BRIGHT DRAGON PROPERTIES LTD v. DIRECTOR OF LANDS

LDLR 3/2007

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LANDS RESUMPTION APPLICATION NO. 3 OF 2007

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J U D G M E N T

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Background

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

2.  The property involved in this case comprised :  

(a) All Those 8 equal undivided 43^rd parts or shares of and in All That piece or parcel ground registered in the Land Registry as Shaukiwan Inland Lot No. 614 And of and in the messuages erections and buildings thereon known as Nos. 329 and 331 Shaukiwan Road and Nos. 1 and 3 Nam On Lane (“the Building”);

(b) Together with the exclusive right and privilege to hold use occupy and enjoy (1) All That the whole of the First Floor of the Building as is shown on the First Floor Plan annexed to an Assignment registered in the Land Registry by Memorial No. 1317267 and thereon coloured Pink And Also the Flat Roofs and staircases thereto as are shown on the said  First Floor Plan and thereon coloured Pink hatched Black And Also the Balconies adjacent thereto erected over Government Land as are shown on the First Floor Plan and thereon coloured Pink hatched Red, and (2) All That the whole of the Second Floor of the Building as is shown on the Second Floor Plan annexed to the Assignment Memorial No. 1317267 and thereon coloured Pink And Also the Balconies adjacent thereto erected over Government Land as are shown on the Second Floor Plan and thereon coloured Pink hatched Red; and

(c) Together with the use of All That Portion of Main Entrance at the Ground Floor of the Building as is shown on the Ground Floor Plan annexed to the Assignment Memorial No. 1317267 and thereon coloured Green so far as the Vendor can confer upon the Purchaser such said use. [1]

This is hereinafter referred to as “the Property” which comprised physically the First Floor and Second Floor (which are collectively referred to as “the Upper Floors”) and a portion of main entrance at the Ground Floor (which is hereinafter referred to as “the Portion”) of the Building.

3.  The Property was indeed the subject of another application being LDLR 17/2006 which was finally disposed of by this Tribunal on 20 January 2014. That application was however made by a related company to the applicant, Happy Dragon Restaurant Limited, who occupied the Property for the operation of a Chinese restaurant under a lease for 10 years from 4 December 2003[2].

4.  By a notice of resumption dated 16 February 2005 and published in G.N. 851, the Government informed the applicant that the Properties would be resumed for implementation of the Hong Kong Housing Society development proposal at Shau Kei Wan Road in Shau Kei Wan (Project H21[3]) after the expiration of 3 months from the date of affixing of the notice.  The notice of resumption was affixed to the Properties on 25 February 2005.  Thus, upon expiration of the 3-month notice period, reversion took place on 25 May 2005.

5.  The applicant and the respondent have no dispute that under section 10(2)(a) of the Ordinance, the basis of compensation should be the market value of the Property as at the date of resumption, ie 25 May 2005.  They further agreed that the compensation should be determined on the basis of vacant possession despite the Property was subject to a tenancy with more than 8 years unexpired as at the date of resumption. The only issue remains to be determined is the quantum for the compensation.

The Evidence

6.  Mr H F Leung appears for the applicant and Ms Teresa Wu appears for the respondent for the purpose of the present application.  The parties have produced the following expert reports on valuation:

On behalf of the applicant by Mr Wayne W K Lee (“Mr Lee”)

(1) Expert Report dated 15 March 2013[4];

(2) Supplementary Expert Report dated 14 May 2013[5];

(3) Further Expert Report (with amended pages added) dated 6 March 2014[6].

On behalf of the respondent by Mr Lai Wah Chi (“Mr Lai”)

(1) Expert Report dated 14 March 2013[7];

(2) Supplementary Expert Report dated 13 May 2013[8];

(3) Further Expert Report dated 27 February 2014[9].

7.  In addition, the experts had prepared a joint statement dated 27 December 2013[10] (“the Joint Statement”) and a further joint statement dated 7 April 2014[11] (“the Further Joint Statement”) setting out the areas of agreement and disagreement  on the particulars of the Property and the comparables.

Particulars of the Property

8.  Pursuant to the two Joint Statements, the following particulars of the Property are agreed, inter alia, between the parties:

a.	Effective Floor Area of 1/F & 2/F	:	602.99 sq m
b.	Year of Completion of the Building	:	1957
c.	Number of storeys of the Building	:	11
d.	Occupation Permit	:	Occupation Permit No. 59 dated 22 May 1957 granted for domestic purposes (Re: 1/F to 7/F) Another Occupation Permit No. 61 dated 12 July 1957 granted for non-domestic purposes (Re: G/F)
e.	Permitted Usage	:	Amended building plans approved on 15 July 1958 for Licensed Restaurant uses (Re: 1/F and 2/F)
f.	Saleable Area of the Portion	:	7.94 sq m

9.  Subject to the above, the parties also agree that under the Government Lease of the Property, there was no express provision restricting the use on the subject site save and except that the building to be erected must be “approved by the Director of Public Works”.

The Portion

10.  According to the applicant, the Portion was, at the material time, used in conjunction with the adjoining shop, namely Shop A on the Ground Floor of the Building as an outpost of the Chinese restaurant at the Upper Floors for the preparation and selling of barbecued and take away food, which use was in compliance with the Government Lease. According to the assignment plan and approved building plan submitted by Mr Lai, the Portion itself fronted onto Shau Kei Wan Road near its junction with Nam On Lane[12]. Therefore, Mr Lee values the Portion in the sum of $2,050,000 as part of a normal shop premises.

11.  On the other hand, Mr Lai, initially in his Expert Report expressed the opinion that since the Portion was partly designed to be the landing for the common lift and formed partly the underside of the common staircase on the approved building plans, it should have been left unenclosed and the existing enclosure structures (“the Enclosure”) built around it were unauthorized under the Buildings Ordinance.  Mr Lai suggested that for the purpose of determining compensation under the  Ordinance, any enhancement in value (if any) by reason of the Enclosure  should be disregarded.

12.  In his Supplementary Expert Report, Mr Lai, based on the legal advice given to him, conceded that the applicant was entitled to the right to use  the Portion[13] (“the Right”).  Mr Lai says in the event that the Lands Tribunal decides that the applicant was entitled to be compensated for the loss of the Right under the provisions of the Ordinance, the market value of the Portion should be determined on the basis of 1/6 of the unit market value of the adjacent ground floor shop as the Portion was only an open area under staircase forming an ancillary accommodation to an adjoining shop.  He considers the usage of the Portion resembled that of an open yard to a shop and values the Portion in the amount of $348,600, ie at a unit rate of $263,195/sq m before the application of the 1/6^th factor.     

13.  In response to Mr Lai’s comment that the Portion was encumbered with unauthorized structures, Mr Lee stated in his Supplementary Expert Report  that:

“Furthermore, to my understanding, the building of structures that set apart horizontally two parts on a floor of different ownerships do not require approval from the Building Authority unless they result in situations such as a structural alteration of the building, an increase of gross floor area of the building or a breach of other enactments such as the Fire Safety (Buildings) Ordinance. To support his opinion that the structures built around the Main Entrance were unauthorized under the Buildings Ordinance, RE (ie Mr Lai) has to provide evidence.”[14]

14.  Mr Leung for the applicant submitted that whether the Enclosure is unauthorized structure or not should be determined by reference to section 41(3) of the Buildings Ordinance (“S.41(3)”) which allowed certain building works to be exempted from approval.

