KINSTAR DEVELOMENT LTD v. TSE YIU KUEN AND OTHERS

LDCS 10000/2019

[2021] HKLdT 54

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO 10000 OF 2019

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BETWEEN

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J U D G M E N T

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1.  This is an application for a compulsory sale order under the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“the Ordinance”) (hereinafter referred to as “the Application”) to sell all the undivided shares of the following lots (hereinafter referred to collectively as “the Lots” where appropriate) with the buildings erected thereon in Tai Kok Tsui, Kowloon (hereinafter referred to collectively as “the Buildings” where appropriate) as follows:

Lot No	Building erected on each individual lot
Kowloon Inland Lot 10043 (“Lot 1”)	No 24 Man On Street, Kowloon (“Building 1”)
Kowloon Inland Lot 9512 (“Lot 2”)	No 26 Man On Street, Kowloon (“Building 2”)
Kowloon Inland Lot 9534 (“Lot 3”)	No 28 Man On Street, Kowloon (“Building 3”)
Kowloon Inland Lot 9555 (“Lot 4”)	No 30 Man On Street, Kowloon (“Building 4”)

2.  The Buildings comprise two pairs of 6-storey tenement buildings each sharing a common staircase. Occupation permit for Building 1 and Building 2, Occupation Permit No K24/58, was issued on 17 January1958 whereas occupation permit for Building 3 and Building 4, Occupation Permit No K19/58, was issued on 14 January1958.

3.  Each of the Buildings is governed by one Deed of Mutual Covenant “DMC”) with each of the shops and domestic units above allotted 1/6 undivided share but Building 1, Building 2 and Building 4 have some of the units subdivided as follows:

Building 1

Building 2

Building 4

G/F

1 share

1 share

1 share

1/F

A 1/4

B 1/4

C 1/4

D 1/4

1 share

A 1/5

B 1/5

C 1/5

D 1/5

E 1/5

2/F

A 1/3

B 1/3

C 1/3

A 1/3

B 1/3

C 1/3

1 share

3/F

1 share

1 share

1 share

4/F

A 1/3

B 1/3

C 1/3

A 1/3

B 1/3

C 1/3

1 share

5/F

A 1/3

B 1/3

C 1/3

1 share

1 share

Total No of shares:

6

6

6

4.  As at commencement of the Application on 8 April 2019, the applicant owned all the equal and undivided share except the following:

Respondent	Unit Owned	Undivided Share
1st Respondent (“R1”)	Unit C, 2/F, 24 Man On Street (ie Building 1)	1/3 of 1/6 in Lot 1
2nd Respondent (“R2”)	Unit B, 5/F, 24 Man On Street (ie Building 1)	1/3 of 1/6 in Lot 1
3rd Respondent (“R3”)	Unit C, 1/F, 30 Man On Street (ie Building 4)	1/5 of 1/6  in Lot 4
4th Respondent (“R4”)	2/F, 30 Man On Street (ie Building 4)	1/6 in Lot 4
5th Respondent (“R5”)	5/F, 30 Man On Street (ie Building 4)	1/6 in Lot 4

That is, the applicant owned an average of 94.44% of the undivided shares of Lot 1 and Lot 2 and an average of 81.67% of the undivided shares of Lot 3 and Lot 4.

5.  Subsequent to the Application, the applicant successfully acquired the units owned by R2, R3 and R4 and the application against them was discontinued. Hence, the applicant owns an average of 97.22% of the undivided shares of Lot 1 and Lot 2 and an average of 91.67% of the undivided shares of Lot 3 and Lot 4.

6.  Notwithstanding the above, it is interesting to note that the name of R1 had to be amended to the present one because of an Assignment to the latter the ownership of Unit C, 2/F, 24 Man On Building in March 2020 pursuant to an Agreement for Sale and Purchase dated 16 December 2019 for a consideration of mere $1,000,000.

7.  In her opening submission, Ms Nancy Ngai (“Ms Ngai”), instructed by Messrs Vincent T K Cheung, Yap & Co on behalf of the applicant, submitted that however R1 cannot be found. Substituted service of the Application on R1 was effected on 8 October 2020 pursuant to the Order made by HH Judge M Wong on 30 September 2020. R1 had not shown up.

8.  R5 is represented by Mr Ross MY Yuen (“Mr Yuen”) leading Ms Emily Ting (“Ms Ting”) or collectively referred to as Messrs Yuen & Ting where appropriate, who are instructed by Messrs Ho Tse Wai & Partners. R5 filed an Amended Notice of Opposition on 19 October 2020.

9.  At the Pre-trial Review held on 17 May 2021, Mr Yuen confirmed that R5 had abandoned his argument about assessment of the redevelopment value (“RDV”) of the Lots on the basis of joint redevelopment with the other adjoining lots.

10.  In Messrs Yuen & Ting’s opening submission, they confirmed that R5 primarily disputed the market value of each unit of the Buildings on the Lots as at 8 March 2019 pursuant to Part 1 of Schedule 1 to the Ordinance (which is usually termed by the valuation profession as the Existing Use Value or just “EUV”) as well as the redevelopment value (“RDV”) assessed by Ms Dorothy Chow (“Ms Chow”), the valuation expert on behalf of the applicant. In the latter regard, R5 relied on the valuation reports prepared by Mr Patrick Lai (“Mr Lai”).

11.  Ms Chow and Mr Lai have prepared the following reports as evidence:

Ms Chow	Mr Lai
Application Report dated 2 April 2019 on EUV as at 8 March 2019
Supplemental Report dated 19 August 2020 on EUV and RDV	Valuation Report on 20 August 2020
Rebuttal Report dated 17 September 2020	Rebuttal Report dated 18 September 2020
1st Joint Statement dated 19 October 2020
Supplemental Report dated 13 May 2021 on RDV	Supplemental Report dated 13 May 2021 on RDV
2nd Joint Statement on updated RDV dated 21 May 2021

Whether the Applicant is entitled to make the Application

12.  Section 3(1) of the Ordinance requires an applicant to have not less than 90% of the undivided shares in a lot before he can make an application.

13.  Section 3(5) of the Ordinance provides that the Chief Executive in Council may, by notice in the Gazette, specify a percentage lower than the percentage mentioned in section 3(1) in respect of a lot belonging to a class of lots specified in the notice.

14.  The Land (Compulsory Sale for Redevelopment (Specification of Lower Percentage) Notice was gazetted on 22 January 2010 and came into operation on 1 April 2010 (“the Notice”).  Section 3 of the Notice lowered the threshold for compulsory sale in respect of the classes of lots specified in the Notice from 90% to 80%.  Those classes of lots include “a lot with each of the building erected on the lot issued with an occupation permit at least 50 years before the relevant date (ie the date of the application under the Ordinance)”. 

15.  As the occupation permits for the Buildings were issued in January 1958, not less than 50 years before the date of the Application, the Notice is applicable and the threshold percentage should be 80%.

16.  The applicant, owning an average of 94.44% of the undivided shares of Lot 1 and Lot 2 and an average of 81.67% of the undivided shares of Lot 3 and Lot 4 at the commencement of the Application, was entitled to file the Application under section 3(2)(b) of the Ordinance which may cover two or more lots—

(i) on which one building is connected to another building by a staircase intended for common use by the occupiers of the buildings; and

(ii) where the average of—

(a) the percentage of the undivided shares owned by the majority owner in the lot or lots on which one of the buildings stands; and

(b) the percentage of the undivided shares owned by the majority owner in the lot or lots on which the other of the buildings stands,

is not less than the percentage specified in subsection (1).

EUV as at 8 March 2019

Assessment of EUV of G/F Units

17.  The 2 valuation experts, Ms Chow and Mr Lai, agreed that the relevant date for the EUV is 8 March 2019 and the assessment is done by the direct comparison method, taking G/F of No 24 Man On Street as the reference unit for shops/ retail units on ground floor of the Buildings.

18.  Ms Chow and Mr Lai had adopted the following comparables in the vicinity:

Comp	Address	Year of OP*	Date of PASP*	Consideration	Saleable Area (m2)	Frontage (m)	Depth (m)	Headroom  (m)	Unit Price (/m2)
Ref	G/F, 24 Man On Street				65.35	6.21	10.67	5.18
ES1	Shop 8, G/F, Chung Sing Building, 69 Chung Wui Street	1966	6 Apr 20	$12,200,000	84.10	3.89	21.64	3.89	$145,065
ES2	Shop 34, G/F Chung Ying Building,  6 Mei On Street	1965	6 Jun 19	$8,250,000	52.91	5.45	10.44	3.96	$155,925
ES3	Unit A, Shop 2, G/F, Tai Chuen Building, 92 Ivy Street	1975	8 Apr 19	$34,500,000	85.14	4.17	20.83	3.91	$405,215
ES4	Shop 11, G/F, Chung Yew Building, 83 Kok Cheung Street	1970	17 May 18	$11,600,000	70.27	5.45	14.48	3.83	$165,078
ES5	Shop B, G/F & Open Yard, Man Lee Building, 21 Man On Street	1991	20 Mar 18	$9,680,000	37.84 + Yd: 16.67	4.85	7.71	4.90	$235,123
ES6	G/F, 27 Man On Street	1958	16 Mar 18	$18,500,000	65.03 + Yard: 7.60	6.10	10.67	5.18	$277,986
ES7	Shop D17, G/F, Chung Yuen Building, 9 Lok Kwan Street	1966	4 Mar 18	$7,950,000	40.69	3.39	10.93	3.81	$195,380
ES8	G/F, 20 Lok Kwan Street	1958	30 Nov 17	$14,600,000	62.51 + Yard: 7.54	6.21	10.67	5.18	$228,054
ES9	G/F, 22 Lok Kwan Street	1958	29 Nov 17	$25,000,000	128.17 + Yard: 15.08	11.22	10.67	5.18	$190,563
ES10	Shop 12, G/F, Chung Wo Building, 17 Chung Wui Street	1966	1 Nov 17	$35,000,000	108.58	5.32	21.95	3.98	$322,343

* OP stands for occupation permit while PASP stands for provisional agreement for sale and purchase.

Choice of Comparables and Adjustment for Location

19.  After the joint inspection on 8 June 2021, Ms Chow agreed to disregard comparables ES3 and ES10.

20.  In spite of the above, Ms Chow and Mr Lai can only agree three common comparables, ie ES2, ES4 and ES7 though they could not agree on the location adjustment for ES2 which lies near the end of a cul-de-sac for vehicular traffic which might finds it difficult for maneuvering a detour. In the latter regard, I agree with Ms Chow that there should be a +5% adjustment.

21.  Indeed, developments in the vicinity comprise a mixture of high-rise composite buildings and aged tenement buildings with the ground floor mainly dominated by hardware shops, engineering trades and especially car-repairing workshops. The only exception is the Metro Harbour View which comprises an estate of 10 residential blocks with some 3,500 domestic units over a commercial podium. Completed in 2003, Metro Harbour View lies just across the street, ie Fuk Lee Street opposite Building 4. Perhaps for this reason, G/F, 30 Man On Street used to be occupied by a pet grooming centre and an estate agent’s office at the corner of Man On Street and Fuk Lee Street. There is a laundry on the opposite side of Man On Street which is in itself a relatively narrow side street of some 15 metres in width.

22.  Thus, while the two valuation experts were content to adopt G/F of No 24 Man On Street as the reference unit, I find no reason why ES5 and ES6, ie comparables also on Man On Street (ie the same street as the Buildings) should be disregarded as suggested by Mr Lai.

23.  According to R5 however, comparables ES6 (ie G/F, 27 Man On Street) and ES8 were acquired by Joy Bright International Development Limited (“Joy Bright”) and Good Ocean Development Limited (“Ocean Good”), which were during the trial discovered to be wholly-owned subsidiaries of a listed company, namely Wing Lee Property Investments Limited (“Wing Lee”)[1]. On the basis of public information, Wing Lee is in the business of property investment.

24.  It is also discovered that 2/F and 3/F Man On Street were purchased by Ms Chow Tiffany Hoi-Yee and Ms Wong Lai Lee respectively on 8 October 2019 and on 12 January 2021 (ie more than 1 year after the acquisition of the G/F). Messrs Chow and Wong are affiliated with Wing Lee.

25.  Mr Yuen submitted that the fact that 2 shops and 2 domestic units purchased by the related parties of a listed company raises the concern that those units were purchased with a view to redevelopment and the consideration for ES6 particularly was not reflective of market value.

