HARVEST TREASURE LTD AND OTHERS v. CHEUNG FAT ENTERPRISES LTD AND OTHERS

LDCS 8000/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO. 8000 OF 2014

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REASONS FOR DECISION
APPLICATION FOR LEAVE TO APPEAL

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1. These are applications of the 1^st Respondent  (“R1”) for leave to appeal and stay of execution of an order for sale made on 31 December 2015 by this Tribunal (“the Sale Order”) concerning two properties it held in Po Fat Building in Belcher Street.

2. We refused both applications after hearing submissions and on the same day (18 February 2016) we handed down reasons for refusing stay.  We understand that interim stay has been granted by the Court of Appeal later on the same day pending full hearing of the two applications on 11 March 2016.  The public auction scheduled for 19 February 2016 was thus cancelled.  We do not think we need to deal with the stay application here again.  We however set out below reasons for our refusing R1’s application for leave to appeal.

The Question of Law on Appeal

3. Ms Eu on behalf of R1 submitted that the sole question of law[1] posed for the Court of Appeal relates to the evidence of the Applicants’ expert, Mr Charles Chan (“Mr C Chan”) and is significant, especially in compulsory sale cases where the Court relies on expert valuation.

4. The complaint is that, according to Ms Eu, Mr C Chan would not have disclosed the Charge, Conviction (Decision) or Sentence (suspension) relating to his discipline by his professional body, the Hong Kong Institute of Surveyors but for the request of the 5^th -7^th Respondents.  It was only on 9 September 2015, at their application and on order of the Tribunal, that Mr C Chan disclosed the relevant documents (“Confidential Documents”) for the sole purpose of LDCS 8000/2014.

The Leave to Appeal

5. It is not disputed that leave to appeal shall not be granted unless Lands Tribunal  or the Court of Appeal is satisfied that either (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice why the appeal should be heard (s.11AA(6) of the Lands Tribunal Ordinance (Cap.17; “LTO”)).

Reasonable Prospect of Success

6. It is Ms Eu’s submission that R1’s appeal has a reasonable prospect of success.  Mr C Chan’s deliberate failure of its duty to disclose the Charge, Decision and/or Sentence had rendered his evidence inadmissible and/or of no weight.  Further an expert owes an overriding duty to the Court, Mr C Chan’s evidence and his declarations pursuant to the Code of Conduct are governed by O38 r37C, which states that expert reports and oral evidence are “not admissible” unless the expert declared that he has complied with his duty to the Court[2].  It should also be noted that O38 r37C stipulates a continuing duty.

7. Ms Eu submitted that in the circumstances, this Tribunal erred (at §50-56 of the Judgment) in finding (i) that Mr C Chan owed no duty to disclose the Charge and (ii) that “qualification” in §9 of the Code of Conduct only meant qualification/limitation to Mr C Chan’s professional qualifications.  It was submitted that this Tribunal ought to have held that the Charge, Decision and/or Sentence is/are “qualification” (in §9 of Code of Conduct), which affect(s) the completeness/accuracy of Mr C Chan’s Reports and his evidence should have been disclosed to the Court.

8. In fact, when we said that the Charge itself was not a “qualification” to the profession qualifications of Mr C Chan as at the time of the application report we were dealing with the contention of R1’s counsel, which was set out in §53.  We were of the view that Mr C Chan should be presumed innocent upto the time of “conviction” and in that sense, his professional qualifications should not be “qualified” at a time prior to that (§53 of the Judgment).  Other than his professional qualifications we have further dealt with the effect of the non-disclosure of the Charge on Mr C Chan’s opinion in §§57-70.

9. The other points raised by Ms Eu have been dealt with in our judgment as could be seen at §§22-70.  We do not think we have much to add in this judgment except that we agree basically with the rebuttal and reply put forth by Mr Mok for the applicants.  Suffice to quote what we have stated at §2 in our Notes on Decision on application for Stay handed down on 18 February 2015:-

“We state here at the outset that some of the reasons we refused leave to appeal are:-
(i)	Section 10 (6) of the Lands Tribunal Ordinance stipulated that:- “The Tribunal may admit in evidence any statement, document, information or matter, whether or not it would otherwise be admissible in evidence and attach such weight to it as may be appropriate in the circumstances.”
(ii)	This Tribunal was fully aware of the Charge, the Disciplinary Hearing and the Sentence at the time of the final submissions where parties were given an opportunity to argue on their respective stances and their submissions had been considered when the various issues were determined.
(iii)	This Tribunal has expertise to examine expert reports and their opinions.  The Tribunal is not bound to accept the expert evidence tendered and may rely on its own experience in determining the disputes under section 4(1)(a) of Cap 545.”

Interest of Justice

10.  Further, as an alternative, Ms Eu relied on the second limb of s.11AA(6) of the LTO, i.e. the ground on “Interest of Justice”.  Ms Eu submitted that leave to appeal should be granted as the question of law is one of general principle for which there is no direct authority, or a question of importance upon which the Court of Appeal’s decision would be to the public advantage in all cases involving expert evidence.

11. We are of the view that given the special features of the Lands Tribunal where a valuation expert is sitting to profess his expertise, the present case may not be the most suitable one for the Court of Appeal to set down general principles.

12.  At the conclusion of the hearing on 18 February 2016 we also made order for costs that order should follow the event, to be taxed at High court scale if not agreed.

13.  Our order is as follows:-

(1)	R1’s applications for leave to appeal and stay of execution be dismissed;
(2)	Costs should follow the event, to be taxed at High Court scale if not agreed; and
(3)	Leave be granted to R1 to use the Confidential Documents for these applications and/or the appeal.