15.  Mr Leung had quoted the current version of S.41(3) but we note that there was a similar provision under the then S.41(3) of the Buildings Ordinance[15] which was effective till 31 December 2010. It provided that:

“Building works other than drainage works, ground investigation in the scheduled areas or site formation works not involving the structure of any building may be carried out in any building without application to or approval from the Building Authority : Provided that nothing in this subsection shall permit any building works to be carried out in contravention of any regulation.” (emphasis and underline added)

16.  Mr Leung also cited the case of Mariner International Hotels Limited & Another v. Atlas Limited & Another[2007] 1 HKLRD 413; (2007) 10 HKCFAR 1, in which Bokhary PJ in considering the interpretation of the then S.41(3) had said the followings:

“51. … In my view, Mr Sumption is right in his submission, on the first requirement, that building works added to a building involves its structure if they serve a structural function or are capable for some reason of affecting the integrity of the structure. That is to be derived from purpose. …

52. As to the second requirement, I accept that, in terms of the exemption, building works on the roof of a building are not ‘in’ the building.  There is a purposive difference relevant to safety between building works protected from the elements by being ‘in’ a building and building works exposed to the elements. …”

17.  It is the submission of Mr Leung that the Enclosure at the Portion is an exempted work under S.41(3) since the work was in the Building and did not involve the structure of the Building.  However, in the event that this Tribunal found the Enclosure was not “in” the Building, Mr Leung submitted that we should more properly refer to the Court of First Instance decision of the Mariner International Hotels case  instead because the Court of Final Appeal decision came only on 5 February 2007 which was after the relevant date of resumption as at 25 May 2005. In the Court of First Instancedecision [2004] HKEC 934 (which was dated 2 August 2004), Burrell J said at §242:

“…anything which is outside the building or attached to the outside of the building. Conversely, anything to which access is gained by going inside the building could be included. In our building the roof is akin to the 13th floor. Access to all floors, including the 13th, is gained by going “in” the building. I reject therefore the plaintiff's submission that the roof installations cannot be exempted because they are not “in” the building.”

This reasoning of the judge was later approved by the Court of Appeal on 30 December 2005.

18.  Ms Wu for the respondent argued that the approach adopted by Mr Lee is wrong in the sense that he treats the Portion in the same way as the Upper Floors as if it were “owned” by the applicant and assessed on the basis of a shop premises, like any ordinary ground floor shop.  But in fact, the applicant is merely entitled to the “use” of the Portion which should be left unenclosed.  Since the Enclosure was not shown on the approved Building Plans and carried out without prior approval of the Building Authority, it must be unauthorised.  In any event, it is never the applicant’s case that the Enclosure is exempted work under S.41(3) and the Enclosure was clearly structural and not in the Building.  Without the Enclosure, the Portion was nothing but an open area.

19.  We shall, first of all, deal with the point raised by Ms Wu in that S.41(3) had never been raised by Mr Lee.  We agree with Ms Wu that S.41(3) was not specifically mentioned by Mr Lee.  However, as one can see from the passage quoted from Mr Lee’s Supplementary Expert Report at §13 above, even though S.41(3) was not named in the paragraph, one will have no difficulty in coming to the conclusion that the situation mentioned by Mr Lee about structural alteration is analogous to the requirement under S.41(3).  We found S.41(3) should be considered in view of the observation by Mr Lee quoted above and if the Enclosure meets the 2 requirements under S.41(3), it will be exempted work and not unauthorised.

20.  By reference to the floor plans submitted and particularly the photographs showing the Portion as at 26 May 2005[16], we are satisfied that the Enclosure is “in” the Building, ie within the parameters and under the ceiling cover of the Building. 

21.  It is not in dispute that the Enclosure was enclosed on two sides by metal and glass.  This only served as a partition to signify the area for the selling of barbecued and take away food.  We found the Enclosure did not, quoting the words of Bokhary PJ, “serve a structural function or capable of affecting the integrity of the structure”.  We therefore find that the Enclosure should be exempted work under S.41(3) and was not an unauthorized structure.

22.  Furthermore, Mr Lee, in support of his determination, stated in his Supplementary Expert Report that the Portion was not an area arising out of any unauthorized building works and that its use was in full compliance with the Government Lease:

“The value of the said Portion as a retail space depends primarily on its area, not on whether it was enclosed or not. For compensation purpose, while disregarding the unauthorized structures may result in compensation not being payable to the part of a property the value of which arises only from the unauthorized structures, it cannot diminish the value of the part already existed and which is authorized. In Chan Kai Yuen and Another v. The Director of Lands LDLR 8/1999, the disregard of the unauthorized cockloft erected over a shop for compensation purpose did not deny compensation payable to the headroom (ie the space over the ground floor) occupied by the unauthorized cockloft structure. In Chan Kai Yuen, the Tribunal while refusing to calculate compensation based on the floor area of the unauthorized cockloft had allowed compensation to the headroom occupied by the unauthorised cockloft structure in the form of the enhancement to the headroom of the shop beneath the cockloft.”[17]

23.  We agree with Mr Lee and find that even if the Enclosure was unauthorized building works, the Portion was an area found on the approved building plan and delineated clearly on the assignment plan and the value of which was not created or enhanced by the Enclosure.  Without the enclosure, the Portion could still function like a kiosk or sales counter which is as valuable as a shop space, bearing in mind it had only 7.94 sq m.  We consider the applicant was entitled to compensation for the Right under the Assignment Memorial No. 1317267 dated 1 October 1976 (“the Assignment”) as conceded by Mr Lai. 

24.  Thus, the difference between Mr Lee and Mr Lai lies on whether the Portion should be valued as a normal shop or just 1/6^th of its value.  It is agreed between the parties that the value of $263,195/sq m found by Mr Lai should be adopted in case the 1/6^th factor is not applicable.

25.  We are not persuaded that the Portion resembled to any extent an open yard. Not only the Portion was situated inside the Building with ceiling cover, according to Mr Lai, it had a headroom as high as its adjoining Shop A, ie up to 4.12 m save for some 2% of the space under the common staircase. We consider the Portion was in effect occupied as a shop, and not being an ancillary portion as suggested by Mr Lai[18].

26.  The respondent also raised query on the ownership of the Portion suggesting that in the Assignment, the “use” was not referred to as exclusive[19]. However the reverse is also true that neither the “use” was qualified or restricted. By observation of the floor plans and particularly the photographs, the Portion did not come within the area of or obstruct the access to the common staircase or the lift.  We agree with Mr Lee that no discount should be made in regard to the Portion not being designated as a shop space.

27.  As for the argument that the applicant did not own the Portion but was only entitled to the use of it, we find this is only a red herring.  It is not Ms Wu’s contention that by merely having the right to use, the applicant is not entitled to compensation.  Her argument turns on how the compensation should be assessed, ie there must be a distinction between the right to own and the right to use to be reflected in the compensation and the Portion should not be valued as a shop premises since the Portion could not be operated as a shop without the 4 walls.  We find the value of the Portion should be on the basis of its best use irrespective of whether the applicant owned it or not.  Given our ruling above that the Enclosure was exempted work, the Portion could be and had been used as a shop and this was the best use of it.

