ABLE LUCK DEVELOPMENT LTD AND OTHERS v. PUBLIC GLOBAL INVESTMETS LTD AND OTHERS

LDCS7000/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO. 7000 OF 2014

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J U D G M E N T

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A. Background

1.  This is an application for compulsory sale of all the undivided shares in Kun Tong Inland Lot No 3 (“the Lot”) for the purpose of redevelopment pursuant to Section 3(1) of the Land (Compulsory Sale for Redevelopment) Ordinance, Cap. 545 (“the Ordinance”).

2.  Currently erected on the Lot is a 15-storey industrial building which is known as Yip Fat Factory Building Phase 2 (“the Building”) with the address of 75 Hoi Yuen Road, Kwun Tong, Kowloon. Hoi Yuen Road is a major local distributor traversing across the business area of the Kwun Tong district from Kwun Tong Road towards the waterfront. Kwun Tong Road is a major district distributor which separates this business area from the new town centre under construction together with the predominantly residential area to the north-east.

3.  The Building is as a whole served by 3 common staircases, 2 cargo lifts and one passenger lift. There are also two common staircases abutting Hoi Yuen Road which serve only from the ground floor (“G/F”) up to the top podium floor (ie 2/F).

4.  According to an occupation permit (“OP”) issued on 1 November 1978, the Building is for non-domestic use. Carpark and workshop are permitted on G/F while the 1/F – 14/F are permitted to be used as workshops. Indeed, the Government lease in respect of the Lot as modified by a Deed of Variation dated 12 February 1979 restricts development of the Lot to “a factory or factories or a warehouse or warehouses or both and ancillary offices and such canteen and other welfare facilities (but excluding residential quarters) for workmen employed ……”notwithstanding the Lot is now within an area zoned “Other Specified Uses annotated (Business)” on the Kwun Tong (South) Outline Zoning Plan No S/K14S/20 dated 21 July 2015. Under this zoning designation, the area which was previously an industrial area is intended primarily for general business uses. Only non-polluting industrial uses would be permitted for intending industrial redevelopment. For other industrial uses, planning permission would be required.

5.  Furthermore, Unit E on 1/F was approved for canteen use by virtue of the alterations and additions (A&A) plan approved on 31 December 1986 by the Building Authority though it is currently in godown use.

6.  On the other hand, Workshop Unit H on 14/F is subject to the alterations and additions (A&A) plan approved on 18 November 1986 to allow A&A works for changing an opening for connection to the adjoining building, ie Yip Fat Factory Building, Phase 1. During our inspection, such opening has already been reverted back to a partition wall.

7.  By reference to the Land Registry records as at 5 February 2014, there are 1,000 equal and undivided shares of and in the Lot with the following allocation:

Carparking Spaces (“CPS”) on G/F each with 1 equal undivided share:

Unit No	Registered Owner	Unit No	Registered Owner	Unit No	Registered Owner
1	R13	9	A1	6A	A6
2	A1	10	A1	7A	A7
3	A1	11	A1	8A	A4
4	A1	1A	R11	9A	A8
5	A1	2A	A5	10A	A9
6	R9	3A	A2	11A	A1
7	A1	4A	R14
8	A1	5A	A1

Workshops with corresponding equal undivided shares:

Floor	Unit	Registered Owner	Undivided Share	Floor	Unit	Registered Owner	Undivided Share
G/F	E	A1	100	8/F	E	A1	14
1/F	E	A1	30		F	R8	14
	F*	A1	30		G	A1	14
2/F	E	R1	24		H	A1	14
	F	A1	24	9/F	E	A1	14
	G	R2	17		F	R9	14
	H	A2	17		G	A1	14
3/F	E	A1	24		H	A1	14
	F	A1	24	10/F	E	A1	14
	G	R3	17		F	A1	14
	H	A10	17		G	A1	14
4/F	E	A1	24		H	R10	14
	F	A1	24	11/F	E	A1	14
	G	A3	17		F	R12	14
	H	A3	17		G	A1	14
5/F	E*	A1	16		H	A1	14
	F*	A1	16	12/F	E	A1	14
	G*	A1	14		F	A1	14
	H*	A4	14		G	A1	14
6/F	E	A1	14		H	A1	14
	F	R5	14	13/F	E	A1	14
	G	A1	14		F	A1	14
	H	A1	14		G	A1	14
7/F	E	A4	14		H	A1	14
	F	R6	14	14/F	E*	A1	16
	G	A1	14		F*	A1	16
	H	R7	14		G*	A1	16
					H*	A1	16

* The unit includes Flat Roof or Roof thereof

** The prefix “A” and “R” denotes the applicant(s) and respondent(s) respectively and the numerical that follows denotes the order of the applicant(s) or respondent(s) as the case may be.

8.  Thus, at the time of the application dated 23 May 2014 (“the Application”), the applicants had 823 equal and undivided shares which were equal to 82.3% of the Lot. Now following further purchases from some of the respondents[1], the applicants altogether own 875 equal and undivided shares ie 87.5% of the Lot. They are represented by Mr Edward Chan SC and Mr Y C Mok (“Mr Mok”), instructed by Messrs Edmund Cheung & Co in the present proceedings.

9.  As regards the outstanding respondents, they are R1 (represented by Mr Paul Wong, instructed by Messrs Wong & Partners) and R5-12 & R14 (represented by Ms Audrey Eu SC (“Ms Eu”) and Mr Julian Chan, instructed by Messrs Ho, Tse & Wai), collectively to be referred to as “RS”:

Respondents	Undivided Shares	Corresponding Unit
R1	24	Unit E, 2/F
R5	14	Unit F, 6/F
R6	14	Unit F, 7/F
R7	14	Unit H, 7/F
R8	14	Unit F, 8/F
R9	15	Unit F, 9/F and CPS 6
R10	14	Unit H, 10/F
R11	1	CPS 1A
R12	14	Unit F, 11/F
R14	1	CPS 4A

10.  In gist, the RS are disputing

(a) justification of redevelopment with regard to age or state of repair of the Building on the Lot,

(b) reasonable steps having been taken by the applicants to acquire their undivided shares in the Lot,

(c) the existing use value (“EUV”) of the corresponding units, and

(d) the redevelopment value (“RDV”) of the Lot.

B. Section 3 of the Ordinance – Ownership of the applicants

11.  Whereas section 3(1) of the Ordinance requires the applicants to have not less than 90% of the undivided shares in a lot before they can make an application, section 3(5) of the Ordinance provides that the Chief Executive in Council may, by notice in the Gazette, specify a percentage lower than the percentage mentioned in section 3(1) in respect of a lot belonging to a class of lots specified in the notice.

12.  The Land (Compulsory Sale for Redevelopment (Specification of Lower Percentage) Notice was gazetted on 22 January 2010 and came into operation on 1 April 2010 (“the Notice”). Section 3 of the Notice lowered the threshold for compulsory sale in respect of the classes of lots specified in the Notice from 90% to 80%. Those classes of lots include:

“a lot that is not located within an industrial zone and each of the buildings erected on the lot—

(i) is an industrial building; and

(ii) was issued with an occupation permit at least 30 years before the relevant date (ie the date of the application under the Ordinance)”.

13.  As mentioned, the OP for the Building was issued on 1 November 1978 (ie not less than 30 years before the date of the Application) and the Lot is not located within an industrial zone. The Notice is applicable and the threshold percentage should be 80%.

14.  At the time of the filing of the Application, the applicants owned 82.3% of the undivided shares of the Lot. We agree therefore that the applicants were entitled to make the Application under section 3(2)(b) of the Ordinance.

C.   The Evidence

15.  For the purpose of the present proceedings, the applicants and the RS have produced the following expert reports:

Structural Assessment

(a)   Expert report dated 24 June 2016[2] by Mr K S So (“Mr So”);

(b)   Rebuttal report dated 7 October 2016[3] by Mr NG Ka Wai (“Mr Ng”);

Condition Survey

(a)   Expert report dated 28 June 2016[4] by Mr Benson Wong Sai-ning (“Mr Wong”);

(b)   Rebuttal report dated 7 October 2016[5] by Mr LAM Wai-ho (“Mr Lam”) and supplemented by Mr Ng;

Valuation

(a)   Valuation report dated 22 May 2014 attached to the Application prepared by Mr Alnwick C H Chan (“Mr A Chan”) containing the assessments of the values of all units (which are conveniently termed as the existing use values, the “EUV” of all units) in the Building on the Lot as at 25 February 2014[6];

(b)   Valuation report dated 19 July 2016 on the EUV of the Building as at 25 February 2014by Mr Patrick Lai (“Mr P Lai”) [7];

(c)   Supplemental Report dated 19 July 2016 on EUV as at 25 February 2014 and redevelopment value (“RDV”) of the Lot as at 1 July 2016 by Mr A Chan[8];

(d)   Rebuttal Report dated 15 August 2016 by Mr A Chan[9];

(e)   Rebuttal Report dated 12 September 2016 with additional EUV assessments and RDV as at 1 July 2016 by Mr P Lai[10];

(f)   Further Rebuttal Report dated 4 October 2016 by Mr A Chan[11];

(g)   Report dated 11 November 2016 on RDV as at 1 November 2016 by Mr P Lai[12].

(h)   Supplemental Report dated 14 November 2016 on RDV as at 1 November 2016 by Mr A Chan[13].

16.  Notwithstanding the above, Mr A Chan and Mr P Lai have prepared a joint expert statement dated 9 November 2016[14] setting out their areas of agreement and disagreement. More particularly, the two experts agree the floor areas of the various units in the Building, their internal conditions, the EUV of the CPS[15] etc.

17.  Furthermore, Mr A Chan and Mr P Lai have prepared a joint expert statement dated 23 November 2016[16] setting out their areas of agreement and disagreement on the parameters leading to the assessment of the RDV as at 1 November 2016.

18.  Thereafter, Mr A Chan and Mr P Lai had revised their valuations on the EUV assessments and RDV which were produced at trial as Exhibit A12 dated 19 December 2016 and Exhibit R8 dated 9 March 2017 respectively though Mr A Chan saw fit to revise his assessments at the beginning of his evidence on 13 March 2017 as Exhibit A8.

D.   Existing use values (“EUV”) of all units as at 25 February 2014

19.  Under section 4(1)(a)(i), if there is a dispute between the parties on the EUV of the units in the Building on the Lot, the Tribunal has to determine the values. Thus, the first task before us is to determine the dispute on EUV as at 25 February 2014 in case an order for sale be granted.

20.  Mr A Chan and Mr P Lai have agreed that the EUV of the carparking spaces in the Building as follows:

CPS No	EUV as at 25 February 2014	CPS No	EUV as at 25 February 2014
1	$941,000*	1A	$1,748,000
2	$894,000	2A	$1,407,000
3	$917,000	3A	$1,407,000
4	$894,000	4A	$1,407,000
5	$941,000	5A	$1,407,000
6	$941,000	6A	$1,407,000
7	$941,000	7A	$1,407,000
8	$941,000	8A	$1,407,000
9	$941,000	9A	$1,407,000
10	$941,000	10A	$1,407,000
11	$941,000	11A	$1,407,000

* only if a value is applicable

21.  On the other hand, Mr A Chan and Mr P Lai arrived at the following EUV assessments of the various workshop units in the Buildingas at 25 February 2014:

Unit Rate/m2	Mr A Chan				Mr P Lai
	Report of  May 2014	Report of  July 2016	Exhibit A12 dated 19 Dec 2016	Exhibit A8 dated 13 Mar 2017	Report of July 2016	Exhibit R8 dated 9 Mar 2017
G/F	$76,000	$76,000	$78,000	$100,000	$62,100	$61,100
U/F	$53,000	$52,000	$52,000	$52,000	$61,200	$61,800

22.  As regards the EUV for the G/F Workshop, the two experts rely on the following 5 comparables:

Comp No*	Address	OP Date	Transaction Date	Sale Price	Saleable Area (sq m)	Frontage (m)	Headroom (m)	Unit Price (/sq m)
KF1/AA1	Factory A, G/F, and Car Parking Space Nos 14 & 15, King Yip Factory Building, 59 King Yip Street	1977	13 Jan 14	$50,266,000 (with values of carparking spaces excluded)	405.50	11.07	4.75	$123,961
KF2/AA2	Unit 3, G/F, Shing Yip Industrial Building, 19-21 Shing Yip Street	1987	8 Dec 13	$31,838,000	410.31	42.01	3.95	$77,595
KF3/AA3	Unit F2, G/F, Kwun Tong Industrial Centre Block 2, 460-470 Kwun Tong Road	1979	4 Dec 13	$7,000,000	86.43	6.23	4.88	$80,990
KF4	Unit 4, G/F, Century Centre, 44-46 Hung To Road	1983	6 Sep 13	$28,000,000	228.74	5.66	3.14	$122,410
KF5/AA4	Unit A, G/F, Good Year Industrial Building, 119-121 How Ming Street	1978	29 Jul 13	$18,000,000	92.81	8.46	2.74	$193,945

* The prefix “KF” denotes the comparables adopted by Mr A Chan and the prefix “AA” denotes the comparables adopted by Mr P Lai.

23.  Further, the two experts have the following agreements/disagreements on the adjustment factors applicable:[17]

Adjustment factors	Agreements/disagreements
Time	Both agree that the Private Flatted Factories Price Index published by the Rating and Valuation Department (“RVD Price Index”) is applicable.
Layout	Mr P Lai considers this factor not relevant since both the G/F workshop in the Building and the comparables are of regular layout. Mr A Chan considers this factor should be adopted in case of irregular layout in the comparables.
Size	While both experts agree the adjustment at 1% for every 20 sq m, they depart on the approaches. Mr A Chan adjusts the size on threshold basis (eg no adjustment for 19 sq m difference) whereas Mr P Lai adjusts the size on pro-rata basis.
Age	Both agree at 0.5% for every 1 year difference.
Exposure	Mr A Chan applies -20% for comparable with street exposure but Mr P Lai considers this factor not applicable for G/F workshop.
Accessibility	Mr A Chan considers workshops in Kwun Tong are indifferent to this factor but Mr P Lai is of the opinion that this factor refers to the convenience in accessing the corresponding workshops in the buildings; eg workshops facing street would have better accessibility when compared with workshops located away from the street. He adopts -20% for Superior, -10% a little superior.
Headroom	While both experts agree the adjustment at 2% for every 1 m difference, they depart on the approaches. Mr A Chan adjusts the headroom on threshold basis (eg no adjustment for 0.99 m difference) whereas Mr P Lai adjusts the headroom on pro-rata basis.
Internal Condition	They agree at:-   +2% for Good   0% for Fair   -2% for Poor   -4% for Very Poor,   assuming all comparables in fair conditions.
Location	They cannot agree adjustments for comparables KF2/AA2 and KF5/ AA4.

D1.  EUV for G/F as at 25 February 2014

24.  Thus Mr A Chan and Mr P Lai had made the following adjustments to their comparables:

Comp No	Unit Price (/m2)	Adjustments									Adjusted Unit Price (/m2)
		Time	Location	Internal Condition	Head-room	Age	Size	Access-ibility	Exposure	Total
KF1	$123,931	0.4%	5.0%	-2.0%	-2.0%	0.5%	-10%*	0%	-20%	-28.1%	$89,106
AA1	$123,961	0.4%	0.0%	-2.0%	-3.4%	0.5%	-15.8%	-20%	0%	-40.3%	$74,005
KF2	$77,595	0.3%	0%	-2.0%	-2.0%	-4.5%	-10%*	0%	0%	-18.2%	$63,473
AA2		0.3%	10.0%	-2.0%	-1.8%	-4.5%	-15.6%	0%	0%	-13.6%	$67,042
KF3	$80,990	0.3%	0%	-2.0%	-4.0%	-0.5%	-10%*	0%	0%	-16.2%	$67,870
AA3		0.3%	0%	-2.0%	-3.7%	-0.5%	-31.8%	-10%	0%	-47.7%	$42,358
KF4	$122,410	-2.9%	10.0%	-2.0%	0%	-2.5%	-10%*	0%	-20%	-27.4%	$88,870
KF5	$193,945	-2.8%	0%	-2.0%	1.0%	0%	-10%*	0%	0%	-13.8%	$167,181
AA4		-2.8%	5.0%	-2.0%	0.6%	0%	-31.5%	-10%	0%	-40.7%	$115,009

* Mr A Chan however capped the adjustment for headroom at +/-4% and that for size at +/-10%.

25.  Apart from applying a cap to the adjustments for headroom and size at +/-4% and +/-10% respectively, in his latest revision in Exhibit A8, Mr A Chan discarded his comparables KF1 and KF4 on the ground that these two comparables have direct street exposure whereas the single ground floor unit in the Building, Unit E, is situated at the rear of G/F without any street exposure.

