LEUNG SIU TIP v. COMMISSIONER OF RATING AND VAIUATION

LDRA000005/1983

Rating – New Territories – whether 11 tenements comprising new residential, buildings erected on old lot within pre-1898 village exemptfrom rates -lot outside boundaries of designated area – indigenous and non-indigenous New Territories residents – relevance of administrativerepresentations to Rural Committee – whether exclusion of part of village from designated area reviewable – Held: 1. No judicial power to review or alter boundaries of duly designated area. 2. The 11 tenements were all outside designated area.3. Tenements were therefore not eligible for exemption: appeals dismissed – Section 36(1)(c) Rating Ordinance, Cap. 116, Regulation 3(2) Buildings Ordinance (Application to the New Territories) Regulations, Cap. 322.

IN THE LANDS TRIBUNAL OF HONG KONG

(Appellate Jurisdiction)

Rating Appeals Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of 1983

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BETWEEN LEUNG SIU TIP Appellant
AND COMMISSIONER OF RATING AND VALUATION Respondent

Coram: TRIBUNAL: His Honour Judge Cruden, Presiding Officer and M.W. Phillips, Esq., Member.

Date: 31st day of August, 1983

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JUDGMENT

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1. The appellant is the registered lessee from the Crown of Lot 182 Mui Wo Demarcation District No. 1, Lantau Island which is also knownas No. 67 Pak Ngan Heung Village, Mui Wo, Lantau Island. The appellant purchased Lot 182 in 1978 and has more recently erected residentialbuild-ings on the land in respect of which the permit to occupy under the Buildings Ordinance, Cap. 123 was issued in 1982.

2. These residential buildings comprise 3 storeys and are divided into 12 flats. The 11 consolidated appeals are in respect of 11 ofthese flats which were assessed by the respondent under the Rating Ordinance, Cap. 116, as 11 separate tenements. On the 20th day of December 1982 the respondent duly notified the appellant of the proposedrateable values of these 11 tenements. On the 5th day of January, 1983 the appellant, by letter to the respondent, objected to theproposed assessments on the ground that the tenements were exempt from rates. After further letters of objection from the appellantand discussions between the parties, the respondent on the 13th day of April 1983, pursuant to Section 40, served on the appellant Notices of Decision in respect of the objections which confirmed the proposed valuations of the 20th dayof December, 1982. From those Notices of Decision the appellant, pursuant to Section 42, now appeals to this Tribunal.

3. The appellant gave evidence and stated that when she purchased Lot 182 in 1978 it was a vacant lot which formed part of the traditionalvillage of Pak Ngan Heung, Mui Wo. She understood that Pak Ngan Heung Village had been in existence since before the grant of thelease of the New Territories, including Lantau Island, to Her Majesty the Queen. As has recently been pointed out in Winfat Enterprises (HK) Co. Ltd. v. Attorney-General M.P. No. 892/82, it was following the Convention of Peking concluded on the 9th day of June 1898, that Her Majesty by Order in Councilon the 20th day of October 1898, made provision for the government of the New Territories and it is the latter Order in Council which”formally vested sovereignty in and dominion over the New Territories in Her Majesty … “

4. The appellant produced as Exhibit A4 a map of the area which shows the various lots comprising Pak Ngan Heung Village. On that mapshe enclosed in red the lots which she claims are within the village boundaries as they existed before 1898. Lot 182 is within thoseclaimed boundaries being a rear lot beyond which, the appellant stated, the land rises sharply and is incapable of development. Theappellant also produced as Exhibit A5, a letter dated the 9th day of February 1983, from the District Lands Officer, Islands, landsDepartment certifying that:-

“… Lot No. 182 in D.D. 1 Mui Wo is an old schedule building lot in Pak Ngan Heung area.”

5. The respondent, in his Rule 18 documents, had filed as Appendix H a certified true copy of the Plan of Area 900 designated underSection 36 (1)(c) of the Ordinance which showed that portion of Pak Ngan Heung Village, subject to the provisions of that Section,had been exempted from assessment to rates. The exempted area did not appear to include Lot 182 and Appendix A confirmed this wasthe position. Appendix A shows both Lot 182 and the boundaries of the designated area. According to the scale on Appendix A, Lot182 is about 75 feet outside the designated area.

