YUK FONG INVESTMENT LTD v. DIRECTOR OF LANDS

LDLR 1/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LANDS RESUMPTION APPLICATION NO. 1 OF 2014

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J U D G M E N T

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Background

1. This is an application by the applicant for determination of compensation pursuant to section 10(2)(a) of the Lands Resumption Ordinance, Cap 124 (“the Ordinance”).  The applicant is the former registered owner of a property comprising altogether Shops F, G and H on Ground Floor of Chung Hing House, Nos 15-33 Yan Oi Court and Nos 18-32 Yan Shue Lane, Kowloon, Hong Kong (collectively referred hereinafter to as “the Property”).  The Property comprises altogether 6/74^th equal and undivided shares of and in Kwun Tong Inland Lot No 313 (“the Lot”) which was held on lease from Government under Conditions of Sale No 7542 dated 26 November 1962 (“the Government Lease”).

2. According to Mr Fong Yu Keung Peter (Mr Fong”), a director of the applicant, the Property was assigned to the applicant by his mother, Shum Yuk Fong, who acquired the Property in 1976.

3. Furthermore, according to Mr Fong, at the material time, the Property was subject to a tenancy agreement in favour of Chung Lai Kwan (“Chung”) as a tenant for a term of 4 years from 1 March 2010 to 28 February 2014 at a monthly rental of $75,000 for the first two years, $80,000 for the third year and $90,000 for the fourth year (“the Tenancy”).  The Tenancy was registered in the Land Registry vide memorial 10031802300014[1].

4. By a notice of resumption dated 13 February 2012 and published in GN 1296, the Government informed the applicant that the Lot would be resumed for implementation of the First Phase of the Kwun Tong Town Centre – Main Site Development Scheme by the Urban Renewal Authority (“URA”) after the expiration of 3 months from the date of the affixing of the notice.  The notice of resumption was affixed to the Property on 2 March 2012 and therefore the Property reverted to the Government at midnight on 2 June 2012.

5. Thus, as at the date of reversion, the Tenancy was in its third year and had some 21 months unexpired, with Chung paying a monthly rental of $80,000.  Then the Property was occupied by Chung as a restaurant under the trading name of Sun Nam Yuen Restaurant (新南苑海鮮飯店) (hereinafter referred to as “Sun Nam Yuen”).

6. The applicant received from the Government the offer of $25,607,000 dated 22 June 2012 which includes the value of the Property at $25,001,000.  The applicant did not accept the offer.  On 11 March 2014, the applicant filed a Notice of Application to Determine Compensation for Land Resumed under the Ordinance requiring the Lands Tribunal to determine the amount of compensation payable in respect of the resumption of the Property.

7. The applicant and the respondent have no dispute that under section 10(2)(a) of the Ordinance, the basis of compensation should be the market value of the Property as at the date of reversion, ie 2 June 2012.  This is dealt with first under the captioned trial before the amount of interest and professional fees under section 17(3) and 10(2)(e)(ii) respectively of the Ordinance being also claimed by the applicant could be settled.

The Evidence

8. Ms Jo CW Siu (“Ms Siu”) appears for the applicant and Ms Ms Teresa PC Wu (“Ms Wu”) appears for the respondent for the purpose of the present application.

9. On behalf of the applicant, Ms Sat Wei Ling (“Ms Sat”) produced an expert report on valuation dated 27 June 2014 assessing the market value of the Property in the total sum of $44,402,000 whereas Mr David Nicholas Faulkner (“Mr Faulkner”), on behalf of the respondent, produced an expert report on valuation dated 23 June 2014 assessing the market value of the Property in the sum of $27,967,000.

10. Furthermore, Ms Sat produced a supplemental expert report dated 29 August 2014 revising the market value of the Property to $44,406,000.  Mr Faulkner also produced a supplementary expert report dated 26 August 2014 however maintaining his valuation of the Property at $27,967,000 as at 2 June 2012.

11. In addition, Messrs Sat and Faulkner have prepared a joint statement dated 20 November 2015 (“the Joint Statement”) setting out the areas of agreement and disagreement basically on the particulars of the Property and the comparables to be referred to by the experts.