26.  In a usual valuation exercise, this might be a proper approach to be adopted in order to compare like with like but in the captioned case, in view of the limited number of reliable comparables available (as we shall see), we prefer to include them as Mr A Chan initially did. This is particularly the case when Mr A Chan saw fit to adopt an adjustment of -20% for exposure and Mr P Lai incidentally adopts a similar adjustment of -20% for accessibility for KF1/AA1 because accessibility of Unit E “should be inferior compared with ground floor workshops facing street/lane or near entrance of industrial buildings.”[18] Indeed, Mr A Chan conceded in his Rebuttal Report dated 15 August 2016 that he believed this factor of adjustment on accessibility is the same as his adjustment for exposure[19]. In this regard, we consider the two adjustment factors be the same though with different terminology by the two valuation experts.

27.  We further agree with the -10% for accessibility as proposed by Mr P Lai for comparables KF3/AA3 and KF5/AA4.

28.  The other major difference in opinion between Mr A Chan and Mr P Lai is the location adjustment. In his rebuttal report of 12 September 2017, Mr P Lai had the following to say:[20]

“Location

3.12 The Existing Building is situated close to the Kwun Tong MTR. I consider it is situated in a relatively better location relative to the G/F comparables in terms of convenience for workers and visitors coming to the G/F workshop.

3.13 Other than the convenience for workers and visitors using the MTR, convenience for goods vehicles and visitors/workers coming by cars to the Existing Building is also an essential factor in the consideration of the location differences between the Existing Building and the buildings within which the G/F comparables are located.

3.14 G/F comparable 2 is situated on Shing Yip Street within walking distance from the Existing Building. I note that Shing Yip Street could only allow one way traffic. Vehicular access to Shing Yip Street could only be gained from King Yip Street which is situated at the southern side of Shing Yip Street at a distance from Hoi Yuen Road.

3.15 Based on my observation, goods vehicles and private cars have been habitually parked by the sides of the two pavements most times of the day leaving only one central lane for the passage of passing traffic along Shing Yip Street. As a result, traffic congestion is a common phenomenon and vehicular access to the industrial buildings along Shing Yip Street has become very inconvenient and difficult…….

…….

3.20 Similar observation is noted on that section of How Ming Street in front of G/F comparable 5 where goods vehicles and private cars have also been habitually parked by the sides of the two pavements most times of the day leaving only one central lane for the passage of passing traffic along How Ming Street.”

29.  In this regard, Mr A Chan took the view, on the one hand that street parking off the comparables from the two streets is an advantage that should offset any inconvenience of vehicular traffic congestion at these two streets, and on the other hand, the advantage of uninterrupted traffic in the Building would be offset by the disadvantage of the lack of street parking in the vicinity of the Building. Further, traffic congestion is a problem in the whole of Kwun Tong. He maintained that there should be no adjustment for location of the comparables from these two streets[21].

30.  We agree with the general observation of Mr P Lai as well as his quantum of adjustments for location save that for KF1/AA1 which we consider +10% more appropriate.  We do not agree with Mr A Chan that street parking in front of KF2/AA2 or KF5/AA5, for instance, would provide many advantages as claimed by him; street parking is indeed the cause of traffic congestion. We agree with Mr P Lai’s view that street parking should not be taken into consideration in adjustment for location. We further do not agree with Mr A Chan that “the location of G/F Workshop Comparable 2 and 5 are very similar to the Property in terms of distance from MTR station”[22]. They differ in terms of both the traffic routes and the proximity to Hoi Yuen Road; during traffic congestion, we agree with Mr P Lai that additional driving distance of 500m would add significant travel time and inconvenience.

31.  We also adopt a location adjustment of 15% for KF4 which lies further away at Hung To Road. This is consistent with the agreement by the valuation experts in their assessments as at 1 July 2016.

32.  As regards this comparable KF4, however, Mr P Lai found that it was first sold on 8 March 2013 at $38,000,000 but by a supplemental agreement some 6 months later (ie 6 September 2013), the consideration was reduced to $28,000,000 (ie a reduction by 26.32%). He further noted that in the said supplemental agreement, there was a provision whereby the purchaser could back out without any compensation to the vendor. Mr P Lai was of the opinion that the transaction might not be done at arm’s length and also the relevant date for the agreement could not be ascertained with certainty. He considered therefore it was not desirable to be included as a comparable.[23]

33.  However, we do not find any evidence to support that the transaction was not done at arm’s length. We note from Second Schedule of the original Agreement for Sale and Purchase dated 8 March 2013 that the purported sale appears to be subject to a tenancy in favour of a canteen operation.[24] Then according to the record from the Land Registry, two waiver letters in respect of the operation of the canteen were terminated by the District Lands Office/Kowloon East on 14 January 2013 and 22 October 2014[25]. This may explain why Clauses 1 & 2 of the supplemental agreement stated that:

「1. 不論今日之前任何事件發生， 賣方認可及確認， 除以下修訂外， 原買賣協議所有其他條款繼續存在及仍然生效。」[26] (For reason unknown, the same sentence was repeated in Clause 2.)

and the reduction in consideration.

34.  We consider it appropriate to include KF4 as a comparable when good comparables are limited.

35.  Turning to Comparable KF5/AA4, Mr P Lai found that the unit had been granted a waiver by the Government permitting the use for the purpose of a canteen. The transaction included also the sale of internal decorations and fixtures and equipment for use as a canteen in Schedule 4 of the Agreement for Sale and Purchase[27]. In this regard, Mr P Lai considered this not a suitable comparable.

36.  Mr A Chan responded that the Government lease of the Lot (as varied by Deed of Variation dated 12 February 1979) has already permitted factory canteen inside the Building as:

“a factory or factories or a warehouse or warehouses or both and ancillary offices and such canteen and other welfare facilities …as may in the opinion of the said Director be necessary ….”[28]

Therefore, he considered this comparable no different from the permitted use of Unit E.

37.  Mr A Chan also pointed out that there was no inventory list in the Agreement for Sale and Purchase. He opined that “(I)f these decoration, fixtures and equipment are of any significant value, would a prudent purchaser requires a proper inventory list to be attached to the S&P to protect his interest. I believe Schedule 4 is no more than a standard condition implying the vendor will not dismantle the existing decoration or remove the trade equipment. The liability of removal rests with purchaser.”[29]

38.  By reference to the Government lease of the Lot (as varied by the Deed of Variation), we agree with Mr A Chan that the use of premises in the Building for use as a canteen does not require a waiver from Government. Our view is also supported in view of the following:

(a) The A&A Plan for canteen use in respect of 1/F of the Building was approved on 31 December 1986[30] but since then no waiver letter had ever been issued by the Government. Notwithstanding the latter, our joint site inspection revealed that signage for a canteen on 1/F was still present despite it is now not occupied as a canteen. The high probability is that no waiver would be required otherwise it cannot be explained why no waiver from the Government had not been issued;

(b) In contrast, the Government lease for Comparable KF5/AA4 does not provide for any use that may pertain to a canteen[31].

39.  On the other hand, we do not agree that those decoration, fixtures and equipment were not of any significant value because the analysed result as shown in the table at §22 above appears to be out of line with the others.

40.  In Bright Dragon Properties Limited v Director of Lands, LDLR 3 of 2007 (unreported, dated 8 August 2014), a comparable for restaurant use but with no inventory list was found. Mr P Lai, who happened to be also the valuation expert in that case, considered that comparable could not be a useful comparable but nevertheless was prepared to assign a value in the sum of some less than 10% to reflect the cost of the restaurant installations equipment furniture and chattels. See §§55-58 of the judgment. We are prepared to adopt a similar approach by deducting $1.5 million from the consideration to test the result.

41.  We consider that this Comparable KF5/AA4 should not be discarded for the sole reason that it was suitable for canteen operation. We agree with Mr A Chan during his cross-examination that so long as canteen operation is permitted, competing uses as workshop or otherwise would determine the value of the premises. We also note, indeed, comparable KF2/AA2 is also occupied for canteen operation as well but Mr P Lai is happy to adopt it as comparable.

42.  In respect of the adjustments for size and headroom, we prefer the threshold approach by Mr A Chan[32] because there cannot be a formula for adjustment as such in real life; we appreciate the concern by the RS that there might be situation where a mere minor difference in size or headroom would bring the adjustment applicable into different thresholds. That difference, if it does occur, however will be very small.

43.  We do not agree however with Mr A Chan that a cap should be applied. Firstly, we agree with the RS that where the line to be drawn is not supported and appears to be arbitrary. More importantly, if the adjustment turns out to be too large, it would only indicate that the comparable itself might not be good enough to be adopted. This is indeed the case for Comparable KF3/AA3 where the difference in size is significant. The comparable and the subject unit may belong to different markets. The application of a cap might distort the picture of analysis.

44.  Thus, despite that all the comparables suffer to a certain degree of imperfection, we are prepared to adopt the following analysis for the purpose of determining the EUV of G/F as at 25 February 2014:

Comp No	Unit Price (/m2)	Adjustments								Adjusted Unit Price (/m2)
		Time	Location	Internal Condition	Head-room	Age	Size	Accessibility/Exposure	Total
AA1	$123,961	0.4%	10.0%	-2.0%	-2.0%	0.5%	-16.0%	-20%	-29.1%	$87,888
KF2/AA2	$77,595	0.3%	10.0%	-2.0%	-2.0%	-4.5%	-16.0%	0%	-14.2%	$66,577
KF3/AA3	$80,990	0.3%	0%	-2.0%	-4.0%	-0.5%	-32.0%	-10%	-48.2%	$41,953
KF4	$122,410	-2.9%	15.0%	-2.0%	0%	-2.5%	-25.0%	-20%	-37.4%	$76,629
KF5	$177,783	-2.8%	5.0%	-2.0%	1.0%	0%	-31.0%	-10%	-39.8%	$107,025
								Average:		$76,014
								Average (excluding KF3/AA3):		$84,530
								Average (excluding KF3/AA3 and KF5):		$77,031
								Average (excluding AA1, KF3/AA3 and KF4):		$86,801

45.  However, we are surprised that a further comparable for a transaction in Block 3, Kwun Tong Industrial Centre dated 31 March 2014 found by Mr A Chan for assessing the EUV as at 1 July 2016 was not included as comparable. The particulars of it are as follows:

Comp No	Address	OP Date	Transaction Date	Sale Price	Saleable Area (sq m)	Frontage (m)	Headroom (m)	Unit Price (/sq m)
KF3/2016	Unit A3, G/F, Block 3, Kwun Tong Industrial Centre, 448-458 Kwun Tong Road	1979	31 Mar 14	$19,250,000	167.22	6.30	4.88	$115,118

It is just opposite comparable KF3/AA3 and its size difference from Unit E, G/F of the Building is less significant.

46.  If this comparable is also included for consideration, the analysis would become:

Comp No	Unit Price (/m2)	Adjustments								Adjusted Unit Price (/m2)
		Time	Location	Internal Condition	Head-room	Age	Size	Accessibility/Exposure	Total
AA1	$123,961	0.4%	10.0%	-2.0%	-2.0%	0.5%	-16.0%	-20%	-29.1%	$87,888
KF2/AA2	$77,595	0.3%	10.0%	-2.0%	-2.0%	-4.5%	-16.0%	0%	-14.2%	$66,577
KF3/AA3	$80,990	0.3%	0%	-2.0%	-4.0%	-0.5%	-32.0%	-10%	-48.2%	$41,953
KF4	$122,410	-2.9%	15.0%	-2.0%	0%	-2.5%	-25.0%	-20%	-37.4%	$76,629
KF5	$177,783	-2.8%	5.0%	-2.0%	1.0%	0%	-31.0%	-10%	-39.8%	$107,025
KF3/2016	$115,118	-1.0%	0.0%	-2.0%	-2.0%	-0.5%	-10.0%	-10%	-43.5%	$65,042
								Average:		$74,186
								Average (excluding KF3/AA3):		$80,632
								Average (excluding KF3/AA3 and KF5):		$74,034

47.  Within the above range of figures, we determine that the EUV of G/F as at 25 February 2014 should be $80,000 per sq m[33] and therefore the EUV of Unit E is 722.06 sq m x $80,000 per sq m = $57,764,800.

D2.  EUV for U/F as at 25 February 2014

48.  In respect of the upper floors (“U/F”), Mr A Chan and Mr P Lai rely on the following 22 comparables:

Comp No	Address	OP Date	Transaction Date	Sale Price	Saleable Area (sq m)	Floor loading (lb/sq ft)	Headroom (m)	Unit Price (/sq m)
AA1	Unit B, 14/F, Good Year Industrial Building, 119-121 How Ming Street	1978	15 May 14	$11,225,000	157.00 + (Roof: 152.86)	150	3.05	$63,739
KF1/AA2	Unit C, 13/F,  Good Year Industrial Building, 119-121 How Ming Street	1978	2 Dec 13	$10,388,000	163.77	150	3.05	$63,430
KF2/AA3	Unit B, 5/F,  Good Year Industrial Building, 119-121 How Ming Street	1978	6 Dec 13	$11,076,000	157.00 + (Flat Roof: 65.38)	150	3.05	$65,968
AA4	Factory 1, 2/F, and Sing Win Factory Building, 15-17 Shing Yip Street	1980	24 Apr 14	$26,300,000	451.08	150	3.05	$58,305
AA5	Unit 301, 3/F, Sunbeam Centre, 27 Shing Yip Street (with 1 loading /unloading area on G/F)	1986	12 Mar 14	$32,787,000	508.96	150	2.94	$64,420
AA6	Unit 203, 2/F, Sunbeam Centre, 27 Shing Yip Street (with 1 loading /unloading area on G/F)	1986	27 Feb 14	$17,917,200	310.68	150	2.94	$57,671
KF3	Unit A, 2/F, Manning Industrial Building, 116-118 How Ming Street	1977	2 Dec 13	$20,000,000	442.96	150	3.18	$45,151
KF4	Unit B, 2/F, Manning Industrial Building, 116-118 How Ming Street	1977	2 Dec 13	$20,000,000	438.59 + (Flat Roof: 65.38)	150	3.18	$45,511
KF5	Unit C, 2/F, Manning Industrial Building, 116-118 How Ming Street	1977	2 Dec 13	$20,000,000	456.99 + (Flat Roof: 6.45)	150	3.18	$43,661
KF6	Unit D, 2/F, Manning Industrial Building, 116-118 How Ming Street	1977	2 Dec 13	$20,000,000	463.38 + (Flat Roof: 5.86)	150	3.18	$43,070
KF7	Unit B, 6/F, Manning Industrial Building, 116-118 How Ming Street	1977	2 Dec 13	$14,226,000	284.64	150	3.05	$49,979
KF8	Unit C, 6/F, Manning Industrial Building, 116-118 How Ming Street	1977	2 Dec 13	$15,937,200	299.57	150	3.05	$53,200
KF9/AA7	Unit F, 1/F, East Sun Industrial Centre, 16 Shing Yip Street	1977	11 Sep 13	$25,500,000	447.63 + (Flat Roof: 226.57)	150	3.43	$52,535
KF10	Unit A, 7/F, King Yip Factory Building, 59 King Yip Street	1977	26 Jun 13	$13,200,000	284.11	150	3.18	$46,461
KF11	Unit D, 13/F with 1 Carparking Space,  Good Year Industrial Building, 119-121 How Ming Street	1978	1 Jun 13	$7,000,000	109.21	150	3.05	$55,563
KF12	Unit L, 7/F, Winner Factory Building, 55 Hung To Road	1978	11 Jun 13	$5,626,800	102.38	150	3.05	$54,960
KF13	Unit D, 3/F, East Sun Industrial Centre, 16 Shing Yip Street	1977	27 Mar 13	$22,598,400	393.88	150	3.42	$57,374
KF14	Unit D, 11/F & Roof, East Sun Industrial Centre, 16 Shing Yip Street	1977	21 Feb 13	$21,800,000	393.88 + (Roof: 314.46)	150	3.42	$50,324
KF15	Unit C, 14/F,  Good Year Industrial Building, 119-121 How Ming Street	1978	20 Feb 13	$9,550,000	163.77 + (Roof: 151.28)	150	3.05	$52,277
KF17	Unit B, 12/F, King Yip Factory Building, 59 King Yip Street	1977	28 Jan 13	$12,000,000	282.06	150	3.18	$42,544
KF18	Unit B, 7/F, King Yip Factory Building, 59 King Yip Street	1977	21 Jan 13	$15,023,000	282.06	150	3.18	$53,262
KF19	Unit A, 6/F, Manning Industrial Building, 116-118 How Ming Street	1977	2 Dec 13	$14,226,000	286.02	150	3.05	$49,738

* The prefix “KF” denotes the comparables adopted by Mr A Chan and the prefix “AA” denotes the comparables adopted by Mr P Lai.

