47.  Mr Chan conceded, however, that when he prepared his Supplemental Report of 7 August 2014, he had not inspected R9’s unit. Having inspected R9’s unit during our joint inspection on 4 March 2015, Mr Chan agreed that an upward adjustment of +5% should be added to reflect the better internal condition of R9’s unit. We consider Mr Chan’s proposed upward adjustment reasonable and fair.

R13: Shop No 3, G/F, Block 4 (55A Kwun Tong Road)

48.  R13 is the registered owner of Shop No 3, G/F, 55A Kwun Tong Road, the only shop unit not owned by the applicants. R13 is a bone setter, operating his own clinic at the shop. Mr Chan assessed that the EUV of his unit was $4,750,000.

49.  Both Mr Chan and Mr Siu found the saleable area of his shop being 22.5 m². R13, however, disagreed and queried why the toilet (about 3 m²) attached to his unit was not counted towards the saleable area of his shop. When we conducted our site inspection on 4 March 2015, we did find out that the toilet was structurally partitioned for the exclusive use and enjoyment of the owners/occupiers of R13’s unit. However, by the Assignment vide memorial no 418285 dated 30 October 1963 executed by the developer of KTM in favour of R13’s predecessor in title, it is provided that:

“the Vendor hereby assigns unto the Purchaser … the right to the exclusive use and enjoyment of Shop 3 on the Ground Floor … AND TOGETHER also with a right for the Purchaser or the owners and occupiers for the time being of the premises hereby assigned her or their tenants servants visitors workmen and other persons by her or them in common with the owners and occupiers for the time being of the adjoining Shop 4 their tenants servants visitors workmen and other persons by them authorized to use the Water Closet shown and coloured Blue on the said plan marked “B” hereunto annexed …” (underline added)

50.  R13 explained that prior to his becoming the owner of the shop on 1 December 1986 (i.e. more than 28 years ago), both Shop 3 and Shop 4 were under the same ownership. When he purchased Shop 3, he made arrangement with the Shop 4 owner to convert the toilet for his sole use and occupation. On a balance of probability, we accept R13’s evidence in this respect. However, it is noted that the right conferred upon owners of Shops 3 and 4 is described as a right but not an exclusive right.  In The Incorporated Owners of Goa Building v Wui Tat Company Limited[10], the Court of Appeal (“CA”) considered that even a developer was given the exclusive right to erect signs, etc on the external walls, section 34H[11] of BMO does not engage and the external walls are still considered common part of the building. Similar conclusion was reached in The Incorporated Owners of Shatin New Town v Yeung Kui[12]. In that case, although the relevant deed of mutual covenant gave the developer the exclusive right to erect pipes on the external wall, it was only for a limited purpose and did not gave exclusive possession of the exterior wall. Both cases have recently been applied in the CFI decision in 聯基新樓業主立案法團v Yan Yan Motors Limited[13]. In the present case, the right is not even described as an exclusive right, not to mention that the usual magic phrase of “the exclusive right to the use, occupation or enjoyment of …” has not been used. Under section 2 and Schedule 1 of the Building Management Ordinance (“BMO”), toilets, water closets not designated for the exclusive use, occupation or enjoyment of an owner by any instrument are in fact common parts of a building.

51.  In light of the above, we conclude that the area of the toilet cannot be included as saleable area of R13’s unit. It is an area to which R13 has no exclusive right to enjoy and is a common part.

52.  R13 then suggested that his shop premises being situated off Kwun Tong Road are superior in location than all the comparables relied on by Mr Chan. He commented that the placard for his business can be readily visible by all passers-by, no matter by vehicles or otherwise. He further maintained that his clients came from all over Hong Kong and found his shop convenient.

53.  Indeed, the three shop comparables adopted by Mr Chan are as follows:

54.  Mr Siu on behalf of R22, R33 and R34 did not agree on the use of any of the aforesaid comparables in terms of location, He introduced three other comparables[14], all in the San Po Kong district, as follows:

* Value of open yard, etc is assumed to be worth 1/6^th of that of the ground floor shop.

55.  All these comparables were inspected by the Tribunal together with representatives of the parties on 4 March 2015.

Shop No 24, G/F, Wang Kwong Building (C1)

56.  This comparable is the best in terms of time. Similar to R13’s shop, it is used as a doctor’s clinic[15]. We have reviewed the adjustments made by Mr Chan and consider perhaps the most controversial adjustment in R13’s opinion may be the downward adjustment of 10% for location and visibility, i.e. Mr Chan considered this comparable superior than the Reference Shop Unit and R13’s shop.

57.  Despite R13’s able argument, we are totally not persuaded either the Reference Shop Unit or his shop enjoy a good pedestrian flow. We take the view that KTM is situated at an isolated location with limited passers-by. R13’s suggestion that his client would come from all over the Hong Kong only suggests the trade or business he is now doing is neither dependent on location nor pedestrian flow which are important elements in determining landed properties value. We consider R13’s goodwill more important than location for the survival of his trade or business.

58.  In our view, the location of comparable C1 is superior than R13’s shop because it serves a larger hinterland or neighbourhood including for instance the residents of Jade Field Garden, Tak Po Garden to the northwest, Lee Kee Building and even Amoy Gardens to the further southeast on the same side of Ngau Tau Kok Road. Nevertheless, we consider a -10% adjustment for location excessive especially in light of Mr Chan himself seeing fit to adopt 0% and +5% for comparables C2 and C3 respectively. We are prepared to adopt -5% instead.

59.  Save for the above, we are prepared to adopt all other adjustments by Mr Chan.

Shop No 13, G/F, Jade Field Garden (C2) and Shop No 37, G/F, Tak Po Garden (C3)

60.  The transactions of these two comparables took place more than one year from the relevant date. Following the Private Retail Price Index published by RVD, Mr Chan made adjustment for time by as much as +48% and +55% respectively to C2 and C3. This is undesirable because the preparation of an index is more or less an averaging exercise and there is no guarantee that the price trend for the subject location or property necessarily follows the index. This is particularly the case for shop premises where a slight variation in location would lead to significant difference in value. Therefore, the larger the adjustment figure is, the more likely that an error will ensue. We would only adopt these two comparables as a check on the valuation rather than comparables by themselves. Meantime, we would adopt all the adjustments proposed by Mr Chan on a provisional basis for the purpose of doing the preliminary analysis to be set out in §65 below.

Shop 11 (No 28 Choi Hung Road) and Shop 10 (No 26 Choi Hung Road), G/F (S1 & S2)

61.  Each of these two comparables on its own has a saleable area (excluding yard) of 74 m² as adopted by Mr Siu[16]. Its size is more than 3 times of that of the Reference Shop Unit or R13’s shop unit. The fact that these two adjoining units were all transacted on the same date suggests that it was very likely they were part of a larger transaction. By this reason alone they are not good comparables at all, although Mr Chan, in his Rebuttal Report of 13 October 2014 only commented on the 5.6% adjustment suggested by Mr Siu insufficient[17].

62.  Since Mr Chan had not proposed any proper adjustment for size, again for checking purpose, we are going to adopt -20%. Meanwhile, apart from this, all the other adjustments proposed by Mr Siu are adopted on a provisional basis for the purpose of doing the preliminary analysis to be set out in §65 below.

Shop 6, G/F, Rich Shopping Centre, San Po Kong Mansion (S3)

63.  The transaction of this comparable took place close to the relevant date of valuation.

64.  Although Mr Chan did not comment on this comparable, we are going to adopt a larger adjustment of 4% for its larger size than the Reference Shop Unit or R13’s shop.  In the meantime, all other adjustments proposed by Mr Siu are adopted on a provisional basisfor the purpose of doing the preliminary analysis to be set out in §65 below.

65.  The comparables with their adjustments are accordingly shown in the table below:

66.  As we have commented above that C2, C3, S1 and S2 are not desirable comparables, we are not going to take the average of the adjusted result to determine the EUV of the Reference Shop Unit. However, they serve to show that S3 is obviously out of the tone[19]. In this regard, we are going to adopt $232,000/m² for the assessment of the EUV of the Reference Shop Unit.

67.  R13 has suggested that some 25 years ago when he purchased his shop, its value was double that of a domestic unit in KTM. We consider there is simply no logical basis to use the ratio of value of a shop to that of a domestic unit in KTM some 25 years ago as a yardstick of their respective values today because the market as well as the local conditions might have undergone substantial changes.

68.  Accordingly, the EUV of all shop premises in KTM are assessed in the table as shown at Appendix A hereof. Mr Siu, in his valuation report of 18 September 2014, had suggested adjustments for layout (6.4%), corner frontage (5%) as well as size (0.46%) between the Reference Shop Unit and the two shops at the end of each block. However, in view of the marginal difference in depth (about 1 m) between shops which have similar frontage, we consider the adjustments for size and depth proposed by him inappropriate.

R17: Apartment 1, 3/F, Block 4 (No. 55A Kwun Tong Road)

69.  Mr Leung Ting Kuen (“Mr Leung”) appeared on behalf of R17 who is the registered owner of Apartment 1, 3/F, Block 4. It is a unit at the front of the building facing directly Kwun Tong Road. His unit was assessed an EUV of $3,810,000. Mr Leung complained that Mr Chan had made too much downward adjustment (-10%) to his unit in respect of noise. We have expressed our view on noise adjustment in the early part of this judgment and consider Mr Chan’s adjustment reasonable[20]. Mr Siu does not appear to differ either.

70.  R17 seemed to suggest in his witness statement filed in August 2014 that the relative values of units in KTM fixed by the developer when it was first sold in the early 1960s[21] was one of the considerations in the valuation. Mr Chan responded in his report that the fixing of prices of various units in a real estate development only reflected the pricing strategy of the developer when the properties were launched for sale, and was not necessarily the same as the difference in the then market values of large and small units. We agree to Mr Chan’s observation in this respect.

71.  R17, whose unit is Apartment 1[22], said in her witness statement that her apartment belongs to the category of large unit in KTM. According to her, large units were more expensive than small ones[23]. The listed price difference between these units when KTM was put up for sale by the developer was then about 35%. According to her, this price difference is more or less maintained at the same level after 10 to 20 years. It appears R17 is suggesting that large units should remain more valuable than smaller ones by at least 35% now. Mr Chan has conducted a “paired comparison” by pairing up transactions of large and small units of KTM in different years in his rebuttal report dated 16 September 2014 to refute R17’s proposition[24]. In his analysis, 3 pairs of large and small units transacted at different time were chosen. Though minor adjustments may still be made to reflect the difference in time and floor level in appropriate circumstances, each pair is very similar in most respects save for size. Mr Chan takes a view, and we consider correctly and fairly, that it will be more appropriate and meaningful to compare their respective unit prices of the paired units instead of their gross transaction price with a view to testing R17’s proposition. His analysis is set out in Bundle B2/414. He compared 3 pairs and assessed their respective values as at November 2002, July 1996 and July 2001. Contrary to what R17 has asserted, the result of his analysis is that the unit price of large apartments is less than smaller apartments. After reviewing his report, we accept Mr Chan’s analysis.  

72.  R17 acting through Mr Leung, like many other lay respondents, does not appear to understand the statutory scheme of compulsory sale prescribed under the Ordinance. Mr Leung spent quite a lot of time recapping what had happened during and since the collective sale of KTM initiated by Centaline Surveyors Limited in 2007 and since then. In our judgment, this history is only relevant as to background but is of little use, if any, to our determination of the Application under the Ordinance. According to the 3^rd witness statement of A4[25] which we accept, A1 only started negotiation with the previous “Harmonizing Committee for the Joint Property Sale of Kai Tak Mansion Blocks One to Four”[26] on or about 29 March 2010. The applicants began to acquire the units in KTM in July 2010, but not through the Centaline Group. Apparently, the applicants have not participated in the joint sale of units in KTM[27].

73.  Neither is Mr Leung’s reference to the movement of price index published by RVD of any assistance on valuation. We have explained in §33 above that the price fixed for the collective sale had taken into consideration the prospect of redevelopment of KTM. The prices fixed for the purpose do not meet the statutory requirement under Part 1 of Schedule1 to the Ordinance.

Difference between Mr Chan and Mr Siu in the assessment of the EUV of domestic units

74.  Mr Siu had adopted 5 comparables in common with Mr Chan and later introduced 4 more which were all transacted in December 2012. By reference to the Statement of Agreements and Disagreements dated 26 February 2015, they agreed to adopt these 5 comparables in common. They also agreed the saleable area in respect of 4 of them. Surprisingly, they saw fit to disagree on the remaining one, which is 32.5 m² according to Mr Chan and 32.52 m² according to Mr Siu, i.e. a mere difference of only 0.02 m² , or about 0.08% of the total area no matter by reference to which figure! It is most undesirable and we really cannot see any rational ground for both experts insisting on their own figures, given the small difference. In view of the negligible difference, we adopt 32.5 m².

75.  In respect of these 5 comparables, they could agree on the adjustments for time, the top floor effect, quantum and building age but not for the adjustments in respect of floor level difference and location. The table of adjustments contained in the Statement of Agreements and Disagreements aforementioned[28] is reproduced as follows. The adjustment factors therein proposed are to be applied to a comparable with a view to finding out the value of the Reference Domestic Unit[29]. From what has been proposed, both experts appeared to agree that, since KTM comprises 4 blocks all without service of lifts, the lower a unit is situated, the more expensive it will be:

76.  Having reviewed the above and particularly the comments by Mr Chan in his Rebuttal Report of 13 October 2014[30], we prefer the adjustments proposed by Mr Chan. We accept that KTM is closer to Choi Hung Mass Transit Railway station compared with other comparables and therefore justifies a higher adjustment of +5%[31]. We also consider Mr Chan’s proposed adjustments for level difference reflect the actual market condition which, we believe, is not a mechanical application of +/-2% per level difference as proposed by Mr Siu.

77.  The adjustments made to the 5 common comparables using the factors accepted by the Tribunal are as follows. The unit rate of the Reference Domestic Unit is therefore $64,900.

78.  In determining the EUV of other units by applying adjustment to the aforesaid unit rate of the Reference Domestic Unit, Mr Chan and Mr Siu appear to have more disagreements as follows:

79.  We understand from evidence that Mr Chan had the opportunity to inspect the internal condition of most of the units whereas Mr Siu had not been able to do so prior to our joint inspection on 4 March 2015. However, we are surprised to note that no requests or attempts have ever been made by Mr Siu to inspect these units, or at least some of them, prior to expressing his opinions in his report for the purpose of assisting the Tribunal. One wonders how a person attending the Tribunal as an expert expressing an opinion on the value of a subject matter can discharge his duty to the Tribunal without even doing an inspection of that subject matter. Further, in Mr Chan’s Rebuttal Report of 13 October 2014, he clarified his opinion on adjustments on view, lighting and ventilation as against those by Mr Siu[33]. We agree with Mr Chan that adjustments made in respect of view only are an over-simplified approach. The view only adjustment could not sufficiently deal with the unique situation of KTM where the quality of its units differs substantially depending on its surrounding neighborhood, level and directions. Additional adjustments need be made for light and ventilation which vary with flats having different views and orientation. We find the additional adjustments proposed by Mr Chan reasonable, more realistic and being able to cater for the unique situation of KTM units. We have no hesitation to reject Mr Siu’s assessment in this respect. We therefore adopt Mr Chan’s adjustments which are reproduced below:

80.  Bearing in mind the +5% adjustment for internal condition for R9’s unit as agreed by Mr Chan[34], and also the revised EUV for the Reference Domestic Unit at $64,900/m²[35] instead of Mr Chan’s $62,400/m², we have set out our assessment of the EUV for all the domestic units in KTM at Appendix B hereof.

EUV for the CPS

81.  Perhaps the hottest dispute for EUV is that for the CPS most of which are owned by R22. As said above, of the 100 CPS in KTM, 36 are uncovered and 64 are covered. There are 16 covered CPS on the ground floor of each of the 4 blocks. In each block, the covered CPS are arranged in an array of 8 rows x 2 CPS counting from Kwun Tong Road towards the slope at the back. The 8 rows x 2 CPS are divided into 2 groups separated by a staircase in the middle. The boundary of each CPS is marked on the floor. However, these covered CPS are separated by very ample common areas between them and the on-site condition is that one or more of them have been partitioned into enclosed “garage” or even workshops. Almost all of them are enclosed from the outside with, for instance, roller shutters.

82.  Between each block and on the boundaries of the KTM (except the part fronting Kwun Tong Road) there are driveways. On the building plan, apparently each covered CPS is freely accessible via the driveway to which it opens. It is also the only freely accessible point of each covered CPS, and accordingly, a vehicle can be parked at the said space by either backing or driving in from the driveway. However, the landscape of KTM is such that each driveway goes up a ramp before connecting to the driveway at the back immediately below a steep slope. The up ramps are so steep that the 2 covered CPS at the last row nearest to such ramp are in fact blocked by the said ramp. The last row CPS and the ramp are at totally different levels. On site, the 8 CPS, namely, CPS 1[36], CPS 8, CPS 15, CPS 22, CPS 29, CPS 36, CPS 43 and CPS 50, are observed not open to any driveway. They can only be accessible via the covered CPS next to it (the said 8 covered CPS are referred to as “ramped covered CPS”). From our site inspection, the ramp rises up to as high as 3 feet above ground level above the ramped covered CPS. Accordingly there are 3 types of CPS in KTM: uncovered CPS, covered CPS and ramped covered CPS. The 2 experts do not differ much on the valuation of uncovered CPS. However, they have adopted totally different approaches in doing valuations for the 2 different types of covered CPS and come to substantially different valuations.

83.  By using direct comparison method, Mr Chan determines the EUV of these 3 types of CPS by reference to sales of car parking spaces in four comparable buildings. He comes up with the EUV of these 3 types  as follows:

i) an uncovered CPS at $410,000,

ii) a covered CPS at $510,000

iii) a ramped covered CPS at $260,000. Mr Chan made a discount of almost 50% to a covered CPS to arrive at this value.

84.  Mr Siu basically relies on the investment method of valuation and comes up with an EUV value for an uncovered CPS at $420,000, which can be regarded as basically the same as that assessed by Mr Chan at $410,000. However, using his methodology, Mr Siu arrives at $889,000 to $2,213,000[37] for a covered CPS which is substantially different from that arrived at by Mr Chan. He made no distinction between a normal covered CPS and a ramped covered CPS. 

85.  As stated above, during our joint inspection on 4 March 2015, we noted most of the covered CPS have been partitioned into individual garages and even workshops by temporary material such as wooden or sheet metal. Many of them have their own roller shutter gates. It is Mr Siu’s case that because in reality these covered CPS have been put to retail/non-carparking use, he has adopted a totally different approach from that of Mr Chan who only valued these covered CPS based on mere car parking use.

86.  According to Law Siu Lung (“Madam Law”), a director of R22, since R22 acquired the 84 CPSs on 19 November 1998, R22 had operated a business under the name of 啟德停車場 (i.e. “Kai Tak Car Park”) leasing out the CPS on a monthly basis. No written tenancy agreement had ever been signed with individual tenants. It ceased its operation in or about October 2010, except for the period between December 1997 and December 1999. During this period R22 let the CPS to Imperial Parking (Hong Kong) Limited at a monthly rental of $164,000.[38] It is Madam Law’s evidence that R22 was indifferent as to whether the CPS was used for car-repairing workshop or other retail trades[39].

