CLP POWER HONG KONG LTD v. COMMISSIONER OF RATING AND VALUATION

LDRA536/1999 & 48 others

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

RULES 4, 14 AND 20 OF THE LANDS TRIBUNAL RULES

APPLICATION NO. LDRA 536-540 OF 1999, LDRA 542-543 OF 1999,
LDRA 504-508 OF 2001, LDRA 363-367 OF 2002,
LDRA 819-823 OF 2003, LDRA 365-369 OF 2004,
LDRA 466-470 OF 2005, LDRA 130-134 OF 2006,
LDRA 114-118 OF 2007, LDGA 21 OF 2001,
LDGA 767 OF 2002, LDGA 618 OF 2003,
LDGA 241 OF 2004, LDGA 173 OF 2005,
LDGA 153 OF 2006, LDGA 112 OF 2007
(Heard together)

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J U D G M E N T

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1.  This is an application for a review of my decision on 3 November this year concerning various appeals, in particular whether they should be consolidated and be heard together or whether there should be a single appeal being allowed to be proceeded and treated as a test appeal.

2.  In my decision on 3 November I decided that as a matter of case management, having considered various factors which I have mentioned in my judgment given on that day, there should be a single case chosen as a test appeal, with the other appeals continued to be stayed in the meantime pending the outcome of the test appeal.

3.    The applicant seeks to review that decision. Under the Lands Tribunal Ordinance,  the Tribunal may review its decisions in accordance with section 11A of the Lands Tribunal Ordinance.  Subsection (1) says the Tribunal may, within one month from the date of any decisions by it, decide to review their decisions, and on such grounds that it may think sufficient may set aside, reverse, vary or confirm it.  Subsection (3) provides that:

“If the Tribunal shall have decided within one month from the date of any decisions to exercise its power of review in respect thereof, such power may be exercised at any time thereafter, whether within such period of one month or otherwise.”

4.  In my judgment, the wording of section 11A makes it quite clear that a review process in the Lands Tribunal is a two stage process.  First, the Tribunal has to ask the question whether there should be a review and make a decision on that.  If the Tribunal decided that there should be a review, then the review will proceed.  That will be the second stage.  And at the second stage, as provided under section 11A(4), the Tribunal may hear and receive evidence it thinks fit for the purpose of determining the issues between the parties. 

5.  As far as the first stage is concerned, it is no less a decision by the Tribunal.  In other words, on the question of whether there should be a review, it is quite clear from the wording of subsection (1) and (3) that the Tribunal has to make a decision and that decision has to be made within one month.  Since the present application is made in respect of my decision on 3 November, time will expire today for me to decide whether there should be a review.  Unfortunately this application for a review was made by the applicant quite late yesterday afternoon. 

6.  There has been some confusion as to whether the respondent is entitled to be heard on this matter in regard to the first stage of the process.  Mr Wilmot referred me to a decision of Judge Wong in the case of Good Trader Limited v Hinking Investment Limited in LDCS1000/2006, in which the presiding officer held that as far as the first stage is concerned it could be an ex-parte process,  i.e. there is no requirement that the respondent be afforded an opportunity to be heard.  With respect, I do not agree.  A decision of the Tribunal, like any judicial decision, should - except in clearly established cases (like ex parte applications for injunctive or similar relief) or except when the wording of the statute clearly indicates to the contrary - should not be decided on ex parte basis.  It is a fundamental precept of our legal system that no party shall be condemned unheard.  So when there is  a matter which requires judicial determination, prima facie everybody interested or every party to the application is entitled to be heard. 

7.  One then turns to the wording of the statute to see whether there is anything by implication stemming from the statute which suggests that the statute authorised ex parte application as far as application for review is concerned.  I appreciate a decision on whether there should be a review does not touch on the  substantive merit as far the matters under review is concerned.  In a way it is a procedural decision.  But the fact that it is a procedural decision does not mean that by implication the other party is not entitled to be heard.  The court has to decide on procedural matters as well as substantive matters.  And it is a feature in our legal system that even for procedural matters normally the court should not make a decision unless both parties are heard. 

8.  In the Good Trader case Judge Wong in fact referred to another decision, an earlier decision by the Tribunal, which decided that a respondent is entitled to be heard on the first stage.  This is the case of Solar Max Limited v Homex  Investment Limited, LT358/1997.   However, Judge Wong was persuaded otherwise in the light of the decision of Deputy High Court Judge Kwan, as she then was, in the case of Lee King Sin v Stikeman, Elliott, a Labour Tribunal case, HCLA83/2000.  I am not concerned with the review procedures in the Labour Tribunal, but it seems to me that there are differences in the wording in the Labour Tribunal Ordinance and that in Section 11A.

