CHAN YIN KWAN v. WONG KAM HOI

[English Translation – 英譯本]
CACV 223/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 223 OF 2007

(ON APPEAL FROM LDPD No. 2566 OF 2006)

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REASONS FOR JUDGMENT

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Hon Chu J (delivering the Reasons for Judgment of the Court):

1. On 8 June 2007 the Lands Tribunal made an order for transfer of the Applicant’s application to the District Court, and on 5 July 2007 the Tribunal dismissed her application for review. She now appeals against those decisions, seeking to have them set aside. She also applies for an order requiring the Respondent to pay all the arrears of rent since 1 December 2003, failing which the Applicant is entitled to repossess the property in question.

2. After hearing, we allowed the appeal and gave judgment for the Applicant on her application in the Lands Tribunal. We now set out the reasons for our judgment.

Facts of the case

3. The Applicant is the owner of a property situated at Rear Block, 2/F, No. 86 Java Road, Hong Kong (hereinafter “the Property”). The Respondent is the tenant of the Property. On 20 April 2003 the parties signed a tenancy agreement in Chinese for the lease of the Property for a period of two years from 1 May 2003 and to 30 April 2005 and at a monthly rent of $3,800. The agreement also stipulated that the Respondent would be responsible for paying all miscellaneous charges, water and electricity charges, and cleaning fees.

4. The undisputed fact is that, upon expiry of the tenancy agreement, the parties did not enter into a new tenancy agreement and the Respondent did not move out of the Property. To date, the Respondent is still residing in the Property.

DCCJ 809/2004

5. The Applicant through her solicitors commenced civil proceedings in the District Court (DCCJ 809/2004) on 16 February 2004, seeking to recover from the Respondent all the arrears of rent since 1 December 2003 and to repossess the Property.

6. The Respondent filed a Defence and Counterclaim. In essence, the Respondent pleaded that the Applicant had breached an implied term of the tenancy agreement by failing to ensure that the Property was fit for habitation. The Respondent complained about water leakage, water seepage and cement plaster falling off in the Property which had caused injuries to his family and foreign domestic helper. The Respondent also alleged that he was barred from using the elevators as the Applicant did not pay the relevant electricity charges. The Respondent complained, inter alia, that the Applicant and the tenant of the Front Block defaulted in paying the water and electricity charges, and that the Applicant did not pay the stamp duty for the tenancy agreement. The Respondent counterclaimed for damages in the sum of $48,918 which included compensation for injuries to his family and domestic helper, costs of repairing the ceiling and outer wall of the kitchen and changing the water pipes in the Property, arrears of the water and electricity charges that the tenant of the Front Block failed to pay, and one half of the stamp duty on the tenancy agreement. The Respondent also claimed $11,400 being compensation for moving out of the Property and reasonable expenses for finding alternative accommodation during the period of repair work to the Property. The Respondent further demanded the Applicant to settle all the outstanding water charges and carry out repair and maintenance work on the Property.

7. The Applicant filed a Reply and Defence to Counterclaim, and thereafter both parties filed their Lists of Documents and witness statements.

8. In September 2004, the Applicant took out two summonses, applying to amend the Statement of Claim and seeking interim payment from the Respondent. The Respondent then took out a summons seeking judgment in his favour by reason of the Applicant’s failure to comply with directions of the Court. The Applicant’s application to amend the pleading and the Respondent’s application were adjourned for hearing on a date to be fixed, and the Applicant’s application for interim payment was adjourned sine die. However, neither the Applicant nor the Respondent fixed a hearing date for their summonses.

9. On 20 September 2006, the Applicant ceased to be legally represented. On the same day, she took out a summons to discontinue the proceedings. In her affirmation, the Applicant explained that in view of the Respondent’s default in paying rent since December 2003 and the expensive legal costs, she intended to bring the proceedings to an end. The Applicant also indicated that she would look to the Lands Tribunal instead to pursue her claim against the Respondent for recovery of the arrears of rent and repossession of the Property.

10. On 9 October 2006, the Applicant’s application for discontinuation of her claim against the Respondent was allowed by a Master in the District Court after hearing. She was also ordered to pay the Respondent’s costs.

