AGRILA LTD. AND OTHERS v. COMMISSIONER OF RATING AND VALUATION

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LDGA Nos.5-32, 41-53, 55-59, 88, 92, 100-109 and 123 of 1998 (Consolidated)

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Judgment

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Background

1. The appellant owners of these government leases are subsidiaries or associated companies of nine leading groups of developers. These leases were obtained by new grants, surrender and exchange, or re-grants. These pieces of land can be conveniently grouped into three categories, (1) development sites, (2) re-development sites, and (3) agriculture land and they are all vacant and some are pending development. By the end of June or early July 1997, the Commissioner of Rating and Valuation ( " the Commissioner") demanded for the first time government rent in respect of them. In these appeals the appellant challenged the assessments of the Commissioner. It is not in dispute that these leases are liable for government rent under the Government Rent (Assessment and Collection) Ordinance, ( " the Rent Ordinance" ). Section 6 of the ordinance provides:

"----an applicable lease is liable to pay----an annual rent -----equal to 3% of the rateable value of the land leased."

2. In respect of development sites, the Commissioner assessed the rateable values on what is commonly known as contractor's basis and in respect of re-development sites , on the basis as provided by S4(1) of the Government Rent (Assessment and Collection) Regulations, ( " the Regulations" ), namely adopting the aggregate of the last ascertained rateable values of those demolished buildings. The appellants contend that the rateable value for rent purpose and the rateable value for rates purpose should be the same. Therefore the basis for assessment should also be the same and it follows that Rating Ordinance and the common law principles in rating law apply to assessment of the rateable value for government rent purpose. As to the agricultural land the appellants do not dispute the method of assessment, but contend that they should not be assessed at all for government rent as they are exempt from assessment for rates purpose. The dispute about the correct method of assessment involves a number of points of law which the Tribunal on the application of parties has ordered to be determined before valuation evidence is called. These preliminary points are set out in the Annexure to this judgment .

Point 1/Legal Basis for Assessment for Development Sites

3. Section 2 of the Rent Ordinance defines rateable value as follows:

"(a) the rateable value---ascertained ---under-the Rating Ordinance: or

(b) the rateable value ascertained under this ordinance."

Section 8 of the Rent Ordinance empowers the Commissioner to value land for rent purpose and specifies the basis for valuation. It provides that:

"(1) The Commissioner may value land held under an applicable lease----

(2) The Rating Ordinance (Cap.116) applies to the ascertainment of rateable values under this Ordinance subject to any provisions of this Ordinance."

4. The Appellants contend that there are no specific provisions in the Ordinance and that it must follow that the Rating Ordinance applies. As they are not liable for assessment for rates under the Rating Ordinance, the assessment must be nil or nominal. On the other hand the Commissioner admits that ascertainment was not made under the provisions of the Rating Ordinance but relies on Section 2 in the Government Rent (Assessment and Collection ) Regulations ( "the Rent Regulations" ) made under Section 34 of the Rent Ordinance. For development sites, Section 2 of the Rent Regulations provides that:

"---the rateable value of the leased land before any part of it is developed shall be ascertained as if the leased land were---liable for assessment to rates under the Rating Ordinance-"

5. The development sites in these appeals are not liable for assessment to rates under the Rating Ordinance because the use of the developers make of the land in this situation do not amount to rateable occupation. This is a well established principle in English and Hong Kong rating law and this is common ground. The appellants argued that section 2 makes it clear that assessment should be made in accordance with the principles under the Rating Ordinance. Section 2 only empowers or requires the Commissioner to ascertain the rateable value as if he were doing the exercise for rates purpose, the rateable value arrived at must necessarily be nil or nominal. This result might not necessarily be absurd. Looking at the legislative history, the Tribunal accepts the submission by the appellants that government rent need not be substantial. However the result of nil or nominal rent would render section 2 superfluous. In this sense it is absurd. Furthermore, there are no specific provisions in the Rent Ordinance or the Rent Regulations for the alternative basis of assessment. The Tribunal is satisfied that section 2 of the Regulations is ambiguous and would lead to absurdity if interpreted literally. As the exclusionary rule in statutory construction has been relaxed since Pepper V Hart [1993] A.C. 593. The Tribunal can look at Hansard for assistance in these circumstances. The Commissioner relied mainly on statements in two speeches by the Secretary for Planing, Environment and Lands , one in the Bills Committee meeting and the other in a member's motion debate to amend the Rent Regulations. The Appellants rely on the closing statements of the the Secretary contending that they clearly support their case. The importance of the following three passages in the speech were highlighted to the Tribunal:

