GAIN UNION LTD v. LEUNG CHI MAN

LDCS 5000/2021

[2022] HKLdT 44

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO 5000 OF 2021

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BETWEEN

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J U D G M E N T

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1.  This is an application for a compulsory sale order under the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“the Ordinance”) (hereinafter referred to as “the Application”) to sell all the undivided shares of the Remaining Portion of New Kowloon Inland Lot No 2483 (“the Lot”) located at Nos 227B and 227C Hai Tan Street, Sham Shui Po, Kowloon.

2.  Standing thereon is a 6-storey tenement building (“the Building”) served by one common staircase. The occupation permit of the Building and the adjoining one standing at Nos 227 and 227A Hai Tan Street was issued on 22 November 1960 granting permission to occupy G/F as shops for non-domestic use and 1/F to 5/F as tenements for domestic use. The Building was more than 60 years before the date of the Application on 12 April 2021.

3.  According to the building plans approved on 18 January 1960, there are 2 shops on G/F and 3 domestic units on each of 1/F to 5/F of the Building.

4.  The Building is governed by A Deed of Mutual Covenant dated 4 March 1961 and by a Deed Poll dated 4 January 1986, the Front Portion of 5/F, No 227B Hai Tan Street was subdivided into Flat A, Flat B and Flat C respectively which are governed by a Sub-Deed of Mutual Covenant of even date. The Land Register shows that the Lot together with the Building erected thereon is allocated undivided shares as follows:

	227B Hai Tan Street				227C Hai Tan Street
G/F	1/17				1/17
	Front Portion			Rear Portion	Front Portion
1/F	1/17			1/17	1/17
2/F	1/17			1/17	1/17
3/F	1/17			1/17	1/17
4/F	1/17			1/17	1/17
5/F	2/4 of 1/17 (Flat A)	1/4 of 1/17 (Flat B)	1/4 of 1/17 (Flat C)	1/17	1/17

5.  At the time of filing the Application on 12 April 2021, the Applicant owned all the undivided shares of the Lot save for the following owned by the 1^st respondent (“R1”) and 2^nd respondent (“R2”), ie a total of 82.3529% of the Lot:

Respondent	Unit	Undivided Share
R1	G/F, 227B Hai Tan Street	1/17
	Rear Portion of 1/F, 227B Hai Tan Street	1/17
R2	3/F, 227C Hai Tan Street	1/17

6.  Then the applicant acquired R1’s units and completion took place on 8 June 2022. By a Consent Summons dated 8 June 2022, the applicant and R1 applied for discontinuance of proceedings and withdrawal of evidence. In such regard, the Tribunal granted order in terms thereof on 10 June 2022.

7.  By the time of trial, the applicant owned 94.1176% of the undivided shares of the Lot.

8.  Whereas R2 is the sole remaining respondent, the main dispute outstanding is on whether the applicant has taken reasonable steps to negotiate and acquire R2’s interest on terms that are fair and reasonable pursuant to section 4(2)(b) of the Ordinance. R2 also disputes the market value (which is usually termed by the valuation profession as the Existing Use Values or just “EUV”) of the respective units owned by the applicant and himself as at 27 January 2021. In addition, R2 queried the redevelopment value (“RDV”) of the Lot and the reserve price for the intending auction if order for sale be granted by the Tribunal.

9.  At trial, Mr Jonathan Lee (“Mr Lee”) acted on behalf of the applicant while Mr Adrian But (“Mr But”) acted on behalf of the 2^nd respondent.

The Evidence

10.  The applicant has filed the following documents in support of the Application:

(a) a witness statement and supplemental witness statement of Mr Wai Chun Sing Terence, representative of the applicant, dated 19 October 2021;

(b) a Building Condition Survey Report by Mr Chan Yuk Ming Raymond (“Mr Raymond Chan”) dated 10 October 2021;

(c) a Structural Survey Report by Dr Chan Yin Nin Sammy (“Dr Sammy Chan”) dated 19 October 2021;

(d) the following reports by Mr Chan Chiu Kwok (“Mr Charles Chan”) of Savills Valuation and Professional Services Ltd (“Savills”);

(i) an Application Report pursuant to Part 1 of Schedule 1 to the Ordinance dated 1 February 2021;

(ii) a Supplemental Report dated 19 October 2021; and

(iii) an Updated Report on the redevelopment value (“RDV”) of the Lot on 30 May 2022.

11.  At this juncture, it is noted that there used to be another valuation expert appointed jointly by both R1 and R2. However, R2 terminated her appointment prior to the filing of her rebuttal reports. Thus, following the applicant’s acquisition of R1’s interest in the Lot, by the Consent Summons dated 8 June 2022, all evidence of the another valuation expert has been withdrawn save her original valuation report dated 20 October 2021.

12.  R2 himself filed his witness statement dated 20 October 2021.

Whether the Applicant is entitled to make the Application

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

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

15.  The Land (Compulsory Sale for Redevelopment (Specification of Lower Percentage) Notice was gazetted on 22 January 2010 and came into operation on 1 April 2010 (“the Notice”). Section 3 of the Notice lowered the threshold for compulsory sale in respect of the classes of lots specified in the Notice from 90% to 80%. Those classes of lots include a lot with each of the building erected on the lot issued with an occupation permit at least 50 years before the relevant date (ie the date of the Application under the Ordinance).

16.  Insofar as the occupation permit for the Building was issued on 22 November 1960, ie not less than 60 years before the date of the Application, the Notice is applicable and the threshold percentage should be 80%.

17.  The applicant, owning a total of 82.3529% of the Lot at the time of the Application, was entitled to file the Application under section 3(1) of the Ordinance.

EUV as at 27 January 2021

Assessment of EUV of G/F Units

18.  Pursuant to Part 1 of Schedule 1 to the Ordinance, a valuation report, prepared not earlier than 3 months before the date on which the application under section 3(1) of the Ordinance is made, is required in setting out the assessed market value of each property on the lot—

(a) on a vacant possession basis;

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

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

This was what had been done by Mr Charles Chan in his Application Report dated 1 February 2021.

19.  Mr Charles Chan provided 2 scenarios for the EUV, Scenario 1 took into account any additional value from the cocklofts, 87.1 sq m and 47.1 sq m, erected on the G/F of 227B and 227C Hai Tan Street respectively which appeared to him to be unauthorized (“UBW”); and scenarios 2 disregarded any such additional value, relying simply on what had been approved in the building plans.

20.  For instance, Mr Charles Chan adopted the following adjusted unit rates in his supplemental EUV report:

a. The reference G/F unit at 227C Hai Tan Street at $186,000 per sq m (without the UBW) or $185,000 per sq m (with the UBW).

b. Reference residential unit of Front Portion on 4/F, 227B at $80,000 per sq m.

21.  R2’s unit, ie Front Portion, 3/F, 227C Hai Tan Street comprises a saleable area of 59.6 sq m. Mr Charles Chan assessed R2’s unit at $4,860,000 whereas the another valuation expert assessed its EUV at $4,680,000. On the basis of scenario 1, the pro rata share of R2’s unit was $4.86 million/$101.46 million = 4.7901%. On the basis of scenario 2, the pro rata share of R2’s unit was $4.86 million/$98.74 million = 4.9220%.

22.  I note that there has been continuous doubt on whether this kind of unauthorized conversion can attract market value, for instance, in determining the EUV under the Ordinance.

23.  Firstly, it must be a market reality that the owner of such unit would not let his premises without charging a rent for the full area of the enclosed premises. Needless to say, if the unauthorized structure has no additional value, it would not have been there in the first place.

24.  In Join Union Investment Limited v China Tree Investment Limited, [2016] 2 HKLRD 901, there was a subdivision of the ground floor premises into four shops. The structural engineering expert in the case could not cite any example or authority where, in similar circumstances, the Government or the Building Authority took enforcement action requiring demolition of the partitioning and reinstatement of the property to its original state. Chow J (as he then was) was of the view that there was no real risk of enforcement by the Government or Building Authority in respect of the alleged unauthorised partitions. See §§97-103 of the judgment.

