WORLDMAN DEVELOPMENT LTD v. THE PERSONAL REPRESENTATIVES OF CHAN CHAU LING, DECEASED

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE APPLICATION NO. 8000 OF 2013

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J U D G M E N T

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Background

1.  This is an application for compulsory sale of all the undivided shares in Inland Lot No. 7514 and Inland Lot No. 7513 (hereinafter collectively referred to as “the Lots”) with a pair of buildings erected thereon known as Nos. 1-3 Yuet Yuen Street, Hong Kong (“the Buildings”), for the purposes of redevelopment pursuant to Section 3(1) of the Land (Compulsory Sale for Redevelopment) Ordinance, Cap. 545 (“the Ordinance”).

2.  The Buildings consist of a pair of 4-storey tenement buildings each with one unit on each floor, being served by a single common staircase.  According to an occupation permit issued on 16 August 1954, the Buildings were permitted for domestic purposes.  The 8 units are each assigned one equal and undivided share of the corresponding lots by their respective Deeds of Covenant.

THE APPLICATION

3.  The applicant commenced the present proceedings on 6 May 2013 (“the Application”).  At that time, it owned 3 undivided 4^th parts or shares (ie 75%) of Inland Lot No. 7514 and all 4 undivided 4^th parts or shares (ie 100%) of Inland Lot No. 7513.  This is equivalent to 87.5% of the undivided shares in the Lots on average.  The only remaining interest was held by the estate of Chan Chau Ling, deceased who owned the 1 undivided share allotted to 2^nd Floor of No. 1 Yuet Yuen Street otherwise than as a mortgagee[1].

4.  The respondent is missing. Substituted service of the Application on the respondent was effected on 22 October 2013 pursuant to the Order of this Tribunal dated 3 October 2013 under section 3(4) of the Ordinance. The respondent has not shown up after the expiration of the 1-month period (ie 21 November 2013) and therefore all persons claiming to be minority owners of the Lots shall be bound by the proceedings herein as if they have been served with the Amended Notice of Application in accordance with section 3(3)(a) of the Ordinance.

5.  The applicant contends that it was entitled to make the Application by virtue of the Land (Compulsory Sale for Redevelopment (Specification of Lower Percentage) Notice under section 3(5) of the Ordinance (“the Notice”).

6.  The applicant contends that all the requirements of the Ordinance have been satisfied and asks for an order for sale in terms of the draft order submitted.   Ms Nancy Ngai, counsel for the applicant, just called the witnesses to prove the applicant’s case. 

Section 3 of the Ordinance – Ownership of the Applicant

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

8.  Section 3(2) of the Ordinance also states that an application under subsection (1) may cover-

(a) 2 or more lots where the majority owner owns not less than the percentage specified in subsection (1) of the undivided shares in each lot; or

(b) 2 or more lots-

(i) on which one building is connected to another building by a staircase intended for common use by the occupiers of the buildings; and

(ii) where the average of-

(A) the percentage of the undivided shares owned by the majority owner in the lot or lots on which one of the buildings stands; and

(B) the percentage of the undivided shares owned by the majority owner in the lot or lots on which the other of the buildings stands, is not less than the percentage specified in subsection (1).

9.  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.

10.  Pursuant to 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)”.   The occupation permit in respect of the Buildings was issued on 16 August 1954, which is more than 50 years as at the date of the Application.   The Buildings are therefore covered by the Notice and the applicable percentage is 80%.

11.  When the applicant commenced the present proceedings on 6 May 2013, it owned on average 87.5% of the undivided shares in the Lots which share a common staircase.  The applicant was therefore entitled to make the Application under section 3(2)(b) of the Ordinance.

Determination of the existing use values (“EUV”) of all units in the BuildingS

12.  The Application was accompanied by a valuation report dated 30 April 2013 (“Application Report”) prepared by Mr Charles C K Chan of Savills Valuation and Professional Services Limited (“Mr C Chan”), the applicant’s valuation expert witness, containing assessments of the values of all units (which are conveniently termed as the existing use values, the “EUV” of all units) in the Buildings on the Lots as at 16 April 2013.  The Application Report was prepared not earlier than 3 months before the date of the Application, ie 6 May 2013 and is therefore, in my view, in compliance with section 3 of the Ordinance.

13.  Under section 4(1)(a)(i), if there is a dispute between the parties on the EUV of the units in the Buildings on the Lots, the Tribunal has to determine the values.