" On the first issue, rateable value is given a statutory meaning in clause 2 of the Bill, which sets out that a rateable value for the purpose of the Bill which could be ascertained whether or not it is exempted from assessment to or payment of rates under the Rating Ordinance. The fact that a property did not have one or was not assessed for rates as at the entry of into force of the Joint Declaration does not mean that it cannot have a rateable value for government rent purpose."

"After accepting the view of the Bills Committee the present wording of section 2 already clarifies that the rateable value of these sites will be ascertained as if they were assessable to rates under the Rating Ordinance. This will ensure compliance with Annex 3 to the Joint Declaration which provides that for all leases to which it applies the government rent will be 3% of the rateable value. A rateable value must, therefore, be ascertained for every such lease. However, for rating purposes, no rateable value is ascribed to newly granted sites prior to completion of the development as there is no rateable occupation of construction sites."

" There is no question of the Administration redefining the rateable value. The purpose of section 2 is to enable the Administration to ascertain the rateable value for the purpose of determining the government rent payable as required by the Joint Declaration and the Basic Law, yet leaves room for the situation where a minimal or nil rateable value is ascertained in which case it is accepted that no government rent would be payable."

The principle in Pepper V Hart [1993] A.C. 593 applies when Hansard is used as an aid. The statements of the minister or the promoter of the bill must be clear. While it is clear that the Administration was anxious to assess vacant development sites for government rent, the Secretary did not rule out the possibility that the assessed government rent could be nil and nominal. More significantly, he did not indicate in any way on what basis the rateable value of these sites were to be assessed. Strangely enough, if the contention of the Commissioner is right, the Secretary said in effect that the Administration did not intend to redefine rateable value. Other related materials have also been drawn to the Tribunal's attention. It would not be too difficult to pick up statements, or views expressed by various officials, here and there and draw the conclusion one way or the other. In our judgment we are not permitted to dredge through these materials to ascertain the intention of the Administration. The Tribunal is not concerned with what the officials meant but the meaning of what they said. Suffice to say, there are no consistent clear statements made by government officials in these materials which indicate on what basis rateable values of development sites are to be assessed. The Tribunal has to interpret Section 2 of the Rent Regulations without the aid of these materials.

6. Development sites are not exempt from assessment to rates. They are not liable for assessment if there is no rateable occupation. If use is made of the sites before development, for example, as a car park, it is always a practice that it would be assessed for rates. Under the rating law, such use constitutes a rateable occupation. Section 2 of the Rent Regulations must be intended to include all development sites whether or not vacant or occupied. The basis of valuation would then be according to the principles under the Rating Ordinance and the common law principles with the exception that it would be irrelevant whether there is rateable occupation.

7. It is not in dispute that these sites are not rateable under the Rating Ordinance and in practice have not been assessed for rates purpose. The Commissioner employed the contractor's test. In simple terms he spread the value of land over a number of years applying a decapitalisation rate. Whether the decapitalisation rate is appropriate, or what other deductions, or allowances to be made are matter of evidence. The Commissioner argues that the Tribunal should determine one way or the other at this stage whether the contractor's test is the only basis of assessment.

