ASIA HARBOUR INVESTMENT LTD v. SINO MASTER GROUP LTD AND OTHERS

LDCS 4000/2017

[2020] HKLdT 55

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO 4000 OF 2017

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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 collectively referred to as “the Lots”):

Pair number	Lot number	Building erected on the lot
1st Pair	Hung Hom Marine Lot 1 section A subsection 9 section A (“Lot 1”)	2 Gillies Avenue South
	Hung Hom Marine Lot 1 section A subsection 9 section B (“Lot 2”)	4 Gillies Avenue South
2nd Pair	Hung Hom Marine Lot 1 section A subsection 9 section C (“Lot 3”)	6 Gillies Avenue South
	Hung Hom Marine Lot 1 section A subsection 9 section D (“Lot 4”)	8 Gillies Avenue South
3rd Pair	Hung Hom Marine Lot 1 section A subsection 9 section E (“Lot 5”)	10 Gillies Avenue South
	Hung Hom Marine Lot 1 section A subsection 9 section F (“Lot 6”)	12 Gillies Avenue South
4th Pair	Hung Hom Marine Lot 1 section A subsection 9 section G (“Lot 7”)	14 Gillies Avenue South
	Hung Hom Marine Lot 1 section A subsection 9 section H (“Lot 8”)	16 Gillies Avenue South
5th Pair	Hung Hom Marine Lot 1 section A subsection 9 section I (“Lot 9”)	18 Gillies Avenue South
	Hung Hom Marine Lot 1 section A subsection 9 section J (“Lot 10”)	20 Gillies Avenue South
6th Pair	Hung Hom Marine Lot 1 section A subsection 9 section K (“Lot 11”)	22 Gillies Avenue South
	Hung Hom Marine Lot 1 section A subsection 9 section L (“Lot 12”)	24 Gillies Avenue South

2.  The 12 buildings being erected at 2-24 Gillies Avenue South (hereinafter referred collectively as “the Buildings”) occupy a corner site bound on the southwest by Hung Hom South Road and on the northwest by Gillies Avenue South. They constitute a terrace of 6 pairs of 7-storey buildings each pair sharing 2 common staircases. There is no lift service provided for any of the Buildings

3.  The occupation permit for the Buildings (“OP”) was issued pursuant to the Building Ordinance (Chapter 123 of the Revised Edition, 1950) on 12 July 1956 whereby permission was granted to occupy and use the Buildings for domestic purposes.

4.  Section 2 of such earlier Buildings Ordinance defines ‘domestic building’ to mean “any building constructed, used or adapted to be used, wholly or partly, for human habitation, but does not include any building where caretakers only, not exceeding two in number, pass the night” (underline added).

5.  According to the General Building Plans approved on 11 January 1956 (“the Approved Building Plans”), each of the Buildings comprises a ground floor (“G/F”) with front portions for shop use & rear portion for domestic use, a mezzanine floor (“M/F”) for office use and 1^st Floor to 5^th Floor for residential use. The total gross floor area of the Buildings is about 9,700 sq m.

6.  While each building has its own Deed of Covenant which allots 2 equal and undivided shares to each floor, 1 share to the front portion and 1 share to the rear portion, the applicant has acquired ownership of the respective shares as follows[1]:

Pair number	Lot number	Undivided shares owned by the applicant at the commencement of the Application			Undivided shares owned by the applicant at the commencement of trial
		Number of shares	Percentage share in each lot	Average percentage share in each pair of lots	Number of shares	Percentage share in each lot	Average percentage share in each pair of lots
1st Pair	Lot 1	14/14	100%	85.72%	14/14	100%	100%
	Lot 2	10/14	71.43%		14/14	100%
2nd Pair	Lot 3	13/14	92.86%	96.43%	13/14	92.86%	96.43%
	Lot 4	14/14	100%		14/14	100%
3rd Pair	Lot 5	12.5/14	89.29%	90.18%	14/14	100%	95.54%
	Lot 6	12.75/14	91.07%		12.75/14	91.07%
4th Pair	Lot 7	14/14	100%	96.43%	14/14	100%	100%
	Lot 8	13/14	92.86%		14/14	100%
5th Pair	Lot 9	12.67/14	90.50%	88.11%	12.67/14	90.50%	91.68%
	Lot 10	12/14	85.71%		13/14	92.86%
6th Pair	Lot 11	10/14	71.43%	81.40%	13/14	92.86%	96.43%
	Lot 12	12.79/14	91.36%		14/14	100%

