LC Paper No. LS 178/98-99

At the House Committee meeting held on 30 April 1999, members were requested to defer decision on the Rules pending our clarification with the Administration about some legal and drafting aspects of the amendment Rules. Our queries and the Administration's reply to them are set out below.

Rule 2 of the amendment Rules

2. Rule 2 of the Lands Tribunal Rules (Cap. 17 sub. leg.) is amended to the effect that new Part XIVA shall prevail over any general provision in Part II with which it is inconsistent or in conflict. It is noted that Part II is already subject to Part III to Part XIII but not Part XIV (proceedings under the Building Management Ordinance). We have asked the Administration to explain the reasons for including Part XIVA under rule 2 rather than excluding it, like Part XIV.

3. The Administration is of the view that rule 2 of the Lands Tribunal Rules should cover Part III to Part XIII, as well as, Part XIV and Part XIVA. It undertakes to take action to redress the situation later on.

4. The inclusion of Part XIV under rule 2 of the Lands Tribunal Rules is outside the scope of the present legislative exercise. The omission of Part XIV from rule 2 will not affect the legal validity of the amendment Rules.

Registrar

5. The references to Registrar (i.e. the Registrar of the District Court) in the amendment Rules are in small letter (i.e. "registrar") as opposed to "Registrar" in the other provisions of the Lands Tribunal Rules. We have asked the Administration to explain such inconsistency in drafting.

6. The Administration states that there is at present no definition of "Registrar" either in the Lands Tribunal Ordinance or the Lands Tribunal Rules. The term "registrar" is however defined in the Lands Tribunal Ordinance. Therefore, if one wants to refer to the Registrar of the District Court in the Lands Tribunal Rules, one must use "registrar". It undertakes to take action to redress the situation later on.

7. The amendment to the term "Registrar" is outside the scope of the present legislative exercise. We are satisfied that the reference to "registrar" in the amendment Rules is in order.

New rule 78E(2)

8. We have asked the Administration to clarify the ways in which a tenant gets to know details of the applicant in the main application in order to serve a notice on the latter. The problem is that the notice under Part 2 of Schedule 1 to the Land (Compulsory Sale for Redevelopment) Ordinance (Cap. 545) ("the Ordinance"), to be fixed on the lot in question and published in the newspaper informing the tenant that an application has been made under the Ordinance, does not contain details of the majority owner.

9. The Administration acknowledges the problem. In relation to the amendment Rules, suggestion has been made to require a copy of the main application, which contains details of the majority owner, be served together with the notice. But the Law Drafting Division of the Department of Justice is of the view that the suggestion poses a vires problem because such requirement is not provided for in the Ordinance. The Administration further states that the tenant who wishes to obtain more information about the main application may find out from his landlord or the Land Registry.

10. We are satisfied that the situation may be improved but in practice the tenant has ways to find out details of the majority owner in the main application.

11. We have further asked the Administration to clarify whether the reference to "the owner, whether classified as majority owner or minority owner" is clear enough to mean the landlord of the applicant tenant. In this connection, we have asked the Administration to remove the requirement for the applicant to serve duplicate notice on the "owner" and the "owner" again if he is also the applicant in the main application.

12. On the question of qualifying the term "owner", the Judiciary Administrator is of the view that it is not absolutely necessary to do so for the following reasons -

1. Rule 78E(1) refers to Form 34. Form 34 refers to the specified Form 32 main application filed and the proposed amount of compensation payable to the tenant as set out therein. In completing Form 34, there can reasonably be no misunderstanding on the part of the tenant as to which property the word "owner" refers.
   
   
2. Leaving "owner" in its present form will be sufficient. It will not do harm as the registry staff of the Lands Tribunal will give tenants in person the necessary advice and assistance.

Should there be any practical difficulty arising from rule 78E(2) when the Ordinance comes into operation, the Judiciary Administrator will consider to review the provision.

13. We are of the view that there is room for improvement in the present drafting. But in the light of the view of the Judiciary Administrator and his undertaking, members may wait and see whether there will be any practical difficulty arising from the operation of the provision.

14. On the question of serving duplicate notice, the Judiciary Administrator is of the following view-

1. An owner with dual capacities should be served with documents in both capacities if he is entitled to be so served so that the owner can make representation in his different capacities. Such practice is adopted in other legal actions with similar situation. The said owner may use a different address for service or authorize a different person to conduct his case or to appear in court for him in different capacities.
   