8. The ultimate test or principle in assessing the rateable value is what rent the hypothetical tenant would pay for the hypothetical tenancy with statutory terms under the provisions of section 7 and 7A of the Rating Ordinance. When there is no satisfactory comparable rental evidence or other direct evidence, contractor's test will be resorted to; as for instance in the following cases:

(1) Mobil Oil Hong Kong Limited V CRV Rating Appeal No.244 of 91 --- where contractor's test was admitted in evidence as a check on the estimate on comparable basis and the Tribunal eventually preferred the estimate by using the comparable basis.

(2) Liverpool Corporation V Chorley Union Assessment Committee and anr. [1912] 1 KB 270---where the owner kept the land as gathering ground for water rendering the ordinary test inapplicable, --the price paid for the land was admitted in evidence, though not conclusive, to estimate what a hypothical tenant would pay-

Ryde On Rating , para 531 sums up the position,

"Where property is of a kind that is rarely let from year to year , recourse is sometimes had to interest on capital value, or the actual cost, of land and building as a guide to the ascertainment of annual value."

The appellants must be right in contending that it is inappropriate to prescribe any method of valuation as the sole test for ascertaining rateable value. The Tribunal would not prescribe at this stage that the contractor's test as the only test.

9. It is not in dispute that the rule of rebus sic stantibus is the basic principle of valuation law. Assumptions made in s.7 and s.7A of the Rating Ordinance reflect some of the applications of this principle to Hong Kong rating law. The appellants argue that this should be the proper basis of valuation for government rent purpose.

10. What is actually in dispute is what assumptions should be made as to the state of the land and whether the intention of the leaseholder to develop the site should be taken into account. A number of English and Hong Kong cases were cited in argument to illustrate the point that the rule has always been part of the rating law. One of these cases is Robinson Brothers (Brewers)Ltd. V Houghton and anr [1937] 2 K.B. 445 . Scott L.J. on the special facts of the case stated the steps of valuation:

"The relevant steps (partly law and partly facts) as found in the special case appear to be these (1) The hereditament to be valued -as it in fact is ----rebus sic stantibus. (2) Where the -hereditabment is let at what is plainly a rack rent or where similar hereditaments in similar economic sites are so let, so that they are truly comparable, that evidence is the best evidence and for that reason is alone admissible, indirect evidence is excluded not because it is not logically relevant to the economic enquiry, but because it is not the best evidence. (3) Where such direct evidence is not available, for example, if the rents of other premises are shown to be not truly comparable, resort must necessarily be had to indirect evidence from which it is possible to estimate the probable rent which the hypothetical tenant would pay. (4) This kind of estimating is a skilled business. It is here especially that the role of the skilled valuer comes in. (5) In weighing up the evidence bearing upon value, it is the duty of the valuer to take into consideration every intrinsic quality and every intrinsic circimstance which tends to push the value either up or down, ----(6) A skilled valuer is a professional man and must be left free to inform his mind of all relevant facts. ---(7) When-the tribunal has to make his own valuation-the tribunal-must act on evidence, that must be relevant; but wherever direct evidence test is not available, no fact which would in the actual circumstances of the case tend to raise or lower the amount of rent likely to be given by probable competitors can be either irrelevant or inadmissible. (8) The rent to be ascertained is the figure at which the hypothetical landlord and tenant would in the opinion of the valuer or the tribunal, come to terms as the result of the bargaining-as a result of the " higgling of the market" . I call this the true rent because it corresponds to real value. (9)---(10)

11. It can be seen that valuation is a matter of evidence. The rule of rebus sic stantibus only determines what factors relating to the tenement ought or ought not to be taken into account when making valuation whatever test or method is used in valuation. Any factors which might affect the rent paid in respect of the hypothetical tenancy is legally relevant and admissible. The contractor's test and the rule of rebus sic stantibus are not mutually exclusive. In our judgment it is not appropriate to give an exhaustive list of factors which ought to be taken into account and another list of factors not to be taken into account. This should be left to the valuation expert. In any event this Tribunal is not asked to do that. Only two factors have been brought up in argument and it would be appropriate in the circumstances of these appeals for the Tribunal to give a ruling.

