Wong Wan Leung and Others v. Director Of Lands

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Tribunal Application No. LDMR 10 Of 1996

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Decision

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1. This is my decision on item (1) of the Summons for Further Directions taken out by the Applicants. Item (1) reads as follows:-

"The Respondent do within 14 days make specific discovery of New Grants, Rateable Value, Government rent and area of each tenement in respect of the Schedule A Sub-leases;"

In support of the application the Applicants filed the Affirmation of Wong Kam Por ("the Affirmation"), the 3rd paragraph of which referred to a letter dated 13.9.1999 ("the letter") written by the Applicants' solicitors Messrs Joseph P.K. Pang & Co. to the Department of Justice. In this letter the subject matter of this application was fully set out :-

"We refer to the above matter.

In order to verify with accuracy the quantum arrived at by our expert on the loss suffered by our client as a result of the operation of the Block Crown Lease (Cheung Chau) Ordinance, our client requires the following information for the tenements on all the lots listed in Schedule A annexed to our client's Re-Amended Notice of Application filed herein on 6th July 1998:

(a) full address of the each tenement;

(b) saleable floor area of each tenement;

(c) the rateable value of each tenement from the years 1 July 1997 up to date of this letter;

(d) the land surrendered under each of the New Grants for which the New Lots as defined in our client's said Re-amended Notice of Application were granted;

(e) the Government Rent of each New Lot;

(f) the lease terms of each New Lot;

(g) the Permitted maximum gross floor area and site coverage of each New Grant;

(h) Special restriction on land use under each New Grant.

Our client will also require information listed in items (a), (b) and (c) for the tenements ...... listed in Schedule B ......

The information regarding items (a), (b) and (c) above are prepared managed and kept by the Rating and Valuation Department ...... The information sought by our client under items (d) to (h) inclusive are information contained in the New Grants which are prepared and maintained by the District Lands Office of the Hong Kong SAR Government.

All these information are in the control and possession of the Hong Kong SAR Government to which your client Department forms a part. We have been advised by Counsel that these information are necessary for the Lands Tribunal ...... to determine the amount of compensation. You are hereby requested to make disclosure of all the information sought under this letter within a time agreeable to us. In the absence of your response in the next 7 days, our client will take out a summons in the Lands Tribunal under section 10(2) of the Lands Tribunal Ordinance, Cap. 17." (Underlines provided)

2. In support of their application, the Applicants are relying on paragraphs (a) and (b) of section 10(2) of the Lands Tribunal Ordinance, which are as follows:-

"(2) Without prejudice to the generality of the powers vested in it under subsection (1), the Tribunal may -

(a) on the application of any party to any proceedings before it, or of its own motion, order any party to the proceedings to disclose to the Tribunal the existence of any document which is in the power of such party to produce and which the Tribunal considers is or may be material to the determination of the matter being heard by the Tribunal;

(b) order any party to any proceedings before it -

(i) to produce to the Tribunal any document which it may require and which is in the power of such party to produce; and

(ii) to afford to any other party to the proceedings an opportunity to examine any such document or copy thereof and to take copies thereof;"

(Underlines provided)

3. The meaning of "document" is, of course, different from that of "information". The former is a tangible thing which contains the latter. To disclose a document or documents to another party to any proceedings is one thing. To disclosure to another party the information sought by the requesting party is a totally different thing. In the former case, the disclosing party simply produces the document or documents, but in the latter case, the disclosing party has to go through the process of separating the information required from other information. That may take up the disclosing party a lot of time. The letter (dated 16.12.1999) issued by the Department of Justice to the Applicants is an example of the time that may be required to be spent :-

"We are instructed that our client department is trying to sort out the relevant rateable values from the computer print-out provided by R&V but it may take at least more than two months to complete."

4. Apart from the time spent on extracting the information required, if the disclosing party makes any mistake in the selection process, he may have to bear the legal consequences. But if he simply discloses to the requesting party the documents which contain the required information, he need not face the aforesaid problems.

5. The contents of section 10(6) clearly show that "information" and "document" are two different matters. Section 10(6) reads :-

"The Tribunal may admit in evidence any statement, document, information or matter, whether or not it would otherwise be admissible in evidence and attach such weight to it as may be appropriate in the circumstances."
(Underlines provided)

The applicability of section 10(2)

6. In the letter the Applicants asked the Respondent for "information" required by them. The sentence, namely, "The information sought ...... under items (d) to (h) inclusive are information contained in the New grants which are prepared and maintained by the District Office of the HKSAR Government" clearly indicates that the Applicants were seeking for information in the true sense of the word, because information is invariably contained in documents.

7. There is no mention in the Affirmation about the discovery of documents. What Mr. Wong Kam Por was asking for was merely "information". In paragraph 11 of his affirmation he said,

"So far as the rateable value of Schedule A lots are concerned, the Government is at all times willing to provide us with the information. The only question is delay ...... In this letter, Mr. Chan wrote that rateable value of all Schedule A lots should be ready by the date of this affirmation. However, since that letter, the Tong or its solicitors was not provided with even part of the information sought. Without a proper direction from the Tribunal, there would be further delay on the part of the Government."

Thus by this application the Applicants asked for an order from the Tribunal to direct the Respondent to provide the "information" they require, in order to avoid further delay on the part of the Government. Under section 10(2) of the Lands Tribunal Ordinance, the Tribunal has no power to order a party to the proceedings to disclose information to the other party.

8. According to Para. 9 of the Affirmation, the Applicants know that the information relating to New grants are contained in Government leases, which are kept by the Government. The relevant part of Para. 9 reads:-

"......For lots granted to the Tong under new grants subsequent to the Block Crown Lease dated 18 March 1905, terms regarding these matters are questions for each individual Government lease. According to Mr. Tse, original copies of Government leases of Cheung Chau land are kept by the Islands District Office. Although certified copies of Government leases can be obtained through land search with the Land Registry, the cost is HK$340 each. That will make HK$126,480 (HK$340 x 372)."