49.  Further, the two experts have the following agreements/disagreements on the adjustment factors applicable:[34]

Adjustment factors	Agreements/disagreements
Floor Loading	Mr A Chan proposes adjustments at 1% for every 10 lb/sq ft difference but Mr P Lai considers the adjustment only applicable to loading capacity within similar range.
Headroom	While both experts agree the adjustment at 2% for every 1 m difference, they depart on the approaches. Mr A Chan adjusts the headroom on threshold basis (eg no adjustment for 0.99 m difference) whereas Mr P Lai adjusts the headroom on pro-rata basis.
Building Age	Both agree at 0.5% for every 1 year difference.
Floor	Both agree at 1% for every level difference.
Size	Mr A Chan proposes 1% for every 30 sq m difference whereas Mr P Lai proposes 1% for every 40 sq m difference
Time	Both agree that the RVD Price Index is applicable.
Internal Condition	They agree at:- -2% for Good 0% for Fair +2% for Poor +4% for Very Poor, assuming all comparables in fair conditions.
View[35]	Mr A Chan considers 0% for Building View, -5% for Open View but Mr P Lai considers this is not a factor for adjustment because it is not uncommon that windows of workshops are covered.
Layout	Mr P Lai considers this factor not relevant since both the G/F workshop in the Building and the comparables are of regular layout. Mr A Chan considers this factor should be adopted in case of irregular layout in the comparables.
Building Facilities	Mr A Chan considers the provision of lifts depending on the floor plate area but Mr P Lai considers the number of lifts provided would affect the efficiency in vertical transportation and hence the attractiveness of the workshops.
Loading/ Unloading	Mr A Chan considers no significant effect on the provision of loading and unloading area whereas Mr P Lai considers the availability of loading/ unloading facilities would affect the efficiency in goods transportation.
Location	They cannot agree adjustments for comparables KF1/AA2, KF2/AA3 and KF9/AA7.

50.  While we are surprised by Mr A Chan having provided so many comparables which have not been included by Mr P Lai, we agree with the latter’s comment that comparables KF3-8 and KF19 were indeed a single transaction as evidenced by the agreement for sale and purchase[36]. When Mr A Chan was requested to revisit the comparables as a single transaction, the analysed unit price, subject to a cap of 7% on the size adjustment, is $48,267/m² and the average adjusted rate for all his comparables has become $55,000/m² instead of $52,000/m².

51.  Once again, we agree with the RS that the cap is not supported and appears to be arbitrary. In any event, in view of the peculiar nature of this transaction and also the large number of other comparables already in place, we are prepared to discard comparables KF3-8 and KF19.

52.  In respect of the other comparables adopted by Mr A Chan, the only objection by Mr P Lai is that “they were transacted at distant times from the date of valuation.” However, in view of their transaction dates were just about one year earlier than the relevant date, we prefer to adopt them because generally, if there be no particular good comparables, the more comparables in the basket, the more reliable the end result data would be.

53.  Similarly, we find no reason to exclude the 4 additional comparables introduced by Mr P Lai that were transacted very close to the date of valuation.

54.  As regards the adjustments for location, Mr A Chan was of the initial view that those for the G/F and U/F are not necessarily the same. Mr A Chan explained in his rebuttal report dated 4 October 2016 as follows:

“4.11.2 The operations between G/F workshops and U/F workshops are fundamentally different. The G/F workshops are usually used for car repairing workshops or manufacturing or storing bulky items which could be transported by vehicles or forklifts only. Therefore, the concern of location adjustment of G/F workshops is driving distance.

4.11.3 In contrast, the U/F workshops are usually occupied by business or trades that do not require direct vehicular access or street exposure. It is my opinion that the U/F workshop being close to the Kwun Tong MTR Station is superior to the other U/F workshop comparables as the Property offers convenience to the workers and visitors travelling by public transportation.”[37]

55.  By the time of trial, however, Mr A Chan conceded that the adjustments for location for the G/F and U/F can be the same. Notwithstanding this concession, we are prepared to adopt an upward adjustment of 5% for comparables at How Ming Street and Shing Yip Street but 10% for comparables at Hung To Road and King Yip Street. The latter again is consistent with the valuation experts’ assessment as at 1 July 2016 for the comparables at Tsun Yip Street which lies just around the corner of Hung To Road.

56.  Also, the adjustments proposed by Mr P Lai on “Building Facilities” and “Loading/Unloading” are preferred. In respect of the latter, we accept Mr P Lai’s view that private loading/unloading areas are more beneficial than public ones on the street outside.

57.  As regards the loading and unloading area for Sunbeam Centre, while we are persuaded by the applicants that it is privately owned, we have no evidence to prove that when the transactions took place, occupiers were prevented from using the area for loading and unloading. Based on the principle of reality in valuation, the adjustment proposed by Mr P Lai is accepted.

58.  Such principle of reality is indeed applied quite frequently in the valuation practice.

59.  In Cheer Capital Limited v Unibase Investment Limited & Others, LDCS 5000 & 6000/2013 (unreported, dated 12 June 2015) (“Cheer Capital”), Mr A Chan, who was also the valuation expert in that case, indeed conceded that the yards which were enclosed albeit without proper title should be able to fetch some value in the market. See §64 of the judgment. This same principle was applied by the Tribunal in Gainfield Investment Limited & Others v Legend Time Limited & Others, LDCS 16000/2014 (unreported, dated 17 October 2016).

60.  In contrast, the difference in opinion between the two experts on the adjustment for size is not so significant but again that of Mr P Lai (ie 1% for every 40 sq m difference) is preferred. Once again, we maintain our preference to the threshold approach by Mr A Chan in respect of the adjustments for size and headroom.

61.  In view of the above, we are prepared to adopt the following analysis for the purpose of determining the EUV of U/F as at 25 February 2014:

62.  In view of the above, we determine that the EUV of U/F as at 25 February 2014, by reference to Unit G on 8/F,should be $58,000/m².

63.  Coming to the assessment of the EUV for each individual U/F unit, Mr A Chan and Mr P Lai have the following agreements/disagreements on the adjustment factors applicable:[38]

Adjustment factors	Agreements/disagreements
Floor	Both agree at 1% for every level difference.
Internal Condition	They agree at:- +2% for Good 0% for Fair -2% for Poor -4% for Very Poor
Size	Mr A Chan proposes 1% for every 30 sq m difference whereas Mr Lai proposes 1% for every 40 sq m difference.
Floor Loading	Mr A Chan proposes adjustments at 1% for every 10 lb/sq ft difference but Mr Lai considers the adjustment only applicable to loading capacity within similar range.
Headroom	While both experts agree the adjustment at 2% for every 1 m difference, they depart on the approaches. Mr A Chan adjusts the headroom on threshold basis (eg no adjustment for 0.99 m difference) whereas Mr Lai adjusts the headroom on pro-rata basis.
View[39]	Mr A Chan considers upward adjustment for units with open view but Mr Lai considers view should not be a factor affecting values of workshops.
Internal Layout	It is agreed that there are 3 steps from the lift lobby to the units on 13/F of the Building and 6 steps on the 14/F. Mr A Chan proposes adjustment of -5% and -10% respectively while Mr Lai proposes -3% and -4% respectively.

64.  We have previously dealt with the disagreements between Mr A Chan and Mr P Lai on the adjustments for size and headroom etc (§§42-43 above).

65.  As regards the level difference for the units on 13/F and 14/F of the Building which must be accessible by a few steps up from the lift lobby, we accept Mr A Chan’s adjustment at -5% and -10% respectively. We accept that this not only affects the effective floor area because of the steps but also the accessibility of the units concerned. As explained by Mr A Chan in his rebuttal report dated 4 October 2016:

“4.13.2 The current day’s logistic operation in U/F workshops are conducted by way of putting goods on pallet and transported by forklift trolleys pulled by workers. The level difference between lift lobby and U/F workshops on 13/F and 14/F requires workers to lift goods into the premise by hand and causing inconveniences to the logistics operation.

4.13.3  In addition, I wish to supplement that the entrances to all U/F workshops in the Property are approximately 1.1m wide which are not able to let a standard size pallet to enter….”

In our opinion, the proposed adjustments by Mr P Lai at 3% and 4% respectively are not adequate.

66.  Thus, the total EUV for the U/F is$989,030,000 as shown at Appendix A.

D3.  EUV of Carparking Spaces as at 25 February 2014 

67.  As stated in §20 above, Mr C Chan and Mr P Lai agree on the EUV of the CPS save that Mr P Lai is of the view that no value should be assigned to CPS No 1 since it was previous owned by the Incorporated Owners (“IO”) and is still currently occupied as a security booth off the entrance of the Building.

68.  We do not agree with Mr P Lai. The fact that the carparking space was owned by the IO does not prevent it from being sold. See also The Incorporated Owners of Lee Hang Industrial Building v. Billion Development and Project Management Limited, HCMP 2243 of 2007 (unreported, 12 March 2008). This parking space has never been identified as a common area by virtue of the Deed of Mutual Covenant.

69.  More particularly, Part 1 of Schedule 1 to the Ordinance requires the EUV to be assessed in respect of “each property on the lot” and the proceeds of the sale of the lot shall be apportioned on a pro rata basis in accordance with “the values of the respective properties of each majority owner and each minority owner of the lot as assessed” under Part 3. We do not find there should be any exception for CPS No 1 for the mere fact that it was or even is owned by the IO.

70.  Therefore, the total EUV of all the carparking spaces including CPS No 1 is $26,051,000 as agreed by Mr C Chan and Mr P Lai.

71.  As a result, the total EUV of the Building is:

$26,051,000 + $57,764,800 + $989,030,000 = $1,072,845,800

and the corresponding pro rata of the total EUV of the Building as at 25 February 2014 is as follows:

Respondent	Unit Owned	EUV	Pro Rata of Total EUV
R1	Unit E, 2/F	$29,029,000	2.7058%
R5	Unit F, 6/F	$17,144,000	1.5980%
R6	Unit F, 7/F	$16,979,000	1.5826%
R7	Unit H, 7/F	$16,821,000	1.5679%
R8	Unit F, 8/F	$16,814,000	1.5672%
R9	Unit F, 9/F and CPS 6	$17,591,000	1.6397%
R10	Unit H, 10/F	$16,331,000	1.5222%
R11	CPS 1A	$1,748,000	0.1629%
R12	Unit F, 11/F	$16,320,000	1.5212%
R14	CPS 4A	$1,407,000	0.1311%

E.   EUV of the Lot as at 1 July 2016

72.  In our decision dated 21 September 2016, we alluded to a comparison by Mr P Lai that the EUV was higher than the RDV and therefore, the Lot on which the Building is erected has no redevelopment potential. However, the comparison was made as at 25 February 2014 which should not be correct because the time for considering whether the redevelopment of the lot is justified and fixing the reserve price for the auction is at trial or a date closest to it.

73.  Therefore, we allowed an updated comparison analysis between the EUV and the RDV of the Building as at 1 July 2016.

74.  Whereas Mr P Lai prepared another EUV assessment as at 1 July 2016, Mr A Chan was allowed to do the same pursuant to our Order dated 9 July 2016.

E1.  EUV of CPS as at 1 July 2016

75.  Again the two experts agreed that the EUV of the carparking spaces in the Building as at 1 July 2016 as follows:

CPS No	EUV as at 25 February 2014	CPS No	EUV as at 25 February 2014
1	$1,163,000*	1A	$2,640,000
2	$1,104,000	2A	$2,134,000
3	$1,133,000	3A	$2,134,000
4	$1,104,000	4A	$2,134,000
5	$1,163,000	5A	$2,134,000
6	$1,163,000	6A	$2,134,000
7	$1,163,000	7A	$2,134,000
8	$1,163,000	8A	$2,134,000
9	$1,163,000	9A	$2,134,000
10	$1,163,000	10A	$2,134,000
11	$1,163,000	11A	$2,134,000

* only if a value is applicable

76.  Thus, the total value of the carparking spaces is $36,625,000.

E2.  EUV for G/F and U/F as at 1 July 2016

77.  Again, Mr A Chan and Mr P Lai could not agree on the EUV for the workshops. They arrived at the following EUV assessmentsas at 1 July 2016:

Unit Rate/m2	Mr A Chan			Mr P Lai
	Report of  Oct 16	Exhibit A12 dated 19 Dec 16	Exhibit A8 dated 13 Mar 17	Report of Sept 16	Exhibit R8 dated 9 Mar 17
G/F	$88,000	$97,000	$97,000	$97,000	$95,600
U/F	$55,000	$55,000	$54,000	$62,000	$61,800

78.  The following table shows their latest assessments as at 25 February 2014 and as at 1 July 2016 vis-à-vis the RVD Price Index which the two valuation experts agree as applicable:

EUV	Mr A Chan		Mr P Lai		RVD Price Index*	Index Increase
	G/F	U/F	G/F	U/F
As at 25 February 2014	$100,000/m2	$52,000/m2	$61,100/m2	$61,800/m2	652.6
As at 1 July 2016	$97,000/m2	$54,000/m2	$95,600/m2	$61,800/m2	673.2	3.16%

* The index is expressly stated by RVD that it is in respect of upper floor units only.

E3.  EUV for G/F as at 1 July 2016

79.  As regards the EUV as at 1 July 2016 for the G/F Workshop, the two valuation experts rely on the following 5 comparables which are however all dated some time before 1 July 2016:

Comp No	Address	OP Date	Transaction Date	Sale Price	Saleable Area (sq m)	Frontage (m)	Headroom (m)	Unit Price (/sq m)
KF1/AA1	Rear Portion, G/F, Milkyway Building, 77 Hung To Road	1972	18 Dec 15	$23,104,000/ $22,945,000 (excluding value of 3 lorry C/P and 3 private C/P)	Mr A Chan: 191.64 Mr Lai: 134.48	NA	4.42	$120,921/ $135,814
AA2	G/F, Dah Way Industrial Building, 86 Hung To Road	1971	12 Jan 15	$40,000,000	299.96 +  (Yard: 7.26)	NA	5.26	$132,815
KF2/AA3	Unit 2, G/F, Hung To Industrial Building, 80 Hung To Road	1983	9 Dec 14	$23,200,000	331.11	NA	4.78	$70,067
KF3	Unit A3, G/F, Block 3, Kwun Tong Industrial Centre, 448-458 Kwun Tong Road	1979	31 Mar 14	$19,250,000	167.22	6.30	4.88	$115,118
AA4	Unit 1, G/F, Sing Win Factory Building, 15-17 Shing Yip Street	1980	13 Nov 14	$42,800,000	289.80	NA	3.90	$147,688

80.  In respect of the first comparable, ie KF1/AA1, it is quite unusual that there is dispute between the experts on the saleable area of the workshop. By reference to the approved building plan dated 21 December 1972, the workshop space concerned was previously situated at the rear part of another workshop in the front. By the time it was sold, for instance, in December 2015 together with 3 lorry parking spaces and 3 private carparking spaces adjoining thereto, however, there has been an approved A&A plan whereby the parking spaces have been rearranged and the workshop space has been relocated to occupy the former parking spaces; ie the workshop space concerned is no longer situated at the rear part of another workshop space and has its independent access from the car ramp. And because of this latter arrangement, the workshop space concerned has become smaller but Mr A Chan bases his analysis on the former larger area whereas Mr P Lai conducts his analysis on the prevailing workshop area.  Thus, in reality, the workshop space only has a saleable area about 134.48 sq m as opposed to its original area of 191.64 sq m. In this regard, the area adopted by Mr P Lai at 134.48 sq m should be preferred as it is no excuse that the workshop user could switch it back to its original layout because as such it would not have an independent access.

81.  Apart from the above, there is no material difference in opinion between Mr A Chan and Mr P Lai save that Mr A Chan adjusts the size between Unit E, G/F of the Building and this comparable subject to a cap against which we have ruled at §§43 & 51 above. There should not be such a cap on adjustment for comparable KF2/AA3 as well.

82.  In respect of comparable KF3, we are surprised that it was dated as early as 31 March 2014 which was much closer to 25 February 2014 than 1 July 2016. If it should be adopted as a comparable at all, it should be adopted for assessing the EUV as at 25 February 2014 instead of as at 1 July 2016; otherwise the whole exercise would become otiose because we can simply apply the RVD index to arrive at the EUV as at 1 July 2016. In any event, the footnote of the indices expressly states that “the indices are in respect of upper floor units only.”

83.  Mr A Chan does not agree to adopt AA2 as a comparable because it has a lengthy frontage onto Hung To Road which, in his view, is much superior to Unit E, G/F of the Building. Mr A Chan even conducted an analysis below between this and comparable KF2/AA3 to prove that there is “a huge contrast in the unit rate” between the two with or without the street exposure:[40]

Comparable	Date of Sale	Consideration	Unit Price (/m2) before adjustments	% difference
AA2 (with street frontage)	12 Jan 2015	$40,000,000	$130,715 (which has been revised to $132,815)
KF2/AA3 (without street frontage)	9 Dec 2014	$23,200,000	$68,071 (which has been revised to $70,067)	-47.9% (-47.2%)

84.  At trial, a similar analysis was also conducted with a comparable sale of the unit in front of KF2/AA3, ie comparable KF3/AA3 adopted in assessing the gross development value (“GDV”) in the residual valuation as at 1 July 2016 or 1 November 2016:

Comparable	Date of Sale	Consideration	Unit Price (/m2) before adjustments	% difference
KF3/AA3 (with street frontage)	9 Dec 2014	$36,800,000	$168,506
KF2/AA3 (without street frontage)	9 Dec 2014	$23,000,000	$70,067	-58.4%

85.  Mr Mok argues that based on these two pairs of analysis, the adjustment of -20% proposed by Mr P Lai is obviously inadequate.