7.  Ms Nancy Ngai (“Ms Ngai”), counsel for the applicant, summarized in her opening submission that at the time of the Application dated 5 June 2017, the applicant owned not less than an average of 80% of the undivided shares of each pair of the Lots. As at the date of trial on 5 November 2020, the applicant also owned not less than an average of 80% of the undivided shares of each pair of the Lots.

8.  Thus there were 18 respondents at the time of commencement of the Application on 5 June 2017. Subsequently, upon the 19^th respondent’s application, he was joined as one of the respondents in these proceedings. Then, the applicant successfully acquired the undivided shares or interests in the Lots owned by the respondents listed in the table below. The applicant has already discontinued the proceedings against them:

Respondent	Date of Filing Notice of Discontinuance
R1	9 January 2019
R2	4 September 2018
R3	1 November 2017
R4	4 September 2018
R6	14 October 2020
R9	1 November 2017
R11	1 November 2017
R13	4 September 2018
R14	1 November 2017
R16	1 November 2017
R17	1 November 2017
R18	15 March 2019
R19	29 October 2020

9.  There are now 6 live respondents remaining on record, the particulars of which are as follows:

Pair number	Lot number	Live Respondent (“R”)	R’s Property	R’s Undivided Share	R’s Solicitors  (if any)	R’s Notice of Opposition
1st Pair	Lot 1	-	-	-	-	-
	Lot 2	-	-	-	-	-
2nd Pair	Lot 3	R5	Front Portion of M/F	1/14	In person	R5 has not filed anything. It does not oppose the Application and asks to be excused from trial.
	Lot 4	-	-	-	-	-
	Lot 5	-	-	-	-	-
	Lot 6	R7	Front Portion, 1/F	1/14	In person	(1)   Applicant’s purchase price did not come up to market price； (2)   Having another residential unit elsewhere, R7’s repurchase of an alternative residential unit would be liable for ad valorem stamp duty of 15%.
		R8	25% of Front Portion, 5/F	¼ of 1/14	Missing Owner	-
4th Pair	Lot 7	-	-	-	-	-
	Lot 8	-	-	-	-	-
5th Pair	Lot 9	R5	Portion B of Front Portion, 3/F	1/3 of 1/14	In person	R5 has not filed anything. It does not oppose the Application and asks to be excused from trial.
		R10	Rear Portion, 4/F	1/14	In person	R10 has not filed anything.
	Lot 10	R12	Front Portion, 1/F	1/14	In person	R12 has not filed anything.
6th Pair	Lot 11	R15	Rear Portion, 2/F	1/14	In person	Applicant’s purchase price did not come up to market price.
	Lot 12	-	-	-	-	-

10.  In respect of R8 in particular, substituted service of the Application was effected on 3 August 2018 pursuant to the Order of HH Judge Kot dated 12 July 2018. R8 had not shown up after the expiration of the 1-month period as specified in the Notice. Pursuant to paragraph 2 of the Order dated 12 July 2018, R8 and all persons claiming to be the minority owners of the Lots shall be bound by the proceedings as if they have been served with the Application in accordance with section 3(3)(a) of the Ordinance. Service of the Order dated 12 July 2018 and all subsequent documents in relation to the present proceedings on R8 has also been dispensed with.

The Issues in the Application

11.  Mr Ngai summarized the following issues as shall be determined by the Tribunal:

(1) Whether the applicant is entitled to make the Application under the Ordinance?

(2) Whether redevelopment of the Lots is justified due to the “age” or “state of repair” of the Buildings insofar as the requirement under section 4(2)(a)(i) of the Ordinance is concerned?