Particulars of the Property

12. According to an occupation permit No K102/66, Chung Hing House was completed in March 1966 with 10 shops on ground floor and 18 domestic units on each of 1/F to 3/F.  Developments in the vicinity comprised medium-rise to high-rise commercial/residential composite buildings.

13. According to the floor plans and photographs submitted as evidence by the parties, all the 10 shops, which were arranged in parade, fronted onto Yan Oi Court to the south with their rear abutting Yan Shue Lane.  Although the Government Lease prohibited any shop frontages or display windows on the side facing Yan Shue Lane[2], signage or placards were not prohibited and those of Sun Nam Yuen and its neighbouring mahjong parlour were conspicuously shown in the photographs or video (taken on 27 May 2012) produced by the respondent as evidence.

14. Yan Oi Court was a pedestrian lane branching off perpendicularly from Fu Yan Street which was a main local distributor running through Kwun Tong Town Centre (which was better known as Yue Man Square) leading upwards to the upper residential district of Kwun Tong.

15. Yan Oi Court itself may be divided into two sections: the lower section which ran directly off Fu Yan Street and further up through a flight of 10 steps an upper section running to its end which met a local bazaar to the northeast through another flight of 6 steps.  The Property was situated somewhere near the middle of the upper section the visibility of which from Fu Yan Street, according to the video produced by the respondent, was severely blocked by the many signboards, illegal structures and canopies erected along the lower section and at the beginning of the upper section.

16. Apart from Fu Yan Street and the bazaar (which is accessible mainly via Hip Wo Street, another main distributor leading from Kwun Tong Town Centre), the upper section of Yan Oi Court was also accessible by two alleyways[3], one leading from a regional bus terminal off Yue Man Square and another via Yan Shue Lane which was a cul-de-sac off Fu Yan Street where a public light bus terminal was also situated.  Further up Fu Yan Street and running perpendicular to it is Mut Wah Street which is a local distributor with shops on both sides serving as the main shopping area second only to Kwun Tong Town Centre.  

17. Despite its relatively secluded locality, according to the undisputed evidence of Mr Fong, Yan Oi Court, particularly its upper section whose accessibility is inhibited by the two flights of steps, was a popular food spot where his family had also operated a restaurant at the Property since the 70s until it was let to Sun Nam Yuen in March 2007; Sun Nam Yuen also ran similar restaurant business at the lower section occupying some 4 premises.

18. Also, it is undisputed that a popular mahjong parlour[4] as referred to in §13 above was situated next to the Property at 15-17 Yan Oi Court and there were video games centres on the other side of the Property at 27-31 Yan Oi Court whose customers would contribute to the patronage of the restaurant there.  Opposite to the Property across Yan Oi Court were also a pet shop, a model retail shop and other cafes or restaurants.

19. In addition, there is no dispute that in or about the end of 2008, the URA started issuing offers to the owners of the properties affected by the captioned resumption scheme.  For instance, by reference to a press release issued by URA dated 29 December 2008, the latter had issued “letters to owners of all 1,657 legal property interests of the Kwun

Tong Town Centre project on the purchase of their property interests”. Further, by reference to a press release issued by URA dated 30 March 2009, the latter had “acquired 1,088 property interests, or about 66 percent of the total 1,653 property interests, for the implementation of the Kwun Tong Town Centre project when the 90-day offer period lapsed today”.  This is further evidenced by the many sales of the domestic premises at Yan Oi Court in February or March 2009 to URA, summaries of which were produced as Exhibits A9 and A11 by the applicant.  I agree with the submission of the applicant that quite a number of people, at least insofar as the owner-occupiers of the domestic properties affected by the scheme, would have moved out by 2010 and more so by 2011.

20. In this regard, it is trite that any increase or reduction in value wholly due to the scheme has to be disregarded under the Pointe Gourde principle (which is denominated following the Privy Council decision in Pointe Gourde Quarrying and Transport Co v Sub-Intendent of Crown Lands [1947] AC 565).  Then, the effect or threat of a resumption scheme on pedestrian flow or the value of the Property should be disregarded.

