Choi Leung Kong v. Director of Lands

Crown Lands Resumption Reference No. 10 of 1995

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HEADNOTE

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Property law - Crown Lands Resumption - Workshop Premises - Business Losses - Valuation of Plant and Machinery - Valuation of Goodwill - Crown Lands Resumption Ordinance, Cap. 124, s. 10(2)(d) - Construction of Terms of Crown Lease - Crown Lands Resumption Ordinance, Cap. 124, s. 12(b) - User under Occupation Permit

Ground floor premises used for making metal moulds and frames for civil engineering use resumed by and reverted to the Crown on 3rd October 1992. The Crown Lease pertaining to the plot of land on which the building where the premises were situated together with other buildings stood stipulates that "The lot shall not be used for industrial purpose". The occupation permit specifies "domestic" use for the entire block of buildings. The applicant proprietor of the business claims, inter alia, losses of goodwill and for forced sale of machinery and equipment. The respondent contends that the business was industrial, in breach of the Crown lease, so under the Crown Lands Resumption Ordinance, Cap. 124, s. 12(b) no compensation is payable. Also for breach of the occupation permit, any compensation payable for loss of goodwill should be limited.

Held: (1) In accordance with s. 10(2)(d) of the Crown Lands Resumption Ordinance, the applicant is entitled to compensation that would restore him to the business position where it would be had there been no resumption, i.e. an amount of compensation so as to enable the applicant to acquire the same quantity and quality of machinery and equipment together with the goodwill of an equivalent business in April 1994. (2) Applying the contra proferentum rule of construction, the Crown lease does not prohibit use of part of the lot for industrial purpose. Even if no identifiable part of the lot can be used for industrial purpose, the subject premises being only an undivided, unidentifiable share in one part of the lot, it cannot be said that any part of the lot was used for industrial purpose. Accordingly, there was no breach of the Crown lease. (3) Clearly the occupation permit was issued without regard to the reality that all the ground floor units of the buildings were shop spaces which had since all along been assessed as commercial properties by the rating authorities. On the facts of the case, the specification for domestic use in the occupation permit ignored for the purpose of determining the value of the goodwill of the business. (4) Based on reported taxable profits of the business, goodwill valued at $2.34 million being $0.6 million annual profitability multiplied by 5 and discounted for interest on advance payment. (5) Based on past experience, the auction price may be used as basis for assessment of the value of machinery and equipment. On the facts of this case, a multiplier of 3.5 should be applied to the auction price to arrive at the value of the machinery and equipment at $(0.2 x 3.5) million = $700,000. Hence compensation for forced sale of machinery and equipment at $500,000. (5) After adding other items allowed, total compensation determined at $3.01 million.

IN THE LANDS TRIBUNAL OF HONG KONG

Crown Lands Resumption Reference No. 10 of 1995

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JUDGMENT

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The Applicant is the sole proprietor of a workshop known as Hop Kee Iron Work ("the business") at premises situated at No. 22, Ground Floor, Wang Cheung Street, Ma Tau Kok ("the subject premises") which were owned and registered in the name of the Applicant. The subject premises were resumed by the Crown pursuant to section 3 of the Crown Lands Resumption Ordinance, Cap. 124 ("the Ordinance") under a Notice of Resumption dated 26th June 1992, published in Volume CXXXIV Hong Kong Government Gazette on 3rd July 1992 as G.N. No. 2264 of 1992 and reverted to the Crown on 3rd October, 1992. Nonetheless, the Applicant was allowed to carry on the business at the subject premises rent free until April 1994 when the Applicant was evicted.

2. Before we proceed further, we should point out that the subject premises were part of a major resumption of more than one hundred properties for the Hong Kong Housing Society's Urban Improvement Scheme ("the Scheme"). In addition to Wang Cheung Street, the Scheme area extended to Sui Lun Street, Ma Tau Kok Road, Pak Tai Street, San Shan Road and Pau Chung Street in Ma Tau Kok. The present case is one of nearly thirty applications by business operators affected by the Scheme for compensation who felt unable to accept the Crown's offer for settlement. Whilst each case must be decided on its own facts, an understanding of the background circumstances helps us to appreciate the general picture and the differences between the parties on specific issues. Having considered and otherwise dealt with a number of these claims, examined photographs of the area in general and of the individual streets and heard quite a few estate surveyors and witnesses involved, we believe we now have a fairly good idea of the locality and the resumption process.