12. The first factor which requires our ruling is whether or not the appellant's intention to develop the sites should be taken into consideration. The contention of the appellants is that it relates to future physical change of the land and is therefore should not be taken into account. Arbuckle Smith v Green Corporation [1960] A.C. 818 is cited in support. The principle in that case is still good law. However the case can be distinguished. There the owner was required to do some alterations to the tenement before they could make use of it for their purpose they bought the tenement. It was decided that the occupation by the lessees during the period of making the required alterations did not amount to rateable occupation. It was because that the lessees were not making any beneficial use of the land. As the Tribunal rules that section 2 of the Regulation empowered the Commissioner to assess the sites for government rent purpose irrespective whether there is rateable occupation, this case cannot lend support to the appellants' contention.

13. However in our judgment the contention by the appellants can be supported by the principles as explained in Robinson Brothers ((Brewers) V Houghton . The intention of the appellants can be looked at in two respects, the timing and the scale of the project of the development. The timing of the intended development does not tend to push up or down the rent which a hypothetical tenant would paid. This is so because the hypothetical term of the tenancy is from year to year. On the one hand it is clear law that assumptions would have to be made as to the probability of its renewal and on the other hand, of its termination by notice. As to the scale of the development project, it is inconceivable that it could affect the rent the hypothetical tenant would pay or the rent the owner of the sites would ask. Of course it must not be overlooked that the owner of the sites could well be the hypothetical tenant or the only hypothetical tenant as in Ho Tang Fat V Commissioner of Rating and Valuation HKLTLR (1978) 287 . The short answer to this is: the present intention of appellants is conditional upon their having a fixed term of substantial length. The Commissioner does not contend otherwise nor is it suggested that their intended scale would have been the same had they been granted only a lease from year to year. For these reasons it is the Tribunal's ruling that the intention of the developer to develop the sites is irrelevant.

14. It should also be noted that Mr. Justice Power, as he then was, held in the case of Ho Tang Fat that under the rebus sic stantibus rule, the existing use determines the mode or category of use ascribed to tenement and no value above that indicated by the mode or category of use can be assessed for the tenement unless that value is established by evidence. If the Commissioner wishes to ascribed a value above that indicated by the existing use of the sites by the appellants, he can adduce evidence to justify his assessment.

15. It is the Tribunal's view that in assessing rateable value for government rent purpose the question of rateable occupation should be disregarded. In that sense, the ascertainment of rateable value is otherwise than in accordance with section 7 and 7A of the Rating Ordinance(and the rebus sic stantibus rule), and the answer to Point 1 is "Yes"

Point2/Point3 Legality of Section 2 of the Rent Regulations, and of Sections 2, 6, and 8 of the Rent Ordinance

16. Section 8(2) of the Rent Ordinance clearly states that rateable values have to be ascertained under the Rating Ordinance, subject to any specific provisions of the Rent Ordinance. (see para 3). The appellants argue that there are no specific provisions. Specific provisions must be in the Ordinance and not Regulations made under section 34. Section 34 is regulatory and does not empower the Chief Executive in Council to make section 2 of the regulations and therefore section 2 is ultra vires and void. The Commissioner contends that section 2, section 34 of the Rent Ordinance and section 2 of the Rent Regulations are the specific provisions.

17. Section 2 of the Rent Ordinance gives two definitions of the term "rateable value". (para 3) It is a definition section. By itself or read in conjunction with other sections it cannot constitute one of the specific provisions. However it clearly shows that the rateable values in the Valuation List under the Rating Ordinance and in the Rent Roll under the Rent Ordinance can be different. Section 34 provides that;

"(1) The Chief Executive in Council may make regulations for-

(f) ascertaining the rateable value of land -where there has been a development, or a partial development, or a re-development--"

Looking at section 2, the definitive section and section 34, the rateable value referred to in section 34(f) is the rateable value for government rent purpose. Such would be assessed either under the Rating Ordinance or other provisions: section 8(2) of the Rent Ordinance. Section 2 of the Rent Regulations does no more than that except that it provides that a tenement not liable for rates might still be liable for rent.