26.  When the above was put to Ms Chow during cross-examination, Ms Chow did not agree, explaining that the transaction of ES6 took place much earlier. I agree with Ms Chow. Even on the assumption that Wing Lee, together with those affiliated persons, have the intention to acquire properties in Man On Street and Lok Kwan Street for redevelopment purposes, the acquisition of ES6 or ES8 were merely the first step; the redevelopment prospect, if any, was only in the embryonic stage. Wing Lee or its associates would likely be only prepared to pay market value of the shop premises not reflecting any redevelopment potential. In Chan Shiu Chong & Others v Director of Lands [2019] HKCA 758, the Court of Appeal at §15 of the judgment also doubted that acquisition activities in 2018 (even allowing some time for pre-acquisition negotiations) were sufficiently proximate to be regarded as proof of the likelihood of redevelopment of the properties within a reasonably foreseeable time in 2011 for the purposes of evidence requirement. 

27.  Similarly, I find no reason why ES8 and ES9 should be disregarded when they fall on the same street as ES7.

28.  Having said that, I deplored that both Ms Chow and Mr Lai had not carried out similar company searches and land searches to verify the comparables until such a late stage during trial. Valuation experts should not simply adopt “comparables” at their face values. Are they open-market transactions or the result of a special purchaser? What is the background to the sale?

29.  I agree with Mr Lai, however, that ES3 should be excluded because it lies at a busier location proximate to the hub of the vicinity around Tai Chuen Street and Ivy Street. Indeed, Ms Chow’s adjustment of 50% and Mr Lai’s suggestion of 60% adjustment for accounting the difference between ES3 and the reference shop was a strong indication that ES3 is very different from the reference shop in terms of location.

30.  Chung Wui Street at which ES1 and ES10 are situated comprises a wider street of some 30 metres running parallel to Tai Chuen Street to the south; it marks the boundary of trades with ground floor premises on the northern side being occupied by trades or workshops similar to the subject while those on the southern side comprising more variety of trades which include restaurants, which is true for ES10 in particular. ES1 is also in proximity to a flight of staircases leading from Sham Mong Road with further connection to the residential development called Harbour Green. Sham Mong Road is a main thoroughfare traversed by a variety of traffic with a bus stop immediately beside the flight of staircases. For these reason, both ES1[2] and ES10 should also be disregarded.

31.  While the various adjustments for time, frontage, size and headroom etc were agreed by the two experts[3], they could not agree on those for age and internal conditions. With regard to age, I agree with Ms Chow that there should be some adjustments though age is not so important for shop premises; I cannot agree also with Mr Lai that there should be adjustment for internal condition of shops or ground floor premises. In Top Harmony Limited v Cheung Yuet Sheung & other, LDCS 39000/2018 (unreported, dated 15 October 2020), the Tribunal had ruled at §45 as follows:

“45. Mr Lai stated that shops in good condition would certainly command relatively higher prices since the costs required in making good the shop premises would be minimal. However, shops usually cater for different trades and any new comers would be prepared to spend a vast sum of renovation costs to fit their own uses and purposes. Internal conditions are therefore seldom important for sale and purchase of shops (especially when tenants are often required to reinstate the shop premises to bare shell upon expiry of tenancies). This is particularly the case when most of the comparables are of similar ages to the reference unit. I would not allow any adjustment for internal conditions of shops.”

32.  My assessment of the adjusted unit rate of the reference unit is shown as follows:[4]

Comp	Unit Price (/m2)	Adjustments							Adjusted Unit Price (/m2)
		Time	Location	Frontage	Quantum	Headroom	Age	Total*
ES2	$155,925	0.4%	5.0%	1.5%	-2.5%	2.4%	-1.4%	5.3%	$164,189
ES4	$165,078	-4.0%	0.0%	1.5%	1.0%	2.7%	-2.4%	-1.4%	$162,767
ES5	$235,123	-3.7%	0.0%	2.7%	-4.8%	0.6%	-6.6%	-11.5%	$208,084
ES6	$277,986	-3.7%	0.0%	0.2%	0.2%	0.0%	0.0%	-3.3%	$268,812
ES7	$195,380	-3.7%	0.0%	5.6%	-4.9%	2.7%	-1.6%	-2.3%	$190,886
ES8	$228,054	-1.7%	0.0%	0.0%	-0.3%	0.0%	0.0%	-2.0%	$223,493
ES9	$190,563	-1.7%	0.0%	-10.0%	13.2%	0.0%	0.0%	0.1%	$190,754
								Average:	$201,284
							Standard deviation:		$73,838

* by multiplication

33.  Whereas the average of the adjusted unit prices for the comparables turns out to be $201,284 per sq m, there are great disparities with the highest as much as $268,812 per sq m (ie ES6) and the lowest at $162,767 per sq m (ie ES4).

34.  In her original assessment, Ms Chow had disregarded the comparables with the highest and lowest adjusted unit rates. This methodology has the advantage of taking the odd man out, just like the methodology in determining the gymnastics scoring. I consider this methodology applicable in this case and when I follow suit, the average of the remainders becomes $190,029 per sq m with a much reduced sample standard deviation of $47,816. This $190,029 per sq m comes close to that of the adjusted unit price for comparable ES5 which lies on the same street.

35.  R5 had suggested that ES9 should be excluded as well because it had a much larger saleable area. But when it is disregarded, the average works out at $189,894 per sq m which is not significantly different from $190,029 but a higher sample standard deviation of $53,454.

36.  In addition, R5 suggested that both ES8 and ES9 should be disregarded as they were dated. If this be the case, the average works out at $181,482 per sq m which is some 5% lower than $190,029 and a smaller sample standard deviation of $43,900.

37.  Having reviewed the above, I consider comparable ES5 which is situated on the same street of the Buildings provides good reflection of prices of the G/F premises of the Buildings. I am prepared to adopt $190,000 per sq m as the EUV for the reference shop as at 8 March 2019.

38.  I then assess the EUV of the other ground floor units of the Buildings as follows:

G/F, Man On Steet	Saleable Area (m2)	Frontage (m)	Depth (m)	Adjustments					Adjusted Unit Rate (/m2)	EUV
				Location	Frontage	Return Frontage	Size	Total*
24	65.35	6.21 to Man On Street	10.67	0.0%	0.0%	0.0%	0.0%	0.0%	$190,000	$12,417,000
26	62.28	4.99 to Man On Street	10.67	0.0%	-2.4%	0.0%	0.6%	-1.8%	$186,580	$11,620,000
28	65.34	6.21 to Man On Street	10.67	0.0%	0.0%	0.0%	0.0%	0.0%	$190,000	$12,415,000
30	62.15	10.67 to Fuk Lee Street + 4.99 to Man On Street	6.10	5.0%	8.9%	10.0%	0.6%	26.5%	$240,350	$14,938,000
									Total:	$51,390,000

* by multiplication

39.  In the above table, I have followed Mr Lai’s adjustments on location as well as return frontage[5]; but I do not accept his further adjustment on layout which I consider double counting.

Assessment of EUV of Upper Floor Units

40.  Ms Chow and Mr Lai managed to agree the unit rate of the domestic reference unit, ie 3/F, 24 Man On Street at $92,200 per sq m on the basis that it was in the comparatively best condition grade B. They have also agreed the following adjustments or disagreements[6]:

		Ms Chow		Mr Lai
Adjustment Process		Multiplication
Floor		2% per floor
Top Floor		-5% for top floor unit
Quantum		1% per 5m2		1% per 10m2
View		0% for building view -2% for building/lane view		0% for building view -5% for close building / lane view +5% for open building view
Lighting/Ventilation		+5% for units at corner		0% for similar -5% for inferior +10% for superior
Sub-division		Not Applicable		-5% for Sub-divided units’ size smaller than 15m2
Internal Condition	Grade B		0%
	Grade C		-3%
	Grade D		-6%
	Grade E		-9%

41.  In spite of the above, the two experts could not agree on the adjustments for internal condition of R1’s unit. Both experts had not had the chance to inspect it until the joint site inspection.  The applicant informed the Tribunal during trial that R1’s unit “is vacant but we have no access to that property”.

42.  Anyway, during the joint site inspection, R1’s unit could be peeked through a metal grille gate. Mr Yuen submitted that a mere peek cannot confirm the state of the ceiling, kitchen, bathroom, window areas, as well as the view from the unit. He submitted that this unit must be assumed to be in poor condition (ie Grade D). In view of the relatively derelict condition of the unit, I agree with Mr Yuen.

43.  With regard to the adjustment for quantum/size, Mr Yuen submitted that Ms Chow’s 1% per 5m² is not justified because

(1) there is a great difference in sizes among all the subject domestic units; and

(2) there is no basis for applying the same adjustment for assessing the EUV and RDV (ie a less sensitive adjustment has to be applied for old buildings).

I agree.

44.  As regards the adjustments for view and lighting/ventilation of the units, Mr Yuen submitted that the -2% view adjustment and 0% lighting/ventilation adjustment adopted by Ms Chow are not justified. Mr Yuen suggested there existed inconsistency in Ms Chow’s previous approach for her EUV domestic comparable ND5 (ie 3/F, 44A Fuk Tsun Street) in her supplemental report[7], to which she ascribed a “Close Building” view and applied +5% adjustment each for view and lighting/ventilation (when compared with the reference domestic unit which has “Building” view). Using the same approach she applied to ND5, and making adjustment from the reference domestic unit’s “Building View”, Mr Yuen submitted that the rear units facing the scavenging lane (of some 3 metres in width)[8] should also have -5% for both lighting and view. During cross-examination, Ms Chow explained that the opposite building across the rear lane is much closer to ND5 than it is for the Buildings.

45.  The parties did not take the Tribunal to view the premises around ND5; Nor did they provide any measurement of the width of the lane in ND5’s case. But having viewed the rear units of the Buildings, I consider Ms Chow’s adjustments more appropriate.

46.  Of course, the view from 4/F and 5/F of 30 Man On Street (at the corner of Man On Street and Fuk Lee Street) faces the western side of Fuk Lee Street and is quite open. I agree with R5 that an +5% adjustment for view is appropriate. Although view is different from lighting and ventilation, I do not agree with Mr Lai’s adjustment of +10% because there is a degree of double counting; Ms Chow’s adjustment of +5% appears more appropriate.

47.  Lastly, there is dispute between the two experts on the marketability of the sub-divided units smaller than 15m². Mr Lai made a -5% adjustment in respect of those sub-divided units which are smaller than 15m² in saleable area. Ms Chow opined that such an adjustment is not necessary.

48.  Mr Yuen submitted the following in support that the sub-divided units smaller than 15m² are less marketable:

(1) Only 7 units in the Buildings have been sub-divided by way of sub-Deed of Mutual Covenant;

(2) The last sub-division by sub-Deed of Mutual Covenant was in 1994, which suggests that there has not been demand for sub-divided flats in the last 20 years;

(3) The sub-divided units smaller than 15m² are not transacted frequently:

Unit	Last Transaction before Sale to the Applicant
Unit A, 1/F, 24 Man On Street	• In 1994 to Wong Hung Kwong by Assignment • In 2010 to Pan Ziping via Letters of Administration
Units C and D, 1/F, 24 Man On Street	• In 2011 to Golden Creater Limited by Assignment
Unit A, 2/F, 24 Man On Street	• In 2010 to Choi Leung Shuet Ying, Phoebe Chrisman and Lau Chung Yan by Assignment • In 2015 to Lau Siu Heung following the death of Choi Leung Shuet Ying
Unit B, 4/F, 24 Man On Street	• In 1999 to Ching Shuk Chun  by Assignment
Unit B, 5/F, 24 Man On Street	• In 2016 to Liao Lirong by Assignment
Unit A, 2/F, 26 Man On Street	• In 1987 to Lam Ching and Chau Kai Hoi by Assignment
Unit A, 1/F, 30 Man On Street	• In 2015 to Hon Lee Chun by Assignment
Unit D, 1/F, 30 Man On Street	• In 1994 to Lai Sheung Yan by Assignment • In 2014 to Lai Tik Lung via Deed of Gift

49.  With respect, I do not agree with Mr Yuen’s submission. Even from the table above, there was a “recent” transaction of such a sub-divided unit in 2016 in respect of Unit B, 5/F, 24 Man On Street. Secondly, by reason of the Tribunal’s experience in similar compulsory sale applications, such sub-divisions are not uncommon. For instance, in Success Active Limited v Harbourview International Holdings Limited & Others, LDCS 31000/2018 (unreported, dated 19 April 2021), similar sub-divisions were found. The Tribunal stated at §93 of the judgment as follows:

“Mr Lai took into account the fact that the two residential units at 1/F, 474 Chatham Road North and at Front Portion on 2/F, 478 Chatham Road North respectively had been sub-divided into small units without the approval from the Building Authority. He considered the marketability of the sub-divided units low and made a discount of -5%. We consider such argument by Mr Lai counter-intuitive and believe that those units probably would not have been subdivided in the first place if the adverse impact Mr Lai perceived is true.”

