LAM KANG HEE AND ANOTHER v. WO YICK ENTERPRISES CO. LTD.

Demolished Buildings (Re-development of Sites) Ordinance - protected tenants applications for compensation - failure to comply with time limits - applications under s.7 (2) for extension of time to Chief Justice dismissed - applicants bring alternative applications for extension to Lands Tribunal under s.10(2) (d) of its own Ordinance - observations on historical jurisdiction of Chief Justice on pre-hearing applications when compensation determined by separately appointed tenancy tribunals - drafting inaccuracies in amendments abolishing tenancy tribunals - Chief Justice's power remnant of old legislation.

Held 1 Specific power to extend time under s.7 (2) prevails over Lands Tribunal general power under s.10 (2) (d);

2 Powers do not co-exist so applicants do not have the option to proceed under parallel or alternative statutory powers

3 Applications to Lands Tribunal for extension of time dismissed for lack of jurisdiction.

 

IN THE LANDS TRIBUNAL OF HONG KONG

_________________

________________

J U D G M E N T

________________

1. The applicants have applied to the Lands Tribunal for time to be extended to enable them to file and serve within seven days notices of application for compensation under Section 7 of the Demolished Buildings (Re-development of Sites) Ordinance Cap.337. Upon the present applications for extension of time being filed, the Tribunal doubted whether it had jurisdiction to consider the applications and accordingly set this issue down for hearing. I how have had the advantage of hearing submissions from the applicants solicitor.

2. Where the Director of Buildings and Lands serves a re-development notice in respect of any property the notice must be published in the Gazette. Certain tenants of such properties may within, 3 weeks of the publication of the notice in the Gazette, apply to the Lands Tribunal for compensation. The Ordinance only applies to properties where buildings are subject to Part I of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. Part I buildings are commonly, of not strictly accurately referred to as pre-war buildings Nearly all Part I buildings were erected before the Second World War. In terms of Section 3, Part I premises in fact comprise domestic premises in respect of which an occupation permit was first issued by the Building Authority on or before 16th August 1945.

3. Section 5 of the Demolished Buildings (Re-development of Sites) Ordinance provides that where a re-development notice is served, Part I of the Landlord and Tenant ('Consolidation) Ordinance ceases to apply to the building specified in the notice. The practical effect is that domestic tenants of the building thereupon cease to enjoy the security of tenure and restricted rents provided by Part I. The Demolished Buildings (Re-development of Sites) Ordinance defines such a Part I tenant as a "protected tenant".

4. Section 5 further provides that protected tenants are entitled to compensation, from the person who was the owner of the property immediately before the notice was served. The compensatory basis of the Ordinance, is that protected tenants should be compensated by the owner, for the loss of the twofold protection they formerly enjoyed under Part I. The total compensation payable to protected tenants for any particular property, may not in total exceed the incremental value assessed by the Director of Buildings and Lands under Section 6. The incremental value is the amount by which the market value of the property with vacant possession exceeds the market value of the property in occupation, prior to service of the Building Authority's order. Incremental values can be for substantial sums

5. Turning to the facts of this applcation, nctice in the Gazette was published as Gazette Notice 3752 on 27th October 1989. On 7th November 1989 the Commissioner of Rating and Valuation sent his standard circular letter to the applicants and other protected tenants. This letter helpfully drew their attention to the fact that they were entitled to apply for compensation to the Lands Tribunal within 3 weeks of the Gazette notice. The letter went on to explain in some detail the procedural steps a protected tenant must take if he wishes to pursue an application for compensation. This is a very useful service provided by the Commissioner as protected tenants tend to be elderly, unrepresented persons of limited means. Parties to proceedings under neither this Ordinance nor Part I of the Landlord and Tenant (Consolidation) Ordinance, are eligible for Legal Aid. Legal Aid only extends to the generally relatively more affluent domestic tenants of Part II premises - Section 5 and Item 4 of Part I of the Second Schedule of the Legal Aid Ordinance, Cap. 91. The assistance voluntarily and gratuitously given by the Commissioner is usually of considerable assistance to protected tenants.

6. The applicants received the Commissioner's circular letters during November 1989. The letters were written in English with a partial translation in Chinese on the reverse side. The applicants stated on affirmation that they do not read English and have difficulty in writing Chinese. The applicants took the letters to the Lands Tribunal Registry and were given the appropriate application Form 8A and invited to complete and file that document. Because of the earlier publication of the Gazette notice, Form 8A had to be filed on or before 17th November 1989. The applicants state they were not informed of that date by the Registry but agree that deadline was given in the English copy of the Commissioner's letter. Unfortunately, the time limitation given in English does not appear in the Chinese translation.

7. The applicants arranged for the Forms 8A to be completed in English and signed those documents on 20th November 1989. On that same day the applicants attended at the Lands Tribunal Registry and attempted to file Forms 8A but they were rejected on the ground that the time for filing had expired 3 days earlier. The applicants were not aware that the Gazette notice had been published on 27th October 1989. The applicants first actual notice on the Re-development notice was when the Commissioner's letter was received shortly after 7th November 1989. On these facts the applicants state that the failure to file Form 8A in time was not intentional. Applications by two other protected tenants in respect of the same building were filed on 16th November 1989 but have yet to come on for hearing. Three other tenants attempted to file applications during November but after 17th November 1989.