18. The term "rateable value" connotes two meanings, liability for rates, or ratability and quantum. Under English rating law, a furnished vacant house might not attract liability for rates for the owner if the occupation is not rateable. The house might still have a rateable value in the quantum or valuation sense. The rateable value can be ascertained according to the principles in rating law irrespective of ratability. Similarly in Hong Kong, the occupier is liable for rates. The amount of rates depends on the rateable value. Such can be ascertained under the Rating Ordinance. The method of assessment is governed by section 7 and section 7A and the principles of rating law. Section 2 of the Rent Regulations does not provide for another method of valuation in rating law or modifies the existing principles of rating law in ascertaining the rateable value in the quantum sense. Section 8(2) of the Rent Ordinance only deals with the method of assessment. The term "rateable value" in the formulae for rent: 3% of the rateable value, provided in section 6 of the Rent Ordinance must refer to quantum. It is because it is provided that the lessee shall pay the rent. Nothing in the Rent Ordinance exempts non-occupier lessee for liability for rent. Furthermore rent being what it is should not be made dependent on occupation.

19. The Tribunal concludes that on the proper construction of these provisions, the effect of section 2 of the Regulations is to clarify beyond doubt that development sites would be liable for assessment for rent whether the rent would be nil or nominal. It does not modify any principle of ascertaining the rateable value, in its quantum sense. It follows that section 2 of the Rent Regulations is not void or ultra vires.

Basic Law and Joint Declaration

20. The appellant argues that rateable value is a known concept at the time of Basic Law is promulgated. This the Tribunal accepts. However the Tribunal is of the view that the term is well understood both in its liability and quantum sense. Very often litigants, landlords and tenants without any legal knowledge, in the Lands Tribunal use rateable values as evidence of market rent. This indicates they understand what rateable values represent in the quantum sense. It is common ground and it cannot be doubted that a generous and purposive approach should be adopted in interpreting the Basic Law . Regard should also be had to traditions and usages when ascertaining the meaning of the language used : ( Ng Ka Ling and others V The Director of Immigration FACV No. 14 of 1998) Applying all these principles, the Tribunal is of the view that the term rateable value as provided in Basic Law should be construed in its quantum sense.

21. Section 2, 6, 8, and 34 of the Rent Ordinance and section 2 of the Rent Regulations, as has been said, only empower the Commissioner to ascertain rateable value (in the quantum sense) on the same basis and applying the same principles as before. Accordingly these provisions do not contravene the corresponding provisions in Article 121 for government rent. The answers of the Tribunal to Point 2 and Point 3 are therefore both "No"

Point 4: assumptions made in assessment

22. Terms of the hypothetical tenancy of the land:--There is no dispute that they should be as set out in section 7(2) of the Rating Ordinance.

23. State of the land:-- There is no good reason not to adopt what is urged upon the Tribunal on behalf of the appellants, namely, as a vacant building site in its actual existing state. The description is accurate, the Tribunal has been told. The Commissioner wants to value it simply as a building site. The Tribunal is inclined to the suggestion by the appellants as it accurately reflects the truth and mirrors the requirement of section 7A(2)(a). The answer therefore is: As a vacant building site in its actual existing state.

24. The mode or character of occupation of the land-For reasons already given, it is not appropriate to prescribe the contractor's test as suggested by the Commissioner as the only basis of valuation. If the Commissioner wants to ascribe a value to the site above that indicated by the existing mode, he can adduce evidence, direct or indirect. (see para:14)

Redevelopment Sites/legal basis

25. The Commissioner relies on section 4(1) of the Rent Regulations which provides that:

" -the rateable value shall be -the aggregate of the last ascertained rateable values of all the tenements comprised in the building immediately before its demolition."