25.  At §107 of the judgment, the learned judge observed that:

“... it is apparent, form the evidence of Mr Lai, Madam Chan and Madam Shiu, that none of them considered the 2010 Building Order, or indeed any unauthorised building works in the Property, to be of any great moment. Prior to the respective purchases of the Property by the defendant (through Madam Chan) and the plaintiff (through Madam Shiu), none of them took the trouble to go inside the Property to inspect its physical conditions, or ascertain whether there might be any unauthorised building works in the Property. Even after her attention had been drawn to the 2010 Building Order, Madam Shiu did not carry out any further investigation prior to entering into a binding contract to purchase the Property, and was prepared to accept a modest sum of HK$20,000 from the defendant as sufficient compensation for the costs of complying with the 2010 Building Order. The existence of unauthorised building works in retail premises, especially in the older districts in Hong Kong, is common place and does not appear to have any significant impact on their market or capital values. These properties change hands frequently like ordinary commercial commodities, as demonstrated in the present case by the fact that the defendant (through Madam Chan) purchased the Property in September 2010 and sold it to the plaintiff (through Madam Shiu) in March 2011 for a handsome profit. It is contrary to market reality to treat the existence of an unauthorised cockloft, even of a substantial size like the present one, as constituting a title defect going to the root of title....” (emphasis added)

26.  I agree with Mr Charles Chan in his reply to the cross-examination by Mr But that on many occasions, when shops consisting of unauthorized structures are sold, they are sold on “as is” basis.

27.  In Circle Angle Limited v Orchard Enterprise (Hong Kong) Limited, DCCJ 1252/2011 (unreported, dated 6 February 2012), the purchaser was aware that the property which it intended to purchase was subject to a notice issued under section 24C(1) of the Buildings Ordinance. In spite of this, it signed a Provisional Agreement which contained a clause that read:

“買方日后不能藉此拒絕交易”.

28.  Something similar took place in Gold Glory International (HK) Limited v K W Wong Investment Company Limited, HCMP 1618/2012 (unreported, dated 17 December 2013) where the parties agreed that:

“The purchaser and vendor declare that they are both aware of the (two notices by the Building Authority under section 24C(1) of the Buildings Ordinance) where the property is situated. Both parties hereby agree to complete the transaction notwithstanding the (two Notices) ...”

29.  The recognition that unauthorized structure attracts market value is not new. In Hong Kong Telephone Company Limited v The Hong Kong Land Company Limited, LDLA 5/1982 (unreported, 5 November 1982), the Tribunal considered market rent appropriate for the premises although there was an illegal addition in the form of an enclosed void at ground level having been converted into a playroom.

30.  In that case, “(b)ecause of the steep slope down from the road level the foundations of the building continue for a considerable further distance below the lower level floor opening onto a paved open garden area. The area of these foundations below the lower level floor has been closed to provide a playroom”. In that case, therefore, the conversion created a 4^th storey but the Government Lease limited the building to only 3 stories. The Tribunal held that while the enclosed foundation area used as a playroom did not form part of the legal gross floor area, it was part of the suit premises and must for valuation purposes be taken into account as ancillary to the residential area, in the same way as the garden and car park areas were likewise ancillary. The Tribunal was satisfied that its existence could reasonably be expected to attract a slightly higher rent than if it did not exist, in the same way as other ancillary features add value to premises. The possibility that the landlord may at sometime have to remove the glass doors enclosing the area could not be discounted, nor could the probability that it is allowed for the time being.

31.  This view is supported by Transport for London (London Underground Limited) v Spirerose Limited [2009] 1 WLR 1797, [2009] UKHL 44, where Lord Neuberger pointed out at paragraph 50:

“First, if a statute directs that property is to be valued on an open market basis as at a certain date, one would not expect any counter-factual assumptions to be made other than those which are inherent in the valuation exercise (such as the assumption that the property has been on the market and is the subject of a sale agreement on the valuation date) or those which are directed by the statute.”

32.  More recently, in Newbigin (VO) v SJ & J Monk (A Firm) [2015] 1 WLR 4817, Lewison LJ discussed “the reality principle” in these terms:

“It is a well-known principle of valuation, not confined to rating, that in principle you must value the property as it stands on the valuation date. This is the principle of reality; or as classicists prefer to call it, the principle that property must be valued rebus sic stantibus. This principle can be displaced by contrary instructions in the statute or contract under which the valuation takes place.”[1]

33.  Referring back to Transport for London, supra, I do not consider any particular evidence is needed to prove the existence of market value of an unauthorised structure, save for quantum, when this is recognized as a market reality.

34.  Cheung Kwong Yuen v Sun Hui Fang, CACV 112/2015 which has been reported as [2016] 1 HKLRD 464 concerned an appeal from an application for recovery of vacant possession of unauthorised roof top structure of a building at 107 Tai Nan Street, Kowloon. During the trial before the Tribunal, being LDPD 1740/2014, it was found that Suen Chor Ming (alias Suen Ming Fai), the brother of the respondent, Madam Sun, had paid money in 1992 for acquiring the occupation of the corrugated steel sheet structure existing on the roof of the building. Obviously no legal title was passed and the Tribunal considered adverse possession by Madam Sun was not proven. Madam Sun’s subsequent appeal was allowed by the Court of Appeal on 30 January 2015 and the case was remitted to the District Court for retrial, which became DCCJ 743/2016. The District Court found adverse possession in favour of Madam Sun on 6 September 2017 and appeal by Mr Cheung, the unfortunate landlord who failed to verify the status of Madam Sun when he made the purchase on 31 October 2013, was refused by the Court of Appeal on 26 February 2019 in CAMP 64/2017.

35.  From this case, it is manifest that the unauthorised roof top structure commanded market value in 1992. It also continued to attract significant market value at least until early 2019 despite a lapse of some 27 years. Otherwise, Madam Sun would not have taken the time and trouble in advancing her adverse possession claim. Without the shelter provided by the unauthorized roof top structure, it is absurd to think that Madam Sun would reside on an open roof.

36.  The Tribunal has witnessed similar landlord and tenant disputes on the letting of unauthorised structures. LDPD 1802/2021 was another case where the landlord sought vacant possession of an unauthorised roof-top structure which had been let since 1980. Obviously, the unauthorised roof top structure commanded significant market value from 1980 till at least the commencement of 2022 when the case was heard.

37.  In Joint Hope Limited v Vecent Hong Kong Trading Limited & Others, LDCS 21000/2019 (unreported, dated 9 July 2021), the Building Authority issued to the owner of G/F, including the space underneath the staircase, 38 Ming Fung Street, Kowloon, a building order dated 11 May 2018 under section 24(1) which required the owner to demolish the unauthorised building works that include the structure erected on and over the yard but not the cockloft at high level of the G/F Shop. Then on 31 May 2019, the Building Authority issued a letter to the owner stating that: “As the building works have been modified, I am prepared to withhold further enforcement action for the time being, and withdraw my Order.” As at the land search of 5 February 2021, no order was issued against the cockloft.

38.  Surely, when the Building Authority issued the order of 11 May 2018, it should have known about the unauthorized cockloft (against which notice was issued in 2016). Yet the Building Authority did not enforce against such cockloft in the order of 11 May 2018. Neither did the withdrawal letter of 31 May 2019 mention anything about the cockloft save to state that the premises were not free of any other unauthorized building works.

39.  Similarly, in the same case, on 11 May 2018, the Building Authority issued to the owner of G/F, including the space underneath the staircase, 44 Ming Fung Street, a building order under section 24(1) which required the owner to demolish the unauthorized building works that include the structure erected on and over the yard but not the cockloft at high level of the G/F Shop. Then on 17 August 2018, the Building Authority issued a letter of compliance of the order.

40.  In Sound Advice Property Limited & Others v Mok Wai Ching & Mok Yui Cheung Anthony, LDCS 18000/2020 (unreported, dated 21 December 2021), the Tribunal found that although Building Orders against an unauthorised building structure had been issued in March 2007, the Building Authority had not taken any further action for at least 14½ years until the date of the trial.

41.  In Link Harvest Ltd v Wayhang Development [2001] 2 HKC 652, Recorder Edward Chan SC said:

“Even though s24 gives the Building Authority a discretion on whether to exercise its power against a particular contravention and what order it would make if it has decided to exercise its power, in my judgment, prima facie, one would normally expect that the Building Authority would take enforcement action against the unauthorised building or structures. Thus, unless there is a good reason for believing that the Building Authority would not take any action, where a building or structure was erected in contravention of the Buildings Ordinance, there is the risk of an enforcement action by the Building Authority so as to render the title of that building or that structure to be defective. It is difficult to state exhaustively what would be the good reasons. The typical one would be where the breach is very trivial, or where because of the nature and the age of the structure, the enforcement priority within the Building Authority was so low that it could be expected that the time for enforcement would not come even by the end of the practical life of the building or structure in question.” (underline added)

42.  Unlike the Lands Resumption Ordinance, Cap 124 where the value of the land to be determined for compensation is qualified under section 11 and to the provisions of paragraphs (aa), (b) and (c) of section 12, there is no such qualification of the market value pursuant to Part 1 of Schedule 1 to the Ordinance. Property of which market value is to be assessed means, under section 2 of the Ordinance, immovable property, authorised or unauthorised.[2]

43.  Back to the present case, however, Mr Charles Chan reported the physical condition of the G/F of No 227B Hai Tan Street as follows:

“I noted during my recent inspection there is serious decay within the unit, such as serious concrete spalling and water leakage to the columns, ceilings, walls and etc. As such, I consider it is appropriate to allow a downward adjustment of -10% for the unacceptable physical condition internally to reflect the difference between the retail area on Ground Floor of No 227B Hai Tan Street and the general internal condition level of retail area of No 227C Tai Tan Street.”[3]

44.  With respect, Mr Charles Chan did not mention the condition of the UBW at G/F of No 227B Hai Tan Street which by photographs taken on 20 October 2021[4] appeared in a dilapidated condition and had to be supported by struts. Mr Raymond Chan, the building surveyor, reported that the headroom of the unauthorized cocklofts measured approximately 1.7m – 1.9m only which does not comply with current requirements of 2.3m under regulation 24 of the Building (Planning) Regulations[5] . In such regard, I do not consider there being much value of the UBW at G/F of No 227B Hai Tan Street.