87.  During cross-examination, Madam explained that R22 ceased to carry on its business of “Kai Tak Car Park” in or about October 2010 in order to get ready to deliver up vacant possession of the CPS to the applicants in the event of a successful sale to them.

88.  Mr Siu stated in his Rebuttal Report dated 17 October 2014 at §2.4 as follows:

“CPS and garage are different in nature. Ordinary CPS is purely used for car parking purposes with its boundary shown on floor, i.e. open sided while a garage could be used for car parking purposes with walls encircling it. For the subject CPS, except for those uncovered CPS Nos 58-64, 66, 67-72, 75-90, 93-100, all other covered CPS were enclosed by partition walls and roller shutters. By sticking to this, those enclosed CPS in the Subject Property are in fact garages rather than a purely CPSs. I noticed that Sr Chan has chosen all the transactions of CPS in the aforesaid 4 nearby developments. These CPS were solely used for car parking instead of being a garage and were therefore of different nature. I considered such was not the most similar type or apple-to-apple choice of comparables.”

89.  It is Mr Siu’s view that there are no appropriate comparable transactions for garage. He therefore adopts the investment method of valuation by capitalization of the net rental incomes derived from the “Garage CPS”. In his actual calculation, Mr Siu capitalized the rentals for individual CPS based on rentals in respect of year 2009 or 2010. He then applied a retail properties yield published by RVD, and added on a further + 2% “to reflect the retail potential of the property as for then existing uses”. At trial, when this capitalization based on retail use of the “Garage CPS” was challenged, Mr Siu then revised his view to “reflect a risk premium (i) given the retail potential of the property as for then existing uses and (ii) the un-utilized occupancy”.

90.  Initially, Mr Siu adopted the retail property yield indexes for 2009/2010[40] to capitalize the rentals received by R22 during that period of time to arrive at an EUV as at 2009/2010. He then adjusted this capitalized value to 1 December 2012, i.e. the valuation date of the Application Report using the Price Retail – Price Index from RVD.

91.  For those untenanted Garage CPSs, Mr Siu adopted the average capitalized value of those tenanted Garage CPS derived above as their EUV value.

92.  There is no dispute that in respect of the breach of user of the CPS, the Lands Department had initiated enforcement action against R22. At trial, it was confirmed that when Mr Siu prepared his valuation, he was not aware or given a copy of a letter from District Lands Office, Kowloon East, Lands Department dated 26 January 2010 (“the warning letter”) which reads as follows:

“Recent inspection by offices of the Lease Enforcement Unit of this office has revealed that the above car parking space nos 15 and 22 are being used for storeroom purposes and the above car parking space nos 72, 85 and 94 are being used for parking of van or truck purposes in contravention of the Government Leases of New Kowloon Inland Lot No 167 and New Kowloon Inland Lot No 168 as varied and modified …. The relevant clause in the Leases reads as follows:

“….. AND shall provide space for not less than one hundred cars within the boundaries of the said demised premises for the parking of private cars of the residents of the building to be erected on the said demised premises and shall not use or allow to be used the space so provided for any purpose other than the parking of private cars of the residents of the said building …..”

I would advise that in the event of your failure or neglect to observe or comply with any of the lease conditions, the Government is entitled to re-enter upon and take back possession of the lots and any buildings thereon …..if you are unable to remedy the said breach within the said period of 28 days and require more time, a forbearance period of 3 calendar months from the date immediately after the 28-day period aforementioned will be allowed within which to do so. This, however, is conditional upon my receiving from you within 28 days from the date hereof your cheque for the forbearance fee amounts to …..

….. a further inspection will be made to ascertain if in fact the breach has been remedied. If it has not been so remedied and no fee has been paid, action to enforce the lease conditions, including vesting of the relevant interest in respect of the above lots in the Financial Secretary Incorporated, will follow.”

93.  It is not in dispute that a subsequent letter from District Lands Office, Kowloon East, Lands Department dated 23 July 2010 was issued to R22.  There is attached to that letter an annexure setting out details of breaches and irregularities identified in respect of the CPS owned by R22, ranging from using them for storage purposes or for parking of truck and van. Such letter was registered in the Land Registry against each of R22’s CPS vide memorial 10081200460014.

94.  R22 appeared to have rectified the situation after the aforesaid warning letter and subsequent letter. It was not in dispute that a further letter from the Lands Department dated 18 May 2011 was issued to R22 confirming all breaches had been purged. R22 was reminded in this letter that “(s)hould the breach of lease conditions occur again, Government will proceed with the vesting/re-entry of the premises without further notification”.

95.  We consider that Mr Siu should have been told of the aforesaid by those appointing him as court’s expert when he was instructed to prepare his report. In any event, being a court’s expert who owes a duty to the Tribunal, one would expect that he should have conducted his own land searches of the subject matters to find out what encumbrances, if any, the land is subject to before writing his report.  Had he conducted the searches, the Lands Department’s letter should have been discovered. In our view, information revealed in the land search would have been sufficient to trigger off a series of enquiries by any prudent expert, leading to discovery of the threatened action by the Government. Mr Siu agreed during cross-examination that the rents he used for his valuation exercise were those achievable prior to the said enforcement action.

96.  Madam Law admitted at trial that R22 had paid to the Government some $1,000,000 in total as forbearance fee as a result of the Government’s enforcement action. After hearing all her evidence, it is the Tribunal’s judgment that, on a balance, the fear for further payment and enforcement action by the Government was its genuine reason for ceasing its business of Kai Tak Car Park in or about October 2010, instead of Madam Law’s earlier explanation that R22 was prepared to hand over vacant possession of the CPS to the applicants.

97.  Mr Mak for R22, R33 & R34 submits that even if the direct comparison method were a better way to assess the EUV of the covered CPS, the investment method can be and should be used at least as a check especially when, in the present case, the divergence of the experts’ assessment is significant. Mr Mak draws our attention to Fan Chun Keung v The Secretary for the Environment, Transport and Works[41] (at §§25-54). This was indeed a decision of review of the Tribunal’s earlier judgment dated 15 July 2005 in which the Tribunal found that “the investment approach is not as reliable or accurate as the direct comparison approach”

98.  At §22 of Fan Chun Keung, the Tribunal had the following observation concerning valuation by investment method:

“There are 3 elements in this approach: rental income, capitalization rate and holding period. The capitalization rate and holding period will work out a multiplier, i.e. Years’ Purchase. A minor change in the capitalization rate will greatly affect the capital value of the property. It goes without saying that with one more set of variable, there is a less certain chance of arriving at a value that equals to the market value of the subject land, which is the subject matter of valuation.”

We share the Tribunal’s view in Fan Chun Keung. If the figures applied to the formula for the investment method are so unreliable or fraught with inherent problem, the capital value arrived at will be unreliable as any mistake will be greatly amplified. Accordingly, whether or not a valuation obtained using investment method can be used as a check entirely depends on whether the sets of figures adopted are reliable or representative.

99.  We agree with Mr Mak’s submission that the rental previously payable in respect of the “Garage CPS” would have included a speculative value over and above that for a normal car parking use, especially most of the tenancies for the CPS in question were on monthly basis or short-term determinable with short notice. However, after the Lands Department had issued the warning letters, the speculative value should have totally gone and the former rentals achieved would no longer be achievable[42]. It would be imprudent for Mr Siu to capitalize the historical rents in perpetuity without any regards to the Government’s enforcement action and threatened re-entry which have, in our view, basically removed any speculative value it may attract. The basis for Mr Siu continuing adopting the pre-enforcement rentals has gone.  

100.  Mr Siu expressed a view during cross-examination that those historical rentals (i.e. the pre-enforcement rentals) should have already taken into the account the probability of Government taking enforcement actions. We are unable to accept his view. As stated by Madam Law in her 1^st Witness Statement dated 26 September 2014[43], no such enforcement action had occurred or re-entry threatened has taken place since R22 acquired the CPSs in 1988 until the 1^st applicant entered into the picture. The perceived risk, if any, during those old days had become real risk no matter what was the reason behind.

101.  Next comes the question of whether the yield percentage adopted by Mr Siu is appropriate. Although at trial, faced with queries, Mr Siu has revised his calculation based on 2% on top of the yield rate of retail properties to reflect (i) the risk that the said covered CPS are then put to existing retail uses and (ii) the un-utilized occupancy, an item added by Mr Siu to reflect the costs for managing these 80 plus CPS. In our judgment, this new meaning given to the +2% is artificial. It is an afterthought and a salvage operation to resuscitate his investment method assessment, and is wholly unconvincing. The 1% which Mr Siu later suggested[44] suffers from the same drawback and is also unconvincing and unsafe. In view of the fact that the Lands Department has already issued a clear and an unequivocal warning threatening re-entry without notice in the event of a repeated breach, this Tribunal has serious doubt whether a simple +1% or +2% on the top of the RVD’s retail properties index to reflect Mr Siu’s suggested risk is sufficient. The fact that R22 saw fit to cease totally Kai Tak Car Park’s business in or about October 2010 shows that the risk is rather real, at least as perceived by R22.

102.  Neither had Mr Siu taken on board the forbearance fee paid by R22 to the Government in his valuation. It is at least a cost on the part of R22 when it put the CPS to use other than for parking of vehicles with a view to earning a higher income.

103.  Mr Siu tried to defend his position by bragging that if R22 approached him earlier he would be able to negotiate with the Lands Department to resolve the matter at nil premium. Mr Siu even referred the Tribunal to a case he previously dealt with at the junction of Prince Edward Road West and Sai Yee Street which he said was successful. He conceded, however, in that case all the car parking spaces concerned are situated on a single piece of land under same ownership with no common areas, whereas in the present case, the CPS have different ownership and are separated by common areas. It is not in dispute that all covered CPS together with the adjacent common areas are now being encroached by their owners/occupiers with partitions. In the circumstances, the Tribunal do not believe, irrespective of whether premium is payable, the Lands Department would consider allowing a lease modification (for which we are provided with no evidence that this would be likely) for the simple reason that KTM’s common parts, the use and ownership of which are subject to DMC and the BMO, would be involved. We consider this Prince Edward Road West case referred to by Mr Siu totally irrelevant

104.  In connection with the aforesaid Prince Edward Road example cited by Mr Siu, this Tribunal cannot help forming an impression that Mr Siu may have confused his role as an independent court expert and a party’s professional adviser/advocate. Times and again we have to remind him that he is acting as the Tribunal’s expert and is under a duty to provide his expert opinion to assist the Tribunal rather than acting as a party’s adviser or advocate.

105.  In addition, we find Mr Siu’s justification for his investment approach not convincing and is with inherent difficulty. While we agree that those “Garage CPS” might have provided a higher level of privacy and security through erection of partitions on KTM’s common parts, each of these so-called “Garage CPS” should not have differed much in value. However, Mr Siu’s assessment of the EUV for the covered CPS ranges from $394,000 to $1,967,000 based on retail yield (as revised on 6 March 2015) or $352,000 to $1,821,000 based on the CPS yield relying on rental information given to him. There is something apparently irrational and unless one is satisfied there exist exceptional circumstances, we do not believe any professional valuer will be content with the results with such unusually wide range. Mr Chan has indeed pointed out such problems in his comments on Mr Siu’s revision on 6 March 2015by comparing Mr Siu’s valuation of CPS 45 and CPS 46, which are situated next to each other and are at the 6^th and 5^th row counting from Kwun Tong Road, as follows:

106.  Furthermore, Mr Siu never begins to query himself as to why CPS 15 (which is one of the ramped covered CPS on the 8^th row) is valued at $1,515,000, while CPS 16 (which is next to CPS 15 on the 7^th row but NOT a ramped covered CPS) attracts a lower valuation of $1,053,000 and CPS 14 (on the 1^st row and not a ramped covered CPS) attracts an even lower valuation of $1,010,000. He attempts to deal with the overall result by adopting an averaging exercise to arrive at $1,010,000 for each “Garage CPS”, no matter ramped or not. Given the irrational and anomalous results arrived at by him concerning individual covered CPS, we are of the view that the averaging of unreliable valuations cannot produce a reliable result. The basis of his assessment is questionable.

107.  The valuation evidence, i.e. the raw data, which Mr Siu has adopted in his valuation, has been totally and utterly discredited and unreliable. In addition, the way he handled such evidence and justified his methodologies simply falling short of what may be legitimately expected of a valuation expert. Further, Mr Siu’s investment method of assessment of the EUV of the covered CPS (or “Garage CPS” as he put it) is shown to be completely unjustified. We have no hesitation to reject Mr Siu’s valuation approach using the investment method.

108.  The fact that there are 8 ramped covered CPS are not in dispute and are easily discoverable if one conducted a site inspection of the CPS in question. We are surprised that Mr Siu still insisted that there should not be any discount on such disability (save for two, namely CPS 1 & CPS 8 at a discount of 15% which we disagree on ground that the rate being too low[45]). He maintained his position initially that a ramped covered CPSs might be used not as a car parking space at all or it can be used in conjunction with other CPS, even when the warning letters of the Lands Department were shown to him during cross-examination. He only conceded later that an across-the-board downward adjustment of 15% be applicable to all ramped covered CPS.

109.  We are also not persuaded that Mr Siu is right to adjust the capital value arrived at using the historical rentals by the Private Retail – Price Index to 1 December 2012. Mr Mak concedes in his closing submission that it might be more appropriate to adjust first the rentals in 2009 or 2010 to 2012 using the Private Retail – Rental Index before capitalization. Even if we were to accept the CPS bears resemblance as garages, this Tribunal considers that they are far from being a retail shop in any respect. As discussed in §93 above, the letter from District Lands Office, Kowloon East, Lands Department dated 23 July 2010 identifying various unauthorized uses such as for storage purposes or parking of truck or van; none were comparable to a retail use. More importantly, time adjustments by as much as 74.1% to 114.8% applied by Mr Siu will certainly magnify any error as remarked by us in §98 above. For the same reason,  the Tribunal in Good Faith Properties Limited and Others v Cibean Development Company Limited[46] has already commented at §177 of its judgment against using index for time adjustment for comparables occurring more than 2 years from the valuation date.

110.  Thus every element in the investment approach adopted by Mr Siu is so unreliable that we are not persuaded that his approach can be used as a check on any valuation arrived at, for instance, by the direct comparison method, not to mention that it is used in substitution of the direct comparison method. The valuation arrived at by Mr Siu is wholly unreliable and we have no hesitation to reject it totally.

111.  This Tribunal has on many occasions acknowledged that the direct comparison method would be the best and preferred method of valuation where suitable comparables are available. At one stage, it was suggested that the sale of CPS 28 to R33 and CPS 35 to R34 by R22 not too long before the Application may provide market evidence for the assessment. According to the land search record, the provisional agreement for sale and purchase regarding CPS 28 was dated 30 May 2012 and the assignment regarding CPS 35 took place on 6 September 2012 (without any prior agreement for sale and purchase). As a matter of fact the said transactions took place some two years after the applicants had started negotiation for the purchase of all units in KTM.

112.  In R33’s affirmation dated 23 February 2015[47], she indeed acknowledged that the purchase price for CPS 28 was acceptable in view of, inter alia, the CPS’s redevelopment value. Similarly, in R34’s affirmation of the same date[48], he acknowledged that the basis for agreeing the purchase price for CPS 35 included the prospect of it being acquired by developer. These purchase prices, therefore, even if they were derived from genuine market sales, cannot be used for the purpose of assessing EUV for the simple reason that they fail to meet the requirements of Part 1 of Schedule 1 to the Ordinance. EUV should be determined by not taking into account the redevelopment potential of the property or the lot.

113.  As regards the following sale of CPS by R22, they all took place well after the applicants took out the Application on 21 February 2013 which has been registered in the Land Registry against each of the units in KTM. The prospect of redevelopment must already have been reflected in the purchase price :

114.  We do not accept that the purchase prices of these 8 CPS set out in the preceding paragraph are relevant to the assessment of the CPS’s EUV and must revert back to Mr Chan’s CPS sales comparables.

115.  Mr Mak submits that the covered CPS was described in the Occupation Permit as “Covered Garage”. He refers to Barnett and Block v National Parcels Insurance Company Limited [1942] 1 All ER 221 where a garage was defined as a place where one can get reasonable protection and shelter. We consider, however, this definition does not give us more information than what we have got on-site. As said in the preceding paragraphs, all covered CPS are on the ground level of each block and no doubt are protected and sheltered in the sense they are covered. They appear to be nothing more than normal covered car parking spaces but obviously are more spacious as each one is surrounded by ample common parts. They also enjoy better privacy because they (together with the surrounding common parts of the building) are enclosed by temporary materials. We see no reason why they cannot be compared with other car parking spaces found elsewhere provided appropriate adjustments are made.

116.  Mr Mak draws our attention to Secretary for Transport v Wong Bun[49], where the Tribunal observed at §20(2) of the judgment that a car parking space comparable which was entirely enclosed “should be rejected because of the uncertainty involved in the actual and potential use of the car parking space”. In our view Wong Bun is distinguishable because the car parking space comparable therein referred to might be endowed with the prospect of alternative use, legal or illegal. Since no further particulars of that car parking space comparable can be discerned from Wong Bun or the submission of Mr Mak, we are unable to comment on the said judgment further. However in the present case, we have already been alerted to the enforcement action taken by Government, and its unequivocal threat to re-enter in the event of any use not in compliance of the Government Leases. In our judgment, the demand and subsequent payment of some $1 million forbearance fee demonstrated the determination on the part of the Government to enforce the terms of the Lease. Despite Mr Mak’s able submission, we are still of the view that the subject CPS are no different from normal car parking spaces, except that they enjoy better privacy for which we shall take into account in analyzing the comparables provided by Mr Chan.

117.  In any event, after rejecting Mr Siu’s investment method of valuation, we are only left with the comparables provided by Mr Chan for the purpose of assessing the EUV of the CPS.

CPS comparables relied on by Mr Chan

CPS sales inRhythm Garden

118.  Mr Chan relied on a total of 40 CPS sales in Rhythm Garden of which 39[50] were by the developer in November 2012 applying a +5% adjustment for location and +2% adjustment for each floor difference downward. These are all carparks within a multi-storey building. However, out of these 40 sales, 3 were on 2/F and 2 were on 3/F. The rest (35 of them, or 87.5% of the total Rhythm Garden samples) were all on 4/F. Common sense tells that a simple average of the adjusted price of all these 40 comparables will result in an average mainly dominated  by the numerous transactions on 4/F. Further if  one looks at those transactions more closely, the average sale of a car parking on each floor is as follows before any adjustments:

119.  The above demonstrates that Mr Chan’s proposed adjustment of +2% for each floor difference downward did not tally with the reality situation for Rhythm Garden: the difference between the 2/F and 3/F is about 15%[51] and that between the 3/F and 4/F is about 8%[52]. In our judgment, the difference in level adjustment may reflect the pricing policy or other special considerations of the developer on top of market conditions which, presumably, every developer will take into account. Further, as all except one were developer’s sales, the level of price may be overwhelmed by the developer’s consideration which may or may not fully reflect the actual market considerations. In the circumstances, in order to minimize such impact, we prefer to adopt the sales for the 2/F only and make the following adjustments:

* According to Mr Mak, only this transaction was a secondary market sale and therefore should only be used. However, we are hesitant to adopt just one comparable. On a balance, we have included 2 developer’s sales in our assessment, though developer’s pricing consideration may have been included on one hand, the possibility of a seriously biased sale can be minimized on the other.