50.  Indeed, the provisions of such nano units by developers have been widely reported in the public media in recent years, the most notorious one being T Plus even in Tuen Mun in the New Territories with units as small as 12m² in saleable area. Another development in the urban area, AVA 61[9], completed in 2020, at 61 Tai Po Road also has units as small as 13.9m² in saleable area. That these small units may not have been so popular for the older units, I trust, has been taken into account by accepting Mr Lai’s less sensitive adjustment for size at 1% per 10m².

51.  Having disposed of the above disputes between the two experts, my assessment of the EUV of the domestic units is shown at Appendix 1. The total is $113,669,000.

52.  That is, the total EUV of the Buildings is

$51,390,000 + $113,669,000 = $165,059,000

53.  That is, the EUV of R1’s and R5’s units are as follows:

Respondent	Unit	EUV	Pro Rata Share of the Total ($165,059,000)
R1	Unit C, 2/F, 24 Man On Street	$2,165,000	1.3117%
R5	5/F, 30 Man On Street	$7,043,000	4.2670%

Whether Redevelopment of the Lot is Justified

54.  Section 4(2) of the Ordinance provides that the Tribunal shall not make an order for sale unless it is satisfied that the "age or state of repair" of the Buildings is justified and that the applicant has taken "reasonable steps" to acquire all undivided shares of the Lot.

55.  In her opening submission, Ms Nancy Ngai submitted that, on the uncontested expert evidence given by Mr Wong Wing Cheung Dennis (“Mr Wong”), a Registered Building Surveyor, an Authorized Person and Registered Structural Engineer and Mr Ng Tim Yeung Sammy (“Mr Ng”), also a Registered Structural Engineer in their reports both dated 20 August 2020, redevelopment of the Lots is justified due to the "age or state of repair" of the Buildings.

56.  Neither Mr Wong or Mr Ng was cross-examined by Mr Yuen.

57.  The respondents have not adduced any evidence, factual or opinion, in relation to the “age” and “state of repair” of the Buildings. Having considered the evidence before the Tribunal as well as the joint inspection on 8 June 2021, I am satisfied that redevelopment of the Buildings is justified due to the age and state of repair.

Section 4(2)(b) – Whether Applicant has taken reasonable steps

58.  The applicant is under an obligation to take reasonable steps to negotiate on terms that are fair and reasonable for the purchase of the interests of the respondents under Section 4(2)(b) of the Ordinance.

59.  As said at §5 above, subsequent to the Application, the applicant continued to negotiate with the available respondents and successfully acquired the units owned by R2, R3 and R4.

60.  Ms Ngai submitted that the applicant has not been able to acquire R1’s interest in Lot 1 solely because R1 cannot be found at all.

61.  Insofar as R5 is concerned, the applicant has made the following offers:

Date of offer	Offers	EUV assessed by Ms Chow (Pro Rata Share)	EUV assessed by Mr Lai (Pro Rata Share)	EUV determined by Tribunal (Pro Rata Share)
21 March 2019	$10,260,000	$6,520,000 (3.81%)	$7,621,000 (4.66%)	$7,043,000 (4.267%)
6 January 2021	$10,650,000
14 May 2021	$10,860,000

62.  Ms Ngai submitted that the terms of the offers made to R5 were (and still are) fair and reasonable for the following reasons:

(1) The offer prices were determined by reference to the independent opinion of Ms Chow;

(2) Potential of the Lots for joint redevelopment with the adjoining Nos 16-22 Man On Street (which are wholly owned by the applicant) has been factored into the offer prices. Hence, the offer prices have included the enhancement in value which would be attributed to R5’s unit in the event of a joint redevelopment of the Lots together with Nos 16-22 Man On Street. The site constituted by the Lots is almost 50% smaller than the site constituted by the Lots together with Nos 16-22 Man On Street. Naturally, the offer prices made by the applicant exceeded the then market value of R5’s interest reflecting only its proportionate share in RDV of the Lots on their own at the time of the offers.

63.  I agree with Ms Ngai on the evidence above. I am satisfied that the applicant has taken reasonable steps to acquire all the undivided shares in the Lots including negotiating for the purchase of such of those shares as are owned by R5 on terms that are fair and reasonable.

Disputes on the estimation of the RDV of the Lot

Optimum Hypothetical Development Model

64.  At the hearing, no suitable redevelopment site comparables were adduced as evidence for this Tribunal to consider. In her supplemental report dated 13 May 2021, Ms Chow did refer to an auction sale of a site at Nos 56-62 Larch Street and Nos 6-8 Lime Street (“the auction site”), a larger site of 337.24 m², on 3 December 2020 fetching an accommodation value of $107,682/m². This sale was conducted pursuant to an order for compulsory sale by the Tribunal in Top Harmony Limited v Cheung Yuet Sheung & other, LDCS 39000/2018 (unreported, dated 15 October 2020). As manifested in most of the compulsory sale cases, there was no competitive bidder and the majority owner was the successful bidder at the reserve price determined by the Tribunal.

65.  Ms Chow and Mr Lai could not agree on the adjustment factors that may be applicable to this sale, the major one being the adjustment for location. Ms Chow suggested that the Lots are situated away from the MTR Olympic Station whereas the auction site is situated closer to MTR Prince Edward and Mong Kok stations, within about 10 minutes’ walk. Besides, the Lots are situated close to the Kowloon Funeral Parlour across Tai Kok Tsui Road. Ms Chow suggested a location adjustment of -20%.

66.  On the other hand, Mr Lai suggested the auction site was situated next to the industrial areas in the Tai Kok Tsui Area. Therefore, both the residential units and shop units in the proposed development there should be inferior to the subject. But as we shall see later in the following analysis, Mr Lai’s assertion is not supported. The auction site lies within an area under transformation.

67.  Nevertheless, this adjustment differences were not canvassed at trial.

68.  It appears that both Ms Chow and Mr Lai agreed to resort to the residual valuation method in determining the RDV.  This can be done by deducting development cost (including construction costs, professional fees, finance costs etc) and developer’s profit from the estimated gross development value (“GDV”) of the completed optimum development. Following their joint expert statement dated 24 May 2021, Ms Chow prepared the updated RDV valuation assessing the RDV at $235,000,000 as at 10 May 2021 and Mr Lai assessed the RDV at $384,400,000 which was revised at trial to $383,000,000[10].

69.  It is agreed between the experts that the site area of the Lots is 297.86 m² (whereas the auction site has an area of 337.24 m²). The total plot ratio of 9.0687 (including the bonus plot ratio of 0.0687) for the hypothetical commercial/residential composite development is also agreed.

70.  Ms Chow and Mr Lai could not agree with the following development parameters[11]:

Development Parameters			Ms Chow	Mr Lai
No of Storeys			22	23
User	G/F:		Retail Units (5), Exclusive Access to 1/F, Access to Plant Room/ Refuse Storage/Fire Protection Facilities, Domestic Entrance Lobby	Retail Units (4), Exclusive Access to 1/F, Access to 1/F Plant Room, Domestic Entrance Lobby
	1/F:		Retail Units, Flat Roof of Retail, Domestic Lift Lobby	Retail Units (with exclusive access), Domestic Common Parts, Plant Room
	2/F:		Clubhouse, Podium Garden, Plant Room, Domestic Lift Lobby	Clubhouse, Podium Garden, Domestic Common Parts
	3/F:		Residential Units with Flat Roofs (3 flats)	Residential Units with Flat Roofs  (4 flats)
	4/F -20/F:		Typical Residential Units (3 flats per floor)	Typical Residential Units (4 flats per floor)
	21/F:		Residential Units with Top Roofs (3 flats per floor)	1 Residential Unit with Top Roof
Total No of Retail Units on G/F			5	4
Size of Retail Units			33.4 m2 to 53.55 m2	55.25 m2
Total No of Flats			57	77
Average Flat Size (inclusive of exempted green features)			3/F-20/F: 27.44 m2 (saleable) 21/F: 27.44 m2 (saleable)	3/F-21/F: 20.06 m2 (saleable) 22/F: 92.47 m2 (saleable)
Total Saleable Area		G/F (Retail):	188 m2	221.01 m2
		1/F (Retail):	258.79 m2 + Flat Roof: 7.21 m2	210.77 m2
		Residential:	1,564.15 m2	1,616.65 m2

71.  Ms Chow and Mr Lai had adopted the following comparables in the vicinity:

Comp	Address	Year of OP*	Date of PASP*	Consideration	Saleable Area (m2)	Frontage (m)	Depth (m)	Headroom (m)	Unit Price (/m2)
RG1	Shop 3, G/F, Tai Ying Building, 55 Kok Cheung  Street	1976	15 Oct 20	$13,100,000	50.28	4.57	10.99	3.84	$260,541
RG2	Shop 2, G/F Chung Hing Building,  72 Kok Cheung Street	1966	17 Dec 20	$6,699,000	27.36	4.43	6.17	3.95	$244,846
RG3	Shop 8, G/F, Chung Sing Building, 69 Chung Wui Street	1966	6 Apr 20	$12,200,000	84.10	3.89	21.64	3.89	$145,065
RG4	Shop 34, G/F Chung Ying Building,  6 Mei On Street	1965	6 Jun 19	$8,250,000	52.91	5.45	10.44	3.96	$155,925
RG5	Unit A, Shop 2, G/F, Tai Chuen Building, 92 Ivy Street	1975	8 Apr 19	$34,500,000	85.14	4.17	20.83	3.91	$405,215
RG6	Shop 90, G/F, Fu Tor Loy Sun Chuen, Stage 2, 42 Tit Shu Street	1980	23 Feb 21	$6,380,000	19.20	2.36	8.14	3.66	$332,292
RG7	Shop 18, G/F & M/F, Peony House West Block, 15 Fuk Man Street	1961	30 Oct 20	$10,800,000	27.61 + M/F: 22.08	3.47	7.96	5.79	$308,836 (agreed)
RG8	Shop 27, G/F, Fu Tor Loy Sun Chuen, Stage 2, 34 Beech Street	1980	25 Sep 20	$5,780,000	19.32	2.36	8.13	3.66	$299,172

* OP stands for occupation permit while PASP stands for provisional agreement for sale and purchase.

Hypothetical Ground Floor Layout

72.  Before I am going to decide on the choice of comparables and adjustment for location, I have to resolve the difference in opinion between the two experts on their assumption as to the reference shop; as stated in the table in §70 above, Ms Chow assumed there would be 5 shop units and her reference shop was one in the middle abutting Man On Street with a saleable area of 33.52 m². Mr Lai, on the other hand, assumed there would be 4 shop units and his reference shop was one in the middle abutting Man On Street with a saleable area of 55.25 m².

73.  During cross-examination, Ms Chow was challenged by Mr Yuen on her assumption. It is deplored that Ms Chow’s schematic drawing on the hypothetical ground floor layout had not been included in the trial bundle. The same is true for Mr Lai. When the two experts prepared their joint statements and realized that there was difference in opinion on such a layout or assumption, they should have reviewed their schematic design and included in the trial bundle.

74.  When Ms Chow produced her schematic drawing on the hypothetical ground floor layout[12] on the following day (ie the 4^th day of the trial), her reference unit is longitudinal in shape with a frontage of 2.75 metres onto Man On Street and a depth extending to the scavenging lane, ie 12.19 metres. This unit has therefore a saleable area of 33.52 m².

75.  Besides, I agree with R5 that the entrance to the residential lobby is unnecessarily wide at 5.99 metres for such a small site of less than 300 m². For instance, the entrance lobby for Sablier, 8 Fuk Chak Street where sales of units are adopted as comparables for the domestic portion, is around 4 metres. Ms Chow also admitted that it was not a minimum requirement to have 3.11 metres for the access to 1/F.

76.  Mr Lai also produced his schematic drawing on the hypothetical ground floor layout[13] later on the same day. His reference unit has a frontage of 4.78 metres also extending to the full length of the site to the scavenging lane. His reference unit has a saleable area of 55.25 m².

