119 LTD v. YAU SAU PAK AND ANOTHER

LDCS 10000/2021

[2023] HKLdT 25

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO 10000 OF 2021

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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”) with the corresponding buildings erected thereon:

	Lot No	Total No of Shares	Building Thereon	Date of Occupation Permit	Address
1st Lot	New Kowloon Inland Lot No 5203	7	Wah Fat House	5 October 1972	Nos 45, 47 Ting Fu Street
2nd Lot	New Kowloon Inland Lot No 5199	7
3rd Lot	New Kowloon Inland Lot No 5200	6	On Yin Building	5 July 1971	Nos 49, 51 Ting Fu Street
4th Lot	New Kowloon Inland Lot No 5184	6
5th Lot	New Kowloon Inland Lot No 5243	48	Ting Shing House	6 September 1972	Nos 53-63 Ting Fu Street
6th Lot	New Kowloon Inland Lot No 5300
7th Lot	New Kowloon Inland Lot No 5295

2.  At the time of the Application, ie 31 August 2021, the average percentage owned by the applicant in the Lots were:

(1)  92.86% in the 1^st Lot and 2^nd Lot erected thereon is Wah Fat House which is served by one common staircase;

(2)  91.67% in the 3^rd Lot and 4^th Lot erected thereon is On Yin Building which is served by one common staircase;

(3)  93.75% in the 5^th Lot, 6^th Lot and 7^th Lot erected thereon is Ting Shing House which is served by two common staircases.

3.  The Application was amended on 21 April 2022 and then when the applicant had managed to acquire all the undivided shares in the 5^th to 7^th Lots, further re-amended on 13 December 2022. Notwithstanding the above, the applicant has sought a direction under section 4(6)(a)(i) of the Ordinance from the Tribunal to have the Lots sold altogether in one public auction. At the Pre-Trial Review Hearing on 8 December 2022, counsel for the remaining respondents indicated that they did not object to the amendment nor such a direction.

4.  Whereas the proceedings against the 3^rd respondent, the 4^th respondent and the 5^th respondent whose interest in the 5^th to 7^th Lots had been acquired had been discontinued, the 1^st respondent (“R1”) and the 2^nd respondent (“R2”) are the only 2 respondents remaining.

5.  R1 is the registered owner of 1/7^th equal undivided share of and in the 2^nd Lot with the exclusive right to use and occupy 5/F and Main Roof of Wah Fat House, No 47 Ting Fu Street, Ngau Tau Kok, Kowloon.

6.  R2 is the registered owner of 1/6^th equal undivided share of and in the 4^th Lot with the exclusive right to use and occupy 1/F and Flat Roof of On Yin Building, No 51 Ting Fu Street, Ngau Tau Kok, Kowloon.

7.  Both R1 and R2 (collectively referred to as “the respondents” where appropriate) are represented by Mr Matthew Choi (“Mr Choi”), instructed by Messrs Chan & Chan while the applicant is represented by Ms Verna Lui (“Ms Lui”).

The Issues in the Application

8.  Pursuant to the Agreed List of Issues dated 24 November 2022, the following issues are undisputed:

(1)  Whether the applicant was entitled to apply for an order for sale of all the undivided shares in the Lots under section 3 of the Ordinance;

(2)  Whether redevelopment of the Lots is justified due to the age or state of repair of the Building under section 4(2)(a) of the Ordinance;

(3)  If an order for sale is granted, the procedural matters such as the appointment of trustees and the approval of the terms for the particulars and conditions of sale.

9.  Nonetheless, by her opening submission, Ms Lui submitted that the following issues remained in dispute:

(1)  What was the existing use value (“EUV”) of all the units in the Buildings as at 10 August 2021, as assessed in accordance with Part 1 of Schedule 1 to the Ordinance;

(2)  Whether the applicant has taken reasonable steps to acquire all the undivided shares of the 1^st Lot, 2^nd Lot, 3^rd Lot and 4^th Lot on terms that were fair and reasonable under section 4(2)(b) of the Ordinance.

(3)  In the event an order for sale is granted, what the reserve price (ie redevelopment value (“RDV”) of the Lots should be adopted at the public auction of the Lots under paragraph 2 of Schedule 2 to the Ordinance.

The Evidence

10.  The following evidence has been filed by the applicant:

(a)  Witness statement and Supplemental Witness Statement of Mr Ma Wai Yip, a director of the applicant, dated 28 February 2022 and 16 December 2022 respectively;

(b)  Condition Survey Report by Mr Wong Wing Cheung Dennis (“Mr Dennis Wong”), a building surveyor, dated 25 February 2022;

(c)  Structural Assessment Report by Dr Chan Yin Nin Sammy (“Dr Sammy Chan”), a structural engineer, dated 22 February 2022;

(d)  Valuation Reports by Mr Alnwick Chan, a valuation surveyor, namely:

(i)  Valuation Report dated 30 August 2021 on the market value (which is commonly coined by the profession as “Existing Use Value” or simply “EUV”) of each of the units of the Buildings;

(ii)  Supplemental Report dated 21 February 2022 on EUV and RDV of the Lots;

(iii)  2^nd Supplemental Report dated 13 April 2022 on EUV and RDV of the Lots;

(iv)   Rebuttal Report dated 27 July 2022 on both the EUV and RDV as assessed by Mr Chan Yat Hei Jack (“Mr Jack Chan”) on behalf of the respondents;

(v)  3^rd Supplemental Report dated 29 November 2022 on the RDV of the Lots.

11.  In response, the respondents had adduced the following reports prepared by Mr Jack Chan:

(i)  Valuation Report dated 30 June 2022 on the EUV of each of the units of the Buildings;

(ii)  Valuation Report dated 30 June 2022 on the RDV of the Lots;

(iii)  Rebuttal Report dated 30 June 2022 on both the EUV and RDV as assessed by Mr Alnwick Chan;

(iv)  Supplemental Report dated 30 November 2022 on the RDV of the Lots.

12.  Both Mr Alnwick Chan and Mr Jack Chan then proceeded to prepared a Joint Statement dated 9 September 2022 on EUV of the Buildings and another Joint Statement dated 15 December 2022 on RDV of the Lots.

Whether the Applicant is entitled to make the Application

13.  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.

14.  Section 3(2) of the Ordinance provides that an application under subsection (1) may cover—

(a)  2 or more lots where the majority owner owns not less than the percentage specified in subsection (1) of the undivided shares in each lot; or

(b)  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).

15.  In the present case, the applicant, owning an average of 92.86% in the 1^st Lot and 2^nd Lot and an average of 91.67% in the 3^rd Lot and 4^th Lot at the time of the Application on 31 August 2021, was entitled to file the Application under section 3(2)(b) of the Ordinance.

EUV as at 10 August 2021

16.  Pursuant to Part 1 of Schedule 1 to the Ordinance, a valuation report, prepared not earlier than 3 months before the date on which the Application under section 3(1) of the Ordinance is made, was required in setting out the assessed market value of each property on the lot—

(a)  on a vacant possession basis;

(b)  assessed as if the lot could not be made the subject of an application for an order for sale; and

(c)  not taking into account the redevelopment potential of the property or the lot.

This was what had been done by Mr Alnwick Chan in his Valuation Report dated 30 August 2021.

17.  By their 1^st Joint Statement dated 9 September 2022, Mr Alnwick Chan and Mr Jack Chan had agreed on the particulars of all G/F units of the Buildings as follows:[1]

Address on G/F	Saleable Area (m2)	Yard (m2)	Cockloft (m2)	Effective Area (m2)	Frontage (m)	Headroom (m)	Depth (m)
45 Ting Fu Street	56.21	2.9	0.00	56.69	6.43	5.13	11.30
47 Ting Fu Street	65.75	3.15	0.00	66.28	5.59	5.13	11.98
49 Ting Fu Street	68.33	4.22	0.00	69.03	5.59	5.13	12.59
51 Ting Fu Street	72.28	4.44	0.00	73.02	5.59	5.13	13.26
Shop 1, 53-63 Ting Fu Street	55.50	4.23	27.11	62.98	4.53	2.44 (Full: 5.13)	13.30
Shop 2, 53-63 Ting Fu Street	52.26	4.36	25.23	59.29	3.83	2.44 (Full: 5.13)	14.23
Shop 3, 53-63 Ting Fu Street	55.97	5.68	27.35	63.75	3.89	2.44 (Full: 5.13)	14.56
Shop 4, 53-63 Ting Fu Street	61.56	5.05	30.81	70.11	4.53	2.44 (Full: 5.13)	14.98
Shop 5, 53-63 Ting Fu Street	57.79	4.32	27.31	65.33	3.77	2.44 (Full: 5.13)	15.52
Shop 6, 53-63 Ting Fu Street	89.36	4.45	40.68	100.27	7.47	2.44 (Full: 5.13)	16.09

Choice of G/F Comparables and Location Adjustment

18.  In their assessment of EUV of the ground floor units of the Building, Mr Alnwick Chan and Mr Jack Chan had agreed to adopt G/F, No 49 Ting Fu Street as the reference shop unit.

19.  Mr Alnwick Chan and Mr Jack Chan relied on the following transactions as comparables:[2]

Comp	Address	Age of Building	Date of Sale	Consideration	Saleable Area (m2)	Effective Area (m2)	Frontage (m)	Depth (m)	Headroom (m)	Unit Price (/m2)
ES1	Shop C, G/F, Wing Ying Building, 257-269 Kwun Tong Road	1973	18 Aug 21	$8,500,000	48.38	48.38	4.37	13.24	4.11	$175,692
ES2	Shop C, G/F & C/L, Lap Hing Building, 37-43 Ting On Street	1972	16 Aug 21	$15,000,000	78.52 + Yd: 15.57 + C/L: 51.56	94.01	4.58	15.04	2.74 (Full: 4.87)	$159,557
ES3	Shop C, G/F, Tak Ming Building, 271-275 Kwun Tong Road	1973	20 May 21	$13,000,000	69.72 + Yd: 3.23	70.26	4.90	15.03	4.98	$185,027
ES4	Shop C, G/F, Sam Hei Building, 95-103 Ting On Street	1969	15 Oct 2020	$8,500,000	46.49 + Yd: 3.17	47.02	4.37	12.04	4.96	$180,774
ES5	Shop B, G/F, Ming Fai Building, 27-37 Hang On Street	1966	06 Jan 2021	$13,800,000	70.63 + Yd: 9.45	72.21	4.50	15.82	4.51	$191,109
ES6	Shop F, G/F, Ming Fai Building, 27-37 Hang On Street	1966	23 Dec 2020	$14,500,000	78.41 + Yd: 9.65	80.02	4.55	16.09	3.39	$181,205
ES7	Shop 10, G/F Yen Hau Mansion, 94 Ting Fu Street	1977	26 Nov 20	$6,060,000	39.75	39.75	4.52	11.25	3.47	$152,453
ES8	Shop 4, G/F, On Tai Building, 45-51 Ting On Street	1973	10 Jul 2020	$9,900,000	66.18 + Yd: 5.17 + C/L: 43.42	77.90	4.06	17.88	2.74 (Full: 5.18)	$127,086
ES9	Shop 13, G/F Yen Hau Mansion, 98 Ting Fu Street	1977	12 Mar 20	$4,600,000	27.57	27.57	4.83	7.28	3.47	$166,848

20.  Ting Fu Street runs from northeast to southwest and then bends 90⁰ like a “L” to run towards the southeast before it bends back 90⁰ like a “L” to run towards the northeast in an enclave of a Ngau Tau Kok district. The Buildings are situated on the northeastern side of Ting Fu Street with Wah Fat House around its bend which begins to run from northwest to the southeast. Opposite the Buildings across Ting Fu Street is an open court so that the Buildings enjoy a relatively open view overlooking a MTR viaduct which runs in parallel with a flyover along Kwun Tong Road, the latter being a district distributor in the area.