CPS sales inRichland Gardens

120.  Likewise, Mr Chan relied on a total of 12 CPS sales in the Commercial and Garage Block of Richland Gardens with 7 of them on 4/F, 2 on 5/F, 2 on 6/F and 1 on 7/F. These are all covered car parking spaces in a multi-storey building. The average sale of a car parking space on each floor is as follows before Mr Chan’s adjustments:

121.  In the case of Richland Gardens, it is not in dispute that the sales were not from the developer. From the comparable data set out in the preceding paragraph, the changes in values between floors[53] are: +0.7 % (4F/5F); -10.1% (5F/6F); -3.1% (6F/7F). The usual trend of the higher the carport level the lower the price can more or less be shown, except that the average price for the car parks on the 5/F can be regarded  a bit out of tone. However, it exists in reality which is very often not a perfect market. From the evidence available, we are more prepared to adopt the +2% adjustment for each floor difference downward as suggested by Mr Chan. In order to minimize error that may be caused by the floor level adjustments, only the sales on 4/F will be adopted, and they are analyzed as follows:

122.  At trial, Mr Chan was cross-examined by Mr Mak that he should have taken into consideration transactions of other covered car parking spaces on ground level. However, no evidence whatsoever about ground floor covered CPS was offered by Mr Siu who only suggested that from his observation and analysis, the difference in market value of covered and uncovered CPS of Richland was about 21%.

CPS sales inWang Kwong Building

123.  Mr Chan has analyzed a total of 4 covered CPS sales in Wang Kwong Building as follows:

*Partially enclosed type car parking space

124.  Although we consider the 10% adjustment for the partially covered car parking space a bit arbitrary, we are prepared to adopt the average as suggested by Mr Chan. It is because if the sales of the 2 partially enclosed type carports[54] are excluded, the average of the remaining two comparables gives $477,170 which is within the acceptable 2% range of $484,763.

CPS sales inTak Bo Gardens

125.  Applying similar adjustments, Mr Chan analyzed a total of 3 covered CPS sales in Tak Bo Gardens all on the same level and arrived at an average of $671,185 for value of a car parking space.

Car Parking Space to Flat Ratio

126.  As we have commented at the start of the trial, the two experts have not addressed the Tribunal on the impact of CPS to flat ratio on the property prices between KTM and the development estates where sales comparables are drawn. We consider this is an important element of adjustment as the Tribunal has found in Wong Bun: see §22 of that judgment.

127.  Mr Siu, in his Rebuttal Report dated 17 October 2014, has provided the car parking space to flat ratios for KTM as well as the estates of the comparables as follows:

128.  Mr Siu explained in §2.3 of his Rebuttal Report a CPS to flat ratio of 1:5 had a meaning that a CPS had to be competed with by 5 households of that development. A “higher figure”, he said, would mean “… the existence of a shortage in CPS supply in a relative sense that competition for a CPS would be more fiercely”. He noted, however the CPS: flat ratio for KTM is the lowest when compared with all the comparable estates. Mr Siu went on to say “… (w)ith relatively sufficient supply and relatively low demand for CPS in the Property [i.e. KTM] respectively, it was then therefore commercial values arisen for being used as a shop”. Although the aforesaid statement could have been better written in terms of English, in the Tribunal’s view it’s meaning is rather clear: since the demand is low and the CPS are relative abundant in KTM, these CPS could be turned for shop use and therefore they attract commercial value. By his said comments, it appears to the Tribunal that Mr Siu has completely disregarded the provision of the Government Leases which restricted the car parking spaces for “the parking of private cars of the residents of the said building”, or he is ignorant of the same. Implied in his opinion he considers the owner is free to use the CPS in whatever manner he prefers.

129.  It has been well established since Hang Wah Chong Investment Company Limited v Attorney General[55] that the Government is entitled to demand premium as a condition of granting a modification of the terms of the lease. Such practice is further acknowledged by the Court of Final Appeal in Director of Lands v Yin Shuen Enterprises Limited & Another[56] where Lord Millett NPJ in giving the judgment remarked at §11 and §18 as follows:

“11. … the prices paid must have taken full account of the prospect of obtaining a modification of the restrictions and of being required to pay a premium for their modification.

…..

18. … But regard would also have to be paid not only to the likelihood or otherwise of the Government granting a modification of the terms of the lease, without which the development potential of the lands could not be realised, but also to the costs of obtaining such modification, including the payment of any premium which the Government might demand as the price of modification.”

130.  Shop use is obviously different from car parking use, not to mention renting of the said CPS to a tenant other than resident of KTM is restricted by the Lease condition. We are surprised that Mr Siu, who holds himself out as land professional[57], and at the same time as an expert to assist the Tribunal, would have made his statement repeated in the latter part of §128 above without any qualification at all. These qualifications, we consider, should include for instance, the probability of Government taking enforcement actions, prospect of modification of the Government Leases and at the very least the payment of a handsome premium even if such modification is allowed, not to mention that such statement was made in total ignorance of the fact that the Lands Department has already taken enforcement action once and has threatened to re-enter if subsequent breaches occur again.

131.  Although after site inspection we agree with Mr Siu that KTM’s “Garage CPSs” enjoy better privacy and more space when compared with the “open” situation of the comparables, he had not provided his opinion on adjustment in these respects save to argue that the said comparables are not comparables at all which we do not agree[58].

132.  In addition, we are of the view that no matter how spacious these “Garage CPSs” are and how much extra security that they can provide, if the Government Lease restricts these CPS for use of only KTM residents, we do not believe KTM residents would be willing to offer a high premium for the said added advantages. In addition, we consider the CPS and driveways are in a state of poor repair.  The surface of the concrete-paved driveways are worn out and seriously cracked.  Some parts are even broken. Taking into account of the condition of repair, we consider an adjustment of +10% appropriate to reflect the spacious and better privacy enjoyed by these “Garage CPSs”.

133.  We then make further allowance for CPS : unit ratio between KTM and the comparables[59] and the factor of privacy as alluded by Mr Siu to our finding and analysis of the car parking comparables in §§118-125 above as follows:

134.  From the above, the average of the adjusted values for all the comparables is about $535,000. However, the adjusted value derived from the Tak Po Gardens appears to be out of the tone with the others. It may have been inflated by the fact that the car parking spaces there are also available to other non-residents. In our opinion, the Tak Po Gardens comparable should be discarded[62]. Excluding the Tak Po Gardens comparables, the average of the remaining three comes to $492,000, which, in our view, is closed to the assessment of $510,000 by Mr Chan and accepted by the applicants, though the latter figure is arrived at by Chan using slightly different adjustments.  In this connection, we are prepared to accept Mr Chan’s valuation of a covered CPS at $510,000. We believe the ramped covered CPS which access is handicapped has a very low marketability except when sold in pair with the adjacent one. We consider an assessment of $260,000 each for the ramped covered CPS reasonable in the circumstances. As said above, there is basically no dispute on the EUV of an uncovered CPS and we accept its EUV at $410,000 each.

135.  Mr Mak persists in his closing submission that the investment method should be adopted as a check to the valuation result. As we have stated above, there is simply no suitable rentals in compliance with the Government Lease for the “Garage CPS” to be used for the investment method. The only other rental evidence comes from the applicants who appear to have let out their own CPS for use other than in accordance with the Government Lease. These are all post-enforcement rentals. The level of rent was much lower and was at about $1,500 per month each for covered CPS[63] by the end of 2014. For ramped covered CPS[64], the monthly rent is as low as $1,000. Take the yield rate of 5.9% (i.e. CPS yield + 2%)[65] revised by Mr Siu and adopted by Mr Mak in his closing submission[66], the capitalized value of a covered CPS arrived at is only $305,085[67], which is much lower than $510,000 arrived at by the direct comparison method. For a ramped covered CPS, it is only $203,390[68] and is also lower than $260,000. Alternatively, if we adopt the yield rate of 5.4%, i.e. the retail yield plus 2%, as revised by Mr Siu[69], using the same calculation method the capitalized values for a covered CPS and a ramped covered CPS are respectively $333,333[70] and $222,222[71] which are also lower than the values arrived at by the direct comparison method. Accordingly, adopting whatever yield rates suggested by Mr Mak, if there is no reliable or appropriate rentals that can be applied to the formula, the assessment so generated cannot provide a useful check on the assessment method we have accepted.

136.  By reason of the above, we accept Mr Chan’s assessment of the EUV of all the CPS, no matter covered or uncovered, ramped or otherwise. The list of CPSs and their respective EUV shown at Appendix 1.5 of Mr Chan’s Supplemental Report[72] is therefore reproduced hereof at Appendix C. The EUV for all the CPS in KTM is in the sum of $45,400,000.

137.  Thus, the grand total EUV of all units in KTM is $1,119,141,000, being the aggregate of $78,571,000 for the retail portion,$995,170,000 for the domestic portion and $45,400,000 for the car park portion.

138.  The corresponding pro-rata shares for the outstanding respondents owning undivided shares are enlisted at Appendix D.

Section 4(2) of the Ordinance - Justification and Reasonable Steps

139.  Under Section 4(1)(b) of the Ordinance the second determination is whether an order for sale should be made.  Section 4(2) of the Ordinance provides  that there are basically 2 considerations, namely :-

(i) whether the redevelopment is justified due to age or state of repair of KTM; and

(ii) whether the applicants have taken reasonable steps to acquire all the undivided shares in the Lots where owners’ whereabouts are known.

140.  The applicants have to satisfy this Tribunal that the above statutory requirements were met; otherwise, an order for compulsory sale would not be granted.

141.  For the age and state of repair requirements, the applicants have adduced 3 expert reports, namely, the condition survey report by Mr Wong dated 11 August 2014, the structural assessment report by Mr So dated 16 June 2012 and the supplemental report of 7 August 2013 prepared by Mr Chan.

142.  In the Structural Assessment Report by Mr So dated 16 June 2014, he identified the following defects in the Buildings:

(i) The design and construction of the structural frames were based on an obsolete design. There were at least 9 structural design and construction aspects KTM falling short of present structural engineering design requirements. Among these 9 aspects, the lack of consideration for robustness is one of utmost importance. As a result, KTM may not possess adequate robustness to prevent it from damages arising from accidents or misuse.

(ii) Visual inspections showed many defects in the form of spallings and cracks in the columns, beams and slabs in KTM;

(iii) Covermeter survey revealed that 4 beam samples and 4 slab samples do not have sufficient concrete covers to:

(a) protect the embedded steel reinforcement bars against corrosion,

(b) protect the bars against fire, and

(c) provide sufficient depth of concrete for the safe transmission of bond forces.

(iv) Carbonation depth test results revealed that carbonation had penetrated through the concrete cover of 11 out of 20 tested beam samples and 17 out of 20 tested slab samples. This means the alkaline environment in many of the concrete covers, at least in all the beams and slabs sampled, which give protection to the reinforcement steel bars in the structural members against corrosion, have been very extensively destroyed. Accordingly some steel bars in these structural members have already started to corrode.

(v) Compression tests revealed deficiency in the concrete strength in 1 out of 20 columns and 1 out of 20 beams tested.

(vi) Chloride content tests showed an increase risk of corrosion in the embedded steel reinforcement bars.

(vii) Corrosion survey by opening up of the concrete cover to examine the reinforcement steel bars embedded was carried out. The survey revealed columns, beams and slabs were suffering from various degree of rusting.

143.  Based on the above findings, Mr So concluded that the structural frames of the KTM were in need of repair. While KTM was designed and constructed more than 52 years ago, it exhibits signs that its structural frames have deteriorated to the final stages of its designed working life. The deterioration will continue steadily due to extensive carbonation of the concrete.  It is inevitable that new defects will occur and previous defects, though repaired, will recur readily, requiring substantial repairs or even partial demolition and re-construction of some defective structural members in the future.  Repair works need be carried out regularly in future and such repairs will be more and more extensive.  It is his view that although the costs of repair may be relatively modest, such costs will escalate in future as the extent and seriousness of the deterioration of the structural members increases with age.  He recommended that hammer tapping works be carried out to all structural members with a view to finding out the full extent of defects to be repaired as a matter of urgency.

144.  Mr Wong, in his Condition Survey Report dated 11 August 2014, stated that :

(i) KTM is in a poor state of repair due to general wear and tear;

(ii) The external rendering on the external walls has signs of deterioration with not less than 538 hidden hollow spots and is potentially dangerous to public safety if the loosened rendering falls off ;

(iii) The building envelopes for the four blocks are not external seepage resistant as evidenced by damp penetrations through the external walls, the main roof coverings and the original mild steel windows;

(iv) The protected lobbies and staircases are unsatisfactory means of fire escape for the upper floors because no improvement had ever been made to the fire resisting construction and fire service installation in the Buildings;

(v) The most common defects noted relating to residential units are unauthorized building works of enclosed balcony structures which also have implications in structural safety;

(vi) The other commonly found defects relating to the residential units are unauthorized internal flat sub-divisions, unauthorized encroachment of protected lobbies, unauthorized flat entrance metal gate swinging out onto fire escape routes and non-fire resistant doors;

(vii) The original mild steel windows have generally corroded and are not water resistant;

(viii) Internal electrical installations inside at least 171 residential units have been haphazardly altered and are in poor condition;

(ix) Internal inspection of residential units reveals that equipotential bonding connections are not provided for exposed and extraneous conductive parts;

(x) Closed circuit television surveys carried out to the underground drainage reveal substantial defects in the underground drainage systems;

(xi) Defects in electrical installations require repair and maintenance;

(xii) Fire service systems required to be added in order to bring the Buildings in compliance with the requirements of the Fire Safety (Buildings) Ordinance.

(xiii) The concrete slabs of the internal driveways are in poor condition with seriously cracked and broken areas, worn concrete surfaces, settlements between concrete bays and faded markings.

145.  Mr Wong estimated that the total costs of immediate repair works to restore KTM to tenantable standard came to $107,388,005 which was about 35.8% of the cost of constructing new similar buildings.   He concluded that KTM has deteriorated to a state which is beyond reasonable economic repair.   As more rapid deterioration would occur in the future, the necessary maintenance and repairs would inevitably be more frequent and extensive making the continued occupation of KTM uneconomical and even unsafe, to both occupants and third parties. He recommended the owners to redevelop rather than repair given that KTM does not possess any historical value or architectural merit. 

146.  The applicants also rely upon two economic tests, i.e. the age test and the repair test, conducted by Mr Chan in his Supplemental Report prepared on 7 August 2014.

147.  For the repair test, Mr Chan adopted the findings by Mr Wong that the total estimated cost to restore KTM to tenantable standard is $107,388,005. If the unauthorized building works related items are excluded, the net repair cost for the remedial works is about $93,510,680. His assessment of the EUV of the domestic units as at date of report was $1,030,310,000[73]. He took the view that even if the repairs proposed by Mr Wong were carried out, they were remedial in nature and would not, in his view, enhance the value of the unit substantially. He considered such work would only bring about 3% enhancement to the domestic portion. Only nominal enhancement will be made to the ground floor as retail shops are less sensitive to building conditions as compared to residential flats. The enhancement by the repairs (the difference between the post- and pre-repair EUV) is $30,909,300. He considered obviously, putting good money of $93,510,680 to bring about an increase in value of only $30,909,300 would not make any economical sense at all.

148.  For the age test, Mr Chan assessed the total EUV of $1,164,840,000 as at 7 August 2014 could be enhanced to $1,195,749,300 if a net repair cost of $93,510,680 were spent. He further assessed the RDV of the Lot on its own at $1,910,000,000 as at the same valuation date.  Given the RDV was much higher than the enhanced EUV, Mr Chan was of the view that repair is not economically viable and the redevelopment of the Lot is justified.

149.  There is no contrary evidence suggesting that redevelopment of KTM is not justified due to age or the poor state of repair. We accept the applicants’ evidence in whole. In particular, we are satisfied that based on the evidence of Mr So and Mr Wong, redevelopment of the Lot is justified due to the age and the state of repair of the Buildings :

(i) KTM is over 53 years old, with obsolete designs and has now passed its designed working life.

(ii) The KTM is in very poor physical conditions. Although the actual figures for effecting a reasonable repair may be subject to dispute, we believe a huge amount will in any event be incurred. Despite the repair and maintenance, KTM which will remain a building with outdated designs. Based on evidence of Mr So and Mr Wong, the repair will recur soon and the quiet enjoyment of the owners of KTM will be disturbed during the lengthy period of repair, and repeatedly. The deterioration of the building structures has reached a state which is beyond economical repair; and

(iii) KTM has become obsolete in many respects both physically and functionally, and falling short of current standards in terms of safety and hygiene.

Reasonable Steps to Acquire All the Undivided Shares in the Lots

150.  Under section 4(2)(b) of the Ordinance, the second consideration in making an order for sale should be whether the applicants have taken reasonable steps to acquire all the undivided shares in the Lots where the owners’ whereabouts are known.

151.  In respect of R2’s unit, the applicants made the following offers:

152.  In respect of R8’s unit, the applicants made the following offers:

153.  In respect of R9’s unit, the applicants made the following offers:

154.  In respect of R13’s unit, the applicants made the following offers:

155.  In respect of R17’s unit, the applicants made the following offers:

156.  In respect of Apartment 7, 4/F, No 55 Kwun Tong Road the ownership of which was restored to R24 as stated in §10(3)(a). Its sale by R24 to R30 was set aside. By two orders in HCA 1554/2012, R24 is prohibited from, inter alia, disposing of or dealing with any of its assets including the unit. In any event, the applicants made four offers, one on 15 February 2014, another on 12 June 2014, the third on 18 February 2015 and the last on 23 April 2015 at $5,849,096, $5,763,796, $6,470,312 and $6,685,938 respectively. The last two offers were attached with Savills’ advice letter assessing R24’s share at $5,991,030 and $6,685,938 respectively.

157.  And as stated in §10(3)(b) above, R26 purchased Apartment 10, 4/F, No 55 Kwun Tong Road from the provisional liquidator of the Incorporated Owners though such purchase was challenged by R28, the wife of the previous owner, R27. The applicants made an offer to R26 on 3 November 2012 at the sum of $4,863,175. R26 and A4 then entered into a Provisional Agreement for Sale and Purchase of the unit conditional upon R26 obtaining a court declaration that the sale by the provisional liquidators of the Incorporated Owners to R26 was lawful or R26 and R28 reaching a settlement agreement in respect of R28’s claim in HCA 255/2011. R28 and A4 also entered into a Provisional Agreement for Sale and Purchase of the unit conditional upon R28 obtaining a rescission of the sale of the unit by the provisional liquidators to R26 or R28 becoming the registered owner of the unit.