3. The area affected by the scheme was essentially an old residential area. Most buildings were constructed immediately after the Second World War. All the buildings we have had to consider were not higher than six storeys and did not have a lift. The upper floors were mainly tenement flats with perhaps the odd business or other trade. We have heard evidence that some of the buildings were issued with occupation permits for "domestic use" from the ground floor upwards. But nearly all ground floor units in the area were used as shops, restaurants or workshops. Many of these enterprises and over-grown small operations were run by families who, as can be expected, are poor managers; the takings of the day went straight to meeting family, personal and trading expenses. Few, if any, had an accounting system; single entry records at best. And because it was a run down area, landlords and local residents were more tolerant of environmental, building and land use abuse. Most, if not all, ground floor units in the area had some sort of cockloft and an open yard which might be covered and protected from the elements by an overhead structure. Operators in the area would hardly be able to find somewhere else with comparatively cheap rent or purchase price and yet more storage or useful space. Moreover, the area was also partially industrial, with a significant number of factory buildings right outside the fringes of the plots affected by the Scheme. This means that the clientele for retailers and food businesses were not limited to local residents, but also factory workers who filled the streets in the area during lunch hour and for a period before and after work.

4. Of particular importance to note is Wang Cheung Street and Sui Lun Street. These two streets were cul-de-sacs parallel and immediately next to each other. Vehicular traffic could only enter and leave either street by Pau Chung Street. The two streets were effectively the parking lots and common compound for the shop premises on the ground level there. Vehicles holding scrap metal, raw materials and even cranes were stationed in these two streets as temporary storage or even make-shift workshop. Premises of a few hundred square feet area with restricted length and width on the ground level of these streets could spill their repair, production or manufacturing activities out into these streets from time to time and enjoyed use of much more space. The two streets, therefore, were of particular attraction to some "nuisance" trades, e.g. scrap dealers, garages, laundries, craft workshops, etc.

5. The Scheme was actually in the winds well before the resumption notices were issued in July 1992. Earlier, the Housing Society had begun to buy out some of the landlords and tenants in the area. After the resumption was gazetted in July 1992, the intention clearly was all the owners, occupiers and business operators would clear out in October 1992. Some did. Apparently, the landlords and tenants on the upper floors were dealt with first. The business operators on the ground level were given several extensions of time for moving out. Eviction was postponed first to the end of 1992, then to the beginning of 1993, then to September 1993 and eventually to April 1994. During all this time, the tenants were allowed to occupy and business operators permitted to trade (if there was still business) without having to pay rent. At first, claims for compensation were handled by the staff of the Housing Society which had a field office in situ. Later, processing of these claims was taken over by the Lands Department. It was in September 1993 that the Housing Society and the Lands Department sent staff to the ground floor businesses to take stock and inventory with the view to clearing them out then. Many of the claimants say that they handed over original documents and papers substantiating their claims to the Housing Society or the Lands Department during this period, hence they no longer have all the proof for their claims now. There is no doubt that a number of representatives of those affected by the Scheme had several meetings with officials of the Lands Department. They also sought help or mediation from local politicians and OMELCO. There were definitely letters passing between the parties, including offers of ex-gratia compensation. Some of the disputes were settled. Some claimants allege that they were given the impression that if they wanted to preserve their right to full compensation they had to cease trading, auction off their stock and not continue business in another locality. Others say that the ex-gratia payments they received on account from the Government were not enough to cover the costs of setting up elsewhere and the Government refused to lend them money, so that they were unable to re-locate. In any event, even if they could move to elsewhere, with higher rent, more restricted land use, different clientele and perhaps difficulties with labour supply, business would not be the same. But we hear from counsel for the Respondent that the Housing Society and the Lands Department had not advised the claimants to close their businesses altogether. We think there may be some misunderstanding there. In many cases, counsel for the Respondent says, the Housing Society and the Lands Department do not have the documents which the claimants allege they have handed over. We cannot determine who is right or wrong in fact in this respect; but, during the change over from a Housing Society operation to Lands Department processing, the possibility of some bureaucratic mix-up cannot be ruled out. In any event, it is pointless to argue and ponder over irretrievable papers now.