77.  Having regard to the range of comparables proposed by the two experts, particularly RG1 and RG2 which are the two experts’ only common comparables, I decide that Mr Lai’s reference unit has to be preferred because it would minimize the scale of adjustments. That being said, I am surprised that Mr Lai proposed such a large size reference unit on the one hand, but proposed comparables RG6, RG7 and RG8 which concern very small units where the market may be very different and the adjustments required are significant and not reliable. Indeed, I am going to disregard RG6, RG7 and RG8 as comparables because their surrounding environment and character is completely different from that of the Lots even when redevelopment of the latter is envisaged. Particularly, Beech Street is a relatively wide street traversed by bus routes.

Enhancement of Environment

78.  As said, Mr Lai suggested that upon redevelopment of the Lots, there will be enhancement of the surrounding environment. More particularly, Mr Lai referred to the old tenement blocks adjoining the Lots (ie Nos 16-22 Man On Street) as well another parade of lots behind the Lots (ie Nos 173-199 Tai Kok Tsui Road) but separated by a scavenging lane. These other lots happen to belong to the affiliated companies of the applicant but are not included in the Application. Mr Lai asserted that upon redevelopment of all these lots, there will be tremendous enhancement, if not regeneration, of the locality of the Lots.

79.  In this connection, Mr Lai relied on the marketing materials of Cetus Square Mile dated 5 June 2018 which is developed by the parent company of the applicant, the Henderson Land group, with 2 blocks of residential tower comprising some 514 units over a commercial podium. The developments of “Square Mile” nomenclature were then described as scattering on Ka Shin Street, Lee Tak Street, Kok Cheung Street, Fuk Chak Street, Po Man Street, Man On Street and Tai Kok Tsui Road[14]. No doubt, if development of all the lots there were completed, I agree that “there will be tremendous enhancement, if not regeneration, of the locality of the Lots.”

80.  With respect, however, Mr Lai could not provide any sequence or timeframe of all these developments. Firstly, there will be many years to go by in the future before all these developments are completed. If development of the Lots proceeds first, upon its completion, it may be surrounded by a series of construction sites. For instance, the lots at Nos 177-191 Tai Kok Tsui Road is the subject of another compulsory sale application No LDCS 6000/2020 which is yet to be heard by the Tribunal. Not to mention that even if an order for sale be granted, it cannot be guaranteed that Henderson Land or its affiliated companies would be the successful bidder. Even if it be the case, it is unlikely that the Henderson Land Group would start the development project spanning Nos 173-199 Tai Kok Tsui Road before its affiliated companies would have acquired the lots at Nos 177-191 Tai Kok Tsui Road, bearing in mind in particular the lots at Nos 173-175 Tai Kok Tsui Road comprise a very small site.

81.  Tai Kok Tsui Road is a main distributor in the area. If development of the lots on Tai Kok Tsui Road proceeds first, upon its completion, the environment along Tai Kok Tsui Road will certainly be improved; but this does not necessarily benefit the Lots at its back which lies on a narrow side street, ie Man On Street. This is exactly the case when Ms Chow, when answering Mr Yuen’s cross-examination, stated that Metro Harbour View, which has been completed for 18 years has contributed little impact on Man On Street’s character save at its corner around Fuk Lee Street.

82.  Furthermore, it is observed that there have been two new redevelopment projects in the past on Man On Street, one being Man Lee Building at 19-21 Man On Street and the other being Marvel Court at 13-17 Man On Street which were both completed in the 90s. I cannot find there being any sign of enhancement of the environment along Man On Street.

83.  On the other hand, I am surprised that Mr Lai was contradicting himself in his assessment of the EUV of the shop premises of the Buildings:

“7.1.4 I consider the character of that section of Man On Street where the Property was located would remain the same in the near future that the ground floor premises would continue to be occupied for engineering workshops or uses of similar nature.”[15]

and

“4.7 I consider the character of that section of Man On Street where the Property was located would remain the same in the near future that the ground floor premises would continue to be occupied for engineering workshops or uses of similar nature.”[16]

Although the relevant date for EUV was 8 March 2019, Mr Lai’s sudden volte-face is inexplicable.

84.  In any event, I consider Mr Lai’s presumption that the immediate area of the Lots upon its redevelopment will be changed from the prevailing engineering/vehicle/metalware workshop to restaurants, café, boutiques or general retail speculative and premature. During the joint inspection, the Tribunal was led to visit Fuk Chak Street on which Cetus Square Mile has been completed for some 1½ years where Mr Lai asserted that such transformation is taking place. But when we walked all the way along Kok Cheung Street beside which another phases of “Square Mile”, more particularly Aquila Square Mile and a not-yet-named project under construction across the street, I did not notice any transformation as suggested by Mr Lai.

85.  Notwithstanding my observation above, I agree there may be minor enhancement in the immediate area upon redevelopment of the Lots which happen to be situated at street corner, but not to the extent suggested by Mr Lai. The total change of locality will come but only in the indeterminable future.

Choice of Comparables and Adjustment for Location

86.  In terms of location, I agree that RG1 and RG2 are the best comparables. But even bearing in mind Mr Lai’s argument that the environment around the Lots will be improved upon redevelopment, I cannot agree with him that there shall be an adjustment of +15%. In this regard, I prefer Ms Chow’s adjustment of -20% and 0% respectively.

87.  Mr Lai did not adopt RG3, RG4 and RG5 as comparables for the reason that they were dated from the present. In fact, RG3 is ES1, RG4 is ES2 and RG5 is ES3.

88.  In view of the paucity of comparables, I agree with Ms Chow that RG3 can now be included as comparable, for the time being, taking into account the potential improvement in environment upon redevelopment as suggested by Mr Lai. I also agree with Ms Chow’s suggested adjustment of 0%.

89.  Similarly, I agree with Ms Chow that RG4 can still be regarded as comparable but I prefer a higher adjustment for location at +15%.

90.  RG5 was discarded as comparable by Ms Chow upon trial and I agree with her for the same reason that I explained in §29 above.[17]

Back Frontage

91.  Apart from the usual adjustments for shops, Mr Lai proposed an adjustment for back frontage. It was his novel idea that when the Lots are developed together with the site at its back along with Tai Kok Tsui Road, there should be shopfront onto the scavenging lane as pedestrian flow will be self-generated. Mr Lai referred, for instance, to the pedestrian lane between Granville Road and Cameron Road at the end of Hau Fook Street in Tsim Sha Tsui[18]. However, as stated in §80 above, Mr Lai could not provide any sequence or timeframe of the development of the site along Tai Kok Tsui Road. It is also a question of fact that whether the successful bidder of the Lots upon sale will co-operate or coordinate with the Henderson Land Group in the design is something down to the wire.

92.  Moreover, the lane between Granville Road and Hau Fook Street and between Hau Fook Street and Cameron Road, as measured by the two experts, is about 36 metres and 41 metres respectively; but in comparison, the scavenging lane behind the Lots from Fuk Lee Street to Wai On Street, between which some of the old buildings may not be redeveloped, extends to some 91 metres. This is a relatively long way for pedestrian to pass in a lane of just 3.05 metres in width. Mr Lai suggested so long as the G/F shops open onto the lane, this will generate pedestrian flow and Ms Chow’s answer was positive. With respect, this assertion was misleading because it is the value of such back lane frontages rather than the frontages per se that is important. During the joint inspection, I do not find any existing occupiers of the ground floor shops see fit to have such back lane frontages (save the conversion of the rear part of G/F, 30 Man On Street into shops fronting onto Fuk Lee Street).

93.  I do not agree such adjustment for back frontage is justified.

Time Adjustment

94.  Both Ms Chow and Mr Lai were content to make certain projection of adjustment for time on the basis of the statistics available which suffers from a certain degree of time lag. At the beginning of the trial, Ms Chow indeed produced the latest updated statistics which I agree is desirable.

95.  However, after the trial, on 9 July 2021, R5 purported to filed into the Tribunal the updated indices prepared by RVD. The applicant objected the production of this “new evidence” on the ground that the trial has been finished.  In the present circumstances, I am prepared to accept this “new evidence”. The rhetorical questions posed by Lord MacNaghten in Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co [1903] AC 426 strike a chord of common sense and the implied responses might well be adopted as a general guide:

“If the question goes to arbitration, the arbitrator’s duty is to determine the amount of compensation payable. In order to enable him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him why should he shut his eyes and grope in the dark?”

96.  And even in the case of appeal, the court has consistently applied the criteria for admission of new evidence as discussed in Ladd v Marshall [1954] 1 WLR 1489. Under the criteria, further evidence is admissible on appeal only where such evidence,

(i) could not have been obtained at the trial with reasonable diligence;

(ii) would or might, if believed, have a very important influence on the result of the case, though it need not be decisive; and

(iii) is apparently credible though it need not be incontrovertible.

I consider this “new evidence” has satisfied these three conditions.

97.  Thus my assessment of the value of the reference shop is as follows[19]:

Comp	Unit Price (/m2)	Adjustments							Adjusted Unit Price (/m2)
		Time	Location	Frontage	Quantum	Headroom	Age	Total*
RG1	$260,541	7.4%	-20.0%	0.4%	-1.0%	2.3%	14.0%	-0.4%	$259,499
RG2	$244,846	3.2%	0.0%	0.7%	-5.6%	2.1%	16.0%	16.2%	$284,511
RG3	$145,065	1.8%	0.0%	1.8%	5.8%	2.2%	16.0%	30.0%	$188,585
RG4	$155,925	-4.4%	15.0%	-1.3%	-0.5%	2.1%	16.2%	28.1%	$199,740
								Average:	$233,084

* by multiplication

98.  As can be seen from the above, the adjusted unit rates fall into two group which lies far apart. In such regard, I consider the RG1 and RG2 better comparables, not only because they are more recent transactions, but also because they lie on Kok Cheung Street which is amidst the redevelopment sites in the locality. The average of their adjusted unit price is around $272,000 per m² which has represented a jump of about 43% from the EUV of the reference shop of the Buildings at $190,000 per m². I regret to say that Mr Lai had arrived at a unit rate as much as $393,200 per m² which has incredibly doubled the EUV.

99.  I then follow Mr Lai’s analysis (save for layout)[20] as follows[21]:

Frontage facing	Reference Unit Rate ($/m2)	Adjustments				Adjusted Unit Rate ($/m2)	Weighting
		Location	Return Frontage	Layout	Total
Man On Street	$272,000	0.0%	0.0%	0.0%	0.0%	$263,000	75%
Man On Street/ Fuk Lee Street	$272,000	10.0%	20.0%	0.0%	32.0%	$359,040	25%
						Average:	$293,750
						x	40%
					1/F Unit Rate		$117,500

Domestic Comparables

100.  Ms Chow and Mr Lai are content to adopt the following comparables:

Aquila Square Mile, 38 Fuk Chak Street (estimated completion date: Oct 2021)

Comp	Unit	Date of PASP	View	Consideration	Saleable Area (m2)	Unit Price (/m2)
RD1	Flat F, 22/F, Tower 2	20 Apr 21	Distant Seaview/ Building	$6,604,860	23.870	$276,701
RD2	Flat P, 20/F, Tower 1	17 Apr 21	Building	$5,155,920	18.545	$278,022
RD3	Flat A, 17/F, Tower 2	12 Apr 21	Building	$6,252,390	24.057	$259,899
RD4	Flat F, 18/F, Tower 1	10 Apr 21	Building	$6,216,120	24.030	$258,682
RD5	Flat J, 9/F, Tower 1	6 Apr 21	Building	$6,158,460	24.789	$248,435
RD6	Flat K, 20/F, Tower 1	6 Apr 21	Building	$6,396,540	23.531	$271,835
RD7	Flat H, 12/F, Tower 1	5Apr 21	Open	$4,868,550	18.376	$264,941
RD8	Flat C, 22/F, Tower 2	2 Apr 21	Distant Seaview/ Building	$6,534,180	22.939	$284,850
				Average:	22.517

Sablier, 8 Fuk Chak Street (estimated completion date: Nov 2021)

Comp	Unit	Date of PASP	View	Consideration	Saleable Area (m2)	Unit Price (/m2)
RD9	Flat D, 9/F	18 Apr 21	Building	$6,382,000	27.880	$228,910
RD10	Flat B, 3/F	11 Apr 21	Building	$6,554,000	30.721	$213,339
RD11	Flat F, 16/F	10 Apr 21	Open	$7,083,000	30.925	$229,038
RD12	Flat A, 9/F	7 Apr 21	Building	$6,679,000	30.497	$219,005
RD13	Flat C, 8/F	6 Apr 21	Building	$6,365,000	28.252	$225,294
				Average:	29.655