21. The other particulars of the Property, inter alia, are agreed between the parties as per the Joint Statement as follows:

		Shop F	Shop G	Shop H	Total
Saleable Area  (sq m)	:	64.05	66.77	65.79	196.61
Yard (sq m)	:	5.67		3.29	8.96
Effective Area (sq m)		65.00	66.77	66.34	198.11
Clear Frontage (m) to Yan Oi Court	:	4.11	4.04	4.15
Depth (m)	:	15.2	15.2	15.2	15.2
Headroom (m)	:	3.18	3.3	3.3

The Comparables to be Adopted

22. Bothe experts agree to adopt Shop G as a reference unit initially in valuing the Property. Pursuant to the Joint Statement, the two experts adopt the following comparables for valuation purpose:

Ref No	Address	Date of Transaction	Consideration	Effective Area (sq m)	Frontage (m)	Depth (m)	Headroom (m)	Unit Rate (/sq m)
A2	G/F 17 Luen On Street	22 Feb 12	$26,330,000	85.04	5.15	14.0	5.5	$309,619
A3	Shop A, G/F, Lai Yue Building, 3 Horse Shoe Lane	12 Mar 12	$16,700,000	45.37	8.4	4.7	4.9	$368,085
A4/R2	Shop A, G/F, Hip Lee Building, 12-30 Hang On Street	25 Feb 12	$13,800,000	50.44	3.5	14.2	3.7	$273,592
					Side Lane 8.0
A5	Shop C, G/F, Yau Lee Building. 9-27 Yee On Street	7 Jun 12	$24,500,000	61.98	4.5	14.3	4.1	$395,289
A6/R1	Shop F, G/F, Wang Yip Building, 2-6 Ka Lok Street	5 May 12	$7,300,000	26.24	3.5	6.3	4.0	$278,201
A7/R4	Shop 4, G/F, Hopewell House, 138-164 Shui Wo Street	3 Jan 12	$7,280,000	28.30	3.1	7.1	3.8	$257,244
R3	Shop E, G/F, 27 Ka Lok Street, Shun King Building	9 Mar 12	$9,200,000	60.12	4.2	13.4	3.8	$154,358

* The comparables with the prefix “A” are those adopted by Ms Sat whereas the  

comparables with the prefix “R” are those adopted by Mr Faulkner.

23. From the above, it is manifest that the two experts have only 3 common comparables, ie comparables A4/R2, A6/R1 and A7/R4. They dispute against each other on the relevancy of the remaining comparables.

24. Notwithstanding the above, the two experts have set out the adjustment factors that they agreed to be relevant for the purpose of valuation. For some non-disputed adjustment factors, they could even agree on the degree of adjustment, a practice that should be highly encouraged. A summary of their views is set out below:

Adjustment Factors	Ms Sat	Mr Faulkner
Time	Private Retail Price Index of Rating and Valuation Department (“RVD”)
Location	-10% to -35%	-5% to -20%
Frontage	+/- 3% per 1 m difference	+/- 4% per 1 m difference
Layout (Depth)	+/- 1% per 1 m difference
Headroom	+/- 2% per 1 m difference
Quantum	+/- 1% per 2.5 or 5 sq m difference	+/- 1% per 4 sq m difference
Visibility	Reflected in the location adjustment	-30%

Adjustment for Visibility

25. At this juncture, it is noted that Mr Faulkner confirmed, during cross-examination, that his location adjustment is primarily concerned about pedestrian flow; he had assigned, in addition, a further adjustment for visibility as the Property might not be noticeable by the passers-by at Fu Yan Street.

26. Nevertheless, I agree, in this particular case, with Ms Sat that the adjustment for location should not be broken down as such.  In Bright Dragon Properties Limited v Director of Lands, LDLR 3/2007 (unreported, dated 8 August 2014), the Tribunal agreed with the expert for the applicant in that case, at §62, that “the adjustment for location should concern with the relative prosperity of the location of the premises and related considerations like pedestrian flows, juxtaposition of the premises, visibility and proximity to a particular destination, etc.”