Similarly for partly redeveloped land, section 5 of the Regulations provides that the rateable value of that part of the land which has not been redeveloped shall be the aggregate of the last ascertainable values of all the tenements comprised in the building. The rateable value so obtained would be added to the rateable value of the redeveloped part of the land to form the rateable value of the whole land.

26. But for these provisions the rateable values of a building, would be demolished alongside with the building. The rateable value of the demolished building cannot be taken into account as if it still exists. This is the basic principle and has always been the practice in Hong Kong and is still the practice in Hong Kong as far as assessment for rates purpose is concerned.

27. The two regulations were made under section 34 of the Rent Ordinance. The issue is whether the Chief Executive in Council was so empowered. The Commissioner relies on the history of legislation of the Crown Leases Ordinance, New Territories Leases (Extension) Ordinance and the practice of including similar clauses in rent conditions.

28. In 1973 when renewing Crown Leases that had expired or were about to expire, the government was subject to tremendous political pressure in setting a fair and reasonable rent by reference to market value. The government eventually did not insist on its legitimate right to charge a market rent in extending these leases. A formula of linking government rent to rateable value, i.e. 3% of rateable value was adopted instead. This represents a great concession on the part of the government and such concession was necessary for obvious reasons.

29. This arrangement was given statutory force in the Crown Leases Ordinance. For ascertainment of rateable values for government rent purpose, it provided, inter alia, that the Rating Ordinance applied. At the same time, section 9(7) modified the principle of assessment in respect of re-development land. Its provision is similar to section 4 and section 5 of the Rent Regulations. From 1985 onwards, such provision for government rent has been included in the rent conditions when individual lease came up for extension.

30. Matters referred to in the two preceding paragraphs do not support the Commissioner's contention. It is true that the appellants could not have been prejudiced by these regulations if their leases contained the same method of assessment in the rent conditions. These conditions have now been overridden by section 37. These appellants would stand to gain if section 4 and section 5 are void to the extent of using the last ascertained rateable value for assessment for demolished building. Whether a piece of legislation is fair or not fair to a particular class of persons is irrelevant except it throws light on the question of interpretation. These regulations do not just affect those lease holders whose leases contain similar provisions in the rent conditions. They apply also to other leaseholders, say a shop owner in an old building in Nathan Road. There are large number of such owners. It is not permissible to interpret this ordinance and its regulations as if it were a contract between the appellants and the government. The Rent Ordinance and the regulations in question do not just aim at the class of leaseholders of leases with this special type of rent conditions. The plain wording of the ordinance and regulations does not permit such construction. Therefore the question of fairness or unfairness to the appellants or those in similar position is irrelevant in the proper construction of the ordinance and its regulations.

31. The fact that such modification of rating law was once contained in an earlier piece of legislation, namely, Crown Leases Ordinance is not relevant except that it might throw light on the intent of the legislature. The intent was clearly shown in the Crown Leases Ordinance, and the modification of the rating law was effected by a specific provision contained in the ordinance and not in its regulations. In the New Territories Leases (Extension) Ordinance, the intent to modify the Rating Ordinance by regulation was clearly spelt out by the empowering section: section11(j) which provided that:

" The Governor in Council may by regulations-

(j) provide for the modification of the application of the Rating Ordinance to the assessment of rateable values under this Ordinance."

Comparing the layouts of these two ordinances with the Rent Ordinance, it cannot be said that the intent of the legislature is to modify the application of the Rating Ordinance by regulations.

