MTR CORPORATION LTD v. THE COMMISSIONER OF RATING AND VALUATION

CACV 408/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 408 of 2006

(on appeal from HCAL NO. 96 of 2005)

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J U D G M E N T

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Hon Rogers VP:

1.  I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2.  This was an appeal from an order of Hartmann J dated 6 October 2006 allowing an application for judicial review and quashing the Commissioner’s decision to withdraw holding over orders that allowed MTR Corporation Ltd (“MTRC”) to hold over the payment of Government rent pending the determination of appeals against the assessment of that rent in the Lands Tribunal.  At the conclusion of the hearing judgment was reserved which we now give.

Background

3.  The Government Rent (Assessment and Collection) Ordinance, Cap. 515 (“the Rent Ordinance”) was enacted to give effect to article 121 of the Basic Law that for certain leases of Government land extending beyond 30 June 2007 an annual rent of 3% of the rateable value should be charged.  It came into force in May 1997.

4.  Prior to the Rent Ordinance, development sites had been given no rateable value.  The Rent Ordinance required the Commissioner to prepare a Government Rent Roll containing the rateable values of land held under ‘applicable leases’, namely, leases to which the Rent Ordinance applied.  The combined effect of section 6 of the Rent Ordinance and section 2 of the Rent Regulations made under that Ordinance was that an annual rent equivalent to 3% of the rateable value was payable on an applicable lease whether or not the land had been developed.  After gazetting the Rent Roll, the Commissioner began issuing demand notes for Government rent.

5.  Property developers who held leases of undeveloped sites challenged the Commissioner’s power to demand annual rent in respect of such sites and, in any event, it was contended that even if the Commissioner had the power, the rent should be nil, the land having no rateable value.  In September 1998, a number of appeals to the Lands Tribunal against such assessments were consolidated for the purpose of having preliminary points of law determined.  In March 2001, the Court of Final Appeal, by its judgment in Commissioner of Rating and Valuation v Agrila Ltd and others (2001) 4 HKCFAR 83 upheld the Commissioner’s power to ascertain the rateable value of development sites and to charge annual rentals.  As regards the appropriate mode of valuation, it held that that was a matter for the Lands Tribunal to determine.

6.  Following the Agrila judgment, a representative test case, namely that of ‘Best Origin’, was returned to the Lands Tribunal for the appropriate mode of valuation to be determined.  As Hartmann J observed in his judgment, in terms of interminability, that litigation had become almost ‘Dickensian’.  As a matter of fact, the decision of the Lands Tribunal was handed down on the morning of the hearing of this appeal, almost 7 years after the Agrila judgment.

7.  MTRC was assessed for Government rent in relation to 48 development sites.  It appealed all 48 assessments.  Under the Rent Ordinance, Government rent demanded was payable on the due date notwithstanding the lodging of objections or appeals unless the Commissioner agreed to hold over payment.  MTRC applied for holding over orders pending the determination of its objections and further appeals.  Its first application for a holding over order was made on 31 July 1997.  Further applications were made in respect of other sites over a number of years.  In total, 45 orders to hold over the payment of Government rent pending the determination of MTRC’s appeals by the Lands Tribunal were granted to MTRC.  Given the test case involving Best Origin, MTRC’s appeals to the Lands Tribunal were adjourned sine die by consent.

8.  On 31 January 2005, the Commissioner wrote to MTRC indicating that he was minded to withdraw the holding over orders under section 46 of the Interpretation and General Clauses Ordinance (“the Interpretation Ordinance”), and invited representations.  In that letter, the Commissioner stated that he had made the holding over orders because of doubts concerning the legality of his powers under the Rent Ordinance but those had been removed by the Agrila case and since that decision, he had reviewed and was satisfied as to the correctness of the valuation method used when entering rateable values in the Government Rent Roll and the level of those values.  In those circumstances, he considered that there ceased to be sufficient grounds to justify continuing the holding over orders.  MTRC duly made its written representations.  On 29 April 2005, the Commissioner withdrew the holding over orders made in relation to the 45 sites based on his powers under section 46 of the Interpretation Ordinance.

