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

LDGA 241/2004
& LDRA 365-369/2004

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

GOVERNMENT RENT APPEAL NO 241 OF 2004

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BETWEEN

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J U D G M E N T

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Hon Au J :

A. INTRODUCTION

1.   On 24 April 2013, the Tribunal handed down its decision (“the Decision”) allowing CLP (the appellant)’s appeal against CRV (the respondent)’s 2004/05 rating assessment of its tenement for the generation, distribution and supply of electricity.

2.   Respectively on 15 and 16 May 2013, CRV and CLP applied for the review of the Decision pursuant to s 11A of the Lands Tribunal Ordinance (Cap 17) (“LTO”) on various grounds stated respectively in their applications.

3.   The Tribunal granted leave to both CLP and CRV to apply to review the Judgment.  The said reviews are now set down to be heard together in December 2013.

4.   By its summons dated 12 August 2013, CLP asks for an extension of time to apply for leave to appeal against the Decision from 22 May 2013[1] until 28 days after the Tribunal has handed down its decision (“the Review Decision”) of the above reviews.

5.   This is the hearing of CLP’s summons.

6.   Given the contentions between the parties (which I would elaborate below), two principal issues arise in this summons.  They are, where a review application has been made in relation to a Tribunal’s order or decision, whether:

(1)   The statutory period provided in the LTO for a party to make an application for leave to appeal against the Tribunal’s order or decision starts to run from the date of the original decision or the date of the decision of the review; and

(2)   If time is to run from the date of the review decision, the grounds of appeal are only limited to matters raised in the review or not.

7.   The above issues turn on the construction of the relevant provisions of the LTO.

B. THE RELEVANT PROVISIONS IN THE LTO

8.   Under the LTO, after the Tribunal has made a judgment, order or decision, a party can (a) ask for the review of that judgment, order or decision, and (b) appeal against the same.

9.   The relevant provisions relating to the procedures of the said review application and appeal are set out in ss 11, 11AA and 11A of the LTO as follows:

“11    Decisions of Tribunal final

(1) Subject to subsection (2) and section 11A, the decision of the Tribunal in determining-

(a) …; or

(b) any appeal submitted to it under section 8(4), shall be the final determination thereof.

(2) Subject to section 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.

(3) Subject to subsection (4), any appeal under subsection (2) shall be brought in such manner and shall be subject to such conditions as are prescribed by the Rules of the High Court.

(4) The time within which a notice of appeal must be served shall be calculated from the date on which leave to appeal is granted under section 11AA.

11AA       Leave to appeal

(1) Subject to subsection (2), no appeal may be made under section 11(2) unless leave to appeal has been granted by the Tribunal or the Court of Appeal.

(2) ...

(3) ...

(4) ...

(5) Leave to appeal may be granted—

(a)   in respect of a particular issue arising out of the judgment, order or decision; and

(b)   subject to such conditions as the Tribunal, the Court of Appeal or the registrar hearing the application for leave considers necessary in order to secure the just, expeditious and economical disposal of the appeal.

(6) Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that—

(a)   the appeal has a reasonable prospect of success; or

(b)   there is some other reason in the interests of justice why the appeal should be heard.

(7) ...

(8) ...

11A   Review of decision

(1) The Tribunal may, within 1 month from the date of any decision by it, decide to review that decision and, on such grounds as it may think sufficient, may set aside, reverse, vary or confirm it.

(2) …

(3) If the Tribunal shall have decided, within 1 month from the date of any decision, to exercise its power of review in respect thereof, such power may be exercised at any time thereafter whether within such period of 1 month or otherwise.

(4) …

(5) The Tribunal shall not exercise its power of review in respect of a decision-

(a) subject to subsection (6), if the decision has already been the subject of a review or the decision is a decision setting aside, reversing, varying or confirming under this section another decision of the Tribunal; or

(b) subsequent to the commencement of proceedings by any party with a view to questioning the decision, by way of appeal or otherwise, unless such proceedings have been abandoned.” (emphasis added)

10.   Further Rules 30B and 30D of the Lands Tribunal Rules (“the Rules”) are also relevant which provide as follows:

“30B (1)  An application for leave to appeal against a judgment, order or decision of the Tribunal must be made to the Tribunal first before the application may be made to the Court of Appeal.