6. It was in April 1994 that the authorities managed to evict the remaining affected ones. There was a furore at the time, with angry words uttered, force displayed and the attention of the mass media attracted. The claims we have to deal with are mainly concerned with those who moved out in April 1994. Probably due to the confusion and urgency at the time to clear the remaining business operators, their stock and inventory were not checked again. Some operators were able to remove their stock as they planned, some were locked out first and then allowed to retrieve their possessions. Some claimants say that their business books and records were left and lost in the resumed premises as they left in a hurry or were forced out. Upon eviction, most of the business operators had their stock, plant and machinery transported to a place in the New Territories and auctioned off by one common auctioneer. It is now undisputed fact that there is no reliable inventory of the actual stock, plant and machinery sold by auction for each claimant. This is a problem we encounter in virtually every case before us.

7. Presently, the Applicant claims that there was total extinguishment of the business as a result of the resumption and he is entitled to compensation for business loss calculated under section 10(2)(d) of the Ordinance as -

"the amount of loss or damage to a business conducted by a claimant at the date of resumption on the land resumed or in any building erected thereon, due to the removal of the business from that land or building as a result of resumption."

In practical terms, if he succeeds, the Applicant is entitled to reimbursement that would restore him to the business position where it would be had there been no resumption. Compensation for the Applicant's interest in land is dealt with elsewhere and does not concern us here. The items in the Applicant's present claim are as follows:-

8. Despite advice given by several members of the Tribunal at various stages, the Applicant decided not to engage legal representatives or valuers of any speciality to help him to prepare his case. The Tribunal has also repeatedly emphasized in open court that the burden was on the Applicant to prove each and every element of his claim. During the trial, the Applicant was given ample opportunities to adduce more evidence, if any, and to canvass more effectively for his case. Whilst additional materials, more effective advocacy and expert assistance for the Applicant would be desirable, and the same can be said for all cases arising from the same resumption exercise that the Tribunal has heard so far, the Tribunal is satisfied that there are sufficient facts and materials for the Tribunal to determine the claim.

9. Miss Fung, counsel for the Respondent, contends that, in the first place, no compensation is due to the Applicant because the subject premises were used for industrial purpose in breach of the terms of the relevant Crown lease. In the second place, even if compensation is payable, it should be assessed on the basis of re-location of the business. And, finally, the quantum for each item claimed is disputed. The Respondent's assessment of the losses suffered by the Applicant, assuming compensation is payable, was revised several times during the course of these proceedings. Eventually, in final submission, the Respondent contends that compensation, if payable to the Applicant, should be as follows:-

(a) If on total extinguishment basis

(b) If on relocation of business basis

10. We now consider each of the issues and items of claim under separate headings.

Entitlement to compensation

11. According to section 12(b) of the Ordinance, no compensation shall be given in respect of any use of the land which is not in accordance with the terms of the Crown lease under which the land is held. Clause 4 of the Conditions of Re-Grant relating to the land where quite a number of buildings, in one of which the subject premises were situated, stood provides that:-

"The lot shall not be used for industrial purpose and no factory building shall be erected thereon."

Miss Fung for the Respondent relies on Cavendish Property Development Ltd v. Attorney General [1988] HKC 480, Horwitz v. Rowson [1960] 1 W.L.R. 803 and Mexx Consolidated (Far East) Ltd. v. Attorney General [1987] HKLR 1210 for the meaning of "industrial purpose". The effect of these authorities is that industrial purposes involves a manufacturing process and associated activities. The business, according to the Applicant himself, made concrete pillar moulds, metal frames and tanks, mainly in iron or stainless steel. The business, so the argument goes, was using the subject premises for industrial purpose in breach of the grant by the Crown and is therefore not entitled to compensation.