28.  We determine that the market value of the Portion (or more properly the value of the applicant’s entitlement to use the Portion) for the purpose of section 10(2)(a) of the Ordinance should be:

7.94 sq m x $263,195/sq m =	$2,089,768
Say	$2,090,000

The Upper Floors

29.  It is not disputed that the Upper Floors were served by a common staircase and a common lift from the main entrance at Shau Kei Wan Road in proximity to its junction with Nam On Lane.  Mr Lai, while giving evidence, also agreed that this common staircase and the main entrance were so decorated that they looked like the exclusive entrance to the Upper Floors.

30.  While the parties agree that the effective area of the Upper Floors was 602.99 sq m, it was derived from the following figures:

Part of the Property	Measured Floor Area	Conversion Factor	Effective Floor Area
1/F including Balconies	285.82 sq m	1	285.82 sq m
Flat Roof on 1/F	73.99 sq m	1/6	12.33 sq m
2/F including Balconies	304.84 sq m	1	304.84 sq m
			602.99 sq m

31.  In his Further Expert Report, Mr Lee has adjusted his valuation and assessment of the Upper Floors to $36,960,000.  On the other hand, in his Further Expert Report, Mr Lai put the value to be $14,903,000 or $15,316,000 if the additional comparable at Shop C1 on G/F & 1/F, King Fai Building, 98-112 Shau Kei Wan Main Street East (Comparable U5 adopted by Mr Lee) is to be adopted.

Valuation Methodology for the Upper Floors

32.  In essence, therefore, the Upper Floors comprised premises on the upper floors with access leading from the ground floor entrance. Both experts, Mr Lee and Mr Lai agree that there are not many transactions of upper floor premises that may serve as comparables for the purpose of valuation of the Upper Floors.  Nevertheless, Mr Lee has selected 5 comparables, namely U1 to U5, whereas Mr Lai has selected 3, being RC1, RC2 and RC3, which are in common with Mr Lee’s U1, U2 and U4 respectively.  These comparables are listed as follows and in this judgment, they will be just referred to as U1, U2, U3, U4 or U5:

Comparable	Address (Existing Use)	Price
U1/RC1	Portion B on G/F, 1/F & External Wall, Ka Yue Building, 1-7 Nam On Street (Restaurant: 港式火鍋)	$12,500,000
U2/RC2	G/F, 1/F, 2/F, Ka Fook Building, 289-293 Shau Kei Wan Road (Bank)	$26,400,000
U3	1/F*, Roca Centre, 460-470 King’s Road (Chinese Restaurant)	$86,000,000
U4/RC3	1/F, 2/F & 3/F and Staircase and Escalator from G/F to 3/F, Dollar Building, 143-145 Shau Kei Wan Road (Home for the Elderly)	$33,099,000
U5	Shop C1 on G/F & 1/F, King Fai Building, 98-112 Shau Kei Wan Main Street East (Chinese Restaurant)	$68,000,000

* together with the exclusive and uninterrupted right to go pass and repass up and down over the escalator leading from the G/F to the 1/F for the purpose of ingress to and egress from the 1/F.

33.  As can be seen from the above table, most (if not all) of the comparables comprise upper floor shop premises as well as ground floor premises which serve, according to our inspection on 7 January 2014, principally as direct access from the street exclusively for the upper floor shop premises.  Therefore, according to Mr Lee, “(o)ne way to find this is by deducting from the transaction price the price attributable to the ground floor shop, arrived at by reference to more readily available shop comparables.  The residue after the deduction is taken as the price attributable to the upper floor space.”  While Mr Lai agrees to this approach, the two experts depart as Mr Lee continued:

“Plausible this approach may seem its accuracy is questionable as we have simplistically made the presumption that the sum of prices of the parts if sold on their own equals the transaction price of the parts if sold together. This is not necessarily true. I would opine that the transaction price to be attributed to the ground floor shop arrived at by making reference to shop comparables would be lower than the market price of the shop on its own otherwise the purchaser minding of buying a shop only would not have bought the shop together with a much larger upper floor space. At the same price, he could buy a similar shop in the market free from the trouble of owning something he did not want to own at first. On the other hand, the seller would hesitate to sell only the shop (not together with the much larger upper floor space), for he would be left with the larger upper floor space which he would then have more difficulty to dispose of. To put through that hypothetical split transaction, both the purchaser and the seller would require some compensation to overcome their unwillingness by way of a cheaper price for the ground floor shop and a higher price for the upper floor space. Therefore, I am of the opinion that in order to achieve a fair attribution of prices among the two parts of a comparable, the market price of the ground floor part first arrived at by making reference to shop comparables have to be rectified by discounting it appropriately before it is deducted from the transaction price of the comparable.”[20]

34.  Mr Lai disagrees any discount has to be applied. In his Supplementary Expert Report, he explained:

“6.7 … because the market value of the ground floor part of the Shop Comparables as assessed by making reference to ground floor shop comparables should represent well the market value of the ground floor part of the Shop Comparables.

6.8 In a free market, the owner of ground floor shop premises has the full liberty to dispose of the premises in the open market. He would put the ground floor shop premises to the highest and best uses in order to fetch its best price in the market. Therefore, a prudent owner will never be prepared to lower the price of the ground floor shop premises for the reason that it is intended to be an entrance for an upper floor shop premises.

6.9 On the contrary, a relatively higher price will be demanded by the owner if the ground floor shop can form an entrance providing an upper floor shop premises with a direct access from the street and hence increase the value of the upper floor shop premises.”[21]

35.  With respect to Mr Lee, we find his theory unheard of, untenable and unsupported by market practice or any Lands Tribunal decision in Hong Kong or elsewhere.  We concur with the reasoning of Mr Lai in the paragraph quoted above.  We have alerted the parties of the sale transactions in Empire Apartments at No. 293-299 King’s Road (“the Empire Apartments Comparable”) which we found to be market evidence which supports the contention of Mr Lai. 

36.  As admitted by Mr Lee in his Further Expert Report, the Empire Apartments was completed with a purposely erected staircase located next to Shop No. 1 on the ground floor for providing access to the first floor from King’s Road.  According to the land search record provided by him, the first floor premises were in the 50s, 60s and 70s leased to Majestic Restaurant Limited. Since 1986 and 1988 respectively, however, ownership of the First Floor and Shop No. 1 had come to a single owner[22]. More particularly this Shop No. 1 had been wholly converted into a staircase leading to the first floor in place of the former staircase when both the shop and the first floor were sold as a whole in 2004. In the absence of evidence to the contrary, it was more likely than not that this Shop No. 1 would have to be acquired at the then market price (rather than a discount on market price) in 1988. The space which was then formerly occupied by the former staircase was released at its full market potential without any discount on valueand has become a separate shop premises [23].

37.  Mr Lee tries to argue that the conversion cost should be allowed and accounted for in the Empire Apartment Comparable but we are not convinced that this accords with the market conception or practice.  If the owner of the premises intends to dispose of the space being occupied by the leading staircase, he should cover up the void in the floor slab and remove the staircase before the space can be put onto the market.  Then he, as what Mr Lai said, “will never be prepared to lower the price of the ground floor shop premises”[24]. The cost of conversion will likely be absorbed by the owner for the upper floor when making its decision.