(2)  The application to the Tribunal must be made within-

(a)  in the case of an appeal against a judgment, order or decision other than an interlocutory judgment, order or decision, 28 days from the date of the judgment, order or decision;

(b)  in the case of an appeal against an interlocutory judgment, order or decision, 14 days from the date of the interlocutory judgment, order or decision.

(3)  So far as is practicable, the application must be made to the member or members of the Tribunal against whose judgment, order or decision leave to appeal is sought.

(4)  Where the Tribunal refuses the application, a further application for leave to appeal may be made to the Court of Appeal within 14 days from the date of refusal.

(5)  An application under this rule must be made inter partes if the proceedings to which the judgment, order or decision relates are inter partes.

30D  The Tribunal or the Court of Appeal may, at any time, and notwithstanding that the time for an appeal or an application for leave to appeal may have already expired, extend the time for the appeal or for applying for leave to appeal.”

11.   Thus, insofar as a review is concerned:

(1)   It can be made within 1 month from the date of the Tribunal’s decision (s 11A(1)).

(2)   The Tribunal can decide (whether on its own motion or on the application by the parties) whether to review the decision or not within that month (s 11A(2)).

(3)   Once the Tribunal so decides to review the decision, it can exercise that power at any time thereafter (s 11A(3)).

(4)   The Tribunal cannot exercise its power of review if a party has commenced an appeal against the decision.  However, the Tribunal can so exercise its power of review if the party abandons the appeal proceedings (s 11A(5)(b)).

(5)   There are no statutory limitations as to on what grounds the decision can be reviewed.  In other words, the Tribunal can review the decision on any factual, evidential and legal basis.

(6)   On the exercise of the review, the Tribunal can set aside, reverse, vary or confirm the decision under review (s 11A(1)).

12.   Relevant for the present purpose, in relation to an appeal against a decision:

(1)   A party has to first apply to the Tribunal for leave to appeal against the decision within 28 days of the date of that decision (s 11AA(1), Rules 30B(1), and (2)(a)).

(2)   The Tribunal could extend time for the said application for leave to appeal (Rule 30D).

(3)   The grounds of any such appeal are limited to errors on point of law in the decision (s 11(2)).

C. THE PRESENT APPLICATION

13.   In the present application, in opposing the application, it is CRV’s contentions that, as a matter of proper construction of the relevant provisions in the LTO:

(1)   The statutory 28 days period for a party to apply to appeal against a final decision (“the original decision”) of the Tribunal is to run from the date of the original decision, even if a review has been made against that decision.

(2)   On review, the Tribunal’s power under s 11A(1) is to set aside, reverse, vary or confirm its decision.  In other words, it will make a fresh decision which supersedes the original decision.  Thus, when the Tribunal makes a decision on review (“the review decision”), the original decision ceases to be operative.

(3)   When the original decision has been so reviewed by the Tribunal, the statutory 28 days period for an application for leave to appeal against that review decision runs of course from the date of that review decision.  However, in the intended appeal against the review decision, a party cannot rely on any grounds of appeal that have not been raised and dealt with in the review.

(4)   In the premises, the Tribunal simply has no jurisdiction or power to grant the time extension sought in the summons, which is to appeal against the original decision with a time to run from the date of the review decision.  This is so since once a review decision has been made, CLP is limited to appealing against the review decision (as the original decision has already been superseded).  Moreover, in such an appeal, CLP can only rely on those grounds which have been raised and dealt with in the review.

14.   In my view, CRV is right to say that the review decision would supersede the original decision.  This is in fact also accepted by CLP, where Mr Litton in his reply written submissions^[2] accepts that there is only one operative decision after the review decision: that is the review decision, which confirms the original decision save as those parts set aside, reversed or varied by the Tribunal.  This must be correct.

15.   In the premises, once a review decision has been made, there is no question of appealing against the original decision as such, which has been superseded.  There is thus no question of extending time for leave to appeal against the original decision.