158.  R35 purchased Apartment 3, 5/F, No 55A Kwun Tong Road on 9 July 2013 only after the Application. The applicants made the following offer to him:

159.  Similarly, R36 acquired Apartment 1, 2/F, No 55A Kwun Tong Road and Apartment 8, 6/F, No 55A Kwun Tong Road on 9 July 2013 only after the Application. The applicants made the following two offers to her:

160.  R37 purchased Apartment 3, 2/F, No 55A Kwun Tong Road on 12 July 2013 only after the Application. The applicants made the following offer to him:

161.  R38 purchased Apartment 1, 4/F, No 55A Kwun Tong Road on 17 July 2013 only after the Application. The applicants made the following offer to him:

162.  R45 acquired the ownership of Apartment 9, 6/F, No 55 Kwun Tong Road on 30 September 2013 only after the Application. The applicants made the following offer to her:

163.  As regards R22 ownership of 84 CPS, it sold 2 to R33 & R34 before the Application. Then after the Application, it sold another 7 CPS to R39, R40, R42, R43, R44 & R46 as a result of which R22  retains the ownership of 75 CPS and mortgaged CPS 71, 72, 75, 83-90 & 93-99 to R41. The applicants made the following offers to R22 from time to time:

164.  Then the applicants made the following offers to each of R33 & R34:

165.  The applicants made the following offers to R39:

166.  The applicants made the following offers to R40 & R43:

167.  The applicants made the following offers to R42:

168.  The applicants made the following offers to R44:

169.  The applicants made the following two offers to R46:

170.  During trial, on 9 March 2015, there was also a joint offer from R22, R33, R34, R40 and R44 to the applicants which was nevertheless declined by the applicants on 25 March 2015, suggesting that the latest offers on 18 February 2015 had exceeded Mr Chan’s assessment by 8%.

171.  On the face of the above, the applicants did appear to have taken reasonable steps to acquire all the undivided shares in the Lots. More particularly those steps taken by the applicants were steered by the professional valuation opinion of Savills, which is a large and reputable surveyors company specializing in property valuation in Hong Kong. We have in the above paragraphs scrutinized Mr Chan’s EUV assessments. Despite having made some adjustments to his findings, we find his assessments reasonable or within a reasonable range.

172.  In Capital Well Limited v Bond Star Development Limited (2005) 8 HKCFAR 578, [2005] 4 HKLRD 363 (“Capital Well”) Ribeiro P J  expressed his view at §2:

“(the Ordinance) permits a person owning at least 90% of the undivided shares in the Lot, who has failed to acquire the balance of the undivided shares despite having made appropriate efforts to do so, to apply to the Lands Tribunal for a compulsory order requiring sale of the lot for the purposes of redevelopment.”

173.  The Ordinance provides a statutory mechanism whereby a majority owner can only invoke after having taken reasonable steps to acquire the undivided share of a minority owner. Here, we also bear in mind the following guidance from Capital Well at §33:

“In making that assessment (whether an offer is reasonable) the Tribunal is not conducting a valuation exercise. It does not need to adjudicate upon any disputes about the correct valuation principles to be applied. It does not itself arrive at any conclusion as to what figure represents the correct valuation. It merely needs to be satisfied that, on the evidence available, the offer falls within the range of what may broadly be regarded as fair and reasonable compensation for the interest in question.”

174.  We are here therefore concerned with whether on the evidence available, the offers made by the Applicant fell “within the range of what may broadly be regarded as fair and reasonable compensation for the interest in question.” (underline added)

175.  Although Ribeiro PJ stated further at §36 of the Capital Well that: “What the Tribunal must do is to consider whether, in the circumstances of each case, the offer falls within a band of what represents a fair and reasonable assessment of the value of the minority owner’s interest reflecting a proportionate share of the redevelopment value of the whole site”, he confirmed in §35 that the Tribunal is not required to decide first what the correct valuation was and then to assess the fairness and reasonableness of the majority owner’s offer against the valuation carried out on correct principles. The fact that there will often be differences of opinion has already been recognized. The respondents’, particularly those lay respondents’ complaint that the applicant failed to agree to their asking prices will not render the applicants’ offer unreasonable in the context of the Ordinance.

176.  Bearing in mind such guidance from the Court of Final Appeal (“CFA”), we are satisfied that on the evidence available and in the circumstances of this Application, the applicants have taken reasonable steps to acquire all the undivided shares in the Lots including negotiating for the purchase of the shares owned by R22, R33, R34, R40 & R44 and the other outstanding unrepresented owners on terms that are fair and reasonable.

Reserve Price for the Auction

The Optimum Development

177.  In Hong Kong, the use and development of nearly all land is governed by leases granted by the Government. The KTM Lots are no exception. They are held under several Government leases each has a common term expiring 1997, and has further been extended until 30 June 2047, subject to payment of an annual Government rent at 3% of the ratable value of the premises erected thereon. Pursuant to the Government Leases dated 16 March 1921 as varied and modified by a Deed of Variation dated 26 February 1963:

“the height of any part of which said messuage or tenement, messuages or tenements, shall not exceed the level of the lawn of the Royal Air Force quarters at the rear of the said premises hereby expressed to be demised …..”

This is hereinafter referred to as “building height restriction under the Government Leases” (“GL-BHR”).

178.  By reference to the prevailing Draft Ngau Tau Kok and Kowloon Bay Outline Zoning Plan (‘OZP”) No S/K13/28 gazetted on 11 April 2014, the Lots fall within an area zoned “Residential (Group A)”. It means that no new development, or addition, alteration and/or redevelopment of an existing building shall result in the plot ratio of the resulting building in excess of 7.5 for a domestic building, or 9.0 for a building that is partly domestic and partly non-domestic. Under no circumstances the plot ratio for the domestic part of any resulting building shall exceed 7.5. In addition, the Lots are subject to three restrictions on development or redevelopment under the OZP:

(i) the maximum building height of development or redevelopment is limited to 130mPD (i.e. 170 metres above Hong Kong Principal Datum) (“OZP-BHR”);

(ii) two 10-metre-wide non-building-area (“NBA”) along the north-eastern and south-eastern lot boundaries; and

(iii) a 20-metre strip of land in the middle of the lots is demarcated as a building gap where no building shall exceed a maximum building height of 15mPD (“BG”)

(“collectively referred to as “the 3 OZP restrictions”).

179.  The 3 restrictions were indeed introduced in draft OZP No S/K13/26 (“OZP 26”), the predecessor of the prevailing one, gazetted on 19 November 2010. Being dissatisfied with the restrictions, A1 herein had since 2011 initiated a number of judicial reviews (“JRs”) against, inter alia, the Town Planning Board (“TPB”) concerning the Lots’ re-development. As described by Reyes J in the judicial reviews (“JRs”) in Oriental Generation Limited v Town Planning Board[2012] 3 HKC 369, the re-development project of KTM is not an easy one[74] due to its special location in the region.

180.  On 11 May 2012, Reyes J handed down his judgment quashing the 3 restrictions imposed by the TPB in OZP 26 and 27 as well as TPB’s refusal to consider their relaxation. The CFI considered the 3 restrictions arbitrary. It referred the question of whether, and if so what, restrictions should be imposed to the TPB for re-consideration in accordance with the judgment.

181.  Both TPB and A1 lodged their respective appeals to the Court of Appeal (“CA”) under CACV 127/2012 and CACV 129/2012. Execution of the judgment of Reyes J was stayed pending the appeals or further order. On 13 November 2014, the CA handed down its decision dismissing the TPB’s appeal and upholding the decision of Reyes J.

182.  The TPB filed a Notice of Motion for leave to appeal to the CFA on 16 December 2014. A1 and the TPB agreed to further extend the stay of the Reyes J’s decision, the 4^th JR as regards the gazetting of the prevailing OZP, and submission of OZP 26 to the Chief Executive in Council until determination of the leave to appeal application. On 18 November 2015, the CFA refused TPB’s application for leave to appeal.

183.  There are also the following parallel application/proceedings in the meantime:

(i) A1 made an application (Application No. Y/K13/1) to the TPB under section 12A of the Town Planning Ordinance (“TPO”), Cap 131 for amendment of OZP 25 to re-zone the Lots from “Residential (Group A)” to “Residential (Group A)1”. While the TPB decided on 11^th October 2013 to defer its decision on this application until the final disposal of the JRs, A1 has withdrawn its application on 13 February 2015;

(ii) By HCMP 2161/2012, A1 issued proceedings against the Government on 4 October 2012 for a declaration that, on the true construction of the Government lease, the GL-BHR has in fact ceased to have any effect (the “interpretation proceedings”). According to A1, the interpretation proceedings have remained dormant since February 2013. As evidenced by correspondence exchanged between the legal teams of the A1 and the Government, A1 had agreed to discontinue the interpretation proceedings with costs to the Government. However, on 3^rd November 2014, R40 applied to join in the interpretation proceedings. The discontinuance and joinder application have been adjoined for disposal before a Master in the CFI on 3 February 2015. The outcome of such application has not been reported to this tribunal.  

184.  Against the aforesaid impending litigations and constraints Mr Chan on behalf of the applicants proceeded to assess the RDV of the Lots adopting the following assumptions:

(i) The site is still subject to the 3 OZP restrictions including the height restriction of 130 mPD;

(ii) The optimum development model should be 2 blocks of 32-storey residual towers, over a 5-storey podium for shops, etc with 2 levels of basement car parks; and

(iii) In order to realize the site redevelopment potential, a land premium must be paid to the Government to modify/remove the GL-BHR.

185.  On 20 January 2015, R40 applied for leave to file and serve additional expert evidence on:

(1) the likelihood of success of the applicant’s town planning application No. Y/K13/1; and

(2) the impact on the development parameters of the KTM site in the event the applicant’s town planning application No. Y/K13/1 is granted; and

(3) whether the maximum plot ratio of the KTM could be fully utilized in view of the 3 OZP restrictions.

186.  Although the Tribunal, on 3 February 2015, granted leave for the parties to put in further expert evidence sought by R40, it turns out that at trial, R40 no longer wishes to challenge Mr Chan’s assumptions.

187.  In the meantime, Ms Sat, the expert for R40, agrees with Mr Chan on the plot ratio achievable for the development of the Lots, i.e. the entire domestic plot ratio of 7.5 allowable under the Building (Planning) Regulations, resulting in 0.9375 left for the non-domestic plot ratio. In their joint statement agreed on 16 April 2015, they also agreed that:

(i) the land premium payable to Government for lease modification for the removal of the GL-BHR is $1,697,000,000 and

(ii) the market value on the basis of redevelopment, with the land premium above having been paid, is $2,293,000,000.

Residual Method of Valuation

188.  By reference to the valuation reports of the two experts both dated 9 April 2015 on RDV, the two experts resort to the residual valuation method in determining the RDV. This is done by deducting development costs (including construction costs, professional fees, finance costs etc) and developer’s profit from the estimated gross redevelopment value of the completed optimum development. Despite the many variables involved, before the two experts came to agreement on the residual land value of $2,293,000,000, their difference was only about 9% apart.[75]

189.  The residual method of valuation is founded on the basis of a classic economic theory which suggests that the value of land as a factor of production depends on the ability of the land to produce revenues in excess of the required payments to all other factors of production. Payments to land are viewed as the residual productivity remaining after all other mobile factors of production have been compensated at their fair market values. It is reasonably expected that developers often use the land residual theory to determine the maximum potential value of a site after subtracting all other non-land costs from the total projected property value. A residual valuation, having established the development potential, can be expressed as a simple equation[76]:

Residual land value (economic rent) =

(Value of completed development) – (development costs + developer’s profit)  

190.  Without a reasonable profit to be factored in, it would mean that the developer would be purchasing a piece of land for redevelopment expecting no return. We do not believe such will occur in reality. It is because there are always investments available in the market with fixed or guaranteed return over a period of time, e.g. Government or corporate bonds. Perhaps without appreciating this concept, those acting in persons, e.g. R8, R9, etc heavily criticized the inclusion of the developer’s profit in the residual valuation arrived at by the two experts.  There are always risks associated with any investment particularly when the capital to be incurred is rather substantial, e.g. a real estate development. A developer undertaking such development will seek to make a reasonable profit out of his investment. The targeted level of profit depends on the nature of investment undertaken and the associated risk, such as market competition, market uncertainties and contingencies that may pop up before completion, and the general optimism in relation to venture undertaken[77]. The profit is the gross profit to the developer before meeting the developer’s general overheads and tax. While this profit is sometimes related to the value of the project, it is more appropriate to relate the same to the costs to be injected in the project and is equivalent to profit margin. In the present case, it is common ground of both Mr Chan and Ms Sat that a profit of 15% on the development cost over a development period of 3.75 years (i.e. about 4% per year) is appropriate. We find their assessed profit margin reasonable in the circumstances[78], and the criticism by R8, R9 etc not justified.

191.  Certainly the residual method of valuation is not without its shortcomings. It is sensitive to changes in inputs: sometimes a minor variation in any of the factors involved may be compounded when they are carried forward throughout the lifespan of the project, thus producing a major effect on the final value of the scheme. In many instances, the most sensitive inputs come from the gross development value estimated. More often than not, a fractional increase in the gross development value would lead to a high percentage increase in the resulting land value even though the other factors remain unchanged.

192.  The Lands Tribunal has on many occasions preferred the use of direct comparison method to the residual valuation method, if there is a choice. However, peculiar to the development conditions in Hong Kong, especially owing to the individuality of the development restrictions as specified in the Government lease pertaining to each lot, the residual method of valuation is very often adopted by the valuation profession and accepted by the Tribunal for the purpose of ascertaining land values. For instance, the Lands Tribunal in Hofei Estates Limited v Secretary for City and New Territories Administration [1980-82] CPR 486 remarked as follows:

“14. Unfortunately, the comparables were not only in different localities, but were also very much smaller than the subject property, have varying development costs and contained other differences. Theses major differences obliged both valuers to make substantial adjustments to the comparables to relate them, for valuation purposes, to the subject property. The adjustments actually made were mostly subjective and unsupported by any detailed analysis.

15. In these circumstances a better approach would have been to have used the residual method. The adoption of the residual method would have enabled the valuers to have tested the value of the subject property in terms of optimum development in relation to cost and reasonable profit margins.

16. We are satisfied that evidence was available from the comparables and elsewhere; for reasonably accurate assessments to have been made by the residual method. Furthermore this is the method more likely to be adopted by a reasonable prospective purchaser of this type of property.

17.  We appreciate that caution must be exercised before adopting the residual method. However, provided the variables used are supported by evidence in the market, it has many advantages. Certainly on the facts of this particular application, the residual method would have allowed for a better comparison between the subject property and the comparables. For each could have been compared in relation to its optimum development. In the absence of evidence adduced before us enabling the residual method to be applied, we are obliged to arrive at a valuation based largely on unsupported percentage adjustments to comparables which, quite apart from other differences, are too dissimilar in size and development potential, for direct comparison.”

193.  In the witness statement of R17 filed on August 2014, she set out a proposed redevelopment scheme comprising a hotel and a verbal estimation of the scheme from an anonymous surveyor. Mr Chan responded in his Rebuttal Report of 16 September 2014 that such a scheme is ignorant of the prevailing OZP. This Tribunal shares his views. No particulars of construction costs, marketing costs, demolition costs, professional fees, interest cost as well as allowance for profits on the costs expended, which are usually the factors that have to be deducted from the gross development value, have been provided. Although a so-called premium was allowed in the verbal estimation, it was derived from the EUV specified in the Application Report. We agree with Mr Chan’s comment that such premium estimate was ignorant of the prevailing Government policy on land premium assessment for lease modification which is based on the enhancement of land value after the lease modification. Such anonymous surveyor, if really exists, should have attended the trial to elaborate his estimation and be cross-examined so that his theory can be tested.

194.  At trial, R2, R8 & R9 appeared to be selective and only pick from the two reports those figures that are most advantageous to them. As explained by Ms Sat during cross-examination, the change of one item may lead to corresponding changes in other items. For instance, the average unit price for her model were higher than Mr Chan’s because her model comprises more small domestic units which would call for less marketing cost. However, smaller units would mean there will be a corresponding lower demand for car parking spaces, thus reducing the latter’s unit price. The combined effect is that the estimated gross development value arrived at by her was $6,458,581,019, which is even lower than that of Mr Chan at $6,505,298,530 whose proposed redevelopment scheme starts off with a lower average unit price for domestic units. The above demonstrates no one can choose whatever figures they wish from the reports in isolation because they are inter-related and are always with qualifications.

195.  As regards the gross value of a hypothetical development, R8 insists on adopting the asking price for sales of new developments in completely different districts which are totally not comparable at all to the Lots in terms of neighbourhood and location.

196.  In addition, for new developments, developers very often adopt different marketing strategies that suit their needs most. Various incentives to prospective purchasers, such as tax rebate, short-term financing with favourable rates, nil commission (in contrast to the lucrative commissions offered to estate agents in secondary market sales), etc will be offered in order to buoy up the asking prices that may not be achievable in the secondary market.  

197.  We therefore do not find R8’s “sales evidence” relating to sales in new developments elsewhere of any value to our present valuation exercise.

198.  R8 together with R2 & R9 also refer the Tribunal to other land sales in recent years suggesting the valuation assessed by Mr Chan and Ms Sat too low. More particularly, R8 is referring to 3 land sales - one in Ko Shan Road sold in April 2011[79]; another at the junction of Fat Kwong Street and Sheung Foo Street sold in June 2013; and the last at Victory Avenue. The Victory Avenue sale was pursuant to the order of Lands Tribunal granted in Supergoal Investment Limited v Five F Ming House Limited & Others[80].

199.  These sites are all located in Ho Man Tin which is traditionally regarded as a popular if not prestigious residential area. The Victory Avenue lot can also be developed into a composite development with valuable retail shops on ground level which is not enjoyed by the Lots. In the Tribunal’s view, the Lots are situated at a relatively isolated location and cannot be compared to Victory Avenue which is closed to Mongkok, the traditional shopping centre of the Kowloon peninsula. R9 tries to argue that the location of the Lots is comparable to Ho Man Tin because according to media, he said, the Government is intending to develop East Kowloon to become the next central business district in Hong Kong. We share Mr Chan’s view during his cross-examination by R9 that the so-called Kowloon East is confined mainly to Kowloon Bay and Kwun Tong along the waterfront area according to announced plans. Even if R9’s prediction were to come true, it would take years to materialize. The high land value that might eventually achieve, if achievable, has to be substantially discounted for a present value. We are not persuaded that the Ho Man Tin sales are in any respects relevant comparables.

200.  Further, by referring to the aforesaid transactions, as correctly pointed out by Mr Chan in his Supplemental Report of 7 August 2014, R8 had not taken into account the premium that would be payable to the Government for the removal of the GL-BHR. R9, on the other hand, suggests the premium agreed by the two valuation experts too high. We are of the view that such criticism is unfair and not based on any professional justification or experience which the 2 experts can offer. His objection is not accepted.

201.  In his closing submission, R8 attempted to conduct his own residual valuation by using some of the figures adopted by Mr Chan in his Supplemental Report of 7 August 2014. Unfortunately, he failed to take into account of the developer’s profit, interest and costs afore-mentioned. R9 argued that the levels for these items allowed by the two valuation experts too high to be acceptable. Regrettably R9’s argument and submission are, with due respect, without professional basis and arbitrary[81]. We find R8’s and R9’s submission in these respect unacceptable.

202.  R9 has also referred to sales of land in the Kai Tak Development Area as listed in Appendix II of Mr Chan’s Supplemental Report of 7 August 2014[82]. In that report Mr Chan commented that “these transactions are not suitable for direct comparison since there are substantial disparity in development potential due to attributes on location, development scale and development restrictions.” It is noted that all the lots referred to are zoned Residential (Group B) with a maximum plot ratio of 5 to 5.5 on the OZP as opposed to Residential (Group A) with a maximum plot ratio of 9 for the Lots. We agree with Mr Chan that for this reason alone, the sales in the Kai Tak Development Area are not good comparables because of the difference in the density of development.