(3) Whether the applicant has taken reasonable steps to acquire all the undivided shares of the Lots on terms that are fair and reasonable in accordance with section 4(2)(b) of the Ordinance.

(4) What are the market values of all the properties in the Buildings owned by the applicant and the “minority owners” respondents as at 7 April 2017 (which is usually termed by the valuation profession as the Existing Use Values or just “EUV”) assessed in accordance with Part 1 of Schedule 1 to the Ordinance, ie without taking into account the redevelopment potential of the Lots?

(5) What should be the reserve price for the sale of the Lots by reference to the redevelopment value (“RDV”) of the Lots as a composite site if Orders for sale should be made?

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 OP for the Buildings was issued on 12 July 1956, 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 not less than an average of 80% of the undivided shares of each pair of the Lots, 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 7 April 2017

Assessment of EUV of G/F Units

17.  The Application was accompanied by a valuation report dated 28 April 2017 (“Application Report”) prepared by Mr Wong Chi Wai (“Mr CW Wong”) of Grandmax Surveyors Limited which contained assessments of the EUV of all units in the Buildings on the Lots as at 7 April 2017. The Application Report was prepared not earlier than 3 months before the date of the Application, i.e. 5 June 2017 and is therefore, in my view, in compliance with section 3 of the Ordinance.

18.  Under section 4(1)(a)(i), if there is a dispute between the parties on the EUV of the units in the Buildings on the Lots, the Tribunal has to determine the values.

19.  Section 4(1)(a)(ii) further provides that, in the case of any minority owner of the Lots who cannot be found, the majority owner of the Lots is required to satisfy the Tribunal that the value of the minority owner’s property as assessed in the application is “(A) not less than fair and reasonable; and (B) not less than fair and reasonable when compared with the value of the majority owner’s property as assessed in the application.”  

20.  In the Application Report of 28 April 2017, Mr CW Wong explained the method of valuation and the process of his assessment to arrive at the EUV of each unit of the Buildings.

21.  In assessing the EUV of the ground floor units, Mr CW Wong just followed the designated shop use in accordance with the Approved Building Plans of the Buildings.

22.  Notwithstanding the “domestic purposes” as specified in the OP, I agree that the ground floor units in the Buildings should be valued as shops having regard to the definition of “domestic building” of the then Buildings Ordinance which allowed for wholly or partly human habitation.

23.  In Tsuen Wan Trade Association Education Foundation Ltd. v. Chui Kam Ying [2012] 2 HKLRD 1163, Jeremy Poon J (as he then was), when considering a similar provision under the old Buildings Ordinance No 18 of 1935, ruled at §22 of the judgment that:

“… even if two domestic permits had in fact been issued, it does not necessarily follow that the Property can be used for residential purpose only. ….. This inferentially but strongly shows that the Property can in fact be used for non-residential purposes legally.” (underline added).

24.  Hence, Mr CW Wong adopted the following methodology in his assessments:

(i) He selected the Front Portion of G/F, 24 Gillies Avenue South as the Reference Shop Unit.  He then took into account 8 comparable shop transactions in the vicinity. After making what he regarded as the necessary adjustments (for time, location, layout, size, frontage, return frontage, headroom and building age etc) for all these comparable transactions, he took off the highest and the lowest comparables and adopted the average of the adjusted unit rates of the other comparables to come to the unit price of the Reference Shop Unit.

(ii) He further considered the size and frontage/layout, the Reference Shop Unit and the other shop units at G/F of the Buildings and made adjustments to arrive at the EUV for the latter

Assessment of EUV of M/F Units

25.  For the assessment of the mezzanine floor commercial portion, Mr CW Wong adopted the commercial unit on Front Portion of M/F, 24 Gillies Avenue South as the Reference Commercial Unit. He then took into account 5 upper floor commercial transactions in the vicinity. After making what he regarded as the necessary adjustments (for time, location, floor, size, building age, view and lift etc) for all these comparable transactions, he adopted the average of the adjusted unit rates of the comparables to come to the unit price of the Reference Commercial Unit.