16.   Any appeal by then is and can only be directed at the review decision, and the time to apply for leave to appeal is to run from the date of the review decision.  This is consistent with Yuen JA’s observations in The Incorporated Owners of Sea View Estate (Watson Road) v Christina Chung Tak Tsing (unrep., HCMP 1885/2008, 22 Oct 2008), where her Ladyship said at paras 15‑18:

“Jurisdiction for appeal

15.  A person aggrieved may only appeal against an order of the Tribunal if there has been an error of law: s.11(2) Lands Tribunal Ordinance Cap. 17.  If this criterion is satisfied, then under Order 60A of the Rules of the High Court, he should – within 21 days of the date on which the order was made – serve a Notice of Appeal on the parties and on the Tribunal, which Notice must specify the grounds of the appeal together with the question of law to be decided by the Court of Appeal: O.60A rule 2(2) RHC.

Jurisdiction for review

16.  However if a litigant wishes the Tribunal to review an order (which jurisdiction is not confined to errors of law), then under s.11A(1) and (2) of the LTO, he should – before 1 month from the date on which the order was made – apply to the Tribunal to review the order.  The Tribunal’s decision whether or not to exercise its power of review should be made within 1 month of the date on which the original order was made: s.11A(1) LTO, but if there is an extant appeal, then the Tribunal is not permitted to exercise its power of review: see s.11A(5)(b) LTO which provides:

‘The Tribunal shall not exercise its power of review in respect of a decision –

(a)   ...

(b)   subsequent to the commencement of proceedings by any party with a view to questioning the decision, by way of appeal or otherwise, unless such proceedings have been abandoned’.

Timing

17.  So it seems to me that a person aggrieved by an order must first decide if he satisfies the criterion for an appeal from the Lands Tribunal, ie that there is an error of law.  If he considers that there is an error of law, then he should lodge a Notice of Appeal within 21 days of the order, specifying the grounds of appeal and formulating the question of law.

18.  If however he wishes to persuade the Tribunal to change its mind (whether on fact or law), then he can apply to the Tribunal for a review, but he must not lodge an appeal first.

-   Then if the Tribunal declines to exercise its power of review, and if the criterion for an appeal on law is fulfilled, he can then lodge an appeal.  If by the time the Tribunal declines to exercise its power of review (which may be up to 1 month) the 21 days for lodging an appeal has already expired, then he would have to ask for an extension of time to lodge the Notice of Appeal (though the reason for the delay would be self-evident).

-   On the other hand if the Tribunal exercises the power of review but upholds the order on review, and if the criterion for an appeal on law is fulfilled, he can then lodge an appeal – not against the original order – but against the order made on review within 21 days of the date of that order.  It seems to me that it would make no sense to count the time of appeal from the date of the original order when the purpose of a review is to enable a tribunal to reconsider the matter and to vary its order if considered appropriate, and when the legislation forbids an appeal and a review from being progressed simultaneously.” (emphasis added)

17.   However, I do not accept CRV’s submissions that in appealing against the review decision, the appellant is limited to only those grounds which have been raised in the review itself.  My reasons are as follows.

18.   First, the appeal is against a fresh decision. Unless clearly restricted by statute, as a matter of principle, there is no reason why a party is not allowed to raise any grounds of error of law to appeal against that fresh decision.  In particular, an appeal and a review are in nature two very different procedures.

19.   Second, as mentioned above, an appeal is limited to errors of law, while a review can include any grounds relating to facts or law (including that, on review, the Tribunal can look at new evidence).  If a party is dissatisfied with the Tribunal’s original decision on the basis that the Tribunal is wrong both on certain finding of facts and certain conclusions on the law, there are circumstances where it would be time and costs saving for the party to first ask the Tribunal to review its finding on the facts, and thereafter (depending on the result of the review) to appeal against the conclusions on the law.

20.   For example, where the party is simply disagreeing with Tribunal’s analysis of the law in rejecting its submissions at first instance, it is likely to be a waste of time and costs for that party to repeat its submissions on the law (which have already been made at the first hearing) again at the review.  In the premises, it would obviously be more sensible for the party to seek a review on the grounds of the finding of facts first, but reserve the arguments on the points of law on appeal.  Further, there may well be situations where, if the Tribunal does “correct” its challenged finding of facts on review, it may well have been sufficient to vary or set aside the original decision as sought by the party.  This may render the intended appeal on the law unnecessary.

