TANG HO HANG v. DIRECTOR OF LANDS

IN THE COURT OF APPEAL

1996, No. 39
(Civil)

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J U D G M E N T

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Liu, J.A.:

1. There are two appeals as there are two applications by the respondent, the Director of Lands to strike out the Notices of appeal.

2. In each appeal, the registered owner of ground floor premises, one at 29 Ma Tau Kok Road and the other at 44 Pak Tai Street, had been awarded resumption compensation, in one case $5.91m and in the other $3.75m. The appellants are dissatisfied with the awards. In their respective Notices of appeal, the appellants seek to have their resumption compensation adjusted upwards to $12,264,957 and $10,646,721 respectively. We propose to take the two applications together; they raise identical question phrased in identical terms.

3. In each of the appeals, the appellant simply prays for an adjustment to the extent I have referred to. No ground has been given by the appellant in each case. In particular, it is not stated how it is said that the Tribunal's award in each case is erroneous in point of law.

4. The appellants have, in each case, submitted further grounds of appeal. Suffice it to say that of the alleged "difficult points of common law principle which allow the variety open market property transaction as comparable to be applied for valuation" raised in these further grounds, none is specified. It is said that these alleged "difficult points of common law principle" may have been overlooked and misapplied by the Tribunal. It is also said that the Tribunal overlooked and misapplied provisions of the Crown Land Resumption Ordinance. Again, no particulars are given for such alleged omission or error. Six property transactions placed before the Tribunal were rejected as comparables for the valuation. That is, in essence, the grievance of each of the appellants, which does not, in our view, go beyond a question of fact. Plainly, the appellants have not in their respective Notices of Appeal set out any points of law for the consideration of the Court of Appeal.

5. Section 11(2) of the Lands Tribunal Ordinance allows an appeal from the Tribunal only on points of law. Order 60A rule 2 of the Rules of Supreme Court provides that a notice of the appeal from the Tribunal must specify the grounds of appeal together with the question of law to be decided by the Court of Appeal. No such point of law as required to be specified by section 11(2) and O. 60A r 2 has been set out in the respective Notices of appeal and the submitted Further Grounds.

6. In each application, we are assisted by Mr Tam's skeleton argument which directs our attention to Aviagents Ltd. v. Balstravest Investments Ltd., [1966]1 WLR 150. It was an appeal from a factual decision of the county court, in which the English Court of Appeal was invited to consider a purported misdirection as a question of law when in fact there was no complaint which could be said to be directed to any question of law. At p. 154D - E, Willmer L.J. resolved the issue before the English Court of Appeal in the following terms: "..... the Divisional Court came to the conclusion that it was not a competent appeal and took the course, which it is suggested that we should take, of striking out the Notice of Appeal. ............ It appears to me inconceivable that this court should not have inherent power to control its own proceedings by striking a notice of appeal in a case where an appeal is plainly not a competent appeal." Davies, LJ put it more positively at p. 154H - p. 155A: "We plainly have no power to hear the appeal at all. It does not lie. It is not a competent appeal. This court has an inherent power to control its own proceedings, and when it is confronted with an attempt to appeal in circumstances where no appeal lies it seems to me clear that the court has power to give effect to its decision and to strike out of the Notice of Appeal." At p. 155 letter D, the Lord Justice continued: "This case is not concerned with an appeal which is frivolous or vexatious or an abuse of the process of the court; it is a case in which there is no right of appeal at all." Russell, LJ agreed at p. 155 F - G: "If the so-called appellant has no legal right to approach this court, I do not see any reason why we should not say so now and rule him out in limine."

7. As for the inherent jurisdiction of the Court of Appeal to strike out a notice of appeal, Aviagents v. Balstravest, supra. was followed by Burgess v. Stafford Hotel Ltd. [1990] I WLR 1215. At p. 1221B, Glidewell L.J. recorded counsel's concession, on authorities, that the English Court of Appeal had "an inherent jurisdiction (to strike out a notice of appeal) .... not derived ..... strictly from the Rules of Supreme Court". O.59 r 10(1) RSC gives this Court "all the powers and duties as to amendments and otherwise of the High Court", but even in an appeal which is frivolous or vexatious or an abuse of the court process, as Glidewell, LJ observed at p. 1221D, the court's inherent jurisdiction would have to be invoked and "the inherent jurisdiction of the (Court of Appeal) would be exercised on precisely the same basis as if Order 18, r. 19 strictly applied to notices of appeal." In neither of the applications before us is the Notice of Appeal sought to be impugned on the ground that the grounds of appeal are frivolous or vexatious or an abuse of the process of the court. We are merely concerned with Notices of Appeal filed in a statutory regime in which the appellants could only appeal against a decision of the Tribunal erroneous in point of law. These Notices of Appeal do not disclose any point of law to constitute a competent appeal. The Notices of Appeal here challenge each of the Tribunal's decisions as purely a question of quantum. In Aviagents v. Balstravest, supra., the appellant raised no question of law in a factual ground of appeal dressed up as a misdirection so that the complaint was clearly not one which the court would be competent to consider, but in the applications before us no appeal would lie to this Court unless there were some points of law. There is none, and there is clearly no competent appeal. In the exercise of its inherent jurisdiction, this Court has power to regulate its own proceedings. Where, as here, an attempt to appeal in circumstances in which no appeal may be entertained, "the court has power to give effect to its decision and to strike out the notice of appeal". Aviagents v. Balstravest, supra. P. 155A, per Davies L.J. We share the same approach succinctly set out in the skeleton arguments of Mr Tam. This is a clear and obvious case in which the respondents' applications by summons have both to be granted. We allow the applications and strike out the Notice of Appeal in each appeal.