LDPD 2566/2006

11. On 10 October 2006, the Applicant brought an action against the Respondent before the Lands Tribunal, seeking recovery of all the arrears of rent since 1 December 2003 and repossession of the Property. It is this action with which the present appeal is concerned.

12. The Respondent filed a Notice of Opposition on 26 October 2006. His defence was that the Applicant, having discontinued her claim in DCCJ 809/2004, had no legal basis to re-litigate the matter in the Lands Tribunal. The Respondent demanded that the Applicant’s application before the Lands Tribunal be struck out and also indicated that he would proceed with his District Court claim against the Applicant in respect of the economic loss and property damage that he sustained.

13. The Applicant’s application was first brought up for a call-over hearing in the Lands Tribunal on 22 December 2006. The case was fixed by Presiding Officer Wong of the Tribunal to be heard on 9 February 2007, and the parties were directed to file witness statements and other relevant documents before 2 January 2007. In compliance with the direction, the Applicant filed the witness statements and other documents on 2 January 2007. The Respondent, on the other hand, did not file any witness statement or document as directed. On 30 January 2007, he made an interlocutory application for an extension of time for filing of witness statements and an adjournment of trial. His application was fixed to be heard on 9 February 2007.

14. On 9 February 2007, Presiding Officer Yung of the Lands Tribunal dismissed the Respondent’s application but allowed him to give evidence without filing any witness statement in advance. Trial of the Applicant’s application then commenced. The Applicant first gave evidence on oath and was then cross-examined by the Respondent. After the Applicant adduced all the evidence, the Respondent then sworn and testified. However, in the course of giving evidence, the Respondent indicated that he had not brought along the documentary exhibits. Presiding Officer Yung then adjourned the trial to 14 March 2007.

15. However, on 14 March 2007, the Respondent did not attend trial. His domestic helper appeared on his behalf and asked for an adjournment on the basis that the Respondent had been hospitalized as he had met with an accident and suffered contusion injuries. Presiding Officer Yung therefore adjourned the trial to 28 May 2007 (Monday). He also ordered the Respondent to pay by 22 March 2007 interim rent/mesne profits since 1 October 2006 in the sum of $3,800 per month, such payment to be made to the Tribunal or made by way of transfer into the Applicant’s bank account.

16. The Respondent did not comply with the aforesaid order for the payment of interim rent/mesne profits. On 25 May, i.e. the Friday preceding the date fixed for the resumed trial, he made another interlocutory application seeking to set aside the orders of Presiding Officer Yung dated 14 March 2007, substitute the trial judge, adjourn the trial and extend the time limit for lodging an appeal against the Presiding Officer’s orders.  The interlocutory application was heard on 28 May 2007. Presiding Officer Yung refused to extend the time limit for appeal but agreed to have the case heard by another judge. He therefore made an order for retrial and fixed a new trial date. Thereafter, the Registrar of the Lands Tribunal re-fixed the case to be heard before Member Lo of the Tribunal on 8 June 2007.

17. Up to that stage, the trial date had been put off three times pursuant to the Respondent’s applications. At the same time, the Respondent did not comply with the order for payment of interim rent/mesne profits.

18. On the Saturday preceding the trial date of 8 June 2007, the Respondent made a third interlocutory application, seeking to have the following matters dealt with at trial:

(1) Setting aside the orders of 14 March 2007;

(2) Striking out the Applicant’s claim;

(3) In the event of dismissal of the application to strike out the Applicant’s claim, applying for an order requiring the Applicant to amend her Application so that the rent sought to be recovered was to be calculated from 10 October 2006; and

(4) In the event of dismissal of the application to strike out the Applicant’s claim, adjourning the trial for 30 days to enable the Respondent to apply for legal aid and provide the court with detailed legal opinion on the question of jurisdiction.

Trial on 8 June 2007

19. In response to the Respondent’s application, the Applicant filed a supplemental statement with the Lands Tribunal on 7 June 2007.

20. At trial on 8 June 2007, both the Applicant and the Respondent gave evidence on oath. The Applicant confirmed and adopted as evidence the contents of the two statements she previously filed. The Respondent also confirmed and adopted the affirmation annexed to his interlocutory application dated 2 June 2007.