27. More importantly, in Shapiro, Mackmin and Sams, Modern Methods of Valuation, 11^th edition, p 322, the location factor is explained as follows:

“Some of the most important points regarding retail location are: the class of the area; the type of street and the type of shopper; the position of the unit in the street; the proximity to any multiple stores or other “magnet” such as a department store; proximity to any breaks such as a town hall, bank or cinema; the relationship to the “prime” pitch – the location with the highest footfall; and proximity to car parks or public transport … Overall, consideration must be given to the catchment area and its spending power. ” (underline added)

28. Thus, to the extent that the upper section of Yan Oi Court is situated at a location the visibility of which from Fu Yan Street was blocked, this should be considered as “a type of street” to which the location adjustment should be applied.  I agree also with the comment by Ms Sat during examination-in-chief that Ka Lok Street, ie where Comparables A6/R1 and R3 are situated, is also a very quiet street of high vacancy rate where people outside the locality would be hesitant to go unless for a particular good reason or attraction.

29. In respect of the latter, I agree with the evidence of both Mr Fong and Ms Sat that the upper section of Yan Oi Court is a place of attraction by itself because it had evolved into an area with agglomeration of “street-side food stalls” well-known in the Kwun Tong Town Centre so that residents in the vicinity, commuters arriving at Yue Man Square or even workers at the former Kwun Tong District Government Office would go there for meal on purpose[5].  Here the number of patronizing customers would be more important than the mere passage of pedestrians which was however agreed to be low outside meal hours.

30. In the above regard, I take note of the photographs taken in the 1^st quarter of 2009 and enclosed in Bundle/14/209-210 which show the alfresco dining area outside the Property was well patronized[6]. This is further reinforced by another photograph produced as Exhibit A1 which though undated shows the alfresco dining area was nearly fully occupied.

31. In addition, I note in evidence that Ms Sat had inspected the Property during lunch hours (round 1.00 pm) and around 5.00 pm on different occasions in 2009 and 2010 after she learnt of the URA’s offers whereas Mr Faulkner had only conducted two site inspections in or about September or October 2008 and late May or early June 2012 not within meal hours.  According to Ms Sat, patronization of the eateries at the lower section of Yan Oi Court was full and there were also people eating at the alfresco dining area at the upper section.  By 2012 when most of the residents or occupiers around Yan Oi Court had already moved out, it is no doubt that pedestrian flow around the Property was relatively weak.  It is self-explanatory from the photographs and the video taken after the resumption date that a lot of shops were not open and the buildings there were largely empty.

32. Thus, while it might be correct for a -30% discount to reflect the difference in location (or visibility as termed by Mr Faulkner) between a shop situated at the lower section of Yan Oi Court near Fu Yan Street and the Property, I consider such adjustment by Mr Faulkner  not appropriate as regards the comparables whose locations are already second or third-tier.  Such a discount would have double-counted his location adjustment.

33. Then, having the adjustment on “visibility” been discarded, I set out below the various adjustments to each comparable proposed by Ms Sat and by Mr Faulkner (in parentheses) in the Joint Statement:

Ref	Value/m2	Adjustments							Adj Value/m2
		Time	Location	Frontage	Layout (Depth)	Head-room	Quantum	Total
A2	$309,619	15.1% (15.1%)	-30.0% (-40.0%)	-3.3% (-4.4%)	-1.2% (-1.2%)	-4.4% (-4.4%)	3.7% (4.6%)	-20.1% (-30.3%)	$247,386
A3	$368,085	11.0% (11.0%)	-15.0% (-25.0%)	-13.1% (-17.4%)	-10.5% (-10.5%)	-3.2% (-3.2%)	-4.3% (-5.4%)	-35.1% (-50.5%)	$238,887
A4/R2	$273,592	15.1% (15.1%)	-20.0% (-20.0%)	-6.4% (-8.5%)	-1.0% (-1.0%)	-0.8% (-0.8%)	-3.3% (-4.1%)	-16.4% (-19.3%)	$228,723
A5	$395,289	0.0% (0.0%)	-35.0% (-45.0%)	-1.4% (-1.8%)	-0.9% (-0.9%)	-1.6% (-1.6%)	-1.0% (-1.2%)	-39.9% (-50.5%)	$237,569
A6/R1	$278,201	3.8% (3.8%)	-10.0% (-10.0%)	1.6% (2.2%)	-8.9% (-8.9%)	-1.4% (-1.4%)	-16.2% (-10.1%)	-31.1% (-24.4%)	$191,680
A7/R4	$257,244	18.5% (18.5%)	-15.0% (-20.0%)	2.8% (3.8%)	-8.1% (-8.1%)	-1.0% (-1.0%)	-15.4% (-9.6%)	-18.2% (-16.4%)	$210,426
R3	$154,358	11.0% (11.0%)	0.0% (-5.0%)	-0.5% (-0.6%)	-1.8% (-1.8%)	-1.0% (-1.0%)	-1.3% (-1.7%)	6.4% (0.9%)	$164,237

