TAI PING RESTAURANT LTD v. DIRECTOR OF LANDS

LDLR 1/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LANDS RESUMPTION APPLICATION NO 1 OF 2013

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J U D G M E N T

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BACKGROUND

1. This is an application by the applicant for determination ofcompensation pursuant to section 10(2)(a) of the Lands Resumption Ordinance, Cap. 124 (“the Ordinance”). 

2. The applicant is the former registered owner of section C of Kowloon Inland Lot No 1684 (“the Lot”), with a building erected thereon known as No 600 Shanghai Street, Kowloon, Hong Kong (“the Property”).  The Property is a 4-storey building completed in about 1927.

3. By a notice of resumption dated 25 July 2012 and published in G.N. 5234[1], the Government informed the applicant that the Lot would be resumed and reverted to the Government for implementation of Development Scheme MK/01 by the Urban Renewal Authority at Shanghai Street / Argyle Street, Mong Kok, Kowloon on the expiration of 3 months from the date of affixing of the notice.  The notice of resumption was affixed to the Lot on 3 August 2012.  Thus, upon expiration of the 3-month notice period, reversion took place at midnight on 3 November 2012.

4. At the hearing, the applicant and the respondent had no dispute that, under section 10(2)(a) of the Ordinance, the basis of compensation in the present proceedings should be the market value of the Property as at the date of resumption, i.e. 3 November 2012.  They agreed that market value of each storey of the Property and the roof should be assessed separately.

5. They further agreed the market values of the upper floors of the Property from 1^st floor to 3^rd floor and the roof in the total sum of $10,510,023, with breakdown as follows: -

a. 1st Floor :	$5,056,336
b. 2nd Floor :	$2,558,989
c. 3rd Floor :	$2,603,018
d. Roof :	$291,680

6. The only issue remains to be determined by the tribunal is the compensation for the ground floor of the Property (“the Ground Floor”). 

7. Although the Ground floor was subject to a tenancy as at the date of resumption, the parties agreed to value it by comparative method on the basis of vacant possession.

THE EVIDENCE

8. The parties had produced the following expert reports and documents on valuation:

Mr Leo S D Cheung (“Mr Cheung”) of Prudential Surveyors (Hong Kong) Limited, on behalf of the applicant

(1) Expert report dated 20 May 2013[2];

(2) Supplementary expert report dated 28 February 2014[3];

(3) Graph of 3 comparables and sensitivity analyses of various adjustment factors[4].

Mr Lai Wah Chi (“Mr Lai”) of AA Property Services Limited, on behalf of the respondent

(1) Expert report dated 25 November 2013[5];

(2) Supplementary expert report dated 24 February 2014[6].

9. In addition, the experts had prepared a joint expert statement dated 13 October 2014 (“the Joint Statement”) and a further joint expert statement dated 16 October 2014 (“the Further Joint Statement”) setting out the areas of agreement and disagreement on the particulars of the Property and the comparables.

10. The parties together with their experts and I have inspected the Property and the comparables externally on 14 October 2014.  Before the site visit, we were all aware that the actual observations in the site visit would be affected by the protests and consequent blockage of pedestrian and vehicular access to the area, and would also be different from the conditions as at the valuation date of 3 November 2012.

PARTICULARS OF THE GROUND FLOOR

11. Pursuant to the two Joint Statements, the following particulars of the Ground Floor are agreed, inter alia, between the parties:

a. Building Age :	1927
b. Effective Saleable Area :	49.19m²
c. Clear Headroom :	4.85 meters
d. Full Site Depth :	14.48 meters
e. Frontage onto Shanghai Street :	3.30 meters (full); 2.76 meters (clear)
f. Frontage onto Hong Lok Street :	4.42 meters (full); 4.19 meters (clear)

AGREEMENTS ON ADJUSTMENT FACTORS

12. Pursuant to the Joint Statement, the following adjustment factors are agreed, inter alia, between the parties:

a. Building Age :	No adjustment shall be made
b. Headroom :	2% for every 1 meter difference
c. Time Adjustment :	Based on the updated Private Retail Price Index for October 2012
d. Relevant Dates for Time Adjustment :	Based on the dates of provisional agreement for sale and purchase

DISAGREEMENTS BETWEEN THE PARTIES

13. For the valuation of the Ground Floor, Mr Cheung proposed 8 shop comparables (referred to as “A1” to “A8”), whilst Mr Lai proposed 5 shop comparables (referred to as “R1” to “R5”) including R2 and R3 that are combined as one comparable for analysis.  Nevertheless, pursuant to the two Joint Statements, both parties agreed not to adopt A5 and A8 in the present valuation.