21.  Because of the peculiarity of the location, there is little pedestrian flow in front of the Buildings which are occupied by car repairing workshops, shops selling car accessories, engineering workshops, and a Baptist church (“牛頭角潮語浸信會”).

22.  At this juncture, I note that there was a set of Alterations and Additions plans approved by the Building Authority on 25 January 1988 by which Shops 1, 2 & 3 on G/F, Ting Shing House were intended to be merged as a restaurant unit[3]. Nevertheless, no sign of such restaurant or any similar one along this section of Ting Fu Street can be observed on the date of inspection on 3 January 2023.

Comparable ES1

23.  In comparison, Comparable ES1 is situated on the more bustling Kwun Tong Road where more varieties of trades are found. For instance, this comparable is occupied by a dentist’s clinic and next to it on its left is a hair salon and a Hong Kong Jockey Club off course betting centre (at G/F, Wing Ying Building, 257-269 Kwun Tong Road); On its right is a restaurant, and then another hair salon, and another restaurant. In spite of this, Mr Alnwick Chan remarked that this comparable is “located further away from MTR Ngau Tau Kok Station when compared to the Property”[4]. With respect, Mr Alnwick Chan had placed undue weight on the distance between this comparable and the Ngau Tau Kok MTR station when compared with reference shop unit.

24.  In Success Active Limited v Harbourview International Holdings Limited & Other, LDCS 31000/2018 (unreported, 19 April 2021), the Tribunal at §156 questioned why much pedestrian flow will be attracted to the area concerned or their vicinity by reason of the MTR entrances when that was not a popular shopping area. Similar query was also raised by the Tribunal in Alliance Develop Limited v Director of Lands, LDLR 1/2020 (unreported, 20 February 2023) as early as at §2 of the judgment: “… given the Property was some distance away from the MTR station, it could hardly benefit from the pedestrian flow in connection with … the MTR station at or around the relevant date.” With respect, the same comment is applicable to the shops on G/F of the Buildings.

25.  On the other hand, as commented by Mr Jack Chan at §7.5.1 of his Rebuttal Report dated 30 June 2022 that: “the trade mix for this portion of Kwun Tong Road include restaurant, salon, clinic, furniture shop, church, nursing home and a jockey club etc”[5]. Having confirmed this is the case, I cannot agree with him that the retail potential and pedestrian flow is similar to the subject locality. I prefer a location adjustment of -20% instead.

Comparable ES2

26.  Ting On Street, which is a local distributor running in parallel with the subject section of Ting Fu Street, is further up the street behind the Buildings. Again, this is a more bustling street. This comparable is occupied by a marble selling company; on its left is one selling car accessories while on its right is a 7/11 convenience store. And again, I am not satisfied by Mr Alnwick Chan’s +3% adjustment for location which in my view should be -10% instead.

Comparable ES3

27.  This comparable is also situated on the same bustling section of Kwun Tong Road beside a sitting out area between it and Ting On Street which runs also in parallel to Kwun Tong Road. According to the signboard displayed above its shop front, this comparable was formerly occupied by an air-conditioning trading and engineering company (“聯發冷氣集團貿易工程有限公司”) but was under decoration on our date of inspection on 3 January 2023. Again, like that for Comparable ES1, I adopt a -20% location adjustment instead of Mr Alnwick Chan’s +5%.

Comparable ES4

28.  When compared with for Comparable ES3, this comparable is situated at the other end of the open park but on Ting On Street. It is sub-divided into two units, one on the left being occupied by a launderette and another on the right being occupied by a motorbike workshop. Its exact position is illustrated as follows:

Fu On Building, 91-93 Ting On Street	Sam Hei Building, 95-103 Ting On Street
	Shops A & B	Shop C		Shop D (a corner shop with one side facing the park)
活力遊戲機 (games centre)	基督教宣道會觀塘堂家庭服務中心	1-Wash 24 Hours Laundry	Power Up Motorcycle Company	Century 21 Grand Limited (real estate agency)

29.  I consider this location more vibrant in character than that of the Buildings. Again, I adopt a location adjustment of -10% in preference to Mr Alnwick Chan’s +3%.

Comparables ES5 & ES6

30.  Comparables ES5 & ES6 are both situated at a relatively quiet residential area on the hillside of Ngau Tau Kok at its fringe boundary with the Kwun Tong district. They were only adopted as comparables by Mr Alnwick Chan who was of the view that the characters of trades there are very similar to that of the subject. While this appears to be the case, I, like Mr Jack Chan, am hesitant to accept them as comparables because they are situated at an entirely different location which is far away from the subject.

Comparable ES7

31.  Comparable ES7 is situated at the end of Ting Fu Street before it takes an upturn in a “L” shape to meet Ting On Street. Although it appears to have frontages on both sides, one facing Ting On Street and the other facing a public sitting-out area, the latter has limited pedestrian flow. I agree with Mr Jack Chan’s nil adjustment for location.

32.  Notwithstanding its close proximity in location, however, this comparable has a size which is less than 60% of the reference shop unit. This renders it not a good comparable.

Comparable ES8

33.  Comparable ES8 is situated next to Comparable ES2 on Ting On Street at its section which lies immediately behind the Buildings. Likewise, therefore, I am prepared to adopt an adjustment for location at -10%.

Comparable ES9

34.  Comparable ES9 is situated close to Comparable ES7 and fronts onto a narrow pedestrian lane that runs between Yen Hau Mansion and the sitting-out area afore-mentioned. I would rather prefer a +5% location adjustment to the +10% proposed by Mr Jack Chan. And again, this comparable is only about 40% in size as the reference shop unit. This is not a good comparable as well.

35.  Notwithstanding their small sizes however, both Comparables ES7 and ES9 are situated quite close to the reference shop unit or the Lots. Also, the applicant had commented that they both are quite hidden with low visibility behind the sitting-out area, ie a much inferior location when compared with the reference shop unit. In such regard, I am content to include them in the comparable analysis to see if the analyzed result can give any guidance on the value of the reference shop unit.

Other Adjustment Factors

36.  In respect of other adjustment factors, Mr Alnwick Chan and Mr Jack Chan had the following agreements/ disagreements:[6]

	Mr Alnwick Chan	Mr Jack Chan
Time	Private Retail Price Index as published by the Rating and Valuation Department (“RVD”)
Frontage	2% for every 1 m difference
Building Age	1% for every 10 years’ difference
Size/ Quantum	1% for every 10 sq m difference 0 sq m - 9.99 sq m 10 sq m – 19.99 sq m 20 sq m – 29.99 sq m :	Adjustment 0% 1% 2% :
Headroom	2% for every 0.5 m difference	2% for every 1 m difference
Depth	NA	1% for every 1 m difference
Internal Condition	Good: 0% Fair: 2% Poor: 4% Very Poor: 6% Unacceptable: 8%	Nil

37.  In Chan Kai Yuen & Another v Director of Lands, LDLR 8/1999 (unreported, 1 September 2000), the Tribunal acknowledged at §22 that the space above a normal headroom of 3 metres would attract willing buyer to pay for the additional benefit of a higher headroom. But “(t)his extra bid will vary for different types of properties and uses.” In that case, the Tribunal adopted “an enhancement of 5% to the adjusted unit rate in assessing the G/F area with an extra 2.1m of headroom” which is about 2.4% per 1 m difference for that premises at Reclamation Street, Mong Kok which is an area popular for shopping hardware goods and decoration materials. In the present case, a high headroom of grandiose effect should not be a factor for consideration and the trades here do not need an extra high headroom for storage, I am more prepared to adopt an adjustment of 2.5% for every 1 m difference. Mr Alnwick Chan might have been misled by the present user of the reference shop unit as church premises and forgotten the assessment should be on the vacant possession basis pursuant to Part 1 of Schedule 1 to the Ordinance.

38.  As well, when Mr Alnwick Chan asserted that the full headroom instead of the headroom under cockloft is analyzed, he must have forgotten that he had allowed ¼ of the value of the cockloft in the determination of the effective floor area, thereby lowering the unit rate of the comparable shop. If he proceeds to carry on his analysis on headroom for instance in ignorance of the presence of the cockloft, he would have arrived at the absurd result that the shop unit with a cockloft for use fetches a lower unit rate than a shop without a cockloft, all other things being equal.

39.  Similarly, as on most occasions in assessing the value of shop premises, I do not consider any particular adjustment being necessary to reflect the relatively good condition of the reference shop unit which happens to be renovated and merged with G/F, No 51 Ting Fu Street as a church. While shop premises are usually sold on the market on the basis of bare shell, most, if not all, purchasers of shop premises would be ready to carry out renovation/fitting out works that suit their prospective trades. In any event, as admitted by Mr Alnwick Chan, he could hardly find out what the internal conditions were for the comparables as at the transaction date.

40.  As regards the adjustment on depth, however, I agree with Mr Alnwick Chan’s comment that by allowing adjustments for both layout and depth, Mr Jack Chan had double counted the effect of the shape of the comparables.[7]

41.  My initial assessment of the EUV for the reference shop unit is as follows:

Comp	Unit Price (/m2)	Adjustments									Adjusted Unit Price (/m2)
		Time	Location	Age	Frontage	Return Frontage	Headroom	Size	Layout & Depth	Total
ES1	$175,692	0.0%	-20.0%	-0.2%	2.4%	0.0%	2.6%	-2.0%	3.0%	-15.3%	$148,811
ES2	$159,557	0.0%	-10.0%	-0.1%	2.0%	0.0%	7.5%	2.0%	2.5%	3.1%	$164,503
ES3	$185,027	5.4%	-20.0%	-0.2%	1.4%	-3.0%	0.4%	0.0%	0.0%*	-16.9%	$153,757
ES4	$180,774	14.1%	-10.0%	0.2%	2.4%	0.0%	0.4%	-2.0%	0.0%	3.7%	$187,463
ES7	$152,453	11.9%	0.0%	-0.6%	2.1%	-3.0%	4.2%	-2.0%	3.0%	15.9%	$176,693
ES8	$127,086	8.8%	-10.0%	-0.2%	3.1%	0.0%	6.7%	0.0%	5.3%	13.2%	$143,861
ES9	$166,848	7.5%	5.0%	-0.6%	1.5%	0.0%	4.2%	-4.0%	-5.3%	7.9%	$180,029
									Average;		$165,017
									Median:		$164,503

* I do not agree that there should be any adjustment for layout or depth as this comparable comprises a corner unit. The positive adjustment proposed by either Mr Alnwick Chan or Mr Jack Chan would imply this comparable is inferior in layout which cannot be the case for a corner unit.

42.  Thus, on the basis of the above analysis, I arrive at $165,000 per sq m for the reference shop unit. However, I note that Mr Alnwick Chan and Mr Jack Chan had adopted a further comparable for the assessment of the retail shop in the hypothetical development of the Lots as follows:

Comp	Address	Age of Building	Date of Sale	Consideration	Saleable Area (m2)	Effective Area (m2)	Frontage (m)	Depth (m)	Headroom (m)	Unit Price (/m2)
RS1	Shop B, G/F & Cockloft, Lap Hing Building, 37-43 Ting On Street	1972	18 Dec 21	$15,980,000	77.42 + C/L: 50.42 + Yard: 15.23	92.56	4.58	15.04	2.13 (Full: 4.87)	$175,692

43.  This comparable in fact comprises the shop unit next to Comparable ES2 but its Provisional Sale & Purchase took place some three months later than the relevant date of 10 August 2021.