12. We accept, for argument's sake, that the business was using the subject premises for industrial purpose. But the contra proferentum rule of interpretation applies to the Conditions of Re-Grant prepared by the Crown just as it applies to a restrictive covenant in a lease by an ordinary landlord. In Cook v. Shoesmith [1951] 1 K.B. 752, the tenant agreed in writing "not to sublet". The Court of Appeal unanimously held that that undertaking was not broken by subletting part of the suit premises. Somervell L.J. said in his judgment,

"I think that the words 'to sublet' in this lease must have an object and that the only possible object that they can be given is 'the above house' - 'I further agree not to sublet the 'above house'. I do not think that the words 'not to sublet' can be construed as meaning 'I further agree not to sublet the above 'house or any part of it, or make any sublease in relation to it': all that can be implied is 'the above house'. I think that this cases falls under the principle stated by Lord Elden in Church v. Brown, that a sublease of part of premises is not a breach of the covenant against subletting them. The appeal should be dismissed."

In this case, the covenant is the "lot shall not be used for industrial purpose" The lot in fact embraced several buildings none of which can be classified as factory building. The building where the subject premises were situated had residential flats on the upper floors. The only industrial use was found on the ground floor unit. The Applicant, as registered owner of a ground floor unit, had only a share of the interest in a part of the lot in common with owners of other parts of the same building and exclusive possession and use of his own unit. We cannot say that the business used a part of the lot for industrial purpose because he did not own any distinct, identifiable part of the lot. Even if the business can be regarded as using a part of the lot for industrial purpose, adopting the reason and logic re-affirmed in Cook v. Shoesmith, Clause 4 of the Conditions of Re-Grant does not prohibit using part of the lot for industrial purpose. The Respondent's contention fails.

Total Extinguishment

13. The Respondent has, in fact, in other related cases challenged the parties in those cases their claim for loss of goodwill based on total extinguishment of business. The same issue is raised in this case. We have pointed out in other cases that goodwill consists of the elements of personality and location. In some cases, the element of location may be far more important than personality. The most charming proprietor would not be able to generate business at a location where there is no demand for the goods or services his business provides. Once it re-locates, the business is in another catchment area where even if the same kind of clientele is there the competition scenario may be quite different. Moreover, the costs for relocation should not be ignored. Resumption albeit for the public good is a tortious interference with the rights and interests of legitimate property owners and business operators. A tortfeaser is obliged to compensate even if the victim happens to have a thin skull. It would not be fair to expect every business to have standby financial resources for re-location at any time the authorities see fit to resume the site on which the business was operating. Nor can we assume that an operator may readily take over a very similar undertaking in another area. We also consider it a truism in life that the operator of a profitable business is most unlikely to fold his business before giving careful consideration to and making serious efforts for relocation so as to continue to reap the profits of an established undertaking.

14. Having considered all the evidence, and taking into account all factors and circumstances, we accept that the Applicant could not be reasonably expected to carry on the business by relocation. In the premises, we treat this case as one for total extinguishment.

Goodwill

15. A classic definition of business goodwill can be found in the formidable work - Land Compensation and Valuation Law in Hong Kong by H.H. Judge Cruden at pp. 79-80 as follows:-

"Goodwill is the value of that element of profitability which arises from either one of two factors or a combination of both. Those factors are first, the specific business connections in respect of the resumed premises and secondly, those due to the personality of the owner. In some cases a resumption may only affect or extinguish the former species of goodwill. The personal goodwill of the owner may only be partially affected or not affected at all if the business can promptly be relocated to a new suitable site." (Page 16 of the judgment in Callwin International Electric Co. Ltd. v. Director of Engineering Development MTR 3 of 1984).

This definition must be properly understood. Whilst goodwill is often valued by reference to profits, it is profitability on account of shop location and personal connection that is the true measure of goodwill. In Director of Buildings and Lands v. Shun Fung Ironworks Ltd. [1995] 1 HKC 417, the Judicial Committee of the Privy Council at page 436 observed that:-

"However, this must not lead the tribunal into the error of equating the amount of a claimant's loss with the price he could obtain if he sought to sell the future profit stream to an outside commercial investor. Even on the willing seller basis, a prudent landowner running his own business might be prepared to pay more to keep his land and business and the expected profits than would an outside investor to acquire them. He might be prepared to accept a lower rate of return than an outsider who has no personal links in the business. In appropriate circumstances a tribunal may properly recognize this and make a modest allowance accordingly."