Adjustment for Width of Yan Oi Court

34. Before I proceed further to consider the choice of comparables, particularly with regard to their respective locations when compared with the Property, I note Ms Wu for the respondent at one stage challenged Ms Sat that the upper section of Yan Oi Court was a mere pedestrian lane of narrow width where pedestrian flow would be affected so that an additional adjustment for location or otherwise should be applied.

35. However, by reference to the Sale Plan attached to the Government Lease, this upper section had a width as much as 10.36 metres (34 feet).  This is by no means narrow as far as a pedestrian precinct is concerned.  For instance, by reference to Reg 18A of the Building (Planning) Regulations, a “class A site” only requires “a site, not being a class B site or class C site, that abuts on one specified street not less than 4.5 m wide or on more than one such street”.  During the examination-in-chief, Ms Sat said she would allow an addition (上調) of 5% because it was a pedestrian precinct of considerable width. Nevertheless, I do not consider any additional adjustment would be required to reflect this if the pedestrian flow thereof can be taken into account by the location factor.

Adjustment for Location and the Choice of Comparables

Comparable A2

36. This comparable is situated on the western side of Luen On Street close to its junction with Yee On Street, opposite the Yee On Street Market complex[7]. It is currently occupied also as a restaurant like the Property.

37. Mr Faulkner comments that its location is more prominent and had much better trading potential when compared with the Property. However, to the extent that the Property is situated behind a market bazaar and its accessibility thereto was conceded by Mr Faulkner during cross-examination that he had overlooked[8], I consider this comparable suitably adopted, though its location may offer more variety of trades. More particularly, when Mr Faulkner conceded that he would add back some 10% for his oversight on accessibility of the Property and some 1-2% for the agglomeration effect of the food trades[9], I consider the adjustment of -30% for location as proposed by Ms Sat near the mark.

Comparable A3

38. This comparable is situated at a relatively quiet location underneath a residential development, Lai Yue Building[10]. The location is isolated and pedestrians walking along Ngau Tau Kok Road have to turn onto Horse Shoe Lane on purpose. According to the evidence of the experts, this comparable was previously occupied by a restaurant. Looking around, I can only find few trading activity though a service centre of the Hong Kong Federation of Trade Unions is also housed within Lai Yue Building; this latter attribute might provide additional patronage to the former restaurant.

39. Mr Faulkner points out that this comparable or Lai Yue Building is close to a pedestrian subway connecting to the business area across Kwun Tong Road.  During our on-site inspection, I found the traffic of the subway is not busy and people coming from the business area might just be interested in getting to the bus stops off the exit instead of walking up a long flight of steps to Horse Shoe Lane where this comparable is situated.

40. In addition, this section of Kwun Tong Road on the side of Property has no shops or other development save a petrol filling station. In contrast, there are MTR exits on the other side of the business area, the Millennium City etc and many other crossings are also available away from this comparable so that people may cross Kwun Tong Road without resorting to just the subway mentioned above.  I am neither persuaded that people would make their way from this comparable to the Kwun Tong MTR station; more likely, they would go along the other crossings via Ngau Tau Kok Road.

41. All in all, I find the location of this comparable is not particularly attractive despite the above attributes.  This might explain why the former restaurant there has given its way to a shop selling paints or paint-related products during our joint site inspection.  I consider this comparable also appropriate and I adopt the adjustment for location proposed by Ms Sat, ie be -15% instead of -25% proposed by Mr Faulkner, taking into account in particular the concession by Mr Faulkner as stated in §37 above.

Comparable A4/R2

42. This comparable is also occupied by a restaurant but at a very quiet location which is accessible via a steep slope along Luen On Street or Tung Ming Street.  In addition, it is also accessible via a long flight of steps next to it leading from Yee On Street.