26.  After establishing the unit rate of the Reference Commercial Unit, comparisons are made to the remaining M/F units of the Buildings.

Assessment of EUV of Upper Floor Domestic Units

27.  In his valuation of the EUV of the domestic units on the upper floors of the Buildings, Mr CW Wong adopted a similar methodology:

(i) He selected 2/F, 24 Gillies Avenue South as the reference unit (“the Reference Domestic Unit”) for the purpose of valuing its unit price.

(ii) The unit price of the Reference Domestic Unit was then assessed by making reference to market comparables.  He took into account 13 comparable transactions in different buildings in the vicinity.  After making what he regarded as the necessary adjustments (for time, location, floor level, building age, size, lighting & ventilation etc) for all these comparable transactions, he again took off the highest and the lowest comparables and adopted the average of the adjusted unit rates of the other comparables.

(iii) After establishing the unit rate of the Reference Domestic Unit, comparisons are made to the remaining upper floor domestic units of the Buildings.

28.  Mr CW Wong updated the Application Report by a Supplemental Report dated 12 February 2019 in which he revised the EUV of all the units in the Buildings after taking into account the inspection of more units in the Buildings and the updated property index prepared by the Rating and Valuation Department.  In this report, Mr CW Wong repeated the exercise he did in the Application Report.

29.  The EUV of all units in the Buildings assessed by Mr CW Wong, as at the relevant date of valuation of 7 April 2017, are reproduced at Appendix 1 of this judgment.

30.  Thus, the EUV of the live respondents’ units are shown below:

Respondent	Unit	EUV as at 7 April 2017	Pro Rata Share of the Total EUV of $873,575,000
R5	Front Portion of M/F, 6 Gillies Avenue South	$2,809,000	0.32155%
	Portion B of Front Portion, 3/F, 18 Gillies Avenue South	$1,743,000	0.19952%
R7	Front Portion of 1/F, 12 Gillies Avenue South	$4,526,000	0.51810%
R8	Front Portion of 5/F, 12 Gillies Avenue South	$1,100,750*	0.12601%
R10	Rear Portion of 4/F, 18 Gillies Avenue South	$3,042,000	0.34822%
R12	Front Portion of 1/F, 20 Gillies Avenue South	$5,029,000	0.57568%
R15	Rear Portion of 2/F, 22 Gillies Avenue South	$3,169,000	0.36276%

* 25% only.

31.  In the absence of any evidence to the contrary, I am satisfied that the values of the minority owners’ properties as assessed in the Application are “(A) not less than fair and reasonable; and (B) not less than fair and reasonable when compared with the value of the majority owner’s property as assessed in the application.”  I accept the EUV as determined by Mr CW Wong.

Whether Redevelopment of the Lots is Justified

32.  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 Lots.

33.  The applicant adduced the expert evidence of two experts namely, Mr Benson Wong who is an Authorised Person and a building surveyor, and Mr Wong Chi Ming who is a structural engineer. They had prepared a Condition Survey Report and a Structural Assessment Report respectively both dated 12 February 2019. Their expertise was not disputed and their evidence is not contested.

34.  By an Order from this Tribunal dated 12 May 2020, the attendance of Mr Benson Wong and Mr Wong Chi Ming at trial was dispensed with.

35.  In view of the above, 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

36.  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.

37.  The applicant has made the following offers to the respondents through its solicitors to acquire the respondents’ units or interests they own: [2]