44.  Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426, 431 struck a chord of common sense:

“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?”

45.  Of course the subsequent sale which is considered relevant must have taken place within a reasonable period after the relevant date and what is a reasonable period is a matter of fact in particular circumstances. Certainly, in the present case, the sale that took place only a few months later should be of great assistance. It is analyzed below:

Comp	Unit Price (/m2)	Adjustments									Adjusted Unit Price (/m2)
		Time	Location	Age	Frontage	Return Frontage	Headroom	Size	Layout & Depth	Total
RS1	$175,692	2.9%	-10.0%	-0.1%	2.0%	0.0%	7.5%	-2.0%	2.5%	1.9%	$175,925

46.  Therefore, if this further comparable is included, the average of all the comparables turns out to be 166,380 per sq m. And if only the four comparables that took place in 2021 are considered, the average would be merely 160,749 per sq m. That said, it appears that shop prices in the vicinity did not follow the downward trend of the market or Comparables ES1 & ES2 were for some reasons unknown fetched unreasonably low prices:

Month 2021	Private Retail Price Index	Adjusted Unit Pirce	Unit Concerned
April	527.8
May	542.3
June	543.3
July	561.3
August	571.7	$159,557	Shop C, G/F & Cockloft, Lap Hing Building, 37-43 Ting On Street (ES2)
September	555.0
October	535.0
November	548.5
December	555.8	$175,692	Shop B, G/F & Cockloft, Lap Hing Building, 37-43 Ting On Street (RS1)

47.  I agree with the observation by the valuation expert in 668A Limited v Yim Yiu Ying, LDCS 5000/2022 (unreported, dated 3 November 2022) at §18 that this comparable, RS1, should be placed a higher weight. I am going to adopt $175,000 per sq m as the unit rate for the reference shop unit.

48.  My determination of the EUV of the respective shops of the Buildings is shown as follows:

Address on G/F	Effective Area (m2)	Adjustments							Adjusted Unit Price (/m2)	EUV
		Frontage	Return Frontage	Layout	Age	Size	Headroom	Total
45 Ting Fu Street	56.69	1.7%	10.0%	0.0%	0.1%	1.0%	0.0%	13.1%	$197,925	$11,220,000
47 Ting Fu Street	66.28	0.0%	0.0%	0.0%	0.1%	0.0%	0.0%	0.1%	$175,175	$11,611,000
49 Ting Fu Street	69.03	0.0%	0.0%	0.0%	0.0%	0.0%	0.0%	0.0%	$175,000	$12,080,000
51 Ting Fu Street	73.02	0.0%	0.0%	-0.7%	0.0%	0.0%	0.0%	-0.7%	$173,775	$12,689,000
Shop 1, 53-63 Ting Fu Street	62.98	-2.1%	0.0%	-0.7%	0.1%	0.0%	-6.7%	-9.2%	$158,900	$10,008,000
Shop 2, 53-63 Ting Fu Street	59.29	-3.5%	0.0%	-3.0%	0.1%	0.0%	-6.7%	-12.6%	$152,950	$9,068,000
Shop 3, 53-63 Ting Fu Street	63.75	-3.4%	0.0%	-3.0%	0.1%	0.0%	-6.7%	-12.5%	$123,125	$9,762,000
Shop 4, 53-63 Ting Fu Street	70.11	-2.1%	0.0%	-3.0%	0.1%	0.0%	-6.7%	-11.3%	$155,225	$10,883,000
Shop 5, 53-63 Ting Fu Street	65.33	-3.6%	0.0%	-3.0%	0.1%	0.0%	-6.7%	-12.7%	$152,775	$9,981,000
Shop 6, 53-63 Ting Fu Street	100.27	3.8%	0.0%	0.0%	0.1%	-3.0%	-6.7%	-6.0%	$164,500	$16,494,000
									Total:	$113,796,000

Effective Areas of the Upper Floor Domestic Units

49.  By their 1^st Joint Statement dated 9 September 2022, Mr Alnwick Chan and Mr Jack Chan had agreed on the saleable areas of all upper floor units of the Buildings but they failed to agree on the conversion factors for those areas of flat roof on 1/F and those on the main roof:[8]

	Mr Alnwick Chan	Mr Jack Chan
Flat Roof	1/6	1/4
Main Roof	1/8	1/6

50.  In respect of the latter, Mr Jack Chan claimed that he had carried out paired analysis on the basis of transactions of units in Lap Hing Building at 37-43 Ting On Street as follows:[9]

Floor	Flat	Saleable Area (m2)	Roof/ Flat Roof (m2)	Consideration	Unit Price (/m2)	RVD Index	Adjustment						Adjusted Unit Price (/m2)	Adjusted Value
							Time	Floor	Size	View	Top Floor	Total
2	4	21.51		$2,380,000	$110,646	439.2
5	4	21.51	17.84	$2,550,000		434.6	-1.0%	-6.0%	0.0%	0.0%	-1.0%	-7.9%	$101,905	$2,191,977
1	3	28.01	9.89	$3,400,000		429.2	-2.3%	2.0%	-1.3%	3.0%	0.0%	1.3%	$112,084	$2,410,927

51.  Then Mr Jack Chan took for instance $2,191,977 as the market value of Flat 4 on 5/F without the main roof. As a result, he analyzed the value of the main roof as or 1/5 of the unit value of Flat 4 on 5/F. Similarly, Mr Jack Chan worked out the unit value of the flat roof as ¼ of the unit value of Flat 3 on 1/F.

52.  But as commented by Mr Alnwick Chan, Mr Jack Chan could only rely on only 1 set of paired comparables to arrive at his proposed conversion factors. If for instance the transaction price for Flat 4 on 2/F be varied, the resultant analysis is totally different. This is particularly the case when the areas involved are small and therefore the analyzed values are sensitive to any change.

53.  Having considered the above, I prefer to adopt the usual conversion factors as proposed by Mr Alnwick Chan and set out below the effective area for each unit of the Building for the purpose of assessing the EUV:[10]

Address	Floor	Unit	Saleable Area (m2)	Flat Roof (m2)	Roof (m2)	Effective Area (m2)
45 Ting Fu Street	1/F		32.20	17.92		35.19
	2/F		32.20			32.20
	3/F		32.20			32.20
	4/F		32.20			32.20
	5/F		32.20		30.77	36.05
47 Ting Fu Street	1/F		36.35	23.64		40.29
	2/F		36.35			36.35
	3/F		36.35			36.35
	4/F		36.35			36.35
	5/F		36.35		34.61	40.68
49 Ting Fu Street	1/F		35.33	27.18		39.86
	2/F		35.33			35.33
	3/F		35.33			35.33
	4/F		35.33			35.33
	5/F		35.33		34.28	39.62
51 Ting Fu Street	1/F		37.46	28.64		42.23
	2/F		37.46			37.46
	3/F		37.46			37.46
	4/F		37.46			37.46
	5/F		37.46		36.38	42.01
53-63 Ting Fu Street	1/F	1	32.27	3.79		32.90
		2	37.76	5.34		38.65
		3	33.67	23.81		37.64
		4	32.27	3.95		32.93
		5	37.76	23.77		41.72
		6	33.67	36.22		39.71
	2/F	1	32.27			32.27
		2	37.76			37.76
		3	33.67			33.67
		4	32.27			32.27
		5	37.76			37.76
		6	33.67			33.67
	3/F	1	32.27			32.27
		2	37.76			37.76
		3	33.67			33.67
		4	32.27			32.27
		5	37.76			37.76
		6	33.67			33.67
	4/F	1	32.27			32.27
		2	37.76			37.76
		3	33.67			33.67
		4	32.27			32.27
		5	37.76			37.76
		6	33.67			33.67
	5/F	1	32.27		29.84	36.00
		2	37.76		23.74	40.73
		3	33.67		28.61	37.25
		4	32.27		23.74	35.24
		5	37.76		31.65	41.72
		6	33.67		28.61	37.25

U/F Comparables and Adjustments

54.  In assessing the EUV of the upper floor units, Mr Alnwick Chan and Mr Jack Chan agreed to adopt 3/F, 49 Ting Fu Street as the reference domestic unit. They had relied on the following comparables of which only first 4 are common comparables:

Comp	Address	Age	Date of Sale	Consideration	Saleable Area (m2)	Headroom (m2)	Unit Rate (m2)
ED1	Flat 4, 2/F, Lap Hing Building, 37-43 Ting On Street	1972	29 Jul 21	$2,380,000	21.51	2.90	$110,646
ED2	Flat A, 2/F, On Cheung House, 313 Kwun Tong Road	1970	26 Mar 21	$2,950,000	30.09	2.97	$98,039
ED3	Flat C, 2/F, Ting Yip Mansion, 4-10 Ting Yip Street	1972	5 Mar 21	$2,550,000	26.70	2.87	$95,506
ED4	Flat E, 5/F, Dor Hei Building, 17 Ting Fu Street	1972	13 Jan 21	$2,770,000	27.90	2.90	$99,283
ED5	Flat A, 2/F, Sam Hei Mansion, 95-103 Ting On Street	1969	17 Jul 20	$2,390,000	25.50	2.90	$93,725
ED6	Flat B, 2/F, Sheung Heu Building, 96 Ting On Street	1972	24 Apr 20	$3,100,000	30.20	2.90	$102,649
ED7	Flat 7, 4/F, Ting Fu House, 105-119 Ting Fu Street	1971	22 Apr 20	$2,980,000	28.80	2.87	$103,472
ED8	Flat 4, 3/F, Ting Fu House, 105-1119 Ting Fu Street	1971	27 Mar 20	$2,450,000	26.00	2.87	$94,231
ED9	Flat H, 2/F, Tsut Hei Building, 20 Ting On Street	1970	23 Mar 20	$2,420,000	24.40	2.90	$99,180
ED10	Flat B, 3/F, Chit Wong Mansion, 301-309 Kwun Tong Road	1971	16 Mar 20	$3,080,000	34.40	2.87	$89,535
ED11	Flat 5, 4/F, Ting On House, 57 Ting Fu Street	1970	13 Mar 20	$2,480,000	24.06	2.87	$103,076
ED12	Flat 4, 5/F, Lap Hing Building, 37-43 Ting On Street	1972	29 Apr 21	$2,550,000	21.51 + Roof: 24.48	2.90	$103,785
ED13	Flat C, 5/F, Sam Hei Mansion, 95-103 Ting On Street	1969	25 Jan 21	$2,680,000	22.81 + Roof: 25.54	2.90	$103,077

55.  Mr Alnwick Chan and Mr Jack Chan had the following agreements/ disagreements on various adjustment factors:[11]

	Mr Alnwick Chan	Mr Jack Chan
Time	Private Domestic Price Index (Class A) as published by RVD
Floor	2% for floor difference
Top Floor	3% for top floor units	1% for top floor units
Size/ Quantum	1% for every 5 sq m difference 0 sq m - 4.99 sq m 5 sq m –9.99 sq m 10 sq m – 14.99 sq m :	Adjustment 0% 1% 2% :
Headroom	2% for every 0.5 m difference
Building Age	1% for every 1 year’s difference
View	Open View: -3% Building View: 0% Congested View: +3%	Open View: -5% Open Building View: -3% Building View: 0% Congested View: +3%
Noise	3% for facing MTR railway -3% for not facing MTR railway	2% for not facing MTR railway
Total Adjustment	By Multiplication

56.  Firstly as regards the top floor adjustment, I prefer the 3% proposed by Mr Alnwick Chan; the 1% proposed by Mr Jack Chan is obviously inadequate to reflect the solar heat absorption and water leakage that would usually be encountered by top floor units in old buildings.[12] This is particularly the case when Mr Jack Chan accepted that the Buildings were in a poor state of repair.