45.  The UBW at G/F of No 227C Hai Tan Street has an area about half of the UBW at G/F of No 227B Hai Tan Street. Its physical condition was not much better[6].

46.  In consideration of the above, I prefer to adopt 4.9220% as the pro rata share of R2’s unit, on the basis of Mr Charles Chan’s scenario 2 assessment.

Whether Redevelopment of the Lot is Justified on “Age” or “State of Repair”

47.  Section 4(2)(a) of the Ordinance stipulates that the Tribunal shall not make an order for sale unless it is satisfied that redevelopment of the Lot due to the “age or state of repair” of the Building is justified.

Experts’ Evidence

48.  On this issue, the applicants adduced the Condition Survey Report dated 12 August 2021 by Mr Raymond Chan, the Building Surveyor and the Structural Assessment Report dated 19 October 2021 by Dr Sammy Chan, the Structural Engineer.

49.  In the Structural Survey Report, Dr Sammy Chan concluded as follows:[7]

(1) Cracks and spalling are found at some 125 locations of the Building.

(2) From the results of in-situ and laboratory tests, the mean of in-situ concrete cube strengths of slab (13.25 MPa) is found to be lower than the design concrete strength of 15 MPa. The reinforced concrete slabs with low concrete strength are unable to resist the design loading imposed on them.

(3) 6 out of 6 of the tested concrete elements are considerably carbonated with carbonation has already progressed deeper than the embedded steel bars.

(4) 2 tested concrete elements (out of 6) are considered unacceptable (ie higher than the specified limit of 0.35% under the Building (Construction) Regulations) for concrete containing embedded metal and made with ordinary or rapid hardening Portland cement.

(5) The average percentage of cement contents (8.35% for slab, 8.9% for beam and 11% for column) of tested concrete elements is lower than that of the designed mix (14.3% for slab, beam and column)

(6) The mean of the depths of concrete cover for beam (11.0mm) and column (32.5mm) are lower than the design concrete cover as required, ie 25.4mm and 38.1mm for beam and column respectively.

(7) The results of open up survey indicate that the embedded steel reinforcements are extensively corroded, a significant area of the steel section was lost (up to 10%) and suffering from pitting corrosion.

50.  On the basis of the above, Dr Sammy Chan concluded that the structural elements are in a degraded condition causing by the corrosion of reinforcement due to carbonation, which have resulted in the reduced structural capacity of structures. Carbonation of concrete is an irreversible deterioration which, given the humidity in Hong Kong, will inevitably lead to corrosion of structural members. In the absence of practical solution to rectify the carbonation of concrete, Dr Sammy Chan envisaged more concrete spalling defects due to corrosion of reinforcements in concrete will occur in future requiring more frequent and substantial repairs for the structural frame members.

51.  Dr Sammy Chan also was in the opinion that the design life of the Building was 50 years and the Building which is now over 50 years old may have its design life coming close to its rend. The design and construction of the structural frames have become obsolete over time as they were designed and constructed more than 50 years ago according to the LCC By-laws which is of lower standard than the current structural design standards. Moreover, the structural capacity of the Building cannot meet the current safety standard in terms of wind load and robustness.

52.  Dr Sammy Chan recommended that, if the Building is required to continue to perform its function, structural repair works to be carried out to all structural members of the Building and any defects such as spalling and cracks discovered to be repaired as a matter of urgency. An estimation of the total cost of the above-mentioned works for the defective structural members of the Building amounts to $5,130,000.

53.  In the Condition Survey Report, Mr Raymond Chan concluded that the design of the Building was not up to current standard in respect of safety and health. The substandard in width of the escape staircase, nil provision of fire services installations and protected lobby to escape staircase and accessible lift for people with disability etc are not up to current legislative requirements. However, subject to the existing site constraint, the upgrading works require extensive structural alterations to the existing frame of the Building and be in high complexity as the carrying out of upgrading works can only be achieved with substantial changes in design layout. The upgrading cost will inevitably be enormous and therefore is unjustifiable in comparison with complete redevelopment.[8]

54.  In the absence of evidence to the contrary, I am satisfied that redevelopment of the Building is justified due to the age and state of repair.

Section 4(2)(b) – Whether Applicant has taken reasonable steps

55.  The applicant is under an obligation to take reasonable steps to negotiate on terms that are fair and reasonable for the purchase of the interests of the respondents under section 4(2)(b) of the Ordinance.

56.  The applicant has made the following offers to R2 through its solicitors to acquire his unit or interest he owns:

Date of offer	Amount of Offer
27 September 2019	$4,788,000
10 March 2021	$5,717,000
17 June 2022	$6,080,000

* These offers included the advice letters of Savills setting out the relevant valuation assessments and calculations of the share of the respondents’.

57.  While giving his oral evidence at trial, R2 disclosed that he had been approached by at least three real estate agents for the acquisition of his unit at Front Portion, 3/F, 227C Hai Tan Street as well as his neighbours’ prior to the applicant entering into picture in late 2019.

58.  R2 produced a Provisional Agreement for Sale and Purchase (in Chinese) which was undated and prepared by Vanguard Realty Ltd[9]. According to this Provisional Agreement for Sale and Purchase, the offer price was set at a sum of $10,887,800 subject to stage payments and the following special condition 9:

「賣方知悉買方於簽署本合約之同時， 亦與下列物業其他業主進行洽購， 目的為購入下列物業之全部業權， 而該物業為下列物業之部份：

九龍海壇街227-227C号不少於80%業權

(“相關物業”)； 賣方同意， 倘若“相關物業” 之所有業權人未能在2018年11月30日(“該期限”)或之前與買方全部簽署《物業臨時買賣合約》， 或“相關物業”之所有業權人未能與買方於成交當日完成交易， 則買方有權選擇放棄購入或獨立購入該物業或將該期限/成交日期延期   日， 如選擇放棄將隨即宣告本合約自動無效， 賣方須退還買方已付所有訂金（如有）， 此後買賣雙方均不能向對方作出任何追討。」

59.  In this Provisional Agreement for Sale and Purchase, only R2 signed as the vendor but nobody signed as the purchaser. According to R2, the price reflected some $17,000 per sq ft. Mr But termed it “blank offer”.

60.  Certainly this Provisional Agreement for Sale and Purchase did not proceed. Then another real estate agent allegedly acting on behalf of the applicant came, offering just some $16,000 per sq ft which R2 refused to accept. But he alleged that at least one of his neighbours who owned 2/F, 227C Hai Tan Street received more than $20,000 per sq ft.

61.  In Top Harmony Limited v Cheung Yuet Sheung & Others, LDCS 39000/2018 (unreported, 15 October 2020), the Tribunal came across evidence of similar practice of real estate agent approaching prospective vendor of units in old buildings for business. Then the representative of the majority owner stated that it was the respondent rather than the majority owner who was making the offer.[10] This position of law of contract was affirmed in Leung Wai Cheung v Octel Networks Litd & Others, DCCJ 4454/2017 (unreported, 15 May 2020).

62.  Whilst the counsel for the respondent in Top Harmony criticized the majority owner’s practice, the Tribunal referred to what Mr Justice Ribeiro PJ stated in Capital Well Ltd v Bond Star Development Ltd (2005) 8 HKCFAR 578, [2005] 4 HKLRD 363 at §2 that:

“(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.”

63.  Then the Tribunal remarked that the offers, if any, prior to the application for sale under the Ordinance were not so relevant in determining whether the applicant has taken reasonable steps to negotiate on terms that are fair and reasonable for the purchase of the interests of the respondents under Section 4(2)(b) of the Ordinance. I trust the same applies here.