14.  Section 4(1)(a)(ii) further provides that, in the case of any minority owner of the Lots who cannot be found, the majority owner of the Lots is required to satisfy the Tribunal that the value of the minority owner’s property as assessed in the application is “(A) not less than fair and reasonable; and (B) not less than fair and reasonable when compared with the value of the majority owner’s property as assessed in the application.”

15.  In the Application Report of 30 April 2013, Mr C Chan explained the method of valuation and the process of his assessment to arrive at the EUV of each unit of the Buildings.

16.  In his valuation of the EUV of the domestic units on the upper floors of the Buildings, Mr C Chan adopted the following methodology:

(i) He selected 2/F, No. 3 Yuet Yuen Street as the reference unit (“the Reference Domestic Unit”) for the purpose of valuing its unit price.

(ii) The unit price of the Reference Domestic Unit was first assessed by making reference to market comparables.  He took into account 6 comparable transactions in 5 different buildings in the vicinity of the North Point district.  After making what he regarded as the necessary adjustments (for time, location & environment, floor level, age, size, physical condition & building management, view, lighting & ventilation and noise) for all these comparable transactions, he took the average of the adjusted unit rates of the comparables save for the 2 transactions at 7A Java Road to arrive at the unit price of the Reference Domestic Unit. Mr C Chan explained that these two transactions at 7A Java Road were dubious and appeared out of line with the others even after adjustments.

(iii) He further considered the floor level, lighting & ventilation, top floor effect and internal conditions of the Reference Domestic Unit and the remaining domestic units within the Buildings and made adjustments to arrive at the EUV of all the domestic units on the upper floors of the Buildings.

17.  In assessing the EUV of the ground floor units, Mr C Chan adopted the following methodology:

(i) He selected Ground Floor, No. 3 Yuet Yuen Street as the Reference Shop Unit.  He then took into account 5 comparable shop transactions in 5 different buildings nearby.  After making what he regarded as the necessary adjustments (for time, location, age, size, frontage/depth, return frontage, headroom and accessibility) for all these comparable transactions, he took the average of the adjusted unit rates of the comparables save for a transaction at Kar Wan Building, 10-16 Yuet Yuen Street to come to the unit price of the Reference Shop Unit. Again Mr C Chan explained that this transaction at Kar Wan Building appeared out of line with the others even after adjustments.

(ii) The same unit rate was adopted for Ground Floor, No. 1 Yuet Yuen Street.

18.  Mr C Chan updated the Application Report by another report dated 5 March 2014 (“Supplemental Report”) in which he revised the EUV of all the units in the Buildings after taking into account the inspection of more units in the Buildings and the updated property index prepared by the Rating and Valuation Department.  In this report, Mr C Chan repeated the exercise he did in the Application Report.

19.  I note that Mr C Chan had assessed the 2 units on ground floor on the basis of shop uses despite the occupation permit in respect of the Buildings was issued for domestic purposes.  He considers that retail use was the optimum use for the ground floor units of the Buildings.  He was advised by the applicant that obtaining all necessary approvals for the change of use from domestic to retail use for the ground floor units of the Buildings are highly practical according to the Authorised Person acting on behalf of the applicant.  This is confirmed in trial by Mr Benson Wong (“Mr B Wong”), an Authorised Person and a qualified building surveyor, who is another expert appearing on behalf of the applicant.

20.  Mr B Wong says the ground floor units of the Buildings can be legally converted into shop uses relatively easily subject to the submission of necessary plans for alterations and additions building works (commonly known as the A & A plans in the industry) to the Buildings Department.  The process would only take a few months subject to a cost of about $800,000.  Mr B Wong also gave evidence that for his professional practice of about 30 years, he had not been aware of any such enforcement action, if any, taken by the Building Authority,

21.  In the absence of evidence to the contrary, I agree the approach of Mr C Chan as regards the assessment of EUV of the ground floor units of the Buildings, following what I did in Many Gain Investment Limited v. Chan Fai Ho and the Others, LDCS 28000 of 2012 dated 18 June 2014 (unreported)[2].  Nevertheless, in light of this latter judgment, Mr Chan revises his assessment of the EUV of the ground floor units of the Buildings by applying a discount of 4% to reflect the fact that they were designated for domestic use under the occupation permit[3].