101.  In spite of the above, they have the following agreements and disagreements on the adjustments:

Adjustments	Ms Chow	Mr Lai
Adjustment Process	By Multiplication
Time	With reference to Rating and Valuation Department (“RVD”)’s Price Indices for Private Domestic (Classes A, B & C) as shown in Hong Kong Property Review Monthly Supplement (May 2021)[22]. The latest indices available is March 2021. Further projection is made for the period from March-May 2021 with reference to CCL Index.	With reference to RVD’s Price Indices for Private Domestic (Classes A, B & C). The latest indices available is March 2021. Since there has been improvement in the market sentiment from March to the date of valuation, Mr Lai has added 0.2% per month to reflect the increase in residential prices from March to May 2021
Location	-5% adjustment is made to transaction in Aquila Sqaure Mile and Sablier	0% adjustment is made to transaction in Aquila Sqaure Mile and Sablier
Scale/ Facilities	-5% adjustment is made to transaction in Aquila Sqaure Mile and 0% adjustment is made to transaction in Sablier	0% adjustment is made to transaction in Aquila Sqaure Mile and 10% adjustment is made to transaction Sablier
Floor Level	0.5% per floor
View	Building View (+10%), Open view (+5%) & Distant Sea/Building View (0%)
Ceiling Height or Headroom	5% per 1m difference
Age	1.5% per year (Year of Completion: 2021)	1.5% per year (Year of Completion: 2023)
Holding Cost	Agreed to adopt the date of full payment of purchase prices as the reference date

102.  In terms of location, I tend to accept Mr Lai’s 0% adjustment to transactions in Aquila Sqaure Mile and Sablier as I agree that the distance to MTR station might not be the only consideration for residential units in the same locality. But when assessing the difference in scale and facilities, Mr Lai must have forgotten that pursuant to paragraph 2(a) of Schedule 2 to the Ordinance, the Lots, which are the subject of the auction, shall be assessed based on the redevelopment potential of the Lots on their own. In the present case, the Lots have a site area of mere 297.86 m² whereas Aquila Square Mile consists of a site of more than 1,800 m² (ie, more than 6 times larger)  and comprise some 2,000 sq m of landscaped garden and club facilities[23]. Mr Yuen has tried to compare the clubhouse area per unit and suggested that that proposed for the hypothetical development on the Lots might not be inferior. But say for example, for a development with 60 units, what kind of clubhouse it can provide to compare with that of a development with 500 units[24] if Mr Yuen’s so-called similar clubhouse area per unit is applied? I consider the proposed adjustments of -5% and 0% respectively by Ms Chow very conservative and should be adopted.

103.  As regards the adjustment for age, in Success Active Limited v Harbourview International Holdings Limited & Others, LDCS 31000/2018 (unreported, dated 19 April 2021), the Tribunal had already emphasized that the residual method requires the valuer to estimate the market value on completion on the basis of values that are current on the valuation date assuming that the project has already been completed on that day, ie June 2021[25]. To the extent Mr Lai assumed the year of completion is 2023 (the anticipated date of completion), he has misconceived what is stated in para 90.8 of the HKIS Valuation Standards 2020 where the valuer must adopt one of the following assumptions[26]:

“(a) the estimated market value on completion is based on values that are current on the valuation date on the special assumption the project had already been completed in accordance with the defined plans and specification, or

(b) the estimated value on completion is based on the special assumption that the project is completed in accordance with the defined plans and specification on the anticipated date of completion.” (underline added)

104.  At trial, Mr Lai tried to defend that by the completion of the hypothetical development on the Lots, there must be improved facilities. With respect, this is his speculation without any support of any defined plans and specifications. Indeed, when I questioned him whether such improved facilities had been factored in his calculation of the construction costs, Mr Lai replied that he had not. I deplore such inconsistent treatment.

105.  Paragraphs 90.10 of the HKIS Valuation Standards 2020 provides that:

“If estimated gross development value is used, it should be made clear that these are based on special assumptions that a participant would make based on information available on the valuation date.”

106.  There is further difference in opinion between Ms Chow and Mr Lai on the size of the reference unit in the hypothetical development: Ms Chow adopts 27.44 m² while Mr Lai adopts 20.06 m². Although the average size of the Aquila comparables is about 22.5 m², I am prepared to place more weight on the comparables in Sablier in view of the scale and size of the development. Also in Success Active Limited, supra, the Tribunal has indicated its preference for a hypothetical unit with 31.83 m² on the explanation by the expert that seasoned developers nowadays like the Henderson Land Group prefer to have larger typical residential units.

107.  In the present case, in the 2^nd Joint Statement of the experts dated 21 May 2021, Ms Chow had included clippings of news[27] that following measures announced in the Chief Executive’s Policy Address on 16 October 2019 which were intended to assist first-time homebuyers by relaxing the cap for loan-to-value ratios of up to 90%, increasing the maximum property value to $8,000,000 etc., developers tended to shift focus away from building nano flats. For instance, in an article appearing on Yahoo Finance on 18 March 2021, it stated as follows:

「…… 還因政府放寬按揭政策， 令他們有更多的選擇。

舊日買600萬以下物業才可做80%按揭， 起碼需要有120萬首期才可以， 變相別無選擇下才要買納米樓； 但今日手持80萬元。 已經可以升格800萬元的中價物業， 準買家就更加無必要自我降格去追入納米樓。 ……」

108.  Thus, I am prepared to adopt Ms Chow’s 27.44 m² as the size of the reference unit.

109.  Assuming a reference unit on 12/F with distant seaview/building view, therefore, I have the following analysis:

Comp	Unit Price (/m2)	Adjustments									Adjusted Unit Price (/m2)
		Time	Location	Scale/ Facilities	Floor	View	Headroom	Size	Holding Cost	Total*
RD1	$276,701	0.7%	0.0%	-5.0%	-3.5%	0.0%	0.0%	-0.7%	0.3%	-8.1%	$254,288
RD2	$278,022	0.7%	0.0%	-5.0%	-2.5%	10.0%	0.0%	-1.8%	0.3%	1.1%	$281,080
RD3	$259,899	0.7%	0.0%	-5.0%	-1.0%	10.0%	0.0%	-0.7%	0.3%	3.8%	$269,775
RD4	$258,682	0.7%	0.0%	-5.0%	-1.5%	10.0%	0.0%	-0.7%	0.3%	3.2%	$266,960
RD5	$248,435	0.7%	0.0%	-5.0%	2.0%	10.0%	0.0%	-0.5%	0.4%	7.2%	$266,322
RD6	$271,835	0.7%	0.0%	-5.0%	-2.5%	10.0%	0.0%	-0.8%	0.4%	2.2%	$277,815
RD7	$264,941	0.7%	0.0%	-5.0%	0.5%	5.0%	0.0%	-1.8%	0.4%	-0.5%	$263,616
RD8	$284,850	0.7%	0.0%	-5.0%	-3.5%	0.0%	0.0%	-0.9%	0.4%	-8.1%	$261,777
									Average:		$267,704
RD9	$228,910	0.7%	0.0%	0.0%	2.0%	10.0%	1.8%	0.1%	0.7%	15.9%	$265,307
RD10	$213,339	0.7%	0.0%	0.0%	4.5%	10.0%	1.8%	0.7%	0.7%	19.5%	$254,940
RD11	$229,038	0.7%	0.0%	0.0%	-1.0%	5.0%	1.8%	0.7%	0.7%	8.1%	$247,590
RD12	$219,005	0.7%	0.0%	0.0%	2.0%	10.0%	1.8%	0.6%	0.7%	16.5%	$255,141
RD13	$225,294	0.7%	0.0%	0.0%	2.5%	10.0%	1.8%	0.2%	0.7%	16.6%	$262,693
									Average:		$257,134

110.  I determine the average unit price of the hypothetical development at $265,000/m².

111.  In Top Harmony Limited, supra, where the site area in consideration was 337.24 m², the Tribunal allowed 15% for the value of the “special unit” on the top floor. I note similar “special units” are provided in Sablier but not in Aquila Square Mile.

112.  In Success Active Limited, supra, however, where the site area in consideration was 318.00 m², the Tribunal accepted the evidence that a simplex or duplex unit is less desirable. I therefore agree with Ms Chow that no such adjustment for “special unit” is required.

113.  Lastly, I would like to raise my concern that only during re-examination, Mr Lai purported to “correct” his adjustments for view:

Floor	View	Adjustment
Reference Flat	Distant Seaview/ Building	Original	Corrected
3/F	Building View	10%	-10%
4/F	Building View	10%	-10%
5/F	Open View	10%	5%
6/F to 16/F	Distant Seaview/ Building	5%	0%
17/F to 21/F	Distant Seaview/ Building	0%	0%
22/F & Roof	Distant Seaview/ Building	0%	0%

114.  I agree with Ms Ngai’s submission that in Mr Lai’s original assumption whereby he was taking the mid-floor of each zone for comparison with his reference flat on 13/F[28], he could not change his view adjustments without at the same time changing his adjustment for level difference.

115.  Following Ms Chow’s calculation[29] therefore, I arrive at the unit rate for the domestic portion of the hypothetical development:

Floor	Saleable Area (m2)	Flat Roof/ Roof (m2)	Weighted Area (m2)	View	Adjustments				Adjusted Unit Rate (/m2)	Adjusted Unit Rate on Saleable Area (/m2)	Proportion
					Floor	View	Size	Total
3/F	27.44	19.91	30.76	Building	-4.5%	-10.0%	-0.7%	-14.7%	$226,045	$253,394	5.26%
4/F	27.44	0	27.44	Building	-4.0%	-10.0%	0.0%	-13.6%	$228,960	$228,960	5.26%
5/F-20/F	27.44	0	27.44	Distant Seaview/ Building	0.3%	0.0%	0.0%	0.3%	$265,795	$265,795	84.21%
21/F	27.44	23.05	30.73	Distant Seaview/ Building	4.5%	0.0%	-0.7%	3.8%	$275,070	$308,050	5.26%
									Average:	$265,401	100.00%

116.  Ms Chow and Mr Lai have also agreed or disagreed on other parameters:[30]

	Mr C Chan	Mr Lai
Marketing Costs	4% of GDV	3% of GDV
Finance Costs	3.5%
Demolition Cost for the Building	$3,505,376
Demolition Period	0.5 year
Construction Cost	$40,244/m2	$32,940/m2
Construction Period	2 years
Professional Fee	6%
Developer’s Profit	15%
Stamp Duty	4.25%
Legal Cost	0.1%	Nil
Land Value	$235,000,000	$383,000,000
Accommodation Value	$86,999/m2	$141,800/m2

Marketing Costs

117.  As can be seen from the above, Mr Lai adopted the usual marketing cost of 3% of GDV. Ms Chow considered this grossly insufficient to reflect the prevailing market condition.[31]

118.  Ms Chow stated in her Rebuttal Report dated 17 September 2020 that agency fees of transactions in the first-hand sale market are usually paid fully by developers at attractive rate to boost the sales of their units. As well, marketing costs include not only agency fee, but also the cost for setting up show flats and sales offices, preparation of sales brochures, costs for advertising, etc. Ms Chow referred to a survey carried out by Jones Lang LaSalle Limited  (“JLL”) in 2015[32] which showed that marketing costs  (including agency fees) for general first-hand residential projects ranged between 5.5% and 9% of the sales proceeds. In their press release dated 25 June 2015, JLL urged the government to review the marketing costs for residential project in assessing the land premium payable.

119.  Having said that, I do not have the details of the survey and perhaps for the same reason, Mr Yuen had no opportunity to cross-examine Ms Chow. Neither do I have any information on whether the Government has acceded to JLL’s request. Thus, in the present case, I maintain the marketing costs at 3% of the GDV.

Demolition and Construction Costs

120.  While Ms Chow and Mr Lai could agree the demolition costs in the sum of $3,505,376, they could not agree on the construction costs. Ms Chow assumed an average costs of $40,244/m² on the basis of “High to Very High Quality” by reference to the tender price index as suggested by Rider Levett Bucknall (“RLB”), a reputable quantity surveyors firm while Mr Lai assumed $32,940/m² on the basis of “High Quality” of the index. Ms Chow arrived at a total construction cost of $108,706,255 and Mr Lai arrived at $88.978.000.

