CHOI LEUNG KONG v. DIRECTOR OF LANDS

IN THE COURT OF APPEAL

1996, No. 201

(Civil)

______________

______________

______________

J U D G M E N T

______________

Liu JA:

1. The appellant Mr Choi is the sole proprietor of a workshop known as Hop Kee Iron Work formerly situated at No. 22, Ground Floor, Wang Cheung Street, Ma Tau Kok.

2. On 3 October 1992 the property reverted to the Crown pursuant to a Notice of Resumption. The applicant was allowed to carry on with his business at the premises rent free until April 1994 when he and his workshop were evicted.

3. The applicant applied to the Lands Tribunal for compensation under the provisions of the Crown Land Resumption Ordinance.

4. On 23 May 1996 he was awarded $3,010,000 by way of compensation. In June 1996, he sought a review. In September 1996, his review was dismissed by the Lands Tribunal.

5. By his Notice of Appeal dated 14 October 1996, the applicant seeks to bring the matter on appeal to this court. The Director of Lands, the respondent in these proceedings, objects to the Notice of Appeal on the ground that it discloses no arguable point of law. Section 11(2) of the Lands Tribunal Ordinance Cap. 17 permits an appeal only on an error of law. The applicant has had ample opportunity to amend his Notice of Appeal. He has been constantly reminded to effect an amendment to incorporate an arguable point of law in his notice. A long time has elapsed and the Notice of Appeal of the appellant stands, as it was, unamended. It cannot be said that it was a mere oversight to take advantage of the opportunity offered to him to amend. In the circumstances, the failure to amend is clearly deliberate.

6. The applicant has, nevertheless, filed a document entitled "Skeleton Argument for Use in Application for Appeal". That was filed on the 13 March 1997. Despite a recent reminder, the applicant, as I said, has not made any endeavours to amend his Notice of Appeal.

7. Three grounds are set out in his Skeleton Argument. The first concerns discretion for calculating the amount of compensation. The second raises the issue that the Tribunal failed to include some loss of profits. The third ground touches upon his complaint that the discount rate used by the Tribunal should have been by reference to the 4-5% in personal injury cases. All these three points relate to what has been described as the calculation approach of the Tribunal. Ignoring irrelevancy, they do not seem to take the ground set out in his Notice of Appeal any further. His ground of appeal reads:

"The ground for review is that the calculation approach can not fulfill the fundamental principle of compensation which is to put the party who was suffered (sic) in the same position he would have been if he had not sustained the damage due to resumption."

8. Properly analysed, the appellant's complaint is that the tribunal's approach to calculation failed to meet the requirements of the fundamental principle for awarding compensation. The appellant does not identify the fundamental principle which he seeks to uphold. His ground merely sets out, if that principle had been applied, the end-product which is an award to place the appellant in the same position as if he had not been affected by resumption.

9. The appellant must be claiming to have been under-compensated, but by itself an inadequate award would not necessarily reflect a breach of fundamental principle, whatever that is. Evidently, more causes than one could lead to an inadequate or low award.

10. In any case, the purported ground of appeal does not specify what requirement of the alleged fundamental principle the compensation awarded failed to meet. Without condescending upon particulars as to what the alleged fundamental principle is and how it is said to have been ignored, the ground fails to disclose any error of law in the tribunal's decision for appeal.

11. In effect, the purported ground of appeal does not raise any point of law for our consideration. In our view, the purported ground of appeal is not appealable and this appeal is not competent. The applicant has not taken advantage of the opportunity offered to him to amend his Notice of Appeal. The long lapse of time has ruled out any possibility of an oversight. His inaction in the circumstances must be taken as being deliberate. No further indulgence can be granted. This court has time and again struck out a Notice of Appeal which gives no or no sufficient grounds. Accordingly, the appellant's Notice of Appeal is struck out as is his appeal.