64.  This was affirmed by the ruling in Good Faith Properties Limited & Others v Cibean Development Company Limited, LDCS 42000/2011 (unreported, dated 31 May 2013) when the Tribunal stated at §44 that:

“We found no ambiguity or absurdity in the wordings of Section 4(2)(b) on a purposive interpretation of the Ordinance. On the contrary, if the contention of the respondent is accepted, i.e. only pre-Application offers were to be considered, this is inconsistent with the objective of the Ordinance and create absurdity in particular when the property market goes upwards after the Application. If only pre-Application steps were to be considered, the majority owner will have no obligation to negotiate with the minority owner or to offer terms that are fair and reasonable after an Application had been filed. Should the pre-Application steps be found to be fair and reasonable, the Tribunal is entitled to make an order for sale turning a blind eye to the fact that the majority owner had failed to take any reasonable steps after filing of the Application in view of the rising market trend. This is absurd and clearly not in the interests of the minority owners and defeat the intention of the Ordinance to protect the interests of the minority, up till the moment when the Tribunal makes an order for sale.”

65.  In the present case, the three offers made by the applicant were obviously higher than the EUV of R2’s unit. Again, in Capital Well supra, the Court of Final Appeal in Capital Well has emphasized at §33 that:

“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.”

66.  The Court of Final Appeal stated further at §36 of the judgment 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.”

67.  In any event, the Tribunal notes that the applicant has come to settlement with R1 in acquiring the latter’s interest in the Lot.

68.  At this juncture, I would like to mention that R2 alleged that, instead of carrying out negotiations with him amicably, the applicant has been threatening R2 to sell his interest with unlawful and oppressive means. For such allegations, they must be plainly established and the cogency of the basis relied upon must be assessed by examining the particular factual matrix and by applying the standard of balance of probabilities taking into account that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court would conclude that the allegation is established. That is, there must be cogent evidence commensurate with the seriousness of an allegation.[11]

69.  In Securities and Futures Commission v Wang Jian Hua & Others HCMP 745/2013, (unreported, dated 29 October 2015), Godfrey Lam J (as he then was) had the following remarks at §§78 -79:

“78. … In the absence of direct evidence…, the court may draw appropriate inferences from the objectively established facts. In drawing inferences, the court need not be satisfied that the matters to be inferred are the only possible explanation, for the criminal standard of proof does not apply here, but that according to the course of common experience they are probable to the standard required.

79. The court must of course guard against speculation or making informed ‘guesses’ or choosing from equally possible permutations of the fact… While under the civil standard of proof, an inference can be drawn without there being practical certainty… where allegations of serious wrongdoing are involved, though the standard of proof remains the civil one, [the court needs] to look for inferences that are ‘compelling’ and refrain from drawing damning inferences on a bare or ‘mere’ balance of probabilities.” (Underline added)

70.  A similar principle is expressed in Hornal v Neuberger Products Ltd [1957] 1 QB 247 (cited at 586H-587A of Re H) at 266-267 per Morris LJ:

“Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities. This view was denoted by Denning L.J. when in his judgment in Bater v. Bater he spoke of a “degree of probability which is commensurate with the “occasion” and of “a degree of probability which is proportionate to the subject-matter.”

In English law the citizen is regarded as being a free man of good repute. Issues may be raised in a civil action which affect character and reputation, and these will not be forgotten by judges and juries when considering the probabilities in regard to whatever misconduct is alleged. There will be reluctance to rob any man of his good name: there will also be reluctance to make any man pay what is not due or to make any man liable who is not or not liable who is. A court will not be deterred from a conclusion because of regret at its consequences: a court must arrive at such conclusion as is directed by the weight and preponderance of the evidence.”

71.  Consistent with this principle the commentary in the White Book states that generally ‘an allegation of fraud must be pleaded distinctly and with the utmost particularity.’[12] Necessarily in my view it follows that if the Tribunal is invited to infer serious impropriety facts and matters must be pleaded, which if proved at trial would be capable of supporting an inference of serious impropriety. A defendant to a claim of fraud or serious misconduct is entitled to require a plaintiff to plead the case against him in detail not only in order that he is able to understand the case he has to meet and prepare to oppose it, but also because he is entitled to require the plaintiff to demonstrate that the plaintiff can assert facts and matters capable of supporting the claim and that the claim is not merely a fog of conjecture, speculation and suspicion.[13]

72.  In the present case, however, the serious allegations were not stated in R2’s Notice of Opposition dated 3 May 2021. It was only in his witness statement dated 20 October 2021 where he stated:[14]

“自該物業開始收購後， 有不少閒雜人故意在該物業外亂拋垃圾， 放置雜物及滋擾本人， 以致阻塞樓梯及行人通道，甚至偷走銅喉及破壞水喉， 本人感到十分困擾， 並因此多次報警…”

73.  The serious allegations were not pleaded distinctly and with the utmost particularity. There is no such evidence to go into the balance either against the applicant or Mr Wai who had even made a denial of his awareness of such incidences upon being cross-examined. Evidence to a very high standard of cogency is necessary before the Tribunal can be justified in finding the wrongdoings having been committed by the applicant or under its direction. It is not enough merely to raise suspicious circumstances that did not themselves prove the case.

74.  On the evidence available, therefore, I am satisfied that the applicant has taken reasonable steps to acquire all the undivided shares in the Lot including negotiating for the purchase of such of those shares as are owned by R2 on terms that are fair and reasonable.

RDV of the Lot

Hypothetical Development Model

75.  Mr Charles Chan resorted to the residual valuation method in determining the RDV. This can be done by deducting development cost (including construction costs, professional fees, finance costs etc) and developer’s profit from the estimated gross development value (“GDV”) of the completed optimum development.

76.  The Lot has a site area of the Lot at 215.69 sq m which is relatively small. It is situated next to the building at Nos 227 & 227A Hai Tan Street of similar design, both of which however are sandwiched between a new development with 115 residential units called The Vim (under construction and on pre-sale)[15] and Astoria Crest along this section of Hai Tan Street. Astoria Crest is a relatively new high-rise residential/commercial composite development completed in 2018. But on the opposite side of Hai Tan Street is a large vacant site pending development.

77.  In his updated Valuation Report dated 30 May 2022, ie prior to the applicant’s acquisition of R1’s interest in the Lot and withdrawal of the another valuation expert’s evidence, Mr Charles Chan assumed there can be built a hypothetical 24-storey residential/commercial composite development with entrance lobby and retail shops on G/F and 1/F (on which a club house is also located), which is surmounted from 2/F to 23/F by residential flats (with 2 units per floor).

GDV for Shops

78.  Because of the relatively narrow and longitudinal shape of the Lot, which comprises about 10.1m x 21.3m, Mr Charles Chan adopted two new retail units on G/F of the hypothetical development having a saleable area of 133.19 sq m with a frontage of 3.1 metres each on Hai Tan Street. On the basis of five comparables transacted since February 2021, Mr Charles Chan arrived at a unit rate of $267,000 per sq m.

79.  Upon cross-examination, R2 suggested to Mr Charles Chan that he failed to make good use of the full frontage of the site to attain a higher unit value of the hypothetical G/F shops. In response, Mr Charles Chan referred to the G/F plan of Hyde Park at No 205 Hai Tan Street, not far away from the Lot across Yen Chow Street which is a distributor running for instance from northeast to southwest leading to the Nam Cheong MTR station. According to this G/F plan, the entrance lobby has a clear width of 3.937m which is comparable to the 4m allowed by Mr Charles Chan. Mr Charles Chan explained that a narrow lobby entrance of 2.31m, for instance, proposed by R2 would adversely affect the image of the development, thereby suppressing the selling price. I agree with Mr Charles Chan that in order to be competitive in the market, his allowance of up to 4m frontage for the ground floor entrance appears to be appropriate.

80.  In any event, as afore-mentioned, R2 had terminated the appointment of the single joint expert for the respondents. Thus, following the applicant’s acquisition of R1’s interest in the Lot, by the Consent Summons dated 9 June 2022, all evidence of the valuation expert has been withdrawn save her original valuation report dated 20 October 2021. There is no evidence before me to challenge Mr Charles Chan’s development model. Thus, although Mr But, in his closing submission, claimed that Mr Charles Chan’s 4-m wide lobby “poses great difficulty for any architect to insert a pair of ‘scissors staircase’ as the most efficient design to save accountable GFA”, this is supported by no expert opinion.