8. The applicants solicitor submitted that the Tribunal had jurisdiction under the Lands Tribunal Ordinance, Cap. 17 to enlarge time to enable the applications for compensation to be filed. Section 10 (2) (d) provides that the Tribunal may : -

" (d)    for good cause, enlarge time, whether or not that time has already expired, fixed by any Ordinance : -

(i) for the giving of any notice, either before or after any proceedings have commenced;

(ii)for the taking of any step in the proceedings; or

(iii) for the filing or lodging of any dcoument in any proceedings."

9. I remind myself that the apparent wide powers of Section 10(2)(d) are subject to a number of limitations, as has been emphasised by the majority judgment of the Court of Appeal, in Ram Isadas Mahtani v Wong Kwok Tai C. A.156/88:

10. However, a more serious objection to the present application stems from the particular provisions of the Demolished Buildings (Re-development of Sites) Ordinance. Before considering those provisions, it is useful to consider the original position which existed under that Ordinance before tenancy tribunals were abolished in 1981. Until 1981 compensation claims were determined by tenancy tribunals. Strictly, as a matter of law there was never a permanent Tenancy Tribunal. Instead the Chief Justice was empowered to appoint a separate tenancy tribunal to hear each claim. The same position existed in relation to tenancy tribunals appointed to hear certain claims under Part I of the Landlord and Tenant (Consolidation) Ordinance. As a consequence of there being no permanent Tenancy Tribunal, the Chief Justice was given original jurisdiction to hear interlocutory and other pre-hearing applications, including applications for extension of time.

11. When the power to appoint tenancy tribunals was abolished, jurisdiction generally was transferred to the Lands Tribunal and in some cases to the Commissioner of Rating and Valuation. In the case of Part I of the Landlord and Tenant (Consolidation) Ordinance, one consequence of the amendments, was that the Part I jurisdiction of the Chief Justice ceased.

12. Unfortunately, the amendments made at the same time to the Demolished Buildings (Re-development of Sites) Ordinance were both piecemeal and inaccurate. Section 8 inaccurately refers to the "appointment of the Lands Tribunal under Section 7(2)" But there is no provision in Section 7(2) for the appointment of the Lands Tribunal. Although before 1981 there was, of course, provision for the appointment of a tenancy tribunal. The Lands Tribunal has separate and permanent jurisdiction under the Demolished Buildings (Re-development of Sites) Ordinance, pursuant to Section 8 of the Lands Tribunal Ordinance.

13. The Chief Justice's power to appoint tenancy tribunal's under Section 7(2) was rendered redundant by their abolition and the transfer of jurisdiction to the permanently constituted Lands Tribunal. The deletion of 'that power of appointment in the 1981 amendments was therefore intelligible. The failure to effect consequential amendments to Section 8 was presumably an oversight However the Chief Justice's power to extend time under Section 7(2) has continued to survive as a further remnant of' the very different prior legislation I referred eextrajudicially to these apparent drafting oversights in 'Land Compensation and Valuation Law' pp 122, 126.

14. The statutory position therefore is that while the Lands Tribunal has general power to enlarge time under Section 10(2)(d) of its own Ordinance, there is specific provision for application for extension of time  like the present, under Section 7(2) of the Demolished Buildings (Re-development of Sites) Ordinance. The former general power is vested in the Lands Tribunal. The latter specific power is vested in the Chief Justice.

15. The applicants solicitors also disclosed that Lam Hang Kee by letter wrote to the Registrar, Lands Tribunal on 20th November 1989 asking that his late application be accepted Lam Sai wrote a similar letter on 21st November 1989. Tse Ngo Lam and Tsoi Kwok, who are other protected tenants, wrote a similar letter on 28th November 1989. The Registrar properly dealt with these letters as applications under Section 7(2) for extension of time. The applications were accordingly transmitted to the Chief Justice when they were dismissed on 11th December 1989.

16. The applicants solicitor complained that the applications transmitted to the Chief Justice were dismissed without a hearing, no reasons were given and the applicants were later by letter informed of the result. The applicants solicitor strongly submitted that as they did not appear on the Section 7(2) applications, they would suffer considerable prejudice if the Lands Tribunal now declined to hear them, on a similar application under Section 10(2)(d) of the Lands Tribunal Ordinance. I record that the Director of Buildings and Lands has assessed the incremental value of the property at $ 95,300,000. Accordingly under Section 8, the total compensation payable to all tenants for the whole building may not exceed $ 95,300,000.

17. After considering the submissions advanced on behalf of the applicants I am satisfied that the special provisions of Section 7(2) prevail over the general, if subsequently enacted, provisions of Section 10(2)(d) - Seward v Vera Cruz (1884) 10 App Cas 59,68. The rule of construction that a subsequent general Ordinance does not affect a prior special Ordinance by implication is well established - Craies on Statute-Law' (7th Edn) 377. Further, when the two sections are compared, I am satisfied that the Chief Justice's power and the Lands Tribunal power, in relation to applications under the Demolished Buildings (Re-development of Sites) Ordinance, do not co-exist. If they were parallel powers, a party would have an election as to the relevant Section and the authority to which he would apply. This would create an even more anomalous and confusing position, highlighted in part by the present factual position. The applicants have failed before the Chief Justice under Section 7(2) but now seek to pursue basically the same application, if under a different Ordinance, to the Lands Tribunal. Apart from the statutory obstacles the applicants would have to overcome, this course would also be objectionable as an undesirable species of forum shopping.

    For all these reasons I am satisfied that this Tribunal has no jurisdiction to extend time under the Demolished Buildings (Re-development of Sites) Ordinance. The sole power to grant extension remains vested in the Chief Justice under Section 7(2). The present applications are therefore dismissed for lack of jurisdiction.