203.  In purported approach of the valuation in a professional way, R9 adopts the latest sale in May 2014 at $65,676/m², and suggests, by reference to domestic price index published by RVD, an increase of 14% per annum for 2 years, i.e. $65,676/m² x 1.14 x 1.14, thus arriving at an assessed unit rate of $85,353/m². Applying this rate to the Lots, the value arrived at by him is, after allowing for the premium of $1,697,000,000, $3,650,349,906[83].

204.  We take the view the increase of 14% per annum has been double-counted. This sale took place in 2014 and the trial took place in 2015. Even by considering the 3 sales in Ho Man Tin referred to earlier by the Rs and the land sales in the Kai Tak Development Area, there is no evidence to support an annual increase in land value in tandem with the domestic price index alluded to by R9. The sale value of the hypothetical development is only one of the many essential elements in a residual valuation. Construction cost has to be deducted from the sale value before the residual land value can be derived. R9 in this regard had not taken into account the upward movement of construction cost recently which may set off part of the sale price in the residual valuation.

205.  Having reviewed the submissions by lay respondents aforesaid and gone through both Mr Chan’s and Ms Sat’s residual valuations[84], we are of the opinion the land value, i.e. the RDV of $2,293,000,000 for the Lots agreed by the two valuation experts reasonable:

(i) The initial assessments of the 2 experts are quite close:  Mr Chan’s assessment on RDV is $2,121,000,000 while that by Ms Sat is $2,321,000,000. The difference is about 9.4%, and in the view of the Tribunal, can be regarded as within reasonable disagreement of professional judgment;

(ii) The redevelopment models based on which they come to their own conclusion are very similar: basement car parks, podium for commercial use and upper floors for domestic units;

(iii) The once hotly disputed issue of plot ratio has gone, and the figures adopted are almost identical: the total plot ratio for Mr Chan is 8.4375 and that for Ms Sat 8.4374:

(iv) Ms Sat proposed smaller units than those proposed by Mr Chan. These smaller units attract higher unit rate but call for less marketing costs. Further, there is a corresponding adverse impact on the demand for car parks thus reducing their unit rates. These are reasonable assumptions that fit in with the reality situation; and  

(v) The 2 experts are therefore able to make adjustments to various items in their reports and thus come to a compromise on the RDV of the Lots.

Hope Value

206.  In her Valuation Report dated 9 April 2015, Ms Sat proposed there should be a hope value in addition to the land value which has been agreed with Mr Chan. The basis, according to her reports, seems to derive from her views that there must stand “some likelihood” or “some prospects of success” that land premium need not be paid at the end of the day otherwise A1, being properly advised, would not have taken the trouble of pursuing the interpretation proceedings to remove the GL-BHR[85].

207.  The way that Ms Sat came to the hope value is this. She first of all makes an assumption that the legal action may reach the CA and it will take about 21 months for the legal proceedings to finish its course. This period of 21 months, according to her, is what she has been advised, presumably by Messrs Lui & Law who have appointed her. She suggested in her Supplemental Report dated 23 April 2015 that the land value would have become $3,653,000,000[86] instead of the agreed value of $2,293,000,000 if A1 is successful in the interpretation proceedings for the obvious reason that land premium can be saved, though litigation costs and additional interests on funding may be required. The corresponding developer’s profit in the two different scenarios would be $2,300,000,000 (when A1 is successful in the interpretation proceedings) and $836,000,000 (when the interpretation proceedings are not pursued) respectively[87]. Should the legal action be unsuccessful and premium has to be paid, Ms Sat works out that the developer’s profit would be reduced from $836,000,000 to $712,000,000[88].

208.  Ms Sat takes the view that given the enormous gain ($2,300 million versus $712 million: see the preceding paragraph) if the legal action is successful, a buyer will be willing to pay a premium on top of the site value assessed in the usual manner.

209.  Ms Sat then proceeded to conduct what she calls a sensitivity analysis. Her theory is this. Since it is expected that legal proceedings will take 21 months to conclude in the CA, the developer will be taking additional risk for his huge investment. Accordingly, a higher interest rate of 4.25% and a further 0.5% on top of the usual developer’s profit of 15% should be added to reflect the risk assumed during the long investment duration [89].What Ms. Sat did next is to compute a table of different land values applying various lower profit margins which a developer may be willing to accept for his investment with a view to gaining the additional benefit in case the litigation is disposed of in his favour. She comes up with a table which is reproduced below[90]:

Notes: (1) 15% : developer’s profit at ordinary level

           (2) PV@ 4% for normal development period

           (3) PV@ 4.25% taking into account 21 months legal proceedings period

           (4) Normal profit under normal development period is $836 million

           (5) Add 0.5% profit to account for longer development period if legal proceedings be involved.

           (6) Developer’s profit @ 15.5% will be increased to $2,300 million if successful

210.  Ms Sat, however, did not recommend to adopt any of the figures in the table above. With a view to assessing what price an investor is willing to pay in order to gain the windfall brought about by the litigation, Ms Sat adopted the tool of internal rates of return (“IRR”) [91]. It can be understood that IRR is a way of measuring the profitability of a potential investment and is normally used to assess the desirability of an investment. Generally speaking, the higher the IRR the more desirable it is to undertake the investment. Ms Sat set out different IRR of the development project based on various scenarios below. She then comes to the view that “it would be unlikely that a willing purchaser would purchase the subject site at any value higher than $2,527,000,000, i.e. with an IRR below 7.1%”[92]:

211.  More particularly, in her conclusion, Ms Sat said: “In the event that hope value is to be included into the Market Value, my opinion of the Market Value shall be within the range as set out … above, i.e. not more than HK$2,557,000,000[93],[revised to $2,527,000,000.00[94] and subsequently to $2,805,000,000[95] at trial] ”. In short, the “hope value” is HK$264,000,000[96], revised to HK234,000,000[97] at trial, over and above the land value agreed between the 2 experts.

212.  In the closing submission of Mr Hui of counsel for R40 and R44, it is submitted for R40 and R44 that the RDV should, instead of the agreed value[98], be at $2,527,000,000. Mr Bernard Mak, submitted on behalf of R22, R33 and R34 submitted that Ms Sat was too conservative and proposed a sum of $2,800,000,000 to reflect the hope value. Alternatively, Mr Mak proposes that the reserve price should be no less than $2,527,000,000. 

213.  Mr Chan raised query in his Supplemental Report of 20 April 2015 that the adoption of an IRR of 7.1% by Ms. Sat is without reasonable basis[99]. Ms Sat acknowledged in her Supplemental Report dated 23 April 2015 that there are no recognized research data on the IRR of a development project. She however, makes reference to the following and is of the view that IRR of 7% is reasonable for a private developer to expect for development of this kind:

(i) The Urban Renewal Authority, as a quasi-developer, is expecting an IRR of 5% in the Kwun Tong Town Centre redevelopment project; and

(ii) In 2014, the Mandatory Provident Fund system as a whole achieved an annualized rate of return of 4.2%.

214.  In using the suggested discounted cash flow approach, the IRR or the proper discount rate must reflect appropriate discount rate to incorporate both the time value of money and the venture risk.In Shun Fung Ironworks Limited v Director of Buildings and Lands[100] , the Tribunal had unequivocally stated the difficulty in determining it; at §411 of the said decision, it remarked that:

“Instead of working backwards by elaborately selecting data and processing it in such a way as to come up with a "discount rate which in Mr Best's judgment is reasonable", why not side-step the charade, and simply tell us what, in Mr Best's opinion, was a fair figure?”

215.  In the present case, neither Mr Chan nor Ms Sat has gone through the meticulous processes as in The Hong Kong Electric Co Ltd v Commissioner of Rating and Valuation, LDGA 224/2004 & LDRA 358/2004 (unreported, dated 30 November 2009) or CLP Power Hong Kong Limited v Commissioner of Rating and Valuation, LDGA 241/2004& LDRA 365-369/2004 (unreported, dated 24 April 2013) to determine this proper discount rate which is also usually referred to as the weighted average cost of capital in the discount cash flow exercise. Put simply, there is no evidence in the present case suggesting what usual IRR (or its range) that a real estate developer in Hong Kong is willing to take, and accordingly why 7.1% return is one’s best assessment that a potential purchaser may be willing to accept in the circumstances.

216.  Mr Chan commented that the reference to Urban Renewal Authority’s IRR is not appropriate as it is not a commercial enterprise. Neither is the reference to the Mandatory Provident Fund system appropriate as the purpose of setting up such fund is not to take commercial risk. We share Mr Chan’s said views. Further, we agree with Mr Chan’s comment that if the two valuation experts could agree on a RDV of $2,293,000,000, this figure should have already reflected the agreement of the parties on the proper return that a hypothetical developer in the market is willing to purchase the land taken into account all risks and fortune that may come together. According to Mr Chan, based on the agreed RDV of $2,293,000,000, the IRR he worked out was around 10%, and this was not challenged.

217.  If this is the agreed valuation that a hypothetical purchaser is willing to pay, we are doubtful why this hypothetical developer would suddenly change his mind and wish to adopt a lower IRR instead. We are not talking about a particular developer but a hypothetical developer in the market. If hypothetical developers could accept an IRR of 7.10% in the first place, they would certainly have competed with each other. The market would then be bid up in excess of $2,293,000,000 (with IRR at about 10%). This agreed valuation should never have been $2,293,000,000 in the first place.

218.  We consider the sensitivity analysis should have already been carried out by a hypothetical developer before making up his mind on the price he should bid. If 10% is considered the optimal IRR for a hypothetical developer, there is no basis to say now there is another group of hypothetical developers who are willing to adopt a lower IRR. We understand what Ms Sat wants to say is that the IRR of 7.1% involves a speculative element. Certain risk-taking purchasers are willing to accept a lower return (i.e. 7.1%) with a view to gaining a higher return (i.e.17.16%) just in case the GL-BHR is removed without payment of premium.  

219.  No doubt Ms Sat was heavily cross-examined by Mr Mok at trial. She conceded during cross-examination that she was not providing a valuation as such but was only providing different scenarios for some willing speculative purchasers to form their own business decision. She also has not been advised whatsoever on the prospect of success of the interpretation proceedings. The percentage of success, in her view, might range from anything between 1% to 99%. We are of the view her said concession has destroyed totally her opinion that the land value is to be enhanced by the hope value to $2,527,000,000 or $2,805,000,000, or otherwise. If she has never been advised or has no knowledge whatsoever of the prospect of success of the interpretation proceedings, we are of the view that the idea of hope value cannot even start to engage. The fact that the applicants have initiated the said interpretation proceedings is neither here nor there on the chance of success. They may have a good chance. However, they may have got bad advice, or the proceedings are only a tactical move. Whatever may be the reason, apparently she has done nothing to assess the prospect of success of the interpretation proceedings.

220.  The following remarks by Hon Lam J (as the learned V-P then was) in ChinachemCharitable Foundation v Chan Chun Chuen HCAP 8 of 2007 (unreported, dated 2 February 2010),  are always good reminders of the role of an expert:

“An expert should not advance an argument or use a piece of information or data to support his opinion unless he is professionally convinced of the validity of the argument or the appropriateness of the use of that supporting material. The inclusion of something the validity of which the expert himself considered doubtful in his report inevitably undermines his credibility in the court’s assessment. An independent and impartial professional expert should not resort to a tactic of putting forward some plausible arguments in favour of his client which he personally has difficulty in vouchsafing and leaving it to his counterpart to convince the court that the arguments should be rejected. In my view, such an expert has not discharged his overriding duty to the court, which is to use his own professional expertise to assist the court without regard to the exigencies of litigation.”

Meaning of Likelihood

221.  As said above, during cross-examination, Ms Sat conceded that when she carried out the sensitivity or the IRR analysis, she paid no regard to the probability of success in removing the GL-BHR at nil premium; she had neither consulted any legal expert nor been particularly advised on this issue. In the Tribunal’s view, what she has done is contrary to commentary (7) & commentary (8) of paragraph 2.1 of Valuation Standard 3 of the Hong Kong Standards 2012 Edition which are reproduced as follows:

“Commentary (7)

A client may wish to include the ‘hope value’ of a property in its market value and the ‘hope value’ refers to the situation that the market has an expectation that the circumstances affecting the property may have a positive change in the future ..… However, the amount of hope value must be limited to the extent that it would be reflected in offers made by prospective purchasers in a general market under a rational environment which means with market-evidence.

Commentary (8)

Valuers in preparing a market value basis valuation must always base on the highest and best use of a real property as required under the conceptual framework of the IVS. Valuers should not mix up the concept of ‘highest and best use’ with ‘hope value’. ‘Hope value’ not only includes a particular synergy in a purchase so long as it is reflected in the open market, but also the prospect of obtaining approval or lease modification as the case may be. The proposed use from which the ‘hope value’ is derived conforms with the ‘highest and best use’ in the sense that the proposed use is legally allowable when there is a reasonable prospect (as reflected in the market of at least 50% chance) that the regulation, zoning, deed restriction, etc. can be changed to permit the proposed use.” (Underline added)

222.  According to the Hong Kong professional valuation standards, hope value can only be included as part of the market value only when there is a reasonable prospect as reflected by at least 50% chance of success that the land can be put to use. A mere chance apparently is not accepted by the professional body unless the probability threshold can be met. The reference to “at least 50% chance” was also adopted in various jurisdictions such as in Canada. In Farlinger Developments Limited v East Your (Borough) (1975) 9 OR (2d) 553, 61 DLR (3d) 193, 8 LCR 112, the issue was whether the appellant could reasonably expect a change in zoning permitting development as desired as the basis of determining compensation for the market value of its land which had been expropriated. Howland JA of the Court of Appeal of the Ontario Supreme Court of Canada held at §38 of the judgment that:

“From these authorities it would seem to be established that the highest and best use must be based on something more than a possibility of rezoning. There must be a probability or a reasonable expectation that such zoning will take place. It is not enough that the lands have the capability of rezoning. In my opinion probability connotes something higher than a 50% possibility …..”

The Canadian Court of Appeal found that there was no evidence upon which the Land Compensation Board could properly find that there existed a probability of favourable zoning instead of a mere possibility.

223.  Ms Sat took the view that so long as there existed the interpretation proceedings (despite it had been discontinued by the applicants), a willing purchaser will be willing to offer a higher price to purchase the Lots. That assertion, in our view, is without any support, professionally, legally, and statistically from a survey of recent court cases.

224.  This Tribunal considers that for the present purpose, a broad brush approach is to be adopted to assess the prospect of success of the interpretation proceedings. On the construction of Government lease, it has been a settled principle of construction applicable to Government grants that, contrary to the ordinary rule applicable to grants by a subject, grants by the Government usually fall to be construed in the manner most favourable to the grantor. The following passage from Slade J in Earl of Lonsdale v Attorney General[101]  has been cited with approval by Lam V-P in New Mercury Holding Corporation v The Secretary For Justice[102] :

“The effect of these cases, as I read them, is that, if the wording of a grant by the Crown is clear and unequivocal, the grantee is entitled to rely on it as much as if the grantor had been any other subject of the Crown; if, on the other hand, the wording is obscure or equivocal, the court must lean towards the construction most favourable to the Crown, unless satisfied that another interpretation of the relevant words in their context is the true one.”

225.  It was also established by the decision of the Privy Council on appeal from Hong Kong in Hang Wah Chong Investment Co. Ltd v. Attorney General, supra at §129 above[103] that the Government as lessor of Government land is just as entitled as a private landlord to name its price for any modification of the conditions on which land is held from it.

226.  It was repeated in Director of Lands v Yin Shuen Enterprises Ltd, supra also at §129 above[104], Lord Millett NPJ has this to say at §27:

“The Government’s right to charge the full value of the modification has not been and could not be challenged. Its policy is informed by the philosophy which formerly underlay the ownership of land in Hong Kong. While it remained a Crown Colony land in Hong Kong was regarded as belonging to the Crown, which parted with its ownership only for the duration of the lease and for the user specified in the lease. Subject thereto, it remained the undisposed property of the Crown. In granting a modification of the user covenants in the lease, therefore, the Crown in effect made a further disposal of the land for which it was entitled to charge full value.”

227.  The provision of the Government Lease which forms the subject matter of the interpretation proceedings is contained in the Deed of Variation dated 26 February 1963[105], and is this:

“the height of any part of which said messuage or tenement, messuages or tenements, shall not exceed the level of the lawn of the Royal Air Force quarters at the rear of the said premises hereby expressed to be demised and the whole to be done to the satisfaction of the Surveyor of his said Majesty, His Heirs, Successors or Assigns, (now the Director of Public Works) …[106]

228.  It is also noted that the aforesaid was granted in consideration of, inter alia, payment of certain premium[107]. The level of the lawn was objectively ascertainable at the time of the grant. We disagree with the submission of Mr Hui for R40 and R44 that since there is no longer a RAF quarters, the height restriction has become obsolete. It is because the said height restriction is measured by reference to the lawn on which the quarters stand, and not linked to the existence or otherwise of the RAF or its quarters. Although the RAF or its quarters might have gone the lawn is still there. The term is couched in clear and unequivocal terms. It is an ascertainable height which the Government then had allowed KTM to be built upon the Lots on payment of a specified premium. It is generally the case that the higher premium chargeable for a lot the higher a building can be built upon a lot. From the legal principles briefly stated above, we cannot see how the height restriction clause can easily be rendered invalid or void simply because the RAF quarters no longer exist.

229.  Furthermore, according to the recital, the parties to the Deed of Variation appeared to have gone through the process of negotiation on the terms, including the surrender of certain parts of lands and payment of premium in exchange for the variation of height to the present restriction and the provisions of car parking spaces for particular purposes. The said “height restriction” was apparently a relaxation rather than restriction at that time because it was the then lessee who requested the Government to modify a former terms which imposed rather stringent conditions by requiring the building to be built to be of the same rate, form, elevation, character and description and should front and range in a uniform manner with the buildings immediately adjoining in the same street. It was the lessee who wanted permission for a more intensive development[108]. The height restriction was part of a package deal to suit the development need of the lessee. It was relaxed to that extent on, inter alia, payment of premium. Apparently, it was a commercial deal, and the Government was then only willing to allow the building to be built to a particular height and no more on payment of a limited premium. There is no evidence suggesting that the said height restriction provision in question was related to any third party or policy which has become obsolete. It would appear that any applicant seeking to challenge the said Government Lease provision will be facing an uphill battle as a matter of law. Any prospective purchaser wishing to gain benefit from the said challenge has to make a serious and realistic assessment of its chance from a legal point of view. Ms Sat does not appear to have any clue of such chance from any legal advice. Neither has she written to the Director of Lands to enquire whether the GL-BHR has been abrogated because of the removal of the airport.   

230.  Furthermore, from a brief review of some 9 post-1997 cases[109] challenging whether certain terms of the Government leases having been abrogated, principles to the same effect as aforesaid together with earlier principles enunciated by Hoffmann NPJ (Lord Hoffmann) in Investors Compensation Scheme Ltd And West Bromwich Building Society[110] have been repeatedly referred to, approved or applied.  All except New Mercury, which was on a different point, were unsuccessful.

231.  We also do not notice that, since the removal of the airport from Kai Tak to the Lantau, there is any court decision concerning the relaxation of height restriction in the surrounding areas without payment of premium. Neither the Rs nor any of them nor Ms Sat have put in evidence suggesting that this is the Government stance.