6. The appellant accepted that Lot 182 was outside the designated area. However, her objection before this Tribunal was based on theground that the designated area, by mistake or otherwise, wrongly excluded Lot 182. She supported that allegation by submitting thatbefore Area 900 was designated on the 25th day of March 1980, certain Hong Kong Government officers, including a representative ofthe respondent, met with members of the Mui Wo Rural Committee, when discussions were held in relation to the position of LantauIsland under the Rating Ordinance and the Government’s rating proposals.

7. The appellant called Mr. Tsang Lin, who has been Chairman of the Mui Wo Rural Committee since 1964, Mr. Wong Chow Fook, Vice-Chairmanof the Mui Wo Rural Committee since 1964 and Mr. To Hay Yung, the Pak Ngan Heung Village headman who is also a member of the MuiWo Rural Committee. They were all present at the meeting to which the appellant referred. She was not present.

8. Mr. Tsang very helpfully traced the history of Pak Ngan Heung Village. He stated that the village was in existence during the ChingDynasty and was therefore already established when, in 1898, Lantau Island became part of the Colony of Hong Kong. Mr. Tsang wasemphatic, as were the other two members of his Committee called, that the appellant’s Lot 182 was within the traditional boundariesof the Village. Mr. Tsang stated that at the meeting in 1980 with Government officials, at which he was present in his capacity asChairman o0f the Mui Wo Rural Committee, the Government officials informed the meeting that the new policy under which rates wouldbe assessed on Lantau Island properties would include an exemption which would benefit Pak Ngan Heung and other traditional villages.Mr. Tsang asserted that the meeting was told that all tenements within such villages would be exempt from rates, whether the currentresidents were indigenous residents or more recent residents who had come from elsewhere. Further, he understood that in relationto tenements outside the boundaries of traditional villages, indigenous residents would not be rated. Only non-indigenous residentswould be rated in these latter areas.

9. The distinction between indigenous and non-indigenous residents as a factor which may affect rating law in Hong Kong is expresslyrecognised in Section 36. The following statutory definition being provided by Section 36(4):

“New Territories resident” means any person descended through the male line from a person who was in 1898 a resident of a villageor town certified by the Secretary for City and New Territories Administration for the purposes of this section as an establishedvillage or town in the New Territories (except New Kowloon).’

10. Mr. Tsang agreed that the appellant was not an indigenous resident of Pak Ngan Heung Village as she had purchased Lot 182 in 1978and the new buildings had only recently been completed. However, he asserted that as her property fell within the boundaries of thevillage, she was entitled to be exempted from rates in terms of the representations of the Government officers at the meeting in1980. Both Mr. Wong and Mr. To corroborated Mr. Tsang’s evidence on these points. None of these witnesses were able to relate theboundaries of Area 900 to any historical, topo-graphical or other feature of the village. These witnesses informed the Tribunal thatthere were also some old stone village huts in the same part of the village as Lot 182 which were similarly excluded from the designatedarea. We were also told that some years ago, when there were then insufficient lots within the village for all the indigenous villagers,the Government permitted some of the boundaries to be extended by 300 feet to create additional lots. However, Lot 182 did not fallwithin this mere recent extension but had always remained within the old village boundaries. Nor was the designated area drawn inrelation to that approved extension.

11. For the respondent, Mr. F.P. Wong, Senior Rating and Valuation Surveyor, gave evidence. In addition to producing. the Rule 18 documents, which contained a very helpful chronology and summary of the events pre- ceding the filing of the appeal, he also producedthe original designation under Section 36(1)(c). This was a document entitled:-

“Rating Ordinance Cap. 116 Areas 900 to 932 designated under Section 36(1)(c) in specified area R.”