14. At the hearing, Mr Cheung changed his expert opinion and advised the tribunal that R4 proposed by Mr Lai is the best comparable in the present valuation, although he had not included this comparable in his expert report. Mr Cheung explained he was aware of R4 when he prepared his expert report.  He then considered a substantial downward adjustment for location of more than 20% should be applied to R4 and hence did not adopt it in his initial assessment. Further, when Mr Cheung commented on the comparables proposed by Mr Lai in his supplementary report, he had not considered R4 as the best comparable.  He had only accepted R4 as one of the 11 comparables in his revised valuation of the Ground Floor and made a downward adjustment for location at 10% to R4, same as that suggested by Mr Lai.

15. Based on Mr Cheung’s expert opinion at the hearing, Mr Miu, for the applicant, submitted that the tribunal should adopt R4 alone as comparable in the present valuation.

16. Nevertheless, Mr Pao, for the respondent, submitted that there is reason to doubt the overall reliability of Mr Cheung’s evidence because Mr Cheung was willing to change his professional view for the purposes of suiting the interest of his client.  Mr Pao also submitted that the change of Mr Cheung’s expert opinion from the abandonment of R4 as comparable to the consideration of R4 as the best comparable is not the only example.  Mr Cheung had also been willing to drop the adjustment for building age and A5 and A8 as comparables in the valuation prior to the hearing.  All these changes are in favour of the applicant.

17. Although the changes of Mr Cheung’s expert opinion during the proceedings appeared to be opportunistic, I consider the examples quoted by the respondent alone could not undermine the reliability of all Mr Cheung’s evidence.  I find some valuation points of Mr Cheung useful and would consider them in the valuation.

18. Other than the selection of comparables, Mr Cheung and Mr Lai had disagreements on the adjustments for location, size, frontage, additional accessibility / visibility onto Hong Lok Street, frontage to depth ratio, and etc. The disagreements between the parties are discussed in the paragraphs below.

Selection of Comparables

19. In the closing submission, Mr Miu submitted the applicant’s primary case as follows: -

“(1) Comparables differ in terms of “quality”: a comparable that requires little adjustment for individual factors, as well as overall adjustment, is superior to one that requires large adjustments for individual factors and/or overall.

(2) There is no minimum number of comparables that the Tribunal must adopt. The Tribunal should consider the quality of the comparables and the weight to be attached to them.

(3)  While no market is perfect, the imperfection in the market is not to be cured by increasing the number of comparables.  Adding in comparables which are obviously poorer in quality does not improve the quality of the analysis. The Tribunal should only consider “the best comparable(s)” that is (are) available.

(4) In an appropriate case, if one comparable is shown to be sufficiently similar to the subject property, and superior to all others, the Tribunal can and should use just that one comparable for analysis.”

20. Mr Miu relied on two previous tribunal cases to illustrate his submission.  In Yuen Long Fish Merchants Association Limited v Secretary for Transport LDMR 44/2000, the tribunal had adopted 2 out of 19 comparables proposed by the parties.  The 2 common comparables that are located within the same town were considered to be the best comparables.  In Yin Shuen Enterprises Limited v Director of Lands LDLR 5/2000, notwithstanding the Government’s successful appeal on the legal issue (FACV 3/2000; [2003] 2 HKLRD 399, (2003) 6 HKCFAR 1), only 1 comparable was adopted in the first instance judgment though the applicant had proposed 2 comparables and the respondent had proposed 3 comparables in the assessment. Mr Miu contended that, as indicated in these two cases, the tribunal should be far more concerned with quality than quantity of the comparables.

21. Mr Pao had also referred this tribunal to two previous tribunal cases.  In both Tsan Luk Yuk Lin v Secretary for the Environment, Transport and Works LDMR 3/2005 and John James Toohey v Hero Plaza Limited LFNT 60/1999, the tribunal agreed that “it is generally not a good approach to carry out any valuation by direct comparison method using a single comparable”.

22. I consider there is no contradiction among the findings of these four tribunal cases. I agree it is generally not a good approach to carry out any valuation by direct comparison method using a single comparable.  I also agree quality of the comparables is more important than quantity of the comparables.  It is a matter of valuation that the backgrounds and availability of objective evidence would determine the number of comparables to be adopted in a particular valuation.  Different cases would have different backgrounds and evidence, and therefore may have different number of comparables in the respective assessments.  There is no fixed valuation rule in this regard.