22.  Therefore, the EUV of all units in the Buildings assessed by Mr C Chan, as at the relevant date of valuation of 16 April 2013, are reproduced below:

Floor	No. 1 Yuet Yuen Street	No. 3 Yuet Yuen Street
Ground Floor	$10,860,000	$10,600,000
1st Floor	$4,590,000	$4,920,000
2nd Floor	$4,650,000	$4,290,000
3rd Floor	$4,050,000	$3,740,000
Total	$48,590,000

23.  I am satisfied that the value of the respondent unit as assessed by Mr C Chan is not less than fair and reasonable; and not less than fair and reasonable when compared with the value of the applicant’s properties:

(i) the respondent’s unit - assessed at $4,650,000 (representing 9.57% of the total EUV of all units); and

(ii) the total EUV of all units - assessed at $48,590,000.

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

24.  Under Section 4(1)(b) of the Ordinance the second determination is whether an order of 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 the Buildings; and

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

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

26.  For the age and state of repair requirements, I have taken into consideration the expert evidence of Mr B Wong, an Authorised Person and the building surveyor and Mr Wong Chi Ming (“Mr CM Wong”), the structural engineer adduced by the applicant. 

27.  Mr CM Wong conducted a structural assessment and prepared a report dated 6 March 2014.   He identified the following defects in the Buildings:

(a) Cracks and spalling at 39 locations were observed during visual inspection of 6 units and common areas of the Buildings;

(b) 33% of the concrete cores have an estimated cube strength which does not fulfill the requirement of the original design intent;

(c) 100% of the steel reinforcement bars are suffering from corrosion;

(d) 89% of core samples of the structural element have excess voidage;

(e) carbonation has reached the concrete surrounding the steel reinforcement bars in 78% of the test samples;

(f) 11% of the core samples has chloride content exceeding 0.40%;

(g) 78% of the samples are found to pose a ‘moderate’ or ‘high’ risk of corrosion to the steel reinforcement bars;

(h) the average cement content is about 224kg/m³, which is lower than the current standard of 290kg/m³.

28.  Based on his findings, Mr CM Wong concluded that the structural elements of the Buildings were in a poor condition.   He opined that the structural elements had passed their design working life of 50 years and were inferior to the current standard.   The corrosion of the reinforcement bars had entered the propagation phase and extensive maintenance and repair works are required in the near future.   He said that the design and construction of the structural frames had become obsolete over time and the structure failed the current safety standard.   He recommended that hammer tapping works be carried out to all the structural members and all revealed cracks and spalling should be patch repaired.

29.  Mr CM Wong estimated the cost of repair to the Buildings in its current state is $126,020 but this estimated repair cost did not include the repair of problems such as severe carbonation and high chloride content because they were both technically and financially impractical and would cause extensive disturbance during the works.

30.  Mr B Wong, in his condition survey report dated 7 March 2014, stated that:

(a) the Buildings are in a very poor state of repair due to general wear and tear;

(b) infrared thermographic survey carried out on the external rendering revealed 2 exposed delaminations and 99 hidden hollow spots scattered throughout the external walls on all elevations, posing threats to public safety;

(c) the building envelope is not external seepage resistant with extensive damp penetrations through the external walls and  roofs;

(d) the staircases is unsatisfactory means of fire escape for the upper floors;

(e) the most common defects noted relating to the flats are unauthorized building works of enclosed balcony structures which also have implications in structural safety;

(f) the other commonly found defects relating to the flats are unauthorized flat sub-divisions, flat entrance gates swinging out onto fire escape routes and non-fire resisting type flat entrance doors;

(g) the conditions of the internal doors, finishes, bathroom and kitchen fittings are poor; the most common defects in the flats are missing or defective internal doors; dampness and spalling to the internal floors, walls and ceilings;

(h) sanitary fitments in the bathrooms as well as sinks and cabinets in the kitchen generally are broken or otherwise defective requiring replacement;

(i) the old mild steel windows in the flats are corroded and not watertight;

(j) the electrical installations inside all 5 flats inspected have been haphazardly altered and are in poor condition and require complete replacement for safety reason;

(k) the equipotential bonding connections are not provided for the metal parts inside the 3 flats inspected;

(l) the flushing water supply system for the flats and shops has been abandoned from use and new pre-fabricated type fibre glass tanks are needed for replacement;

(m) closed circuit television survey carried out to the underground drainage revealed 15 metres of defective underground drainpipes and 1 manhole requiring replacement and repairs; and

(n) there has been no improvement made to the fire service installation and fire resisting construction of the Buildings.