12. Those plans were approved on behalf of the Governor on the 25th day of March 1980 by the Deputy Financial Secretary on authoritydelegated by the Governor on the 31st day of December, 1975. We are satisfied that the contents of the certified true copy, beingAppendix H, is in fact a true copy of the original.

13. The factual position is therefore really undisputed. Namely, that the portion of Pak Ngan Heung Village designated as Area 900 underSection 36(1)(c), does not include the appellant’s 11 tenements, the subject of the present appeals.

14. Section 36(1)(c) provides :

36. (1) The following tenements, or parts thereof, shall be exempt from assessment to rates –

……

(c) any village house within such areas of the New Territories as may be designated by the Governor for the purposesof this paragraph, being –

(i) a building to which paragraph (a) or (b) of Regulation 3(2) of the Buildings Ordinance (Application to the New Territories)Regulations, or any regulations replaced thereby, applies or applied; or

(ii) a dwellinghouse, built before 16th August 1945, of a type winch was normally built for New Territories residents.

15. So it is clear from Section 36(1)(c) that even if the designated area had included the appellant’s Lot 162, that would not necessarilyhave exempted her 11 tenements from rates. It would still be necessary for those tenements, in addition, to have fallen within eithersub-clause (i) or (ii). As the buildings were not completed until 1982, the tenements would clearly not be entitled to exemptionunder sub-clause (ii). As to sub-clause (i), on the evidence, the position is less clear.

16. Regulation 3(2)(a) and (b) of the Buildings Ordinance (Application to the New Territories) Regulations, Cap. 322 provides:

3(2) This regulation applies to any building situated in the New Territories which –

(a) has a roofed over area not exceeding 92.90 m 2, does not exceed 7.62 m in height and complies with plans;

(b) has a roofed over area not exceeding 65.03 m2 and does not exceed 7.62 m in height.

17. On the assumption that the appellant’s buildings comply with plans, her estimate of their size suggested that the 11 individual tenementsmight comply with Regulation 3(2)(a). However, this enquiry would only be relevant if Lot 182 fell within the designated area.

18. The designation of an area under Section 36(1)(c) represents an exercise of the powers of the Governor. Whether an administrativeerror was made in determining the boundaries of that area, whether those boundaries are in accordance with any prior representationsto villagers or even whether they are reasonable, are not matters which are reviewable by the Lands Tribunal in the exercise of itsjudicial powers. We have no power to go behind the formal designation of Area 900 which we are satisfied was, as a matter of law,duly designated.

19. After considering all these matters, we are satisfied that the appellant’s tenements are not within an area exempted under Section36 (1)(c). The appellant was unrepresented and before finally disposing of this appeal, we have considered whether her tenementsmight otherwise have been exempted under the other provisions of Section 36(1), namely clauses (a), (b) and (d) to (1) inclusive.There is no prima facie evidence that suggests that she is exempted under any of those other provisions.

20. During the hearing we had the benefit of the evidence and experience of three very senior residents of Lantau Island, all of whomare long serving members of the Mui Wo Rural Committee. Whatever the correctness of their understanding of the application of theRating Ordinance to Lantau Island, their recollections of what occurred at the 1980 meeting with Government officers were remarkably clear and consistent.Further, neither they nor any other witness was able to give any explanation why the designation of Area 900 excluded the north-westernportion of Pak Ngan Heung Village. This position caused us to wonder whether the exclu-sion of that north-western portion of thetraditional village was deliberate. There may have been good grounds for doing so and the actual boundary May well follow a carefullyconsidered and sensible route. These are not matters that are within our jurisdiction or on which we should dwell. However, in viewof the nature and quality of the evidence we had the benefit of hearing, this may be an aspect of the designation that the respondentmay wish further to consider in the light of the present proceedings.

21. As far as the appeals before us are concerned, it follows from the findings we have made, that all these consolidated appeals mustfail. They arc accordingly dismissed. There will be no order as to costs.

DATED this 31st day of August, 1983.

(Judge Cruden) (M.W. Phillips)
Presiding Officer Member

Representation:

The appellant in person.

Mr. F.P. Wong for the respondent.