121.  Ms Chow explained that in Section 2.2 Outline Specification for Residential Buildings in the Building Cost Data published by RBL, curtain wall is only provided for buildings with very high quality finishes While both Aquila Square Mile and Sablier are built with curtain wall finishes, she considered appropriate to adopt the average construction cost in “High and Very High Quality” standard for the hypothetical development.

122.  Indeed the same argument between the experts in Top Harmony Limited, supra, occurred[33].   Then, according to the Authorized Person’s Certificate of Sablier, the unit cost was $56,975 per m² which is much higher than Mr Lai’s adoption of $32,940 per m². Similarly, for Aquila Square Mile, the unit cost was $47,645 per m² which is much higher than Mr Lai’s adoption of $32,940 per m²:[34]

Development	Date of AP’s Certificate	Total Construction Cost	GFA (m2)		Tender Price Index as at 1st Quarter 2021	Tender Price Index as at Date of AP’s Certificate	Unit Cost (/m2)	Unit Cost adjusted to date (/m2)
Cetus Mile Square, 18 Ka Shin Street	29 May 2018	$889,000,000	Domestic Non-domestic: Total:	14,410.80 1,963.70 16,374.50	2,250	2,495	$54,292	$48,691
Aquila Mile Square, 38 Fuk Chak Street	20 May 2020	$801,026,263	Domestic Non-domestic: Total:	14,009.80 2,802.50 16,812.30		2,265	$47,645	$47,329
Sablier, 8 Fuk Chak Street	21 Aug 2020	$326,612,000	Domestic Non-domestic: Total:	5,094.60 637.90 5,732.50		2,260	$56,975	$56,723

123.  While I agree that there are more facilities incorporated in Aquila Square Mile like the escalators to the shopping mall etc, I consider Mr Lai’s adoption of $32,940 per m² on the low side.

124.  To the extent that the 2 experts were assessing the GDV of the upper floor units by reference to transactions of Aquila Square Mile and Sablier, I accept Mr Chow’s construction cost at $40,244/m² for the sake of consistency.

125.  Finally, there is minor difference between the 2 experts on the legal costs to be adopted: Ms Chow suggested 0.1% while Mr Lai suggested nil. Although I agree with Mr Lai that the legal cost should be minimal but I consider 0.1% more properly reflecting the real life situation.

Finding on RDV and the Reserve Price

126.  Subject to what I have stated above, particularly the GDV for the shops of the hypothetical development, I shall follow Ms Chow’s residual valuation model as at 10 May 2021[35] on the determination of the RDV which is reproduced at Appendix 2 to this judgment. I determine the land value of the Lot at $267,000,000 (ie accommodation value of $98,845/m²).

127.  On review, when this result is compared with the accommodation value of the auction site at $107,682/ m², I am prepared to round up to $270,000,000 as the Reserve Price for the auction of the Lot.

Other Incidental Matters

128.  The applicant proposed to appoint Ms Anna Chow and Mr Anthony Chow, both being consultants of Messrs Guanto & Chow, Solicitors and Notaries, as the sale trustees.  Based on the information on their background and experience as set out in their letter dated 29 April 2021, I am satisfied that they are proper persons to be appointed as trustees to discharge the duties imposed on trustees under the Ordinance.  The remuneration package proposed in the said letter appears reasonable.

129.  The applicant has prepared a set of draft Particulars and Conditions of Sale of the Lots[36].  Subject to any amendment that may become necessary as a result of my ruling on the arrangement of auction above, the particulars and conditions of sale of the Lots by public auction submitted by the applicant are also reasonable.

Order

130.  This Tribunal make the following orders:

(1) This Tribunal is satisfied that the redevelopment of the Lots is justified due to the “age” and “state of repair” of the Buildings and that the applicant has taken reasonable steps to acquire all the undivided shares in the Lot including those of the 1^st and 5^th respondents;

(2) All the undivided shares in the Lots, the subject of the Application herein, be sold by way of a public auction for the purposes of the redevelopment of the Lots under s.4(1)(b) of the Land (Compulsory Sale for Redevelopment) Ordinance (“the Ordinance”);

(3) Ms Anna Chow and Mr Anthony Chow of Messrs Guanto & Chow, Solicitors and Notaries, nominated by the applicant, be appointed trustees (“the Trustees”) to discharge the duties imposed on trustees under the Ordinance in relation to sale of the Lots and the Trustees be authorized to charge such remuneration for their services in accordance with the terms set out in the letter of Messrs Guanto & Chow, Solicitors and Notaries, dated 29 April 2021.

(4) For the purpose of the sale of the Lots by public auction under section 5(1)(a) of the Ordinance:

(i) The sale of the Lots be on the particulars and conditions of sale substantially the same as those in the draft Particulars and Conditions of Sale to be initialed and approved by the Tribunal.

(ii) The reserve price be set at $270,000,000.

(iii) Subject to further extensions that the Tribunal may subsequently allow upon the application of the purchaser of the Lots or its successor in title, the redevelopment of the Lots and the Buildings shall be completed and made fit for occupation within a period of 6 years after the date on which the purchaser of the Lot shall become the owner of the Lot.

(iv) Liberty to the applicant, the 1^st and 5^th respondents and the Trustees to apply to the Tribunal for further direction(s) under the Ordinance.

(5) The applicant do publish notices once in a Chinese language newspaper (and in the Chinese language) and one in an English newspaper (and in the English language) circulating generally in Hong Kong within 7 days from the date of the sealed judgment to be made herein by the Tribunal informing the 1^st respondent and all persons claiming to the owners of the Lots:-

(a) that the Tribunal has made Orders for sale of the Lots;

(b) that the Lots be sold together in one public auction; and

(c) where and the time during which copies of the Orders for sale to be made herein be obtained.

Costs

131.  In accordance with the compensation approach as determined by the Court of Appeal in Good Faith Properties Ltd and Others v Cibean Development Co Ltd [2014] 5 HKLRD 534, the respondents are entitled to costs notwithstanding the outcome of the Application.

132.  But as indicated by Mr Yuen on the 4^th day of the trial, R5 seeks indemnity costs against the applicant alleging oppressive conduct of the latter on the basis of the following:

Failure to raise issues of law at the PTR and to properly address issues in dispute

132.1 During the course of these proceedings up until the Pre-Trial Review (“PTR”) of these proceedings on 17 May 2021 fixed before Deputy District Judge Michelle Soong and me, the applicant did not raise any issue of law. Nor did the Pointe Gourde principle (which is denominated following the Privy Council decision in Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565) issue arise. By the time of the PTR, valuation was the only remaining dispute between the parties. R5 therefore was content to invite Deputy District Judge Michelle Soong be excused from the proceedings.

132.2 Despite the fact that it was made clear valuation was the only remaining dispute, the applicant’s opening submission filed on 28 May 2021 contained no submission on the valuation issue. Instead, on the morning of the 1^st day of trial, ie 7 June 2021, without any prior notice, the applicant presented R5 with a set of supplemental submissions and list of authorities on a legal argument relating to the Pointe Gourde principle. The Pointe Gourde principle was raised to answer R5’s argument that there would be enhancement of the Lots and the surrounding environment upon redevelopment of the Lots and potential redevelopment jointly with the other lots affiliated with the applicant.

132.3 Mr Yuen submitted that this enhancement point was previously raised by Mr Lai all along in his reports dated as far as on 20 August 2020. The applicant should have raised the legal argument in answer to the enhancement issue at the PTR and not left it until the morning of the 1^st day of trial. It had put tremendous pressure on R5 to deal with the issue right in the middle of the trial; the issue is a mixed legal, factual and valuation issue. Mr Yuen and his legal team had to do legal research and prepare for a new line of cross-examination of Ms Chow, for instance. The legal team also had to take instruction from Mr Lai as a matter of valuation evidence. Had R5 not raised the question of retrial, the applicant would not have withdrawn the argument. But despite that withdrawal, R5 had already suffered prejudice as said.

132.4 Mr Yuen further submitted that the fact that R5 did not seek adjournment to address the issue on the 1^st day of trial did not mean R5 had not suffered prejudice. Mr Yuen referred to the observation made by A Cheung J (as he then was) in Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corporation, HCAL 12/2009 (unreported, dated 21 September 2009) at §9 as follows:

“9. Talking about prejudice, I do not accept that in this new era, the fact that the innocent party can ask for an adjournment (even if one that is to be paid for by the other side) would mean that there is no prejudice. In my view, at least nowadays, an adjournment itself is a prejudice. Equally, the fact that a party, not wanting to lose a hearing date, refrain from asking for an adjournment, does not mean that there is no prejudice. The unenviable position that such a party finds himself in is in itself a prejudice.”

Late discovery of exhibits during the course of trial

132.5 R5 first became aware of and received Exhibits A1-A6 during the applicant’s oral opening submissions on 1^st day of trial, at the same time the Tribunal was provided with those exhibits. Mr Yuen complained that the applicant did not give notice of such exhibits at the same time as it gave notice to R5 as to the supplemental submission on the point of law on the morning of the 1^st day of trial.

132.6 Exhibit A1 is a consolidated table summarizing the disputes in valuation. All the data in A1 was extracted from the 1^st and 2^nd Joint Statements and consequential amendments to those, which were available by late May, before the applicant submitted its opening submissions on 28 May 2021. Mr Yuen submitted there be no reason whatsoever why Exhibit A1 could not have been given to the Tribunal and to R5 earlier – say together with the applicant’s opening submission.

132.7 As to Exhibit A5, it was intended to illustrate that (1) the possibility of redevelopment of the existing buildings on the other side of Man On Street and Lok Man Street is very remote; and (2) Henderson Land, the applicant’s affiliated developer, does not own units on the opposite side of Man On Street or on Lok Kwan Street.

132.8 Mr Yuen submitted, Exhibit A5 was clearly intended to answer R5’s point on enhancement of environment, which was not a new point only first stated in R5’s opening. Mr Yuen argued that if the applicant needed to make good the point that there is no plan on Henderson’s part to redevelop the blocks on Man On Street/ Lok Kwan Street, the point could have been addressed by Ms Chow in her updated RDV report and Exhibit A5 could have been adduced earlier.

132.9 In order to illustrate the ownership of the Lots and the lots surrounding it on Man On Street and Tai Kok Tsui Road, R5 earlier on in this action adduced records of materials and land searches in its List of Documents which became Bundle G1-G4. Mr Yuen emphasized that the legal representatives of R5 and Mr Lai only received Exhibit A5 on the 1^st day of trial, without any company search records or land search records to verify the ownership of companies which appear in Exhibit A5 which contains the ownership details of 128 units in total. This in turn necessitated additional company search, land search and research work by R5’s legal representatives and Mr Lai during the course of the trial, which ultimately revealed that ES6 and ES8 were ultimately owned by a property investment company and that the same company had purchased 3 units in the old building at 27 Man On Street. To accomplish the task, Mr Lai had worked until midnight on the 2^nd & 3^rd days of trial as earlier submitted to the Tribunal. The pressure was all taken by Mr Lai who went into the witness box on the 4^th day of trial.

132.10 Mr Yuen submitted that extra costs and time were incurred for urgent research done by the legal and valuation team of R5 during the course of the trial as a result of Exhibits A1-A6. All the costs incurred by Mr Lai as a result of Exhibits A1-A6 were additional to his original fees which were agreed on the basis of existing papers.

132.11 In addition, Exhibits A8 and A9 were sprung on R5 on the 3^rd day of trial without prior notice.

132.12 Exhibit A7 was withdrawn upon R5’s protest. It was a photo album which was, according to Mr Yuen, selective and favourable to the applicant, in that there were no photos of the view from the Buildings facing Man On Street/ Lok Kwan Street, and no photos of Cetus Square Mile. The applicant did not invite Mr Lai to collaborate on the making of the photo album, the way in which the Joint Site Inspection Bundle was done. Mr Lai did not have a chance to look at the photos beforehand.

132.13  Exhibit R9 was a sensitivity analysis of the internal condition adjustment made by Mr Lai in respect of R1’s unit. It was not provided to R5 beforehand and no prior notice was given. Mr Yuen and his team received this at the same time the Tribunal did, during Ms Chow’s examination-in-chief.

Impropriety in limiting access to main entrance of the Buildings

132.14 In around late May 2021, new metal doors were erected to the main entrance of each of the Buildings without any prior notice to R5. R5 had to ring the telephone number posted on the metal gate and wait over an hour in order to gain access to the entrance of the Buildings in which his own unit was located.