32. The principle of valuing the rateable value in the quantum sense as it is and not as it once was is so important that it cannot be displaced unless the intent is clear. Section 8 provides clearly that modification of the application of valuation method is by specific provisions in the Ordinance. Section 34 is not the specific provision intended. If it were, the result would lead to absurdity. If section 34 enable the Chief Executive in Council, to use the "last ascertained rateable value" as a basis, by the same token, it would have allowed any arbitrary method the Chief Executive in Council sees fit. This would have a far reaching effect. The purpose of the Rent Ordinance is to link the rent to a small percentage of rateable value. Such purpose would be obviously defeated if section 34 empowers the Chief Executive in Council to for example to adopt 1000 times the last ascertained rateable value as rateable value for rent purpose.

33. There is no clear provision in section 34 to displace the application of the Rating Ordinance. For this reason and the reasons in preceding paragraphs, section 34 cannot be the specific provision referred to in section 8(2) of the Rent Ordinance. Section 4 and 5 are ultra vires and void to the extent that they adopt the basis of " last ascertained rateable value" to assess the rateable value for rent purpose. The answer to Point No. 5 is "Yes"

Point 6/Section 4 and Section 5 of the Rent Regulations /Basic Law

34. Article 121 provides that:

" As regards all leases of land---an annual rent equivalent to 3% of the rateable value of the property -adjusted in step with any changes in the rateable value thereafter, shall be charged."

It cannot be doubted that a generous and purposive approach must be adopted in interpreting the Basic Law. The commissioner contends that this formula for assessing rent is only a general policy, details and methods of the implementation of such policy are left to the legislature. This must be right. The purpose of this policy is to implement what has been agreed between two sovereign powers in the Joint Declaration. The purpose of the policy is to ensure smooth transition and to guarantee continuity and prosperity. This particular Article is put into basic law to allay uncertainty as to what levels of rent the government will charge after the change of sovereignty or the unification of Hong Kong with Mother China. Unlike most of the other provisions in the Basic Law, it meant to instill a degree of certainty of government rent in mind of people, leaseholder or non -lease holders. This must be the case or it would not specify the percentage as 3%. The other part of the formula for rent i.e. rateable value, must also be certain or it will make a mockery of the purpose of the article. No one could have foretold what direction the economy would turn, or foresee what other changes that might affect the rateable value. To allow for these uncertain factors and to allow for these changes, the article specifies clearly that rateable values would be adjusted in step with any changes. These changes could not have meant a conscious decision of the legislature to change the principle of assessment and which decision is not prompted by any changes, economic or otherwise, that could not have been foreseen at the time the Basic Law was promulgated.

35. The term "rateable value" is intended to have a meaning readily ascertainable. It must mean rateable value in its quantum sense for reasons already given. The Basic Law is not intended for the benefit of leaseholders in similar situation as some of the appellants whose leases contain the rent condition using the basis of "last ascertained rateable values". Therefore the rateable value must be given the meaning popularly understood. It follows that rateable values for rent must be the same as under the Rating Ordinance.

36. For all these reasons, section 4 and 5 contravene Article 121 of the Basic Law and are rendered void by Article 11 to the extent that they adopt the " last ascertained rateable value" as a basis. The answer to Point 6 is " Yes"

Point 7: assumption made in assessment

37. The answers are the same as given for Point 4

Point 8/Point 9: agricultural land

38. The appellants do not dispute the method of assessment. If agricultural land is not exempted for assessment for rent, and if it were assessable for rates, rateable values can be ascertained by application of other provisions of the Rating Ordinance. For reasons already given, the answers to Point 8 and Point 9 are respectively "Yes" and "No".

Point 10

39. The answer to (a) is as in Point 4 and the answers to (b)and (c) are both" Agricutural"

40. The Tribunal makes an order nisi for costs in the cause with certificates for two counsels. The order nisi be made absolute in 6 weeks. There be liberty to apply.