38.  Mr Leung also tries to support Mr Lee by placing much emphasis on the consideration of “the nature and existing condition of the property” required under the Ordinance, ie with the presence of the staircase.  Under section 11(1)(a) of the Ordinance,

“the Lands Tribunal in determining the compensation to be paid and in estimating the value of the land resumed and of any buildings thereon, may: (a) take into consideration the nature and existing condition of the property, and the probable duration of the buildings in their existing state, and the state of repair thereof;…” (emphasis added).

However, it is trite that compensation is to be determined not necessarily on the existing use but on the basis of the best use to which the land may reasonably be put.  In Raja Vyricherla Narayana Gajapatiraju v the Revenue Divisional Officer Vizagapatam [1939] AC 302, for instance, Lord Romer of the Privy Council pointed out at 313 that the court has to consider:

“… what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. For it has been established by numerous authorities that the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined … but also by reference to the uses to which it is reasonably capable of being put in the future.”

39.  Thus, the owner of the land resumed is at least entitled to compensation for the land valued on its existing use but the value of the land resumed if sold by a willing seller in the open market would include the attributes of the land which would give it its potentialities subject perhaps to section 12(c) of the Ordinance[25].  A higher value deriving from an alternative use should be adopted if it would have been available without obtaining any Government permission in respect of the Government lease which, in the present case, contained no express conditions restricting the uses to be carried out on the land.  In any event this apportionment of values between the ground floor space and upper floor premises of the comparables is an attribution exercise instead of a real sale taking place that requires the access portion to be sold off.  We agree with Mr Lai who said while being cross-examined that any hypothetical owner will be interested to learn the value of his asset by comparing like with like with other sales of shop spaces in the market. The discount suggested by Mr Lee is arbitrary and does not accord with market realities.

40.  On the other hand, as regards Mr Lai’s view that:

“a relatively higher price will be demanded by the owner if the ground floor shop can form an entrance providing an upper floor shop premises with a direct access from the street and hence increase the value of the upper floor shop premises”[26]

we find support from the judgment in Stokes v Cambridge Corporation (1961) 13 P&CR 77; 180 EG 839 (“the Stokes case”) which we have referred to the parties for consideration.

41.  The Stokes case concerned 5.1 ha of land with an assumption of planning permission for industrial development under the then English Town and Country Planning Act.  There was only one possible access over adjoining land in different ownership.  The English Lands Tribunal held:

(i) that the value of the backland depended upon the cost of the access;

(ii) that the cost of the access would be a proportion of the gain in value of the backland resulting from its potential for development; and

(iii) that a reasonable proportion of the gain should be paid to the owner of the access strip and was assessed to be one-third.

42.  As Andrew Baum and Gary Sams stated in their bookStatutory Valuation, 3^rd edition (1997) at page 173:

“Exactly the same logic may be applied to the valuation of the access land itself. The value of the access strip is that which would be paid in negotiation, the existing use value of the land fixing a minimum price, the total gain in value of the back land due to the prospects of development fixing a maximum, and the relative negotiating strength of the parties determining the settlement price. The purchase of both access and back land simultaneously should not lead to a variation of these principles although it is arguable that the purchaser would require an element of profit for site assembly.”[27]

43.  Thus, viewing in a vertical plane instead of a horizontal plane, the upper floor premises relying on a ground floor access is comparable to the scenario in the backland in the Stokes case. We therefore agree with Mr Lai that the transaction prices of those comparables as shown in §32 above comprise three elements: the value of the ground floor portion (as the minimum), the value of upper floor portion without the access and the gain in value of the upper floor portion with the access. This should fully explain the hypothetical situation in §37 above that should the owner of the upper floor premises make up his mind in disposing of the ground floor access, the conversion cost should be absorbed in (or deducted from) the gain in value of the upper floor portion with the access; the owner “will never be prepared to lower the price of the ground floor shop premises”.

Analysis of Comparables

44.  In the above regard, we would also like to comment that the approach in analyzing the comparables being adopted by Mr Lee is arbitrary, confusing and difficult to understand:

(a) As stated in §10.3 of his Expert Report, Mr Lee distinguished those comparables with mainly escalator and/or stairway on the ground floor (eg U1 & U4) as being unable to be used as a shop and therefore carrying no sale value on their own from those with portion of the ground floor being partly used as a shop (eg U2 & U5).  It is Mr Lee’s opinion that:

“Both their ground floor parts, together with that of Comparable No. U4, were physically and conceptually inextricable from their corresponding upper floor parts, any attribution of the transaction price to the parts for valuation purpose is only hypothetical and … not free from arbitrariness.”[28]

We consider this remark by Mr Lee is starkly wrong in principle and ignorant of market realities as demonstrated by the Empire Apartments Comparable in which the ground floor parts are not physically and conceptually inextricable from their corresponding upper floor parts as suggested by Mr Lee.  The ground floor parts can be forsaken and an alternative access from ground floor can be sought if required.

(b) Furthermore, his dividing line drawn between the space being occupied by staircase on the ground floor for U2 and U5 and space being used as “a free standing shop”, as referred to during cross-examination by Ms Wu, is arbitrary and renders his agreement with Mr Lai on the saleable areas of the respective comparables futile.  We have explained earlier in §23 that for the Portion itself, even without any enclosure, it could still function as kiosk or sales counter.  Indeed, Mr Leung also refers to §34 of the Lands Tribunal’s judgment in Mingo Properties Limited v Director of Lands, LDLR 6 of 2005 (unreported, dated 26 February 2007) which stated that:

“There are from time to time many retail shops or commercial units being sold to different owners but are occupied by a single tenant. Why is it necessary to consider how the whole unit be divided physically before the value of each portion can be assessed? My short answer is a simple no. ”

(c) Mr Lee, in trying to analyze the comparables, referred to “effective floor area” instead of the saleable area as agreed with Mr Lai by taking, for instance, only half of the area being occupied by the staircase/escalator etc. When being cross-examined, Mr Lee suggested this was in accordance with market practice but Mr Lai denied the existence of such practice when he was giving evidence. As explained in §39 above, we are here concerned with the potential value of the floor space which was derived from comparable shop transactions.  The presence of the staircase/escalator etc. would not distract its potential of the floor space as shops. With respect to Mr Lee, his approach of just counting half of the area of the staircase/escalator etc may have its merit in rating valuation based on the principle of rebus sic stantibus but we consider such approach is not acceptable in the present case.

(d) In addition, in trying to find that part of the transaction prices attributable to the upper floor parts by deducting from the transaction prices the value of the ground floor parts by reference to ground floor comparables, Mr Lee failed to realize that this was merely an attribution or accounting exercise instead of physically depriving the comparables of the ground floor premises.  He said, for instance,

“the comparable’s price after deducting the cost for the acquisition of the access is the existing use value of the upper floor component without the access”[29]

This is completely in defiance of the rationale as demonstrated by the Stokes case.  In effect, the residual value of the comparables after the deduction should still comprise the value of the upper floor portion, to use the words of Mr Lai, “with the benefit of direct access to street”[30] via the ground floor premises[31].