9.  MTRC obtained leave for judicial review of the Commissioner’s decision.  At the same time, it obtained a stay of the Commissioner’s decision to withdraw the holding over orders.  MTRC’s applications made ex parte were granted on paper in May 2006 without a hearing.  On 6 October 2006, Hartmann J allowed the judicial review as regards the Commissioner’s decision to withdraw the holding over orders.

This appeal

10.  The single issue that arises on this appeal is one of statutory interpretation, namely, whether the Commissioner had power to withdraw the holding over orders under section 46 of the Interpretation Ordinance.  The judge held that the Commissioner had no such power.  In pertinent part, section 46 provides as follows:

11.  The provisions of the Interpretation Ordinance apply save where the contrary intention appears, inter alia, “from the context of any other Ordinance”.  See section 2(1).  The question which arises is whether a contrary intention is to be found from the context of the Rent Ordinance, it being uncontroversial that the Rent Ordinance was enacted for the purpose of assessing and collecting rents on applicable leases.

12.  There is no dispute that the principles of interpretation referred to in §§ 51-57 of the judgment are applicable.  It is largely in the application of those principles that the parties differ.

13.  Of particular relevance to the present case is the principle stated by Viscount Dilhorne in Floor v Davis [1980] AC 695 at 708G and set out by the judge in § 51 of his judgment:

“It must be borne in mind that the Interpretation Act is to apply unless a contrary intention is shown.  It is not the case that an intention that the Act should apply has to be shown for it to apply.”

14.  The judge discerned a contrary intention from the Rent Ordinance.  Although he recognised that the legislative scheme is one of ‘pay now, litigate later’ and that the Commissioner has a general and unfettered power to make holding over orders as an exception to the general rule, the judge considered that, when viewed in context, the provisions of section 29 create a “self-contained regime”.  At § 66 of his judgment the judge identified the main features of that regime:

He regarded the regime (of which section 29(5) formed an integral part) as certain and predictable as well as rational and fair and concluded that a holding over order could only be set aside before the final determination of the legal merits on the grounds specified in section 29(5) and not otherwise.

15.  Given the central importance of section 29, it is necessary to set out the section in its entirety:

“29. Government rent payable despite notice of appeal

(1) A lessee, owner or occupier must pay Government rent as demanded despite any proposal, objection or appeal that has not been finalised unless the Commissioner orders that payment of the Government rent, or a part of the Government rent, be held over pending the determination of the appeal.

(2) An order under subsection (1) may be subject to the condition that the person on whose behalf the order is made must provide security for the payment of the Government rent or the part of the payment of which is held over either by way of a banker’s undertaking or providing such other security as the Commissioner may require.

(3) A banker's undertaking referred to in subsection (2) must-

(a)	be in a form acceptable to the Commissioner;
(b)	be given to the Commissioner within a period of 14 days from the date of the order under subsection (1) or on the date for the payment of the Government rent specified in the demand for the Government rent, whichever is the later;
(c)	be given by a bank, as defined in the Banking Ordinance (Cap. 155);
(d)	not be revocable without the consent of the Commissioner;
(e)	be expressed to be an undertaking to pay an amount equal to the Government rent the payment of which is held over; and
(f)	provide for payment to the Commissioner upon written notification to the bank by the Commissioner that the appeal has been withdrawn or finally determined and that the amount stated by him is now due.

(4) Where a banker’s undertaking is not given, subsection (1) applies as if an order under that subsection had not been made.

(5) The Commissioner may cancel an order and make a fresh order where he is of the opinion either that the Government rent or any part held over is likely to become irrecoverable, or that the person appealing is unreasonably delaying his appeal.

(6) On the final determination of an appeal if any Government rent which has been held over becomes payable or the Government rent charged is increased, the Commissioner is required to give to the person appealing a notice in writing fixing a date on or before which the Government rent must be paid.”

16.  Mr Yu SC who appeared for the Commissioner highlighted some of the apparent deficiencies in the drafting of section 29.  In subsection (1), the Commissioner is empowered to make orders to hold over “pending the determination of the appeal”.  This is to be contrasted with the use of the words “finally determined” and “the final determination of an appeal” in subsections (3)(f) and (6) respectively.  Prima facie, the use of different expressions that have different meanings would suggest that the choice was deliberate and different meanings were intended.  Thus, it is plainly arguable that it is open to the Commissioner to make a holding over order until the determination of an appeal at the Lands Tribunal level and not when ‘finally determined’ i.e. after the entire appeal process had been exhausted.  Further, such an order could not be said to be irrational and the wording of the subsection itself would appear to justify the making of an order in those terms, whether or not in such a case subsections (3)(f) and (6) should be read down accordingly.