Respondent	Unit	EUV as at 7 April 2017	Pre-Application Offers	Post-Application Offers
			5 May 17	29 Dec 17	21 Feb 19	19 Nov 19	13 Jan 20
R5	Front Portion of M/F, 6 Gillies Avenue South	$2,809,000	$5,260,000	$5,780,000	$6,740,000	$6,980,000	$6,980,000
	Portion B of Front Portion, 3/F, 18 Gillies Avenue South	$1,743,000	$3,330,000	$3,660,000	$4,180,000	$4,380,000	$4,380,000
R7	Front Portion of 1/F, 12 Gillies Avenue South	$4,526,000	$9,600,000	N/A	$10,850,000	$11,620,000	$11,620,000
R8	25% of Front Portion of 5/F, 12 Gillies Avenue South*	$1,100,750	$2,210,000	N/A	$2,640,000	$2,830,000	$2,830,000
R10	Rear Portion of 4/F, 18 Gillies Avenue South	$3,042,000	$5,810,000	N/A	$7,300,000	$7,800,000	$7,800,000
R12	Front Portion of 1/F, 20 Gillies Avenue South	$5,029,000	$9,600,000	N/A	$12,060,000	$12,910,000	$12,910,000
R15	Rear Portion of 2/F, 22 Gillies Avenue South	$3,169,000	$6,050,000	N/A	$7,600,000	$8,110,000	$8,110,000

38.  Ms Ngai submitted that the applicant has taken reasonable steps (including negotiation with the live respondents who are “minority owenrs”) to acquire all the undivided shares in the Lots in compliance with section 4(2)(b) of the Ordinance. The purchase prices offered by the applicant in the 5 rounds of offers were made by reference to the professional valuation of Mr CW Wong[3]. All the offer prices are higher than the EUV of the respondents’ properties as assessed by Mr CW Wong. The offer prices made by the applicant in the 3^rd, 4^th and 5^th rounds of offers are also higher than the respective apportioned RDV calculated based on the EUV as at 7 April 2017 assessed by Mr CW Wong.

39.  By reference to the Affirmation of Ms Lui Wing Yan (“Ms Lui”), the manager of the applicant, dated 12 February 2019, mediation with R15, for instance, took place on 26 March 2018 of no avail.

40.  At trial, Mr Lo Siu Kin (“Mr Lo”) who appeared on behalf of R15, however, referred to the applicant’s acquisition of 2/F, 2 Gillies Avenue South in the sum of $15,972,000 ie around $22,000 per sq ft which was disclosed by a newspaper report dated 23 May 2019. Mr Lo also complained that a former unit owned by R15 was acquired by the applicant in 2014 at mere $10,000 per sq ft.

41.  In respect of the former, Ms Lui intimated that the applicant had to acquire that unit for the purpose of crossing the threshold of an average of 80% as required by the Ordinance before an application could be made to the Lands Tribunal for compulsory sale. See the table at §6 for Lot 1. Prior to that acquisition, the average shares of Lot 1 and Lot 2 acquired by the applicant would fall below 80%.

42.  In respect of the latter, Ms Lui replied that the sale and purchase was between willing seller and willing buyer; the unit selling price could not be compared with the market value at different periods of time. R15 should not try to renegotiate many years later with the benefit of hindsight.

43.  To the extent that Mr Lo referred to the acquisition policy of the Urban Renewal Authority (“URA”), Ms Lui responded that the applicant was not a Government organization and there is no requirement for a private developer to follow the Government policy in compulsory land acquisition.

44.  I agree with Ms Lui. Indeed, in Top Harmony Limited v Cheung Yuet Sheung & Others, LDCS 39000/2018 (unreported, dated 15 October 2020), the Tribunal was faced with similar arguments by the respondents in that case. At §94 of the judgment, I had ruled that “the offers, if any, prior to the Application are not so relevant in determining whether the applicant has taken 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.” At §109 of the judgment, I also cited the meeting of the Bill Committee of the Provisional Legislative Council on Land (Compulsory Sale for Redevelopment) Bill on 24 February 1998 where it was decided that:

“The Lands Tribunal was not expected to make reference to the terms offered by LDC[4]. It would be up to the majority owners to convince the Lands Tribunal that fair and reasonable terms had been offered.”