86.  Nevertheless, we immediately pointed out there were not really two pairs of analysis; both analysis relied on the same transaction ie KF2/AA3. If for any reason the transacted price of this comparable was below the market, the whole exercise would become wrong and misleading[41]. And, as we shall see, if the adjustment something like -50% is applied instead of -20%, neither Mr A Chan or Mr P Lai could get their proposed result of $97,000/m² or $95,600/m² as the case may be.

87.  In respect of comparable AA4, it is interesting to note that Mr P Lai himself discarded it on the ground that the workshop had been granted a temporary waiver for canteen operation[42]. As explained at §41 above, this should not be a good reason for discarding it as a comparable.

88.  Thus, discarding only comparable KF3, we have the following analysis:

Comp No	Unit Price (/m2)	Adjustments								Adjusted Unit Price (/m2)
		Time	Location	Internal Condition	Head-room	Age	Size	Accessibility/ Exposure	Total
KF1/AA1	$170,620	-4.3%	15.0%	-2.0%	-2.0%	3.0%	-29.0%	0.0%	-19.3%	$137,690
AA2	$132,815	-2.7%	15.0%	-2.0%	-4.0%	3.5%	-21.0%	-20.0%	-31.2%	$91,377
KF2/AA3	$70,067	-1.7%	15.0%	-2.0%	-2.0%	-2.5%	-19.0%	0.0%	-12.2%	$61,519
AA4	$147,688	-1.6%	10.0%	-2.0%	0.0%	-1.0%	-21.0%	-20.0%	-35.6%	$95,111
								Average:		$96,424
								Average (excluding AA2 & AA4):		$99,605

89.  In view of the above, we are prepared to adopt $96,400 per sq m as the EUV of G/F as at 1 July 2016[43] and therefore the EUV of Unit E is

722.06 sq m x $96,400 per sq m = $69,607,000

E4.  EUV for U/F as at 1 July 2016

90.  In respect of the upper floors, Mr A Chan and Mr P Lai rely on the following 12 comparables:

Comp No	Address	OP Date	Transaction Date	Sale Price	Saleable Area (sq m)	Floor loading (lb/sq ft)	Headroom (m)	Unit Price (/sq m)
KF1	Unit U2, 7/F, Kwun Tong Industrial Centre, Block 2, 460-470 Kwun Tong Road	1979	18 Jul 16	$8,197,200	149.10	150	3.20	$54,978
KF2	Unit B6, 3/F, Mai Hing Industrial Building Block B, 16-18 Hing Yip Street	1980	18 Jul 16	$6,880,000	165.39	150	3.13	$41,599
KF3	Unit C4, 1/F,  Kwun Tong Industrial Centre, Block 4, 436-446 Kwun Tong Road	1980	11 Jul 16	$9,400,000	145.07	200	3.28	$64,796
KF4	Unit G4, 7/F,  Kwun Tong Industrial Centre, Block 4, 436-446 Kwun Tong Road	1980	23 Jun 16	$5,500,000	105.59	150	3.20	$52,088
KF5/ AA1	Unit B, 8/F, Speedy Industrial Building, 114 How Ming Street	1980	8 Jun 16	$8,350,000	130.82	150	3.14	$63,828
KF6	Unit D, 10/F, Camelpaint Building Block 1, 62 Hoi Yuen Road	1981	30 Apr 16	$14,812,700	245.45	150	3.15	$60,349
KF7/ AA2	Unit A-D, 13/F, Speedy Industrial Building, 114 How Ming Street	1980	6 Apr 16	$32,800,000	511.93	150	3.37	$64,071
KF8	Rear Portion, 8/F, Ming Sang Industrial Building, 21 Hing Yip Street	1975	23 Sep 15	$13,480,000	265.85	150	3.20	$50,705
AA3	6/F, Block C, East Sun Industrial Centre, 16 Shing Yip Street	1977	20 Jan 16	$22,930,000	437.97	150	3.43	$52,355
AA4	Flat J, 8/F, Wang Kwong Industrial Building, 45 Hung To Road	1978	27 May 16	$4,050,000	77.18	150	3.05	$52,475
AA5	Flat G, 10/F, Wang Kwong Industrial Building, 45 Hung To Road	1978	17 May 16	$4,800,000	88.33	150	3.05	$54,342
AA6	Flat K, 8/F, Wang Kwong Industrial Building, 45 Hung To Road	1978	10 May 16	$4,050,000	77.18	150	3.05	$52,475

91.  It is interesting to note that out of these 12 comparables, only 2 of them are common comparables adopted by both valuation experts. And in respect of comparable KF7/AA2, one of the major differences in opinion between them is that Mr A Chan applies a layout adjustment of 10% for the reason that those workshop units in this comparable are, like the 14/F of the Building, at a level higher up than the lift lobby and has to be accessible by a flight of steps. At trial, Mr P Lai conceded that he had not gone up the units for inspection and therefore failed to realise the level difference. In this regard, we accept Mr A Chan’s adjustment of 10%.

92.  As regards the 6 comparables adopted by Mr A Chan but not by Mr P Lai, the latter’s only criticism is on KF8 which was transacted some 10 months before the valuation date of 1 July 2016. We agree that, in view of the so many comparables available as at much closer dates, this comparable is odd in timing and can be discarded.

93.  On the other hand, as regards the 4 comparables adopted by Mr P Lai but not by Mr A Chan, the former applies 10% adjustment for loading /unloading facilities to the 3 comparables in Wang Kwong Industrial Building to account for there being no carparking facilities available in the building. At trial, however, Mr A Chan no longer disputed the 10% adjustment.

94.  We have dealt with the other adjustment factors in determining the EUV as at 25 February 2014. Applying the same approaches, we are prepared to adopt the following analysis for the purpose of determining the EUV of U/F as at 1 July 2016:

Comp No	Unit Price (/m2)	Adjustments									Adjusted Unit Price (/m2)
		Time	Location	Age	Floor	Size	Head-room	Building Facilities	Carparking/ Layout	Total
KF1	$54,978	0.0%	0.0%	-0.5%	-1.0%	-3.0%	0.0%	-5.0%	0.0%	-9.5%	$49,755
KF2	$41,599	0.0%	5.0%	-1.0%	-5.0%	-2.0%	0.0%	1.0%	0.0%	-2.0%	$40,767
KF3	$64,796	0.0%	0.0%	-1.0%	-7.0%	-3.0%	0.0%	-5.0%	-5.0%	-21.0%	$51,189
KF4	$52,088	-2.5%	0.0%	-1.0%	-1.0%	-4.0%	0.0%	-5.0%	0.0%	-13.5%	$45,056
KF5/ AA1	$63,828	-2.5%	5.0%	-1.0%	0.0%	-3.0%	0.0%	0.0%	0.0%	-1.5%	$62,871
KF6	$60,349	-2.4%	0.0%	-1.5%	2.0%	0.0%	0.0%	-1.0%	0.0%	-2.9%	$58,599
KF7/ AA2	$64,071	-2.4%	5.0%	-1.0%	5.0%	5.0%	0.0%	2.0%	10.0%	23.6%	$79,192
AA3	$52,355	-2.0%	5.0%	0.5%	-2.0%	3.0%	0.0%	0.0%	0.0%	4.5%	$54,711
AA4	$52,475	-3.3%	10.0%	0.0%	0.0%	-5.0%	0.0%	0.0%	10.0%	11.7%	$58,615
AA5	$54,342	-3.3%	10.0%	0.0%	2.0%	-4.0%	0.0%	0.0%	10.0%	14.7%	$62,330
AA6	$52,475	-3.3%	10.0%	0.0%	0.0%	-5.0%	0.0%	0.0%	10.0%	11.7%	$58,615
									Average:		$56,518
									Average (excluding KF2):		$58,093

95.  In view of the above, we determine that the EUV of U/F as at 1 July 2016 should be $58,000/m² which is applicable to the reference unit of Unit G on 8/F.

96.  Thus, the total EUV as at 1 July 2016 for the U/F is$989,030,000 as shown in Appendix B.

97.  As a result, the total EUV of the Building is:

$36,625,000 + $69,607,000 + $989,030,000 = $1,095,262,000

F.   RDV of the Lot as at 1 July 2016

98.  Mr P Lai did provide a sale of a much smaller site at 43-45 Tsun Yip Street as a comparable and try to make adjustments to this transaction:

Accommodation Value (“AV”) of the site at Tsun Yip Street:[44]		$32,120/m2
Location:	10%
Scale of development:	10%
Height of development:	5%
Time:	-2%[45]
Total:	23%[46]	$39,508/m2

99.  In spite of the above, we consider these adjustments are grossly inadequate to reflect the difference in development potential/market value of the two sites.

100.  Firstly, the transaction was dated as long ago as 5 August 2014 when the market conditions then were quite different from that as at 1 July 2016, ie two years later. While Mr P Lai conceded that “property prices had been on the increase during the period”[47], yet the index applied (if correct) is expressly qualified by RVD that it applies to upper floor flatted factory units only. Because of the difference in market sentiment, the increase in land value can be more significant than the upper floor units.

101.  The site was also much smaller at 850.98 sq m when compared with the Lot which comprises 1,858.05 sq m (which is more than double). And although both this site and the Lot are subject to a similar height limit of 51.5 mPD under the Government lease, this site is subject to a lower height limit of 100 mPD imposed by the Kwun Tong (South) Outline Zoning Plan S/K14S/20. In comparison, the height restriction imposed by the Outline Zoning Plan on the Lot is 200 mPD, ie the Lot has a higher or double flexibility in development subject to payment of premium to Government for relaxing the height limit under the land lease. The 10% adjustment for scale of development or 5% adjustment for height appears inadequate.

102.  More importantly, as pointed out by Mr A Chan at para 6.2.7-6.2.10 in his Rebuttal Report dated 15 August 2016[48], the Government lease conditions pertaining to this site are more onerous. For instance, this comparable comprises two Lots, Kwun Tong Inland Lot Nos 359 & 360 which are governed by 2 separate Government leases and that pertaining to Kwun Tong Inland Lot No 359 stipulates that:

“…… will not partition the demised premises or assign mortgage charge underlet part with the possession of or otherwise dispose of the demised premises except as a whole without the consent in writing of the said Director …… And will not erect or allow to be erected on the demised premises any building other than a factory and ancillary offices and quarters ……. And will not erect or allowed to be erected any building or support for any building at ground floor level on the portion of the demised premises coloured …. and will not use or allow to be used the said portion at ground level or any part thereof for any purpose other than the parking loading and unloading of motor vehicles (it being agreed and declared that buildings at first floor level and above may however be erected over the said portion provided there is clear space extending upwards from the ground level to a height of fifteen feet) …” [49]

In comparison with the Lot which is not subject to similar onerous conditions, the above should have negative impact or restriction on the marketability for which Mr P Lai has not allowed.

103.  In addition, the location at Tsun Yip Street is inferior to the Lot at Hoi Yuen Road which is close to the APM, a regional shopping mall and the MTR Kwun Tong Station.

104.  The deficiency in adjustments is particularly obvious when Mr P Lai appeared to have applied the similar adjustments for location and time applicable to the completed flatted factories to this development land. It is trite that the value of land is derived from its development potential to produce revenues (or the gross development value (“GDV”) as it is often known) in excess of the required payments to all other factors of production, for example, the construction cost (“C”), ie for simplicity:

Land Value = GDV – C

105.  While C is usually territory-wide and subject to less variation within a short period of time, C is relatively constant. If the GDV as affected by location, scale of development, height, time etc is increased by say 30%, the new land value would become:

Land Value (new)	= 1.30GDV – C
	= 1.30(Land Value + C) – C
	= 1.30Land Value + 1.30C – C
	= 1.30 Land Value + 0.30C

That is, the increase in land value would be amplified and be more than 30% (unless C has also increased more or less the same during the same period, which is however very unlikely). And if, for instance, C is 0.4 as much as the original land value, the increased land value would be:

   1.30Land Value + 0.30 x (0.4Land Value)

   = 1.30Land Value + 0.12Land Value

   = 1.42Land Value

106.  In any event, both Mr A Chan and Mr P Lai resort to the residual valuation method in determining the RDV of the Lot which comprises a site area of 1,858.05 sq m. They have prepared a residual valuation as at 1 July 2016. This is done by deducting development costs (including construction cost, professional fees, finance costs etc) and developer’s profit from the estimated gross development value of the completed optimum development. Mr A Chan arrives at $1,191,037,465 (ie AV$59,237/m²) while Mr P Lai arrives at $908,800,000 (ie AV$44,467/m²).

F1.  Optimum hypothetical development model

107.  Notwithstanding the above, thetwo valuation experts disagree on the hypothetical development model as shown below:[50]

	Mr A Chan	Mr Lai
Assumed Development	A 15-storey industrial building with 1 basement level of carparks	A 15-storey industrial building with 2 basement levels of carparks
Vertical Circulation	5 passenger lifts, 1 cargo lift and 2 staircases	1 passenger lift, 3 cargo lifts and 4 staircases
Site Level	4.75 mPD at Hoi Yuen Road	4.82 mPD at Hoi Yuen Road
Maximum Building Height under Government Lease	51.5 mPD
Development Height	51.5 - 4.75 = 46.75m	51.5 - 4.82 = 46.68m
Total Gross Floor Area (“GFA”)	20,106.30 sq m	20,437.81 sq m
Basement	1 level with 11 private carparking spaces (accessible by car lift)	2 levels with 2 motorcycle parking spaces, 17 private carparking spaces and 22 lorry parking spaces as well as 1 container parking space
G/F	10 lorry parking spaces and 1 container parking space
Remaining Saleable Area on G/F	279.60 sq m (Efficiency Ratio: 65.2%)	1,044.15 sq m (Efficiency Ratio: 68.6%)
Saleable Area on 1/F	1,608.05 sq m (Efficiency Ratio: 86.6%)	1,430.80 sq m (Efficiency Ratio: 83.9%)
Saleable Area on 2/F – 3/F	3,216.10 sq m (Efficiency Ratio: 86.6%)	3,051.30 sq m (Efficiency Ratio: 84.7%)
Saleable Area on 4/F -14/F	11,902.56 sq m (Efficiency Ratio: 84.4%)	11,071.50 sq m (Efficiency Ratio: 81.4%)
Total Saleable Area	17,006.31 sq m	16,597.75 sq m
4/F Flat Roof	575.99 sq m	588.00 sq m
Roof		1,106.50 sq m

108.  In gist, apart from the minor difference in total GFA or saleable areas on each floor, the two valuation experts have different opinion on the hypothetical workshop size, workshop number and the number of level(s) of carparks.

109.  In his Rebuttal Report dated 15 August 2016, Mr A Chan commented on the hypothetical development model proposed by Mr P Lai as follows:[51]

“6.3.1 There is excessive provision of private carparking spaces and lorry parking spaces beyond the land lease requirement resulting (sic) 2 levels of basements have to be created and this in turn inflated the construction cost and brought down the RDV.

6.3.2 The proposed 1 container space, 22 lorry spaces, 17 private car spaces and 2 motorcycle spaces are designed to be accommodated on 2 levels of basements. The aggregate GDV is HK$50,600,000[52] (which I do not agree) whilst the basements construction cost is HK$70,977,510 exclusive of fees. It showed a negative value.

6.3.3 There is no illustration on the detailed allocation of these carport spaces and not sure how they are distributed on B1 and B2. If the container space is located on basement and served by ramp, it would take up huge circulation space.

6.3.4 It is questionable whether the Basement 2 is capable of accommodating 22 lorry spaces provided beyond the lease requirement.

6.3.5   The G/F headroom proposed by AA is 3.980m …. The absolute minimum headroom for container truck is 4.1 m therefore there is insufficient G/F headroom for access by container to basement.”

110.  We agree with the above comments by Mr A Chan. Moreover, in view of the prevailing trend of industrial development more akin to clean industrial and industrial-office uses, as well as the proximity of the Lot to the Kwun Tong MTR Station, we consider the minimum carparking spaces as provided by Mr A Chan as per the Government lease should be adequate.

111.  As regards the lift provision, we agree with Mr A Chan that “the number of cargo lifts and passenger lifts could be reallocated” and therefore his total lifts provision will be more than the lift provisions proposed by Mr P Lai. [53]

112.  Turning to the difference in GFA or saleable areas to be provided, we find they are minimal or mostly within 10% (though the differences on the G/F workshop and 1/F workshop provision are larger). The difference in total saleable area is however only between 17,006.31 sq m and 16,597.75 sq m, ie a difference of 408.56 sq m or some 2.4%.

113.  In any event both Mr A Chan and Mr P Lai have carried out an alternative residual valuation based on the other’s development model and found the difference in result was below 2%. See Exhibit A11 and Exhibit R8.

114.  In view of the above, we are prepared to adopt the hypothetical development model proposed by Mr A Chan for the purpose of determining the RDV of the Lot.