21. In respect of the Respondent’s interlocutory application, the trial judge made the following decisions:

(1) The application to set aside the orders dated 14 March 2007 was dismissed. In other words, the order requiring the Respondent to pay interim rent/mesne profits was still in force;

(2) The application to strike out the Applicant’s claim was dismissed;

(3) The application for an order requiring the Applicant to amend the date from which the rent sought to be recovered was dismissed; and

(4) The application for adjournment of trial for 30 days to enable the Respondent to apply for legal aid was dismissed.

22. Put simply, the Respondent’s interlocutory application of 2 June 2007 was dismissed in its entirety.

The order to transfer the application to the District Court

23. The trial judge also made it clear that he disagreed with the Respondent’s argument that allowing the Applicant to continue with her claim for arrears of rent and repossession of the Property would result in “two trials over one case”. However, he took the view that the Applicant’s application should be transferred to the District Court for trial. The reasons for this are stated in paragraphs 29 and 30 of the Reasons for Decision dated 27 June 2007, which we set out below:

Reasons for the transfer to the District Court

29. However, one thing with which I agree is that, if the case is allowed to continue, as I am not in a position to deal with the counterclaim (and hence unable to determine if the Applicant should pay any damages to the Respondent, including questions such as whether the Respondent is under no obligation to pay rent for any period during which he has been refused entry to the Property, and whether such sum can be deducted from the arrears of rent), I will in the end not be able to determine the exact date since which the Respondent has defaulted in paying rent and the amount in default. The issues of fact in the present case are (i) the date on which the Respondent actually began to default in paying rent, and the net amount of rent in arrears after deducting certain sums (if necessary), and (ii) the date on which the tenancy between the parties was terminated in accordance with the relevant terms of the tenancy agreement. Having determined the above two issues, this Tribunal still has to grant relief to the Respondent pursuant to Section 21F of the High Court Ordinance (Cap. 4 of the Laws of Hong Kong) and order the Respondent to pay into this Tribunal by a specified date the adjudged amount of rent in arrears, failing which the Applicant shall be entitled to enforce the order for possession and recover all outstanding sums and costs. The abovementioned uncertainty will obviously affect the judgment in the present case.

30. Accordingly, I am of the view that the best approach is to transfer the present case to the District Court for trial.

24. In other words, the trial judge took the view that, in view of the Respondent’s counterclaim in DCCJ 809/2004, the trial judge would not be able to determine the actual period over which the Respondent defaulted in paying rent and the amount of rent in arrears, and would also face difficulty in granting the statutory relief against forfeiture to the Respondent. When the trial judge ordered that the matter be transferred to the District Court for trial, he did not give further directions on the future conduct of the case (for example, whether it would be heard together with DCCJ 809/2004).

Refusal to review the order

25. On 15 June 2007, the Applicant applied to the Lands Tribunal for a review of the decision to transfer the case to the District Court for trial. On 25 June 2007, the Applicant filed supplemental information in support of her objection to that order.

26. After hearing on 27 June 2007, the trial judge dismissed the application to review the decision to transfer the case to the District Court. In the Judgement delivered on 5 July 2007, the judge pointed out that the question of whether the case should be transferred to the District Court was never formally considered by Presiding Officer Wong or Presiding Officer Yung in the previous hearings and no order was ever made in that respect.  The trial judge also stated that the Respondent’s failure to comply with the order for payment of interim rent/mesne profits was irrelevant to the question of whether the case was to be transferred to the District Court. He commented that the Applicant herself could follow up the legal procedure for enforcing that order. He further stated that, following transfer of the case to the District Court, the Applicant could apply for an order for possession of the Property and seek recovery of the outstanding sums against the Respondent.

The Applicant’s appeal

27. The Applicant lodged the present appeal on 20 July 2007 and filed a Supplemental Notice of Appeal on 6 August 2007. The Applicant applied to this Court for the following orders:

(1) That the case should not be transferred to the District Court; and

(2) That the Respondent should pay rent in arrears since 1 December 2003, failing which the Applicant be entitled to repossess the Property.

28. The Applicant’s grounds of appeal can be summarized as follows:

(1) When the Applicant applied to discontinue DCCJ 809/2004 in the District Court, she expressly indicated that she would pursue the claims for arrears of rent and repossession of the Property in the Lands Tribunal. The Master also made it clear at that time that the Respondent could proceed with his counterclaim in the District Court.

