PUBLIC RECLAMATION AND WORKS
COMPENSATION TRIBUNAL, HONG KONG
CASE NO. 1 OF 1970
|TSANG SHIU TIM MIRANDA TSANG and JULIANA TSANG as trustees of the Estate of TSANG HUNG TIM deceased
|SUI HEONG YUEN GODOWN COMPANY
|THE GOVERNMENT OF HONG KONG
Coram: District Judge Yang, assisted by W.D. Browne, Esq., and P.C. Cotton, Esq., As Assessers.
1. In these proceedings brought under the Public Reclamation and Works Ordinance, Cap. 113, the two groups of Claimants claim compensation for the extinguishment of their rights resulting from the reclamation in front of a piece of land known as the Remaining Portion of Kowloon Marine Lot No. 57 which adjoins the Yau Ma Tei Typhoon Anchorage. The First Claimants are the registered owners of the land in question. The Second Claimants are a partnership business occupying the three-storeyed godown thereon as the First Claimants' tenants on a monthly tenancy subject to the Landlord and Tenant Ordinance, Cap. 225. The rental is $4,400 per month.
2. The width of the land measures 103 feet from north to south and abuts on the sea on the west side. The depth measures 158 feet from west to east. The total area is therefore 16,274 square feet, and there is erected from the land a wooden pier stretching some 150 feet into the sea (vide Document 13). The water at that part of the typhoon anchorage is very shallow, largely because of silting. At low tide, about four feet of the seabed measuring from the land towards the sea is completely exposed. Fully loaded barges and lighters drawing about ten feet of water normally sail half way down the length of the pier for unloading, though they are able to get in much nearer at high tide.
3. The Second Claimants carry on business under the style and title of Siu Heong Yuen Godown Company. Their business interests cover three different spheres, namely, import and export, retail, and godown. The first and second business activities are conducted at Nos. 34-36, Hing Lung Street, Hong Kong, whilst the godown business is carried on in the three-storeyed godown referred to above. We are here concerned only with the godown business.
4. The evidence shows that about sixty-five per cent of the goods stored in the godown arrives by sea. Barges, lighters and junks, some of which are equipped with derricks which can reach a distance of fifteen to twenty feet from the vessels, frequently use the pier for loading and unloading. Because of the obvious advantage derived from its proximity to the sea, the Second Claimants are able to command higher storage charges than that chargeable in godowns without direct access to the sea. For rice the charge is 60 cents per bag per month, as compared with 40 cents demanded by inland godowns; for other commodities, the charge is 25 to 30 cents per cubic foot per month as compared with 20 to 23 cents. Customers are prepared to pay these higher charges because the access to the sea obviates the necessity of resorting to road transport for delivery of goods from or onto vessels. Business for the first six months of this year has been very good, and a not unreasonable forecast is that the net profit before tax for the calendar year of 1970 will be somewhere in the region of $260,000. The manager of the Second Claimants estimates that the income for future years will be approximately $240,000 per annum. In my view, this estimate appears to be over optimistic, mainly because a very successful year has been taken as the only basis for the forecast. A more realistic approach is to take the average over a period of say nine years ending 31st December, 1969, as the Government has done, which gives the average net profit before tax at $71,643.94. The average net profit after tax at fifteen per cent is $60,897.35 (vide Document No. 16).
5. This claim arises from the Government's decision to build a major road over the foreshore and seabed immediately in front of the Claimants' land so as to ease the traffic load of Nathan Road. On 28th June, 1968, by a notification in the Gazette in accordance with Section 2 of the Public Reclamation and Works Ordinance, Cap. 113, the proposed reclamation and public works over the foreshore and seabed adjoining the land in question was published (vide Document 3). By a letter dated 2nd August, 1968, the Claimants submitted to the Director of Public Works their objections and claims under Section 2(2)(b) of the same Ordinance. Despite the objections and claims, the Governor-in-Council authorized the proposed reclamation and public works without modifications. The authorization was duly published in the Gazette on 13th March, 1970, thereby resulting in the extinguishment of the Claimants' rights attaching to the foreshore and seabed and rights of access to the sea. The extinguishment of these rights is provided in Section 5, which reads : "Upon publication of the authorization of an undertaking, all public and private rights of navigation or fishing and all public and private rights of access, user, possession or occupation, and all other public or private rights (if any) in, upon or over the Crown foreshore, seabed and land occupied by the undertaking shall be extinguished and cease to exist." The Claimants' claim for compensation is referred to this Tribunal by His Excellency the Governor under Section 6 of the Ordinance.