57.  In respect of the adjustment for view, I note the difference between Mr Alnwick Chan and Mr Jack Chan is basically resulted from the latter considering to adopt an additional calibration on view. Having conducted the joint inspection on 3 January 2023, I consider such an additional calibration not necessary as all comparables or the units in the Buildings are located in an urban area.

58.  Again, when all comparables or the units in the Buildings are located in an urban area, I consider an +/-2% for noise adjustment as proposed by Mr Jack Chan more appropriate. Anyway, the difference is minor and insignificant.

59.  On the basis of the above, I find the unit rate for the reference domestic unit as follows:

Comp	Unit Price (/m2)	Adjustments									Adjusted Unit Price (/m2)
		Time	Location	Age	Floor	Size	Headroom	View	Noise	Total
ED1	$110,646	0.7%	0.0%	-1.0%	-2.0%	-2.0%	-0.1%	3.0%	-2.0%	-3.5%	$106,773
ED2	$98,039	1.7%	0.0%	1.0%	-2.0%	-1.0%	-0.4%	0.0%	2.0%	1.2%	$99,215
ED3	$95,506	1.7%	3.0%	-1.0%	-2.0%	-1.0%	0.0%	3.0%	-2.0%	1.6%	$97,034
ED4	$99,283	4.3%	0.0%	-1.0%	4.0%	-1.0%	-0.1%	-3.0%	-2.0%	1.0%	$100,276
ED5	$93,725	3.5%	0.0%	2.0%	-2.0%	-1.0%	-0.1%	-3.0%	-2.0%	-2.7%	$91,194
ED6	$102,649	6.0%	0.0%	-1.0%	-2.0%	-1.0%	-0.1%	0.0%	-2.0%	-0.3%	$102,341
ED7	$103,472	6.0%	0.0%	0.0%	2.0%	-1.0%	0.0%	-3.0%	-2.0%	1.8%	$105,334
ED8	$94,231	5.2%	0.0%	0.0%	0.0%	-1.0%	0.0%	3.0%	-2.0%	5.1%	$99,037
ED9	$99,180	5.2%	0.0%	1.0%	-2.0%	-2.0%	-0.1%	0.0%	-2.0%	-0.1%	$99,081
ED10	$89,535	5.2%	0.0%	0.0%	0.0%	0.0%	0.0%	0.0%	2.0%	7.3%	$96,071
ED11	$103,076	5.2%	0.0%	1.0%	2.0%	-2.0%	0.0%	3.0%	-2.0%	7.2%	$110,497
ED12	$103,785	1.8%	0.0%	-1.0%	7.0%	-2.0%	-0.1%	3.0%	-2.0%	6.6%	$110,635
ED13	$103,077	4.3%	0.0%	2.0%	7.0%	-1.0%	-0.1%	-3.0%	-2.0%	7.0%	$110,292
									Average:		$102,137

60.  Mr Alnwick Chan did not choose ED12 & ED13 as comparables because they each comprises a top roof above the unit the conversion factor of which is subject to query. Also, as noted above, Mr Alnwick Chan and Mr Jack Chan had different view on the top floor adjustment. If ED12 & ED13 are disregarded, the average of the above analysis would become $100,623 per sq m.

61.  As it is apparent from the the table at §54 above, Mr Jack Chan did not adopt ED5, ED6, ED7, ED8, ED9, ED10 & ED11 as comparables because they were transacted all before August 2020, ie more than 1 year earlier than the relevant date of 10 August 2021. Therefore, if the 4 only common comparables are adopted, the average result would be $100,825 per sq m.

62.  Having reviewed the above, I am prepared to adopt $100,825 per sq m as the unit rate for the reference domestic unit.

63.  Nevertheless, before I proceed to determine the EUV of each domestic unit of the Buildings, I find there is further disagreement between Mr Alnwick Chan and Mr Jack Chan on the adjustments for their internal conditions:[13]

	Mr Alnwick Chan	Mr Jack Chan
Internal Condition	Good: 2% Fair: 0% Poor: -2% Very Poor: -4% Unacceptable: -6%	Very Good: 10% Good: 5% Fair: 0% Poor: -5% Very Poor: -10%

64.  Indeed, Mr Alnwick Chan made the following assumptions in the classification for internal conditions of the units:[14]

Grades	Tenantable State	Defects Level
Good	Above tenantable standard	No obvious defects
Fair	Up to tenantable standard	Few minor defects
Poor	Marginally below tenantable standard	Minor defects
Very Poor	Below tenantable standard	Obvious defects
Unacceptable	Substantially below tenantable standard	Serious and/or extensive defects

65.  Perhaps the first dispute on the internal condition of a domestic unit in a compulsory sale application arose in Oriental Generation Limited & Others v Luk Yung & Others, LDCS 4000/2013 (unreported, 29 February 2016)[15] where the valuation expert agreed to make an upward adjustment after he was able to carry out the inspection of the unit concerned.[16] Then in Gainfield Investment Limited v Legend Time Limited & Others, LDCS 16000/2014 (unreported, 17 October 2016), the Tribunal, though commenting on the adjustment for layout instead of on the internal condition, illustrated the point at §138 of the judgment that “when old units are purchased, new purchasers are prepared to renovate the units”. Thus, the question we should ask is on the basis of vacant possession, would a prospective purchaser of a unit pay an additional value for its particular internal condition.

66.  And lately, in Bright Full Limited & Others v Hing May Properties Limited, LDCS 36000/2019 (unreported, dated January 2023), counsel for Bright Full rightly raised the point at §24 that “it is unthinkable that a prospective purchaser of (the unit concerned) would pay $7,000,000 premium more just because of the internal decoration as it exists”. The Tribunal only accepted a higher grading for the unit concerned because there was evidence that the owner of the unit had spent a substantial cost on upgrading and renovation when he purchased the unit and the maintenance of the unit still appeared quite good when the Tribunal conducted the inspection.

67.  For the reasons above, in an application for compulsory sale which involves mainly buildings of 40 years of age onwards, it should rarely the case that the internal condition of a unit would differ significantly from its neighbour in value. Thus, Mr Alnwick Chan’s calibration or approach in adjusting for internal condition must be preferred.

68.  Having said that, my determination of the EUV of the various units in the Buildings is shown as follows:

Address	Floor	Unit	Effective Area (m2)	Adjustments						Adjusted Unit Rate (/m2)	EUV
				Age	Size	Floor	View	Noise	Total
45 Ting Fu Street	1/F		35.19	1.0%	0.0%	4.0%	0.0%	0.0%	5.0%	$105,866	$3,725,000
	2/F		32.20	1.0%	0.0%	2.0%	0.0%	0.0%	3.0%	$103,849	$3,344,000
	3/F		32.20	1.0%	0.0%	0.0%	0.0%	0.0%	1.0%	$101,833	$3,279,000
	4/F		32.20	1.0%	0.0%	-2.0%	0.0%	0.0%	-1.0%	$99,816	$3,214,000
	5/F		36.05	1.0%	0.0%	-7.0%	0.0%	0.0%	-6.1%	$94,674	$3,413,000
47 Ting Fu Street	1/F		40.29	1.0%	0.0%	4.0%	0.0%	0.0%	5.0%	$105,866	$4,265,000
	2/F		36.35	1.0%	0.0%	2.0%	0.0%	0.0%	3.0%	$103,849	$3,775,000
	3/F		36.35	1.0%	0.0%	0.0%	0.0%	0.0%	1.0%	$101,833	$3,702,000
	4/F		36.35	1.0%	0.0%	-2.0%	0.0%	0.0%	-1.0%	$99,816	$3,628,000
	5/F		40.68	1.0%	-1.0%	-7.0%	0.0%	0.0%	-7.0%	$93,767	$3,814,000
49 Ting Fu Street	1/F		39.86	0.0%	0.0%	4.0%	0.0%	0.0%	4.0%	$104,857	$4,180,000
	2/F		35.33	0.0%	0.0%	2.0%	0.0%	0.0%	2.0%	$102,841	$3,633,000
	3/F		35.33	0.0%	0.0%	0.0%	0.0%	0.0%	0.0%	$100,825	$3,562,000
	4/F		35.33	0.0%	0.0%	-2.0%	0.0%	0.0%	-2.0%	$98,808	$3,491,000
	5/F		39.62	0.0%	0.0%	-7.0%	0.0%	0.0%	-7.0%	$93,767	$3,715,000
51 Ting Fu Street	1/F		42.23	0.0%	-1.0%	4.0%	0.0%	0.0%	3.0%	$103,849	$4,386,000
	2/F		37.46	0.0%	0.0%	2.0%	0.0%	0.0%	2.0%	$102,841	$3,852,000
	3/F		37.46	0.0%	0.0%	0.0%	0.0%	0.0%	0.0%	$100,825	$3,777,000
	4/F		37.46	0.0%	0.0%	-2.0%	0.0%	0.0%	-2.0%	$98,808	$3,701,000
	5/F		42.01	0.0%	-1.0%	-7.0%	0.0%	0.0%	-7.9%	$92,859	$3,901,000
53-63 Ting Fu Street	1/F	1	32.90	1.0%	0.0%	4.0%	0.0%	0.0%	5.0%	$105,866	$3,483,000
		2	38.65	1.0%	0.0%	4.0%	0.0%	0.0%	5.0%	$105,866	$4,092,000
		3	37.64	1.0%	0.0%	4.0%	-3.0%	2.0%*	3.9%	$104,757	$3,943,000
		4	32.93	1.0%	0.0%	4.0%	0.0%	0.0%	5.0%	$105,866	$3,486,000
		5	41.72	1.0%	-1.0%	4.0%	0.0%	0.0%	4.0%	$104,857	$4,375,000
		6	39.71	1.0%	0.0%	4.0%	-3.0%	2.0%*	3.9%	$104,757	$4,160,000
	2/F	1	32.27	1.0%	0.0%	2.0%	0.0%	0.0%	3.0%	$103,849	$3,351,000
		2	37.76	1.0%	0.0%	2.0%	0.0%	0.0%	3.0%	$103,849	$3,921,000
		3	33.67	1.0%	0.0%	2.0%	-3.0%	2.0%*	1.9%	$102,740	$3,459,000
		4	32.27	1.0%	0.0%	2.0%	0.0%	0.0%	3.0%	$103,849	$3,351,000
		5	37.76	1.0%	0.0%	2.0%	0.0%	0.0%	3.0%	$103,849	$3,921,000
		6	33.67	1.0%	0.0%	2.0%	-3.0%	2.0%*	1.9%	$102,740	$3,459,000
	3/F	1	32.27	1.0%	0.0%	0.0%	0.0%	0.0%	1.0%	$101,833	$3,286,000
		2	37.76	1.0%	0.0%	0.0%	0.0%	0.0%	1.0%	$101,833	$3,845,000
		3	33.67	1.0%	0.0%	0.0%	-3.0%	2.0%*	-0.1%	$100,724	$3,391,000
		4	32.27	1.0%	0.0%	0.0%	0.0%	0.0%	1.0%	$101,833	$3,286,000
		5	37.76	1.0%	0.0%	0.0%	0.0%	0.0%	1.0%	$101,833	$3,845,000
		6	33.67	1.0%	0.0%	0.0%	-3.0%	2.0%*	-0.1%	$100,724	$3,391,000
	4/F	1	32.27	1.0%	0.0%	-2.0%	0.0%	0.0%	-1.0%	$99,816	$3,221,000
		2	37.76	1.0%	0.0%	-2.0%	0.0%	0.0%	-1.0%	$99,816	$3,769,000
		3	33.67	1.0%	0.0%	-2.0%	-3.0%	2.0%*	-2.1%	$98,707	$3,323,000
		4	32.27	1.0%	0.0%	-2.0%	0.0%	0.0%	-1.0%	$99,816	$3,221,000
		5	37.76	1.0%	0.0%	-2.0%	0.0%	0.0%	-1.0%	$99,816	$3,769,000
		6	33.67	1.0%	0.0%	-2.0%	-3.0%	2.0%*	-2.1%	$98,707	$3,323,000
	5/F	1	36.00	1.0%	0.0%	-7.0%	0.0%	0.0%	-6.1%	$94,674	$3,408,000
		2	40.73	1.0%	-1.0%	-7.0%	0.0%	0.0%	-7.0%	$93,767	$3,819,000
		3	37.25	1.0%	0.0%	-7.0%	-3.0%	2.0%*	-7.1%	$93,666	$3,489,000
		4	35.24	1.0%	0.0%	-7.0%	0.0%	0.0%	-6.1%	$94,674	$3,336,000
		5	41.72	1.0%	-1.0%	-7.0%	0.0%	0.0%	-7.0%	$93,767	$3,912,000
		6	37.25	1.0%	0.0%	-7.0%	-3.0%	2.0%*	-7.1%	$93,666	$3,489,000
										Total:	$182,481,000