81.  Then Mr But referred to two previous applications for sale of lots at Nos 244-256 Hai Tan Street and Nos 227-233 Yee Kuk street under the Ordinance, being Promise Fine Investments Limited & Others v Poon Chuan & Others, LDCS 32000/2018 (unreported, dated 30 October 2020) and Lanada (BVI) Company Limited & Another v Thunder Sharp Limited & Others, LDCS 9000/2020 (unreported, dated 25 February 2021), where the Tribunal allowed an enhancement of 10% and 5% respectively because of the general improvement of the environment in the vicinity.

82.  In Promise Fine, the lots under the application for sale were on the opposite side of the Lot across Hai Tan Street. Then, the Tribunal had the following observation at §§61-62:

“61. During the joint inspection on 12 October 2020, it is noted that all the Hai Tan Street comparables are scattering around a big redevelopment scheme named as Seaside Sonata, Tower 1, 2 & 3 the occupation permits of which, according to Mr C Chan, was issued in September 2020. More particularly, the buildings across the street opposite the Building, ie 223-225A Hai Tan Street are under demolition for redevelopment. Indeed, the buildings further to the northwest of the Buildings up to the end of Hoi Tan Street are pending redevelopment. All these point that the environment of the neighbourhood where the ground floor units are predominated by a range of grocery stores, hardware shops and car repairing workshops would undergo substantial improvement.

62. When I put the above to Mr C Chan during trial, Mr C Chan explained that the comparables he chosen, particularly the one at 229 Hai Tan Street opposite the Buildings which was sold in August 2020 should, to a certain extent, have reflected the prospective change. However, I am not persuaded as the ground floor units in the immediate vicinity are still predominated by a range of grocery stores, hardware shops and car repairing workshops. More importantly, the time adjustments applied by him, based on the Private Retail Price Index prepared by the Rating and Valuation Department which is basically an average of the movements in prices of retail unit across the whole territory cannot cater for the change in the particular area.”

83.  But in the present case, the five comparables adopted by Mr Charles Chan were all transacted since February 2021 when units in Seaside Sonata, Tower 1, 2 & 3 had become progressively occupied. I agree with Mr Charles Chan that these five transactions would have already reflected the enhancement in the locality. Indeed, Mr Charles Chan touted a walk along this section of Hai Tan Street which shows that the immediate vicinity is still predominated by a range of grocery stores, hardware shops and car repairing workshops. Further, the developer of Seaside Sonata did not see fit to provide a corner shop at the intersection of Hai Tan Street and Kweilin Street[16].

84.  However, as Lord Denning explained the concept of a “scheme” in Wilson v Liverpool Corporation [1971] 1 WLR 302 at 309:

"A scheme is a progressive thing. It starts vague and known to few. It becomes more precise and better known as time goes on. Eventually it becomes precise and definite and known to all. Correspondingly, its impact has a progress effect on values. At first it has little effect because it is so vague and uncertain. As it becomes more precise and better known, so its impact increases until it has an important effect…”

85.  Moreover, as a result of Promise Fine, a large redevelopment project is in progress on the opposite side of this section of Hai Tan Street. I therefore increase the unit price of the hypothetical retail unit by 5% to $280,000 per sq m. This accords with what the Tribunal observed in Lanada at §43:

“43. I also consider his assessment of the G/F gross development value at $210,000 should be further adjusted at +5% (i.e. $220,500 per square meter) to reflect the general improvement of business condition upon completion of the hypothetical development. Since there are a number of redevelopment projects in the subject locality, the subject locality has been improving, and it is anticipated that subject retail units will have better business condition when the hypothetical development is completed. At that time, its nearby developments will have been completed too. Further, although the improvement of business condition would have been partly reflected in the comparable in the immediate area, I consider the business condition will further improve during the development period of the hypothetical development.”

86.  Subject to the above, Mr But also queried why Mr Charles Chan adopted 1/4^th as the conversion factor for the value for the hypothetical 1/F instead of say 1/3^rd. While I agree with Mr Charles Chan that such relationship between the value of the G/F and the 1/F is not a constant and would depend on circumstances and market conditions, I note the small size of the Lot and the design of 1/F of Astoria Crest at 229 Hai Tan Street, being next to it, which comprises a relatively small saleable area. I am prepared to adopt a conversion factor of 1/3^rd, ie $280,000 per sq m x 1/3 = $93,000 per sq m.

GDV for Domestic Floors

87.  As regards the GDV of the upper floor domestic units, Mr But suggested that Mr Charles Chan had increased the GFA of the common area for the upper floors from 28 sq m to 29 sq m “unexplained”. In fact, Mr Charles Chan stated in his latest residual valuation of the Lot dated 27 May 2022[17] that this 29 sq m was agreed previously with the valuation expert whose evidence had now been withdrawn[18]. This was the result of his compromise after seeing the valuation report by that valuation expert at 30 sq m. I accept Mr Charles Chan’s 29 sq m.

88.  Mr Charles Chan had updated his selection of comparable transactions of units in the following developments:

i. Park One (南昌一號) at Nos 1-3 Nam Cheong Street;

ii. Harbour Park (海柏匯) at No 208 Tung Chau Street;

iii. Hyde Park (海珀) at No 205 Hai Tan Street;

iv. The Concerto (弦雅) at No 203 Yee Kuk Street；

v. Astoria Crest (傲凱) at No 229 Hai Tan Street.

89.  After adjustments for floor, size, view, age and noise, Mr Charles Chan arrived at the following adjusted unit rates:[19]

Development	Adjusted Unit Rate (/m2)
Park One	$225,521
Harbour Park	$216,978
Hyde Park	$215,073
The Concerto	$237,354
Astoria Crest	$225,172
Average:	$224,000

90.  Mr Chan made further adjustments for floor levels for the hypothetical development and arrived at an average unit rate of $223,000 per sq m.

91.  Mr But submitted that it was unreasonable for Mr Chan to adopt 0% adjustment for location to all the comparables. He explained as follows:

a. Hyde Park:

Unlike the subject locality, there is no redevelopment projects happening on both side of the street. Many car repairing shops and construction materials shops remain on the opposite side of Hai Tan Street. As can be seen on the day of site visit, there are also heavy truck traffic, car repairing activities (involving steel cutting and welding) frequent loading/ unloading activities of construction materials at least during daytime, which harms the class and tranquility of the surrounding environment. This portion of Hai Tan Street is further made busier by the 2 minibus and 3 bus routes passing through.

b. The Concerto:

Again, not both sides of the street are undergoing redevelopment. Surrounding the comparable are still run down old buildings and shops with less desirable trade mixes, such as metal workshops and shops selling construction materials. More generally, this comparable is much closer to the core wet-market and stall areas in Shum Shui Po as being sandwiched by Kweilin Street and Pei Ho Street. Purchasers would have serious concerns about hygiene and security, especially during evenings.

c. Park One / Harbour Park:

These comparables have inconvenient traffic network by being few streets further away from Nam Cheong Station and having no major bus/ minibus stops nearby. Further, just like the other comparables, there are many metalwork shops, trucks, and loading/ unloading activities downstairs. The displeasure is exacerbated by the narrow road design of Tung Chau Street, where pedestrians can only pass through difficultly by dodging parking trucks and workers. It is also practically impossible for residents there to open their window unless they have no issue with the severe noise and air pollution happening on the neighbouring West Kowloon Corridor.

92.  In comparison with Park One and Harbour Park, Mr But further submitted, the Lot enjoys a convenient transport by locating in the middle of Sham Shui Po Station and Nam Cheong station and having easy access to the bus/minibus stops along Yen Chow Street with just 1-2 minutes of walking distance.

93.  Mr But submitted that the Lot outplays all comparables (save for Astoria Crest nextdoor) as both sides of its street will be substantially regenerated to be completely free of older buildings, hygiene problems and noisy trades, denoting a wholesale improvement in the entire neighbourhood. There will also be strong corroborative effect as between the cluster of new high-end developments in Hai Tan Street. Mr But submitted a positive location/ environment adjustment, say +5% to +10%, should be justified.

94.  With respect, the location factor is less important for domestic than for retail premises. For instance, Hyde Park is situated within a short distance from the Lot on the opposite side of Yen Chow Street. Next to it is a newly completed commercial cum residential development known as Seaside Sonata which comprises more than 800 domestic units which, I trust, is comparable in scale to the new development to be undertaken on the opposite side of the Lot across Hai Tan Street. On the other hand, it is true that that section of Hai Tan Street is traversed by 2 minibus and 3 bus routes. I am content to make an adjustment of +3%.

95.  The Concerto is situated behind Tower 1 of Seaside Sonata on Yee Kuk Street. I agree that the environment is less favourable than that of the Lot with both sides of the street undergoing redevelopment. I am prepared to allow an adjustment of +3%.