(e) Mr Lee then wrongly allowed an addition of 25% to the residual value as adjustment for “accessibility from street”[32] which we consider is double counting.  When we pointed this out to Mr Lee while he was being cross-examined, he dismissed this being based on a different scenario.  For instance, he believed that:

“(w)hile the gain in value in Stokes flows wholly from the back land’s development potential because of the assumed planning permission and not from the purchase of the access, the increase in value of the upper floor components in the present case so far as it relates to Comparables U1 and U5 (retail properties suitable for restaurant use), does not flow wholly from the upper floor office comparables we adopted to determine the increase but partly flows from the special retail attributes of the upper floor components, such as its building specifications and the granting of the restaurant licenses.”[33]

With respect to Mr Lee, we find him completely missed the point that it was the purchase of the access that would render either the assumed planning permission in the Stokes case viable or the enhancement in value for the upper floor components though the quantum of this latter is subject to argument.

45.  Therefore, unless otherwise stated, we shall rely on the analysis conducted on these comparables by Mr Lai in determining the value of the Upper Floor.

46.  Thus, according to Mr Lai, the values for the respective ground floor portion of the comparables are as follows:

Comp.	Price for the whole transaction	Value of Ground Floor Portion	Difference in Value	Effective Floor Area (excluding G/F portion)	Unit Rate (/sq m)
U1/RC1	$12,500,000	$4,957,000[34]	$7,543,000	395.80 sq m	$19,508
U2/RC2	$26,400,000	$14,056,000[35]	$12,344,000	303.00 sq m	$40,739
U3	$86,000,000	Not Applicable		1,111.30 sq m	$77,387
U4/RC3	$33,099,000	$4,752,000[36]	$28,347,000	1,111.00 sq m	$25,515
U5	$68,000,000	$11,301,000[37] (for Shop C1) + $5,644,000[38] (for the Retail Outlet and rear staircase)	$51,055,000	1,409.84 sq m	$36,213

47.  Indeed, Mr Lee considered it is only necessary to deduct $12,555,000[39] from U2 and $5,710,000 (for Shop C1) from U5 because he considered the areas he left out were not capable of being used as free standing shops.  He instead considered those other ground floor areas, ie ground floor component of Comparables U1, U4 and a substantial part of U5, after discounting half of the staircase area as mentioned in §44(c) above, part of the upper floors by adding to the latter the areas of those other ground floor areas.[40]  This again, we consider, is unsupported and illogical.  As evidenced from the table above, the values of the areas that Mr Lee left out can be quite substantial and should not be ignored.  We agree with the submission of Ms Wu that Mr Lee’s approach of valuation and assessment is fundamentally flawed in giving no value, or insufficient value, to the ground floor.

Comparable U3

48.  Mr Lai submits that Comparable U3 is not a suitable comparable because it was situated in an area having a very different character from that of the area around the Property.  He stated in his Supplementary Expert Report that:

“5.8 Around Comparable U3, there was a high density of residential developments intermingled with a relatively large number of commercial developments. The difference in terms of the density of residential developments and commercial developments between the two areas around the Property and Comparable U3 can be noted by making reference to the two location plans attached ….

5.9 In view of the great difference in terms of the character of the two areas around the Property and Comparable U3, the patronage of Comparable U3 and the Property should be very different in terms of volume and nature.

5.10 Moreover, Comparable U3 was situated right on top of the North Point MTR station. In view of its nearness to the MTR station, patronage to Comparable U3 would also be coming from other districts because of the convenience offered by the MTR. The advantage of such nearness to MTR station was however not shared by the Property.”[41]

49.  Mr Lee insists however that Comparable U3 is a suitable comparable because the Property and Comparable U3 are close in location and share the same catchment character.  He even produced two maps “covering similar areas showing the number of residential flats/households and traditional Chinese restaurants of U3 area and the subject area” within ¼ km from either property to support his opinion that the patronage to the Property was no worse than that to U3.[42]

50.  More particularly Mr Lee bases his opinion on the relative ratios of supply of Chinese restaurant to potential demand of Chinese restaurant, with demand being represented by the number of households for estates of more than 500 households within that ¼ km geographical limit.

51.  With respect to Mr Lee, we are not convinced that the Property and Comparable U3 are situated in areas with a common catchment character.  Mr Lee has missed the point that Mr Lai was referring to the difference in grand total plot ratio gross floor area of office buildings between the two areas: 63,360.5 sq m in Shau Kei Wan but 181,310.0 sq m in North Point.  As explained by Mr Lai during cross-examination he was referring to the presence of high commercial elements in North Point where Comparable U3 is located so that the volume or nature of patronage would be quite different.  We agree with Mr Lai that there is no point in comparing the residential properties of North Point and Shau Kei Wan.

52.  We are neither convinced that the catchment area of a trade or service can be defined by a mere geographical distance without regard to the transport facilities and other infrastructures.  Ms Wu has pointed out that they are at least three MTR stations away[43]. Mr Lai, during his cross-examination by Mr Leung, also rebutted that the choice of estates of more than 500 households as a proxy for demand was unscientific and arbitrary.  Mr Lai also responded that Mr Lee’s ¼ km geographical limit from Comparable U3 had missed the population living in the Mid-levels of North Point accessible mainly from Tin Hau Temple Road.

53.  Nonetheless, Mr Lee admitted in his Expert Report that Comparable U3 was “superior in situation”[44] when compared with the Property and was prepared to allow a -25% adjustment to reflect the difference in location.  Whereas we have inspected Comparable U3, we opine this adjustment for location as suggested by Mr Lee is much less than sufficient as this Comparable U3 is situated at one of the busiest spots in North Point with, for instance, the district icon, the Sunbeam Theatre, across King’s Road.  In addition, as pointed out by Mr Lai, Mr Lee failed to adjust for the fact that Comparable U3 comprises not only the 1/F premises, but also “the exclusive and uninterrupted right for the Purchaser to go pass and repass up and down over and upon the escalator leading from the Ground Floor to the First Floor …” as stated in the assignment dated 31 August 2005[45].  

54.  All in all, we agree with the respondent that this Comparable U3 is not a suitable comparable to be taken into account.

Comparable U5

55.  While Mr Lai has carried out analysis on the values of the various portions of Comparable U5 for the purpose of attributing a value to the upper floor portion, he notes the consideration paid included “All existing restaurant installations equipment furniture and chattels in the Restaurant Portion”[46] as stated in Schedule 8 to the Agreement for Sale and Purchase of 17 March 2006 (“the Agreement”).  In his opinion, the price paid for the restaurant installations and others should also be deducted in arriving at the apportioned price of the first floor of the premises for comparison purpose.  He continued:

“However, there was no information on the amount of restaurant installations and others that were included in the sale and purchase. As a result, the price paid for the restaurant installations and others could not be ascertained with reasonable accuracy. That would in turn affect the accuracy in arriving at the apportioned price of the first floor and other ancillary accommodations.”[47]

56.  Mr Lai considers this Comparable U5 could not be a useful comparable but nevertheless is prepared to assign a value in the sum of $5,000,000 to reflect the cost of the restaurant installations equipment furniture and chattels[48].