   
2. It will cause operational difficulties or inconvenience to the tenant applicant and the staff of the Lands Tribunal. Time and care has to be taken to check whether a particular owner has the said dual capacities and, if so, to have his name deleted from the mail list for service, or from the list of persons served in the preparation of affirmations of service.

We accept the view of the Judiciary Administrator.

15. Copies of the correspondence between the Legal Service Division and Administration are at the Annex.


Encl
Prepared by
Lam Ping-man, Stephen
Assistant Legal Adviser
Legislative Council Secretariat
6 May 1999
Subleg/further/LandTri(LS/S/42/98-99)

Annex

LS/S/42/98-99
2869 9468
2877 5029

Mr Gordon Ho Assistant Secretary (UR) 1 Planning, Environment and Lands Bureau 9/F, Murray Building Garden Road Central Hong Kong

26 April 1999 BY FAX Fax No. : 2905 1002 Total Page(s) : 2

Dear Mr Ho,



We are scrutinising the legal and drafting aspects of the amendment Rules. We should be grateful for your clarification of the following points-

Rule 2 of the amendment Rules

Rule 2 of the Lands Tribunal Rules (Cap. 17 sub. leg.) is amended to the effect that new Part XIVA shall prevail over any general provision in Part II with which it is inconsistent or in conflict. It is noted that Part II is already subject to Part III to Part XIII except Part XIV. What is the rationale for including Part XIVA in rule 2 rather than excluding it, like Part XIV?

Registrar

The references to Registrar (i.e. the Registrar of the District Court) in the amendment Rules are in small letter (i.e. "registrar") as a contrast to "Registrar" in the other provisions of the Lands Tribunal Rules. Should "registrar" in the amendment Rules be changed to "Registrar" as being used in the Lands Tribunal Rules to achieve consistency or vice versa?

New rule 78E(2)

How does a tenant know details of the applicant in the main application and the minority owner in order to comply with the provision?

There is a reference to "the owner, whether classified as majority owner or minority owner" in the provision. Since the applicant in the main application is the majority owner, the other owner should be, by deduction, the minority owner. Is it possible to make simple reference to the minority owner instead of the words in quotation?

In facilitating us to report on this item to the LegCo House Committee meeting to be held on 30 April 1999, we should be grateful for your reply, in bilingual versions, to reach us by the morning of 28 April 1999.

Yours faithfully,



(Stephen Lam)
Assistant Legal Adviser

(40) in PELB(L) 70/41/85(99) Pt. X
LS/S/42/98-99
2869 9468
2877 5029

Mr Gordon Ho Assistant Secretary (UR) 1 Planning, Environment and Lands Bureau 9/F, Murray Building Garden Road Central Hong Kong

29 April 1999 BY FAX Fax No. : 2905 1002 Total Page(s) : 2

Dear Mr Ho,




Thank you for your reply of 27 April 1999. We should be grateful for your further clarification of the following points raised in your reply :

Rule 2 of the Amendment Rules

Would the Administration undertake to redress the situation in another legislative exercise?

Registrar

Would the Administration undertake to redress the situation by changing "Registrar" to "registrar" in the Lands Tribunal Rules in another legislative exercise?

New rule 78E(2)

Having further discussed with you about the intention of referring to "the owner, whether classified as majority owner or minority owner", we are given to understand that it means the landlord of the applicant tenant in question. If that is the case, we are in doubt as to whether or not the present drafting reflects unequivocally the intention. There is no link between "the owner" and the intended landlord. Further, the present drafting causes inconvenience to the applicant tenant by requiring him to serve duplicate notice on "the owner" and "the owner" again if he is also the applicant in the main application. In the light of the above, we propose to redraft the provision along the following line -

" (2) A copy of the notice of application shall be served by the applicant tenant on-

1. the owner of property to which the tenancy relates; and
   
   
2. the applicant in the main application other than the owner if he is so served under (i),

not later than 7 days after it is filed.".

In facilitating us to report on this item to the LegCo House Committee meeting to be held on 7 May 1999, we should be grateful for your reply, in bilingual versions, to reach us by the morning of 3 May 1999.

Yours faithfully,


(Stephen Lam)
Assistant Legal Adviser