43. Although both experts assigned an adjustment of -20% for location, I consider this comparable should be no better than comparable A3.  Again, taking into account the concession by Mr Faulkner as stated in §37 above, I consider an adjustment of -10% for location would be more appropriate.

Comparable A5

44. In comparison, this comparable at Yee On Street is at a much better location where a public light bus station is situated on the side of the comparable and another one across the street.  The pedestrian flow is also much heavier.  Despite the above, I consider this comparable can be adopted subject to location adjustment.  Taking into account the concession by Mr Faulkner as stated in §37 above, I adopt the adjustment of -35% for location as proposed by Ms Sat instead of the -45% proposed by Mr Faulkner.

Comparable A6/R1 and Comparable A7/R4

45. Ms Sat did not adopt comparable A6/R1 or comparable A7/R4 as a comparable in her first valuation report dated 27 June 2014. She explained in her supplemental expert report dated 29 August 2014 that these two comparables have an effective area of mere 26.24 sq m or 28.30 sq m which is significantly small when compared with the reference unit, ie Shop G of the Property at 66.77 sq m.  She only gave half weighing to these two comparables in her revision then.

46. I agree with Ms Sat that less weights should be given to  comparable A6/R1 or comparable A7/R4 because the significant differences in area might result in the comparables serving different kind of trades or markets and arbitrary adjustments in terms of quantum might be required.

47. As commented earlier in §28 above, Ka Lok Street was a very quiet street. I note comparable A6/R1 was occupied by an environmental recycling workshop but it has become occupied by a furniture store; its neighbouring Shop G was vacant during our joint inspection.  Nevertheless, it is obliquely opposite an off-course betting centre of the G/F, Shui Wo House, 35-43 Ka Lok Street, Kwun TongHong Kong Jockey Club G/F, Shui Wo House, 35-43 Ka Lok Street, Kwun Tong/F, Shui Wo House, 35-43 Ka Lok Street, Kwun Tongat G/F, Shui Wo Building, 35-43 Ka Lok Street near its junction with Shui Wo Street.

48. Comparable A7/R4 is situated away from the busy wet market area along Shui Wo Street and is further up the street from the off-course betting centre. It was occupied by a shop selling gas stoves and LPG related appliances but has been replaced by a furniture design showroom. There exists no shop on the opposite side of the street as it is effectively facing a slope.

49. Taking into account the concession by Mr Faulkner as stated in §37 above, I would adopt the adjustments for location, ie -10% for comparable A6/R1 and -15% for comparable A7/R4 as proposed by Ms Sat.

Comparable R3

50. Ms Sat objects strongly against adopting this transaction as a comparable because the transaction price at $154,358/sq m is substantially lower than that of the other comparables even after making appropriate adjustments. In addition, around the relevant period, ie as at 25 February 2011, Shop G, G/F (including the cockloft thereof) of 47 Ka Lok Street, with an effective area about 76.3 sq m, was sold for $15,260,000, ie about $200,000/sq m. This shop unit was then resold for $22,000,000 ie about $288,336/sq m on 1 June 2011.[11]

51. Another sale evidence proffered by Ms Sat during trial was in respect of Shop G, G/F, 2-26 Ka Lok Street, ie the vacant shop next to comparable A6/R1, which was sold on 21 May 2012 for $8,880,000 and resold on 6 July 2012 for $10,160,000.  As the shop unit has a saleable area about 33.26 sq m, the unit prices were around $266,995/sq m or $305,481/sq m respectively.  This further evidence certainly has a probative value on whether this comparable should be adopted.

52. By reference to the above information and analysis, I agree that the transaction of Comparable R3 is out of tone with the market and should be discarded as comparable.

Adjustment for Frontage

53. I note in Eltron Development Limited v Director of Lands, LDLR 4 of 2013 (unreported, dated 21 August 2015) (“Eltron”), in which the market value of a property resumed under the same scheme was in dispute, the same experts before me agreed the adjustment to be +/- 4% per 1 m difference, ie the same as proposed by Mr Faulkner in the present case.