57.  Mr Leung, during his cross-examination of Mr Lai, did raise the suggestion that the value of the restaurant installations equipment furniture and chattels could be nominal or insignificant because no particulars of these were given in the Agreement.  It is also submitted that if the value of the installations equipment furniture and chattels was significant, it would surely affect the amount of stamp duty to be paid and there is no reason why it is not specifically stated.  Mr Lai disagrees and we are not convinced either.  If the items were nominal, there was no point in mentioning specifically in the Agreement. The further point on stamp duty goes neither here nor there as this owes to the commercial decision privy to the contracting parties.

58.  Although we consider the value of the installations equipment furniture and chattels would not be nominal, this would neither be a very substantial sum.  To the extent that the total consideration was in the sum of $68,000,000, the $5,000,000 suggested by Mr Lai is less than 10% of it.  We therefore accept $5,000,000 is a fair and reasonable estimate to reflect the cost of the restaurant installations equipment furniture and chattels for Comparable U5.  We accept that with such an adjustment, Comparable U5 should be adopted as one of the comparables.

Valuation of the Upper Floors

59.  Thus the table as shown in §46 above is revised as follows:

Comp.	Price for the whole transaction	Value of Ground Floor Portion	Difference in Value	Effective Floor Area (excluding G/F portion)	Unit Rate (/sq m)
U1/RC1	$12,500,000	$4,957,000	$7,543,000	395.80 sq m	$19,508
U2/RC2	$26,400,000	$14,056,000	$12,344,000	303.00 sq m	$40,739
U4/RC3	$33,099,000	$4,752,000	$28,347,000	1,111.00 sq m	$25,515
U5	$68,000,000	$11,301,000 (for Shop C1) + $5,644,000 (for the Retail Outlet and rear staircase)	$46,055,000 + $5,000,000 (for value of restaurant installation etc)	1,409.84 sq m	$32,667

60.  Mr Lai did proceed to carry out the valuation of the Upper Floors as follows[49]:

Comp.	Unit Rate (/sq m)	Adjustments				Total Adjustments	Adj. Unit Rate (/sq m)
		Location	Bldg Cond/ Facilities	Size	Time
U1/RC1	$19,058	15.0% (30.0%)	-12.5% (-5.0%)	-10.4% (-10.0%)	30.2% (30.0%)	22.3%	$23,308
U2/RC2	$40,739	0.0% (15.0%)	-15.0% (-5.0%)	-15.0% (-15.0%)	29.9% (30.0%)	-0.1%	$40,698
U4/RC3	$25,515	-5.0% (20.0%)	-13.0% (-5.0%)	25.4% (24.0%)	-1.1% (-1.0%)	6.3%	$27,122
U5	$32,667	-5.0% (5.0%)	-10.0% (-5.0%)	40.3% (32.0%)	-2.2% (-2.0%)	23.1% Less: Benefit of two Entrances 10%	$36,192

* The corresponding adjustments proposed by Mr Lee are shown in parentheses.[50]

Adjustment for Location

61.  This is the primary factor affecting the value of shop premises.  Shop premises located in busy area and readily accessible by shoppers should have higher values relative to shop premises located in less busy area and less readily accessible by shoppers.

62.  We agree with Mr Lee that the adjustment for location should concern with the relative prosperity of the location of the premises and related considerations like pedestrian flows, juxtaposition of the premises, visibility and proximity to a particular destination etc[51]. On the other hand, we also agree with Mr Lai that:

“when the upper floor shop premises are accessible from the street by independent G/F shops or entrance, the location of the G/F shops and entrance would also affect the values of the upper floor shops to a certain extent. The upper floor shop premises would fetch higher values if their G/F shops or entrance are located along busy street relative to the upper floor shop premises having their G/F shops or entrance located along less busy street”[52].

This is apparently common sense and is particularly obvious if the owner of the upper floor shop premises has the choice of the G/F entrance either at the front street or at the back street.  The change of G/F access for the 1/F in the Empire Apartments Comparable also provides an example.

63.  Comparable U1 is situated at a building at the junction of Nam On Street and Aldrich Street.  The upper floor shop has a frontage around the corner and is readily visible from the bus terminal.  On the other hand, its ground floor entrance is located at Aldrich Street which, when compared with the Property being at the busy junction of Shau Kei Wan Road and Nam On Lane, is inferior.  Nevertheless, we consider the +30% adjustment suggested by Mr Lee is excessive and we adopt +20% instead.

64.  Comparable U2 comprises bank premises abutting Shau Kei Wan Road with the upper floor shops served directly from the bank hall on ground floor by internal staircases.  It is also inferior in terms of location and we consider the +15% adopted by Mr Lee appropriate.

65.  Comparable U4 is situated further away from the busiest part of Shau Kei Wan opposite an open space across Hoi Ning Street and is currently occupied as a home for the elderly.  According to land search produced by the applicant, it was sold to the present owner by The Hong Kong Jockey Club in the end of 2005.  It is inferior in terms of location and we again consider the +20% adopted by Mr Lee appropriate.

66.  The main ground floor entrance of Comparable U5 is situated at Shau Kei Wan Main Street East which is a popular location for eateries.  It enjoys a second entrance onto Mong Lung Street.  We agree to the +5% for location proposed by Mr Lee.

Adjustment for Building Conditions and Facilities

67.  Mr Lee conceded that the Building had long been demolished before he became appointed as expert for this case.  He said however he had been involved in the assessment of compensations concerning the resumption of other ground floor premises in the Building under the same scheme, and in this connection had visited the area and inspected the Building for no less than 30 times.  Anyway Mr Lee conceded that he had not inspected the first floor and second floor of the Building.[53]

68.  According to Mr Lai, however, he had inspected the Property around the date of reversion and noted that the common lift that served the Building[54] was a type which was very old in nature.  On the other hand, all the comparables were in more modern buildings built in the 1980s provided with modern facilities.  For instance, comparables U4 and U5 have escalators leading to the first floor premises as well.  It should not also be mistaken that the Upper Floors were not served by any exclusive ground floor access; the common staircase and the main entrance which provided access to the Upper Floors were only so decorated that they looked like the exclusive entrance to the Upper Floors. Therefore, we agree with all the adjustments proposed by Mr Lai in respect of this factor.

Adjustments for Size and Time

69.  The differences between the two experts in these two regards are not significant and therefore the adjustments proposed by Mr Lai are adopted.

Adjustments for Visibility

70.  Mr Lee applied an additional adjustment for visibility which Mr Lai considered not applicable.  Mr Lee said in his Expert Report that:

“When it comes to upper floor retail properties, the function of a shop’s frontage, or more exactly, its façade, is not as multifarious as in ground floor fronts. The façade of an upper floor property mainly facilitates the property’s exposure to outside, or its visibility from streets, which boils down to enhancing the publicity of the activities being carried out behind the façade. Here, the ability to perform this function is measured by the width/length of the façade as well as the angle of visibility it commands.”[55]

71.  Then in his Supplementary Expert Report, Mr Lee said further:

“I am still of the opinion that adjustment for frontage/façade is even more important in the valuation of the upper floor shops than in the valuation of ground floor shops.”[56]

72.  Mr Lai disagreed. In his Supplementary Expert Report, he said:

“6.26 As regards the factor of exposure and visibility, I consider their effects on the value of upper floor shop premises are less significant relative to ground floor shop premises.

