郭卓堅 v. 差餉物業估價署署長蔡立耀先生

HCAL 1068/2019

[2019] HKCFI 1619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1068 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  In this application for leave to apply for judicial review, the Applicant seeks to challenge an alleged policy of the Commissioner of Rating and Valuation (“the Commissioner”) to exempt New Territories Indigenous Villagers from having to pay rates and Government rent, the gravamen of his complaint being that rates and Government rent are levied to defray Government expenses and the alleged policy would result in Non-New Territories Indigenous Villagers having to pay higher rates and Government rent to make up for the non-payment of the same by New Territories Indigenous Villagers.

EXEMPTION FROM LIABILITY TO PAY RATES UNDER THE RATING ORDINANCE, CAP 116

2.  Under Section 18(1) of the Rating Ordinance, Cap 116 (“the RO”), subject to other provisions of that Ordinance, rates shall be payable on every tenement included in a valuation list in force.

3.  A “tenement” is defined in Section 2 of the RO to mean “any land (including land covered with water) or any building, structure, or part thereof which is held or occupied as a distinct or separate tenancy or holding or under any licence”.

4.  Under Section 21 of the RO, the liability to pay rates falls on the “owner and occupier” of a tenement, although the same is deemed to be an occupier’s rate and, in the absence of any agreement to the contrary, shall be paid by the occupier.

5.  A New Territories Indigenous Villager who is an owner or occupier of a tenement, like any other owner or occupier of a tenement, is liable to pay rates assessed on his tenement.

6.  Section 36(1) of the RO provides for a list of tenements being exempted from assessment to rates.  Sub-paragraphs (c) and (j) of Section 36(1) are relevant for the purpose of the present case, and state as follows:

“The following tenements, or parts thereof, shall be exempt from assessment to rates –

(c)  any village house within such areas of the New Territories as may be designated by the Chief Executive for the purposes of this paragraph, being –

(i)  a building to which paragraph (a) or (b) of regulation 3(2) of the Buildings Ordinance (Application to the New Territories) Regulations (Cap. 322 sub. leg. 1984 Ed.), or any regulations replaced thereby, applied immediately before the coming into operation of the Buildings Ordinance (Application to the New Territories) Ordinance (Cap. 121);

(ii)  a dwelling house, built before 16 August 1945, of a type which was normally built for New Territories residents; or

(iii)  a building in respect of which a certificate of exemption in respect of building works has been issued under section 4 or 5(a), (b) or (d) of the Buildings Ordinance (Application to the New Territories) Ordinance (Cap. 121);

(j)  those made available by the Government within resited villages in exchange for land resumed by the Government to the former owners of such land, other than those deemed to be separate tenements for rating purposes under section 9”.

7.  In order to qualify for exemption under sub-paragraph (c), the tenement in question must:

(1)  be a village house within an area of the New Territories designated by the Chief Executive for the purposes of that paragraph; and

(2)  satisfy one of the three conditions specified in (i), (ii) or (iii) of that paragraph.

8.  In order to qualify for exemption under sub-paragraph (j), the tenement in question must be one made available by the Government within a resited village in exchange for land resumed by the Government to the former owners of such land.

9.  It can be seen immediately that the above exemptions are applicable regardless of whether the occupier or owner of the tenement in question is a New Territories Indigenous Villager.  Further, the exemptions are not based on any policy of, or formulated by, the Commissioner.  They are, instead, provided for by a statute.

10.  Under Section 36(3) of the RO, the Chief Executive also has a discretion to exempt “any tenement, or part of any tenement, from the payment of rates, wholly or in part”.  In so far as exercise of the discretion to exempt village houses from liability for payment of rates under Section 36(3) is concerned, the power to do so has been delegated to the Director of Home Affairs, whose published guidelines in relation to the exercise of such power provide that only an eligible New Territories Indigenous Villager or his immediate family members (ie, parents, grandparents, spouse, children, siblings, and a spouse’s parents and grandparents) may apply for exemption.  In other words, an applicant may be, but does not necessarily have to be, a New Territories Indigenous Villager.

11.  The underlying premise of the present application for judicial review is fallacious.  In particular, there is no policy that New Territories Indigenous Villagers are exempted from liability to pay rates generally or in respect of village houses specifically. Exemption from liability to pay rates in respect of village houses does not depend on whether the occupiers or owners are New Territories Indigenous Villagers. I should mention that, for the sake of completeness, there is no challenge to the constitutionality of Section 36(1)(c) or (j) or Section 36(3).

EXEMPTION FROM LIABILITY TO PAY GOVERNMENT RENT UNDER THE GOVERNMENT RENT (ASSESSMENT AND COLLECTION) ORDINANCE, CAP 515

12.  Under Section 6(1) of the Government Rent (Assessment and Collection) Ordinance, Cap 515 (“the GRO”), subject to Section 4 thereof, the lessee of an “applicable lease” is liable to pay by way of Government rent to the Commissioner an annual rent of an amount equivalent to 3% of the rateable value of the land leased.

13.  An “applicable lease” is defined in Sections 2 and 3 of the GRO to mean:

(1)  a lease extended by the operation of section 6 of the New Territories Leases (Extension) Ordinance, Cap. 150; or

(2)  a lease under which there is an express obligation to pay an annual rent of an amount equal to 3% of the rateable value from time to time of the land leased.

14.  Under Section 4 of the GRO:

“an exemption from liability to pay Government rent applies to an interest held under –

(a)  an applicable lease of a rural holding that an indigenous villager held on 30 June 1984;

(b)  a small house grant made to an indigenous villager after 30 June 1984; or

(c)  a resite house grant –

(i)  held by an indigenous villager on 30 June 1984;

(ii)  made to an indigenous villager to replace an applicable lease of a rural holding that the indigenous villager held on 30 June 1984; or

(iii)  made to an indigenous villager to replace a small house grant made to the indigenous villager after 30 June 1984,

and –

(i)  which the indigenous villager continues to hold; or

(ii)  which –

(A)  has not since its ceasing to be held by the indigenous villager been conveyed to any person who is not a lawful successor in the male line of the indigenous villager; and

(B)  continues to be held by a person who is a lawful successor in the male line of the indigenous villager.”

15.  According to the initial response of the Commissioner, this exemption gives effect to the Article 122 of the Basic Law, which states as follows:

“In the case of old schedule lots, village lots, small houses and similar rural holdings, where the property was on 30 June 1984 held by, or, in the case of small houses granted after that date, where the property is granted to, a lessee descended through the male line from a person who was in 1898 a resident of an established village in Hong Kong, the previous rent shall remain unchanged so long as the property is held by that lessee or by one of his lawful successors in the male line.”

16.  On the face of this article, the Commissioner’s contention seems to be correct, or there is at least a strong argument that it is correct.  If the exemption under Section 4 of the GRO is provided for by Article 122 of the Basic Law, it obviously cannot be challenged as being unconstitutional or unlawful.

DELAY

17.  It is clear that the relevant exemptions from liability to pay rates and Government rent has existed for many years in the statute books.  The Applicant has delayed very substantially in making the present application.  No explanation has been given by the Applicant for the delay.  The merits of the application, for the reasons mentioned above, are not strong.  I would not therefore be minded to grant the Applicant an extension of time to apply for leave to apply for judicial review.

DISPOSITION

18.  In short, the application for leave to apply for judicial review is dismissed on the grounds that (i) it is made out of time and the court does not exercise its discretion to extend time to enable the Applicant to make the application; and (ii) in any event, even if an extension of time is granted the court is not satisfied that the intended application for judicial review is reasonable arguable, or has a realistic prospect of success.  There shall be no order as to the costs of the application.