* By this table of analysis or adjustments, it demonstrates the rationale for my adoption of Mr Jack Chan’s +/-2% adjustment for noise instead of Mr Alnwick Chan’s +/-3%. Should the latter be adopted otherwise, the view and noise adjustments would cancel out each another which appears not to be the case in real life.

69.  The total EUV of the Buildings is therefore $113,796,000 + $182,481,000 = $296,277,000 and the pro rata share of the interest of R1 and R2 are as follows:

Respondents	Unit	EUV	Pro Rata Share
R1	5/F & Roof, 47 Ting Fu Street	$3,814,000	1.2873%
R2	1/F & Flat Roof, 51 Ting Fu Street	$4,386,000	1.4804%

Whether Redevelopment of the Lot is Justified on “Age” or “State of Repair”

70.  Section 4(2)(a) of the Ordinance stipulates that the Tribunal shall not make an order for sale unless it is satisfied that redevelopment of the Lots or more particularly the 1^st Lot, 2^nd Lot, 3^rd Lot and 4^th Lot due to the “age or state of repair” of Wah Fat House and On Yin Building erected thereon is justified.

Experts’ Evidence

71.  On this issue, the applicant adduced the Condition Survey Report dated 25 February 2022 by Mr Dennis Wong, the Building Surveyor and the Structural Assessment Report dated 22 February 2022 by Dr Sammy Chan, the Structural Engineer.

72.  In the Structural Survey Report, Dr Sammy Chan concluded as follows:

(1)  A total of 37 defects and 34 defects including spalling of concrete and crack were observed on the structural elements of all accessible units and common area of the Wah Fat House and On Yin Building respectively;[17]

(2)  Most of estimated in-site cube strengths for On Yin Building were below the designated concrete grade to resist the design imposed loading;[18]

(3)  5 out of 7 tested locations in Wah Fat House and 4 out of 6 tested locations in On Yin Building were considerably carbonated with carbonation having progressed deeper than the embedded steel bars, losing its function to protect the embedded reinforcement of the reinforced concrete members from corrosion;[19]

(4)  2 out of 3 tested beams in Wah Fat House had unacceptable chloride content, susceptible to accelerated and severe pitting corrosion;[20]

(5)  1 out of 2 tested columns in Wah Fat House and 1 out of 2 tested slabs and 2 out of 2 columns in On Yin Building had cement contents lower than the estimated percentage of the design mix of 14.3% for slab and 25.0% for column, resulting in inadequate structural capability and failing to provide a durable protective environment for the steel reinforcement, permitting rapid carbonation and subsequent loss of the protective alkaline environment for the steel;[21]

(6)  Results of cover meter tests for On Yin Building indicated that the means of the depth of concrete cover for beam (23.0 mm) were lower than the design concrete cover required.[22]

73.  Dr Sammy Chan opined that in the absence of practical solution to rectify the carbonation of concrete, more concrete spalling defects due to corrosion of reinforcements in concrete would occur in future requiring more frequent and substantial repairs for the structural frame members. Test results showed that even preliminary preventive measures had been carried out, ie concrete patch repair works, extensive repair and maintenance will be required in the years to come. The repair and maintenance works will need to be carried out regularly in the future and that such repairs will be more and more extensive as the structural frames become older.[23]

74.  Both Wah Fat House and On Yin Building have passed the design working life of 50 years according to the Code of Practice for Structural Use of Concrete 2013. As well, they were designed and constructed more than 50 years ago according to the LCC By-laws which were of lower standard than the current structural design standards, as a result of which, there are a total of 5 out of 7 aspects in Wah Fat House and 6 out of 7 aspects in On Yin House which could adversely affect the structural performance of the structural frames of the Building:

(a)  Inadequate concrete cover for reinforced concrete slab;

(b)  Inadequate concrete cover for reinforced concrete beams;

(c)  Absence of requirement on concrete cover for bathrooms and kitchens;

(d)  Absence of requirements on limitation of alkali-aggregate reaction in concrete;

(e)  Inadequate wind pressure for the design of the Building, and

(f)  Absence of requirements on robustness.

75.  Dr Sammy Chan concluded that the structural frames of Wah Fat House and On Yin Building have deteriorated to the final stage of their design working life and the deterioration will continue due to extensive carbonation of the concrete.

76.  In the Condition Survey Report, Mr Dennis Wong concluded that Wah Fat House and On Yin Building were over 50 years, had many problems as a result of their age which would impair their appearance and function. Also due to changes in statutory requirements, advanced technology and higher expectations of the owners over the years, the Buildings have become substandard and obsolete in respect of the following aspects:

•  Safety;

•  Health and hygiene;

•  Comfort and convenience;

•  Expectation and enjoyment;

•  Environment; and

•  Management and maintenance.[24]

77.  Coming to the state of repair, Mr Dennis Wong estimated the costs of essential repairs was about 47.08% of the unit cost of $17,429.99 per sq m for reconstruction of a new similar building. He opined that the rectification/repair cost was disproportionately high when compared with the cost of re-constructing a new similar building. As a result, Mr Dennis Wong concluded that the overall state of repair of Wah Fat House and On Yin Building was poor and dilapidated with many of its components, finishes and services installations showing deterioration beyond reasonable repair.[25]

78.  In the absence of evidence to the contrary, I am satisfied that redevelopment of the 1^st Lot, 2^nd Lot, 3^rd Lot and 4^th Lot is justified due to the age and state of repair of both Wah Fat House and On Yin Building.

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

79.  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.

80.  By reference to the Witness Statement and Supplemental Witness Statement of Mr Ma Wai Yip, director of the applicant, dated 28 February 2022 and 16 December 2022 respectively, the applicant had made two rounds of offers to the respondents including R1 & R2 to purchase their respective units:

Respondent	Unit Concerned	1st Round (12 August 2021)[26]	2nd Round (16 December 2022)[27]
R1	5/F & Roof, 47 Ting Fu Street	$4,675,000	$4,100,000
R2	1/F & Flat Roof, 51 Ting Fu Street	$5,369,000	$4,800,000

81.  The applicant submitted that both rounds of offer were based on Mr Alnwick Chan’s valuation at the time and for instance, higher than the EUV assessed by Mr Alnwick Chan.

82.  Ms Lui cited Capital Well Limited v Bond Star Development Limited [2005] 4 HKLRD 363 where the Court of Final Appeal stated at §33:

“In making that assessment [ie whether an offer is reasonable], the Tribunal is not conducting a valuation exercise. It does not need to adjudicate upon any dispute 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.”

83.  And bearing in mind also that the applicant has successfully acquired the interest of R3 and R4 after the commencement of the proceedings, I am satisfied that the applicant has taken reasonable steps to acquire all the undivided shares in the Lots.

Disputes in the estimation of the RDV of the Lots

84.  By reference to the 2^nd Joint Statement by Mr Alnwick Chan and Mr Jack Chan dated 15 December 2022, the Lots, which comprise a Class B site under the Building (Planning) Regulations, have a total area of 705.60 sq m. However, after deduction of setback as required under Practice Note for Authorized Persons, Registered Structural Engineers and Registered Geotechnical Engineers APP-152 because of the narrow width of a portion of Ting Fu Street on the northwest side of the Lots (ie around the corner of the “L-shape”), the Lots still consist of 684.81 sq m.

85.  Both valuation experts resorted to the residual valuation in determining the RDV of the Lots. 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 which is agreed to comprise a 23-storey composite building with shops or restaurants on G/F, 1/F and 2/F, clubhouse on 2/F, being surmounted by residential flats from 3/F to 22/F. They had agreed a gross floor area (“GFA”) of 6,350.4 sq m comprising a domestic portion of 5,292.0 sq m and a non-domestic portion of 1,058.4 sq m.[28] The latter exactly yields a plot ratio of 1.5.

GDV for Shops

86.  In assessing the GDV for the shop portion, Mr Alnwick Chan and Mr Jack Chan assumed a reference unit of saleable area 55 sq m on G/F with a frontage of 5 metres, a headroom of 5 metres and a depth of 11 metres.

87.  As stated in §42 above, Mr Alnwick Chan and Mr Jack Chan relied on an additional comparable RS1, ie Shop B on G/F & Cockloft, Lap Hing Building which took place on 18 December 2021, ie still more than 1 year ago. Mr Jack Chan therefore tried to introduce another comparable RS8, ie Shop C, G/F, Tak Cheong House, 174-176 Ngau Tau Kok Road. Although this comparable has an address at Ngau Tau Kok Road, it lies in effect on the far end of Ting On Street close to its junction with Ngau Tau Kok Road. The Agreement for Sale and Purchase took place on 26 April 2022 ie closer to the present days. In terms of location, I note this time Mr Jack Chan proposed a -10% adjustment for location instead of 0% for other comparables on Ting On Street. I consider this -10% adjustment more appropriate and should be applicable to other comparables on Ting On Street.

88.  Having said that I note this additional comparable has a very small size of 20.35 sq m. I would have disregarded this comparable if there are other better comparables in the vicinity. Unfortunately, as stated in §46 above, it appears that shop prices in the vicinity did not follow the downward trend of the market or Comparables RS2 & RS3 were for some reason unknown fetched unreasonably low price. If these two comparables as well Comparable RS8 and RS9 are disregarded, I am left with Comparables RS1, RS4 and RS5, ie comparables all dated, a situation which may not be as satisfactory.