9. If the relevant documents are available for inspection, then there is no need necessity for this discovery application to be made.

10. There is no reason given by the Applicants as to why the Respondent should be ordered to make disclosure to the Tribunal, or to produce to the Tribunal any document it may require. If the Respondent is ordered to disclose the required information, then they are being ordered to do something which they are not legally bound to do. In effect, the Applicants are making use of section 10(2) to force the Respondent to disclose to them the information they require for their case, and the Respondent would have to do a task which should be done by the Applicants themselves.

11. In paragraph 7 of the Affirmation, the Applicants said that "Almost every year, the Tong surrendered some lots in exchange for new lots. The surrender and re-grant resulted in increase of Government rent imposed on the Tong each year. The Tong has no idea at all the amount of Government rent imposed on each lot of Schedule A land." The Applicants did not say that they have lost the records of such New Grants. They only said that they have no idea at all the amount of Government rent imposed. The Department of Justice in its letter dated 16.12.1999 rightly stated :-

"In respect of items (d) to (h), your client or their predecessors, being the managers of Tong were a party to the surrender and re-grant of all the lots under sub-leases in Cheung Chau before 9.1995. Your clients should be in a better position to know the land surrendered under each of the New Grants and etc. We do not see why it is necessary for your clients to seek discovery from us."

Since the Applicants' expert has already arrived at a quantum suffered by the Applicants as indicated in Para. 2 of the letter, then the Applicants must have most, if not all, the material information/documents they required. Assuming that they do not have the information relating to the amount of Government rent imposed on the lots of Schedule A land, they must have the information/records in respect of items (d) to (h) (save and except (e)). If they have such records then there is no necessity for any discovery to be made.

12. As rightly pointed out by the Department of Justice in its letter dated 16.12.1999, if the Applicants' record is incomplete, they should approach the Land Registry which should have all the information they wanted. The information relating to the New grants, namely, the Government rent (item (e)), lease terms (item (f)) and land restriction (item (h)) are fully recorded in documents and are available for public inspection in the Land Registry. There is no necessity for discovery to be made in respect of these items.

13. Section 10(2)(a) stipulates that the Tribunal may order any party to the proceedings before it to disclose the existence of any document which the Tribunal "considers is or may be material to the determination of the matter being heard by the Tribunal". The only matter being heard by this Tribunal the application by the Applicants for "Further Directions". This application is not within the meaning of the word "matter" referred to under section 10(2)(a) because the disclosure of the existence of any document cannot be material to the application for "Further Directions". There is in fact no "matter" being heard by the Tribunal within the meaning of Section 10(2)(a) at the present, and therefore there is no determination which requires to be made.

14. The Applicants asked the Respondent for the information, relating to the saleable floor area of each tenement. On the assumption that "information" can be interpreted to have the same meaning as "document", the Tribunal has to be satisfied that this information is or may be material to the case before it.

15. Based on a list of interest provided by a consultant of the Respondent, the Rating and Valuation Department ("R&V Dept.") made a computer print-out which contained the saleable areas and rateable values of certain tenements of Cheung Chau. Due to the difference in descriptions of the lot number and address of each interest, R&V Dept. was not able to sort out the information on the rateable values from their computer database. Instead they printed out all the information relating to the lots on the list provided by the consultant, and the total tenements turned out to be over 8,000. Exhibit R3 is part of the computer print-out.

16. The Schedule A lots, unlike the Schedule B lots, do not have any addresses at all. Thus it would be very difficult for the Tribunal to know at this stage which are the tenements that should be included under a certain lot under Schedule A. There are 300 odd lots in total under Schedule A lot, and the total number of tenements involved are least 8000.

17. As it is the Applicants' intention to find out the size of each lot by reference to the area of each tenement in the lot, it is important to know the area of Lot A land in the tenement which also comprises of Lot B land. But some tenements involve an amalgamation of lot A land and lot B land. A small portion of Exhibit R3 is reproduced hereinbelow to demonstrate the amalgamation.

Lot	Description
DD CC 7 B DD CC 10 B (RP) DD CC 800 A DD CC 800 B	CHEUNG CHAU LOTS 7 SB & 10 SB RP & 800 SA & SB 5 SAI WAN CARE VILLAGE 1ST FLR CHEUNG CHAU
DD CC 7 B DD CC 10 B (RP) DD CC 800 A DD CC 800 B	CHEUNG CHAU LOTS 7 SB & 10 SB RP & 800 SA & SB 6 SAI WAN CARE VILLAGE GRD FLR CHEUNG CHAU
DD CC 7 B DD CC 10 B (RP) DD CC 800 A DD CC 800 B	CHEUNG CHAU LOTS 7 SB & 10 SB RP & 800 SA & SB 6 SAI WAN CARE VILLAGE 1ST FLR CHEUNG CHAU

18. Nothing has been shown to the Tribunal as to how the area of Lot A land can be determined when the same tenement also comprises of Lot B land. These basic materials may be useful to the Applicants for the purpose of extracting information to be used by their expert. But as for the Tribunal, in the absence of evidence relating to the method for the calculation of the area of Lot A land in respect of a tenement as referred to above, I could not see how these materials can be applied for the assessment of the amount for compensation.

19. In short, Section 10(2) is not applicable in this application. Even if it is applicable the Tribunal has a discretion to grant or to refuse the application.

20. For the reasons referred to above, I do not exercise my discretion in favour of the Applicants. I therefore dismiss their application for specific discoveries.

21. This case is adjourned to 17.8.2000 for arguments on costs.