16. In Callwin International Electric Co. Ltd. v. Director of Engineering Development MTR 3 of 1984, at page 17, the Tribunal stated that:-

"There are several methods of valuing goodwill and each has its advantages and disadvantages. Some methods are more appropriate for certain cases than others. The selection of a particular method will often depend on the factual situation. At times it may be helpful to use more than one method so that each may be a check on the goodwill figure arrived at by the other. This is a complex area of valuation."

The Tribunal also observed that:-

"Any assessment of goodwill includes an element of arbitrariness for it involves projections into the future often on the basis of minimal information of even existing factors. The employment of scientific methods should tend to improve the soundness of the ultimate assessment. However, in most cases it will merely narrow the range within which a realistic assessment may be made. In making a final assessment within that range experience and at times even intuition will be of importance." (Page 16 of the judgment and quoted in Land Compensation and Valuation Law in Hong Kong by H.H. Judge Cruden at page 81.)

17. The method we adopt is the one explained in Land Compensation and Valuation Law in Hong Kong by H.H. Judge Cruden at pp. 80-81 and which we have applied in other cases arising from the Scheme. First, we establish the normal profit trends of the business before resumption. Conceivably, the reported profits of the business, the rental value of the premises at which the business is conducted or the wages and salary costs of the business may be used as basis for this purpose because each of them may somewhat relate to the profitability of the business. Once the annual profit trend of the business has been arrived at, it must be related by multiplication to the anticipated future life of the business, had the business premises not been resumed. Then the product is discounted for the fact that the business operator will have immediately available for investment or other use the sum representing capitalized profits.

18. The business was not a mass production factory but produced moulds and frames for civil engineering use according to order. The Applicant relies on the Tribunal to assess his loss of goodwill. He says he no longer has the trading accounts and books of the business but produced a bundle of bank account statements relating to the business. Mr. Sham, estate surveyor called as expert for the Respondent, suggests using figures of the taxable profits of the business to determine goodwill. The taxable profits of the business were $310,000 for 1990/91, for 1991/92 $418,125, for 1992/93 $810,650 and for 1993/94 $535,883.

Mr. Lau takes the normal profits for the year 1993-94 as $600,000, then $8,700 is deducted therefrom for interest on capital (calculated as 8.5% interest on the value of the trading stock, machinery and equipment estimated by experts of the Respondent at $102,360) giving an annual profit figure of $591,300. This approach is endorsed by counsel for the Respondent. It is also the Respondent's case that a multiplier of one should be applied because the business was very risky when it was carried on in premises for which the occupation permit specified domestic use and the Applicant unlawfully utilized the street area for the business.

19. With regard to the occupation permit, it was issued in 1955 and covered "fourteen Chinese houses at Wang Cheung Street" when clearly the ground floor units of those "Chinese houses" were all shops. In evidence, Mr. Sham for the Respondent observed that the issuing authorities at the time might not pay much attention to details and noted that the Rating and Valuation Department had all along treated the units on the ground floor as commercial properties. In the circumstances, we hold that the Applicant's entitlement to compensation should not suffer on account of some careless bureaucrat named Bottomley who issued the permit without regard to the true position. As to the use of the street by the business, it was not per se unlawful unless it caused obstruction. We have no proof that there was obstruction. Even if there was obstruction, prosecution would have brought about fines as additional costs of the business; prosecution would not result in the closure of the business as asserted by the Respondent's expert.

20. We have discussed in WONG Sau Hing, LEE Wing Tau, LI Sai Kuen and LEE Sai Ho trading as Shing Kee Metal Dealer v. Director of Lands, CLR No. 20 of 1994 the problem with interest on capital in calculating goodwill. We recall, again, Callwin International Electric Co. Ltd. v. Director of Engineering Development MTR 3 of 1984 where the Tribunal stated:-

"The difficulty Director of Public Works v. Leung Sze creates is that the Lands Tribunal then went on to apply interest to 'tangible assets' and not to capital. The tangible assets were listed as stock, fittings and fixtures. The business was conducted on a small scale by a sole proprietor with rudimentary accounts. The report does not refer to any fixed liabilities. On the particular facts it may be that the items listed as tangible assets were considered to represent, in kind, the capital of the business. If that is so it is possible to reconcile the decision with established goodwill principles although the reference to tangible assets instead of capital is unfortunate.