6.27 … After the review, I consider the Property and the Shop Comparables had very similar exposure and were readily visible from the streets.”[57]

73.  We agree with Mr Lai, especially after we have carried out the inspection on 7 January 2014 together with the parties.

Adjustment for Second Entrance

74.  We note Mr Lai made an end adjustment for Comparable U5 to allow for its having a second exclusive entrance/access which is lacking in the others.  While we agree that such an adjustment is justified, we consider a -5% instead of -10% as proposed by Mr Lai is more reasonable.

75.  In view of the above, the comparables with their adjustments we determined are shown below:

Comp.	Unit Rate (/sq m)	Adjustments				Total Adjustments	Adj. Unit Rate (/sq m)
		Location	Bldg Cond/ Facilities	Size	Time
U1/RC1	$19,058	20.0%	-12.5%	-10.4%	30.2%	27.3%	$24,261
U2/RC2	$40,739	15.0%	-15.0%	-15.0%	29.9%	14.9%	$46,809
U4/RC3	$25,515	20.0%	-13.0%	25.4%	-1.1%	31.3%	$33,501
U5	$32,667	5.0%	-10.0%	40.3%	-2.2%	33.1% Less: Benefit of two Entrances 5%	$41,306
						Average:	$36,469

* Notwithstanding we have already ruled that U3 is not a suitable comparable, Mr Lee’s adjusted unit rate for this comparable was $74,046/sq m which is obviously out of line with the others.

76.  Whereas the average adjusted unit rate determined above is $36,469/sq m, Mr Lee argues that the adjusted unit rate for Comparable U1 is out of line with the other comparables.  Mr Lee suggests that the Provisional Sub-Agreement for Sale and Purchase which was dated 26 March 2004 took place at a time when the market was not yet out of the woods in the aftermath of SARS.  Taking into consideration that the vagaries of the property market which is indeed imperfect, we agree that the adjusted unit rate for Comparable U1 is out of line with the other comparables and this comparable should be discarded as well.  Then the average adjusted unit rate for the remaining three comparables, ie U2, U4 and U5, is $40,539/sq m and the value of the Upper Floors becomes:

602.99 sq m x $40,539/sq m =	$24,444,612
Say	$24,445,000

Application of the Stokes case

77.  Whereas Mr Lee confirmed during the trial that he was not going to rely on any of his calculation in relation to the Stokes case to advance the applicant’s claim, Mr Lai, in his Further Expert Report, commented that the Stokes case supports his own submission that:

“the submission by (Mr Lee) that a discount had to be applied to the assessed market value of the ground floor parts in arriving at the market value of the ground floor part in the Shop Comparables should be rejected”.[58]

78.  Mr Lai proceeded further to consider that a proportion of the increase in value of the upper floor shop premises in the four shop comparables by reason of the direct access to street through the G/F shops/entrance should be “paid away” following the Stokes case.  In this regard, six upper floor shop comparables without direct access to street were gathered and analyzed by him to arrive at the following:

Comp.	Price for the whole transaction	Value of Ground Floor Portion	Value of upper floors with direct access to street	Value of upper floors without direct access to street	Increase in value by reason of the direct access	1/3 of Increase
U1/RC1	$12,500,000	$4,957,000	$7,543,000	$4,002,000	$3,541,000[59]	$1,180,000
U2/RC2	$26,400,000	$14,056,000	$12,344,000	$4,468,000	$7,876,000[60]	$2,625,000
U4/RC3	$33,099,000	$4,752,000	$28,347,000	$13,664,000	$14,683,000[61]	$4,894,000
U5	$68,000,000	$11,301,000 (for Shop C1) + $5,644,000 (for the Retail Outlet and rear staircase)	$46,055,000	$13,925,000	$32,130,000[62]	$10,710,000

79.  More particularly, Mr Lai considered that a fraction of 1/3 of the increases in value of the upper floors to be “paid away” for the acquisition of the G/F shops/entrance for the provision of direct access to street should be further deducted from the price of the comparables.

80.  However, as commented by Mr Lee, there was a dearth of non-domestic upper floor properties in the subject area, yet fewer retail ones that can accommodate the specialized retail trades like a restaurant and there was simply no transaction effected around the material time. We agree.  For instance, the two comparables relied on by Mr Lai at Aldrich House, 373 Shau Kei Wan Road had floor area less than 100 sq m.  In this regard, Mr Lai just applied a broad brush adjustment of 5% without taking into account the particulars of the building specifications and the conditions of access.

81.  Secondly, Mr Lee raises the query whether the factor of 1/3 adopted in the Stokes case and followed by Mr Lai is adoptable in the present case because the valuation of the ransom strip (or the exclusive/independent access in the present case) and the backland (or the upper floors with the benefit of such access) must be based on a host of factors such as: the availability of alternative access; the nature, state and condition of the access strip and the backland, the relative bargaining positions of the hypothetical seller and purchaser in the hypothetical negotiation and the deal being “felt-right”[63] considering the relative risks faced by the parties.  We note in particular, unlike the Stokes case where the owner of the access land held the only key to development of the backland, all these comparables are situated on the podium level of commercial/residential buildings which are served by common accesses. Besides, alternative access may be created by acquiring shops on ground floor as in the example of Empire Apartments Comparable.

82.  But the most important of all, even assuming Mr Lai’s analysis is correct, as shown in the table in §78 above, the 1/3 share in the increases in value to be “paid away” are all equal to or lower than the values of the ground floor portion of the respective comparables.  With respect to Mr Lai, any further deduction of these 1/3 values from the upper floor portion to arrive at the value of the latter is misconceived as the values of the ground floor portion, being the minimum price as per Andrew Baum and Gary Sams’ Statutory Valuation cited in §42 above, should have been included in this 1/3 share in the increases in value to be “paid away”.  Otherwise, the value of the ground floor portion plus the 1/3 share would have eaten up a substantial amount (ie the share is much more than 1/3), if not all as in U1, of the increase in value by reason of the direct access; that is, it may not be worth the while to have the direct ground floor access.  Indeed, this is not reasonable as demonstrated by the Empire Apartments Comparable where the owner of the upper floor could have the alternative of acquiring another ground floor shop space at market value as direct access.

83.  According to Ms Wu, however, Mr Lai’s approach is supported by Michael Barnes in his book: The Law of Compulsory Purchase and Compensation, 2014, Hart Publishing, at page 413, §14.15:

“The above explanation (on the Stokes case) assumes that the land which provides an access, and so unlocks the development value of other land, has itself no significant value save for its potential to provide the access. Of course this may not be so and it could be that the land providing the access had a value for a use which would be lost if it came to be used as an access to other land, and in that case the value of that use would have to be brought into the bargaining and the analysis…. Suppose that plot A contains a house with a road frontage. It has adjoining it a strip of land within its cartilage used as an off-road parking space and a garden shed. Plot B is open land behind plot A and could be developed by building a house on it save that it has no access to the road. The land adjoining plot A could be used to provide that access if the garage and shed were removed. Plot B has a value of £30,000 as grazing and amenity land and £150,000 for development by a house. The strip adjoining plot A has a value of £10,000. Logic suggests that before he would sell his strip to the owner of plot B to be used as an access the owner of plot A would seeks a half of the development value of plot B plus a recompense for the loss to him of the strip. The bargaining might then be that the owner of plot A sold the strip for a half of the development value of plot B (50 per cent of (£150,000 - £30,000)), that is £60,000, plus the value to him lost on the strip of £10,000, a total sale price of £70,000.”