F2.  Value of CPS as at 1 July 2016

115.  In assessingthe EUV of the private carparking spaces in the Building as at 1 July 2016, thetwo valuation experts agree that each is worth between $1,104,000 and $1,163,000. As regards the value of the proposed private carparking spaces in the hypothetical development, Mr A Chan adopts 11 private carparking spaces at $1,176,000 each whereas Mr P Lai adopts 17 private carparking spaces at $1,250,000. Nevertheless, it was agreed that the market value of the private carparking spaces are $1,250,000 each if Mr P Lai’s model of hypothetical development be adopted.

116.  We agree with Mr P Lai that 2 of the 4 comparables adopted by Mr A Chan, ie the carparks in Kwun Tong Industrial Centre, were very different from the carparks to be provided in the hypothetical development in terms of scale of developments and carparks[54]. In view of the above therefore and the marginal difference between $1,176,000 and $1,250,000, such a distinction between which model is to be adopted is not necessary; we are prepared to adopt $1,250,000 as a value of a private carparking space.

117.  Similarly, the two valuation experts agree that the market value of each lorry parking spaces is $2,200,000 and that value of a container space is $2,800,000 if Mr P Lai’s model of hypothetical development be adopted. Again, having reviewed their comparables provided, we are prepared to adopt $2,200,000 and $2,800,000 respectively in determining the GDV for the hypothetical development.

F3.  Value of G/F Workshop as at 1 July 2016

118.  As regards the determination of the hypothetical ground floor premises, Mr A Chan and Mr P Lai rely on the same comparables (excluding rightly the comparable at Kwun Tong Industrial Centre that we have discarded because it was dated as early as 31 March 2014) as those for assessing the EUV; that is, Mr A Chan has adopted most of Mr Lai’s comparables in assessing the EUV as at 1 July 2016 but discarded his own comparable at Kwun Tong Industrial Centre. Mr A Chan also has discarded the comparable at Milkyway Building because he considers this comparable has no street exposure. Comparable KF2/AA3 is however replaced by KF3/AA3 as stated in §84 above.

119.  Based on the comments we have made above, our analysis, this time assuming the G/F workshop (saleable area about 279.6 m² and headroom about 5 metres) would have a street frontage of 12.48 m abutting Hoi Yuen Road, is shown as follows:

Comp No	Unit Price (/m2)	Adjustments								Adjusted Unit Price (/m2)
		Time	Location	Head-room	Age	Size	Accessibility/ Frontage	Layout	Total
AA1	$170,620	-4.3%	15.0%	0.0%	22.0%	-7.0%	10.0%	0.0%	35.7%	$231,531
KF2/AA2	$132,815	-2.7%	15.0%	0.0%	22.5%	1.0%	-10.0%	0.0%	25.8%	$167,081
KF3/AA3 (new)	$168,506	-1.7%	15.0%	0.0%	16.5%	-3.0%	0.0%*	0.0%*	26.8%	$213,666
KF4	$147,688	1.6%	10.0%	0.0%	18.0%	0.0%	0.0%	0.0%	29.6%	$191,404
								Average:		$200,921
								Average (excluding AA1):		$190,717

* We disagree with Mr A Chan that there should be any adjustment on layout or frontage for this particular comparable. Nor do we agree with Mr P Lai that there should be any adjustment for accessibility. We simply cannot see any difference when the design and layout of the hypothetical G/F unit is still undetermined at this stage.

120.  Thus, for the G/F workshop in the hypothetical development, we are prepared to adopt $200,000/m² which is again some midway between Mr A Chan’s assessment of $201,000/m² and Mr P Lai’s assessment of $190,400/m².

F4.  Value of U/F Workshops as at 1 July 2016

121.  Mr A Chan and Mr P Lai rely on the following 14 comparables, arriving at $117,000/m² and $106,800/m² for the value of the hypothetical workshop units on the upper floors:

Comp No	Address	OP Date	Transaction Date	Sale Price	EffectiveArea (sq m)	Floor loading (lb/sq ft)	Headroom (m)	Unit Price (/sq m)
KF1/AA1	Unit 6, 3/F, Entrepot Centre, 117 How Ming Street	1994	6 Jun 16	$6,700,000	50.72	150	4.00	$132,098
KF2/AA4	Unit E, 17/F,  Capital Trade Centre, 62 Tsun Yip Street	1995	3 Jun 16	$5,590,000	69.21	150	3.70	$80,769
KF7/AA5	Unit C, 10/F,  Capital Trade Centre, 62 Tsun Yip Street	1995	8 Jan 16	$4,750,000	58.17	150	3.70	$81,657
KF8/AA6	Unit A, 22/F,  Capital Trade Centre, 62 Tsun Yip Street	1995	24 Dec 15	$7,000,000	79.34	150	3.70	$88,228
KF3	Unit D, 12/F,  Capital Trade Centre, 62 Tsun Yip Street	1995	13 Apr 16	$3,980,000	46.00	150	3.70	$86,522
KF4	Unit 2, 13/F, Lemmi Centre, 50 Hoi Yuen Road	1996	22 Mar 16	$4,264,200	40.80	150	3.31	$104,515
KF5	Unit 7, 18/F, Lemmi Centre, 50 Hoi Yuen Road	1996	31 Mar 16	$3,918,000	36.35	150	3.31	$107,785
KF6	Unit 8, 9/F, Lemmi Centre, 50 Hoi Yuen Road	1996	17 Feb 16	$3,600,000	36.69	150	3.31	$98,119
AA2	Unit 5, 21/F, Entrepot Centre, 117 How Ming Street	1994	20 Nov 15	$4,000,000	48.92	150	4.00	$81,766
AA3	Unit 2, 3 & 4, 16/F, Entrepot Centre, 117 How Ming Street	1994	29 Oct 15	$26,830,500	182.57	150	4.00	$146,960
AA7	Unit 1 and Store Room, 17/F, Lemmi Centre, 50 Hoi Yuen Road	1996	27 Jun 15	$10,230,000	102.39 + (Store Room: 4.07)	150	3.31	$97,960
AA8	Flat 5, 7/F, Winful Centre, 30 Shing Yip Street	1992	29 Apr 16	$6,560,000	89.58	150	3.13	$73,231
AA9	Flat 1, 11/F, Winful Centre, 30 Shing Yip Street	1992	26 Oct 15	$4,625,000	66.57	150	3.13	$69,476

122.  We have accepted Mr P Lai’s upward adjustment for location at 5% for comparables at How Ming Street in §55 above but here Mr P Lai proposes a location adjustment of -15% for Entrepot Centre also on How Ming Street. Mr P Lai explained his change in opinion in his Rebuttal Report of 12 September 2016 as follows:

“14.5 … the first floor of Entrepot Centre was readily accessible from the adjacent development known as APM …..

14.6 Being connected and readily accessible from APM, I consider the accessibility of Entrepot Centre was much superior compared with the hypothetical development on the Property.”[55]

123.  During cross-examination, Mr P Lai also suggested that units in Entrepot were favoured by office uses that would be less affected by vehicular traffic. We agree with Mr Mok for the applicants that Mr P Lai’s view was not supported by further evidence apart from mere referral to the directory at the entrance lobby of the building which is not conclusive. However, this connectivity to APM and in turn to the MTR station is a unique feature of Entrepot Centre which has no equivalent in other comparables on How Ming Street. We agree with Mr P Lai’s change in opinion but we consider the adjustment should be -5% instead.

124.  While we have already dealt with most of the adjustment factors above, there is one further major difference in opinion on that Mr P Lai applies +5% adjustment for better loading and unloading facilities to these comparables but Mr A Chan does not. Whereas we have now adopts Mr A Chan’s hypothetical development model particularly on the carparking provision, we consider such an adjustment no longer necessary.

125.  More importantly, we have mentioned in §110 above that the prevailing trend of industrial development is more akin to clean industrial and industrial-office uses. Regrettably, all the comparables cited by Mr A Chan and Mr P Lai are more than 20 years old. All the comparables tendered by the two valuation experts are less than satisfactory.

126.  While we appreciate Mr P Lai’s inclusion of additional comparables of “greater sizes” is for the purpose of minimizing the effect of size differences, we do not consider Winful Centre at 30 Shing Yip Street comparable to the others in terms of its design and conditions, particularly when all the other comparables are, to a certain extent, comprising curtain wall façades.

127.  And to the extent that we are limited by this set of dated comparables, we find no reason to exclude any of the other comparables adopted by either Mr A Chan or Mr P Lai. For instance, the size of their 1^st comparable at Entrepot Centre is also about 50.72 sq m, which is not materially different from those of other “small” comparables adopted by Mr A Chan. This is particularly the case when Mr P Lai is happy to adopt a quantum adjustment based on mere 1% for every 40 sq m difference.

128.  Thus, based on this set of unsatisfactory comparables, our analysis is shown as follows:

Comp No	Unit Price (/m2)	Adjustments								Adjusted Unit Price (/m2)
		Time	Location	Age	Floor	Size	Head-room	Lifts/ Building Facilities	Total
KF1/AA1	$132,098	-2.5%	-5.0%	11.0%	-6.0%	-2.0%	-2.0%	3.0%	-3.5%	$127,475
KF2/AA4	$80,769	-2.5%	10.0%	10.5%	7.0%	-1.0%	0.0%	3.0%	27.0%	$102,577
KF7/AA5	$81,657	-2.0%	10.0%	10.5%	1.0%	-1.0%	0.0%	3.0%	21.5%	$99,213
KF8/AA6	$88,228	-4.3%	10.0%	10.5%	12.0%	-1.0%	0.0%	3.0%	30.2%	$114,873
KF3	$86,522	-2.4%	10.0%	10.5%	3.0%	-2.0%	0.0%	3.0%	22.1%	$105,643
KF4	$104,515	-1.8%	5.0%	10.0%	4.0%	-2.0%	0.0%	2.0%	17.2%	$122,492
KF5	$107,785	-1.8%	5.0%	10.0%	8.0%	-2.0%	0.0%	2.0%	21.2%	$130,635
KF6	$98,119	-2.2%	5.0%	10.0%	0.0%	-2.0%	0.0%	2.0%	12.8%	$110,678
AA2	$81,766	-9.4%	-5.0%	11.0%	11.0%	-2.0%	-2.0%	3.0%	6.6%	$87,163
AA3	$146,960	-9.9%	-5.0%	11.0%	6.0%	1.0%	-2.0%	3.0%	4.1%	$152,985
AA7	$97,960	-7.8%	5.0%	10.0%	7.0%	0.0%	0.0%	3.0%	17.2%	$114,809
AA8	$73,231	-2.4%	5.0%	12.0%	-1.0%	0.0%	0.0%	3.0%	16.6%	$85,387
AA9	$69,476	-9.9%	5.0%	12.0%	3.0%	-1.0%	0.0%	3.0%	12.1%	$77,883
						Average:				$110,139
						Average (excluding AA8 & AA9)				$115,322
						Average (excluding KF3, KF4, KF5, KF6, AA8 & AA9)				$114,156

129.  Thus, save for our finding below, we are prepared to adopt $115,000/m² as the unit price applicable to the U/F units in the hypothetical development based on these comparables.

130.  We note Mr A Chan has made use of his same set of comparables to arrive at 2.5% higher for 1/F-3/F of the hypothetical development. In this regard, we agree with Mr P Lai that comparables KF3, KF4, KF5, KF6 have to be excluded because of their relatively small sizes when compared with a hypothetical unit about 268.01 sq m. Our analysis is shown in the following:

Comp No	Unit Price (/m2)	Adjustments								Adjusted Unit Price (/m2)
		Time	Location	Age	Floor	Size	Head-room	Lifts/ Building Facilities	Total
KF1/AA1	$132,098	-2.5%	-5.0%	11.0%	1.0%	-5.0%	-2.0%	3.0%	0.5%	$132,758
KF2/AA4	$80,769	-2.5%	10.0%	10.5%	14.0%	-4.0%	0.0%	3.0%	31.0%	$105,807
KF7/AA5	$81,657	-2.0%	10.0%	10.5%	8.0%	-5.0%	0.0%	3.0%	24.5%	$101,663
KF8/AA6	$88,228	-4.3%	10.0%	10.5%	19.0%	-4.0%	0.0%	3.0%	34.2%	$118,402
AA2	$81,766	-9.4%	-5.0%	11.0%	19.0%	-5.0%	-2.0%	3.0%	11.6%	$91,251
AA3	$146,960	-9.9%	-5.0%	11.0%	14.0%	-2.0%	-2.0%	3.0%	9.1%	$160,333
AA7	$97,960	-7.8%	5.0%	10.0%	15.0%	-4.0%	0.0%	3.0%	21.2%	$118,728
						Average:				$118,420

131.  Thus, again save for our finding below, we are prepared to adopt $118,000/m² as the unit price applicable to the lower floors in the hypothetical development.

132.  Having established the development potential or the GDV, a residual valuation can be expressed as a simple equation:

Residual land value (economic rent) =

(Value of completed development) – (development costs + developer’s profit)  

F5.  Development Cost and Period

133.  By the Joint Expert Statement dated 9 November 2016, Mr A Chan and Mr P Lai also agree the following:

		Mr A Chan	Mr P Lai	Agreement/ Disagreement
Demolition Cost		$48,000,000		Agreed
Construction Cost	Workshop	$15,290/m2 (on GFA)	$16,250/m2 (on CFA)	Disagreed
	G/F Car Parking Spaces	$9,800/m2 (on CFA)	NA
	B/F Car Parking Spaces/ Plant Room	$23,900/m2 (on CFA)	$22,750/m2 (on CFA)
	Car Lift	$5,000,000/ each	NA
	Turntable	$2,000,000/ each	NA
	Total	$350,512,193 (on CFA)	$430,956,338 (on CFA)
	Curtain Wall[56]	$3,150/m2	NA
Construction Period		2.5 years		Agreed
Demolition Period		0.875 year (ie 10½ months)		Agreed
Deferment Rate		5.0%		Agreed
Professional Fee		6.0%		Agreed
Marketing Cost		1.0%		Agreed

134.  As can be seen from the table above, the difference in unit construction cost is minimal; the major difference comes from the different development models (see §107). Whereas we have stated at §§113 & 114 above that we prefer Mr A Chan’s model and Mr A Chan has conducted a comparison between the result based on the two hypothetical models but using his own rates. He found that his model would produce a higher land value.[57] In fact Mr P Lai found the same by his residual valuation attached to Exhibit R8.

135.  As regards Mr A Chan’s referral to the additional cost for glass aluminum curtain walling to elevations (or residential) by reference to RLB Building Cost Data published in September 2016, we consider it appropriate when all the comparables (except for Winful Centre at 30 Shing Yip Street which we have excluded as comparable) comprise curtain wall façades. Ms Eu or Mr P Lai has challenged the figure of $3,150/m² being derived from the cost for residential development but we accept Mr A Chan’s explanation that this is the only separate item for curtain wall construction that can be found from the cost data. We are satisfied that curtain walling construction for residential development would not be quite different from curtain walling construction for the other types of development. In any event, Mr P Lai has not seen fit to allow for this in his provision of construction costs. We are however surprised that Mr P Lai has never in his mind that his proposed development would only be commensurate with industrial buildings built more than 20 years ago.

136.  All in all, we conclude that we should adopt the construction costs proposed by Mr A Chan.

F6.  Developer’s Profit

137.  Another major disagreement between Mr A Chan and Mr P Lai is the developer’s profit to be allowed in the residual valuation: Mr A Chan proposes 10% and Mr P Lai proposes 20%.

138.  As for any business undertaking, the developer who takes the trouble to assemble a piece of land for redevelopment would seek to make a profit in return. In Hong Kong it is usual to assume that the developer seeks acapital profit expressed as a percentage of the total development cost (including interest) but such a percentage can never be a constant.  “The target levels of profit will depend on the nature of development and allied risks, the competition for development schemes in the market, the period of the development and the general optimism in relation to that form of development.”[58]

139.  Notwithstanding the above, it is correct for Mr P Lai to assert that 15% is usually adopted for commercial/residential development and a higher percentage of 20% for commercial development. Therefore, Mr P Lai challenges Mr A Chan’s 10% being too inadequate for the captioned hypothetical development. Mr P Lai refers also to the Property Market Yields compiled by RVD where yields for private domestic (ranging from 2.2% to 3% as at 1 July 2016) are always lower than that for flatted factories (at 3.2%)[59] and concludes that “the risk level in undertaking industrial developments would be higher than the risk levels in undertaking commercial and/or residential developments”.

140.  During cross-examination, Mr A Chan replied that it would not be appropriate to compare the percentage of developer’s profit directly with the yields from RVD because of their difference in nature; the yields required by a property investor would depend on the security of the rental income whereas the developer’s profit would depend on the risk of achieving the GDV as envisaged.

141.  To this we agree. The factors on which yields and developer’s profit depend are mostly different.

142.  Firstly, yields from landed property investments are derived from the existing stock where the tenants’ covenant, the rent review cycle and the management issues are called into play. In this regard, in particular, the yields published by RVD are derived from a basket of properties which comprise a range of old and new premises[60]. To the extent, for instance, where both Mr A Chan and Mr P Lai had difficulty in locating comparables of recent developments in assessing the GDV, it tends to show that old flatted factories predominate the market and the yields derived therefrom would be suffering from bias tilting in favour of the old factories. With the basket comprising more new developments as time passes, this explains why as Mr A Chan said in re-examination that the gap between yields of industrial properties on the one hand and residential and commercial properties on the other hand have narrowed in the past 10 years.  In any event, the hypothetical development proposed should be obviously new and modern. Comparing percentage of the developer’s profit with yields predominated by old flatted factories is like comparing new to old premises.