89.  Including therefore this additional Comparable RS8 in the meantime, I determine the GDV of the hypothetical shop as follows:

Comp	Unit Price (/m2)	Adjustments									Adjusted Unit Price (/m2)
		Time	Location	Age	Frontage	Return Frontage	Headroom	Size	Layout & Depth	Total
RS1	$172,645	-10.8%	-10.0%	5.0%	0.8%	0.0%	7.2%	3.0%	4.0%	-2.4%	$168,502
RS2	$175,692	-13.3%	-20.0%	4.9%	1.3%	0.0%	2.2%	0.0%	3.0%	-22.4%	$136,337
RS3	$159,557	-13.3%	-10.0%	5.0%	0.8%	0.0%	7.2%	3.0%	4.0%	-5.2%	$151,260
RS4	$185,027	-8.6%	-20.0%	4.9%	0.2%	-3.0%	0.1%	1.0%	4.0%	5.5%	$195,203
RS5	$180,774	-1.1%	-10.0%	5.3%	1.3%	0.0%	0.1%	0.0%	1.0%	-4.0%	$173,543
ES8	$284,029	-4.3%	-10.0%	4.8%	2.7%	0.0%	-0.1%	-3.0%	-5.5%	-15.1%	$241,141
RS9	$152,453	-3.0%	-10.0%	4.5%	1.0%	-3.0%	3.8%	-1.0%	0.3%	-7.9%	$140,409
									Average;		$172,982

90.  If Comparables RS2, RS3, RS8 and RS9 are all excluded from consideration, the average would become $184,373 per sq m.

91.  Having said that, I note Mr Jack Chan had proposed an adjustment of 10% to all retail comparables as building condition difference because the reference hypothetical retail unit will be located in a new development supported by modern building services. While I agree with Mr Alnwick Chan that such difference should have been reflected in the building age adjustment, I share the view of the Tribunal in South Crown Development Limited v Chung Ki To, LDCS 2000/2016 (unreported, dated 1 August 2019) at §70 that “the adjustment for age agreed by the two valuation experts at 0.15% per year only cannot adequately reflect the maintenance condition of the aged properties and therefore agree to the additional adjustment for maintenance condition proposed by Mr Chan[29], but the adjustment rate should be 5% only in the subject assessment.” In the present case, the adjustment for age agreed between Mr Alnwick Chan and Mr Jack Chan is at 0.1% per year only whereas the comparable shops are in the ages around the 70s. In contrast, the shop comparables in South Crown were completed in the 60s.

92.  In addition, Mr Jack Chan upon cross-examination suggested that after redevelopment, the trade mix would be different because of the change in environment. I agree with him that when the Lots of such a scale are completed, there shall be minor improvement in the shopping potential on G/F. I would allow an upward adjustment resulting in $195,000 per sq m, taking into account both the age and improvement factors.

93.  Mr Alnwick Chan had provided a hypothetical layout plan for the G/F of the proposed development where the reference shop unit was identified as Shop D.[30] Mr Jack Chan had provided a similar layout plan[31] and the differences between the two are illustrated as follows:

Shop	Mr Alnwick Chan			Mr Jack Chan
	Saleable Area (m2)	Frontage (m)	Return Frontage (m)	Saleable Area (m2)	Frontage (m)	Return Frontage (m)
A	59.96	5.75	9.91	66.28	6.25	9.98
B	55.00	5.00		66.00	6.00
C	55.00	5.00		66.00	6.00
D	55.00	5.00		60.50	5.50
E	46.10	5.60		60.50	5.50
F	60.50	5.50		55.00	5.00
G	60.50	5.50		55.00	5.00
H	52.75	6.00		38.50	5.00
Total:	444.81			467.78
Efficiency:	65%			68.3%

94.  From the above, I note the total difference in saleable shop area between Mr Alnwick Chan and Mr Jack Chan is about 5% which is not significant. On the other hand, I note that Mr Alnwick Chan’s design was made by reference to the layout of the following recent developments of similar site areas:

Name of Development	High One	Billionaire Avant	Residence 228
Address	571 Fuk Wa Street	62 Nga Tsin Long Road	228-234 Fuk Wing Street
Site Area (m2)	702.347	633.197	647.723

95.  While I appreciate that ascertaining the gross development value is just an averaging exercise when the proposed redevelopment could only be presented to the Tribunal on a conceptual level with a high degree of generality, the more adherence to reality the more the better.

96.  As well, I agree with Mr Alnwick Chan that Mr Jack Chan’s proposed layout which is more general in nature proposed a L-shape G/F lift lobby and residential entrance with a relatively narrow width of 4 metres. Such width is even narrower than the shop front of the adjoining shops of 5 metres or 5.5 metres. It might not accord with the prevailing design towards an upmarket image so as to facilitate marketing.

97.  In such regard, Mr Choi referred to Gain Union Limited v Ng King Yip, LDCS 5000/2021 (unreported, 6 September 2022) where at §79 the Tribunal had to choose between a design with entrance lobby of 4 metres or 2.31 metres in width. As rightly pointed out by Mr Choi, the Tribunal in that case accepted the model of a 4m wide ground floor entrance for a composite development with a small site area of 215.69 sq m. In the present case, the total site area is as much as 684.81 sq m which should accommodate a more decent ground floor entrance of longer width.

98.  And in fact, even if I were to adopt Mr Jack Chan’s proposed layout which is more general in nature, the higher saleable areas proposed by him would result to a certain extent in a lower unit rate because of the quantum allowance. Thus, following the layout of Mr Alnwick Chan, I determine the GDV for the G/F retail portion as follows:[32]

Shop	Saleable Area (m2)	Adjustments				Adjusted Unit Rate (/m2)	GDV
		Frontage	Return Frontage onto Ting Fu Street	Layout	Total
A	59.96	1.5%	10.0%	0.0%	11.7%	$217,815	$13,060,000
B	55.00	0.0%	0.0%	0.0%	0.0%	$195,000	$10,725,000
C	55.00	0.0%	0.0%	0.0%	0.0%	$195,000	$10,725,000
D	55.00	0.0%	0.0%	0.0%	0.0%	$195,000	$10,725,000
E	46.10	1.2%	0.0%	-3.0%	-1.8%	$191,490	$8,828,000
F	60.50	1.0%	0.0%	0.0%	1.0%	$196,950	$11,915,000
G	60.50	1.0%	0.0%	0.0%	1.0%	$196,950	$11,915,000
H	52.75	2.0%	0.0%	-3.0%	-1.1%	$192,855	$10,173,000
						Total:	$88,066,000
						Average:	$197,986/m2

99.  Mr Alnwick Chan and Mr Jack Chan agreed that the unit value for 1/F should be about 2/3^rd of the ground floor shops. Therefore, I am prepared to adopt $131,991 per sq m.

100.  Then both valuation experts had different views on the unit value of the commercial premises on 2/F of the hypothetical development: Mr Alnwick Chan assumed ½ of that of the G/F reference unit while Mr Jack Chan assumed 60%. They arrived at $96,000 per sq m and $122,300 per sq m respectively. On the other hand, if my determined figure of $197,986 is followed, their assessments would become $98,993 per sq m and $118,792 per sq m respectively.

101.  Having regard to the relatively low unit rate for the commercial premises on 1/F, however, I do not agree there should be any retail accommodation on 2/F. In any event, the Lots fall within an area zoned “Residential (Group A)” on the Draft Kwun Tong (South) Outline Zoning Plan No S/K/14S/24 which was approved under section 9(1) of the Town Planning Ordinance on 15 March 2022. Under this zoning designation, “no new development, or addition, alteration and/or modification to or redevelopment of an existing building shall result in the plot ratio of the building upon development and/or redevelopment in excess of … 9.0 for a building that is partly domestic and partly non-domestic … Except where the plot ratio is permitted to be exceeded under paragraph (9) and/or (10) hereof, under no circumstances shall the plot ratio for the domestic part of any building, to which this paragraph applies, exceed 7.5.” In regard of the latter, the plot ratio for the non-domestic part, ie the retail portion cannot exceed 1.5. Having said that I am prepared to combine the total saleable area proposed by Mr Alnwick Chan for 1/F and 2/F into one, ie 198.18 sq m + 195.41 sq m = 428.54 sq m because of the saving in common area but for accommodating the plant room.

GDV for Residential Units

102.  As regards the domestic portion of the hypothetical development, I realize again Mr Alnwick Chan and Mr Jack Chan had different assumptions on the total saleable areas:

	Mr Alnwick Chan	Mr Jack Chan	Difference
3/F with Private Flat Roof	235.86 sq m	237.00 sq m	1.14 sq m (0.5%)
4/F to 21/F	3,691.44 sq m	3,693.60 sq m	272.16 sq m (7.4%)
22/F with Private Roof	225.60 sq m	227.84 sq m	2.24 sq m (1%)

103.  While it appears absurd for the two valuation experts to expect the Tribunal to rule on the insignificant difference in saleable areas based merely on conceptual plans, I accept Mr Alnwick Chan’s comment that the common part provision by Mr Jack Chan at 55 sq m on each domestic floor is on the low side when the Lots are in a relatively shallow and elongated shape. I accept further Mr Alnwick Chan’s reference to Aspen Crest, one of the comparable developments adopted by both valuation experts, which has similar site configuration where the common part comprising 3 lifts and 2 staircases is about 75 sq m on each floor. It appears more reasonable for me to accept Mr Alnwick Chan’s proposed common part on each floor at 65 sq m when the hypothetical development will provide 2 lifts.

104.  At this juncture, I also note that Mr Jack Chan had made reference to the following developments where he found the common lobby on each domestic floor is about or less than the 55 sq m he proposed:[33]

Name of Project	J Loft	Bondlane 1	The Symphonie	Vau Residence
Address	93 Apliu Street	233 Yee Kuk Street	280 Tung Chau Street	11 Liberty Avenue
Number of Units per Floor	6	6	7	8
Area of Common Lobby (as measured)	45.40 sq m	55.19 sq m	41.34 sq m	50.79 sq m

105.  With respect to Mr Jack Chan, the four projects he referred to are not good comparables because they are not built on an elongated site; Vau Residence in particular occupies a corner site where there can be more flexibility in design. The Symphonie comprising a larger site with two residential towers also occupies a corner position.

106.  All the more, Aspen Crest is one of the comparable developments that were adopted by both valuation experts in assessing the value of the domestic flats in the hypothetical development. I consider it is more worth the while for comparing like with like.

107.  Also, starting from February 2022, the Government has passed a mandate that new residential flats must be constructed with a minimum size of 280 square feet (26.0 sq m) so as to curb extremely small “nano” flats in Hong Kong. Although developers building on relatively “unrestricted leases” need not follow, I prefer to adopt Mr Alnwick Chan’s proposed average flat size of 34.18 sq m to Mr Jack Chan’s original proposal of 27.53 sq m (which he had revised to 36.09 sq m shortly before trial).

108.  In any event, both Mr Alnwick Chan and Mr Jack Chan assumed a unit on 12/F as a reference unit. However, Mr Alnwick Chan assumed a saleable area of 34.18 sq m while Mr Jack Chan adopted 36.09 sq m. While the difference in unit size is insignificant, I am content to adopt 34.18 sq m as the reference.