54. In Eltron, the frontages of the sub-divided units were about 2.51 metres or 2.79 metres although the total frontage would be in the sum of 5.4 metres which is close to Shop G under reference. However, in comparison, the Property is situated in a secondary or even tertiary location where minor frontage difference would not affect the value as much. I therefore adopt the adjustment of +/- 3% per 1 m difference proposed by Ms Sat.

Adjustment for Quantum (Size)

55. The only other difference in opinion between the two experts is the adjustment for quantum: +/- 1% per 5 sq m difference by Ms Sat[12] and +/- 1% per 4 sq m difference by Mr Faulkner.

56. I note that in her first valuation report dated 27 June 2014, Ms Sat originally adopted +/- 1% per 6 sq m difference. That is, Ms Sat has made a minor concession.

57. Again as the Property is situated in a secondary or even tertiary location where minor frontage difference would not affect the value as much, I agree with the +/- 1% per 5 sq m difference by Ms Sat.

The Valuation

58. Having conducted the above analysis, I set out below the analysed result of all the comparables that are adopted (including comparable A6/R1 and comparable A7/R4):

Ref	Value/m2	Adjustments							Adj Value/m2
		Time	Location	Frontage	Layout (Depth)	Head-room	Quantum	Total
A2	$309,619	15.1%	-30.0%	-3.3%	-1.2%	-4.4%	3.7%	-20.1%	$247,386
A3	$368,085	11.0%	-15.0%	-13.1%	-10.5%	-3.2%	-4.3%	-35.1%	$238,887
A4/R2	$273,592	15.1%	-10.0%	-6.4%	-1.0%	-0.8%	-3.3%	-6.4%	$256,082
A5	$395,289	0.0%	-35.0%	-1.4%	-0.9%	-1.6%	-1.0%	-39.9%	$237,569
A6/R1	$278,201	3.8%	-10.0%	1.6%	-8.9%	-1.4%	-16.2%	-21.1%	$191,680
A7/R4	$257,244	18.5%	-15.0%	2.8%	-8.1%	-1.0%	-15.4%	-18.2%	$210,426
Average:									$230,338
Average (excluding A6/R1 and A7/R4):									$244,981

59. Should I follow Ms Sat’s approach in giving half weighing to A6/R1 and comparable A7/R4 however, the average would have become $236,195/sq m.

Market Value on Vacant Possession Basis

60. From the above analysis, I accept the unit value of Shop G as at 2 June 2012 was $236,000/sq m on the basis of vacant possession.

61. As the size and layout of Shop F, Shop G and Shop H are broadly similar, and Shop F and Shop H directly abutted Shop G on both sides, I am prepared to adopt the same unit rate to value Shop F and Shop H as well.  Thus, based on the total effective area agreed by the two experts[13], the market value of the Property was:

198.11sq m x $236,000/sq m =$46,753,960

Reinstatement Cost

62. The valuation above is conducted on the basis of 3 separate shops.  Mr Faulkner is of the opinion that reinstatement costs about $30,180 should be deducted therefore to convert the Property back into 3 shops. I agree and the valuation should become:

$46,753,960 - $30,180 =	$46,723,780
Say	$46,700,000

Market Value Subject to Tenancy

63. As stated in §§3 and 5 above, as at the date of reversion, the Property was subject to the Tenancy with some 21 months unexpired, with Chung paying a monthly rental of $80,000.

64. Ms Sat, therefore, proceeds to value the Property by the Term and Reversion method below, making reference to the retail yield of 2.6% as published by the Rating and Valuation Department:

Term One:	2 June 2012 to 28 February 2013
Monthly Rent			$80,000	per month
		x	12
			$96,000	per year
YP@2.4% for 0.74722 year			0.731892
					$702,617
Term 2:	1 March 2013 to 28 February 2014
Monthly Rent			$90,000	per month
		x	12
			$1,080,000	per year
YP@2.6% for 1 year		0.974659
PV@2.6% in 0.74722 year		0.981003
			0.956143
					$1,032,635
Reversion to Market Value			$44,847,678*
PV@2.6% in 1.74722 years			0.956144		$42,880,838
				Total	$44,616,090

   * Ms Sat had revised the market value of the Property on vacant possession basis to $44,847,678  in the Joint Statement.