17.  Next, paragraphs (b)-(f) of subsection (3) would appear to be otiose since they add nothing to the power conferred on the Commissioner under paragraph (a).  Moreover some of those provisions (such as paragraphs (b) and (c)) appear to be inconsistent with paragraph (a) insofar as they constrain the general and unfettered power conferred by the latter.  Then there is subsection (4) which appears to be inexplicable.  The legislative intent is obscure and it is unclear what the subsection was intended to achieve.  Applied literally, it would undermine the provisions of subsection (2) which gives the Commissioner a choice of taking a banker’s undertaking or “other security”.

18.  One then comes to subsection (5) itself.  First, it is unclear whether when the Commissioner decides to cancel an order, he has to “make a fresh order” at the same time.  Nor is it clear what the content of such a “fresh order” could be, particularly on the occurrence of the second of the two specified grounds i.e. when the person appealing is unreasonably delaying his appeal.

19.  Mr Roots QC who appeared for MTRC offered no convincing answers to explain the deficiencies identified.  For my part, given those glaring deficiencies, I consider it difficult to discern a coherent structure from the provisions of section 29, much less a “self-contained regime”.

20.  One of the considerations that led the judge to conclude that the Commissioner may only cancel a holding over in the circumstances specified in section 29(5) is that if section 46 of the Interpretation Ordinance were to apply, section 29(5) would, for practical purposes, be rendered otiose.  In other words, it was an application of what is known for short as the expressio unius principle.  But it has been said that “apparent bad legislative drafting can hardly provide a basis for finding [a contrary] intention”: see Pearce & Geddes, Statutory Interpretation in Australia, 6^th ed, p 245 quoting Foster J in Simpson v Nominal Defendant (1976) 13 ALR 218 at 224.  See also made reference to Bennion, Statutory Interpretation, 4^th ed, p 1072, where it is stated that “sloppy drafting calls for special care in applying the principle since it cannot be assumed that logically-impelled implications were truly intended.”  In my view, section 29 is a prime example of bad legislative drafting.

21.  There are other reasons why ‘a contrary intention’ cannot be discerned from the Rent Ordinance.  It is common ground that the power conferred on the Commissioner to make a holding over order is a wide one, the fundamental guideline being ‘fairness’.  I am inclined to agree with Mr Yu SC that not only would the application of section 46 of the Interpretation Ordinance not change the character of that legislation, it would promote the fairness of the system overall.  If the circumstances in which the Commissioner may cancel the order are limited to those specified in section 29(5), it would lead to natural reluctance on the part of the Commissioner to exercise the power given that the exhaustion of the appeal process will, almost invariably, have long-term implications.  A power to withdraw the order would overcome that natural reluctance.  Nor would there be cause for concern that the power might be exercised capriciously or without good cause since its exercise would be subject to the usual principles governing the exercise of administrative powers.

22.  The judge attached significance to the legal policy that the legislature must be presumed to have intended to legislate for a ‘certain and predictable’ regime, citing from Lord Steyn’s speech in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593 at 1608G made in the context of a case where the House of Lords had to consider the time within which a person who wished to complain about a planning permission had to apply for judicial review.  The present case is very different.  As noted above, the power to grant a holding over order in subsection (1) is unfettered.  If such an unfettered discretion in the making of an order under section 29(1) is regarded by the legislature as sufficiently certain, I am inclined to agree with Mr Yu SC that a power to withdraw under section 46 must equally be sufficiently certain.

Conclusion

23.  For these reasons, I would allow the appeal.  I would also propose that there be an order nisi of costs here and below in favour of the Commissioner.

Hon A Cheung J:

24.  I agree.

Hon Rogers VP:

25.  The appeal will therefore be allowed and the order below set aside.  There will be an order nisi that the costs of the appeal be to the Commissioner here and below.