31.  Mr B Wong estimated that the total costs of immediate repair works to restore the Buildings to tenantable standard came to $4,623,180 which was about 65% of the cost of constructing new similar buildings.   He concluded that the Buildings have 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 the Buildings uneconomical and even unsafe, to both occupants and third parties.   He recommended the owners to redevelop rather than repair given that the Buildings do not possess any historical value or architectural merit. 

32.  There is no contrary evidence and I accept the expert evidence of Mr B Wong and Mr CM Wong.   Having considered the evidence, I am satisfied that redevelopment of the Buildings is justified due to its age and state of repair.

Reasonable Steps to Acquire All the Undivided Shares in the LotS

33.  The applicant is under an obligation to negotiate on terms that are fair and reasonable in a situation when the whereabouts of a minority owner are known.

34.  According to the applicant’s witness Lui Wing Yan, a manager of the applicant, the applicant had made the following offers to the respondent for the purchase of her unit, all (save for the first one) based on the valuation of Savills Valuation and Professional Services Limited:

Date of offer	Offer Price	Assessed Value reflecting the respondent’s share of RDV of the Lots
27 August 2012	$6,500,000	-
27 March 2013	$11,763,000	$11,762,199
19 April 2013	$12,644,000	$12,643,213
18 June 2013	$12,644,000	$12,643,213

35.  None of the above offers were accepted and according to a Death Certificate produced in Bundle F/128, Chan Chau Ling died on 2 April 1992.  No grant of probate or letters of administration had been aware of.

36.  Substituted service of the Application on the respondent was effected on 22 October2013 pursuant to the Order of this Tribunal dated 3 October 2013 under section 3(4) of the Ordinance.  The respondent has not shown up after the expiration of the 1-month period specified in the publication of the substituted service of the notices of the Application.

37.  The applicant submits that it is reasonable in not making any further offer to the respondent after 21 November 2013 because any attempt to do so would not be fruitful if the respondent is missing.  Ms Ngai also submits that, since the respondent is a missing owner, no offer could have reached her and the applicant could never be successful in acquiring her unit by negotiation.

38.  Ms Ngai further submits that, in any event, all the offer prices made to the respondent were fair and reasonable and the Tribunal is not required to conduct a valuation exercise in assessing whether the offers were fair and reasonable, bearing in mind the following guidance from the remarks made by Mr Justice Ribeiro PJ in Capital Well Ltd v Bond Star Development Ltd (2005) 8 HKCFAR 578 at §33:

“… 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.”

39.  In the circumstances of this particular case, I am satisfied that the applicant has taken reasonable steps to acquire all the undivided shares in the Lots including the respondent’s unit.

Reserve Price for the Auction

40.  Mr C Chan has prepared another supplemental report dated 23 June 2014 (“the Further Supplemental Report”) for the purpose of assessing the RDV of the Lots as at 18 June 2014.  The total site area of the Lots as determined by Mr C Chan is 153. 29 sq m.

41.  The applicant submits that the reserve price for the auction of the Lots should be fixed at $105,000,000 according to the Further Supplemental Report.

42.  I have considered Mr C Chan’s valuation of the RDV of the Lots.  I note Mr C Chan had considered two land sale transactions in the past years, ie the sale of the site at North Point Estate Lane and Shu Kuk Street in North Point in March  2013 and another at 14-20 Merlin Street, Tin Hau in August 2011.  I agree with him that they are all not suitable for direct comparison purpose because of the substantial disparity in development potential due to different attributes on time, location and development scale between the Lots and the land sale comparables. 

43.  I also agree with Mr C Chan that as a last resort, the residual method has to be employed as the method of assessment of the RDV of the Lots.  This is done by deducting development costs (including construction costs, professional fees, finance costs etc) and developer’s profit from the estimated gross development value of the completed optimum development.