(2) At the call-over hearing of the case in the Lands Tribunal on 22 December 2006, the Respondent raised the argument of “two trials over one case”, but Presiding Officer Wong indicated clearly that the Applicant was entitled to apply to the Lands Tribunal for recovery of the rent in arrears and repossession of the Property. However, the Respondent put forward the argument of “two trials over one case” again at the fifth hearing of the case and sought to have the case transferred to the District Court. Although the trial judge did not accept the Respondent’s argument, he transferred the case to the District Court.

(3) In respect of the material facts under item (i) in paragraph 29 of the Reasons for Decision, the trial judge failed to note that the Respondent never denied in the documents he filed with the Lands Tribunal that he had not paid rent since 1 December 2003 and that the Applicant was therefore entitled to repossess the Property on the basis of the arrears of rent. Should the Respondent’s counterclaim in the District Court succeed, he may seek recovery against the Applicant by way of separate proceedings.

(4) In respect of material facts under item (ii), they were not a relevant consideration because the Applicant’s claim for repossession and arrears of rent was based on the Respondent’s default in paying rent, as opposed to an action for repossession of the Property upon expiry of the tenancy.

The Respondent’s grounds for opposing the appeal

29. The Respondent was absent at the appeal hearing. He filed a document on 19 December 2007, seeking to be excused from attending the hearing by reason of his poor health and applying for leave to make submissions to this Court in writing so as not to hinder the appeal proceedings.

30. In his written submissions, the Respondent expressed support for the decision of the Lands Tribunal to transfer the case to the District Court and the reasons given therefor. He also submitted that there was nothing new in the Applicant’s grounds of appeal, which failed to show that the decision was erroneous.

31. The Respondent also objected to the Applicant’s application for an order that he should pay the rent in arrears and that the Applicant be entitled to repossess the Property on the basis of the arrears of rent. The Respondent contended that the Court of Appeal could only adjudicate on decisions made by a lower court and could not conduct a retrial in the place of the lower court or make a ruling that had not been made by the lower court.

Reasons for allowing the appeal

32. Section 8A of the Lands Tribunal Ordinance confers upon the Lands Tribunal a power to transfer to the District Court proceedings instituted before the Tribunal. The section provides as follows:

8A. Transfer of proceedings to the Court of First Instance or the District Court

(1) The Tribunal may transfer to the Court of First Instance or the District Court any proceedings instituted before the Tribunal which are within the jurisdiction of the Court of First Instance or the District Court, but which –

(a) are not within the jurisdiction of the Tribunal; or

(b) the Tribunal considers should in the interests of justice be so transferred.

(2) Proceedings may be transferred under subsection (1) at any stage.

(3) Where the Tribunal transfers proceedings under subsection (1) the practice and procedure of the Court of First Instance or, as the case may be, the District Court shall thereafter apply.

33. The order of transfer made by the trial judge on 8 June 2007 was obviously made pursuant to section 8A(1)(b). It was a discretionary decision with which the appellate court will not interfere under normal circumstances. In the present case, however, we conclude for the following reasons that the decision not to hear the Applicant’s application but to transfer it to the District Court should be set aside for being wrong in principle.

34. First, the Applicant’s application before the Lands Tribunal is for the recovery of rent in arrears or mesne profits since 1 December 2003 and for repossession of the Property on the basis of the Respondent’s default in paying rent. As the Lands Tribunal pointed out at the hearing on 8 June 2007 and previous hearings, it was open to the Applicant to make this application before the Lands Tribunal for the recovery of rent and possession of the Property after she discontinued the proceedings in DCCJ 809/2004.

35. Second, as the Applicant has repeatedly emphasized, nowhere in the Notice of Opposition or any of the other documents filed with the Lands Tribunal had the Respondent ever disputed or denied that he had not paid rent since 1 December 2003. Similarly, it was not in dispute that he had all along been residing in or occupying the Property. Although the term of tenancy as specified in the tenancy agreement between the parties expired long ago, and despite the Respondent’s allegation in his counterclaim in the District Court that the Property was not fit for habitation due to water seepage, leakage and stripping of cement plaster, the Respondent had never evinced an intention to terminate the tenancy or deliver possession of the Property back to the Applicant. As a matter of general legal principle, the Applicant, having leased or occupied the Property, is under an obligation to pay rent or mesne profits to the Applicant.