143.  Secondly, whereas yields from landed property investments have also embedded therein an element of growth[61], the risk of achieving that as reflected in the percentage of developer’s profit in the residual valuation would depend on a host of factors as stated in §138 above which are different from existing landed property investments. During cross-examination, Mr A Chan cited a few examples of heated competition for development schemes in the market since the second half of 2016 including the more recent sale of Zung Fu Aberdeen Garage Building for an accommodation value of more than $9,500/sq ft (ie $102,300/m²). Like Kwun Tong in which the Lot is situated, Wong Chuk Hang is under transformation from an industrial area to a commercial area.

144.  Mr P Lai has also referred to Cheer Capital, supra, where the Tribunal adopted a developer’s profit of 20% for a Ginza type development. But as stated by the Tribunal in §107 of the judgment, the Ginza type development was speculative and therefore a higher developer’s profit should be allowed. In contrast, we accept that the hypothetical industrial development would be much less speculative. Mr A Chan has indeed cited the Report on 2014 Area Assessments of Industrial Land in the Territory commissioned by the Planning Department of the Government of HKSAR to support that “... demand for industrial floor space is on the rise”. He also commented on the low vacancy rates of Private Flatted Factories and Private Storage published by RVD.[62] Mr A Chan also referred to the two fatal fire incidents in mid-2016 following which the Government has stepped up enforcement action against fire risks of old industrial buildings and to promote fire safety of these buildings to a higher standard; this would result in further shortage of flatted factories available in the market.

145.  In the above regard, particularly in view of the prime location of the Lot, we are pleased to adopt a developer’s profit at 10%. With a total construction and demolition period of 3.375 years (40.5 months), this is equivalent to some 3% per year exclusive of finance cost (which has been separately allowed for at 5%)[63].

146.  Based on the analysis above and particularly comparables of more than 20 years in age which in our view are not commensurate with modern industrial developments, we provisionally arrive at a residual land value of $1,166,421,000 or an AV of about $58,000/m². Our residual valuation is shown at Appendix C.

G.   Reserve Price

147.  The applicants propose that in case the Tribunal grants an order for sale of the Lot pursuant to the Ordinance, the reserve price be fixed at $1,300,000,000 by reference to RDV of the Lot as at 1 November 2016.

148.  Again, both Mr A Chan and Mr P Lai resort to the residual valuation method in determining the RDV of the Lot based on their own model of development. They also agree that in case the Tribunal accepts the carport model of Mr P Lai, the market values of the carparking spaces are as follows:

Carparking spaces	Value of each
Private	$1,300,000
Lorry	$2,300,000
Container	$2,900.000

149.  In this regard, our comments in §§110-114   above are still appropriate and we are prepared to adopt the model of development proposed by Mr A Chan.

150.  In determining the value of the hypothetical ground floor units, the two experts also adopt the same set of comparables as at 1 July 2016. Thus, the only difference in adjustments should be on time and our analysis is as follows[64]:

Comp No	Unit Price (/m2)	Adjustments								Adjusted Unit Price (/m2)
		Time	Location	Head-room	Age	Size	Accessibility/ Frontage	Layout	Total
AA1	$170,620	-1.9%	15.0%	0.0%	22.0%	-7.0%	10.0%	0.0%	38.1%	$235,626
KF2/AA2	$132,815	-0.2%	15.0%	0.0%	22.5%	1.0%	-10.0%	0.0%	28.3%	$170,402
KF3/AA3 (new)	$168,506	0.8%	15.0%	0.0%	16.5%	-3.0%	0.0%*	0.0%*	29.3%	$217,878
KF4	$147,688	0.0%	10.0%	0.0%	18.0%	0.0%	0.0%	0.0%	28.0%	$189,041
								Average:		$203,237
								Average (excluding AA1):		$192,440

* Again, we disagree with Mr A Chan that there should be any adjustment on layout or frontage for this particular comparable. Nor do we agree with Mr P Lai that there should be any adjustment for accessibility.

151.  Thus, for the G/F workshop in the hypothetical development, we are prepared to adopt $203,000/m².

152.  As regards the value of U/F units, Mr A Chan and Mr P Lai adopt the following comparables:

Comp No	Address	OP Date	Transaction Date	Sale Price	EffectiveArea (sq m)	Floor loading (lb/sq ft)	Headroom (m)	Unit Price (/sq m)
KF1/AA1	Units 1 & 2 (with storerooms 1 & 2), 1/F, Lemmi Centre, 50 Hoi Yuen Road	1996	29 Jul 16	$15,000,000	165.38	150	4.50	$90,700
KF2/AA2	25/F, Fun Tower, 35 Hung To Road	2013	27 Jun 16	$48,156,250	389.97	100	4.20	$123,487
KF3/AA3	Unit 6, 3/F, Entrepot Centre, 117 How Ming Street	1994	6 Jun 16	$6,700,000	50.72	150	4.00	$132,098
KF4/AA4	Unit E, 17/F,  Capital Trade Centre, 62 Tsun Yip Street	1995	3 Jun 16	$5,590,000	69.21	150	3.70	$80,769
KF9/AA5	Unit C, 10/F,  Capital Trade Centre, 62 Tsun Yip Street	1995	8 Jan 16	$4,750,000	58.17	150	3.70	$81,657
KF10/AA6	Unit A, 22/F,  Capital Trade Centre, 62 Tsun Yip Street	1995	24 Dec 15	$7,000,000	79.34	150	3.70	$88,228
KF5	Unit D, 12/F,  Capital Trade Centre, 62 Tsun Yip Street	1995	13 Apr 16	$3,980,000	46.00	150	3.70	$86,522
KF6	Unit 2, 13/F, Lemmi Centre, 50 Hoi Yuen Road	1996	22 Mar 16	$4,264,200	40.80	150	3.31	$104,515
KF7	Unit 7, 18/F, Lemmi Centre, 50 Hoi Yuen Road	1996	31 Mar 16	$3,918,000	36.35	150	3.31	$107,785
KF8	Unit 8, 9/F, Lemmi Centre, 50 Hoi Yuen Road	1996	17 Feb 16	$3,600,000	36.69	150	3.31	$98,119
AA7	Flat 5, 7/F, Winful Centre, 30 Shing Yip Street	1992	29 Apr 16	$6,560,000	89.58	150	3.13	$73,231

153.  In gist, Mr A Chan has introduced 2 additional comparables, one at Lemmi Centre and another at Fun Tower, this latter being the only comparable at an industrial building built more recently in 2013 (instead of the 90s). While Mr P Lai agrees to the introduction of the first comparable, he considers the one at Fun Tower has to be discarded because it has a low loading capacity which may restrict industrial uses and therefore is in a nature different from the hypothetical industrial building being proposed. In addition, Mr P Lai has discarded those comparables which took place in 2015.

154.  We have dealt with the differences in opinion between Mr A Chan and Mr P Lai in §§122-127 above save for the inclusion of the comparable at Fun Tower. In the latter regard, we are impressed by the office-like development of Fun Tower which accords with modern trend of industrial development conceded by Mr A Chan; he has indeed provided many examples of late industrial developments to reflect the prevailing clean industrial and industrial-office trend in building design and quality at Appendix I of Exhibit A10. Instead of discarding it however, we welcome the inclusion of this modern day comparable at Fun Tower as a check against the other comparables all built more than 20 years ago.

155.  Thus, our analysis is shown as follows:

156.  To the extent that we have adopted $115,000/m² as the unit price applicable to the U/F units in the hypothetical development as at 1 July 2016 (without adopting the comparable at Fun Tower), in view of the rising market, we are more prepared to adopt $120,000/m² as the unit price applicable to the U/F units in the hypothetical development as at 1 November 2016.

157.  Likewise, we are going to make use of the same set of comparables (save for comparables KF5, KF6, KF7 & KF8) to determine the value of 1/F-3/F of the hypothetical development:

158.  Thus we provisionally get $125,000/m² as the unit price applicable to the lower floors in the hypothetical development as at 1 November 2016.

159.  As regards the construction costs as at 1 November 2016, both Mr A Chan and Mr P Lai are prepared to adopt their own set of data as at 1 July 2016. However, Mr P Lai is of the view that should the transaction at Fun Tower be included as a comparable, he would increase the construction cost from $16,250/m² to $32,300/m², ie approximately doubling the construction costs to reflect the superior quality of Fun Tower as illustrated by the extract from the sale brochure below:[65]

External Finishes:	Building façade is finished with a combination of a curtain wall system with aluminium cladding; and ceramic tiles.
Entrance and Main Lobby:	Walls and floors are finished with marble/ granite/ artificial stone. A fully air-conditioned lobby features a suspended ceiling.
Typical lobby – (6/F only):	Walls and floors finished with marble and/or artificial stone. Ceiling finished with plaster board.
Typical Corridor – (6/F only):	Floor finished with artificial stone, walls finished with emulsion paint on cement/sand plaster, and featuring an aluminium panel ceiling.

160.  We agree with Ms Eu that even the construction cost data from Rider Levett Bucknall (RBL) for “better quality high rise” industrial buildings as adopted by Mr A Chan cannot match similar building standard or specification offered by Fun Tower. Yet in reply as produced in Exhibit A10, Mr A Chan stated, inter alia, that “Mr Patrick Lai suggested to adopt office building cost while the GDV is derived from a basket of industrial units completed since 1992 is contrary to fundamental valuation principles.” We agree. For instance, in determining the unit price for the U/F of the hypothetical development, the comparable at Fun Tower is only one of the 10 comparables and the unit price derived therefrom at about $120,000/m² is no way near the analysed unit price of $176,276/m² resulted from Fun Tower comparable.

161.  In any event, if we proceed with our residual valuation based on the analysis above, we shall arrive at a residual land value of $1,239,925,000 or an AV of about $61,668/m². Our residual valuation is shown at Appendix D.

162.  It is however important to note that Mr A Chan had carried out an alternative residual valuation adopting an adjusted unit rate of $170,800/m² (as opposed to our $176,276/m²) from the comparable at Fun Tower and the construction cost of $32,300/m² (which pertains to ‘high quality office building) as proposed by Mr P Lai based on Mr P Lai’s hypothetical model. He arrived at a land value of $1,481,689,010 or an AV of $72,497/m².[66]

163.  We consider this a more proper approach though, as said, we prefer to adopt Mr A Chan’s development model. When we carry out the residual valuation as shown at Appendix E adopting $176,276/m² instead, we arrive at a land value of $1,621,592,000 or an AV of $80,651/m².

164.  We appreciate that it is unusual to rely on a single transaction for the purpose of valuation but as stated by Mr A Chan at §7.4.4 of his Rebuttal Report dated 4 October 2016:

“Since the experts’ task is to assess the RDV, I should rely on comparables built to the current day standard of finishes which duly reflects the marketable quality industrial building in the current market.”[67]

165.  Owing to the peculiar situation here where real comparables are lacking,  this alternative valuation exercise accords with Ms Eu’s closing submission that “the construction costs of a building is directly linked to the standard of finishing of the proposed development.”[68] That Mr P Lai has never in his mind that his proposed development should be up to the standard of Fun Tower is wrong in principle as no developer would be reasonably expected to build new development whose standard is only commensurate with those built more than 20 years ago. As we have deplored the lack of appropriate comparable sales of industrial units pertaining to the modern age, that the 0.5% for every 1-year difference in building age obviously does not take into account the change in building standards. We cannot but set the reserve price of the Lot at $1,621,592,000.

166.  And as a retrospect, we are going to review our residual valuation as at 1 July 2016 based on this comparable at Fun Tower. Indeed, the transaction was agreed at 27 June 2016 and it is quite unreasonable for the two valuation experts not to adopt it as a comparable as at 1 July 2016. Deducting a time adjustment of 2.2% from $176,276/m², we get approximately $172,400/m². Based on this figure, we arrive at a land value of $1,572,099,000 or an AV of $78,189/m² as shown at Appendix F. We consider it more appropriate to adopt this new figure as the land value of the Lot than the previous $1,166,421,000 or an AV of about $58,000/m². This revised figure is some 43.5% higher than the EUV of the Building at $1,095,262,000 as at 1 July 2016.

H.   Section 4(2) of the Ordinance – Justification and Reasonable Steps

167.  In determining the application, s.4(2) of the Ordinance empowers the Tribunal not to make an order for sale unless, after hearing the objections of the RS, we are satisfied that:

(a)  the redevelopment is justified due to age or state of repair of the Building; and

(b)  the applicantshave taken reasonable steps to acquire all the undivided shares in the Lot, including negotiating for the purchase of the undivided shares owned by the RS on terms that are fair and reasonable.

168.  Ms Eu submitted that since s.4(2) is deliberately drafted in a negative sense, the Tribunal is left with a residual discretion as to whether to make an order for sale even if it is satisfied that redevelopment is justified.  We beg to differ and agree with the applicants that the answer to such a contention can be found in the judgment of Good Faith Properties Ltd & Ors v Cibean Development Co Ltd[69].

169.  In Good Faith, Lam VP had reinstated the statutory regime of the Ordinance and the four phases for the whole process enunciated by Ribeiro PJ in Capital Well Ltd v Bond Star Development Ltd (2005) 8 HKCFAR 578.  As far as the determination by the Tribunal is concerned, it is said that:

“6. The second phase is the determination by the Tribunal. Such determination usually falls into two parts. First, the Tribunal must determine whether the applicant has satisfied the conditions under s 4(2) of the LCSRO. Expert evidence is usually required to satisfy the first condition, viz redevelopment is justified due to the age or state of repair of the existing building. As for the second condition, whether the majority owner(s) has taken reasonable steps to acquire all the shares, including negotiating on terms that are fair and reasonable, is a matter of fact and judgment…

7. If those conditions are met, the Tribunal would have to set the reserve price and decide how the proceeds of sale are to be apportioned by reference to the valuations in the s 3(1) report…

…

11. We must recognise that the LCSRO is a statutory compromise balancing the competing interests of the co-owners: the majority owner’s interest in utilising his property by releasing the land for redevelopment versus the minority owner’s proprietary interest in the disposal of his own property. The right of private ownership protected under Article 6 of the Basic Law (see Litton NPJ in Sin Ho Yuen v Fineway Properties Ltd supra at para 24) should not be overridden without justification. Even if the right of private ownership of the minority owner were to be overridden when there is proper justification, there must be fair and reasonable compensation. Thus, the statutory compromise is to provide safeguards on two different levels:

(a) The majority owner(s) (who must hold at least 90% of the interest in the land) must establish his justification to the satisfaction of the Tribunal before he could override the private right of ownership of the minority owner. To do this, he must produce evidence to satisfy the statutory criteria; and

(b) If he manages to establish the grounds to the satisfaction of the court, the minority owner would have to sell his property even though he does not wish to do so. But he would get back a fair share of the sale proceeds on a pro rata apportionment determined by the Tribunal.

12. It is necessary to analyse the first tier safeguard at greater length because the proper understanding of this safeguard is important for the purposes of this appeal. First, until the Tribunal is satisfied that the statutory criteria are met, the majority owner(s) does not have any right to compel the minority owner to sell. The minority owner is quite entitled to insist on his right as private owner in rejecting any offers from the majority owner(s). After all, a person can have many reasons for refusing to sell his property and one should not simply focus on the monetary market value of a property to form views about the worth of one’s ownership. Though Hong Kong is a capitalistic society, we do not sell everything just because the price is right. There are other abstract matters which we treasure and one cannot simply put a price tag on them. Thus, it should not be regarded as a legal wrong for a minority owner to reject an offer from the majority owner even though such an offer may meet the statutory reasonable step requirement under s 4(2)(b).

13. LCSRO gives the majority owner(s) a means to override the will of the minority owner not because the minority owner has done something wrong: there is no legal wrong committed by the minority owner against the legal interests of the majority owner(s). It merely gives the majority owner(s) an opportunity to establish the justification for doing so to the satisfaction of the Tribunal. And it is only upon the Tribunal deciding that the statutory criteria have been met that the minority owner becomes obliged to sell.

…

15. Further, the LCSRO also gives a right to the minority owner to have his objections heard by the Tribunal. Objections can be raised in several respects. Under s 4(1)(a), the minority owner can dispute the value of the property. Under s 4(2), objections can be raised as to whether the applicant has met the statutory criteria in s 4(2)(a) and (b).

16. Though the Tribunal will only come to the question of reserve price under Schedule 2 para 2 pursuant to s 5(1)(a) after it concludes that the statutory criteria under s 4(2) are met, the minority owner is also entitled to be heard on the setting of the reserve price because it would have a bearing on the quantum of the sale proceeds in which he has an interest. Sin Ho Yuen v Fineway Properties Ltd, supra, is a case about the dispute between the majority owner and the minority owner in re-setting the reserve price.