96.  As regards Park One and Harbour Park, I agree that they are situated in close proximity to the West Kowloon Corridor, an elevated highway, suffering from a lot of traffic noise. However, Mr Chan has already allowed an adjustment of +6%.

97.  On the basis of the above, I am prepared to adjust the unit rate assessed by Mr Charles Chan as follows:

Development	Adjusted Unit Rate (/m2)
Park One	$225,521 x 1.06	$239,052
Harbour Park	$216,978 x 1.06	$229,997
Hyde Park	$215,073 x 1.03	$221,525
The Concerto	$237,354 x 1.03	$244,475
Astoria Crest	$225,172	$225,172
	Average:	$232,044
	Say	$232,000

98.  In light of the above, I do not adopt Mr Charles Chan’s approach of making further adjustment for floor levels. I determine the adjusted unit rate at $232,000 per sq m.

Construction Costs

99.  In respect of the construction cost, Mr Chan suggested a building quality of “High to Very High” at $33,250 per sq m on the basis of the classification published by Rider Levett Bucknall (“RLB”), a construction and property consultancy of international fame. He then followed the Development Cost Pro-forma promulgated by the Hong Kong Institute of Surveyors to facilitate consideration of construction costs and arrived at $84,991,395 for the construction cost of the hypothetical development.

100.  Mr But challenged that applying “Very High” quality is disproportionately extravagant having regard to the locality and character of the district which is not a “very high-class” residential area. Mr But also produced photos of the exterior of the residential comparables adopted by Mr Charles Chan and argued that the building quality should only be “High”. I agree with Mr Charles Chan that it is difficult to assess the overall building quality by looking merely at the exterior of buildings.

101.  Then Mr But took issue on the building conditions of Hyde Park and Astoria Crest in respect of which there have been complaints of water seepage from the external walls, broken ceiling, uneven floor level or unaligned exterior wall tiles etc. In this regard, Mr But had produced various new unit surveys downloaded from websites[20]. However, I do not consider any adjustment is required for the poor workmanships which may be inevitable in any new development. There can be no guarantee that none of these poor workmanships would occur in the hypothetical development.

102.  On the other hand, Mr Charles Chan produced a table of comparison with the nearby new developments:[21]

Development	Date of Completion	Total GFA (sq m)	Construction Cost	Unit Rate (/sq m)	Adjustments			Adjusted Unit Rate (/sq m)
					Time	Development Scale*	Total
Subject at 227B-227C Hai Tan Street	New	1,819.880	$84,991,395	$46,702	0.0%	0.0%	0.0%	$46,702
Park One 1 Nam Cheong Street	9 Apr 2019	7,156.153	$319,534,000	$44,652	1.0%	15.0%	16.2%	$51,886
Harbour Park 208 Tung Chau Street	26 Jan 2018	5,202.962	$228,160,000	$43,852	-4.7%	10.0%	4.8%	$45,957
Hyde Park 205 Hai Tan Street	9 Apr 2020	3,600.226	$199,101,398	$55,302	6.4%	5.0%	11.7%	$61,772
Astoria Crest 229 Hai Tan Street	31 Dec 2018	3,639.634	$201,615,192	$55,394	-1.2%	5.0%	3.7%	$57,444

* by reference to RLB Building Cost Data

103.  I accept Mr Charles Chan’s explanation that the poor workmanship should not have any direct relationship with the construction cost but varies from case to case. Indeed, the unit construction costs for Hyde Park and Astoria Crest appear to be highest from the above table. An increase in living standard generally and higher buyers’ expectation would have eliminated most of the mediocre developments nowadays. This echos Mr But’s suggestion that the many redevelopment projects being undertaken in the vicinity will further elevate the business environment and living conditions in the locality to the next level.

104.  With respect, Mr But had conflated the quality of finishes of a building with the character of an area in which it is situated. For instance, by reference to the Approximate Order of Construction Costs in Hong Kong for 2^nd quarter of 2022 published by RLB, the unit construction cost for “High Quality” residential development ranged from $25,900 to $36,600+ per sq metre. The “+” sign may be endless depending on the extravagancy.

105.  Next, Mr But submitted that it made no sense to include costs for air conditioning and appliances for the commercial portion on G/F and 1/F. But as explained in Holly Property Company Limited v Acewell Investments Limited, LDCS 28000/2020 (unreported, dated 4 April 2022), it is unrealistic to treat construction costs separately for the commercial and residential portions when the commercial portion only occupies 2 floors in the commercial/residential model.

106.  In view of the above, I accept Mr Charles Chan’s construction cost at $84,991,395.

Developer’s Profit

107.  Then Mr But submitted that the developer’s profit should be adjusted from Mr Charles Chan’s 15% to 12% for the following reasons:

a. The Lot is situated in a well-established community with mature support of communal facilities, recreational facilities and transport network. The redevelopments on both sides of Hai Tan Street will elevate the business environment and living conditions in the locality to the next level.

b. The new development on the Lot will be particularly marketable amongst the local population as they can utilize the enhanced loan-to-value ratio of 90% and move into a better living environment without sacrificing their ties with the existing neighbourhood.

c. The unparalleled development potential and marketability of the Lot and its locality also explain why so many developers of different scales have initiated or contemplated development projects in the region in recent years.

d. Specifically in terms of residential usage, the rather secluded position of the Lot allows it to further outperform the rest of Shum Shui Po. The Lot maintains both tranquility and convenience in a balanced manner.

e. Further, as the pandemic has been gradually under control, the purchasing power in the property market is now being unleashed. The resurrection of the property market can be evidenced by the strong sales performance recorded in the recent 1^st hand residential developments in West Kowloon and also other parts of Hong Kong.

108.  Mr But further submitted that insofar as profit/ development risk is concerned, it was incorrect for Mr Charles Chan to say that the property market had “worsened” since the outbreak of 5^th wave of the pandemic. With stabilization measures deployed, the effect of the pandemic had already faded out.

109.  With respect, it appears that the market has turned the other way round. The number of Covid-19 inflicted cases has kept on rising. More importantly, the abundant supply of small residential units would have a dampening effect on the sale of new units as demonstrated by the table produced by Mr Charles Chan on 22 June 2022 below:[22]

Development	Date of First Sale	No of Units
		Not yet available for sale	Available for sale but not yet sold	Sold
Seaside Sonata (愛海頌) 201-218 Hai Tan Street	17 Oct 2019	0	31	845
The Harmonie (映築) 233 Castle Peak Road	22 Jan 2022	17	63	257
The Quinn – Square Mile (利奧坊-壹隅) 5 Sham Mong Road	1 May 2022	419	57	138
Silicon Hill 63 Yau King Lane	3 Jun 2022	0	87	489
J Loft (喜、揚) 93 Apliu Street	18 Jun 2022	51	29	3
Baker Circle – Dover (必嘉坊、曦匯) 28 Gilles Avenue South	18 Jun 2022	142	56	126

110.  Developer’s profit is normally included as a percentage of the costs involved, or sometimes as a percentage of the GDV. The level of profit should represent the return that a hypothetical developer will require for undertaking the project and should be commensurate with the risk involved. By para 3.6.4 of the HKIS Guidance Notes on Valuation of Development Land published in 2016, the related risks include marketing risks for sales and lettings, risks of construction difficulties and cost overruns, and delays in obtaining relevant development approvals.

111.  In a residual valuation, developer’s profit is included in a broad brush nature in the absence of a fully researched risk analysis. Thus, the level of return is only meaningful as a comparative figure but must be related to the risky nature of the hypothetical development and to the length of the project.

112.  In the present case, because of the small scale of development, Mr Charles Chan envisaged a development period of 2 years. And therefore a developer’s profit of 15% is equivalent to an annual return of 7.2381%. This is the gross profit to a developer before meeting the developer’s general overheads and tax.[23] To the contrary, if a developer’s profit of 12% is adopted as suggested by Mr But, the annual return is merely 5.8301% which would be regarded as inadequate if it were to include marketing risks for sales and lettings.

113.  I therefore agree to Mr Charles Chan’s 15%.

Finance Charges

114.  Then comes the interest rate or finance costs for discounting. But to my surprise, Mr Charles Chan termed it as “capitalization rate” which concept is completely different from a discount rate and more particularly never used in any authority or text in a residual valuation exercise. Even in the authority to which Mr Charles Chan referred, Property Valuation: The Five Methods, by Douglas Scarrett and Sylvia Osborn, 3^rd Edn, 2014, Routledge, only the term “Short-term finance” was used.