65. Mr Faulkner had also conducted some sort of assessment on the basis that the Property was subject to the Tenancy as at the relevant date but during cross-examination, he abandoned all his evidence on such basis save for maintaining that the market rent of the Property was $90,000 per month.

66. Without going further onto commenting on whether the calculation or the adoption of 2.4% or 2.6% as the proper yields is correct, by reference to the valuation in §64 above, it is manifest that the resulting value of the calculation is predominated by whatever value adopted on the basis of vacant possession, the difference being less than 1%.

67. More importantly, the Tenancy was entered into by the parties in March 2010 under threat of the intending resumption.  See §19 above. Then the effect or threat of a resumption scheme on market rent was liable to occur from the date of formal public notification[14].

68. In addition, in the Third Schedule to the Tenancy, there is a clause relating to “Compulsory Resumption by Government and or Sale to Urban Renewal Authority” whereby:

“(A) In the event the Government issues notice to the Landlord and/or Tenant with the intention to resume the premises and on handing over possession of the same to the Government then this term of the tenancy shall forthwith be terminated and neither party shall have any cause of action against the other save those causes of action already accrued….

(B) In addition to (A) herein, in the event the Landlord has desired to offer to sell the Premises to the Urban Renewal Authority, the Landlord shall give a written three calendar months Notice to the Tenant informing the Tenant of the decision of the Landlord to sell and in which event the tenancy shall be terminated at the end of the three months notice….”

69. Therefore, I am prepared to disregard any effect of the Tenancy on the market value of the Property and adopt the vacant possession value of $46,700,000 instead as market value.

Conclusion

70. I have determined the value of the Property, for the purpose of section 10(2)(a) of the Lands Resumption Ordinance, in the sum of $46,700,000.

Orders

71. Accordingly, I order that the respondent do pay the applicant

compensation for the Property in the sum of $46,700,000.  The matters of professional fees, interest and costs shall be adjourned to a date to be fixed, with liberty to apply for any other ancillary and consequential matters.

[1] The Tenancy was preceded by a similar tenancy in favour of Chung for a term of 3 years from 1 March 2007 at 55,000 per month also registered vide memorial 07032201530041.

[2] Special Condition No (3)(c).

[3] All parties agree that these two alleyways were not proper streets.

[4] During the joint site inspection, it was recognised that this mahjong parlour had been relocated to Shops 2B & 3, G/F, Cambridge Building, 25-39 Hong Ning Road which was adopted as a comparable in Eltron Development Limited v Director of Lands, LDLR 4/2013 (unreported, 21 August 2015) .

[5] According to a website information of Sun Nam Yuen produced as Exhibit A8, 「在觀塘大部份人都會認識(Sun Nam Yuen), 街坊很多都一家大細來這食飯, …另外，每日早上大約４點半，天未亮茶市就開始了．很多相熟的晨運客人，夜游人，的士司機，上班一族和打完麻雀.......等等的客人，都喜愛到此飲餐早茶．客人的流量可相比於酒樓。」

[6] Both experts had not taken into consideration the alfresco dining area in their valuation of the market value of the Property and the respondent confirmed that it did not take issue on the illegality, enforcement and/or waiver etc of the sitting-out area.

[7] During the joint site inspection around 11.00 am on 8 December 2015, I found this market complex was not heavily patronized particularly when compared with the market at Shui Wo Street.

[8] Mr Faulkner also conceded that he did not inspect the Property or Yan Oi Court during meal times prior to the resumption.

[9] I have serious doubt on the adequacy of this negligible +1% or +2% suggested by Mr Faulkner off-hand to account for the agglomeration effect; such a small magnitude is against common sense.

[10] Mr Faulkner has misnamed it as Yue Man Centre which should be a close-by development at 300-302 Ngau Tau Kok Road.

[11] See Annex 3 of the Joint Statement.

[12] The +/- 1% per 2.5 sq m proposed by Ms Sat is only applicable when the difference in shop size is significant, eg when comparable A6/R1 or comparable A7/R4 is adopted as a comparable.

[13] See §19 above.

[14] See also §§10-21 of Lam Kit v Director of Lands, LDLR 15/1994 (unreported, 5 May 1995).