232.  Mr Mak relies on the same argument as Ms Sat to support the existence of a hope value in addition to the agreed RDV. However, the fact that the applicants had filed affidavit to support the interpretation proceedings and the Secretary of Justice did not seek to strike out the proceedings does not form the basis for adding a hope value to the already agreed valuation of the land. In the absence of other evidence concerning the chance of success of the interpretation proceedings, we are not persuaded that a hypothetical purchaser in the market is likely to pay more simply because somebody has expressed enthusiasm and have instigated legal proceedings to challenge the GL-BHR.

233.  Mr Mak suggested to Ms Sat that the legal proceedings may not necessarily defer the development period because the two could have been carried out in parallel at the same time. Mr Mak invited Ms Sat to re-work her sensitivity analysis or IRR analysis and Ms Sat came up with the revised tables[111] below in contrast to those in §§209-210 above:

* This is the additional scenario added to reflect the IRR of 7.11%.

234.  By reverting to the normal development period, Mr Mak submits that the borrowing rate can be reduced from 4.25% to 4.00% and the developer’s profit can be maintained at 15% instead of 15.5%. However, one of the faults of Mr Mak’s proposed approach in such scenario is that the developer must have withheld payment of premium, pending the resolution of the interpretation proceedings. In the circumstances, when premium, which is a variable that changes with market conditions, is eventually payable, due to long lapse of time beyond the agreed date of valuation of the premium, the agreed premium of $1,697,000,000 is no longer applicable. This will certainly increase the risk that a developer has to face. How can the site value be still assessed at the developer’s profit of 15% with an assessed land value remaining at $2,293,000,000 despite all the extra efforts and legal costs wasted[112] but with greater uncertainty looming?

235.  Ms Sat conceded that she has little experience in lease modification applications. It is to be noted that when Government Leases are to be modified, the Government can make use of the opportunity to insert other development conditions to reflect the prevailing land policy instead of merely deleting the said restrictions. Ms Sat further accepts that it would be imprudent for a hypothetical developer to proceed with the development to build beyond the GL-BHR pending the outcome of the legal proceedings for the obvious reason that the resulting development may subsequently be found in breach of the Government Leases should the court rule against him. Accordingly, without any certainty in the outcome of the litigation, what a prudent developer will normally do is to finish the substructure/the foundation and construct no more.

236.  Ms Sat said she had paid no regard to the probability of success in the GL-BHR legal proceedings. It is noted that the decision to purchase or otherwise is a business decision with binary outcomes – either successful or unsuccessful. It was pointed out to her that when she arrived at an expected site value with binary outcomes, a rough formula can be used to find out mathematically the probability implied for an outcome, i.e.

Expected Site Value =

Site Value when no premium is required x α + Site Value when premium is required x (1 – α)

where α is the probability of success.

237.  Ms Sat worked out the probability implied from her recommended value of $2,805,000,000 (with hope value suggested by her) at IRR 7.11% being about 32%[113]. When she answered Mr Mok during cross-examination, she conceded that if a probability is low, it would be imprudent for a developer to increase its bid. If the calculation is not based on the suggestion of Mr Mak but on the lengthened development period because of the legal proceeding as originally advanced by Ms Sat, according to Mr Hui’s closing submission, the required probability of success to support a land price of $2,527,000,000 (i.e. with hope value of $234,000,000 on top of the agreed RDV of $2,293,000,000) for the Lots is 17.21%[114].

238.  Mr Mak refers to Kwok Lee Sau Sang v Director of Lands & Survey[115] where the claimant sought to establish a redevelopment potential of amalgamated site development. At p111-112 of the judgment, the Lands Tribunal commented as follows:

“….. There is no real evidence to support this suggestion. It is no more than the suggestion of a possibility…..

… it appears to the Tribunal to indicate that such a development was unlikely. It does however establish, the Tribunal is satisfied, that there was a likelihood of a 2 site development with some possibility of a 3 or 4 site development.

What the claimant appears to have lost sight of when making his claim is that the Tribunal awards compensation not upon the realized possibility of an amalgamated site development but upon the value which the property would realize in the open market by reason of its potential for use in an amalgamated site. Upon being satisfied that there is such a potential the Tribunal must assess the value which the property would realize in the open market. … After consideration, the Tribunal has come to the conclusion that a developer, bearing in mind the amalgamated site potential set out above, would be prepared to purchase such a site only upon a ‘no loss basis’. By this it is meant that he would only purchase the site at a price which would leave him, even if he was unable to collect one or more adjoining sites for amalgamation, without a loss after a redevelopment of the subject site upon a single site basis. In other words he would be prepared to risk his profit from a single site development and the fact that his capital would be immobilized for a period of about 18 months against the substantially greater profit which he would be able to realize if he were able to purchase one or more of the adjoining lots. The Tribunal has found this assessment a difficult one but it is satisfied that, in the context of Hong Kong, this is the maximum price that would be paid by a reasonable purchaser for such a property on the open market. We posit ‘a reasonable purchaser’ for we are satisfied that, in arriving at our assessment, we must look at such a purchaser and cannot give any weight to the possibility that a speculator, who regarded the purchase as a gamble, might be prepared to pay a higher price.” (underline added by the Tribunal)

239.  Both Mr Mak and Mr Hui submit that Ms Sat’s view was comparable to the situation as recommended by the Lands Tribunal in Kwok Lee Sau Sang, namely, to determine how much a hypothetical developer would be prepared to risk his profit from the redevelopment of KTM. However, as highlighted in the relevant paragraphs of Kwok Lee Sau Sang, the Tribunal must first be satisfied if such potential exists. As explained by us in this judgment, we are not satisfied. Even Ms Sat also accepted that for a probability of as low as about 30%, it would be imprudent for any developer to increase his investment to take the chance.

240.  It is to be stressed that the enhanced land price with hope value as proposed by Ms Sat requires mathematically a probability of about 30%. However, as the Tribunal has pointed out above, there is simply no evidence in the present case suggesting any or any reasonable prospect of success. She has never been advised legally. Neither had the respondents sought legal advice on its prospect. On the contrary, as analyzed above, the prospect is rather slim. Like Kwok Lee Sau Sang, we cannot give any weight to the possibility that a speculator, who may wish to take on board certain gambling element, might be prepared to pay a higher price or risk to the extent of his profit. It is not the purpose of the present valuation exercise.

241.  Mr Mak and Mr Hui also in their closing submissions refer to an article called “Bargaining Margin: How much can a developer yield in negotiations?” [116] which has never been put in evidence for the applicants’ and their experts for comment. Mr Mok objects to its admission. In any event we consider this article fails to convince the Tribunal. It has been suggested in the said Article “bargaining margin” refers to “the incremental “up front” cash that a developer can afford to add to a project and still achieve his required rate of return”. We have explained in §217 above that a hypothetical developer in the market should have already made use of his required rate of return to bid up the price to achieve the highest value of the land, i.e. the agreed land value of $2,293,000,000, having taken reasonably and knowledgeably regard of all potentialities; he should not have any leeway to save up a few percentage as in the example given in the article. As said near the end of the article, the hypothetical developer should preserve his required IRR instead of going down further as suggested by Ms Sat.

242.  We consider that to a certain extent, this “bargaining margin” also resembles the concept of “no loss basis” in Kwok Lee Sau Sang but as said, we are not satisfied that the removal of the GL-BHR at nil premium a probability. By the Hong Kong Standards 2012 Edition by which, we trust, both the valuation experts agree to abide, Market Value is defined by the IVS and followed by the said Hong KongStandards as “the estimated amount for which an asset or liability should exchange on the valuation date between a willing buyer and a willing seller in an arm’s-length transaction after proper marketing and where the parties had each acted knowledgeably, prudently and without compulsion”. As said in §239 above, even Ms Sat conceded that the probability of 32% too low for a prudent developer to increase its bid, not to mention that 32% probability is without basis.

243.  We consider her said concession fair.  The probability theory is a mathematical tool to assist investors making decision. In our judgment, ordinary investor would prefer certainty over chance especially when additional capital outlay is required for the interpretation proceedings with a slim chance of success. Runnymede Development Corporation Limited v City of Oshawa (1982) 36 OR (2d) 582, 135 DLR (3d) 647, 25 LCR 105 concerns an appeal by the municipality from a decision of the Ontario Land Compensation Board which, basing on the evidence of an expert who assigned a 20% risk factor on the prospect of a development, decided that “a willing buyer would still have deducted 50 per cent for the attendant risk”. The Divisional Court of Ontario considered the Land Compensation Board’s reference of the development having “a distinct possibility” could not be elevated to “probability” as in the case of Farlinger Developments (supra).

244.  Mr Hui submits that the market value of the Lots should include an element of “hope value” to reflect the prospect of success in the interpretation proceedings. In his closing submission, Mr Hui suggested that the prospect of the interpretation proceedings was comparable to an incubator venture like the early stage of Facebook which, despite its uncertainty in making profit, might attract tremendous value. We pointed out at trial that this analogy is not appropriate. It is because an incubator venture very often has multifarious outcomes where success may not be limited to a particular outcome whereas the interpretation proceedings have only binary outcomes - either successful or unsuccessful.

Balance of Probabilities or Quantification of a Lost Chance

245.  It is Mr Hui’s submission that at common law, a plaintiff is generally awarded hope value in respect of a lost chance to obtain a benefit, even if the chance of obtaining such benefit is less than 50%. He referred the Tribunal to a number of authorities, e.g.  Chaplin v Hicks[117], Kitchen v Royal Air Force Association[118], Corfield v DS Boscher & Co[119], Allied Maples Group Ltd v Simmons & Simmons[120], etc which are mostly in the area of tort. It is Mr Hui’s proposition that the “loss of chance” jurisprudence at common law has a place in compensation cases. The balance of probability is applicable to do a deterministic assessment such as whether or not a historical event had occurred. However, for future uncertain events as opposed historical facts, a probabilistic assessment is to be adopted. From the cases he relied on, he submitted that the court should be ready to compensate a party even when the loss of chance is less than 50%.

246.  Mr Hui also relies on a number of English authorities such as London Borough of Enfield v Lavender Garden Properties Ltd[121], Porter v Secretary of State for Transport[122], Transport for London v Spirerose Ltd[123] which are land compensation cases to support his proposition that the court will compensate an applicant for hope value even though the probability of the scheme in question is less than 50%. The case of Spirerose which he relies on is a House of Lords decision.

247.  Mr Mok, counsel for the applicants, disagreed. It is his submission that the legal test to establish hope value as confirmed by local authorities is on the balance of probability and not on the quantification of a lost chance. It is also his submission that Mr Hui has misconceived what had been enunciated in Spirerose. Mr Mok relies on Spirerose and the Hong Kong CA decision in Siu Sau Kuen v Director of Lands[124] in support of his proposition.  It is interesting to note that both parties are relying on the House of Lords’ decision in Spirerose for support.

248.  In Siu Sau Kuen, the applicant’s unit was resumed by a notice of resumption issued by the Government. In determining the compensation to be paid to the applicant, issue arose as to whether there were people ready to buy up properties in the subject lot with a view to collecting a site worth redevelopment. An added value reflecting this future potentiality should be incorporated if the Lands Tribunal found in favour of the applicant. The Tribunal, however, found as a matter of fact on the available evidence against the applicant. The applicant lodged an appeal to the CA.

249.  Fok JA (as the leaned PJ then was) considered that although the test which the Tribunal formulated in a particular paragraph was not entirely correct, the actual test the Tribunal was then applying as elaborated in other parts of the first instance decision was correct. Fok JA then confirmed the approach of enquiries by HH Judge Cruden sitting as a Presiding Officer of this Tribunal in Tsang Chun Ki & Anor v Director of Engineering Development[125]. Fok JA then re-state his test at §34 of Siu Sau Kuen, as follows:

“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 reasonable foreseeable time scale.” (Emphasis added)

250.  By reason of Siu Sau Kuen, hope value, which reflects a redevelopment potentiality of a piece of land, will only be included unless and until that redevelopment potential can be established on a balance of probability. We share Mr Mok’s submission that the mere establishment of a possibility for success of the interpretation proceedings is insufficient, and evidence of any prospect of success is simply lacking.

251.  In fact, Spirerose and its line of authorities[126] were discussed briefly in Siu Sau Kuen. The learned Fok JA had this to say at §35[127]:

“I would accept … that these [cases] each concerned development potentials or possibilities that already existed as at the relevant valuation date. As such, they do not establish any proposition that wholly future potentialities, i.e. the validity of future redevelopment that could not be shown as at the date of the resumption to be likely within a reasonably foreseeable time scale, should be taken into account or reflected in the valuation. I do not think there is any basis for the applicant to contend that this is what the authorities require …” (Emphasis added)

252.  We share the learned JA’s observation. In fact Spirerose concerns an appeal to the House of Lords which overturned decisions of both the English CA and Lands Tribunal. The English Tribunal found that planning permission for a valuable re-development in respect of the resumed land was likely to have been granted, though by no means certain[128]. But the English Tribunal awarded compensation on the basis of a valuation of land not on the footing that permission would probably have been granted but on the footing that it would have been granted[129]. The English Tribunal attributed a valuation of £608,000 for the latter footing but only £400,000 to the former one which reflected only a “hope value”. According to what has been recited by the House of Lords, this ‘hope value” was on the basis that “permission is not as a matter of law to be assumed and only hope value is to be taken into account.”[130] The House of Lords considered in the circumstances it would be wrong to award on the basis of 100% certainty of redevelopment[131]. A discount rate with only hope value should be awarded to reflect the chance that permission would not have been granted.

253.  In Spirerose, the English Lands Tribunal found, as a matter of fact, that permission was likely, i.e. on a balance of probability or more likely than not, to be available to the applicant. The House of Lords only considered that in the circumstances, it was not right for compensation to be awarded as if such permission had been granted. Discount in the form of hope value was appropriate. Spirerose therefore does not support the proposition that a hope value should be awarded for any likelihood of redevelopment even if it is less than 50%. Before hope value was to be awarded the English Tribunal in Spirerose was satisfied on a balance that the redevelopment was likely, though not granted. The House of Lords did not upset these underlying findings.

254.  The question of whether the loss of chance as commonly adopted in area of tort should be introduced in the area of land compensation asserted by Mr Hui and Mr Mak was also discussed in Spirerose. Many of the cases referred to by Mr Hui have in fact been referred to and discussed therein. With the greatest respect to Mr Hui, upon perusal of Spirerose, this Tribunal comes to a conclusion different from his. We accept Mr Mok’s submission as set out in paragraph 77 of his closing skeleton dated 8 May 2015. We consider that their Lordships’ views in Spirerose were in fact clearly against such tort rule to be introduced in the area of land compensation. Suffice to say that in §42, Lord Walker rejected this idea and had this to say:

“The Court of Appeal quoted at length from decision of this House in Gregg v Scott [2005] 2 AC 176. In that case the House was asked, in effect, to extend the ambit of “loss of chance” in tort cases from the issue of quantification of damage to the issue of liability (and in particular, causation of damage, which is an essential of liability in tort). The House was divided on that controversial issue. I am doubtful whether the law of compensation for compulsory acquisition of land will be greatly enriched by reference to the jurisprudence on “loss of a chance’ in tort. “Hope value” is, as I have observed, a well-understood concept which has served for generations. The introduction of the tort cases may have been influenced by the fact that Stuart-Smith LJ, who presided and gave the leading judgment in Porter v Secretary of State for Transport [1996] 3 All ER 693, had also presided and given the leading judgment in Allied Maples Group Ltd v Simmons & Simmons[1995] 1 WLR 1602. I have no doubt, however, that Porter was rightly decided” (Underline added)

255.  Lord Walker further set out in the following paragraph certain views of Carnwath LJ expressed in Gregg v Scott which Mr Hui is also relying on, and questioned the distinction made by Carnwath LJ as arbitrary. His views are supported by all members of the House[132].

256.  The English CA in Spirerose took the view that there is no anomaly in giving a hope value even there would have been a possibility but less than a probability of a planning permission[133]. Lord Collins then went on to consider there was no basis for the CA to come to the conclusion it did. In paragraph 130 of Spirerose, Lord Collins expressed that:

“Nor do I understand how the Court of Appeal could have concluded, given its decision on the approach to the consequences of a finding on the balance of probabilities, that where there would have been a possibility, but less than a probability, of planning permission, the land owner should have the benefit of hope value. … ”

257.  Lord Neuberger also discussed the insufficiencies of the English Court of Appeal decision. In paragraph 61 of Spirerose, it is said by Lord Neuberger as follows:

“… Thirdly, it is an unconvincing reason, because a “hope value” valuation would, even on the Court of Appeal’s reasoning, be required where the prospect of obtaining planning permission was less than 50%.”

258.  In our views, Spirerose does not support the submission now contended by Mr Hui and Mr Mak. Quite the contrary, it is in line with the local authorities such as Siu Sau Kuen which requires the re-development, and in the present case, the interpretation proceedings having a prospect of success on a balance of probability before a hope value can be attached.

259.  It is the Tribunal’s view that the test for the “hope value” is on a balance of probabilities, and the Rs fail to demonstrate that the threshold has been reached. As a matter of fact we find there is simply no evidence which supports any prospect of success of the interpretation proceedings. On the contrary, on a broad brush review of the said interpretation proceedings, the chance of success seems slim.

260.  By reason of the above, the suggestion that a hope value to be added to the agreed land value of the Lots to reflect the possibility the GL-HRC being removed at nil premium is not substantiated.

Conclusion on Reserve Price

261.  Hon Ribeiro PJ at §21 in Capital Well,after examining the scheme of the Ordinance, considered that the enactment is to ensure a minority owner receive fair and reasonable compensation for his interest in the lot. Such compensation may be that which the minority owner agrees to accept or that which represents his share of the market value of the lot (reflecting its RDV) as determined at a public auction, subject to a reserve price approved by the tribunal. In this connection, the RDV assessed by the Tribunal is the “minimum” reserve price for the purpose of the auction. The market value of a minority owner’s unit will then be determined by market force through the process of auction.

262.  By reason of the above, we reject the suggestion of hope value by Ms Sat, and accept the reserve price for the auction of the Lots be set at HK$2,293,000,000.

Trustees

263.  The applicants proposed to appoint Mr Ma Ho Fai and Ms Tsang May Ping who are respectively senior partner and partner of Messrs Woo Kwan Lee & Lo, Solicitors, Notaries, Agents for Trademarks & Patents, as the sale trustees.  Based on the information on their background and experience as set out in the letter dated 24 April 2015 from their firm, we are satisfied that they are proper persons to be appointed.  Their remuneration at the rate of $5,500 per hour (exclusive of disbursements) as mentioned in the letter dated 30 March 2015[134] is considered reasonable and acceptable.

Particulars and conditions of sale of the Lot

264.  On behalf of the applicants Mr Mok has submitted a set of draft particulars and conditions of sale[135] by public auction for our consideration.  We have perused them and understand they are usual terms used for compulsory sale, and we approve the said draft accordingly.