In a larger business where liabilities as well as assets exist, the sub-stitution of tangible assets for capital would not only be misleading but would result in the miscalculation of goodwill. Tangible assets may be contrasted with intangible assets. Tangible assets include cash, stock, fittings and furniture. Intangible assets include goodwill. However, neither species of asset is relevant to the deduction of interest for the purpose of assessing goodwill. In a goodwill calculation interest should only be calculated on capital." (Page 18 of the judgment.)

This led to the conclusion, at page 19 of the judgment, that the proper approach was "to calculate interest on capital - in the wider sense - actually invested and not on tangible assets" (Emphasis added).

21. Nonetheless, we accept the observation in Mr. Sham's report, at Page 1 of Exhibit R8, that the business was enjoying a gradual rise in profitability at an annual rate of about 25% so that the normal profits for the year 1993/94 should be around $600,000. We note also that the higher profits for the year 1992/93 was exceptional as the Applicant says there was a boom for the general construction industry for that year and then decline the following year. In the premises, the profits of the business over the years should not be averaged. We take the last projected annual profits of $600,000 as the multiplicand. Since the subject premises were owned by the Applicant, we adopt a multiplier of 5 as we have done in similar cases. The product must then be discounted for interest on advance cash payment. We generally apply an interest rate of 9% to calculate deferred reversionary interest, so we use the same rate for discount on advanced payment. The relevant discount factor for 5 years at 9% is 3.8897, say 3.9.

22. Accordingly, we calculate the goodwill of the business at $0.6 million x 3.9 = $2.34 million.

Loss of profits for 1993-1994

23. It has been accepted that the projected annual profits for 1993-1994 should be $600,000. The actual profits recorded for that year is $535,883. The difference between the two is $600,000 - $535,883 = $64,117. Accordingly, we determine loss of profits for 1993-1994 at $65,000.

Machinery and equipment

24. The business had quite a number of machines, equipment and tools. In September, 1993, officers of the Lands Department went to the subject premises and made a record of the machinery, equipment and tools held by the business at that time. There are altogether 30 items of them in all; see the list in Exhibit R4. The Applicant claims for losses suffered as a result of forced sale of these items by auction in April 1994 for a gross sum of $200,000. The inventory is not disputed by the Applicant. At one stage during the course of the trial, counsel for the Respondent doubted the existence of one goods van in the inventory list. On the basis of registration documents relating to the vehicle subsequently submitted by the Applicant, we find that there was a misunderstanding due to the wrong registration mark being cited for that vehicle. Counsel for the Respondent also contends that no compensation is payable for the two vehicles and two excavators in the inventory list because the Applicant should have sold them in the second hand market before the auction. We are not sure how much more those items would have fetched in the second hand market. In any event, we believe the Applicant, like many business operators in the Scheme, was rightly or wrongly led to believe that he could only dispose of his machinery, equipment, tools and stock through public auction. We do not think he should be penalized for that.

25. It is well established law that since the machinery, equipment and tools were disposed of in April 1994, the Applicant is entitled to compensation being the value of the machinery, equipment and tools to him at the time of sale less the auction proceeds he has received. In our view, the value to the Applicant in April 1994 is the price paid by the Applicant at various times previously to obtain the machinery, equipment and tools less depreciation for wear and tear. Alternatively, the value should be the cost to obtain from the open market the same quantity and quality the Applicant had in April 1994. In either case, it is the replacement value. The Applicant puts the value of his machinery, equipment and tools at $1,402,220. But this was in fact the total original purchase cost to him. So we reject the Applicant's own valuation.