23. I consider Mr Miu had overstated in (3) and (4) of his submission in paragraph 17 above.  In (3), I consider the tribunal should only consider “relevant comparable(s)”, instead of “the best comparable(s)”, that is (are) available in an imperfect market.  In (4), I consider if one comparable is shown to be sufficiently similar to the subject property and superior to all others in an appropriate case, the tribunal can and “may”, instead of “should”, use just that one comparable for analysis. All depend on the backgrounds and evidence in each valuation.

24. In the present valuation, I agree that R4, which is close to the Ground Floor, is located in an area with cluster of retail shops (i.e. shops selling interior decoration materials) similar to the subject location and was transacted close to the valuation date, is comparable to the Ground Floor and is a relevant comparable.  Nevertheless, the relevancy of other comparables should also be examined.

25. Mr Cheung opposed the use of R2 and R3 as comparables in his supplementary expert report.  He further opposed the use of R1 and R5 as comparables at the hearing.  The reasons of his opposition are as follows: -

R1	Its location is far away from Langham Place with different character and trade.
R2 and R3	They are located in a different neighborhood, on the eastern side of Nathan Road and far away from the Mongkok MTR station and Langham Place.
R5	It was transacted much earlier than the valuation date with substantial overall adjustments.

26. I, with the benefit of site visit together with the parties, agree with Mr Cheung that R1, R2 and R3 are not the relevant comparables in the present valuation.  R1’s location is relatively far from the Ground Floor and has different character and trades in its vicinity.  R2 and R3 on the other side of Nathan Road are located in a different neighborhood.

27. R5 is located in an area with cluster of retail shops (i.e. shops selling interior decoration materials) similar to R4 and the Ground Floor.  Since there would be lesser location adjustment to R5 and the time difference could be adjusted with reference to price index, I accept R5 as a relevant comparable in the present valuation.

28. Mr Lai opposed the use of A1, A2, A3, A4 and A7 as comparables in the present valuation because of the following reasons: -

A1	It is a corner shop with an irregular shape and is substantially smaller than the Ground Floor too.
A2	It is located in a prime location with frontage onto Nathan Road.
A3 and A7	They are located in the busiest area in this part of Mong Kok and in the immediate vicinity of Langham Place, where have heavy pedestrian flow.
A4	It is close to an extremely busy pedestrian subway with heavy pedestrian flow.

29. I agree with Mr Lai that A1 is not comparable to the Ground Floor at all. In the applicant’s closing submission, the applicant also withdrew A1 as a comparable from consideration.  

30. I, with the benefit of site visit together with the parties, also agree with Mr Lai that A2, A3, A4 and A7 are not the relevant comparables in the present valuation because their respective locations are much better than the location of the Ground Floor.  The characters of their respective localities and trades in their respective vicinities are different from the Ground Floor too.

31. Mr Lai has not opposed the use of A6 as comparable, but he did not agree on the location adjustment suggested by Mr Cheung.  I accept it as a relevant comparable in the present valuation.

Adjustment for Location

32. Mr Cheung and Mr Lai agreed on the adjustment for location to R4 at -10%, but they had disagreements on adjustments to A6 and R5 as follows: -

	Mr Cheung	Mr Lai
A6	0%	-15%
R5	25%	15%

33. I agree with Mr Lai A6 is better than the Ground Floor and would command a downward location adjustment, but I consider the adjustment rate should be -5% only.  On the other hand, I agree with Mr Lai lesser upward adjustment at 15% should be made to R5.  I consider the location of R5 is not as worse as that suggested by Mr Cheung.

Adjustment for Size

34. Mr Cheung applied an adjustment rate of 1% per 10m² differences in size between the comparables and the Ground Floor, whilst Mr Lai applied an adjustment rate of 1% per 4m².  Mr Cheung considered Mr Lai’s adjustment rate is excessive and is suitable for valuation of tiny shops in prime areas only.  Mr Lai considered Mr Cheung’s adjustment rate is insufficient to take into account the difference in value for shops on account of quantum difference in this case.  

35. I agree with Mr Lai that Mr Cheung’s adjustment rate is on the low side and the present valuation justifies an adjustment rate for size at 1% per 4m².

Adjustments for Frontage, depth and etc.