84.  Mr Leung submits that the example suggested by Mr Barnes only tells one side of the picture; the owner of plot B may not be too concerned about the loss of the strip to the owner of plot A, not to mention whether he would forsake 50% of the development value; the owner of plot B would only be concerned about how much he affords to pay.

85.  Mr Leung also points out that this example does not conform with many decisions that were adjudicated subsequent to the Stokes case, such as:

(a) Chapman, Lowry & Puttick Ltd v Chichester District Council (1984) 47 P&CR 674 in which the land acquired had a special suitability for the purpose of providing access to the rear land.  The existing use value of the land (being agreed at £200) was disregarded in favour of the Stokes v Cambridge value of £25,000 as the award by the English Lands Tribunal.

(b) Ozanne and Others v Hertfordshire County Council [1988] 2 EGLR 213 in which a ransom strip provided the only satisfactory means of access to land ripe for development. The value of the ransom strip for agricultural purposes was agreed to be £5,500. In the judgment at 217, the claimant’s calculation of £1.24 million (at 215) was awarded and this £5,500 did not enter into picture.

(c) Crown House Developments Ltd v. Chester City Council [1997] 1 EGLR 169 in which a ransom strip was acquired for the development of the backland. The English Lands Tribunal found, at 174, that although a developer of the backland would probably accept that access through the strip would be “preferred”, he would have investigated other means. Then the Tribunal held at 176:

“Mr Guise (for the claimant) added a nominal sum of £100 to his Stokes v Cambridge share to reflect the value of the land taken; it seems to me however that if one is using the Stokes v Cambridge approach to arrive at a value of a ransom strip then as long as the resulting value is greater than the existing use value the latter value becomes irrelevant. Although the amount involved is trivial I would exclude it as a matter of principle.”

(d) Persimmon Homes (Wales) Ltd v Rhondda Cynon Taff County Borough Council [2005] RVR 59 in which land was acquired for access to adjoining housing development. In the award by the English Lands Tribunal, the parties’ agreed nominal value of £500 for amenity purposes was replaced by £1,139,000 following the Stokes case.

86.  Having considered all these cases and reviewed the principle of the Stokes case where the owner of the access land held the only key to development of the backland, we consider the further deduction of the 1/3 of the increases in value by Mr Lai is not reasonable.  This is particularly the case that in the present case, the common staircase and the main entrance that provided access to the Upper Floors were so decorated that they looked like the exclusive entrance to the Upper Floors.  In any event, the Upper Floors were not as in the Stokes case without access.

Conclusion

87.  We have determined the value of the Portion of main entrance at the Ground Floor (or more properly the value of the applicant’s entitlement to use the Portion) of the Property should be, for the purpose of section 10(2)(a) of the Ordinance, in the sum of $2,090,000.  Further, we have determined the value of the First Floor and Second Floor of the Property should be, for the purpose of section 10(2)(a) of the Ordinance, in the sum of $24,445,000. The total of the two is $26,535,000.

Orders

88.  Accordingly, we order that the respondent do pay the applicant compensation for the Property in the sum of $26,535,000.  The matters of professional fees, interest and costs shall be adjourned to a date to be fixed, with liberty to apply for any other ancillary and consequential matters.

89.  It remains for us to thank Counsel for their invaluable assistance.

[1] See Bundle C1/77-78

[2] By reference to the lease dated 3 December 2003, the directors of the applicant and Happy Dragon Restaurant Limited were the same.

[3] This is now known as Harmony Place which is under construction.

[4] See Bundle B/1-85

[5] See Bundle B/86-142

[6] See Bundle B/165-312

[7] See Bundle C1/1-204

[8] See Bundle C2/205-330A

[9] See Bundle C2/331-373

[10] See Bundle A/12-16

[11] See Bundle A/20-26

[12] See Bundle C1/83 & 89

[13] See Bundle C2/208: §4.1

[14] See Bundle B/90: §7

[15] This is a provision for exemption as opposed to ‘minor works’ as suggested by the respondent.

[16] See Bundle C1/92-94

[17] See Bundle B/91:§9

[18] During cross-examination, Mr Lai did not dispute that the Portion could be used for retail purposes.

[19] See Bundle C1/78

[20] See Bundle B/10-11: §9.4.1

[21] See Bundle C2/215-216

[22] See Bundle B/180: §13 and Bundle B/270-284

[23] As at the date of our inspection on 7 January 2014, this space had become a jewellery and goldsmith shop.

[24] See §34 above

[25] See for example Director of Lands v. Yin Shuen Enterprises Limited & Another (2003) 6 HKCFAR 1, [2003] 2 HKLRD 399, §§29-50.

[26] See Bundle C2/216: §6.9

[27] See Bundle B/250 which was particularly referred to by Mr Leung in cross-examination.

[28] See Bundle B/16-17

[29] See Bundle B/186

[30] See Bundle C2/338

[31] This is acknowledged by Mr Leung in his closing submission at §43.

[32] See Bundle B/140 & 162

[33] See Bundle B/187

[34] See Bundle C1/175A

[35] See Bundle C1/176A

[36] See Bundle C1/177A

[37] See Bundle C2/300A

[38] See Bundle C2/306A

[39] This is derived after a discounting of 10% as explained in §§33-34 above. Otherwise, the value should be $13,950,000 which is very close to Mr Lai’s assessment of $14,056,000.

[40] See Bundle B/171-172: §8

[41] See Bundle C2/211

[42] See Bundle B/154-155

[43] The intervening stations are Quarry Bay, Tai Koo and Sai Wan Ho.

[44] See Bundle B/13: §9.4.6 and it is difficult to understand why Mr Lee then said “but in terms of competition, the comparable was in an inferior position as there were more competitors in its immediate vicinity than the Property.” The comparable cannot be superior in situation and then in an inferior position at the same time.

[45] See Bundle B/264

[46] See Bundle C2/258

[47] See Bundle C2/214

[48] See Bundle C2/330A

[49] See Bundle C1/158A & C2/330A

[50] See Bundle B/305A

[51] See Bundle B/109

[52] See Bundle C1/17: §5.12

[53] See Bundle B/5-6

[54] It has been agreed that the Building was built in 1957.

[55] See Bundle B/14:§9.4.7

[56] See Bundle B/111:§40

[57] See Bundle C2/219

[58] See Bundle C2/333: §3.1

[59] See Bundle C2/344A

[60] See Bundle C2/345A

[61] See Bundle C2/346A

[62] See Bundle C2/347A

[63] Per observation of A Mann QC (now Mann J) in Amec Developments Ltd v Jury’s Hotel Management (UK) Ltd [2001] 1 EGLR 81 at 87: “As important as to any of the above factors is this. In any negotiation, science and rationality gets one only so far. At the end of the day, the deal has to feel right.”