Tong Tim Nui And Others v Hong Kong Housing Authority

Judgment Date27 September 1999
CourtCourt of Appeal (Hong Kong)
Judgement NumberCACV289/1998
Subject MatterCivil Appeal
CACV000289/1998 TONG TIM NUI AND OTHERS v. HONG KONG HOUSING AUTHORITY

CACV000289/1998

CACV 281, 282, 283, 287, 288,
289, 290, 291, 292, 293, 294, 295,
315, 316, 317, 318, 319, 320, 321,
322, 323, 324, 325, 326, 327, 328,
329, 330, 331, 340, 341, 342, 343,
344 and 345/1998
CACV 27 and 28/1999
(Consolidated)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL Nos. 281, 282, 283, 287, 288, 289, 290,
291, 292, 293, 294, 295, 315, 316, 317, 318, 319, 320,
321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331,
340, 341, 342, 343, 344 and 345 OF 1998
CIVIL APPEAL Nos. 27 and 28 OF 1999

(Consolidated)

(ON APPEAL FROM HCMP 114 of 1998)

IN THE MATTER of the property known as Tiu Keng Leng Cottage at Site No. 25, Section No. 7 and Tiu Keng Leng Cottage at Site No. 131, Section No. 11, Tiu Keng Leng Cottage Area, Hong Kong

and

IN THE MATTER of compensation payable to residents of Tiu Keng Leng under the decision of Sears, J. in High Court Miscellaneous Proceedings No. 114 of 1998

BETWEEN
TONG TIM NUI and others Applicants
(Appellants)
AND
HONG KONG HOUSING AUTHORITY Respondent
(Respondent)

Coram: Godfrey, Mayo & Rogers, JJ.A.

Date of Hearing: 8 and 9 September 1999

Date of Judgment: 27 September 1999

----------------------

J U D G M E N T

----------------------

Godfrey, J.A. :

Introduction

1. By an order made in the Court of First Instance on 27 June 1996, Sears, J. declared that those of the applicants in the judicial review proceedings against the Hong Kong Housing Authority which were before him and who were residents at Tiu Keng Leng on 5 June 1961 had a "right to damages for breach of a promise by the Hong Kong Government that they would not be moved away" from that area; and directed that the issues relating to the eligibility of the applicants to claim "damages" and the quantum of "damages" be reserved to himself for determination.

2. The appeals before this court are appeals by those of the applicants who complain about the decisions of the judge, in their individual cases, on those issues of "eligibility" and "quantum of damages". The Hong Kong Housing Authority opposes these appeals but has submitted to the judge's order of 27 June 1996 (against which it has not appealed) and all his subsequent decisions as to "eligibility" and "quantum". In these circumstances, nothing said in this judgment is intended to operate (nor indeed could it operate) so as to disturb any of the decisions of the judge in the cases of those applicants who have not appealed against the judge's decisions on "eligibility" and "quantum of damages".

3. As to those applicants who have appealed, some of them have complained that the judge has ruled them "ineligible" to claim "damages"; some of them have complained that the "damages" awarded to them by the judge were too low; and some of them have complained that the judge failed to give them a fair hearing when he came to decide whether or not they were "eligible". I need not distinguish for the purposes of this judgment between one class of applicants and another. For the reasons which will appear, I am of the opinion that none of them have ever had any valid claim to "damages" (or any other form of monetary compensation) at all and that this court should therefore dismiss their appeals. (Of course, those of the applicants who have been declared "eligible" and have had awards made in their favour, even if awards lower than they would have liked, will not be adversely affected by such a conclusion. Since the Hong Kong Housing Authority has not appealed to this court, either against the judge's order of 27 June 1996 or against any of his decisions in any individual case, no applicant will be deprived of the benefit of any such decision in his favour.)

4. With that introduction, I turn to the facts.

The facts

5. In 1949, the most recent of the civil wars which have plagued the mainland of China throughout its history ended with a victory for the communist forces over the nationalist forces. Most of the senior officers of the nationalist forces took refuge in Taiwan. Of the other ranks, deserted by their officers, many fled to Hong Kong, where the colonial administration permitted them to remain, at first in the Mount Davis area, but eventually (in 1950) at Tiu Keng Leng (Rennie's Mill). The colonial administration did little more for them. Left to their own devices, they created and developed their own settlement at Rennie's Mill, which became a nationalist enclave.