36. The parties had adopted two different approaches to adjust for frontage, depth, and etc.  In addition to the adjustment for full frontage, Mr Cheung made adjustments for return frontage, additional accessibility / visibility onto Hong Lok Street and depth to frontage ratio.  Mr Lai had also considered the frontage onto Hong Lok Street, but he made adjustment for clear frontage only and nil adjustment for depth.  

37. Except the adjustment for return frontage to A1, which will not be discussed in this judgment because A1 is not selected as a comparable in the present valuation, the main differences and arguments between the parties are as follows: -

	Mr Cheung	Mr Lai
Adjustment for clear or full frontage	Full frontage: the columns on the frontage can and should be included in the computation of frontage because they are usually painted with the shop’s colour and to that extent would help to enhance the image of the shop	Clear frontage: (1) the more important element of the frontage of a shop is its clear frontage which allows for access to the shop and space where goods and items may be displayed; (2) since columns may be located in different places on the shop front and may vary in terms of width and prominence, it is desirable for comparison purposes to use clear frontage for the purposes of consistency and uniformity
Adjustment for frontage onto Hong Lok Street	5% upward adjustment	Half of the width of the lot boundary of Hong Lok Street is added to the effective frontage for comparison purposes
Adjustment for depth to frontage ratio	(1) only half of the full site depth is computed; (2) 5% for every 0.4 ratio difference; (3) to account for the difference in depth and regularity of shape	Nil because its inclusion would consider the frontage twice in the assessment.  Further, Mr Pao submitted that it defies common sense, has not considered the different weight attached to depth and frontage respectively, and would ignore the need to consider the irregularities in layout
Adjustment rate for frontage	2% for every 1 meter difference	4% for every 1 meter difference
Adjustment for depth	The use of depth to frontage ratio has already accounted for the difference in depth	(1) the depth of the Ground Floor and the comparables are within similar depth range; (2) the adjustment for size differences has already accounted adequately for the depth differences

Adjustment for clear or full frontage

38. I consider columns on the frontage of a shop are valuable, but the weight of such columns in an assessment is generally less than that of clear frontage.  Subject to the availability of information, different weights should be attached to columns on the frontage and clear frontage respectively in an assessment. Nevertheless, in the absence of detailed assessment, there is no material difference between these two approaches if each could be applied consistently in the valuation. 

39. In the present valuation, I would prefer the adjustment for full frontage to the adjustment for clear frontage because the former would not miss the effects of columns on the frontage if any in the frontage adjustment.

Adjustment for frontage onto Hong Lok Street

40. In the absence of comparable similar to the Ground Floor with frontages onto two parallel streets, the parties had made subjective adjustments to account for the frontage onto Hong Lok Street.  Nevertheless, irrespective of the differences in the two approaches, Mr Miu contended that the end result of the adjustments for additional accessibility / visibility onto Hong Lok Street and depth to frontage ratio suggested by Mr Cheung is not all that different from the frontage adjustment suggested by Mr Lai[7]. Mr Pao also submitted that the two approaches, in substance, are close to each other, and the real issue is the rate of frontage adjustment only.

41. In the present valuation, I would prefer Mr Cheung’s approach to Mr Lai’s approach because the former is relatively straight forward to reflect the effects of the second frontage on value.  Mr Lai’s approach is complicated by both the computation of effective frontage and the rate of frontage adjustment, which would be applied to the adjustments for both main frontage and second frontage.

Adjustment for depth to frontage ratio

42. Mr Pao’s  contentions are based on two recent tribunal cases, Supergoal Investment Limited v Five F Ming House Limited [2014] 1 HKLRD 286 at §§93-97 and Main Light Limited v Chow Chiao Shing Tseng and Others LDCS 40000/2012, 30/06/2014 at §§30-38. I agree with the respondent that the present valuation should not adopt the adjustment for depth to frontage ratio.

43. The adjustment for depth to frontage ratio has also been the subject matter of comments by the tribunal in Main Light Limited v Time Richie Investment Limited LDCS 3000/2013, 31 October 2014 at §§20-25, which did not agree to adopt this adjustment too.  The counsel in this case rightly pointed out that such ratio only shows the relativity of these two factors but cannot always reflect the impact which each factor may have on the valuation of a particular property.

44. Although I agree depth to frontage ratio could to a certain extent reflect the shape of a property as suggested by Mr Cheung, the adjustment rates in the range of 4% to 29% in Mr Cheung’s valuation are substantial and could not be the appropriate adjustments for shape if necessary.  In the event if there are needs to adjust for depth and/or shape, these adjustments should be made separately. 

