BEST ORIGIN LTD v. COMMISSIONER OF RATING AND VALUATION

CACV 67/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2008

(ON APPEAL FROM LDGA NO. 14 OF 1998)

____________

_______________

JUDGMENT

_______________

Hon Tang Ag CJHC:

1.  On 19 November 2010, we dismissed Best Origin Limited’s (“Best Origin”) appeal from a decision of the Lands Tribunal which had assessed the rateable value of Inland Lot No.8874, Electric Road, Hong Kong (“the Site”) whilst it was being occupied as a development site, at HK$26,880,000. The Lands Tribunal had rejected Best Origin’s contention that the rateable value was nil, nominal or at most $764,000 per annum.

2.  This is Best Origin’s application for leave to appeal to the Court of Final Appeal.

3.  It is contended that Best Origin is entitled to appeal as of right under section 22(1)(a) of Hong Kong Court of Final Appeal Ordinance, Cap. 484.  The suggestion that a liquidated claim is involved is untenable.  On the authorities, the first limb of section 22(1)(a) is confined to liquidated claims.  As for the second limb of section 22(1)(a), namely that:

“… the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1000000 or more;”

4.  The judgment of the Appeal Committee given by the Chief Justice in Happy Dragon Restaurant Ltd v. The Director of Lands, FAMV 18/2010 (unreported, 15 November 2010) covers the present case.  There, the Chief Justice Ma, after citing a passage (para. 24) from the judgment of the Appeal Committee, given by Ribeiro PJ in China Field Ltd v Appeal Tribunal (Buildings) (No. 1) (2009) 12 HKCFAR 68, said in para. 11(3):

“(3) Applying this test, we are unpersuaded that the applicant’s claim for compensation was ‘clearly quantifiable’ at $1 million or over. As noted above, the exercise in the quantification of compensation under the [Lands Resumption Ordinance, Cap. 124] is in many ways similar to the assessment of unliquidated damages. For this reason alone, this is likely to be a bar in many cases where compensation is claimed for a resumption. This is all the more so in the present case where the quantification of the applicant’s claim was at one stage nil (as the Lands Tribunal found) or substantial (as the Court of Appeal found). The respondent clearly fails to satisfy the requisite test.”

5.  I believe that the rating exercise in this case is indistinguishable from claims for compensation.

6.  Mr Nigel Kat, on behalf of Best Origin, has referred us to some Commonwealth decisions in an attempt to overcome Happy Dragon and China Field.  However, as the judgment of Ribeiro PJ in China Field shows, none of these authorities, when properly understood, affects the correct interpretation of section 22(1)(a).  It is unnecessary and unhelpful to look beyond the guidance provided by the Appeal Committee.

7.  Best Origin also sought leave on the discretionary basis under section 22(1)(b). 

8.  It is said that our decision involves questions of great general or public importance.  We have, in our decision, endeavoured to follow the decision of the Court of Final Appeal in Commissioner of Rating & Valuation v Agrila Ltd & Others (2001) 4 HKCFAR 83.  I agree with Mr Litton, on behalf of the Commissioner, that the matters which Best Origin now seek to bring before the Court of Final Appeal, have already been fully considered and decided by the Court of Final Appeal in Agrila.  Essentially, Mr Kat’s complaint is that we have misapplied Agrila.  That is not a basis for leave to be given. 

9.  It is also contended that leave should be granted on the “or otherwise basis”.

10.  We are told that in The Hong Kong Electric Co Ltd v. Commissioner of Rating and Valuation, CACV 27/2010 (unreported, dated 5 November 2010), leave to appeal was granted, I think, by consent, on the “or otherwise basis”.  The Court has a discretion to grant leave to appeal on the “or otherwise” basis, although the occasion to do so must be rare indeed.  This is not one of those rare cases.  As I have said, we have endeavoured to apply the law as laid down by the Court of Final Appeal in Agrila. This is not a case where I would grant leave to appeal on any discretionary basis.

11.  Mr Kat has also referred us to the case of Solicitors v Law of Society of Hong Kong & The Secretary for Justice (Intervener) (2003) 6 HKCFAR 570 which concerned the constitutionality of provisions which imposed an absolute bar on appeal to the Court of Final Appeal.  We are not concerned with an absolute bar.  As Chief Justice Li pointed out in para. 36 of the judgment, although it had not been argued before them in that case, that the limitations on appeal imposed by the Court of Final Appeal Ordinance were impermissible, they were plainly valid:

“… Indeed, it could be argued that further limitation may be valid; …”

12.  So I do not believe that it can be said that the interpretation of section 22(a) and (b) given by the Appeal Committee in these cases (China Field and Happy Dragon) could be said to be impermissible.

13.  For the above reasons, I would refuse leave to appeal.  The application is dismissed with costs.

Hon Kwan JA:

14.  I agree.

Hon A Cheung J:

15.  I agree.