Conclusion and Orders

265.  By reason of the forgoing, we are satisfied that the redevelopment of the Lots is justified due to the age and state of repair of KTM; and the applicants have taken reasonable steps to acquire the undivided shares in the Lots. This Tribunal has determined the values of the minority owners’ unit and is also satisfied that the values of the minority owners’ units as assessed in the Application are not less than fair and reasonable, and not less than fair and reasonable when compared with the value of the applicants’ property as assessed in the Application.  This Tribunal now makes the following orders:

(i) All the undivided shares in the Lots, the subject of the Application, be sold by way of public auction for the purposes of redevelopment of the Lots under section 4(1)(b) of the Ordinance;

(ii) Mr Ma Ho Fai and Ms Tsang May Ping nominated by the applicants be appointed trustees (“the Trustees”) to discharge the duties imposed on trustees under the Ordinance in relation to the Lots; and the Trustee be authorized to charge such remuneration for their service in accordance with the terms set out in the letter from Messrs Woo Kwan Lee & Lo, dated 30 March 2015;

(iii) Messrs Michael Cheuk, Wong & Kee be appointed as the solicitors for the Trustees (“the Trustees’ Solicitors”) to assist the Trustees in discharging their duties imposed by the Ordinance and the Trustees’ Solicitors be authorized to charge such remuneration for their services in accordance with the terms set out in the letter of Messrs Michael, Cheuk, Wong & Kee dated 8 April 2015;

(iv) For the purpose of the sale of the Lots by public auction,

(a) The sale of the Lots be on particulars and conditions of sale the same or substantially the same as the set of draft particulars and conditions of sale submitted to the Tribunal[136] initialled and approved by us;

(b) The reserve price of the Lot be set at HK$2,293,000,000;

(c) Subject to further extension that the Tribunal may subsequently allow upon the application of the purchaser of the Lots or its successor in title, the redevelopment of the Lot be completed and made fit for occupation within a period of six (6) years after the date on which the purchaser of the Lot becomes the owner of the Lots;

(d) There be liberty to the applicants, the respondents and the Trustees to apply to the Tribunal for further directions under the Ordinance.

Costs

266.  Following the principles laid down in Good Faith Properties Ltd v Cibean Development Co Ltd[137] we make a costs order nisi that the applicants do pay the respondents costs of the respondents, including all costs reserved, such order be made absolute after 14 days if no application is made to vary the said costs order.

267.  We would like to express our gratitude to counsel for their thorough legal submissions and able assistance rendered throughout the trial.

Postscript: Disciplinary Action against Mr Chan

268.  Starting early September 2015, various parties had written to the Tribunal raising queries to the fitness of Mr Chan to be an expert in the present proceedings. It was because as reported in the newspaper, the Hong Kong Institute of Surveyors (“HKIS”) had instituted disciplinary action against him and found the charge substantiated.  His membership was suspended as a result.

269.  On 24 September 2015, the applicants’ solicitors wrote to the Tribunal attaching, inter alia, a letter of Mr Chan dated 23 September 2015 and copying the same to all other Rs. By the said letter, Mr Chan said he received on 21 August 2015 from the HKIS a decision of its Disciplinary Board (“DB”) that the charge against him for giving opinion as a professional valuer that “were not, to the best of his ability, objective, reliable and honest” is established; and that his membership was suspended for a period of 12 months from 20 August 2015.

270.  As the hearings of the HKIS and its DB were conducted in strict confidence, and that Mr Chan was then contemplating lodging legal challenge to the said decision, the charge, the decision of the DB dated 25 March 2015 and the suspension letter of the HKIS dated 20 August 2015 were not enclosed with Mr Chan’s letter. However, it was stated that Mr Chan was willing to disclose these documents to any respondent who agrees to provide an undertaking to the effect that the documents would only be used for the sole and only purpose of considering the relevance of Mr Chan’s suspension to his evidence given in the present proceedings.

271.  This issue has generated a series of exchange of correspondence between the applicants and various respondents and a number of letters to the Tribunal. On 16 October 2015, the Tribunal directed release of the said confidential information subject to provision of undertakings to the Tribunal, Mr Chan and the applicants along the line proposed by the Applicants. Some unrepresented parties requested re-opening of the hearing for the purpose of challenging Mr Chan’s evidence given at trial on, inter alia, grounds that he dishonestly misled the tribunal by manipulating valuation data.

272.  On 11 December 2015, this Tribunal directed that:

(i) R22, R33 and R34 and all those respondents who are interested to make submission on the impact of Mr Chan’s disciplinary action by the HKIS as revealed by the said confidential information on his evidence given in the present proceedings do lodge and serve their respective written submissions on or before 28 December 2015; and

(ii) The applicants do lodge and serve their written submissions in response on or before 11 January 2016.

273.  In compliance with the aforesaid directions, only R22, R33 and R34 (acting through counsel Mr Bernard Mak and Mr Bosco Cheng), R9 (acting in person) and the applicants (acting through Mr Mok) put in written submission.

274.  Some backgrounds leading to the disciplinary action have already been in the public domain. Taken into consideration of the confidential nature of the disciplinary proceedings and that there is an impending proceedings in the CFI, only very brief facts which are necessary for the disposal of the present issue will be set out. The validity or otherwise of the said disciplinary decision will not be discussed herein.

275.  It is undisputed that in 2009 Mr Chan was engaged to prepare a valuation report relating to certain properties located in the PRC for a PRC company for the purpose of an initial public offer (“IPO”) of that company in Hong Kong. Certain properties held by the said company were subject to sales restriction. Mr Chan’s assessment was on the basis of “investment value” which, according to the report, did not represent the “market value” of the properties as defined in the HKIS Valuation Standards. An asterisk to denote this difference was placed next to the valuation with description “market value” in some but not all parts of the report annexed to the IPO document. Those parts without the asterisks include the figures being the summation totals stated under the heads of “sub-total” and “total” from figures bearing asterisks. The “investment value” attributed to 90% of the “market values” of landed properties so represented (or misrepresented).

276.  It is therefore the HKIS’s case as revealed from its charge against Mr Chan that he had:

(i) misrepresented certain valuation as the market values but in fact they are not;

(ii) failed to ensure the users of the report distinguish the investment value from market value; and

(iii) failed to ensure the said report not misleading.

277.  The formal charge against Mr Chan before the DB was issued on 14 December 2012 and amended on 9 June 2014. The DB hearing of the HKIS was held on 5 & 6 February 2015, and its decision made on 25 March 2015. According to the HKIS’s letter to Mr Chan’s lawyers notifying him of the decision of the HKIS’s General Council, it was stated therein that the meeting of the Council was held on 7 August 2015, during which resolutions to, inter alia, suspend his membership were then made. The DB’s decision dated 25 March 2015 was also enclosed to Mr Chan via his solicitors.

278.  It is Mr Chan’s case that all valuation figures in the summary values of the report in question were clearly distinguishable between “investment value” and “market value” and hence the HKIS valuation standards have been complied with. It was further his case before the DB that figures under the heads of sub-totals and totals were only arithmetic summations and were not opinions. However, Mr Chan’s explanation was not accepted by the DB which considered his way of presentation misleading. The Tribunal was, however, informed at the same time that Mr Chan’s membership with the Royal Institution of Chartered Surveyors (“RICS”), another professional valuation body, remained intact.

279.  Counsel Mr Mak and Mr Cheng do not, and we think fairly and reasonably, invite this Tribunal to automatically disregard totally Mr Chan’s evidence as a consequence of the suspension of membership. It is their submission that:

(i) They make no challenge to the expertise and qualification of Mr Chan even if he was suspended. The only contention being made is that this Tribunal should take the findings of the DB and Mr Chan’s suspension into account in assessing his evidence;

(ii) The findings of the DB clearly casted doubts on Mr Chan’s integrity and credibility as a professional valuer as a whole because he employed the investment value, which is much higher than the market value, but presented the same as if it were the market value. The finding that Mr Chan giving professional opinions not to the best of his ability, objective, reliable and honest is a circumstance which ought to have been taken into account; and

(iii) Mr Chan’s opinion on EUV was challenged directly by Mr Siu and RDV by Ms Sat both of them had given compelling evidence and are of equal standing to Mr Chan.

280.  Counsel for R22, R33 and R34 refer the Tribunal to a passage in an English decision of Watkins & Davis Limited v Legal General Assurance Co Ltd[138] at 680 by Neill J in purported support of their submission:

“In any case where a Court is asked to make a finding on the opinions of an expert, however eminent, it is necessary to consider all the surrounding circumstances with great care. This is particularly true where the standard of proof required is a very high one and where some other explanation offered by another expert of equal standing …”

281.  R9’s submission, so far as can be discerned from his submission, can be broadly be summarized as follows:

(i) the trial started on 2 March 2015 and the disciplinary proceedings started in 2014. Mr Chan ought to have disclosed the disciplinary inquiry of the DB of the HKIS to the parties earlier;

(ii) he can accept Mr Chan’s EUV; but

(iii) invites the Tribunal to disregard Mr Chan’s RDV.

282.  Mr Mok submitted that the decision of the DB does not adversely affect the credibility, reliability and integrity of Mr Chan in general, and his credibility, reliability and integrity in his evidence given in the present proceedings which concerns particular aspects of valuation  which he disagreed with Mr Siu and Ms Sat. His submission can broadly be summarized as follows:

(i) it is not the DB’s finding that the basis for adopting the investment value assessment employed by Mr Chan in the IPO’s document wrong or misleading. Neither was it the DB’s case that the assessed figures of the investment values and the markets values set out in the IPO document wrong. The methodology or basis is not challenged by the DB. What was said to be wrong was the way of presentation. The Board said what was “extremely misleading to any ordinary readers of the general public” being the way of presentation of the investment values and the market values contained in the Summary of Values in that they had not been presented in a “more readily distinguishable way”. The use of asterisk was said to be “grossly inadequate”;

(ii) it was true that the DB found against Mr Chan whose explanation was not accepted. It is a matter of presentation and was more of a judgment call on how the information should be better organized on an area with no clear consensus rather than an attempt by Mr Chan to dishonestly hide the information from the public;

(iii) the decision of the DB contained no specific finding that Mr Chan’s opinion dishonest though it was their conclusion;

(iv) Mr Chan’s way of presentation leading to the DB decision and the suspension has nothing to do with the present case which concerns totally different disputed areas raised by Mr Siu and Ms Sat. R22, R33 and R34 did not make an issue of the general reliability, credibility and dishonesty of Mr Chan’s expert evidence given in the present proceedings. The issues in dispute in the present proceedings concern individual items such as methodology, choice of comparables and adjustment which the Tribunal has the expertise to determine and will not be affected by dishonesty, if any, on the part of Mr Chan; and

(v) The RDV was subsequently agreed between Ms Sat and Mr Chan. They differed only on the issue of hope value the determination of which does not have to rely on the general credibility or integrity of either Ms. Sat or Mr Chan as valuation experts.

283.  After reading the decision of the DB and the written submissions of the parties, the Tribunal shares generally the views of Mr Mok. As apparent from the IPO document, Mr Chan was required to do valuation of landed properties in the PRC with sales restriction. He adopted an investment valuation approach. In the DB’s proceedings, an expert was called by the HKIS as a key witness against Mr Chan. There is no suggestion by the HKIS’s expert that the methodology, namely, the investment approach adopted by Mr Chan for the landed properties in question wrong or inappropriate in the circumstances. Neither has any opinion ever expressed that if other methodology (or more appropriate methodology) was adopted, the valuation arrived at would be substantially less. What the DB’s decision seems to suggest is, since the way of presentation was misleading, and since Mr Chan was such an experienced member, the way of presentation was considered deliberate. Mr Chan was therefore considered dishonest. From what has been stated, we share Mr Mok’s view that the suspension by the HKIS of Mr Chan’s membership not casting any doubt on his professional ability and expertise in the area of valuation where his expert opinion is required in the present case. Even counsel for R22, R33 and R34 do not seek to challenge the “expertise and qualification of CC [Mr Chan] even if he was suspended”[139].

284.  The main issue of EUV in the present case concerns whether the investment method used by Mr Siu in the valuation of CPS should be adopted in preference to the direct comparison method adopted by Mr Chan. There are also aspects such as what comparables should be adopted, the extent of adjustment that should be made to a particular factor and floor areas, etc for the shops, residential units and CPS. We reject Mr Siu’s opinion on, inter alia, grounds that he simply adopted unreliable rental income, not investigating the background thoroughly, and that his theory is unsound. After detailed analysis many of the views expressed by Mr Chan on the difference between the parties are accepted by this Tribunal. It is to be emphasized that that the panel of this Tribunal comprises a member who is a professional and experienced valuer. As such, the conclusion of the DB of the HKIS leading to the suspension of his membership does not, in our view, affect in any material way Mr Chan’s opinion given and accepted in the present proceedings on the issue of EUV. Mr Chan’s opinion was accepted on the strength of his expertise and skill and, in our view, was not materially affected in any way by his integrity or credibility.

285.  It is fair to say R9 accepted the EUV arrived at by Mr Chan despite his criticism.

286.  Concerning the issue of RDV, as discussed above, the difference in the valuation reached between the Mr Chan and Ms Sat is less than 10% and can be regarded as within reasonable difference between 2 competent experts[140]. The plot ratio, which has once a hotly disputed issue and the subject matter of an urgent expert directions application shortly prior to trial, arrived at eventually was almost identical[141]. Subsequently the 2 experts can even agreed on the RDV of the Lots. They disagree only on the “hope value” proposed by Ms Sat.

287.  The Tribunal disagrees with Ms Sat on “hope value” on grounds, inter alia, that it fails to satisfy the legal threshold and is totally without basis because there is simply no evidence suggesting any prospect of success of the interpretation proceedings when she puts forward the “hope value” for consideration. Neither has she been advised of the same before making the proposal as an expert in her professional capacity to the Tribunal. It is further the assessment of the Tribunal on a broad brush view that the case of success is slim. The reasons for rejecting the proposed “hope value” are more particularly set out above. The rejection or otherwise of the “hope value” proposed by Ms Sat is not dependent upon the findings of the DB against Mr Chan, though the Tribunal shares many of his views.

288.  In the circumstances of this case we fail to see how Watkins can assist the Rs. On the areas of the EUV and RDV which require adjudication by the Tribunal, with due respect to Mr Siu and Ms Sat, we cannot see they and Mr Chan can be regarded as experts of equal standings.

289.  In the argument between the experts on professional level, there has never been any allegation that Mr Chan was dishonest, unreliable or not objective. The argument was mainly on valuation methodology, choice of comparables, adjustments, etc. Accordingly, even after taking into consideration of the DB’s findings and the HKIS’s decision to suspend his membership which they are entitled to come to as they did now, this Tribunal would not come to a different conclusion from that set out in this decision. Neither do we find Mr Chan’s opinion given in the present proceedings unsafe or unreliable.

290.  There has been challenge by R9 that Mr Chan should have disclosed the disciplinary action against him by the DB of the HKIS. Similar challenge was in fact lodged in another compulsory sale’s case Harvest Treasure Limited and Ors v Cheung Fat Enterprises Limited & Ors[142] before a differently constituted panel of the tribunal in which Mr Chan had also given expert evidence. In that case, counsel for the defendants submitted that Mr Chan’s evidence should be given no weight simply because he made no disclosure of the disciplinary proceedings against him in that proceeding. Various authorities including the Court of Final Appeal decision in HKSAR v Lee Ming Tee and Securities and Futures Commission[143]  was considered. The Tribunal in Harvest Treasure came to a view that the duty to disclose a witness’s disciplinary inquiry discussed in Lee Ming Tee is mainly applicable to criminal cases, not civil proceedings, and the duty is on the prosecution.

291.  We understand that Harvest Treasure may be subject to appeal. Suffice to say that Section 58(1) of the Evidence Ordinance provides that:

“Subject to any rules, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.”

292.  Mr Chan said he only knew of the DB and the HKIS’s decision on 21 August, 2015. This fact is not challenged. So when he made his various reports and testified in court he was not aware of the DB’s decision. Apparently, Mr Chan has not breached any codes of conduct for professional expert set out in the Rules of High Courts, and his evidence will not be rendered inadmissible.

293.  Further, section 10(6) of the Lands Tribunal Ordinance, Cap 17 (“LTO”) provides that:

“The Tribunal may admit in evidence any statement, document, information or matter, whether or not it would otherwise be admissible in evidence and attach such weight to it as may be appropriate in the circumstances.”

294.  Even if the Tribunal were wrong and Mr Chan has a duty to disclose his disciplinary inquiry when giving his report/evidence in the present proceedings, the above LTO provision empowers the Tribunal to admit his evidence after taking all matters into consideration and attaching such weight to it as the tribunal deems fit. As such it will be a matter of weight to be attached to his evidence rather than a matter of admissibility. By reason of nature of difference between the parties on matter requiring expert evidence as more particularly set out in the preceding paragraphs, we consider the DB’s findings and the HKIS decision, which they are entitled to come to and even if upheld in any court of laws, will not render Mr Chan’s evidence given in the present proceedings unreliable or to be rejected, thus affecting the conclusion of the tribunal in any material way.

Appendix A

EUV assessments for shops at KTM

* In view of the marginal difference in depth between the shops, the adjustments for size and depth as proposed by Mr Siu have been discarded.

Appendix B

EUV assessments for domestic units in Block 1 (i.e. No 53 Kwun Tong Road) of KTM when compared with Reference Domestic Unit (i.e. Unit 6, 4/F, No 55 Kwun Tong Road) at $64,900/m²

* As per the adjustments submitted in the applicants’ closing submission.

EUV assessments for domestic units in Block 2 (i.e. No 53A Kwun Tong Road) of KTM when compared with Reference Domestic Unit (i.e. Unit 6, 4/F, No 55 Kwun Tong Road) at $64,900/m²

* As per the adjustments submitted in the applicants’ closing submission.

EUV assessments for domestic units in Block 3 (i.e. No 55 Kwun Tong Road) of KTM when compared with Reference Domestic Unit (i.e. Unit 6, 4/F, No 55 Kwun Tong Road) at $64,900/m²

* As per the adjustments submitted in the applicants’ closing submission.

EUV assessments for domestic units in Block 4 (i.e. No 55A Kwun Tong Road) of KTM when compared with Reference Domestic Unit (i.e. Unit 6, 4/F, No 55 Kwun Tong Road) at $64,900/m²

* As per the adjustments submitted in the applicants’ closing submission.

Appendix C - EUV assessments for all CPS in KTM

Car Parking Space Nos

Appendix D

LDCS 4000/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDCS 4000 OF 2013

___________________

___________________

D E C I S I O N

___________________

1. This is the hearing of a third batch of interlocutory applications comprising 9 summonses, this time taken out by the applicants, against 9 respondents, namely, R22, R40, R44, R33, R34, R39, R41, R42 and R43. The 3 summonses against the first 3 named respondents were issued on 12 December 2014 whereas the remaining 6 against the other 6 named respondents on 15 December 2014. 

2. Shortly before this decision, this tribunal handed down 2 decisions on 2 rounds of interlocutory applications taken out by some of these respondents. The first was handed down on 19 January 2015 dismissing R40’s discovery summons for various court and re-zoning documents (“discovery decision”). The second was on 3 February 2015 directing production of two further expert reports requested by R40 and dismissing a staying summons by R22, R33 and R34 (“expert/staying decision”).

3. By the present 9 summonses the applicants seek specific discovery of documents by requiring each of the named respondents to make an affidavit stating whether certain categories of documents are or have at any time been in its/his/her possession, custody or power, and produce them for inspection. The applicants also seek to administer interrogatories on the named respondents. The applicants say the requested documents and interrogatories relate to the question of whether the 9 car parking spaces (“CPSs”) at Kai Tak Mansion (“KTM”) were sold by R22 during 2012-2014 at arm’s length and whether a mortgage of another 18 CPSs are genuine. They also consider a warning letter issued by the Lands Department (“LD”) relevant and necessary.

