CHINA HERO INVESTMENTS LTD v. DIRECTOR OF LANDS

LDLR 2/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Resumption Application No. 2 of 2000

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D E C I S I O N

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1. This is an application by the Applicant for five "points of law" to be disposed of at a preliminary hearing, pursuant to Rule 18 of the Lands Tribunal Rules. Rule 18 reads: -

"(1) The President or a presiding officer may, on the application of any party, order any point of law which it is within the jurisdication of the President or a presiding officer to decide and which appears to be in issue in the proceedings to be disposed of at a preliminary hearing before the President or a presiding officer.

(2) ......................"

2. In order to be able to dispose of these "points of law", I have to decide whether they appear to be in issue in the proceedings. In this regard it is essential to examine the respective cases pleaded by the parties. The Applicant's Notice of Application states as follows: -

"We ................ require the Lands Tribunal to determine the amount of compensation to be paid in respect of the resumption of Lots Nos.759 (Portion), 764RP (Portion), ................. all in D. D. 104 formerly owned by the Applicant because an offer made under section 6(1)(a) of the Lands Resumption Ordinance had been rejected. A statement of particulars required by Rule 34(3) of the Lands Tribunal Rules is attached herewith."

2.1 The statement of particular reads: -

"(a)	description of the land resumed
	Lots Nos.759 (Portion), 764RP (Portion), ...... all in D. D.104
(b)	the estates or interests therein to which the proceedings relate
	The Applicant is the sole registered and beneficial owner holding the legal estate of the land resumed
(c)	an estimate of the amount of compensation which the Applicant considers is in issue in the proceedings
	The compensation for the land resumed should be calculated at the rate of HK$600.00 per square feet. The amount of compensation should thus amount to HK$32,878,800.00 (i.e. HK$600.00 x 54,798.00)"

2.2 The Respondent opposes the application on the following grounds: -

"(i) The Applicant is not entitled to claim compensation in respect of the resumption of Lot Nos. 759 (Portion); 764 RP (Portion); ............. all in Demarcation District 104 ("the Lots") unless the Applicant could qualify as "former owner" establish its ownership and title to the Lots immediately before resumption and the loss and damages, if any, if suffered due to the resumption of the Lots within the meaning of the Land Resumption Ordinance Cap. 124; and

(ii) Without prejudice to (i), the Applicant's claim in respect of the Lots is excessive.

The facts relied upon by the Respondent in chronology are as follows: -

Date	Event
5.7.1999	The Notice G.N. 3843 gazetted the resumption of the Lots.
8.11.1999	By letter, Government offered to the Applicant a sum in full and final settlement of all claims, costs and demands which the Applicant may have arising out of or in connection with the said resumption
15.11.1999	Applicant rejected Government's offer.
	As from 14.7.2000, by correspondence between the solicitors acting for the Respondent and the Applicant, the parties commenced the process of having the Applicant attempting to show it had a good title to the Lots before the resumption and the Applicant failed to show a good title."

3. The first "point of law" to be disposed of is: -

"(1) Whether upon a true construction of Sections 2 and 6(1)(a) of the Lands Resumption Ordinance, Cap. 124 ("the Ordinance"), it is correct in law to state that a person is a "former owner" within the meaning of Sections 2 and 6(1)(a) of the Ordinance in relation to land resumed by the Government of the Hong Kong Special Administrative Region ("the Government") if that person had been registered in the Lands Registry as the sole owner in respect of the land immediately before the land reverted to the Government under Section 5 of the Ordinance."

3.1 Under Section 2 of the Lands Resumption Ordinance ("the Ordinance"), "former owner" means, "in relation to land resumed by the Government, the person who was the owner of the land immediately before the land reverted to the Government under section 5", and "owner" means "the person registered or entitled to be registered in the Land Registry in respect of any land sought to be resumed, or, if such person is absent from Hong Kong, or cannot be found, or is bankrupt or dead, his agent or representative in Hong Kong".

3.1.1 Section 6(1)(a) of the Ordinance provides: -

"(1) Within a period of 28 days from the date on which land reverts to the Government under section 5, the Authority shall-

(a) write to the former owner and to any person having an estate or interest in the land immediately before reversion under an instrument registered in the Land Registry, making an offer of compensation in respect of the resumption of the land;"

3.1.2 The Respondent only alleged that the Applicant is not entitled to claim compensation in respect of the resumption of the Lots in question unless it could establish its ownership and title to the Lots and that it suffered loss and damages due to the resumption of the Lots. In other words, if the Applicant could do so, it is entitled to claim compensation in respect of the Lots. The Applicant stated that the Respondent required the Applicant to prove beyond what is required to be proved under the Ordinance, namely, the fact that it possesses the status of a "former owner" within the meaning of section 2 of the Ordinance. But the Respondent has not raised any dispute on the statutory definition of "former owner". Establishing ownership and title is a matter of evidence, and it may be one of the ways to establish a person's status as a "former owner" within the meaning of section 2 of the Ordinance. Therefore there does not appear to be any issue between the parties regarding the meaning of "former owner".