115.  Under this heading, the book stated as follows at pp 119-121:[24]

“Short-term finance is required to provide working capital to acquire the site, pay for professional services and meet interim and final certificates issued by the architect. The money is borrowed and interest paid for the period of the loan …

Where short-term finance is required it is usually arranged through a bank or similar lender to meet the developer’s need to borrow funds. The perception of property development is that of a higher-risk activity. However, the interest rate negotiated may also reflect the size of the loan, the property it bears to the total development cost, the existence of a pre-letting or forward sale, and indeed the track record and financial reliability of the developer concerned. In assessing a developer’s best bid for the land, finance costs should be included in the residual valuation even if a developer is acquiring the land and financing construction out of its own funds. This ensures that the opportunity cost of that money is reflected in the valuation and avoids the calculation of a bid price where the developer is effectively paying twice for the land and thus bidding away potential profit…” (underline added)

116.  Perhaps the phrase “the opportunity cost of that money” has led Mr Charles Chan to go astray particularly when he appreciated that a developer can only borrow up to 40% of land value and 80% of building costs for project finance under the restrictions imposed by the Hong Kong Monetary Authority.

117.  For instance, para 3.7 under the heading of “Finance Charges” in the HKIS Guidance Notes on Valuation of Development Land published in 2016 provides as follows:

“Bank Financing

3.7.1 Historically, financing charges were assumed a wholly local and straightforward issue, linked to Hong Kong Prime Rate ('HKPR'). With the greater internationalization and competitiveness of Hong Kong's banking sector in recent years, a reduction of assumed finance charges down to or below HKPR has evolved.

3.7.2 Given the wide diversity of developers, their histories, track records and net asset values, financial institutions are increasingly offering different finance charge rates to different parties, reflecting risk and business relationships. Small scale developments which are likely to be undertaken by smaller, and less well capitalized developers, will attract finance charges higher than major developers with successful track records for similar project completions.

3.7.3 Such financing may now be charged with reference to

• the Prime Rates for relevant banks;

• the Hong Kong Interbank Offered Rate ('HIBOR');

• London Interbank Offered Rate ('LIBOR').

Other Funding

3.7.4 Other forms of funding besides bank mortgages are becoming increasingly common:

• Syndicated loans of varying types have been adopted by major developers; some at fixed and others at floating rates. Small and medium developers may find this type of finance not suitable and sometimes have difficulty to secure syndicated loans.

• Bonds issued by large developers or corporations allow for potentially more flexible, longer financing than banks historically provide.

Cost Variables

3.7.5 The length and complexity of a development project will also impact on finance charges, since longer projects, particularly requiring multiple government approval processes, may significantly lengthen the development period and its risk. As a greater risk-return rate may be required, this would increase cost of funds.

3.7.6 Overall, finance charges should be carefully assessed having regard to:

• The scale of the development, and hence scale of developers likely and able to undertake it;

• The extent and certainty of works timeframe;

• The risk and market environment at the time financing is arranged; and

• Loan to value ratio, with lower rates for lower ratios.

3.7.7 Rates in the market vary substantially at any given valuation date, and adoption of market oriented achievable finance rates based at or below HKPR, or for major projects HIBOR or LIBOR oriented funding, will ensure notably more precision in the resultant residual valuation. In the residual valuation examples at Appendix 3, a rate of 4% has been used, being below prevailing HKPR.”

118.  With respect, “the opportunity cost of that money” does not refer to the developer’s cost of equity but to “other forms of funding besides bank mortgages”. This accords with the description in Modern Methods of Valuation, 12^th Edn, 2019, by Eric Shapiro, David Mackmin and Gary Sams, at p221:

“In some instances the developer might have raised money on a long-term basis at a favourable rate of interest which may be low compared with prevailing rates, or money might be provided from the developer’s own resources. In these cases the prevailing borrowing rate must be adopted in the valuation as this is the opportunity cost of the capital and it reflects the market for the site …” (underline added)

119.  Otherwise, if the cost of equity is included, the level of leverage has to be estimated and the discount rate would become the Weighted Average Cost of Capital (“WACC”) in a discount cash flow (“DCF”) exercise which is an alternative to residual valuation where the parameters in the valuation are more specific or certain.

120.  Unlike a residual valuation, when the DCF methods are employed, “the income stream is projected with explicit assumptions about rental growth and is then discounted back to a net present value (NPV) using an appropriate discount rate; the scheme is deemed viable if the NPV exceeds the total development costs. The discount rate includes an allowance (profit margin) for the management’s requirements and risk of investing in a development project rather than an existing fully let property. This approach is particularly appropriate for large, phased schemes”.[25] In such regard, if the cost of equity is included in the discount rate and the developer’s profit is also accounted for, the risk element would have been double counted. See Appendix 4 of HKIS Guidance Notes on Valuation of Development Land.

121.  Thus, as stated in Valuation of Development Land, 1^st edition, 2014, published by the Royal Institution of Chartered Surveyors in section B2.2.2, “(i)n a basic residual valuation, finance is assumed at 100 per cent of both land and building costs” for the sake of simplicity though in reality this is never the case. The purpose of adopting the residual valuation is because it is prepared before the site is acquired when the estimates of cost, selling price and the program, although based on the best information available, are likely to be very broad brush.

122.  In Valuation: Principles into Practice, 6^th Edn, 2009, Estates Gazette, Nigel Dubben on the chapter of “Development Properties” suggested at p366 as follows:

“The developer is assumed to be 100% debt financed but in reality this is never the case as no business that is funded in such a way can hope to survive. Although the developer is going to be partly financed by equity in terms of the valuation, it is appropriate to include finance in this way as the opportunity cost of using equity will approximate to the short term rate of interest.”

123.  With respect, this proposition is not necessarily unsustainable. By the 1^st proposition of the Modigliani-Miller Theorem, which is one of the most important theorems in corporate finance, the capital structure of a company does not affect its overall value under the assumption of perfectly efficient markets, in which the companies do not pay taxes, while there are no bankruptcy costs or asymmetric information. Under its 2^nd proposition, the weighted average cost of capital is a function of the company’s business risk and will remain constant regardless of the capital structure. It implies that component cost of capital (i.e. cost of debt and cost of equity) will adjust with any change in debt to equity ratio resulting in a constant weighted-average cost of capital. Even when the limitations of the perfectly efficient markets are relaxed, while the additional debt still increases the chance of a company’s default, investors are less prone to negatively reacting to the company taking additional leverage, as it creates the tax shields that boost its value.

124.  And as stated in the judgment in respect of many recent compulsory sale applications under the Ordinance, the Hong Kong Interbank Offered Rate (“HIBOR”) has become popular for funding purposes whereby interest rates are quoted as a certain percentage points known as “spread” above HIBOR. Mr Charles Chan equated this as the Hong Kong Dollar Interest Settlement Rates (“HKD Interest Settlement Rates”) published by the Hong Kong Association of Banks and assessed the interest rate to be adopted in the residual valuation at 4% per annum.

125.  In Holly Property Company Limited v Acewell Investments Limited, LDCS 28000/2020 (unreported, dated 4 April 2022), the Tribunal noted that the HIBOR had kept growing up to about 0.30%. Currently, the 1 month HIBOR had risen to about 0.70% at the date of trial[26]. In addition, Mr Charles Chan has provided a press release dated 10 June 2022 by New World Development Company Limited that the latter had issued a 5-year USD-denominated bond at a coupon rate of 5.875% which was priced at T+290 basis points.[27] The 5 Year Treasury Rate as at 10 June 2022 was 3.25% whereas it was 2.94% as at 1 June 2022.

126.  Thus, I consider the interest rate to be adopted in Mr Charles Chan’s residual valuation at 4% per annum appropriate.

Stamp Duty

127.  Again, on the basis of the HKIS Guidance Notes on Valuation of Development Land at para 3.9.2, developers would take into account these stamp duty liabilities in the assessment for purchase price for development land. Mr But however invited the Tribunal to consider that, as a matter of “market reality”, there had been no competitive bidding of redevelopment sites ordered to be sold by the Tribunal in the past. R2 suggested that the applicant would be the successful bidder at the reserved price. In this regard, Mr But referred to the Hansard of 24 March 1998, ie minutes of Bills Committee Meeting on the Bill prior to becoming the Ordinance as follows:[28]

“The charging of stamp duty

2. Referring to members earlier enquiry about whether stamp duty would be charged if the successful purchaser at the auction was the majority owner, the Principal Assistant Secretary for Planning, Environment and Lands (PAS/PEL) informed that he had consulted the Inland Revenue Department and was advised that stamp duty would not be chargeable if there was no actual transfer of title. Hence, where the majority owner was the purchaser of the lot at the auction, he would only need to pay stamp duty in respect of the shares of the minority owners, ie those shares which he had not already owned.” (underline added)

128.  Mr Charles Chan responded that the purpose of carrying out the residual valuation is to determine what a hypothetical purchaser would be willing to pay for the Lot; this hypothetical purchaser may not be the majority owner though it turns out it might be the case. Indeed, there has been at least two compulsory sale auctions that turned out that there were no bidders even when this stamp duty of 4.25% was included in the residual valuation.