21.   In those scenarios, if CRV’s submissions were correct, the procedures would require the party to in any event include all the grounds (both on the law and the facts) in the review so as to preserve its right to appeal on the points of law, even though it is likely to be a waste of time to argue those points of law again at the review.

22.   In my view, again unless it is clearly provided in the statute, it cannot be objectively the intention of the legislature to require the parties to incur unnecessary costs and time by including in the grounds of review errors of law where those are clearly more appropriate to be reserved for arguments on appeal.  This is particularly so as procedures of the Lands Tribunal are intended to be flexible and costs saving.

23.   However, Ms Cheng SC for CRV submits that s 11A(5)(b) of LTO is such a clear provision.  Counsel argues that, in requiring the Tribunal not to proceed with a review unless an appeal (if commenced) is abandoned, the provision shows precisely that the legislature intended the party to elect between an appeal and a review to challenge the original decision.  Ms Cheng contends that if a party were allowed to raise the grounds in a later appeal (against the review decision) which are not raised in the review itself, this would have circumvented the effect of this provision.  Ms Cheng also says Yuen JA’s observations in The Incorporated Owners of Sea View Estate (Watson Road), supra, support the contention.

24.   With respect, I am not persuaded by the submissions.

25.   Yuen JA’s said dicta in The Incorporated Owners of Sea View Estate (Watson Road) dealt with the only issue on when did the statutory time limit to apply for leave to appeal start to run.  It was not an issue in that case as to what were the grounds a party could rely on when appealing against the review decision.  No arguments were advanced in relation to that issue.  I therefore do not think one can read that part of the judgment too much.  In any event, I also do not find anything that was said in that judgment clearly supports the contention that one cannot rely on any grounds of error of law in an appeal against the review decision that have not been raised in the review itself.

26.   Second, objectively read, all that this provision is prohibiting is to have two procedures going on at the same time.  This is objectively understandable given (a) the need to avoid complications and confusion in procedures, and (b) the fact that any successful review on the finding of facts may well have an impact on the appeal on law.  I further repeat my observations at paragraphs 20 and 22 above.

27.   In my view, this provision per se is also equally consistent with a construction that the party could still raise the grounds contained in the original pending appeal later.  There is no express prohibition against that.  Further:

(1)   It is not an express requirement that the provision is operative only where the grounds relied on by the party in the review and the appeal proceedings are the same.  In other words, it is not the objective intention of that provision that a party has to choose between the two procedures because they are repetitive on the grounds of challenge.

(2)   It is thus difficult to see that the legislature would have intended by way of s 11A(5)(b) to take away the party’s right to raise those grounds in a subsequent appeal against a fresh decision, without expressly saying that the party in abandoning the appeal at that stage is not entitled to raise those grounds again (unless they have also been included in the review).

28.   Finally, I accept Mr Litton’s submissions that in appealing against the review decision as a fresh decision, the court is entitled to look at and consider two reasoned judgments (one in relation to the original decision and the other the review decision) as observed by Godfrey JA in CLP v Commissioner of Rating and Valuation [1996] RA 475 at 533-534, where it is said:

“Both the ratepayer, and the commissioner, applied to the Lands Tribunal for a review of the first order, under the provisions in that behalf contained in s 11A(1) of the Lands Tribunal Ordinance.  By an order of 24^th August 1994 the Lands Tribunal increased the rateable value to $2,020 m (inclusive of the $74.2 m).  The second order contained the following paragraph:

‘3. The prior judgment of the tribunal dated the 30^th April 1994, except to the extent that it is varied by this review judgment, is otherwise confirmed.’