109.  Mr Alnwick Chan and Mr Jack Chan had relied on the recent sales in the following developments (including Aspen Crest) in arriving at their assessment of the GDV for the domestic portion of the hypothetical development:

Name of Development	Address	Date of Occupation Permit	Mr Alnwick Chan	Mr Jack Chan
The Aperture	11 Ngau Tau Kok Road, Ngau Tau Kok	2023	$198,979	$213,066
Aspen Crest	68 Wan Fung Street, Tsz Wan Shan	2018	$193,349	$198,263
Park Metropolitan	8 Yuet Wah Street, Kwun Tong	2014	$171,621	Not Adopted
One East Coast	1 Lei Yue Mun Road, Lei Yue Mun	2019	Not Adopted	$198,263

110.  The Aperture is indeed a new development under construction and was the subject of a compulsory sale application in LDCS 13000/2017 (unreported, dated 30 January 2019). It is situated at a more bustling and busy area of Ngau Tau Kok in close proximity to the Kowloon Bay MTR station. Shops close to The Aperture are of more variety and in particular the Amoy Plaza and Telford Plaza Phases 1 & II, both local shopping centres, are within close walking distance. In comparison, the locality within which the Lots are situated is more or less isolated; it is quite a distance from the Amoy Plaza and Telford Plaza Phases 1 & II. I agree with Mr Alnwick Chan that a location adjustment of -10% is more appropriate than Mr Jack Chan’s -5%. This explains largely the difference in unit rate of the residential units derived by the two valuation experts.

111.  Further to the above, I agree with Mr Alnwick Chan’s proposed adjustment of -2% for the advantage of The Aperture having carpark facilities.

112.  Aspen Crest was also the subject of another compulsory sale application in LDCS 6000/2014 which was withdrawn after trial in October 2014. It is situated at a relatively secluded location on the hillside of Tsz Wan Shan with characters quite similar to the subject. I consider sales in this development providing good indication of value for the units of the hypothetical development; the difference between Mr Alnwick Chan and Mr Jack Chan is about 2.5%.

113.  Park Metropolitan is located within a popular residential area in Kwun Tong in close proximity to the bustling Mut Wah Street[34] and the urban renewal centre of Yue Man Square. On the one hand, the age of the development is dated and on the other hand, I have reservation on the -5% location adjustment adopted by Mr Alnwick Chan. I do not agree with him that this development is situated in a similar neighbourhood as the Lots. I do not consider sales in this development providing good indication of value for the units of the hypothetical development.

114.  One East Coast is situated further away in another different district which in the past was dominated by a range of industrial premises; the latter are now giving way for residential developments. It is however far away from the Lam Tin MTR station but some of the units would enjoy seaview overlooking Lei Yue Mun, the strait of the Hong Kong Victoria Harbour. I agree with Mr Alnwick Chan that sales in this development are not providing good indication of value for the units of the hypothetical development.

115.  Having reviewed the above, I am prepared to adopt $198,000 per sq m as the approximate unit rate of a typical flat in the hypothetical development.

116.  Like many other valuation experts acting on behalf of the minority owners in compulsory sale applications, Mr Jack Chan proposed there would be “special units” on the top floor of the hypothetical development that would justify a 20% premium. Mr Alnwick Chan had commented on this in his Rebuttal Report date 27 July 2022 as follows:[35]

“5.7.7 Special unit is considered luxurious provision in a residential development compared with the typical units. Given that the subject site is located at Ngau Tau Kok, a mediocre and old urban district surrounded by industrial buildings, old tenement buildings and public housing estates, I do not agree such locality comply with the ambience of a grand residence. In addition, its close proximity to MTR railway and highways is likely to suffer from heavy noise nuisance. Besides, the hypothetical development proposed by Mr Jack Chan does not include any carpark provision, failed to create the tone of exclusiveness and affluence to the special units.

5.7.8 Lastly, the saleable area of the “special unit” in Jack Chan’s hypothetical development is only 56.96 m², which falls short to be marketed as luxurious provision in a residential development. To sum up these factors, I regard the top floor units in Mr Jack Chan’s hypothetical development solely a larger-sized typical unit. Hence they do not justify an upward 20% “special unit” adjustment.

5.7.9 In fact, both Mr Jack Chan and I have included the area of roof into effective area, hence the value of roof has already been reflected in the effective area. Thus, I opine that pure floor adjustment is sufficient to reflect their values instead of applying an upward 20% “special unit” adjustment.

117.  I agree with Mr Alnwick Chan that “special units” in the subject locality would not be popular.

118.  During cross-examination, when Mr Jack Chan was put to the same, his reply could only be that the top floor units included the appurtenant private roof. With respect, it would make more sense to purchase two flats on 21/F for a similar price and get a greater saleable area of 75 sq m rather than paying an additional $7 million premium.

119.  Save for the above, Mr Alnwick Chan and Mr Jack Chan had agreed on most of the adjustments pertaining to the various residential units for the hypothetical development.[36] As regards adjustment for noise, however, both valuation experts had agreed to adopt a reference unit without potential noise issue but for those units facing the MTR viaduct, Mr Alnwick Chan proposed -3% while Mr Jack Chan proposed -2%. Having regard to the relatively close distance between the hypothetical development and the MTR viaduct at less than 20 metres, I agree with Mr Alnwick Chan.[37]

120.  Subject to what I have discussed above, I therefore just adopt those adjustments proposed by Mr Alnwick Chan[38] and evaluate the GDV for the domestic units as shown at Appendix 1 herein.

Other Parameters of Residual Valuation

121.  Mr Alnwick Chan and Mr Jack Chan had also agreements/disagreements on the other parameters of the residual valuation:[39]

	Mr Alnwick Chan	Mr Jack Chan
Marketing Cost	3%
Demolition Cost	2,379.34 sq m x $2,240 per sq m = $5,329,722
Construction Cost	$319,575,295	$250,635,024
Construction Period	2.5 years	2.25 years
Demolition Period	0.75 year (with 0.25 year overlapping with construction)	0.5 year
Interest Rate	4.25%	4.0%
Developer’s Profit	16%	15%
Stamp Duty	4.25% on land value	Not Allowed
Legal Cost	0.1% on land value	Not Allowed
Land Value	$341,000,000	$542,000,000
Accommodation Value	$53,697 per sq m	$85,349 per sq m

Construction Cost & Period of Construction

122.  I appreciate that in general, valuation experts giving evidence in Tribunal on compulsory sale applications for instance usually rely on the Building Cost Data published by Rider Levett Bucknall (“RLB”), a construction and property consultancy of international fame. From the above, however, it appears that the difference between Mr Alnwick Chan and Mr Jack Chan on construction cost comes as much as more than 20% while I note that previously in their 1^st Joint Statement dated 9 September 2022, Mr Alnwick Chan assumed a construction cost of only $245,814,113 only. That means, Mr Alnwick Chan had increased his estimate by 30%. More particularly, this arose because of the following article “Trends in Residential Developments in Hong Kong – Size, Price, Standards and Cost” published by RLB on 4 April 2022:[40]

“For the past decades, the Hong Kong private residential sector has focused on offering small flats to address the housing supply and demand imbalance… the market turns to offering tinny, mini-sized flats to satisfy the huge demand of home ownership.

Cost differences between “nano” and regular flats

We selected two typical residential buildings with different scales to further explore the cost differences between the “nano flats” design and the regular flats design. The “nano flats” design means that the majority of the flat units offered by the project are below 24m². The “nano flats” design project selected by this article offers flats with saleable areas from 19 to 27m² (average 22m²/unit), and the regular one offers flats from 26 to 93m² with an average size of 45m² per unit (see Figure 6). We found that the construction unit costs in terms of structure, façade, architectural works and building services of “nano flats” design project are higher than that of the regular one (Table 1).

…

The most significant differences resided in the unit cost of façade (+29%) and followed by structure (+25%). From the functional perspective, non-living space (e.g., wall-occupied areas, back of house, lift lobby and balcony/utility platform) of the “nano flats” design project occupied more than the regular one (Figure 7). Besides, the façade to CFA ratio of the “nano flats” design project is much higher than the regular one (i.e., 1.25m² Façade / m² CFA vs 0.74m² Façade / m² CFA, respectively). Such functional areas contribute little to the actual living space of the “nano flats” but increase the unit cost of projects.”

123.  As a result of this article, the General Practice Division of the Hong Kong Institute of Surveyors addressed its concern to RLB on 25 July 2022 which was followed by a reply from RLB on 22 August 2022 as follows:[41]

“1. Based on a study of our projects, we consider that an ‘extensive number’ of studio flats / 1-bed units in a development can be defined as more than 60 percent of such units in the development.

2 & 3. The purpose of the Article was to illustrate that there was indeed a cost premium if the number of “nano” flats represented a substantial proportion of the total number of flats in a residential development as part of our on-going research studies. It should be treated as a case study rather than for generalization of the cost deviation between “regular flats” and “nano flats” which can be influenced by multiple factors such as flat size, flat layout, flat mix, specification, site conditions and development scale in addition to the proportion of “nano flats” in a development. On the other hand, the 20 to 40 percent adjustment in the Building Cost Data has been established separately based on an analysis of our projects having taken the above factors into consideration.

4. As mentioned above, a range of percentage adjustment is provided in the Building Cost Data because the cost adjustment for residential apartment buildings with extensive number of studio flats / 1-bed units is influenced by multiple factors. In general, a percentage adjustment at the upper end of the range can be applied to a development with a very high proportion (eg more than 90%) of studio flats of very small flat size (eg less than 18m²).

5. The classification for building cost adjustment based on type of flat (ie Studio/ 1-bedroom) is considered appropriate as the focus is on the extensiveness of such flats rather than the flat size which is just one of the factors affecting construction costs.

…”

124.  Having read the above, I agree with Mr Jack Chan that given the flat size proposed by Mr Alnwick Chan and adopted by me at 34.18 sq m, the 30% adjustment proposed by Mr Alnwick Chan is excessive; I do not envisage that “the number of “nano” flats represented a substantial proportion of the total number of flats” in the present case. Furthermore, that “a percentage adjustment at the upper end of the range can be applied to a development with a very high proportion (eg more than 90%) of studio flats of very small flat size (eg less than 18m²)” is not the case here.

125.  As well, I note Mr Jack Chan had revised his hypothetical model so that the average flat size would be 36.09 sq m instead of 27.53 sq m to avoid the additional construction cost for studio flats or 1-bedroom units. By this revision, Mr Jack Chan considered 40% of the flats would be 2-bedroom units. While I agree with Mr Alnwick Chan that there is no definition of 1-bedroom or 2-bedroom units on size and 36.09 sq m would be a little too small for 2-bedroom design, I have reservation on how far provision of units of average flat size around 34.18 sq m or 36.09 sq m would still be subject to the additional construction cost.

126.  In any event, both Mr Alnwick Chan and Mr Jack Chan had already included a 10% scale adjustment in their estimation of the construction cost. Without further elaboration from RLB, for instance, Mr Alnwick Chan’s approach would mean a total of 40% cost being added on the basis of scale or size of floor plate alone which appears to be excessive.

127.  By reason of the above therefore, I prefer to adopt Mr Jack Chan’s proposal of $250,635,024 which is about $39,470 per sq m of total GFA.

128.  As regards the demolition period and construction period, I prefer to adopt Alnwick Chan’s proposal of 0.75 year and 2.5 years respectively which appear to be more reasonable in view of the scale of the project. The total construction period of 2.75 years (including demolition) appears to be too short when compared with the follow:[42]

Development	Total GFA (sq m)	Consent of Foundation Work	Occupation Permit	Estimated Construction Period
The Ascent, 83 Shun Ning Road	7,158.9	May 2015	Mar 2018	35 months (2.92 years)
Star Ruby, 1 San Wai Street	6,104.9	Nov 2011	May 2014	31 months (2.58 years)
L-Harbour 18, 18 Chi Kiang Street	4,280.5	Jul 2012	Jul 2015	37 months (3.08 years)

129.  In respect of the latter, I was drawn attention by Mr Choi to the Authorized Person’s letter dated 28 November 2011 which stated the building of the superstructure would only commence almost 9 months after the issue of consent of foundation work.[43] With respect, this does not assist him if it was not unreasonable for the Authorized Person to adopt such a time frame. That the assumption of a development period of mere 2.5 years in 668A Ltd, supra, does not assist him either when the total GFA envisaged in that case was 2,209.84 sq m. In the present case, the total GFA envisaged is 6,350.4 sq m.