Brief Background

4. R22 has since November 1988 been the registered owners of 84 out of 100 CPSs at KTM. The CPSs were bought for generating rental incomes and apparently were for long term investment[1]. It appears that as early as 2007, there was an attempt by KTM’s owners to redevelop the site. It was apparent in 2010 that such attempt failed. There were then serious disputes among some owners. Since then R22 alleged that it had been badly and unfairly treated by some of the majority owners.

5. At around the same time and in July 2010, the applicants kick-started the redevelopment process by acquiring a substantial proportion of units of KTM. It was not in dispute that since May 2012, R22 had started to sell its first CPS. Between May 2012 and June 2014, a total of 9 CPSs were sold. The applicants consider the transaction prices unusually high because they are at as much as a few times the Existing Use Value (“EUV”) assessed by their valuation expert. On the other hand the transaction prices tally with the EUV assessed by the respondents. The applicants say the intention behind is apparent - if the tribunal is minded to grant a compulsory sale order, R22 will be in a better position to argue a much higher Redevelopment Values (“RDV”) for its CPSs. The applicants therefore say the transactions at unusually high prices are to window-address the EUV for gaining benefits in the applicants’ present compulsory sales application.

6. A majority of the CPSs are covered and referred to as “covered garages”. There are conditions in the Government lease providing that CPSs are restricted for parking of private cars of KTM residents only, and are prohibited for use other than as aforesaid. However, there was evidence that some of these covered CPSs had been used in breach of the lease condition. Even according to Mr Keith Siu, the valuation expert engaged by Li, Wong, Lam & W I Cheung, solicitors for the R22, R33 and R34 (“Rs”), some of them are installed with lighting, water supply and metallic gates[2]. Mr Siu adopted an investment method for valuation. Mr Charles Chan, the applicants’ expert disagrees. 

7. According to the information disclosed, the EUV assessed by the parties’ experts differs substantially. Even according to the average price for each CPS valued by the applicants’ expert, each is only $625,000[3]. The parties’ EUV valuations together with the transaction prices are set out below for ease of discussion:

CPS No.	Date of Agreement (R)	Transaction Price ($)	Market Value assessed by applicants[4] (1/12/2012) ($)	Market Value assessed by respondents[5] (1/12/2012) ($)
28	30/05/2012 (R33)	1,760,000	510,000	1,269,000
29	20/12/2013 (R42)	1,920,000	260,000	1,540,000
30	20/12/2013 (R43)	1,920,000	510,000	1,540,000
35	06/09/2012 (R34)	1,780,000	510,000	1,540,000
36	11/06/2014 (R44)	1,900,000	260,000	1,540,000
37	12/12/2013 (R44)	1,900,000	510,000	1,540,000
49	04/11/2013 (R40)	1,890,000	510,000	1,406,000
100	07/06/2013 (R39)	1,988,000	410,000	420,000
66	15/09/2014 (R46)	1,730,000	410,000	420,000

8. In addition, by a mortgage dated 11 December 2012[6], one Shih Ying (“Shih”), R22 together with its 2 directors Lo Lo Ming (“Lo”) and Law Siu Lung (“Law”) as borrowers raised a loan of US$7 million from R41 (a BVI company) on the securities of properties provided by each of the borrowers (“Mortgage’). R22 put in as securities 18 CPSs in KTM (different from the 9 CPSs sold)[7]. Lo provided a landed property in Thailand as security. The applicants have instructed Thailand lawyers and surveyors to investigate into the Thailand security and for advice. It is found out that the lot number of the Thailand lot does not refer to land but a highway. The title deed number is found to be non-existent. The security is therefore untraceable or non-existent in Thailand. The remaining securities were found worth only around US$1.6 million according to the applicants’ expert[8]. It was considered suspicious by the applicants as to how the borrowers (including R22) managed to obtain a loan of US$7 on the strength of known assets worth only US$1.6 million. Queries and requests for particulars were raised to the relevant parties. R22 replied by saying that the request was irrelevant while there was simply no response from other respondents including the borrower R41.

9. The gist of Mr Mok’s submission is this. If a transaction were made between an applicant and a minority owner, the applicant is always in a position to confirm to the tribunal, in case of dispute, that the offer being one with redevelopment in mind. The transaction price therefore must have reflected the RDV, not merely EUV. Now the transactions are made between minorities. Although the valuation expert instructed by Rs has not relied on the aforesaid transactions as comparables in computing EUV, the EUV eventually arrived at by him are closed to the sale prices. In addition, the relevant respondents refused to confirm anything. The applicants suspect that the relevant respondents are trying to inflate the sales prices and dress them up as market EUV relying on Rs’ report. The Mortgage is of a similar pattern creating an impression the CPSs are very valuable securities. Mr. Mok submits that the applicants are therefore entitled to have the requested information in order to know whether the transactions are arm’s length ones. The information is useful for cross-examining Rs’ expert who has adopted a definition of market value being price obtained in an arm’s length deal between a willing buyer and willing seller[9]. Mr. Mok submits EUV should take into no account of any redevelopment according to the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“LCSRO”) and knowing the background will enable the tribunal to assess the EUV.

Discovery Sought

10. The 9 summons were issued against R22 as vendors of the 9 CPSs, R41 as the lender under the Mortgage and 7 purchasers of the aforesaid 8 CPSs (except CPS No. 66 against R46 whose address was in Indonesia and against whom an order for substituted service has not been granted when the 9 summonses were issued). Documents and interrogatories are sought can be categorized according to the following:

i)  Transactions relating to the sale of the aforesaid CPSs;

ii)  The Mortgage entered into between, among other parties, R22 and R41; and

iii)  A letter dated 26 January 2010 issued to R22 by the Lands Department. 

11. Mr. Mok submits that the documents requested and interrogatories to be administered relate to the background circumstances. The documents and information sought are those which would have existed under normal circumstances if the sales and Mortgage were usual transactions at arm’s length. The aforesaid LD letter is direct evidence showing the extent of breach of the lease conditions by R22.  

Sale and Purchase of the 9 CPSs

12. As regards the sale and purchase of the aforesaid 8 CPSs (i.e. all except CPS No. 66), the specific discovery sought against R22 as vendors, R40 (CPS No. 49), R44 (CPS Nos. 36 & 37), R42 (CPS No. 29), R43 (CPS No. 30), R39 (CPS No. 100), R33 (CPS No. 28) and R34 (CPS No. 35) as purchasers concern the followings categories of documents:

i)  Evidence of payment of deposit/balance of purchase price including cheques, receipts, payment slips, bank statements etc;

ii)  Pre-sale valuation reports/advice;

iii)  Evidence of marketing efforts on selling/knowing about sale such as estate agent agreements, newspaper advertisements etc; and

iv)  Provisional agreement signed.

13. The interrogatories sought concern basically the same matters as discovery to cover situations when no written documents are said to have existed.

The Mortgage of another 18 CPSs

14. In relation to the Mortgage, the specific discovery sought against R22 as borrower and R41 as lender concerns the following categories of documents:

i)  Evidence of funds from R41 to R22 including cheques, receipts, payment slips, bank statements etc;

ii)  Valuation report(s) of the 18 CPSs; and

iii)  Agreement between R41 and R22 together with the other borrowers on the maximum which R22 can utilize out of the US$7 million loan on the security of the said 18 CPSs.

15. The interrogatories sought, again, concern basically the same matters as discovery to cover situations when no written documents are said to have existed. Further interrogatories which the applicants consider relevant include:

i)  Whether R41 is in the business of extending loans when the Mortgage was entered into;

ii)  How R41 is approached by and agreed with R22 on the Mortgage; and

iii)  The relationship between R41 and R22 and the 3 other borrowers.

The Lands Department Letter of 26 January 2010

16. The applicants also sought discovery of the aforesaid letter from R22. It was shown in the Lands Register of the CPSs owned by R22 two letters warning it of breaches of Government lease conditions and threatening re-entry. Both letters referred to an earlier letter of 26 January 2010 issued by LD.  It is submitted by Mr. Mok that this letter is relevant to the question of whether R22’s valuation expert is entitled to assess the EUV of the covered CPSs according to the historical rental when they were used in breach of the Government lease conditions.

The Oppositions

17. R39, R41 R42 and R43 show no appearance. The remaining 5 respondents are represented by 3 teams of lawyers, with Mr. Bernard Mak of counsel representing R22 (vendor), R33 and R34 (purchasers of CPS Nos. 28 & 35), Mr. Hui of counsel for R40 (purchaser of CPS No. 49) and Mr. Alrick Mak of Simon C.W. Yung & Co for R44 (purchaser of CPS Nos. 36 & 37).  

18. Although the parties did not make oral submission on the law governing specific discovery and interrogatories, the tribunal considers, after reading their written submission and the cases[10] referred to, there being no quarrel between them on the applicable legal principles. Apart from relevance, necessity for disposing fairly of the cause or matter or for saving costs remains a key consideration for whether to grant an order in respect of both types of application.

19. Mr Bernard Mak’s opposing submission on behalf of the Rs  can be summarized in the followings broad grounds:

i)  Neither party’ expert has relied on the alleged 9 so-called “suspicious transactions” in compiling the EUV. There is also no apparent dispute in EUV quantification for each of the 18 CPSs charged under the Mortgage and CPS Nos. 66 and 100 (these 2 forming parts of the 9 sales). Whether or not such transactions were genuine is therefore a non-issue;

ii)  The mere fact that the purchase price of a property is higher than its assessed value do not necessarily support a suspicion that such transaction not genuine. There can be numerous reasons for a purchaser to purchase at a consideration he/she considers acceptable, and after all, it is entirely a commercial decision;

iii)  The difference in the valuation between the 2 experts lies in the valuation method adopted: investment method by Mr Siu and direct comparison method by Mr Chan. It is a matter to be decided at trial without having to decide whether the transaction were conducted at arm’s length;

iv)  The evidence does not support the Mortgage being entered into for creating a false appearance that the transaction was genuine. Even if it were, since the values of the securities were not taken into account in the valuation, it is a non-issue. The allegation of missing securities is a red herring;

v)  The production of the LD letter is unnecessary because other letters registered against the CPSs will be sufficient to establish breaches of lease conditions without further reference to this letter; and

vi)  The application was made simply too late.

20. Mr. Hui adopts Mr. Bernard Mak’s submission in support of R40’s opposition. In addition, after the issue of the relevant summons, R40 has voluntarily disclosed its completion letter together with 3 split cheques, and confirmed the said cheques have been duly presented and paid. No other documents were disclosed.

21. Mr. Alrick Mak for R44 also adopts Mr. Bernard Mak’s submissions except he makes further elaboration on the issue of delay by relying on Tsui Koon Wah wherein Stone J refused interrogatories when made 10 weeks before trial[11]. He further submitted it was a fishing exercise with a view to turn non-issues into issues.

Discussion

22. As set out in paragraphs 11 to 13 of my expert/staying decision of 3 February 2015, it is reasonable to presume R40 purchased the relevant CPS with full knowledge of the present application under the LCSRO. Although the LCSRO application was made on 21 February 2013 and the registration thereof with the Land Registry only on 30 July 2013, the redevelopment of KTM was promoted and in fact put into action in as early as 2007[12]. At least by 2010 there had already been an unsuccessful tender exercise initiated by joint effort of KTM owners. Accordingly, it is reasonable to assume, at least provisionally before cross-examination of witnesses at trial, R22 as owners of the majority of CPSs in KTM is fully aware of the potential prices that its CPSs can fetch in the event of redevelopment. Since the earliest sale of the 9 CPSs in question took place on 30 May 2012, it will be a reasonable inference that redevelopment potential, or at least part thereof, has already factored in the sale prices.

23. There is no positive affirmation from R22 and any of the purchasers as to whether the transaction prices reflect RDV or part thereof. Neither is there express confirmation that they are without regards to RDV. They contend by stating that there are various reasons for paying the prices they did without being explicit on this point. In fact at the hearing, Mr. Mok has raised the same question to his adversaries, but has been tactfully avoided by Mr. Bernard Mak. Now each transaction was at a price a few times of that assessed by the applicants’ expert. R22 further relies on a report with EUV assessed more or less at the same level as the transaction prices. In the circumstances, the applicants’ concern that R22 and the related purchasers are advancing a case that the transaction prices only reflect EUV without regards to any redevelopment potential is not without basis. It is, in the tribunal’s judgment, a legitimate and more than reasonable concern.

24. The same legitimate concern is also applicable to the Mortgage. Neither R22 (a borrower as well a mortgagor) nor R41 (the lender) have filed rebutting evidence in response to the applicants’ investigation result. Although it is not apparent what useful purpose the Mortgage serves if it was a sham, the transaction, with the Thailand property non-existent, appears dubious. Mr. Mok of counsel submits that R22 is conducting itself in a pattern for its unarticulated purpose with a view to dressing up an arms’ length transaction. Prima facie, doubts have been created as to the genuineness of the Mortgage. Question of what values have been attached to the 18 CPSs, if the Mortgage is a genuine one, arises. Whether it will be relied on as support for an EUV valued by R22’s expert is a real concern.

25. Accordingly, whether these transactions are genuine and/or at arm’s length are relevant to the issue of EUV. The information sought to be discovered is direct evidence which helps answer the nature of the transactions and whether RDV has been taken on board when the transactions took place. It also impacts directly on the reliability of the respective approach adopted by the parties’ valuation experts whose opinions have produced diametrically different valuations for most of the CPSs.

26. By reasons of the above, the fact that no experts have adopted the sale transactions as comparables in compiling their EUV is no defence to the question of relevance discussed above. Whether the transactions are at arms’ length and whether the relevant parties are acting independently and dealing with each other in a commercial context will help assess which methodology will come to a valuation more reliable and closed to reality.

27. As regards the quantifications of the 18 CPSs for the Mortgage being the same for the 2 experts[13], the fact that 2 similar CPSs sold at as high as $1.73 million and $1.988 million[14] raises the immediate questions of how then R22 will be able to fetch such unusually high price, and whether R22 would be relying on these prices to support a higher EUV. Since neither R22 nor R41 have made their position known, it will only be fair to the applicants to know the background of the Mortgage in order to meet their (and also other respondents’) case at trial.  

28. Turning to the LD letter, according to another letter of LD dated 15 April 2010[15], it was stated that the breaches of lease conditions referred to in a letter of 26 January 2010 (“January letter”) had not been remedied. Further, the “forbearance fee” requested in the January letter had also not been settled. The Government therefore requested R22 to purge the breaches failing which the Government would exercise its right of re-entry to vest R22’s rights in KTM in the Financial Secretary Incorporated (“FSI”) under the Government Rights (Re-entry and Vesting Remedies) Ordinance, Cap 126 (“GRO”).

29. Further, according to another letter of the LD of 23 July 2010[16], it appears all 84 CPSs owned by R22 were then involved in the breach of lease conditions, including using the CPSs for storage, car-repairing, parking of trucks and vans. The breaches, according to this letter, had not been remedied. This letter refers to a number of letters, including the January letter. Apparently the January letter is the first of the series of letters concerning the enforcement action by the Government. The Government had informed R22 that action was being taken to vest the relevant CPSs in the FSI under the GRO.

30. By another letter[17] of 18 May 2011 issued by LD, it was stated that R22 had already purged its breaches. It is apparent from this letter that the Government has the determination to exercise its right of re-entry in the event of subsequent breaches. It is the applicants’ case, which has not been rebutted, that thereafter R22 has never rented out any of its CPSs[18].

31. In the circumstances, the January letter is highly relevant. Apart from stating the extent of breaches of all the CPSs when the Government first inspected the premises, it sets out the “forbearance fee” charged by the Government. This will be highly relevant to the assessment of rental income of the CPSs when they were used in breach of lease conditions, or alternatively, the level of income when the use conforms to the land grant. It may shed light on why no forbearance fee was paid and/or why there being no renting out thereafter. It definitely will help assess the suitability or otherwise of adopting the direct comparison method or the investment method in the valuation.

32. By reasons of above, the tribunal considers the oppositions of the aforesaid respondents ungrounded. The documents requested and the questions to be administered highly relevant as their disclosure may assist the applicants’ case or help challenge or even destroy the respondents’ apparent case on EUV. These documents are normally expected to exist if the transactions are genuine, at arms’ length or between unrelated parties. These documents are expected to be in the possession, custody or power of the parties asked for production. Further, this tribunal is of the view that disclosure of the requested documents or the answers to the interrogatories are very likely to shed light on issues relating to EUV and the suitability of methodology adopted by the parties’ expert and thus their disclosure are necessary for the disposal fairly of the issues of the LCSRO application and probably will cut short the length of trial, thus saving costs.

33. If deprived of the documents/answers to interrogatories, the applicants may not be able to prepare properly its case before trial as the requested information can only be extracted during cross-examination when it is the respondents’ turn to give evidence. By then the applicants have already finished their case. They therefore suffer a disadvantage by not being able to use the necessary information to cross-examine the respondents and their expert(s), until the same is extracted at cross-examination.

34. Mr. Mok submits that the applicants suffer a further disadvantage in that the respondents are entitled to use the transaction prices as open market values to cross-examine the applicants’ expert. Without the requested information, the applicants will not be able, and thus are deprived of a chance, to show that the transactions were not at arms’ length and should be disregarded.

35. The tribunal shares his views. If the requested discovery/interrogatories are rejected, the applicants may suffer double disadvantage as elaborated in the preceding 2 paragraphs. In the tribunal’s judgment, it may amount to irremediable prejudice in the conduct of the applicants’ case, or alternatively may cause undue interruption to the trial if information emerging during cross-examination necessitates an adjournment. These are the situation which the tribunal should try to avoid.

36. Last turning to the issue of delay, no doubts there have been delay in taking out the 9 summonses despite the fact that investigation and requests by letters started as early as June/July 2014[19]. The situation was made worse as the tribunal has to set aside time first for disposal of 2 batches of interlocutory applications taken out by R40 and Rs shortly before the present ones.

37. In any event it is a balancing exercise falling within the discretion of the tribunal. This tribunal notes the tight time frame before trial scheduled to take place on 2 March 2015, and the intervening Chinese New Year holidays. However, the information sought touched on one of the most contentious issues - the EUV of the minorities, and is essential for disposing fairly of many crucial issues. Given the documents are expected to be readily available, no hardship will be expected in their production. If they are non-existent, it is not anticipated there being any difficulties in answering the interrogatories. In the tribunal’s judgment, the affirmations and production of documents can still be made within the below time frame before trial without causing irreparable prejudice.

Conclusion and Orders

38. By reasons of the above, this tribunal grants an order in favour of the applicants against R22, R40, R44, R33, R34, R39, R41, R42 and R43 in terms of the respective summons against each of them, with the following time frame for compliance:

i)  The time for filing and serving of the affidavit or affirmation by the respective respondent referred to in paragraph 1(a) of each summons be on or before noon on 24 February 2015;

ii)  The time for production for inspection of the documents referred to in paragraph 1(b) of each summons be on or before noon 27 February 2015; and

iii)  The time for filing and serving of the affidavit or affirmation as answers to the interrogatories referred to in paragraph 2 of each summons be on or before noon on 24 February 2015.

39. As regards costs, although the applicants are successful in the 9 summonses, this tribunal is entitled to express its dissatisfaction to its delay in application. This tribunal proposes and now makes a costs order nisi that each party is to bear its own costs of the application, such order be made absolute if within 14 days there is no application made to vary the same.

LDCS 4000/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDCS 4000 OF 2013

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