26. The evidence of Mr. Shadbolt indicates that his valuation exercise was hampered by lack of material particulars or information, such as the make and power of some of the machines or equipment. Even the Applicant himself was not quite sure of some of the particulars. And in some cases, there is clear possibility that Mr. Shadbolt may have undervalued. Take for instance item No. 8, Mr Shadbolt assumed that it was Chinese made whereas the Applicant is adamant that it was a Swiss made drilling machine. The price of Swiss machines, we know as general knowledge, is much higher than comparable Chinese ones. For item 1, Mr. Shadbolt treated it as an old machine of lesser value because he saw from photos that the machine was belt driven; whereas the Applicant is able to produce a catalogue showing new machines, also belt driven, now being offerred for sale, the implication being that belt driven machines can be of relatively recent purchase and hence worth more. In the premises, we find it unsafe to rely on Mr. Shadbolt's valuation. We hasten to add that no reflection on the competence of Mr. Shadbolt is intended.

27. In Callwin International Electric Co. Ltd. v. Director of Engineering Development MTR 3 of 1984, the Tribunal, comprised of H.H. Judge Cruden and Mr. Phillips, held that auction price is an acceptable basis for determining loss for purposes akin to section 10(2)(d) of the Ordinance. There, the trading stock of the applicant company was sold by auction in large lots to a single purchaser for the total of $1,410,000 which was only 27.4% of the agreed gross value of the entire stock. The Tribunal held that that was a reasonable auction price. It is common experience, also supported by expert evidence in the cases we have heard, that goods on auction should fetch 20% to 80% of the ordinary market value. In WONG Sau Hing, LEE Wing Tau, LI Sai Kuen and LEE Sai Ho trading as Shing Kee Metal Dealer v. Director of Lands, CLR No. 20 of 1994, taking a broad approach, we believed the price paid by the successful bidder in the auction in April 1994 reflects the variety and quantity of the trading stock, machinery and equipment on auction and took the auction price as the equivalent of 28.5% of the market value of the trading stock, machinery and equipment in that case. Hence we multiplied the auction price by a factor of 3.5 to obtain the market value for that case. We think it is also appropriate to do the same to obtain the market value for the machinery, equipment and tools in this case.

28. In the premises, we place the value of the machinery, equipment and tools of the business at $200,000 x 3.5 = $700,000 and determine compensation payable to the Applicant for loss due to forced sale of the machinery, equipment and tools at $(700,000 - 200,000) = $500,000.

Fixtures and Fittings

29. The Applicant puts the valuation of his fixtures and fittings, including decoration and floor re-inforcement costs, at $200,000. It is only an estimate and not supported by any document. One cannot see from photographs of the subject premises any costly decoration. In any event, a substantial depreciation is justified because the Applicant had been using the subject premises since 1989.

30. Having considered all factors and circumstances including the Applicant's evidence, we accept Mr. Sham's estimate and determine compensation under this head at $25,000.

Miscellaneous Items

31. The Applicant further claims transportation fees for auction at $80,000, auction exhibition ground and security charges at $28,000 and auctioneers' charges at $19,160.00. The claims for transportation fees and auction exhibition ground and security charges are not supported by receipts. There cannot be any serious dispute over the auctioneers' charges; in fact, the Respondent agrees to pay $19,224.

32. However, the Respondent does not accept the amounts claimed for transportation fees and auction exhibition ground and security charges. Mr. Sham in his report Exhibit R8 at page 4 estimates the costs for transportation at $10,000 and those for exhibition ground and security at $14,000. These workings are based on certain assumptions and glossed over figures which we find difficult to accept. We gather from evidence in related cases we have heard and from the Applicant that the auction exhibition ground and security charges at $28,000 are in fact an apportionment of a much larger amount which all the business operators affected by the Scheme and had to auction their goods had to share. We have no reason to doubt this and would allow the amount as claimed. As for transportation charges, we seriously doubt that they were as high as the Applicant claims. There were not that many items to move. We think the best we can do is to allow an amount three times that estimated by Mr. Sham.

33. In summary, compensation for the following items is justified:-

The Order

34. Accordingly, we determine compensation for the Applicant at $3,010,000. Leave is reserved to apply for the rate of interest, if not agreed, to be determined under section 17(3A) of the Ordinance. There is an order nisi that the Respondent shall pay the Applicant's expenses incurred in prosecuting his claim which we assess at $12,000 to be made absolute unless application is made, within 21 days from the date of handing down of this judgment, to the contrary. Liberty to apply is also reserved for ancillary and consequential matters.