6. The immediate consequence of the reclamation proposed by Government is that the land in question will no longer enjoy a direct access to the sea. It is contended on behalf of the First Claimants that land with access to the sea is more valuable than that without. The Second Claimants argue that as most of their customers come to them because of the facilities afforded by access to the sea, the absence of such access would result in a loss of business and loss of income. It would also require keener competition with other inland godowns. Greater advertising expenses would therefore have to be incurred so as to attract more customers. And a watchman has to be employed to ensure added security as the godown would be adjoining a street instead of the sea.
7. In this case I have to consider what, if any, were the private rights of the two groups of Claimants which have been extinguished. Mr. Keil, acting for the Government, contends that the First Claimants had no right of access to the sea. It is submitted that in the Crown lease of another piece of land, viz., Kowloon Marine Lot 85 (Document No. 18), specific mention was made of the lessee's rights over the foreshore and seabed, whereas the Crown lease of the land in question (Document No. 1) did not expressly give the First Claimants such rights. Section 12 of the Harbour of Refuge Ordinance, 1909, is mentioned to support the contention that an owner's right of access to the sea must be specifically granted. In this section, such an owner was by statute given the right to compensation by reason of his land's access to the sea being interferred with. He refers also to Section 2 of the Foreshores & Seabed Ordinance, Cap. 127, to support his argument that marine rights, unless specifically granted to a lessee, remain with the Crown. A passage in Halsbury has been cited under the heading of ownership; it reads "The soil of the seashore, and of the bed of estuaries and arms of the sea and of tidal rivers, so far as the tide ebbs and flows, is prima facie vested of common right in the Crown, unless it has passed to a subject by grant or possessory title (Vol. 39 Halsbury, 3rd Edition, para. 775). We are, however, not dealing with ownership but of riparian rights. The following passages taken from Halsbury, in my view, furnish the answer to Mr. Keil's contentions. Paragraph 675 reads :
"A riparian owner, that is to say, an owner of land abutting on water, is entitled exjure naturae to access and regress to and from that water, whether it is a non-tidal river, a tidal river, a lake, or the sea, where it is in contact with his frontage. For the right to exist the land must be in actual daily contact with the water, either laterally or vertically, and in the case of land abutting on a tidal river or on the sea, where the foreshore is left bare at low-water so that the land is not always in contact with the water, there is sufficient contact to support a right of access, since it is in such contact for a great part of every day in the ordinary course of nature."
Paragraph 680 reads :
"The riparian owner's right of access includes (1) the right to land, or pass over the shore or bed at all states of the water for that purpose, even when the shore or bed is not vested in him; and (2) the right to moor vessels adjacent to his land for such period as is necessary to load or unload them and, in the case of tidal waters, if they cannot be loaded or unloaded in one tide, the right to keep them there until the operation is completed."
Paragraph 681 reads :
"Interference with a riparian owner's right of access is actionable ...... If the riparian owner's right of access is taken away as a result of works authorised by statute which incorporates the Land Clauses Acts the riparian owner has a right of compensation for injurious affection."
8. These statements show clearly that the First Claimants as riparian owners had in Common Law an undeniable right of access to the sea. The Second Claimants as their tenants were equally entitled to that right. Mr. Litton, in his able and careful analysis of his case, relies on four authorities to support his contention that the Claimants had a right of access to the sea.
9. In the Att.-Gen. of the Straits Settlement v. Wemyss (1888) 13 App. Cas. 192...