132.15 Mr Yuen complained that such conduct was unreasonable in light of (1) R5 is a minority owner but had absolute right to access his own unit as and when he wishes and (2) the ongoing compulsory sale proceedings which meant R5, his legal representatives and Mr Lai needed to gain access to the Buildings and R5’s unit to prepare for the present trial.

Impropriety in impeding inspection of R1’s Unit

132.16 Throughout the proceedings and up until the joint site inspection on the 2^nd day of trial, the experts could not gain access to inspect R1’s unit as it was barred by a locked wooden door as well as a metal gate in front of the door. It is very convenient that sometime just before the joint site inspection, the wooden door curiously vanished, and the Tribunal and the parties could peek through the metal grille to glimpse at the internal condition of R1’s unit.

132.17 Mr Yuen submitted it was equally rather convenient that after the peek at R1’s unit during the joint site inspection, Ms Chow could then confirm that its internal condition was reasonable and thus similar to that of the reference unit for EUV, and therefore apply 0% adjustment in the applicant’s favour.

132.18 R5 received no prior notice that the wooden door could be opened or that it had been opened before the site inspection. Mr Yuen submitted such conduct of the applicant is oppressive and clearly prejudicial to the fair conduct of the case.

133.  Mr Yuen submitted that the applicant’s conduct (1) with regard to access to the Buildings and to R1’s unit and (2) with regard to the conduct of its case including late discovery and late notice of new arguments, have caused real prejudice to R5 in terms of fairness in the proceedings as well as additional costs incurred during the course of the trial. Mr Yuen submitted the state of affairs described above merits the Tribunal’s ordering costs on indemnity basis against the applicant from the PTR onwards.

134.  Mr Yuen submitted that sanction by indemnity costs in the present case is well justified. He referred to Long Hai Hong v Chan Yu Lydia & others, HCMP 3179/2013 (unreported, dated 12 October 2015) where Anthony Chan J said at §14:

“14. If CJR had not achieved the desired change in attitude to litigation, this court would be forced to act. Unfortunately, the most effective, and possibly the only effective, way to enforce the Objectives is to penalize unreasonableness with costs. If similar or comparable circumstances arise in the future, this court would have to consider making an award of indemnity costs against the unreasonable party.”

135.  In reply, Ms Ngai submitted that the applicant had agreed immediately to withdraw its case/ argument based on the Pointe Gourde principle upon R5’s protest. Ms Ngai submitted that the withdrawal was a concession made purely for the sake of eliminating the need for the Tribunal to deal with R5’s unreasonable threat of intended application for re-trial of the Application suddenly made in the morning of the 4^th day and last 2^nd day of trial after the Tribunal had already finished the site inspection together with the parties, while Ms Chow was in the course of giving her expert evidence in the witness box and after R5 had received the applicant’s supplemental opening and the applicant’s additional exhibits for 3 days.

136.  Ms Ngai emphasized that the concession was made purely for the sake of good case management, saving costs and with the view to safeguarding not only the applicant’s own interests in this matter but also R1’s interests in the present proceedings given R1 is highly likely still alive although he could not be found.

137.  Ms Ngai referred to the Order for substituted service of the Application on R1 by HH Judge M Wong on 30 September 2020 when the applicant revealed that R1 purchased his present interest/ unit in March 2020[37].

138.  In spite of this, Ms Ngai submitted that it remained necessary for the applicant to refer to and rely on a small paragraph in Waters and others v Welsh Development Agency [2004] 1 WLR 1304, 1332 where the House of Lords in the United Kingdom referred to its earlier decision in Wilson v Liverpool Corporation [1971] 1 WLR 302 in which Lord Denning MR went on to amplify the concept of a ‘scheme’:

“"A scheme is a progressive thing. It starts vague and known to few. It becomes more precise and better known as time goes on. Eventually it becomes precise and definite and known to all. Correspondingly, its impact has a progressive effect on values. At first it has little effect because it is so vague and uncertain. As it becomes more precise and better known, so its impact increases until it has an important effect. It is this increase, whether big or small, which is to be disregarded at the time when the value is to be assessed."

Widgery LJ and Megaw LJ agreed.

139.  Then, Ms Ngai put forward the following facts:

(1) The Application only involves Nos 24-30 Man On Street (the even numbers only);

(2) The old tenement buildings at Nos 16-22 Man On Street (ie the Blue Area as shown on Exhibit A3) are wholly owned by the applicant;

(3) The old tenement buildings at Nos 193-199 Tai Kok Tsui Road and Nos 173-175 Tai Kok Tsui Road (ie the two parcels of Green Area as shown on Exhibit A3) are wholly owned by a company which is a sister company of the applicant;

(4) That sister company commenced a compulsory sale application in respect of the lots in between, ie Nos 177-191 Tai Kok Tsui Road in LDCS 6000/2020 which is still on going and yet to be tried by the Tribunal;

(5) The G/F and upper floors of Nos 7-11 Man On Street, ie on the opposite side of the Lots are separately owned by a number of persons;

(6) Marvel Court at No 15 Man On Street is a relatively new 16-storey commercial/residential composite building completed in 1996;

(7) Next to it is Man Lee Building at Nos 19-21 Man On Street which is also a relatively new 16-storey commercial/residential composite building completed in 1991;

(8) The G/F and upper floors of Nos 23-29 Man On Street, ie on the opposite side of the Lots are individually owned by different persons save and except that:

(i) On 15 June 2018, ie before the date of valuation of the EUV and prior to the commencement of the Application, G/F of 27 Man On Street was acquired by Joy Bright. Joy Bright is wholly owned by Wing Lee which is listed on the Stock Exchange of Hong Kong Limited. The principal activity of Joy Bright is described as “property investment”.[38]

(ii) On 8 October 2019, ie after the commencement of the Application, 2/F of 27 Man On Street was purchased by a person named Chow Tiffany Hoi Yee. Her address is an investment property of Wing Lee.

(iii) On 12 January 2021, ie also after the commencement of the Application, 3/F of 27 Man On Street was purchased by a person named Wong Lai Lee. She apparently is the daughter of Ms Wong Siu Wah who is the Chief Executive Officer of Wing Lee according to its Annual Report 2020.

(iv) The owner of 5/F of No 29 Man On Street, Cibean Development Company Limited, was the minority owner/ respondent in Good Faith Properties Ltd v Cibean Development Co Ltd [2014] 5 HKLRD 534.

(9) The G/F and upper floors of Nos 8-30 Lok Kwan Street are individually owned by different persons save and except that:

(i) On 30 November 2017, ie before the date of valuation of the EUV and prior to the commencement of the Application, G/F of 20 Lok Kwan Street was acquired by Good Ocean. Good Ocean is wholly owned by Wing Lee. The principal activity of Good Ocean is also described as “property investment”.[39]

(ii) Since 2013, the old buildings at Nos 16-18 Lok Kwan Street has been wholly owned by a company called Elite Grace (Hong Kong) Limited who appears to be unrelated to Wing Lee.

140.  During cross-examination, Ms Chow opined (and I agreed at §§78-84 above) that the environment in the immediate area to the north of Chung Wui Street, in particular the character of the G/F premises, would not substantially change, improve or be upgraded in the next 5 to 10 years/ foreseeable future even after completion of the redevelopment of the Lots and the redevelopment of the Blue Area, the Green Area and the Brown Area.

141.  In short, it was Ms Chow’s view that upon completion of the new building to be redeveloped on the Lots in 2 or 3 years, the G/F premises in the new building will not fetch at a price substantially higher than that of the G/F premises in the old tenement buildings in the immediate area. However, when Mr Lai assessed the RDV (whether on his previous basis of merged redevelopment of the Lots and the Blue Area or the latest basis of redevelopment of the Lots only), he postulated that “upon completion of the proposed development on the Joint Site, the redevelopment of the said old buildings at Tai Kok Tsui Road would also be completed.”[40]

142.  In Pacific Base Holdings Limited & Others v Lee Hop Biu & Other, LDCS 14000/2017 (unreported, dated 4 June 2020), the Pointe Gourde principle was invoked because the applicants in that case had already acquired over half of the G/F shops of the lots for some time so that the redevelopment scheme gradually caused shops to become vacant and reduced the pedestrian flow at the locality. A respondent in that case therefore suggested that any adverse effect of the redevelopment project/resumption scheme itself must be disregarded, following the Pointe Gourde principle.

143.  In Harmony, supra, on the other hand, the Tribunal adopted the Pointe Gourde principle to explain that the individual owners do not enjoy this development potential if the Ordinance has not come into place.

144.  There is no allegation of blight as in the Pacific Base case. There is no suggestion by Mr Lai that either R1 or R5 should get higher compensation because of the redevelopment of the Lots. To an extent, Mr Lai suggested that ES6 and ES8 should not be adopted as comparables because Wing Lee was a special purchaser behind the scheme of redevelopment. But as pointed out by Mr Yuen, the Pointe Gourde principle was not raised by Mr Lai and if necessary, Ms Ngai should have raised the issue earlier say at the PTR.

145.  As regards Mr Lai’s assertion that “upon completion of the proposed development on the Joint Site, the redevelopment of the said old buildings at Tai Kok Tsui Road would also be completed”, paragraph 2 in Schedule 2 to the Ordinance has already stated that the Lots, which are the subject of the Application, shall be sold subject to a reserve price taking into account the redevelopment potential on their own. When Mr Yuen confirmed that R5 had abandoned his argument about assessment of the redevelopment value (“RDV”) of the Lots on the basis of joint redevelopment with the other adjoining lots[41], the application of the Pointe Gourde principle was not necessary because the Tribunal held in Pacific Base at §70 that “the scheme underlying the acquisition” only includes the Subject Lots under the Application but not the surrounding area or neighbourhood in which even the applicants or their related parties have been carrying out the acquisition.. Again, if Ms Ngai considered otherwise, she should have raised the issue earlier.

146.  Notwithstanding the above, the Pointe Gourde principle, which is often referred to as a common law principle, is nothing new or uncommon in its application in statutory valuation exercise[42]. Practitioners in the field of statutory valuation should have this principle in mind. As said, this principle was applied or explained recently in Pacific Base and Harmony above. And in Penny’s Bay Investment Co Ltd v Director of Lands (No 2) (2017) 20 HKCFAR 465, Lord Neuberger stated at §87 as follows:

“87. ... It is worth bearing in mind in this context that as Lord Nicholls of Birkenhead said in Waters v Welsh Development Agency [2004] 1 WLR 1304, para 63, in relation to the application of the Pointe Gourde principle (namely that “compensation for compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying that acquisition” – per Lord McDermott in Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands (Trinidad) [1947] AC 565, 572) when assessing compensation for compulsory purchase, one should aim to “achieve … a fair and reasonable result”, and that plainly applies equally when assessing compensation for injurious affection.”

147.  More importantly, Ms Ngai had immediately withdrawn her argument based on the Pointe Gourde principle on concession basis or otherwise. And as Ms Ngai submitted earlier as recited by me at §133 above, if R5 found prejudice, he should not have raised the issue so late only in the morning of the 4^th day and last 2^nd day of trial after the Tribunal had already finished the site inspection together with the parties, while Ms Chow was in the course of giving her expert evidence in the witness box and after R5 had received the applicant’s supplemental opening and the applicant’s additional exhibits for 3 days.

148.  As regards Exhibit A1(1) to (12), Ms Ngai submitted that they were not new to R5 or Mr Lai. They were only a summary and recapitulation of what Ms Chow and Mr Lai agreed in their joint statements. The applicant provided this summary solely for the purpose of facilitating the trial by consolidating most of the valuation opinion into one set of tables and by crystallizing the remaining differences in opinion between Ms Chow and Mr Lai.

149.  Ms Ngai further explained in the trial that Ms Chow had already tried her best to compile this exhibit for production at the earliest possible opportunity before commencement of the trial on 7 June 2021 which was Monday. It was impossible for Ms Chow to finish this exercise earlier since Mr Lai was still amending his valuation on 4 June 2021 which was Friday, the last working day before commencement of the trial. Ms Ngai submitted that R5 should not have criticizing the applicant or Ms Chow for late production of this exhibit while Mr Lai was extremely late in providing the applicant and Ms Chow with his last minute amendment of valuation opinion[43]. As it turned out, Mr Yuen found this exhibit useful and I must be frank that it has assisted the Tribunal a lot.

150.  Exhibit A2 concerned the RVD’s indices published in June 2021. It was produced in response to para 39.3 of Yuen’s opening submission dated 31 May 2021 whereby Mr Yuen invited the Tribunal to adopt the updated price indices “to be published” by the time of handling down of the judgment[44]. Exhibit A2 contained only 2 pages and could be readily verified.