45.  In Data Key Limited v Director of Lands [2018] 2 HKLRD 158, Hon Au J (as he then was) observed at §31 that the Government’s policy on resumption “is one that upon resuming a tenanted or vacant commercial property under the LRO, the Government will offer the owner a compensation package which consists of what the Government regards as the open market value of the property and a solatium ...  The Policy is not that the owner is entitled to and will be paid a solatium whether or not the offer is accepted.” At §47 of the judgment, it was termed “an added advantage … to attract the offerees to accept the offer and hence to “facilitate clearance and to help finance their move from the property resumed””. Further, at §48, the learned judge remarked as follows:

“… the owners do not have any statutory right to be paid a solatium (whatever that value may be). All they are entitled to as a matter of rights, is they have a right to be paid the open market value of the properties resumed and a right to have that value assessed by the Lands Tribunal. Hence, they are not worse off (and therefore not punished) if they decide not to accept the Director’s offer (which includes the solatium and the open market value of the properties) as they would still be able to get the open market value as assessed by the Lands Tribunal as they are entitled to. No more no less.”

46.  Then when the Ordinance came to be effective in June 1999, the Court of Final Appeal in Capital Well Ltd v Bond Star Development Ltd (2005) 8 HKCFAR 578, [2005] 4 HKLRD 363 (“Capital Well”) has emphasized at §33 that:

“In making that assessment (whether an offer is reasonable) the Tribunal is not conducting a valuation exercise. It does not need to adjudicate upon any disputes about the correct valuation principles to be applied. It does not itself arrive at any conclusion as to what figure represents the correct valuation. It merely needs to be satisfied that, on the evidence available, the offer falls within the range of what may broadly be regarded as fair and reasonable compensation for the interest in question.”

47.  The Court of Final Appeal stated further at §36 of the judgment that:

“What the Tribunal must do is to consider whether, in the circumstances of each case, the offer falls within a band of what represents a fair and reasonable assessment of the value of the minority owner’s interest reflecting a proportionate share of the redevelopment value of the whole site.”

48.  More recently, the Tribunal in Good Faith Properties, LDCS 42000/2011 (unreported, dated 31 May 2013) held at §61 of the judgment that:

“With a purposive interpretation of Section 4(2)(b), all reasonable steps before the making of a sale order to acquire the minority owner’s share in the Lot should be considered, be it post- or pre-Application.”

49.  As shall be seen from the reserve price found by this Tribunal at $2,045,000,000, the offers of purchase prices were very reasonable.  Under such circumstances, I find it reasonable for the applicant to rely upon the advice of Mr CW Wong in making the offers which were fair and reasonable, given the sums offered were within the broad range between the valuation done by Mr CW Wong and the RDV value found by this Tribunal:

Units	Offers as at 13 January 2020	EUV as at 7 April 2017	Pro Rata Share of the Total ($873,575,000)	Pro Rata Share of RDV ($2,045,000,000)
R5’s Units	$6,980,000	$2,809,000	0.32155%	$6,575,698
	$4,380,000	$1,743,000	0.19952%	$4,080,184
R7’s Unit	$11,620,000	$4,526,000	0.51810%	$10,595,145
25% of R8’s Unit	$2,830,000	$1,100,750	0.50402%	$2,576,802
R10’s Unit	$7,800,000	$3,042,000	0.34822%	$7,121,099
R12’s Unit	$12,910,000	$5,029,000	0.57568%	$11,772,656
R15’s Unit	$8,110,000	$3,169,000	0.36276%	$7,418,442

50.  On the evidence available, therefore, 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 the respondents on terms that are fair and reasonable.

RDV of the Lots

Optimum Hypothetical Development Model

51.  By reference to Mr CW Wong’s Supplemental Report dated 13 January 2020, he had determined the RDV of the Lots at $1,988,000,000 by the residual valuation method.  This was done by deducting development costs (including construction costs, professional fees, finance costs etc) and developer’s profit from the estimated gross development value (“GDV”) of the completed optimum development.

52.  The net developable site area of the Lots as determined by Mr CW Wong is 20,400.00 sq ft or 1,895.22 sq m.

53.  Ms Ngai submitted that the reserve price for the auction of the Lots should be fixed at $1,988,000,000 accordingly.

54.  I have scrutinized Mr CW Wong’s valuation of the RDV of the Lots. For instance, Mr CW Wong opined that the optimal development on the Lots would be a 23-storey commercial/residential composite building with shop units on ground floor and first floor, recreational facilities and landscape garden on 2/F and residential units on the upper floors. Details of the hypothetical development and residual valuation were set out in Enclosure 13 of Mr CW Wong’s Supplemental Report dated 13 January 2020[5].  