3.2 The second "point of law" is: -

"(2) Whether upon a true construction of Sections 2, 6(1) and (3) of the Ordinance, it is correct in law to state that where a person (being the Applicant in the present application) has been registered in the Land Registry as the sole owner in respect of the land immediately before the land reverted to the Government under Section 5 of the Ordinance, the Authority (being the Respondent in the present application) is not empowered under the Ordinance to deny that person's entitlement to statutory compensation in respect of the resumption of the land."

3.2.1 Section 6(1) and (3) of the Ordinance provides: -

"(1) Within a period of 28 days from the date on which land reverts to the Government under section 5, the Authority shall -

(a) ..................

(b) serve on any of the persons referred to in paragraph (a) a notice in such form as the Authority may specify, requiring him to submit his claim for compensation within the time stipulated in such notice.

(2) ........................

(3) if -

(a) a person to whom an offer has been made under subsection (1)(a) does not accept the offer within 28 days from the date thereof; or

(b) a person on whom a notice had been served under subsection (1)(b) -

(i) does not submit his claim within the time stipulated therein; or

(ii) submits his claim but he and the Authority do not agree as to the amount of compensation,

such person or the Authority may then refer the matter to the Lands Tribunal for determination of the amount of compensation to be paid."

3.2.2 This "point of law" does not appear to be in issue between the parties, because what the Respondent is saying in point (i) of the Amended Notice of Opposition is that if the Applicant can establish its ownership and title to the Lots and the loss and damages suffered due to the resumption of the Lots, it is entitled to claim compensation.

3.2.3 The provisions of section 6(1) and (3) of the Ordinance do not deal with the matter as to whether the Authority is empowered to deny a person's entitlement to statutory compensation. Therefore the second "point of law" cannot be grounded on these provisions.

3.3 The third "point of law" is: -

"(3) Whether upon a true construction of Sections 2, 6(1)(a) and (3) of the Ordinance, it is correct in law to state that where the Authority (being the Respondent in the present application) has written to a "former lessee" (being the Applicant in the present application) of the land resumed by the Government, making an offer of compensation under Section 6(1)(a) of the Ordinance in respect of the resumption of the land and where that "former lessee" has established his status as a person registered in the Land Registry as a sole owner in respect of that land immediately before the land reverted to the Government under Section 5 of the Ordinance, the Authority is under a statutory duty imposed by Section 6(1)(a) and (3) of the Ordinance to pay compensation to that person, the amount of which is to be determined by the Lands Tribunal if not agreed between the Authority and such person."

3.3.1 Section 6(1)(a) of the Ordinance deals with the making of an offer by the Authority, whereas subsection (3) deals with the circumstances under which the matters specified under that subsection may be referred to the Lands Tribunal. These provisions do not deal with the matter as to whether the Authority is under a statutory power to pay compensation to any person. Therefore the "point of law" cannot be grounded on sections 2 and 6.

3.4 The fourth "point of law" reads: -

"(4) Whether upon a true construction of Section 6(1)(a) and (3) of the Ordinance, it is correct in law to state that where a person (being the Applicant in the present application) to whom an offer for compensation has been made under Section 6(1)(a) of the Ordinance did not accept the offer and where that person, being a person who had been registered in the Land Registry as the sole owner in respect of the land immediately before the land reverted to the Government under Section 5 of the Ordinance, referred the matter to the Lands Tribunal for determination of the amount of compensation to be paid pursuant to Section 6(3) of the Ordinance, the Lands Tribunal is under a statutory duty imposed by Section 6(1)(a) and (3) of the Ordinance to make an order for compensation and to determine the amount of compensation to be paid to that person."

3.4.1 Section 6(1)(a) and (3) of the Ordinance deals with the matter of offer for compensation and reference of the matters specified in subsection (3) to the Lands Tribunal. It does not deal with the statutory duty of the Lands Tribunal to make an order for compensation. The provisions relating to the determination of compensation made by the Lands Tribunal are sections 10 and 12. Therefore section 6(1)(a) and (3) cannot give rise to the fourth point of law.

3.5 The fifth point of law reads: -

"(5) If the answers to (2), (3) and (4) are in the negative, whether upon a true construction of Section 6(1)(a) and (3) of the Ordinance, it is correct in law to state that where a person (being the Applicant in the present application) to whom an offer for compensation has been made under Section 6(1)(a) of the Ordinance referred the matter to the Lands Tribunal under Section 6(3) of the Ordinance for determination of the amount of compensation to be paid and where the person has been registered in the Land Registry as a sole owner in respect of the land immediately before the land reverted to the Government under Section 5 of the Ordinance, the burden of proof is on the Authority (being the Respondent in the present application) to prove that that person did not possess a good and valid title to the land immediately before the land reverted to the Government where the Authority disputes or denies that person's entitlement to compensation under the Ordinance in respect of the resumption of the land."

3.5.1 Section 6(1)(a) and (3) of the Ordinance does not deal with any matter relating to the burden of proof. Therefore the fifth point of law cannot be grounded on this section.

4. Due to the reasons given above, I decide that all the points of law are not points of law properly raised by the Applicant for the purpose of disposal pursuant to Rule 18 of the Lands Tribunal Rules, and accordingly they should not be disposed of in these proceedings. I therefore dismiss the present summons, with costs to the Respondent (with certificate for Counsel) to be taxed, if not agreed, on High Court Scale.