Annexure

PRELIMINARY POINTS OF LAW

(for Decision under Rule 18 of the Lands Tribunal Rules)

Development sites

1. Whether the Commissioner of Rating and Valuation ("the Commissioner") is required or empowered by section 8 of the Government Rent (Assessment and Collection) Ordinance or section 2 of the Government Rent (Assessment and Collection) Regulation to ascertain the ratable value of leased land before or during development otherwise than in accordance with sections 7 and 7A of the Rating Ordinance (and the rebus sic stantibus rule) whether or not it is liable for assessment to rates under the Rating Ordinance.

2. If the Commissioner is required or empowered under section 2 of the Government Rent (Assessment and Collection) Regulation to ascertain the rateable value of leased land before or during development otherwise than in accordance with sections 7 and 7A of the Rating Ordinance (and the rebus sic stantibus rule), whether the Chief Executive in Council had power under section 34 of the Government Rent (Assessment and Collection) Ordinance to make regulations to that effect; and accordingly whether section 2 of the Government Rent (Assessment and Collection) Regulation is void to the extent that it was not within the powers of the Chief Executive in Council to make such provision.

3. If the answer to 1 is yes, whether (as the case may be) section 8 or section 2 is in conflict with Article 121 of the Basic Law to the extent that it does require or empower the Commissioner to ascertain the rateable value of leased land before or during development otherwise than in accordance with sections 7 and 7A of the Rating Ordinance (and the rebus sic stantibus rule); and is accordingly to that extent void by reason of Article 11 of the Basic Law.

4. When making a valuation under section 8 of the Government Rent (Assessment and Collection) Ordinance of leased land before or during development what assumptions, whether using the contractors or another basis of valuation, the Commissioner is required or empowered by law to make as to :-

(a) the terms of the hypothetical tenancy of the land;

(b) the state of the land; and

(c) the mode or character of occupation of the land.

Redevelopment Sites

5. Whether the Chief Executive in Council had power under section 34 of the Government Rent (Assessment and Collection) Ordinance to make regulations providing that the rateable value of leased land before redevelopment shall be the aggregate of the last ascertained rateable values of all the tenements comprised in the building immediately before its demolition, rather than its rateable value ascertained in accordance with the Rating Ordinance; and accordingly whether sections 4 and 5 of the Government Rent (Assessment and Collection) Regulation are void to the extent that they do so provide.

6. Whether section 4 and section 5 of the Government Rent (Assessment and Collection) Regulation are in conflict with Article 121 of the Basic Law in providing that the rateable value of leased land before redevelopment shall be the aggregate of the last ascertained rateable values of all the tenements comprised in the building immediately before its demolition, rather than its rateable value ascertained in accordance with the Rating Ordinance; and whether they are accordingly void by reason of Article 11 of the Basic Law.

7. If sections 4 and 5 are void, when the Commissioner makes a valuation under section 8 of the Government Rent (Assessment and Collection) Ordinance of leased land where that land has been developed but the building which is the subject of the development has been demolished, what assumptions, whether using the contractors or another basis of valuation, he is required or empowered by law to make as to :-

(a) the terms of the hypothetical tenancy of the land;

(b) the state of the land; and

(c) the mode or character of occupation of the land.

Agricultural land

8. Whether the Commissioner is required or empowered by section 8 and/or section 18(3) of the Government Rent (Assessment and Collection) Ordinance to ascertain the rateable value of land that is exempt from assessment to rates under section 36 of the Rating Ordinance.

9. If the answer to 8 is yes, whether section 8 and/or section 18(3) is/are in conflict with Article 121 of the Basic Law to the extent that either requires or empowers the Commissioner to ascertain the rateable value of land that is exempt from assessment to rates under section 36 of the Rating Ordinance; and is/are accordingly to that extent void by reason of Article 11 of the Basic Law.

10. When making a valuation of agricultural land under section 8 of the Government Rent (Assessment and Collection) Ordinance what assumptions the Commissioner is required or empowered by law to make as to :-

(a) the terms of the hypothetical tenancy of the land;

(b) the state of the land; and

(c)the mode or character of occupation of the land.

(As corrected by corrigendum dated 13th April 1999)