AU SIU FOO v. THE SECRETARY FOR TRANSPORT

LDRW 49/2003

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Railways Ordinance Application No. LDRW 49 of 2003

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J U D G M E N T

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Introduction

1. This is an application for determination of the amount of professional fees under section 10(2)(e)(ii) of the Lands Resumption Ordinance, Cap 124. The Applicant was the owner of a property resumed by the Respondent, which is the Secretary for Transport, under the Railways Ordinance, Cap 519. The property was resumed to make way for the construction of the Phase I West Rail between Tuen Mun and West Kowloon.

The Background

2. The property reverted to the Government on 2nd October 1999 by virtue of a Notice of Resumption issued under the above Railways Ordinance. A compensation claim was forwarded to the Government on 24th December 1999. Initially, the Applicant asked for a sum of $1,150,000. After a series of negotiation, the compensation was finally settled at $740,000 and pursuant to section 6(2A) of the Ordinance, the Government is obliged to pay the costs or remuneration reasonably incurred or paid by the Applicant in employing persons to act in a professional capacity in connection with the compensation claim. Section 6 (2A) of the Ordinance so states as follows: -

"Where, in the case of land resumed under an order made under section 3 on or after the commencement of the Crown Lands Resumption (Amendment) Ordinance 1984 (5 of 1984), an offer of compensation is made or a claim for compensation is submitted to or by any person under this section, such offer may provide for the payment by the Authority to that person of, or such claim may include a claim for, any costs or remuneration reasonably incurred or paid by him in employing persons to act in a professional capacity in connection with such offer or claim."

3. The fees claimed consist of two parts, one being the surveyor fee of $377,400 ($1,500 of which being the cost of disbursement) and the other, the solicitor fee in the sum of $153,550. On the first day of the hearings, the solicitor fee was settled at $26,575 with consent summons signed and a Tribunal Order granted in terms thereof. The Tribunal is required to adjudge only on the surveyor fee and the amount of disbursement.

The Property Resumed

4. The resumed property was located in Tsuen Wan, known as Unit 9, 26/F and Roof No.9, Block A, Wah Kai Industrial Centre. It was 114.4 sq. m. in saleable floor area with a similar sized roof for the exclusive use of the Applicant.

Basic Issues of Claim

5. Before the Tribunal moves to tackle the amount claimed by the Applicant, it is necessary to address a few issues raised. These are firstly the Applicant's request to strike out (or attach little weight) the expert evidence of Mr. Lawrence Pang who acts for the Respondent as expert witness, secondly, whether the surveyor fee should be awarded on time charge or it should follow the Hong Kong Institute of Surveyors Scale (to be known as HKIS Scale) and thirdly, the charging rate of Mr. Foo, the Applicant's expert witness.

(a) Striking-out

The Applicant's main concern was that Mr. Pang who is a surveyor in profession without any legal background had commented or advocated on a number of issues from legal view-point (quoting mainly Canadian authorities) or outside his area of expertise. Other factors leading to the Applicant's request included Mr. Pang's evasive and contradicting manner in giving evidence.

We are of the view that the Applicant's worry is inordinate. The two parties were represented by counsels and solicitors. If any of Mr. Pang's views given from legal viewpoint erred, the counsels in court would have corrected it for the Tribunal. The Tribunal's decision would not be unduly influenced by Mr. Pang. For any view of Mr. Pang given outside his area of expertise, the Tribunal should be able to dispose it appropriately with Mr. Foo's assistance. We do not accept that Mr. Pang's evidence should be struck out. We dismiss the Applicant's application in this regard.

(b) Time Charge

The Respondent considered the HKIS Scale appropriate for calculation of the surveyor fee as in the real market, surveyors seldom charge on an hourly basis. This does not surprise the Tribunal, as it is easier for the surveyors' clients to manage their budgets, a lot simpler for the surveyors to prepare the bills and may have fewer disputes on the final sum payable. The method to so charge, however, is not destitute of disadvantage. It is not the fair way to remunerate the surveyors or pay for the work done. Whilst we have no objection to the method of how the work should be billed so long as there is agreement between the surveyors and their clients, we have to resort to the approach fair to the two parties, albeit it being clumsy, as and when there is a dispute. We do not see that there should be a departure from the rulings laid down in Chan Kwong Man v Secretary for Transport [LDMR 36/2000] and Wu Wai Kuen v Secretary for Transport [LDMR 37/2000].

(c) Charging Rate

The HKIS Scale provides for a senior director a charging rate of $3,000 per hour. Mr. Foo professed himself to be a senior director status having 10 years experience in the profession and being the director of a surveyor firm. The rate applicable therefore is $3,000 per hour. The Respondent held the view that the appropriate hourly rate should be $2,000 as at the material time.

7. There is no definition set down under the HKIS Scale as to the qualification of a senior director. By the hierarchy set out therein, a senior director must be very senior in the career path of a professional surveyor. He/she must have a wide and comprehensive horizon about the profession, be able to handle more complicated issues than straightforward compensation cases, and be capable of giving leading professional views. He or she must be a member of the senior management of a General Practice surveying firm of a wide spectrum of General Practice expertise.

8. With this understanding in our mind, we share the Respondent's view that Mr. Foo should be remunerated at the hourly rate of $2,000. Whilst we agree that in ten years' time, a surveyor may climb up to the post of senior director in a firm of the above scale, we do not accept the Applicant's view, as Mr. Foo had not been a full time surveyor in the period up to October 1999 since qualified as a Chartered Surveyor. He worked as a barrister for some time and for the rest of the time as a solicitor in parallel. The scale of Mr. Foo's firm limited his acquisition of experience and the compensation case related to the present application is straightforward in nature. He did not display good knowledge regarding certain issues involved in the related compensation case. For example, he did not seem to know well regarding the prescribed format of building plans submitted under the Building Ordinance, the purview of the Deed of Mutual Covenant, and the terms used in resumption cases.

The Items In Dispute

9. The Applicant has itemized his claim on Pages 28 to 40 of the Pleading Bundle. There are a total of 63 items plus an item on disbursement. Some of the items were withdrawn during the progress of the hearings, and some revised to avoid duplication with other claims. The Respondent gave its views on the claim. Only those not withdrawn now receive the ruling of the Tribunal as hereunder: -

Total = 18.9

The fee payable, based on the hourly rate of $2,000 for a total of 18.9 hours, is $37,800.

Order

10. We hereby order the Respondent to pay the Applicant the surveyor fee of $37,800 and in addition, the disbursement at $1,500. We make an order nisi, to be made absolute in 14 days' time, that the two parties do bear their respective legal costs arising from this application.