36. Regarding the Respondent’s counterclaim in DCCJ 809/2004, he is claiming for damages arising from the alleged breach of the tenancy agreement by the Applicant. If the counterclaim succeeds, the Applicant is of course liable to pay compensation, but it does not mean that the Respondent can continue to reside in or occupy the Property without having to pay any rent or outgoings. Therefore, in relation to the Applicant’s action for recovery of rent in arrears and repossession of the Property, the Respondent has failed to raise a defence recognized by the law.  For this reason, on 8 June 2007, having dismissed the Respondent’s interlocutory application, the Lands Tribunal should have proceeded with the trial of the Applicant’s application as scheduled.

37.  Furthermore, the rent in arrears or mesne profits from 1 December 2003 to the date of trial on 8 June 2007 already amounted to $163,400 ($3,800 x 43 months). The Counterclaim in DCCJ 809/2004 shows that the Respondent claims a sum of $48,918 being damages, a sum of $11,400 being compensation for future moving expenses, and an unspecified sum being accommodation expenses when future maintenance is done to the Property. It is apparent that the amount of the Respondent’s counterclaim is much lower than the arrears of rent or mesne profits that the Applicant is claiming. This also serves to show that the Respondent has no arguable defence to the Applicant’s claim.

38. Apart from this, the undisputed fact is that the Respondent had not complied with the order of the Tribunal on 14 March 2007 by paying interim rent/mesne profits to the Applicant. None of the Respondent’s many applications to set aside that order met with success. In the circumstances, the Applicant was entitled to apply to the Lands Tribunal for judgment in her favour by reason of the Respondent’s failure to comply with the order. Therefore, as mentioned above, the Lands Tribunal should on 8 June 2007 have proceeded with trial of the Applicant’s case after dismissing the Respondent’s interlocutory application.

39. The trial judge stated in his Reasons for Decision that in view of the Respondent’s counterclaim, he could not ascertain (i) the exact amount of the rent in arrears and for how long the Respondent defaulted in paying rent, and (ii) the date on which the tenancy agreement between the parties came to an end; and such uncertainty would in turn affect his adjudication on the Applicant’s application. With respect, we do not consider this to be a valid reason for having to transfer the case to the District Court.

40. On the analysis set out hereinabove, it would not be difficult for the Lands Tribunal to rule that the Respondent had defaulted in paying rent since 1 December 2003. The Respondent’s claim for damages and compensation was brought before the District Court (in DCCJ 809/2004), not the Lands Tribunal. Therefore, the Lands Tribunal only had to deal with the Applicant’s application for the recovery of rent in arrears and repossession of the Property. In considering the Applicant’s application, the Tribunal was not bound to consider and should not have considered the question of deducting part of the rent in arrears.

41. As regards the question of when the tenancy agreement between the parties came to an end, the Applicant had made it clear in her Statement of Claim in the former action DCCJ 809/2004 that, as the Respondent failed to pay rent and breached the tenancy agreement, she forfeited the Respondent’s tenancy on 16 February 2004 when the Writ of Summons was issued. The Applicant’s application to the Lands Tribunal for repossession was also made on the basis of the Respondent’s failure to pay rent. Therefore, the Respondent’s tenancy could be taken as forfeited latest by 10 October 2006 when the Applicant made the application.

42. The trial judge also made mention of the provisions in section 21F of the High Court Ordinance. Again, on the analysis set out hereinabove, the Respondent’s counterclaim in the District Court did not in any way hinder the Lands Tribunal in granting relief against forfeiture to the Respondent pursuant to Section 21F. Having ruled in favour of the Applicant, the Tribunal should have applied section 21F(3) and ordered the Respondent to pay all the rent in arrears/mesne profits into court within a specified period as a pre-condition for granting the relief. Furthermore, as the rent in arrears/mesne profits owed by the Respondent far exceeded the amount that he counterclaimed, the Tribunal should have ordered that part of the sum paid into court be released to the Applicant and that the balance be kept in the Tribunal until the conclusion of the counterclaim proceedings or pending further order by the court. This would have taken care of the legal rights and interests of both parties in a fair manner.

