Wong Hoi Nung v. The Secretary for Transport

LDMR 1/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Tribunal Application No. LDMR 1 of 2000

_______________

__________________________________

DECISION ON REVIEW

__________________________________

1. The judgment of this case was delivered on 10th November 2000. On 8th December 2000, the Applicant applied for a review of the judgment. The Tribunal granted the review on the part of the judgment relating "to loss of profit rent".

2. On 24th February 2001, the review was heard. Miss Lau, Counsel for the Applicant, submitted that "It is revealed from the transcript of Wong Yuen Tik.........that no question relating to the alterations made in the Tenancy Agreement was ever put to him." She submitted that the Tribunal's finding is inconsistent with the evidence presented before it.

3. In Paragraph 3 of his statement ("Exhibit No. A2"), Mr. Wong Yuen Tik made reference to the claim for compensation from the Government as a result of the resumption of the piece of land situated in D. D. 130 Lot No. 1978 (P) Tsing Chuen Wai, N. T. In his statement he called this piece of land as "the Land".

4. In Paragraph 8 of his statement, he referred to the rebuilding and improvement work to the Land, and the verbal agreement relating to the Land being reduced into writing on 3rd February 1996. In Paragraph 10 he referred to the Applicant's employing on the average 7 employees working on the Land, prior to its cessation of business.

5. It is not disputed that at the time of resumption, the land used by Bailey Trading Company for its business covered Lot No. 1978 (P), Lot No. 1980 (RP) and a portion of Government Land. Thus, when he was referring to Lot No. 1978 (P) as the Land, he was in fact referring to a piece of land comprising of Lot No. 1978 (P), Lot No. 1980 (RP), and a portion of Government Land.

6. The written Tenancy Agreement ("Exhibit A3") referred to Castle Peak Road, Tsing Chuen Wai, Lot No. 1978 (P), Wah Fung Yuen. Miss Lau argued that the Tenancy Agreement was intended to cover not just Lot No. 1978 (P), but the whole piece of land resumed by the Government, because the 6 stone huts (referred to in the Tenancy Agreement) were situated inside and outside Lot No. 1978 (P). Thus it is consistent with Wong Yuen Tik's evidence that the lease is the lease for the land resumed; it is not just a lease for Lot No. 1978 (P).

7. During cross-examination, it is the evidence of Mr. Wong Yuen Tik that he did not know how big the land covered by the Tenancy Agreement was.

“問：其實黃生你知唔知道，呢個百利所用嘅地方......先至係屬於1978地段？

答：因為我係唔清楚入面。

問：你唔清楚？

答：我入面個地台係幾大、幾闊，幾多地段、幾多地段根本係唔知，因為當時佢--即係我一個書信嘅來往就只係嗰一個冧巴1978地段，個冧巴就作為書信來往俾我咁樣。

問：你亦都唔知道話其實你用嘅地方都相當大橛，喺官地上面，呢個你都唔知？

答：我唔知，完全即係講-頭先所講，我去之前已經--鐵網已經圍晒，佢個範圍，都係屬於佢個使用範圍，就咁嘅情形。”

8. The Lands Tribunal considers that the part of the Tenancy Agreement which directly deals with the area covered by the lease is the part of the lease in Chinese quoted as below : -

"租金包括三間鐵皮屋、空地、六個石屋房、兩個石屋廳......。”

9. The reference to Castle Peak Tsing Chuen Wai Lot No. 1978 (P) Wah Fung Yuen Bailey Trading Company in the Tenancy Agreement is merely the description of the address of the company. It is just like the address of the Applicant's trading company stated on the Business Registration Certificate on page 162 of the Agreed Bundle of Documents. It is not the reference to the size of the land covered by the lease.

10. The issue is: what is the area of the land covered by the lease? In evidence-in-chief, Mr. Wong Yuen Tik said that in 1998 he had utilized all the land of Wah Fung Yuen, and there were 6 houses which he used for storing goods. He also used the vacant land for parking of vehicles and for storing things, and in 1996 the Tenancy Agreement was signed and in 1999 the Government resumed the Land. It is only during cross examination that he identified 6 huts on a sketch plan showing (on page 51 of "Exhibit R1") the location of the land resumed by the Government. 2 out of these huts (as represented by Structures 6 and 9) were situated on Government Land (covered by Government Permit No. Y10165). Part of another hut (as represented by the figure 11 on page 51 of "Exhibit R1") was also on the said Government Land. Another hut, as represented by Structure 3, was situated in Lot No. 1980 (RP).

11. The Tribunal came to the conclusion that the Tenancy Agreement not only covered Lot No. 1978 (P), but also Lot No. 1980 (RP) and the said Government Land. The Tribunal is satisfied that these 6 huts referred to in his evidence can only be the 6 huts referred to in the Tenancy Agreement. The effect of the evidence of Mr. Wong Yuen Tik shows that the Tenancy Agreement covered Lot No. 1978 (P), Lot No. 1980 (RP) and Government Land. There is no evidence to the contrary. The Tribunal therefore draws the conclusion that it must be true that the Tenancy Agreement covered the land resumed by the Government. Therefore the unit rent of the land resumed is $3.636 ($5,000÷1375).

12. The Tribunal has considered Clauses 8(b) and 11 of the written submission of the Respondent dated 16.9.2000, when Mr. Lam, Counsel for the Respondent submitted that it could not be right that the monthly rent of $5,000 was paid for the entire area of the land resumed (1375 sq. m.) for no private individual has the legal right to lease a piece of Government land to another private individual without the Government's consent.

13. One of the issues the Tribunal has to determine is whether the Tenancy Agreement covered only Lot No. 1978 (P), or it covered Lot No. 1978 (P), Lot No. 1980 (RP) and the Government Land for the purpose of finding out the unit rent for the entire piece of land covered by the Tenancy Agreement. It will not be right to decide that the Tenancy Agreement only covered Lot 1978(P) and Lot 1980 (RP) simply because as a matter of law, Wong On had no right to lease out the Government Land to the Applicant when in fact it covered the Government Land as well.

14. The Applicant's loss of profit rent in respect of Lot No. 1978 (P) is $230,448.96 [($7.5-$3.636) x 497 x 12 x 10].

15. This Tribunal imposes the following orders : -

1. Review in respect of loss of profit rent is allowed. The order relating to "loss of profit" rent made on 10th November 2000 be set aside;

2. The Applicant be awarded loss of profit rent in the sum of $230,448.96;

3. The total compensation (excluding severance payment) paid by the Respondent to the Applicant in the sum of $279,782.50 be varied to $510,231.46 ($279,782.50 + $230,448.96);

4. The issue relating to costs of this review be reserved for argument on a date to be fixed by the parties.