6. In 1958, the colonial administration enacted the Resettlement Ordinance, Chapter 16 of 1958, which conferred on the Governor powers to create "cottage re-settlement areas" and to issue occupation permits to the persons permitted to reside in those areas, such permits to be determinable on notice.

7. The colonial administration decided to create a cottage re-settlement area at Rennie's Mill and on 2 June 1961 issued a press release announcing that decision. This reads as follows :-

"Rennie's Mill Camp to be Administered as a
Resettlement Area

Improved Amenities to be Planned

Rennie's Mill Camp, at Junk Bay, is to be taken over by the Resettlement Department and administered as a resettlement area. In a few days officers of the department will begin a survey of the area in order to make a census of the buildings and their occupants. This survey will also be used as a basis to plan improvements of the amenities within the area, such as the provision of roads, paths, markets, latrines, water supply and sanitary services.

Announcing this today the Commissioner for Resettlement said that some structures may later have to be moved to allow for those planned improvements, but this would be avoided as far as possible. A new site within the area will be allotted to any family whose structure is cleared for this purpose, and every assistance will be given by the department to facilitate the move.

To meet part of the cost of improved facilities, occupants of all buildings within the area will in due course have to pay a permit fee for the site that they occupy. Fees payable will vary according to the size of the site. The fee for a cottage of average size, for example, will be $10 a quarter.

Schools and clinics operating in the area will be required to register with the Government departments concerned and every encouragement will be given to such organisations and to approved welfare associations to continue to operate. Permit fees for sites used for approved welfare or educational purposes will be assessed on a specially reduced scale.

It is not proposed to move from the area of Rennie's Mill Camp any of the present inhabitants but no new families will be allowed to take up residence in the area unless they qualify for resettlement, and the permission of the Commissioner for Resettlement will be required for the construction of any new buildings or the transfer of ownership of existing buildings.

Land is being cleared nearby for the establishment of ship-breaking yards and it is hoped that other industries will also develop in the area thus providing a convenient centre of employment for the inhabitants of Rennie's Mill Camp.

It is expected that the preliminary survey which will provide the census of buildings and occupants will be completed in about three months."

8. This announcement caused some considerable anxiety to the Rennie's Mill residents, as appears from a further announcement, made by the Commissioner for Resettlement on 5 June 1961, which reads as follows :-

"Recently there are rumours in Rennie's Mill that Government has planned to build multi-storeyed resettlement blocks in the area, which has caused some residents to become disturbed and to worry that once it is put into effect they will be forced to move away from their existing comfortable accommodations. Having learnt of this, the Commissioner for Resettlement hereby solemnly declares that the government will manage Rennie's Mill in the same manner as the other cottage resettlement areas (for example, Mount Davies Cottage Resettlement Area), and does not intend to build any multi-storeyed block within the area. Most of the residents in the area will be allowed to continue to reside in their existing buildings indefinitely. (emphasis added) They will be required to pay a small amount of permit fee only. As regards those buildings which have to be removed to allow improvement of roads and traffic and for the good of the community, such removal will be carried out only as a last resort. The Commissioner for Resettlement further declares that the government for the time being has no plan to resettle any people from urban area to Rennie's Mill area causing the population in the area to increase.

In any event, our department has no plan for removal or resettlement of any buildings in the next 6 months."

9. This did not allay the concerns of the residents. They petitioned the Governor to maintain the status quo.

10. The Commissioner responded to this petition by a letter dated 15 June 1961 which reads as follows :-

" I am directed to refer to your petition of the 8th June, 1961 addressed to His Excellency the Governor, and signed by yourself and other residents at Rennie's Mill (Tiu Keng Leng). I am to say that His Excellency has given most careful and sympathetic consideration to your representations, but has directed me to tell you that he cannot agree to alter the decision, which has already been conveyed to you, that the area of Rennie's Mill (Tiu Keng Leng) is, in due course, to become a resettlement area under the general administration of the Resettlement Department. His Excellency, however, wishes me to assure you that he sees no reason whatsoever for the inhabitants to be perturbed or worried at...

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