55.  In respect of the shop units, Mr CW Wong relied on 8 transactions of comparables one of which, in particular, is situated at 7 Gillies Avenue South on the opposite side of the street. Then Mr CW Wong disregarded the adjusted unit price of 3 of the comparables which he considered too low or out of tone with the others and took the average of the adjusted unit price of the remaining comparables, arriving at $307,454 per sq m. He took the value of the hypothetical first floor at 1/3 of that the ground floor.

56.  As regards the residential units, Mr CW Wong has considered the sales of units in 2 new developments nearby: they are Metro6 at 121 Bulkeley Street and Wuhu Residence at 105-113 Wuhu Street. Mr CW Wong determined an average unit price of $239,000 per sq m which appears to be reasonable.

57.  Mr CW Wong also adopted the Development Cost Pro-forma promulgated by the Hong Kong Institute of Surveyors to facilitate consideration of construction costs in land value assessments. The construction cost is estimated at $601,595,529.

58.  Mr CW Wong proceeded to adopt 3% as marketing & agency costs and 17.5% as developer’s profit to reflect the increasing risks in investing property development projects. He also took the prime rate of 5% as the discount rate or finance costs.

59.  At trial, I pointed out that Mr CW Wong’s Supplemental Report dated 13 January 2020 was prepared some 10 months ago and in Sino Accord Investment Limited v The Personal Representative of the Estate of Shum Kar Fun, Deceased, LDCS 10000/2017 (unreported, dated 22 October 2020) which concerned an application for compulsory sale of lots in the vicinity, Mr CW Wong’s himself had carried out a residual valuation adopting different parameters.

60.  Mr CW Wong agreed to adopt a revised discount rate of 4% and a developer’s profit of 15% plus stamp duty and legal costs.

Finding on RDV and the Reserve Price

61.  Subject to what I have stated above, I shall follow Mr CW Wong’s residual valuation model as contained in his Supplemental Report dated 13 January 2020 on the determination of the RDV[6] which is reproduced at Appendix 2 to this judgment. I determine the land value of the Lots at $2,045,000,000 (ie accommodation value of $119,892/m²).

62.  I shall adopt the estimated RDV of $2,045,000,000 as the Reserve Price for the auction of the Lots.

Other Incidental Matters

63.  The applicant proposed to appoint Mr Chow Wing Kin Anthony and Ms Chow Suk Han Anna, both being consultants of Messrs Guantao & Chow, Solicitors & Notaries, as the sale trustees.  Based on the information on their background and experience as set out in their letter dated 16 December 2019, 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.

64.  The applicant has prepared a set of draft Particulars and Conditions of Sale of the Lots[7].  Subject to any amendment that may become necessary as a result of our ruling on the arrangement of auction above, the particulars and conditions of sale of the Lots by public auction submitted by the applicants are also reasonable.

Order

65.  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 have taken reasonable steps to acquire all the undivided shares in the Lots including those of the 5^th, 7^th, 8^th, 10^th, 12^th and 15^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) Mr Anthony Chow and Ms Anna Chow of Messrs Guantao & Chow, Solicitors & 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 Guantao & Chow, Solicitors & Notaries dated 16 December 2019.

(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 $2,045,000,000.

(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 Lots shall become the owner of the Lots.

(iv) Liberty to the applicant, the 5^th, 7^th, 8^th, 10^th, 12^th and 15^th respondents and the Trustees to apply to the Tribunal for further direction(s) under the Ordinance.

Costs

66.  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 reasonable costs notwithstanding the outcome of the Application.

67.  Accordingly, I order that the applicant do pay the respondents’ costs in these proceedings on High Court scale, including any costs reserved, to be taxed if not agreed.

Appendix 1(a)

Appendix 1(b)

Appendix 1(c)