43. In summary, in deciding to transfer the case to the District Court for trial, the trial judge had in our judgment taken into account matters which were irrelevant to the Applicant’s application and had failed to consider some material facts which were undisputed and relevant. The reasons for his decision were therefore unsound in principle. Accordingly, we allow the Applicant’s appeal and set aside the order to transfer the case to the District Court.

Reasons for allowing the Applicant’s application

44. Section 13(4) of the High Court Ordinance provides as follows:

          For the purposes of and incidental to –

(a)     the hearing and determination of any appeal to the Court of Appeal; and

(b)    the amendment, execution and enforcement of any judgment or order made on such an appeal,

the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.

45. The retrial of the Applicant’s application would have been conducted on 8 June 2007 but for the decision of the trial judge to transfer the case to the District Court.  Before the trial judge made this decision, both the Applicant and the Respondent had taken oath and adopted the statements and other documents which they had filed. The Appeal Bundle that the Applicant has filed also contains all the documents and information filed by both parties with the Lands Tribunal.

46. As stated above, the Applicant’s application is simply for the recovery of rent in arrears and repossession of the Property. None of the documents or information that the Respondent filed with the Lands Tribunal discloses any ground that can constitute a defence to the application.

47. Furthermore, since the Applicant brought the application before the Lands Tribunal, trial of the case has been adjourned and cancelled on a number of occasions by the Respondent. At the same time, the Respondent has continued to use the Property since December 2003 without making any payment to the Applicant.

48. For the above reasons, we should exercise the powers conferred by section 13(4) of the High Court Ordinance and give judgment for the Applicant in her application before the Lands Tribunal.  The Respondent shall deliver vacant possession of the Property to the Applicant and pay to her interim rent/mesne profits, in the sum of $3,800 per month and calculated from 1 December 2003, until the time of delivery of vacant possession of the Property.  The Respondent shall also pay the Applicant’s costs in the proceedings, such costs being taxed forthwith at $1,000.

49. Pursuant to Section 21F of the High Court Ordinance, we grant relief against forfeiture to the Respondent. The aforesaid order for delivery of vacant possession will be vacated upon the complete fulfilment of the following two conditions by the Respondent:

(a) The Respondent shall, within 21 days from the date of service of the order of this Court on 21 December 2007, pay into the Lands Tribunal all the rent in arrears or mesne profits for the period from 1 December 2003 to 31 December 2007 (the amount being $3,800 x 49 months = $186,200(1)); and

(b) Commencing from January 2008, the Respondent shall pay $3,800 into the Lands Tribunal on the 1^st day of each month or, if it falls on a holiday, on the first working day of each month.

If the Respondent fails to fulfil either of the two aforesaid conditions, the Applicant shall be entitled to take out a writ of possession in the Lands Tribunal for the purpose of recovering vacant possession of the Property.

50. We also order that of the sum of $186,200(1) to be paid by the Respondent into the Lands Tribunal, $100,000 is to be released to the Applicant, and the balance is to be kept in the Lands Tribunal until the conclusion of the case DCCJ 809/2004 or until further order by the court. The monthly sum of $3,800 to be paid by the Respondent into the Tribunal is also to be released to the Applicant in full.

51. Both parties hereto are at liberty to apply to the Lands Tribunal for further directions on the enforcement of paragraphs 48 to 50 hereinabove.

Cost of appeal

52. We make no order as to costs of the appeal.

(1)     At the hearing on 21 December 2007, we miscalculated the amount to be $182,400. Subsequently in the sealed copy of the order, the amount of $186,200 was also wrongly stated as $182,400. We now apply Order 20 Rule 5 of the Rules of the High Court and amend the figures of $182,400 and $82,400 in paragraphs 4(3)(a) and (5) respectively of the Order dated 21 December 2007 to $186,200 and $86,200. The term “this Order” in paragraph 4(3)(a) should be understood as the Order dated 21 December 2007.

⁽¹⁾     At the hearing on 21 December 2007, we miscalculated the amount to be $182,400. Subsequently in the sealed copy of the order, the amount of $186,200 was also wrongly stated as $182,400. We now apply Order 20 Rule 5 of the Rules of the High Court and amend the figures of $182,400 and $82,400 in paragraphs 4(3)(a) and (5) respectively of the Order dated 21 December 2007 to $186,200 and $86,200. The term “this Order” in paragraph 4(3)(a) should be understood as the Order dated 21 December 2007.