Interest Rate

130.  Previously in their 1^st Joint Statement dated 9 September 2022, both Mr Alnwick Chan and Mr Jack Chan agreed an interest rate of 4% in discounting the cashflows.[44] However, in their 2^nd Joint Statement dated 15 December 2022, Mr Alnwick Chan revised it to 4.25%. He explained that it was the result of the US Federal Reserve raising the federal funds rate to 4.5% etc in December 2022:

Federal Open Market Committee Meeting	Rate Change (bps)	Federal Funds Rate
2 February 2023	+25	4.50% to 4.75%
14 December 2022	+50	4.25% to 4.50%
2 November 2022	+75	3.75% to 4.00%
21 September 2022	+75	3.00% to 3.25%
27 July 2022	+75	2.25% to 2.50%
16 June 2022	+75	1.5% to 1.75%
5 May 2022	+50	0.75% to 1.00%
17 March 2022	+25	0.25% to 0.50%

131.  Since 17 October 1983, the Hong Kong Monetary Authority had adopted the Linked Exchange Rate System (LERS) to defend the local currency. Through such a rigorous, robust and transparent Currency Board system, the LERS ensures that the Hong Kong dollar exchange rate remains stable within a band of HK$7.75-7.85 to one US dollar. This system has been commonly referred to (or as a misnomer) as a peg against the US dollars.

132.  For instance, in response to the US’s federal funds rate increase in March 2022, the Hong Kong Monetary Authority issued a press release on 17 March 2022 as follows:

“The Federal Open Market Committee of the US Fed announced in the early morning today (17 March, Hong Kong time) that it would raise the target range for the federal funds rate by 25 basis points to 0.25-0.5%. In the light of the US Fed’s decision, the Hong Kong Monetary Authority (HKMA) has also raised the Base Rate today. According to the pre-set formula, the Base Rate is set at 0.75% today. The US Fed also indicated that ongoing increases in interest rate would be appropriate amid persistently high inflation and expected to begin balance sheet reduction at a coming meeting.”[45]

133.  This Base Rate has ever been set at either 50 basis points above the lower end of the prevailing target range for the US federal funds rate or the average of the five-day moving averages of the overnight and one-month Hong Kong Interbank Offered Rates (HIBORs), whichever is higher. Following the 25-basis point upward adjustment in the target range for the US federal funds rate by the US on 16 March (US time), 50 basis points above the lower end of the prevailing target range for the US federal funds rate is 0.75%, while the average of the five-day moving averages of the overnight and one-month HIBORs is 0.14%. The Base Rate is therefore set at 0.75% according to the pre-set formula.

134.  There have been increases in the interest rates in Hong Kong during the interim periods:

Effective Date	HSBC’s Best Lending Rate	HKD Interest Settlement Rates[46]
		for 3 months	for 12 months
16 December 2022	5.625%	5.40786	5.78488
4 November 2022	5.375%	4.76714	5.35066
23 September 2022	5.125%	3.20113	4.20702
1 November 2019	5.000%	2.17464	2.28625

135.  Whereas the Federal Reserve raised the federal funds rate by 0.5% in December 2022, followed by another rate increase on 2 February 2023, several Federal Reserve officials had warned that interest rates might need to go higher than anticipated to keep the lid on inflation in light of January's hotter-than-expected inflation data on 15 February 2023. The one-month gap between Hong Kong and the US dollar London Interbank Offered Rate (Libor) continued to widen and hit a new height, approaching the level of 2.5%. This triggered the resurgence of capital outflows via carry trade by arbitrageurs borrowing the Hong Kong currency cheaply to buy the US dollars for higher yields. As a result, the Hong Kong dollar touched the level of the weak-side trading band against the US dollar. Therefore, the Hong Kong Monetary Authority intervened the currency market for two consecutive days, buying a total of 19 billion Hong Kong dollars. The large-scale market entry involved about 14.868 billion Hong Kong dollars as a result of which the aggregate balance – the sum of balances in clearing accounts maintained by banks with the monetary authority – measuring interbank liquidity dropped to around 77 billion Hong Kong dollars, which was the lowest level in about 3 years.[47] It presaged the banks of Hong Kong would follow the US in raising interest rates in March 2023.

136.  Thus, I consider Mr Alnwick Chan’s revision to 4.25% reasonable.

Developer’s Profit

137.  Again, Mr Alnwick Chan had revised the agreed developer’s profit from 15% to 16% in the 2^nd Joint Statement. Mr Alnwick Chan explained that based on the statistics from the Land Registry, the cumulative number of agreements for sale and purchase for primary and secondary residential sales was 10,068 and 32,475, both dropped by about 40% on a year-to-year bases. He attributed the shrinkage in property transactions to the more conservative prospective buyers who were concerned about the property market risk possibly due to worries about economic recession and recent rapid interest rate hikes.

138.  However, ever since the Chinese government reopened its border with Hong Kong on 8 January 2023 (which was announced on day 4 of the trial), Hong Kong’s property market regained some of its sparkle in January, with deals rising to a three-month high and this auspicious trend is continuing. In view of this, I prefer to adopt the usually adopted 15% as developer’s profit.

Stamp Duty and Legal Cost

139.  The purpose of carrying out the residual valuation, as I trust Mr Jack Chan does appreciate, is to determine what a hypothetical purchaser would be willing to pay for the Lot. As a professional valuation expert, Mr Jack Chan should also have appreciated that the concept of the residual valuation is by itself to determine what might be left as a residue to a hypothetical developer after taking into account the cash inflows and the cash outflows so as to bid for the land. Obviously the payment of stamp duty is a kind of the cash outflow that has to be taken into account. Thus the HKIS Guidance Notes on Valuation of Development Land at para 3.9.2 has explained that developers would take into account these stamp duty liabilities in the assessment for purchase price for development land. For the same reason, I would add 0.1% as legal cost for the purchase of the land.

140.  Thus I determine the RDV of the Lots in the sum of $452,500,000 or an accommodation value (“AV”) of $71,255 per sq m as shown in the Appendix 2 hereof.

Site Transactions

141.  Mr Jack Chan had attempted to refer to two site transactions below in support of his AV of $85,349 per sq m:[48]

Name of Development	Address	Sale Price	Date of Sale	Site Area (m2)	Max GFA (m2)	AV (/m2)
Bal Residence	18 Hang On Street	$883,000,000	30 Apr 19	789.700	6,667.00	$132,443
The Aperture	7 Ngau Tau Kok Road	$2,075,600,000	26 Mar 19	1,923.077	16,553.00	$125,390

142.  I have already commented that shop transactions at Hang On Street might not be appropriate comparables in view of the difference in locality. Similarly, I have commented that The Aperture is situated at a location quite different from the subject. I do not consider the transactions of these two sites can offer any guidance on the value of the Lots particularly when they took place some 4 years ago. Indices on either retail units or domestic units published by RVD are not suitable for adjustment for such a significant difference in time because of the amplifying effect embedded in site evaluation which was illustrated by the Tribunal in Able Luck Development Limited & Others v Public Global Investments Limited & Others, LDCS 7000/2014 (unreported, dated 6 October 2017) at §§104-105.

143.  Indeed, the Tribunal in Hofei Estates Limited v. Secretary for City and New Territories Administration, LDLR 1/1982 [1980-1982] CPR 486, had remarked at §§14-16 as follows:

"14. Unfortunately, the comparables were not only in different localities, but were also very much smaller than the subject property, have varying development costs and contained other differences. Thses major differences obliged both valuers to make substantial adjustments to the comparables to relate them, for valuation purposes, to the subject property. The adjustments actually made were mostly subjective and unsupported by any detailed analysis.

15. In these circumstances a better approach would have been to have used the residual method. The adoption of the residual method would have enabled the valuers to have tested the value of the subject property in terms of optimum development in relation to cost and reasonable profit margins.

16. We are satisfied that evidence was available from the comparables and elsewhere; for reasonably accurate assessments to have been made by the residual method. Furthermore, this is the method more likely to be adopted by a reasonable prospective purchaser of this type of property."

144.  On the other hand, Mr Alnwick Chan referred to the sale of the lots at Nos 71-79 Ting Fu Street which lie immediately next to the Lots to the southeast. It was indeed an auction sale pursuant to a compulsory sale order of the Tribunal in 668A Limited v Yim Yiu Ying, LDCS 5000/2022 (unreported, dated 3 November 2022) mentioned above. In Onbrave Limited v Malkani, Sunita Bhagwan & Another, LDCS 27000/2020 (unreported, 14 December 2021), the Tribunal had at §33 aired its concern that a sale price subject to a compulsory sale order should not be regarded as a market price because of the limitations in judgment and the compulsory sale process. Notwithstanding this hesitation, I look retrospectively at the RDV assessed by the valuation expert in 668A and approved by the Tribunal at $141,500,000 which is equivalent to an accommodation value of $64,032 per sq m. This sits well with the AV now assessed by me at $71,255 per sq m for a larger and more efficient site for the Lots.

145.  Having reviewed the above, I determine the reserve price of the auction of the Lots at $452,500,000.

Other Incidental Matters

146.  The applicant proposed to appoint Mr Tam Tak Hing and Mr Ching Kwok Ho Samuel, being consultant and partner respectively of Messrs King & Company, Solicitors & Notaries, as the sale trustees. Based on the information on their background and experience as set out in their letter dated 30 August 2022[49], I are 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.

147.  The applicant has prepared a set of draft Particulars and Conditions of Sale of the Lots[50]. 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

148.  This Tribunal make the following orders:

(1)  This Tribunal is satisfied that redevelopment of the 1^st Lot, 2^nd Lot, 3^rd Lot and 4^th Lot is justified due to the “age” or “state of repair” of Wah Fat House and On Yin Building erected thereon and that the applicant has taken reasonable steps to acquire all the undivided shares in the 1^st Lot, 2^nd Lot, 3^rd Lot and 4^th Lot;

(2)  All the undivided shares in the 1^st Lot, 2^nd Lot, 3^rd Lot and 4^th Lot, the subject of the Application herein, be sold by way of a public auction together with the 5^th Lot, 6^th Lot and 7^th Lot 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 Tam Tak Hing and Mr Ching Kwok Ho Samuel of Messrs King & Company, 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 King & Company, Solicitors & Notaries, dated 30 August 2022.

(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 $452,500,000.

(iii)  The proceeds of sale should be apportioned by reference to the EUV of the Buildings assessed in accordance with section 10(3) and Part 3 of Schedule 1 to the Ordinance.

(iv)  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.

(v)  Liberty to the applicant, the 1^st and 2^nd respondents and the Trustees to apply to the Tribunal for further direction(s) under the Ordinance.

Costs

149.  The applicant agreed that following Good Faith Properties Limited & Others v Cibean Development Company Limited [2014] 5 HKLRD 534, the applicant shall be responsible for the costs of the Application. I make, therefore, a costs order that the applicant do pay the costs of these proceedings (including any reserved costs) to R1 and R2 to be taxed on the High Court scale if not agreed.

Appendix 1

Appendix 2