…

18. To sum up, the first tier safeguard is to ensure that the minority owner’s right of private ownership of property is not taken from him without the Tribunal being satisfied in the statutory process that there are sufficient justifications for the same in terms of the statutory criteria.  The proceedings in the Lands Tribunal should be regarded as a statutory means to justify this exceptional interference with the right of private ownership of property…”

170.  As can be seen from the quotations cited above, whether the statutory criteria stipulated in s.4(2) have been met is the only requirement that this Tribunal needs to consider and once this Tribunal is satisfied that such statutory criteria had been met, an order for sale should be allowed, reserve price should then be set and the minority owners are obliged to sell.  There is no room for other consideration on top of the statutory criteria of age or state of repair and reasonable steps taken to acquire all the shares. 

H1.  Section 4(2)(a) - Age or State of Repair

171.  The applicants had relied on the expert report of Mr So, the Structural Engineer and Mr Wong, the Chartered Building Surveyor to justify that there should be a redevelopment of the Building due to age and state of repair.

172.  Mr So had conducted a structural assessment of the Building and prepared a report dated 24 June 2016[70]. He found the following defects in the Building:

(a)  The design and construction of the structural frames were based on an obsolete design and the Building might not possess adequate robustness to avoid disproportionate collapse due to accidents;

(b)  There are a total of 167 numbers of structural members exhibiting defects, in that 39 are accorded Severity Index 4 (‘detailed investigation required and to provide immediate protective measure if necessary’), 46 accorded Severity Index 3 (‘detailed investigation required’) and 82 accorded Severity Index 2 (‘general repair only but no detailed investigation required);

(c)  There is deficiency in the thickness of concrete cover in the structural frames of the Building to protect the embedded steel reinforcement bars against corrosion, fire and provide sufficient depth of concrete for the safe transmission of bond forces;

(d)  The carbonation depth test results revealed that the alkaline environment which gives protection to the embedded steel reinforcement bars in the reinforced concrete structural members against corrosion has been very extensively destroyed which is an indication that reinforcement bars near the surface of structural members are vulnerable to attack by corrosion;

(e)  The compression tests results revealed that there is deficiency in the concrete strength in 1 of 6 tested column samples and 2 of 6 tested slab samples;

(f)  All the steel reinforcement bars exposed from corrosion survey locations exhibit rust of various magnitudes and this is evidence that the high carbonation depths in the concrete has caused the corrosion of the embedded steel reinforcement bars;

(g)  Tilting of the Building to an extent of 1:713 has been observed; and

(h)  Extensive settlement of the sub-soil underneath the on-grade concrete Ground Floor slabs have been observed.

173.  Mr So come to the conclusion that the structural frames of the Building are in need of repair as the Building, designed and constructed with reinforced concrete more than 37 years ago is exhibiting defects disproportion to its age and according to the current condition of the structural frames of the Building, the deterioration will continue steadily due to extensive carbonation of the concrete.  New defects will be inevitable and previous defects though repaired will recur readily and required substantial repairs or even partial demolition and re-construction of some defective structural members in future. Although repairs are possible, repair work will need to be carried out regularly in the future and that such repairs will be more and more extensive as the structural frames become older.  Although the present cost of repair may be relatively modest, such cost will escalate in the future as the extent and seriousness of deterioration of the structural members increased with age.

174.  He recommended the following repair works for the structural frames:

(a) hammer tapping works to be carried out to all structure members of the Building and any defects such as spalling and cracks discovered together with spalling and cracks already identified to be repaired as a matter of urgency and for future repairs;

(b) In view of the extensiveness of structural defects found and the concrete covers are largely inadequate and highly carbonated, the next cycle and subsequent cycles of such repair works should be carried out at 3-yearly intervals;

(c) Thorough examination of the expansion joint to be carried out and to be monitored in the aspects of ground settlement and tilting be carried out for at least 12 months; and

(d)   Rectification works to the Ground Floor on-grade concrete to be carried out and the voids underneath the on-grade concrete to be filled.

175.  Mr Wong had carried out a condition survey of the Building and prepared a report dated 28 June 2016[71]. He found the Building is aged in the sense that:

(a) many features and facilities which would nowadays be expected to be standard provisions in a factory building are missing or though provided, have not been improved to meet the upgraded construction standards and statutory requirements;

(b) some features and facilities which were originally provided have now become obsolete or outdated;

(c) some of the key building parts, components and finishes have already passed or are nearing the end of their useful lives, including the external wall rendering, waterproofing to the main roof and other flat roofs, and the foulwater and rainwater underground drainage systems; and

(d) there has not been sufficient repair or renovation work over the years to maintain its structure frames, its components, its finishes and its service installations in a tenantable condition.

176.  On the state of repair of the Building, Mr Wong found the following defects which required remedial/repair work to be performed:

(a) a total of 171 nos. of hollow spots in the external rendering had been detected by infrared thermographic surveys which is potentially dangerous to public safety and complete replacement is required;

(b) unauthorized additions of A/C frames and pipes to the external walls require checking and maintenance or removal;

(c) asbestos found in some corrugated cement sheets, switch boxes and mastic under vinyl floor at 16 locations and these asbestos material should be removed;

(d) the unauthorized rooftop structure on Roof 14E and the five unauthorized staircase housings are not structurally sound on their own, and their loads have overloaded the roof slabs and the structural frames of the Building and should be removed with the affected areas reinstated according to the approved plan;

(e) original waterproof membrane to the roof is defective, complete replacements of roof coverings and waterproofing to the main roof and upper roof is required;

(f) the rendering to the inside faces of parapet walls are general poor and need to be completely replaced and repainted;

(g) wide gaps noted on one side of the main roof (adjoining No. 77) and the close gap on the other (adjoining No. 71) indicated that the Building’s superstructure has tilted sideward, though with no imminent structural danger envisaged in the near future, further on-going structural monitoring is required;

(h) the cement rendering to the water tank surfaces are crazed and stained requiring complete replacement and repainting with one manhole cover and two cat ladders to the water tanks need to be replaced;

(i) debris and unwanted fixtures on the main and upper roof areas need to be taken down and disposed;

(j) concrete carpark floors are worn and cracked with signs of ground settlement and since Mr So found many voids in the substrate underneath the ground floor slabs to the carpark and probably the G/F workshop, the majority area of the ground floor needs to be dug up, voids filled and floor slabs reconstructed;

(k) walls to the carpark are stained with paintwork peeling off and these need redecorating;

(l) ceilings and beams to the carpark are generally poor and required redecorating;

(m) unauthorized building works constructed in the carpark, including a steel framed structure for use as building management office, a toilet cubicle structure and exhaust fan openings formed in the enclosing wall, created structural and fire safety problems and need to be removed with affected reinstated;

(n) decorative appearances of the five staircases overall are poor, with walls, stair ceilings and soffits requiring redecoration work, handrails need to be wire brushed and repainted, inspection and maintenance should be carried out to the aluminum windows according to the Mandatory Windows Inspection Scheme and old windows should be replaced with new aluminum units;

(o) the five staircases are unsatisfactory means of fire escape for the upper floors due to unauthorized building works and/or deficiencies, all these unauthorized building works need to be removed or cleared;

(p) interior finishes to the upper floor lift lobbies overall are poor, floors need to be resurfaced, walls and ceilings need to be cleaned off and repainted;

(q) upper floor lift lobbies with fire escape routes have a few fire safety deficiencies which will be dangerous for its occupants in the case of fire;

(r) unauthorized flat roof structures found on the flat roofs to Workshops 5E, 5F and 5G which have caused structural safety concerns;

(s) common unauthorized building works found inside 17 out of the 37 workshops are sub-divisions into smaller units for separate occupancies resulted in inadequate fire resistance between the units and for the internal common corridors, therefore creating fire safety problems;

(t) common defects found inside the workshops are non-conforming front entrance doors, defective floor, wall and ceiling finishes to work area and lavatories, removed toilets resulting in insufficient sanitary provisions, defective lavatory doors, fitments and fitting as well as toilet cubicles and all required a replacement, reinstatement or paintwork decoration;

(u) original mild steel windows have rusted badly and are not water resistant, replacement with new aluminum unit is required;

(v) in 16 of the 37 workshops, the internal electrical installations and wirings were either in poor condition or haphazardly modified and required to be replaced completely;

(w) 31 workshops have not provided with equipotential bonding connections for metal fixtures installed inside thereby exposing occupants to risks of electric shock;

(x) Lockable cabinets should be provided to house the individual stop valves and meters for the fesh water system;

(y) Drainpipes that have not been replaced are generally of cast iron and due to lack of regular maintenance, should be replaced with epoxy lined cast iron pipes;

(z) No drainage of condensates from AC units installed externally;

(aa) CCTV surveys revealed most of the underground foulwater and stormwater drains underneath the Building are defective and have come to the end of their effective lives and required replacement;

(bb) The main electricity supply installation is serviceable but defects and fire safety deficiencies are noted and the bonding system and all its connections made to metal fixtures in the common areas and workshops should be checked and repaired, lightning protection system required to be installed and electrical installations and wirings installed in the upper lift lobbies needs to be enclosed with fire resisting enclosures;

(cc) The existing fire service installations have become sub-standard as compared with the requirements of current FSI Code so additions and improvements required; and

(dd) 3 cargo lifts with one upgraded to become a passenger’s lift, 2 cargo lifts remain manually operated are outdated and inefficient, need major checking and overhauling, desirable to upgrade the passenger’s lift to be an accessible lift for disabled persons and the door to the lift machine room needs to be replaced for fire safety.

177.  Having completed the condition surveys of the Building, as well as considering the report of Mr So on the structural aspect, Mr Wong opined that the Building is in a poor state of repair due to general wear and tear, noticeable in the defective external rendering, the substantial loss of subsoils underneath the ground floor and the lack of improvements to fire service installations.  The required repairs and improvements have been neglected in the past and most of the defects found in the Building are not superficial in nature which can be repaired effectively and economically.  He estimated the total repair cost to be $64,548,264 which represents 27% of the construction cost of a new superstructure similar to that of the Building.  Given the high repair cost, Mr Wong opined that the Building has deteriorated to a state which is beyond reasonable economic repair and even though periodic repairs can keep the Building in an operable condition, this will make the continued occupation of the Building uneconomical and even unsafe, to both occupants and third parties. The implementation of the immediate repairs will be disturbing and will last for at least 27 months.  In any event, even after the repairs, the Building is still an old industrial building with inherent limitations providing a lower quality of accommodation than a new building.  Revitalization is not feasible for the Building which is in multiple ownership as it would be difficult to obtain consensus from all owners and the closing date for such an application has already expired on 31 March 2016.

178.  The RS had adduced rebuttal reports of Mr Ng and Mr Lam in answer to the opinion of Mr So and Mr Wong.  According to the Joint Statements prepared by the pair of structural engineers[72], the following are in issue:

(a) Whether the Building has apparently tilted or suffered from angular distortion and its cause;

(b) Whether the requirements of the new building design codes since the construction of the Building is relevant;

(c) Whether the Building is in good structural condition;

(d) The methodology to be adopted in the rectification works to the voids underneath the existing on-grade slabs at G/F;

(e) Whether the ‘Practice Guidebook for Adaptive and Addition Works to Heritage Buildings 2012 (2016 Edition) is a relevant document for reference; and

(f) Are the number of testing locations sufficient for the structural investigation of the Building.

179.  According to the Joint Statements prepared by the pair of condition surveyors[73], the following are in issue which touched upon the costs of repair:

(a) Which is more practical, complete replacement of the external rendering or patch repair;

(b) Whether there is external water seepage and is it the responsibility of individual owner or the incorporated owners;

(c) Whether a covered walkway is required during the course of the repair works to the external wall;

(d) Whether it is the liability of individual owner or the incorporated owners for the following repairs/demolition:

i) the windows surrounds;

ii) the A/C frames on external walls;

iii) corrugated cement sheets, switch boxes and mastic under vinyl floor tiles;

iv) unauthorized rooftop structure;

v) main roof covering;

vi) rendering to parapet wall

vii) unauthorized flat roof structure outside Workshop 1F;

viii) unauthorized metal doors and gates at workshop exits    and/or protected lobby door openings;

ix) workshops internally;

(e) Whether the current MBIS standard should be adopted for the followings:

i) fire resisting doors;

ii) metal stair balustrades;

iii) fire resisting enclosures;

(f) Whether the underground drainage should be replaced;

(g) Whether the followings are improvement/upgrading item or a repair item:

i) Fire services installations;

ii) Cargo lifts; and

iii) Accessible lift;

(h) Whether the figure allowed for the following items necessary and/or reasonable:

i) Contract contingencies of 10%;

ii) Professional fees of 7.5%;

iii) Clerk of works for 15 months at $40,000/month;

iv) Comparison of repair cost to construction cost;

v) Work period; and

vi) Repair cost estimate.

H2.  Tenantable Condition

180.  Before we deal with the disputes among the experts, we have to determine what is tenantable condition. Mr Wong defines this as “a classification of the existing state of repair of a building.  If the state of repair of a building is up to the tenantable standard, it is in my view that the building is fit for the enjoyment of its users, which are reasonable in the present day circumstances for the type of building in question, with its structural frames, its components, its finishes and its service installations in either fair or good condition requiring no repair in the near future”[74]. Ms Eu, on the other hand, submitted that since most of the Building was in fact let out to tenants back in May 2014 and 5^th to 12^th and 14^th respondents were using their workshops and carparks themselves, 80% of the units in the Building were de facto tenantable.

181.  We do not agree by the mere fact that there are tenants in occupation in the Building, it can be taken that the Building is “tenantable” or in “tenantable condition”.  There are all the reasons for tenants to elect to stay at buildings which are not in tenantable condition.  Just looking at such criteria in deciding whether a building is in tenantable condition is taking the concept on face value only.

182.  We agree with the observation that tenantable condition is when the building is “reasonably fit for use in the sense that it should be safe and hygienic for occupiers and visitors, and provide a standard of comfort and convenience which is reasonable in the present day circumstances for the type of building in question” (emphasis added) in Intelligent House Ltd v Chan Tung Shing & Others [2008] 4 HKC 421.  And we also agree that such a standard is commensurate to the definition adopted by Mr Wong at §180 above.

H3.  Issues in Dispute between Mr So and Mr Ng

183.  It is not in dispute that the expansion joint between the Building and Yip Fat Phase I has widened at the top of the Building forming a crack and this is apparently a reason for concern.  Even though Mr So had suggested possible causes for the building movement, there is no conclusive evidence to come up with the reason to explain the appearance of the widened expansion joint or whether the Building is tilted.  However, irrespective of whether the Building is being tilted or suffered from angular distortion or the cause of the same, it is never suggested by Mr So that the Building is in dangerous condition not fit for occupation.  We agree with Mr So, and as agreed by Mr Ng in his evidence, that “monitoring of the angular distortion must be carried out, for at least 12 months” in order to ensure that the Building will not abruptly develop into a dangerous situation and this must include a thorough examination of the expansion joint as suggested by Mr So.  The existence of the widened expansion joint and the requirement of close monitor tend to show that the safety of the Building is of concern that cannot be ignored in the consideration of the age and state of repair of the Building.

184.  Since the Building was being built at a time when the design requirements under the relevant Code and Building Regulations were quite different when compared with those enforced today, there is the argument as to whether new design codes since the construction of the Building are relevant.  We find the answer to such an argument must be in the affirmative in the context of the Ordinance when considering the age and obsolescence of the Building.  Obsolescence is a concept of comparison.  Without reference to new design codes, how can any building constructed years ago be considered obsolete or aged if the same standard of design code at time of construction was being considered?  Having said so, we do not find the ‘Practice Guidebook for Adaptive and Addition Works to Heritage Buildings 2012’ (2016 Edition) relevant for reference since the Building is not a heritage building that is not required to meet the current design code.

185.  And we also agree with Mr So that the Building is not in good structural condition with such findings supported by test results and visual inspection whilst Mr Ng had only conducted inspection of the Building only.  The structural defects found by Mr So are not in dispute and are extensive and not just minor deterioration referred to by Mr Ng.  We accept Mr So’s findings that the Building had exhibited defects disproportionate to its age.  As for the sufficiency of the number of testing locations, there is no evidence to suggest that samples selected from 6 out of 15 storeys is insufficient.  Neither is there evidence to doubt Mr So’s conclusion that the samples obtained are sufficient for him to form an opinion on the structural condition of the Building.  Since Mr Ng had not conducted any sample tests on his own, we do not agree that he will be in a better position than Mr So to decide what sufficient sampling is required.

186.  It is not in dispute that the voids identified underneath the existing on-grade slabs at Ground Floor need to be rectified.  The only issue is the repair method to be adopted.  Mr So suggested a replacement of the existing on-grade concrete slabs and the sub-soil underneath the Ground Floor slab with suitable and selected earth which is to be compacted in layers and with such work to be done at the same time when the underground drain pipes are to be replaced which requires the same work process.  Mr Ng suggested the alternative of pressure injection with non-shrink grout material to fill up the voids underneath so as to provide a stiff enough base to support the existing on-grade slabs which gives a lower cost, shorter time and less disturbance to the tenants and owners. 