9.  One must remember that a review will inevitably disrupt the smooth continuation of proceedings, especially if a review is sought in respect of case management decisions as regards how a matter should be proceeded.  In my view, in this sort of situation there is no justification for depriving a respondent an opportunity to be heard as regards why there should not be a review.  As Mr Man pointed out at today’s hearing, taking the present case as an example, since 3 November the respondent has been working on the assumption, or rather on the basis, that there will be a test appeal and expert reports were prepared accordingly.  In other words, experts were instructed to deal with the matters on the basis that he is only concerned with one single appeal as opposed to appeal covering different years. 

10.  I would not repeat what I said on the last occasion about the difference in terms of an expert report for several years or an appeal covering several years as opposed to a report on just one single year.  I remain of the view that if the appeal is to be heard on the basis that it will deal with matters covering several years, it will be unduly complicated.  This is because the state of the knowledge of the hypothetical tenant and the hypothetical landlord may vary in different years, and therefore, as far as preparation of expert reports covering appeals on several years is concerned, the expert has to give evidence on the perspective of the hypothetical landlord and hypothetical tenant in respect of each of the years under appeal.  I am not satisfied that this is a case where one can say that, “Well, the additional burden on the evidence would only be minimal just because of the inclusion of several years instead of just one year in the appeal.”  And this illustrates why it is important that one should stick to the original decision on case management unless there is very cogent and overriding reason to suggest that one should re-examine the situation.  And on these matters I think the respondent is entitled to be heard. 

11.  Coming to the facts of the present case, the applicant pinpointed two new matters to suggest that as a result of those matters this court should re-examine the decisions on 3 November.  The first point is about the possibility of a refund and the substantial amount being involved in the case of a refund.  The argument is that because of what has been said by the expert in another appeal the applicant expects the same thing will be said in respect of these appeals involving the applicants.  As a result of the increase in the WACC, the applicant said it is likely that there will be a refund.  And if all these appeals of the applicant were heard together and decided at the same time, they can expect a refund at an earlier time, as compared with having a test appeal and the other appeals not to be dealt with in the meantime. 

12.  That may be so, but I am not impressed that one should revisit the question of the decision on 3 November 2008 just because of this factor.  This is particularly so in the light of the fact that the applicant has agreed to have all these appeals stayed for quite a considerable time already.  Moreover, as soon as a decision is reached in a test appeal, and by then it is also likely that there will also be a decision handed down in respect of the HEC appeal, it is very likely that all the other appeals can be resolved in the light of what has been decided in the test appeal as well as the HEC appeal. 

13.  It is also likely that even if the other appeals have to be restored for argument there could be arrangement in the meantime for some partial refunds.  In any event, I am told that there is a High Court action pending, namely High Court action 2290/2007, in which the applicant is making a restitution claim against the respondent with regard to amount to be refunded as far as the interest element is concerned.  Therefore, if the applicant has a claim for any financial disadvantage as a result of rate being paid in advance pending the outcome of appeal, that can be ventilated in the High Court proceedings.

14.  The other new factor urged upon me to reconsider my decision is the new appeal by the applicant with regard to the Commissioner’s decision for the year of 2008.  I am not going to speculate about the progress of that appeal.  That may or may not be stayed pending the outcome of the test appeal.  It may be that the parties would like to give some consideration to that after today.  But I do not think the fact that there is another appeal by CLP should have any bearing at all about my case management decision with regard to the other appeal which has been stayed by consent, and the decision had been made by this court on 3 November that there should not be any lifting of those stays pending the outcome of the test appeal. 

15.  I think it is important to bear in mind that it is desirable that matters are proceeded with and decisions can be made as early as possible.  Unfortunately, as far as these appeals are concerned, they have been stayed, and matters have been allowed to be left hanging there for quite a substantial time already.  But as far as the progress of the matters is concerned, this court has made the decisions on 3 November as to how the matters can be efficiently and effectively decided.  It is a case management discretion of the Tribunal, bearing in mind the circumstances of the case, to decide that the test appeal procedure is the preferred option.  If one were to re-examine that, as I have said previously, there has to be good and cogent reasons.  I am afraid, having heard submissions from Mr Wilmot and considering what he has said about the circumstances, I do not see any ground to revisit that decision. 

16.  The other matters he set out in the skeleton submissions are basically points that have been raised in the hearing on 3 November.  I would not go through them again.  For example, he asked the court to consider the lifting of the stay in the HEC appeals, and he mentioned about perception of unfair treatment.  With respect, I do not agree.  As I said, the question of whether there should be a consolidated appeal in the HEC case is still an open question.  In any event, as far as the practical side of the matter is concerned it really boils down to the question of the timing of the refund.  And this is a point I have already dealt with.

17.  I therefore remain of the view that as far as the CLP appeals are concerned the way to proceed is to conduct a test appeal.  Therefore I refuse any application for a review.