129.  I agree with Mr Charles Chan. Furthermore, the arrangement for the majority owner only paying stamp duty in respect of the shares of the minority owners is to avoid the double tax payment of stamp duty. The majority owner is supposed to have paid the stamp duty in respect of the acquisition of the other interest in the lot before becoming the majority owner.

130.  Mr But submitted however that the rationale of imposing “reserve price” is to protect the legitimate interest of minority owners from imperfections of free market operations that there is no competitive bidding of redevelopment lots in Hong Kong. Mr But submitted that it would be totally unrealistic and unfair to impose the full “4.25%” stamp duty to discount and knock off a substantial portion of the full land price at the expense of minority owners where such notional item of “development costs” is highly unlikely to be paid by the majority owner on such rate. The margin here will become a “windfall” for the applicant developers, let alone the fact that developers would be able to recoup the so-called “cost” from potential purchasers after redevelopment.

131.  Firstly, with respect, whether the developers would be able to recoup the so-called “cost” from potential purchasers after redevelopment is unrelated to the determination of the RDV as a matter of market value for the Lot.

132.  Secondly, as the Court of Appeal in Bond Star Development Ltd v Capital Well Ltd [2004] 2 HKLRD 855 at §17:

“No doubt there are practical difficulties which may face a developer, for example, in a situation where the applicant has put together a number of lots and wishes to redevelop them together. If such an applicant owns a number of adjacent lots that are intended to be developed together but is forced to make an application in respect of one lot alone, it may well arise that if that single lot were put up for auction an unrealistic price might be bid for that lot. The person bidding could in effect force the applicant to pay a premium because, unless the applicant were prepared to pay an unrealistic price for the particular lot, he might be deprived of that lot by reason of being out bid at the auction and thus would not be able to pursue his original development. Whilst that is true, it is also relevant to take into account the fact that the majority owner might in such circumstances be forced to bid up to the full redevelopment value, thus benefiting the minority owner.”

133.  There is thus no restriction on the minority owner, if sufficiently funded, bidding up the single lot to a higher price.

134.  Paragraph 2 of Schedule 2 to the Ordinance provides as follows:

“2. The lot the subject of the auction shall be sold subject to a reserve price—

(a) which takes into account the redevelopment potential of the lot on its own (or, where 2 or more lots are the subject of the auction, on their own); and

(b) approved by the Tribunal.”

135.  Thus, by virtue of paragraph 2(a), the Lot being the subject of the auction shall be sold subject to a reserve price which takes into account the redevelopment potential of the Lot on its own. The starting point must be that the legislature phrased that assumption no more broadly or narrowly than the language it actually used. There should not be any strong presumption against either the majority owner or the minority owner obtaining an advantage which is unrelated to the “redevelopment potential of the Lot on its own”. In Transport for London (London Underground Limited) v Spirerose Limited [2009] 1 WLR 1797, [2009] UKHL 44, Lord Neuberger pointed out at §50 as follows:

“First, if a statute directs that property is to be valued on an open market basis as at a certain date, one would not expect any counter-factual assumptions to be made other than those which are inherent in the valuation exercise (such as the assumption that the property has been on the market and is the subject of a sale agreement on the valuation date) or those which are directed by the statute.”

136.  Thus, even if a statutory assumption requires a valuation to be conducted on a different basis from reality, the language and purpose of the statute must be heeded. I see no point in departing from the usual approach in residual valuation in allowing the stamp duty.

Residual Valuation

137.  Thus, subject to the discussions above, I carry out a revised residual valuation on the basis of Mr Charles Chan’s valuation as shown in the Appendix of this judgment[29].

138.  I determine the RDV of the Lot at $120,000,000.

139.  Then Mr But further submitted that the Tribunal is not bound by the RDV in fixing the reserve price. He particularly referred to paragraph 2(b) of Schedule 2 to the Ordinance is drafted separately and in addition to paragraph 2(a).

140.  According to Mr But, paragraph 2(b) of Schedule 2 to the Ordinance should be widely and liberally construed to confer the Tribunal a residual power to protect minority owner’s interests when fixing and approving the reserve price.

141.  But taking into account what the Court of Appeal in Bond Star Development Ltd at §17 supra, and that the reserved price is to be fixed by taking into account the redevelopment potential of the Lot on its own (which term was indeed added in the Bill state on the basis of the suggestion by the Law Society of Hong Kong)[30], I am prepared to fix the reserve price at the RDV of $120,000,000.

Other Incidental Matters

142.  The applicants proposed to appoint Mr Ma Ho Fai and Ms Kung Ying Chang, being partner and assistant solicitor respectively 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 their letter dated 8 June 2022[31], I are satisfied that they are proper persons to be appointed as trustees to discharge the duties imposed on trustees under the Ordinance. The remuneration package proposed in the said letter appears reasonable.

143.  The applicants have prepared a set of draft Particulars and Conditions of Sale of the Lot. Subject to any amendment that may become necessary as a result of my ruling on the arrangement of auction above, the particulars and conditions of sale of the Lot by public auction submitted by the applicants are also reasonable.

Order

144.  This Tribunal make the following orders:

(1) This Tribunal is satisfied that the redevelopment of the Lot is justified due to the “age” or “state of repair” of the Building and that the applicant has taken reasonable steps to acquire all the undivided shares in the Lot including that of the 2^nd respondent;

(2) All the undivided shares in the Lot, the subject of the Application herein, be sold by way of a public auction for the purposes of the redevelopment of the Lot under s.4(1)(b) of the Land (Compulsory Sale for Redevelopment) Ordinance (“the Ordinance”);

(3) Mr Ma Ho Fai and Ms Kung Ying Chang of Messrs Woo Kwan Lee & Lo, Solicitors, Notaries, Agents for Trademarks & Patents, nominated by the applicant, be appointed trustees (“the Trustees”) to discharge the duties imposed on trustees under the Ordinance in relation to sale of the Lot 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, Solicitors, Notaries, Agents for Trademarks & Patents dated 8 June 2022.

(4) For the purpose of the sale of the Lot by public auction under section 5(1)(a) of the Ordinance:

(i) The sale of the Lot be on the particulars and conditions of sale substantially the same as those in the draft Particulars and Conditions of Sale to be initialed and approved by the Tribunal.

(ii) The reserve price be set at $120,000,000.

(iii) Subject to further extensions that the Tribunal may subsequently allow upon the application of the purchaser of the Lot or its successor in title, the redevelopment of the Lot and the Building shall be completed and made fit for occupation within a period of 6 years after the date on which the purchaser of the Lot shall become the owner of the Lot.

(iv) Liberty to the applicants, the respondents and the Trustees to apply to the Tribunal for further direction(s) under the Ordinance.

Costs

145.  In accordance with the compensation approach as determined by the Court of Appeal in Good Faith Properties Ltd and Others v Cibean Development Co Ltd [2014] 5 HKLRD 534, I order that the applicants do pay R2 the costs of the Application, to be taxed on the High Court scale if not agreed.

146.  Last but not least, the Tribunal thank Counsel for their assistance.

								Appendix
Residual Valuation
Gross Development Value
G/F Retail	133.19	m2	x	$280,000	/ m2	=	$37,293,200
1/F Retail	40.01	m2	x	$93,000	/ m2	=	$3,720,930
Flat Roof on 2/F	106.13	m2	x	$35,000	/ m2	=	$3,714,550
2/F-23/F Flat	1004.06	m2	x	$232,000	/ m2	=	$232,941,920
							$277,670,600
Less Marketing Costs			@	3%			0.97
							$269,340,482
Present Value in	2.5	years	@	4%			0.9066
								$244,184,081
Development Costs
Demolition Cost	940.00	m2	x	$2,200	/ m2	=	$2,068,000
Professional Fee			@	6%			1.06
Developer's Profit			@	15.0%			1.150
							$2,520,892
Present Value in	0.25	year	@	4%			0.9902
								$2,496,187
Construction Costs							$84,991,395
Professional Fee			@	6%			1.06
Developer's Profit			@	15.0%			1.150
							$103,604,511
Present Value in	1.5	years	@	4%			0.9429
								$97,688,693
								$143,999,201
Stamp Duty			@	4.25%
Legal Cost			@	0.10%
Developer's Profit			@	15.0%			÷	1.19350
								$120,652,871
							say	$120,000,000
					Accommodation Value			$65,938.41