187.  We prefer the opinion of Mr So in this regard.  Mr Ng also admitted that he had never used the alternative method of pressure grouting for the repair of ground settlement. Other alternatives may well be available but without test being conducted to confirm or prove that the alternative method is suitable for such scenario, we cannot accept the alternative method suggested by Mr Ng should be considered or accepted.

H4.  Issues in Dispute between Mr Wong and Mr Lam

188.  We agree with Mr Wong that complete replacement of the external rendering is more appropriate compared to the piecemeal repair suggested by Mr Lam given the fact that 65% of the façade areas were not properly infrared scanned and if only take the hollow spots found by Mr Wong as the only defective areas, this would not reflect the actual wall areas that require repair.  Given the undisputed fact that there was no record of previous repairs of external rendering for the Building ever since it was built, we agree with Mr Wong that a complete replacement of the external rendering should be a more practical method. 

189.  The reliance by Mr Lam on the requirement for the Mandatory Building Inspection Scheme (“MBIS”) projects to support the argument that patch repair is sufficient or certain repair works are not necessary in order to satisfy safety requirement of the Buildings Department is unjustified.  We agree with Mr Wong that the repair standard of MBIS developed from the Buildings Ordinance and Regulations is only concerned with safety and hygienic aspects of buildings and its scope of work is rather limited and the owners are only required to repair to the standard applicable at the time when the building was built. 

190.  We agree with the findings in Intellectual House (supra) that for redevelopment under the Ordinance, the Tribunal is entitled to “look at repairs which would render the building to a tenantable condition fit for the enjoyment of its tenants and visitors, which is reasonable in the present day circumstances for the type of building in question” (at §182).  Such a consideration is apparently not canvassed by MBIS which only aimed at restoring safety to the buildings.  We find the MBIS standard not applicable in the consideration of redevelopment of a building and the costs of repair should not be pegged to such a standard.

191.  The same consideration should be applicable to the so called “upgrading items for fire services installations, cargo lifts and accessible lift”.  For repairs to achieve the purpose of rendering the Building to a tenantable condition in the consideration of the Ordinance, it should satisfy the requirement in the present day circumstances and should not be considered an upgrading/improvement item.

192.  As for the argument as to whether certain works are liability of individual owners or the Incorporated Owners, we find this to be irrelevant since it is the extent and state of repair that have to be considered and we fail to see how one can suggest that only repair in common areas should be considered.  Irrespective of who is liable to pay for the repair, if we accept those parts are required to be repaired and did reflect on the state of repair of the Building, this cannot be ignored.

193.  Mr Wong opined that covered walkways should be constructed on the public pavements to the front and rear sides of the Building during the course of replacement of the external rendering and painting work for the protection of the public.  Mr Lam found this rare in building repair projects since covered walkways are only required to be constructed for demolition of existing buildings, construction of new buildings or substantial building works to comply with the requirement of the Buildings Department.  We agree with Mr Wong that Hoi Yuen Road and its pavements in front of the Building are busy carriage and pedestrian ways.  With the external wall of the Building abutting the public pavement of Hoi Yuen Road and with the extent of work suggested by Mr Wong, covered walkways suggested is just reasonable in the circumstances of the Building.

194.  Mr Wong had engaged the Building Diagnostic Consultants Limited (Building Diagnostic”) to conduct CCTV surveys of the underground drains and visual inspection of manholes and based on defects revealed from the surveys and inspection, Building Diagnostic found both the underground foulwater and stormwater drains have come to the end of their effective lives and recommended 13 out of 16 numbers of underground drains to be replaced.  Mr Lam, after consulting an experienced contractor, opined that only 1 number of drain is required to be replaced since there is no major structural or major defects found for the other 12 numbers of drains which could be repaired by mechanical cleaning or provision of new lining.  We prefer the opinion of Mr Wong which is based on the findings of Building Diagnostic, a firm specialized in underground drains survey work who had conducted actual tests on the drainage system.  There is nothing to doubt the findings of Building Diagnostic whilst there is no information as to the qualification of so-called experienced contractor consulted by Mr Lam or whether any test had been conducted.  Since neither Mr Wong and Mr Lam are expert in underground drainage condition survey, we accept the evidence of Building Diagnostic.

195.  On the dispute as to the quantum of the contract contingencies and professional fees, we also prefer the opinion of Mr Wong.  Given the extent of the works involved, we accept the estimate on quantum and the work period required for the repair by Mr Wong is reasonable.  And for the same reason, a full time clerk of work should be in place for a better coordination of the different repair works.

196.  We accept the repair works recommended by Mr Wong are reasonable and necessary to reinstate the Building to a tenantable condition in the present day circumstances.  Mr Wong assessed the total cost of immediate repair works at $64,548,264 which is supported by the 5 quotations obtained by the tender organized by Mr Lam.  We find the estimate by Mr Wong to be in line with market estimate otherwise contractors will not put in tenders at such costs.  And we agree with Mr Wong that the exceptionally low estimate of Mr Lam is for common areas only and based on a lower standard applicable when the Building was built.  Judging from our findings above, this is apparently not an appropriate basis and had not covered all repair works required.  We also agree with Mr Wong that the repair cost should be compared to the construction cost of a new building instead of the EUV of the Building itself since we are considering whether to repair or to redevelop.  With the repair cost amounting to 27% of the construction cost, this is a rather substantial figure and tends to show that the repair is rather extensive and the Building is in serious disrepair and it is economically unworthy to repair the Building.  

197.  Ms Eu suggested that one should compare the repair costs with the EUV of the Building as found in Intelligent House (at §165).  However, such a comparison suggested in Intelligent House is in the consideration of the economic lifespan of the building in question.  The concept of economic lifespan had been doubted by the Court of Appeal in Fineway Properties Ltd v Sin Ho Yuen Victor [2010] 4 HKLRD 1.  We do not find it appropriate to adopt such an analysis in the consideration of the state of repair.  But even if we were to compare the repair cost to the EUV of the Building ($64,548,264/$1,095,262,000), a ratio of 5.9% is also a figure that cannot be lightly brushed aside since the enhancement value attributed from the repair is unlikely to be at such a high figure of at least 6%. 

H5. Conclusion on Age and State of Repair

198.  The Building is 37 years old and is an old industrial building in an area not zoned for industrial use.  By the Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice, the threshold requirement of majority holdings is being lowered from 90% to 80%, and it is specifically provided that the lower threshold is also applicable to an industrial building not within an industrial zone issued with an occupation permit at least 30 years before the relevant day (whilst for other kinds of buildings, at least 50 years).  Such a provision in the legislature must carry some thought and the only inference to be drawn is that industrial buildings in non-industrial zone calls for redevelopment consideration much earlier than those in an industrial zone.  The fact that there are many industrial buildings in the area which are far older is irrelevant.  Each building must be considered in its own case.

199.  It is argued by Ms Eu that Mr Yeung Kin Man (“Mr Yeung”) of the applicants and his nominees are the one in control of the Incorporated Owners and elected not to initiate any repair and maintenance work for the Building.  Worse still, to the extent that the applicants allow the condition of the Building to deteriorate and allow unauthorised building works to remain in their units, the respondents can do nothing except to repair or maintain their own units which are found to be in good condition.  So it would be grossly unreasonable to find that the Building should be torn down because of the state of repair for which the applicants and not the respondents are responsible.  We do not agree that the respondents can do nothing in this regard.  The Building Management Ordinance (Cap 344) has ample provisions to protect the interest of the minority owners including the dissolution of the management committee and the appointment of administrator to take over the management of the Building.  The respondents had also taken no step to push forward repair or maintenance work in the Building and they cannot just put the blame on the applicants.  The state of repair of the Building as it is should be the result of the inaction of all owners of the Building.

200.  Comparing to the up-to-date design requirements, we find the Building was obsolete in its safety design in many aspects to the extent that the Building might not possess adequate robustness to avoid disproportionate collapse due to accidents.  A number of modern features expected in new buildings cannot be found in the Building in particular for its fire services facilities.  Such functional and physical obsolescence found in the Building makes the Building no longer in a tenantable condition and may even be a danger to the occupiers and visitors.

201.  Having considered the evidence, we are satisfied that redevelopment of the Lot is justified due to age and state of repair in view of the following factors:

(a)   The Building is 37 years old and in a very poor condition,

(b)   Its design has become obsolete over time in many aspects both physically and functionally and failed to conform to modern construction and statutory standards and requirement, and

(c)   The Building is in serious disrepair and is not tenantable and disproportionate cost is required to repair and maintain the Building.

I.   Section 4(2)(b) – Whether the Applicant has taken reasonable steps

202.  The applicants are under an obligation to take reasonable steps to negotiate on terms that are fair and reasonable for the purchase of the interest of the RS owning minority interests in the Lot under section 4(2)(b) of the Ordinance.

203.  Mr Justice Ribeiro P J on behalf of the Court of Final Appeal in Capital Well Limited v Bond Star Development Limited (2005) 8 HKCFAR 578 (“Capital Well”) had remarked at §2 of p582 that:

“(the Ordinance) permits a person owning at least 90% of the undivided shares in the Lot, who has failed to acquire the balance of the undivided shares despite having made appropriate efforts to do so, to apply to the Lands Tribunal for a compulsory order requiring sale of the Lot for the purposes of redevelopment.”

204.  We share the view that the Ordinance provides a statutory mechanism which a majority owner may only invoke after he has taken reasonable steps to acquire the undivided share of a minority owner. Thus, to determine whether the applicants have taken reasonable steps in acquiring the units owned by RS, the Tribunal has to make reference to what steps/actions the applicants have actually taken at various stages in the acquisition process.

205.  It is not disputed that the applicants have made the following offers to R1, R5-12 & R14 but none of the offers were accepted[75]:

	1st Offer (25 February 2014)	2nd Offer (24 March 2014)	3rd Offer (7 October 2016)	4th Offer (9 December 2016)	EUV as revised on 6 December 2016
R1	$31,080,000	$31,100,000	$31,893,000	$34,452,644	$30,007,000
R5	$18,800,000	$18,820,000	$18,960,800	$20,367,744	$17,742,000
R6	$18,600,000	$18,620,000	$18,655,000	$20,174,623	$17,568,000
R7	$18,400,000	$18,420,000	$18,480,000	$19,981,503	$17,404,000
R8	$18,400,000	$18,420,000	$18,555,000	$19,968,629	$17,394,000
R9	$18,180,000 $1,140,000	$18,200,000 $1,150,000	$18,349,000 $1,200,000	$19,775,509	$17,220,000
R10	$17,880,000	$17,900,000	$18,170,000	$19,389,269	$16,887,000
R11	$2,068,000	$2,070,000	$2,200,000
R12	$17,820,000	$17,840,000	$18,000,000	$19,376,393	$16,872,000
R14	$1,730,000	$1,728,000	$1,800,000

That is, all the offers made were higher than the EUV of each unit owned by RS.

206.  The Tribunal should also determine whether the prices offered by the applicants are fair and reasonable in light of the independent professional valuation opinion available to the applicants at the time of the offers. By reference to the witness statements of MrYeung dated 29 June 2016, each offer letter of 25 February 2014 sent to the respective RS was accompanied by an advice letter from Mr A Chan setting out the EUVs, the then assessed RDV and the share of RDV attributable to the corresponding respondent. While this evidence is undisputed, the same is evidenced from the offer letters dated 9 December 2016 to the RS.

207.  From the table above, we note that the EUV determined by the Tribunal was even marginally smaller than the EUV as revised by Mr A Chan as at 6 December 2016.

208.  Of course, based on the EUV as determined by the Tribunal at Appendix A hereto and the RDV as determined by the Tribunal at Appendix E in the sum of $1,621,592,000, the apportioned RDV attributable to RS respectively are much higher than the offers by the applicants on 9 December 2016:

	Latest Offer	Pro-rata of RDV	Difference in Percentage
R1	$34,452,644	$43,877,000	27.4%
R5	$20,367,744	$25,913,000	27.2%
R6	$20,174,623	$25,663,000	27.2%
R7	$19,981,503	$25,425,000	27.2%
R8	$19,968,629	$25,414,000	27.3%
R9	$19,775,509 $1,200,000	$26,589,000	26.8%
R10	$19,389,269	$24,684,000	27.3%
R11	$2,200,000	$2,642,000	20.1%
R12	$19,376,393	$24,668,000	27.3%
R14	$1,800,000	$2,126,000	18.1%

209.  Pausing here, we should however bear in mind the following guidance from the Court of Final Appeal in Capital Well, at §33:

“... the Tribunal is not conducting a valuation exercise. It does not need to adjudicate upon any disputes about the correct valuation principles to be applied. It does not itself arrive at any conclusion as to what figure represents the correct valuation. It merely needs to be satisfied that, on the evidence available, the offer falls within the range of what may broadly be regarded as fair and reasonable compensation for the interest in question.”

210.  The Court of Final Appeal stated further at §36 of the judgment that:

“What the Tribunal must do is to consider whether, in the circumstances of each case, the offer falls within a band of what represents a fair and reasonable assessment of the value of the minority owner’s interest reflecting a proportionate share of the redevelopment value of the whole site.”

211.  Thus, in deciding on the issue of whether the applicants have taken reasonable steps to acquire the undivided shares held by RS, the offers, as decided by the Court of Final Appeal, need only fall within “a range of what may broadly be regarded as fair and reasonable compensation”. 

212.  Also, it is trite that property valuation is not an exact science; mathematical precision is neither a feature of valuation particularly for developable land owing to the imperfection of the market where even between skilled valuers the margin of opinion may be surprisingly wide. In Singer & Friedlander Limited v John D Wood & Co (1977) 243 EG 212; (1977) 2 EGLR 84, Watkins J stated:

“The valuation of land by trained, competent and careful professional men is a task which rarely, if ever, admits of precise conclusion. Often beyond certain well-founded facts so many imponderables confront the valuer that he is obliged to proceed on the basis of assumptions. Therefore he cannot be faulted for achieving a result which does not admit of some degree of error.”

213.  Nevertheless, the learned judge went on to say that it was agreed generally in the profession that a permissible margin was 10% either side of a figure which could be said to be the right figure (assessed as if arrived at when the valuation was made and not with the benefit of hindsight). In exceptional circumstances the margin could be 15% or a little more either way. In Muldoon v Maps of Lilliput Limited (1993) 14 EG 100, Judge Zucker QC used a range of 15-20%[76]; this illustrates that the margin of error has not been set by precedent.

214.  It is not disputed that the latest offers made by the applicants to the RS were over the 20% bracket, if there is a bracket to be applied at all. Nevertheless, we consider that the offers were still reasonable and acceptable as there has been a dearth of reliable land transaction in the vicinity for direct comparison. To the extent that both valuation experts of the parties resort to the residual valuation in determining the land value of the Lot, there is also a dearth of transactions of modern day industrial premises for assessing the GDV. Taking into account the above, we consider the offers fall within a band of what represents a fair and reasonable assessment of the value of the minority owner’s interest reflecting a proportionate share of the redevelopment value of the whole site.

215.  We are therefore satisfied that on the evidence available and in the circumstances of the Application, the applicants have taken reasonable steps to acquire all the undivided shares in the Lot which include negotiating for the purchase of such of those shares as are owned by RS on terms that are fair and reasonable.

J.   Conclusion

216.  We are satisfied that redevelopment of the Lot is justified both in terms of age and state of repair of the Buildings and the applicants had taken reasonable steps to acquire all the undivided shares of the Lot and had negotiated for the purchase of those shares as are owned by that minority owner on terms that are fair and reasonable.  Under such circumstances, we found an order for sale should be granted in favour of the applicants.

K.   Order

217.  This Tribunal make the following orders:

(1)   This Tribunal is satisfied that the value of the respondents’ units as assessed in this Application is fair and reasonable and is fair and reasonable when compared with the values of the applicants’ units;

(2)   This Tribunal is satisfied that the redevelopment of the Lot is justified due to the age or state of repair of the Building, and that the applicants has taken reasonable steps to acquire all the undivided shares in the Lot including that of the respondents;

(3)   All the undivided shares in the Lot, the subject of the Application, be sold by way of public auction for the purposes of redevelopment of the Lots with the reserve price be set at $1,621,592,000;

(4)   Parties to use their best endeavor to agree on the appointment of trustees and solicitors for the trustees as well as the draft particulars and conditions of sale and report to this Tribunal on the progress on or before 27 October 2017;

(5)   Subject to further extensions that the Tribunal may subsequently allow upon the application of the purchaser of the Lot or its successor in title, the redevelopment of the Lot and the Building shall be completed and made fit for occupation within a period of 6 years after the date on which the purchaser of the Lot becomes the owner of the Lot;

(6)   Liberty to the applicants, the respondents and the Trustees to apply to the Tribunal for further directions.

(7)   We make a costs order nisi that the applicants do pay the respondents costs of the Application, including all costs reserved to be taxed if not agreed on High Court Scale. This is a costs order nisi.  Unless any of the parties apply by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.

218.  It remains for us to thank counsel for their invaluable assistance. 

Appendices A-F