This paragraph of the second order appears to be based on a misconception by the Lands Tribunal.  The jurisdiction of the Lands Tribunal under s 11A(1) is a jurisdiction to ‘set aside, reverse, vary or confirm’ the decision. It is, formally, only the decision which can be reviewed; not, as the Lands Tribunal appears to have thought, its reasons for arriving at its decision.  The failure on the part of the Lands Tribunal to appreciate this has led to an argument in this court (lasting a whole day) as to the material which this court was entitled to consider on the hearing of the commissioner's substantive appeal.  What happened was that the Lands Tribunal, in making the second order, justified it by delivering a ‘judgment’ (ie reasons for its decision) in which it purported formally to alter, in certain respects, the terms of the ‘judgment’ (ie reasons for its decision) which it had delivered in support of the first order. The Lands Tribunal had no power to do this.  It was entitled to say, in its second ‘judgment’, whatever it liked about the contents of the first ‘judgment’, but it had no power to alter the terms of the first ‘judgment’ only to ‘set aside, reverse, vary or confirm’ its original decision.  This court is concerned only with the correctness or otherwise of the Lands Tribunal's ultimate decision, which is its decision as recorded in the second order.  In deciding whether the commissioner is entitled to impeach that decision, this court must take into account all the reasoning which the Lands Tribunal employed in arriving at it, that is to say, the reasons expressed in the ‘judgment’ delivered by the Lands Tribunal in support of the first order and also those expressed in the ‘judgment’ delivered by the Lands Tribunal in support of the second order (its ultimate order).” (emphasis added, save where the bold emphasis is original)

29.   The original reasons in support of the original decision are ones which either by definition have not been challenged in the review, or (if so challenged) have been adopted in the review decision.  There is no suggestion in Godfrey JA’s observation that one is only limited to look at those reasons in the latter scenario.  This is thus consistent with the view that in appealing against the review decision, one may still challenge it on the basis of errors of law of the Tribunal’s original reasons which have not been reviewed.

D. CONCLUSION

30.   For the above reasons, I conclude that once the Tribunal has made a review decision:

(1)   A party is no longer entitled to seek leave to appeal against the original decision, which would have by then been superseded by the review decision.

(2)   The party can seek leave to appeal the review decision under the statutory time period on points of law.

(3)   In seeking to appeal against the review decision, the party is not limited to rely on only those grounds that have been raised in the review itself.

31.   However, in light of the above conclusion, CLP is not entitled to the relief sought under the summons, as it asks for an extension of time to seek leave to appeal the Decision after the handing down of the Review Decision.  I would therefore dismiss the summons.

E. COSTS

32.   As to costs, although CLP has failed in the summons, Mr Litton argues that CLP should still be entitled to costs, as he has succeeded in the arguments raised at the hearing, and the summons was taken out only on an “if necessary” basis.

33.   I am not convinced by Mr Litton’s arguments.

34.   Insofar as the “if necessary” contention is concerned, what CLP is saying is that it has always been of the view that (a) it does not need any time extension to seek leave to appeal against the Decision even after the review decision, as the time to do so only runs from the date of the review decision, and (b) in seeking leave to appeal against the Decision, it is not limited to the grounds that have already been argued in the review.  However, given CRV’s disagreement on these propositions through correspondence, CLP therefore took out the summons in case it was wrong on its said view of the law.

35.   However, it is trite that the court would not determine hypothetical questions or give advisory judgment.  In taking out the summons, CLP has decided to seek the substantive relief sought (notwithstanding its own view on the law).  It cannot get away from the consequence of losing the application by saying that the summons was taken out on an “if necessary” basis.

36.   In any event, CLP’s original view was that it could in fact appeal against the Decision as a distinct decision even after review decision.  It is only in its reply submissions filed before the hearing that (in response to CRV’s submissions) it develops an argument that the review decision is the only operative decision with the original decision having “merged” into the review decision^[3]. This is not entirely the same as CLP’s original position.  The suggestion that the summons was only taken out on an “if necessary” basis should also be viewed against this context.

37.   In the premises, given that CLP has failed in its application, but taking into account that I have also rejected substantively CRV’s arguments and grounds, I think it is only fair in all the circumstances to make an order that there should no order as to costs.

[1] This date is 28 days from the date of the Decision.  As explained later, the 28 days is the statutory period within which a party can apply for leave to appeal a final Tribunal’s decision.

[2] See CLP’s response to CRV’s skeleton argument, paragraphs 15-16.

[3] See Appellant’s Response to CRV’s Skeleton Argument, paragraphs 15-16.