45. Further, even if the adjustment for depth to frontage ratio is to be adopted in the valuation, I have reservation about the measurement of depth suggested by Mr Cheung.  He had taken only half of the full site depth to compute the effective depth of the Ground Floor, but there is only one shop to be valued.  I do not find the justifications for such measurement of depth and agree with Mr Lai that this is unsupported by authority.

Adjustment rate for frontage

46. Whilst Mr Lai suggested a higher adjustment rate for frontage at 4% per 1 meter difference in clear frontage, Mr Pao submitted that the adjustment rate at 2% per 1 meter difference in full frontage suggested by Mr Cheung would be insufficient to reflect the difference in value.

47. In view of the respective submissions, I agree with Mr Cheung on the adjustment rate at 2% per 1 meter difference in full frontage.  The adjustment for frontage in this instance should reflect the effects of the frontage onto Shanghai Street only and should not be mixed up with the adjustment for frontage onto Hong Lok Street.

48. Generally, we may not make any adjustment for frontage unless the frontage in consideration is clearly superior or inferior to the norm that the benefits or disabilities which the frontage produces are clearly evident.  In the present valuation, I consider the adjustment rate at 4% per 1 meter difference suggested by Mr Lai is excessive.

Adjustment for depth

49. Both parties considered there should be adjustment for depth, but they had adopted different approaches to make this adjustment.  Mr Cheung contended that the adjustment for depth to frontage ratio has already accounted for the difference in depth, whilst Mr Lai contended that the shop comparables are within similar depth range and the adjustment for size has already accounted for the difference in depth. 

50. I do not agree with both Mr Cheung and Mr Lai on their respective approaches to account for the depth differences.  I do not agree to make an adjustment for depth to frontage ratio in the present valuation, which has been discussed in the above paragraphs.  On the other hand, I consider the shop comparables are not within similar depth range.  I am also of the view that size and depth are two different attributes of a shop and their adjustments should not be considered together in one adjustment rate.  A larger shop may not have a longer depth and vice versa. 

51. I consider depth should be adjusted separately in the present valuation. Since only one shop instead of two shops is valued and the adjustment for frontage onto Hong Lok Street should have not taken depth into consideration, the full site length of the Ground Floor should be considered in the direct comparison.  In view of the subject location, I consider an adjustment rate at 1% per 1.5 meters difference could be applied in the present valuation.

VALUATION OF THE GROUND FLOOR

52. In view of the above agreements on adjustment factors and discussions on disagreements between the parties, the Ground Floor is valued as follows: -

Subject/ Comparable	A6	R4	R5	Subject
Consideration	$29,700,000	$42,800,000	$57,000,000
Full Frontage (m)[8]	3.25	3.72	4.50	3.30
Depth (m)	9.23	9.14	20.37	14.48
Headroom (m)	4.71	3.70	4.80	4.85
Effective Saleable Area (m²)	30.01	27.62	82.76	49.19
Unit Rate (per m²)	$989,670	$1,549,602	$688,739
Adjustments
(i) Age[9]	0.0%	0.0%	0.0%
(ii) Time[10]	27.7%	2.6%	27.7%
(iii) Headroom[11]	0.3%	2.3%	0.1%
(iv) Location[12]	-5.0%	-10.0%	15.0%
(v) Size[13]	-4.8%	-5.4%	8.4%
(vi) Main Frontage[14]	0.1%	-0.8%	-2.4%
(vii) Second Frontage[15]	5.0%	5.0%	5.0%
(viii) Depth[16]	-3.5%	-3.6%	3.9%
Total Adjustments	19.8%	-9.9%	57.7%
Adjusted Unit Rate (per m²)	$1,185,625	$1,396,191	$1,086,141	$1,222,652
				(average)

53. The then market value of the Ground Floor is assessed at $60,142,252 ($1,222,652 per m² x 49.19m²).

CONCLUSION

54. I determine the value of the Ground Floor of the Property should be, for the purpose of section 10(2)(a) of the Ordinance, in the sum of $60,142,252. Further, both parties had agreed on the market values of the upper floors of the Property from 1^st floor to 3^rd floor and the roof in the total sum of $10,510,023. The total of the two is $70,652,275, which could be rounded down to $70,650,000.

ORDERS

55. Accordingly, I order that the respondent do pay the applicant compensation for the Lot in the sum of $70,650,000.  The matters of professional fees, interest and costs shall be adjourned to a date to be fixed, with liberty to apply for any other ancillary and consequential matters.