44.  Mr C Chan opined that the optimal development on the Lots would be a 28-storey hotel with a retail shop on ground floor.  Details of the hypothetical development and residual valuation were set out in Appendix III of the Further Supplemental Report (Bundle C/121).  Details of retail and hotel comparables with adjustments were set out in Appendix V (Bundle C/131) and Appendix VII (Bundle C/135) respectively.  In respect of the latter, the comparable which is of particular relevance is the sale of Printemp Hotel Apartment at 110-112 Chun Yeung Street in May 2014 for $305,000,000 which Mr C Chan analysed at a unit rate of $100,150/sq m for the hotel portion. Mr C Chan also adopted the Development Cost Pro-forma promulgated by the Hong Kong Institute of Surveyors to facilitate consideration of construction costs in land value assessments in Appendix IV (Bundle B2/123-129).   The valuation arrived at by Mr C Chan was $105,000,000, representing an overall accommodation value of $45,665/sq m.

45.  I have gone through Mr C Chan’s valuations.  In the absence of evidence to the contrary, I am satisfied with his valuation, including the valuation assumptions he has adopted, the values and the costs parameters he has used in his valuation.

46.  Based on Mr C Chan’s valuation, I decide that the reserve price for the auction of the Lots should be HK$105,000,000.

TRUSTEES

47.  The applicant proposes to appoint Mr Ma Ho Fai (馬豪輝) and Ms Tsang May Ping (曾美萍) who are respectively senior partner and partner of Messrs Woo Kwan Lee & Lo as the sale trustees.  Based on the information on their letter dated 28 February 2014, the proposed trustees also intend to appoint Messrs Michael Cheuk, Wong & Kee to act as the solicitors of the trustees/vendors in the sale of the Lots for handling the sale and discharging the duties imposed on the trustees under the Ordinance.  I am satisfied that Mr Ma Ho Fai (馬豪輝) and Ms Tsang May Ping (曾美萍) are proper persons to be appointed.  Their proposed remuneration at the rate of $5,500 per hour (exclusive of disbursements and fees payable to consultants) as mentioned in the letter dated 28 February 2014 is also reasonable and hereby allowed.

PARTICULARS AND CONDITIONS OF SALE OF THE LOTS

48.  Ms Ngai has submitted a set of draft particulars and conditions of sale by public auction for my consideration.  While I understand these are the usual terms used for compulsory sale, I approve the draft particulars and conditions of sale accordingly.

Conclusion AND ORDERS

49.  By reasons of the aforesaid, I am satisfied that the redevelopment of the Lots is justified due to the age and state of repair of the Buildings; and the applicant has taken reasonable steps to acquire the undivided shares of the Lots.  This Tribunal is also satisfied that the value of the single minority owner’s unit as assessed in the Application is not less than fair and reasonable, and not less than fair and reasonable when compared with the value of the applicant’s 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 the Ordinance;

(ii) Mr Ma Ho Fai (馬豪輝) and Ms Tsang May Ping (曾美萍) nominated by the applicant be appointed trustees (“the Trustees”) to discharge the duties imposed on trustees under the Ordinance in relation to the Lots; and the Trustees be authorized to charge such remuneration for their services in accordance with the terms set out in the letter of Messrs Woo Kwan Lee & Lo dated 28 February 2014;

(iii) Messrs Michael Cheuk, Wong & Kee be appointed as the solicitors of the Trustees (“the Trustees’ Solicitors”) to assist the Trustees in discharging their duties imposed on the trustees under the Ordinance and the Trustees’ Solicitor be authorized to charge such remuneration for their service in accordance with the terms set out in the letter of Messrs Michael Cheuk, Wong & Kee dated 3 March 2014;

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

(a) The sale of the Lots be on the particulars and conditions of sale which are the same or substantially the same as the set of draft particulars and conditions of sale submitted to the tribunal (Document Bundle F/305-329), initialled and approved by me;

(b) The reserve price of the Lots be set at HK$105,000,000;

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

(v) Service of this Order on the Respondent be dispensed with;

(vi) The Applicant do publish notices once in a Chinese language newspaper (and in the Chinese language) and once in an English language newspaper (and in the English language) circulating generally in Hong Kong within 21 days from the date of this Order, informing the Respondent and all persons claiming to be the owners of the Lots:-

(a) that the Tribunal has made an order for sale of the Lots; and

(b) where and the times during which a copy of the order may be obtained;

(vii) There be liberty to the applicant, the respondent and the Trustees to apply for further directions.

Costs

50.  The applicant does not ask for costs.  I make a costs order nisi that there be no order as to costs between the parties, such order be made absolute after 14 days if no application is made to vary the said costs order.