GROUP LEADER LTD AND OTHERS v. HUI SUN FAT AND OTHERS

CACV 61/2015
and CACV 110/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 61 and 110 OF 2015

(ON APPEAL FROM LDCS NO 27000 of 2011)

________________________

BETWEEN

GROUP LEADER LIMITED
(合英有限公司)
1st Applicant
EVER PLANET LIMITED
(偉宙有限公司)
2nd Applicant
DYNAMIC HERO LIMITED
(恒雄有限公司)
3rd Applicant
BORTEN LIMITED (寶煒有限公司) 4th Applicant
GENTWAY LIMITED
(雋偉有限公司)
5th Applicant
SUPREME HERO LIMITED
(崇英有限公司)
6th Applicant
GLORY STAR DEVELOPMENT LIMITED (佳星發展有限公司) 7th Applicant
TRIPLE GLORY LIMITED
(三耀有限公司)
8th Applicant
RISE CHEER INVESTMENT LIMITED (展騰投資有限公司) 9th Applicant
and
HUI SUN FAT and
LEUNG CHUN HA
1st Respondents
(Discontinued)
The Personal Representative of the Estate of LEUNG YIN MEI, Deceased 2nd Respondent
The Personal Representative of the Estate of LAW SAM, Deceased 3rd Respondent
LEE LAI PING 4th Respondent
(Discontinued)
TSOI FOK MO KAN (蔡霍慕勤), FOK CHUN WAN IAN (霍震寰)
and FOK CHUN YUE BENJAMIN
(霍震宇), the Executors of the Estate of FOK YING TUNG, Deceased
5th Respondents
(Discontinued)
LI AH CHO, the Personal Representative of the Estate of CHEUK SHING WING, Deceased and the Personal Representative of the Estate ofLAM HOI KAM, Deceased 6th Respondents
(Discontinued)
TAM WING HONG and TAM FUN LIN, the Executors of the Estate of CHU KAM, Deceased 7th Respondents
WONG KUM WAH 8th Respondent
(Discontinued)
CHAN KIAN CHONG 9th Respondent
(Discontinued)
LI XUEMIN (李學敏) appointed by the Lands Tribunal to represent the Estate of LEE AH HSIN, Deceased 10th Respondent

YEUNG KAM KUEN and
YEUNG YANG SONG HUAN
11th Respondents
(Discontinued)
LI MAU FONG (李懋芳) 12th Respondent
CHUNG CHIU HING (鍾肖興) 13th Respondent
SECRETARY FOR JUSTICE 14th Respondent
JIN YU CHIA 15th Respondent
THE INCORPORATED OWNERS OF WESTERN COURT 16th Respondent
DIRECTOR OF LANDS 17th Respondent

_______________________

(HEARD TOGETHER)

Before: Hon Lam VP, Barma JA and G Lam J in Court

Dates of Written Submissions: 11 May, 2 and 13 June 2016
Date of Judgment: 24 June 2016

____________________

JUDGMENT

____________________

Hon Lam VP (giving the Judgment of the Court):

1. We dismissed this appeal on 1 March 2016 with our Reasons for Judgment handed down on 16 March 2016. By 2 Notices of Motion of 29March 2016, the Director of Lands, the 17th Respondent [“the Director”], seeks leave to appeal to the Court of Final Appeal. The question set out in the Notice of Motionissued in CACV 61 of 2015 as the question of great general or public importance [“GPI”] is as follows:

“ 1. Where undivided shares of a lot previously held by the Government as bona vacantia were assigned to a party who covenanted to the Government that he would not further dispose of those undivided shares without theprior written approval of the Government, whether the Government has locus standi to be joined as a party to or intervene in an application for compulsory sale order under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap. 545)(“LCSRO”) involving those undivided shares to allow the proper ventilation of the Government’s interest arising from the said covenant?”

2. The Notice of Motion issued in CACV 110 of 2015 set out another GPI question:

“ 1. Whether, on a proper construction of the LCSRO, the market value of a property on the lot as assessed pursuant to the requirementsidentified in Part 1 of Schedule 1 to the LCSRO (i.e. the existing use value) should be the price at which the property would changehands in a hypothetical sale and purchase between a hypothetical seller and a hypothetical buyer?”

3. In our judgment, we decided the question in CACV 61 of 2015 against the Director. We also held that as a result of our determinationof the issue in CACV 61 of 2015, the Tribunal should not entertain the Director’s submissions on the question raised in the contextof CACV 110 of 2015. We therefore did not consider it appropriate for us to decide the issue raised by the Director in CACV 110of 2015.

4. In support of her application in CACV 61 of 2015, the Director basically repeated her arguments before us. We have explained inour judgment why we rejected those arguments. A major contention of the Director is that the expression “all the rights of anyprior owner” in Section 8(1) encompasses rights which did not run with the land and were not proprietary in nature. In light of that subsection referring to“rights of any prior owner … in or over the lot or any part thereof” and the definition of such rights in Section 8(6) (confining it to rights exercisable by virtue of ownership of an undivided share in the lot which affect the lot), we remain of the firm view the Director’s contention is not reasonably arguable.

5. Mr Mok also referred to the other statutory provisions in the Ordinance to support his contention. We have adequately addressedthe same in our judgment and we do not regard what Mr Mok said in his submissions in support of the Notice of Motion as taking thematter further. We do not think that to be reasonably arguable.

6. For these reasons, we would dismiss the Motion in CACV 61 of 2015. It also follows that there is no basis why the Court of FinalAppeal should be troubled with the issue raised in CACV 110 of 2015. We shall also dismiss the Notice of Motion in that appeal.

7. We shall also order the Director to pay the costs of the 1st to 9th Applicants in respect of the Notices of Motion, with certificate for 2 counsel, such costs are to be taxed if not agreed.

8. In the supplemental submissions of Mr Mok of 13 June 2016, counsel referred us to an affirmation of 26 February 2016 and submittedthat the notices of appeal had been served on the 7th, 10th, 12th to 15th Respondents. He further submitted that those respondents were parties to the appeals before us. On the other hand, Mr Mok appearedto accept that there had not been any effective service of the notices of appeal on the 2nd, 3rd and 16th Respondents.

9. However, from the court records, these appeals had always proceeded as appeals between the Applicants and the 17th Respondent only. The Notices of Appeal endorsed with certificate of service lodged pursuant to Order 59 Rule 5(1)(b) for setting down the appeals were notices of appeals endorsed only with service on the solicitors for the Applicants. The noticesof setting down lodged with the court only specified the solicitors of the Applicants as the other party to whom notices were given. A consent summons of 26 March 2015 in CACV 61 of 2015 and a consent summons of 31 May 2015 in CACV 110 of 2015 were only signedby solicitors for the Applicants and Government Counsel acting for the 17th Respondent. As a result, notices of hearing were only given to these parties.

10. In the circumstances, though there may be an inaccuracy at paragraph 2 of our judgment of 27 May 2016 regarding service of the noticesof appeal, we stand by our conclusions in that judgment.

(M H Lam)
Vice President
(Aarif Barma)
Justice of Appeal
(Godfrey Lam)
Judge of the
Court of First Instance

Written submissions by Mr Patrick Fung SC and Ms Nancy Ngai, instructed by Lo & Lo, for the 1st to 9th applicants

Written submissions by Mr Mok Yeuk Chi and Mr Anthony Chan, instructed by the Department of Justice, for the 17th respondent