151.  Information as shown in Exhibit A3 was not new to R5 or Mr Lai either. Mr Yuen had summarized the same facts in his opening submission though the applicant found two errors that it wished to point out. Ms Ngai submitted that it would not be unreasonable for the applicant to provide the Tribunal with the correct and complete picture of the applicant’s landholding as well as its affiliated companies in the location.

152.  Exhibit A4 was only a plan for easy understanding of the Tribunal’s decision in Pacific Base, supra. Whereas Ms Ngai had withdrawn her argument based on the Pointe Gourde principle and it became unnecessary to look into Pacific Base, she submitted, and I agree, that did not add any extra burden on R5 and the Tribunal. Ms Ngai submitted further that Exhibit A4 served the constructive purpose of saving R5’s time in understanding the facts in Pacific Base.

153.  Regarding Exhibit A5, as I pointed out at trial and in §28 above, the two valuation experts should have ascertained the ownership of the comparables at Man On Street and Lok Kwan Street earlier on when they prepared their valuation opinion. While I agree that Ms Chow has to be blamed, Mr Lai was equally culpable when it was his own case that the whole environment in the locality would be improved and changed and it was his own case that comparables ES6 and ES8 should not be adopted. Ms Ngai submitted that before Mr Lai put forward such opinion, he should have ascertained not only the applicant’s landholding or that of its affiliate but also the ownership of the properties at Man On Street and Lok Kwan Street. And as Ms Ngai submitted, Exhibit A5 had been referred to throughout the trial and I agree that the information contained therein was relevant to the issues in dispute and for determination by the Tribunal.

154.  Exhibit A6 was produced to rebut Mr Lai’s suggested provision of “special units” in the hypothetical development on the Lots. I agree that it should have been included in the experts’ joint statement earlier but I do not think it would have taken much time for Mr Lai to check, if necessary, as he should have conducted the similar research beforehand before he put forward his argument.

155.  Again, Ms Ngai submitted Exhibits A7 and A8 were not new to R5. They only recorded what the Tribunal and the parties had seen and paid attention to during the joint site inspection. In any event, Ms Ngai agreed to withdraw the record photos in Exhibit A7.

156.  As stated in §130.13 above, Exhibit A9 was a sensitivity analysis of the internal condition adjustment made by Mr Lai in respect of R1’s unit. Ms Ngai submitted that R5 and Mr Lai should have knowledge of his own assumption of the internal condition of R1’s Unit as well as its implication on the EUV. Exhibit A9 contained only simple mathematics showing the differences in opinion between Ms Chow and Mr Lai. I agree that it should have been included in the experts’ joint statement earlier but I do not think it would have taken much time for Mr Lai to understand or to verify, if necessary.

157.  Exhibits A10 and A11 were part and parcel to Exhibit R6 produced by R5. The applicant found it inappropriate only to show the formal agreement for sale and purchase (ie Exhibit R6) without also the corresponding Assignments and the Land Register.

158.  In respect of Exhibit A12 which was a schematic drawing on the hypothetical ground floor layout, I had remarked at §74 above that both Ms Chow and Mr Lai were at fault by not having included such layout design in their joint statements.

159.  As regards the metal gates installed at the G/F entrances of the Buildings, Mr Yuen had cross-examined the applicant’s factual witness, Ms Lui Wing Yan who replied that she had no idea on that because she was not involved in the day-to-day management of the Buildings. But as witnessed by the Tribunal and the parties upon the joint site inspection, there were notices posted on the metal gates informing all people who intend to enter the Buildings that they could contact the person in charge at a given telephone number. Ms Ngai submitted that the applicant did not have any intention to deprive R1 and R5 of their rights to enter the Buildings but as a fact that all the upper floor units were vacant, the metal gates should be reasonably installed for security reason.

160.  Lastly, Mr Yuen queried why the internal condition of R1 was not available previously until the inspection together with the Tribunal. He also considered unusual that the wooden door of R1’s unit was opened on the date inspection so that the Tribunal, the parties and the two experts were able to peek inside the internal condition. Here I have sympathy with the applicant that R1’s unit all along had been privately owned but R1 cannot be found. Even on the day of inspection, the Tribunal and parties still could not get inside the unit. I do not find that the applicant had deliberately withheld the opportunity for inspecting R1’s unit.

161.  All in all, I agree with Ms Ngai’s submissions and explanations. The Tribunal do not find that there is sufficient reason to support the allegation that the conducts of the applicant were so unreasonable that they should bear costs on an indemnity basis.

162.  I order that the applicant do pay the 5^th respondent’s costs in these proceedings on High Court scale with certificate for one counsel, including any costs reserved, to be taxed if not agreed.

163.  Last but not least, the Tribunal thanks both Counsel for their assistance.

Appendix 1[45]

Unit	Saleable Area (m2)	Adjustments							Adjusted Unit Rate (/m2)	EUV
		Floor	Top Floor	Size	View	Lighting & Ventilation	Internal Condition	Total
Unit A, 1/F, 24 Man On Street	14.30	4.0%	0.0%	4.3%	0.0%	0.0%	-3.0%	5.2%	$96,994	$1,387,000
Unit B, 1/F, 24 Man On Street	17.39	4.0%	0.0%	4.0%	0.0%	0.0%	-3.0%	4.9%	$96,718	$1,682,000
Unit C, 1/F, 24 Man On Street	9.42	4.0%	0.0%	4.8%	-2.0%	0.0%	-3.0%	3.6%	$95,519	$900,000
Unit D, 1/F, 24 Man On Street	13.57	4.0%	0.0%	4.4%	-2.0%	0.0%	-3.0%	3.2%	$95,150	$1,291,000
1/F, 26 Man On  Street	56.96	4.0%	0.0%	0.0%	0.0%	0.0%	-3.0%	0.9%	$93,030	$5,299,000
1/F, 28 Man On Street	57.40	4.0%	0.0%	0.0%	0.0%	0.0%	-6.0%	-2.2%	$90,172	$5,176,000
Unit A, 1/F, 30 Man On Street	13.97	4.0%	0.0%	4.3%	0.0%	0.0%	-3.0%	5.2%	$96,994	$1,355,000
Unit B, 1/F, 30 Man On Street	20.44	4.0%	0.0%	3.7%	0.0%	5.0%	-3.0%	9.8%	$101,236	$2,069,000
Unit C, 1/F, 30 Man On Street	15.64	4.0%	0.0%	4.2%	0.0%	0.0%	-6.0%	1.9%	$93,952	$1,469,000
Unit D, 1/F, 30 Man On Street	14.73	4.0%	0.0%	4.3%	-2.0%	5.0%	-3.0%	8.3%	$99,853	$1,471,000
Unit E, 1/F, 30 Man On Street	15.04	4.0%	0.0%	4.2%	-2.0%	0.0%	-6.0%	-0.2%	$92,016	$1,384,000
Unit A, 2/F, 24 Man On Street	12.79	2.0%	0.0%	4.5%	0.0%	0.0%	0.0%	6.6%	$98,285	$1,257,000
Unit B, 2/F, 24 Man On Street	17.60	2.0%	0.0%	4.0%	0.0%	0.0%	0.0%	6.1%	$97,824	$1,722,000
Unit C, 2/F, 24 Man On Street	24.18	2.0%	0.0%	3.3%	-2.0%	0.0%	-6.0%	-2.9%	$89,526	$2,165,000
Unit A, 2/F, 26 Man On Street	13.42	2.0%	0.0%	4.4%	0.0%	0.0%	-3.0%	3.3%	$95,243	$1,278,000
Unit B, 2/F, 26 Man On Street	19.31	2.0%	0.0%	3.8%	0.0%	0.0%	0.0%	5.9%	$97,640	$1,885,000
Unit C, 2/F, 26 Man On Street	21.92	2.0%	0.0%	3.5%	-2.0%	0.0%	0.0%	3.5%	$95,427	$2,092,000
2/F, 28 Man On Street	57.40	2.0%	0.0%	0.0%	0.0%	0.0%	-3.0%	-1.1%	$91,186	$5,234,000
2/F, 30 Man On Street	86.02	2.0%	0.0%	-2.9%	0.0%	5.0%	-6.0%	-2.2%	$90,172	$7,757,000
3/F, 24 Man On Street	57.40	0.0%	0.0%	0.0%	0.0%	0.0%	0.0%	0.0%	$92,200	$5,292,000
3/F, 26 Man On Street	56.96	0.0%	0.0%	0.0%	0.0%	0.0%	0.0%	0.0%	$92,200	$5,252,000
3/F, 28 Man On Street	57.40	0.0%	0.0%	0.0%	0.0%	0.0%	-6.0%	-6.0%	$86,668	$4,975,000
3/F, 30 Man On Street	86.02	0.0%	0.0%	-2.9%	0.0%	5.0%	-3.0%	-1.1%	$91,186	$7,844,000
Unit A, 4/F, 24 Man On Street	19.19	-2.0%	0.0%	3.8%	0.0%	0.0%	-3.0%	-1.3%	$91,001	$1,746,000
Unit B, 4/F, 24 Man On Street	13.83	-2.0%	0.0%	4.4%	0.0%	0.0%	-3.0%	-0.8%	$91,462	$1,265,000
Unit C, 4/F, 24 Man On Street	21.92	-2.0%	0.0%	3.5%	-2.0%	0.0%	-3.0%	-3.6%	$88,881	$1,948,000
Unit A, 4/F, 26  Man On Street	17.76	-2.0%	0.0%	4.0%	0.0%	0.0%	-6.0%	-4.2%	$88,328	$1,569,000
Unit B, 4/F, 26 Man On Street	15.49	-2.0%	0.0%	4.2%	0.0%	0.0%	-6.0%	-4.0%	$88,512	$1,371,000
Unit C, 4/F, 26 Man On Street	21.90	-2.0%	0.0%	3.6%	-2.0%	0.0%	-6.0%	-6.5%	$86,207	$1,888,000
4/F, 28 Man On Street	57.40	-2.0%	0.0%	0.0%	0.0%	0.0%	-3.0%	-4.9%	$87,682	$5,033,000
4/F, 30 Man On Street	86.02	-2.0%	0.0%	-2.9%	5.0%	5.0%	-3.0%	1.8%	$93,860	$8,074,000
Unit A, 5/F, 24  Man On Street	19.20	-4.0%	-5.0%	3.8%	0.0%	0.0%	-6.0%	-11.0%	$82,058	$1,576,000
Unit B, 5/F, 24 Man On Street	13.65	-4.0%	-5.0%	4.4%	0.0%	0.0%	-6.0%	-10.5%	$82,519	$1,126,000
Unit C, 5/F, 24 Man On Street	21.92	-4.0%	-5.0%	3.5%	-2.0%	0.0%	-6.0%	-13.0%	$80,214	$1,758,000
5/F, 26 Man On Street	56.96	-4.0%	-5.0%	0.0%	0.0%	0.0%	-6.0%	-14.3%	$79,015	$4,501,000
5/F, 28 Man On Street	57.40	-4.0%	-5.0%	0.0%	0.0%	0.0%	-6.0%	-14.3%	$79,015	$4,535,000
5/F, 30 Man On Street	86.02	-4.0%	-5.0%	-2.9%	5.0%	5.0%	-9.0%	-11.2%	$81,874	$7,043,000
									Total	$113,669,000

Appendix 2

G/F	Retail		217.00	m2	x	$293,750	/m2  =	$63,743,750
1/F	Retail (with exclusive access)		214.79	m2	x	$117,500	/m2  =	$25,237,825
	Residential Flats		1,564.15	m2	x	$265,401	/m2  =	$415,126,974
								$504,108,549
Marketing cost		3%					x	0.97
	Present Value for	2.5	years	@	3.5%		x	0.91759
									$448,688,015
Less
	Demolition Cost							$3,505,376
	Professional Fee	@	6%				x	1.06
	Profit	@	15%				x	1.15
								$4,273,053
	Present Value for	0.25	years	@	3.5%		x	0.99144
									$4,236,476
	Construction Cost							$108,706,255
	Professional Fee	@	6%				x	1.06
	Profit	@	15%				x	1.15
								$132,512,925
	Present Value for	1.5	years	@	4%		x	0.94971
									$125,848,850
									$318,602,689
	Stamp Duty @		4.25%
	Legal Cost @		0.10%
	Developer's Profit on Land		15%					÷	1.1935
									$266,948,210
								Say	$267,000,000
						Accommodation Value :			$98,845