Surveying and Built Environment Vol 25(1), 9-46 November 2016 ISSN 1816-9554

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北京辦事處 Beijing Office 中國北京市海淀區高樑橋斜街59號院1號樓中坤大廈6層616室 (郵編：100044) Room 616, 6/F, Zhongkun Plaza, No.59 Gaoliangqiaoxiejie, No.1 yard, Haidian District, Beijing, China, 100044 Telephone 電話: 86 (10) 8219 1069 Fax 傳真: 86 (10) 8219 1050 E-mail 電郵: [email protected] Web Site 網址: www.hkis.org.hk Editorial Board

■■ Honorary Editor Emeritus Professor Andrew Y.T. Leung Sr Billy K.Y. Wong Department of Architecture and Civil Engineering The Hong Kong Institute of Surveyors City University of Hong Kong Hong Kong SAR, People’s Republic of China Hong Kong SAR, People’s Republic of China

■■ Chairman and Editor-in-Chief Sr Professor S.M. Lo Sr Professor K.W. Chau Department of Architecture and Civil Engineering Department of Real Estate and Construction City University of Hong Kong The University of Hong Kong Hong Kong SAR, People’s Republic of China Hong Kong SAR, People’s Republic of China Sr Professor Esmond C.M. Mok ■■ Editor Vol. 25 Issue 1 Department of Land Surveying and Geo-Informatics Sr Professor Lawrence W.C. Lai The Hong Kong Polytechnic University Department of Real Estate and Construction Hong Kong SAR, People’s Republic of China The University of Hong Kong Hong Kong SAR, People’s Republic of China Professor Graeme Newell School of Business ■■ Editorial Assistant University of Western Sydney Dr. Holvert Hung Australia Department of Real Estate and Construction The University of Hong Kong Professor L.Y. Shen Hong Kong SAR, People’s Republic of China School of Construction Management and Real Estate The Chongqing University ■■ Members People’s Republic of China Sr Dr. M.W. Chan Sr Dr. Conrad H.W. Tang Department of Building and Real Estate Department of Land Surveying and Geo-Informatics The Hong Kong Polytechnic University The Hong Kong Polytechnic University Hong Kong SAR, People’s Republic of China Hong Kong SAR, People’s Republic of China Sr Professor S.O. Cheung Professor Chris Webster Department of Architecture and Civil Engineering Department of Urban Planning and Design City University of Hong Kong The University of Hong Kong Hong Kong SAR, People’s Republic of China Hong Kong SAR, People’s Republic of China Dr. Cecilia Chu Professor Cecilia Y.L. Wong Department of Urban Planning and Design School of Environment, Education and Development The University of Hong Kong The University of Manchester Hong Kong SAR, People’s Republic of China The United Kingdom Sr Professor Daniel C.W. Ho Dr. Simon Y. Yau Faculty of Design and Environment Department of Public Policy Technological and Higher Education Institute of Hong Kong City University of Hong Kong Hong Kong SAR, People’s Republic of China Hong Kong SAR, People’s Republic of China Sr Professor Lawrence W.C. Lai Department of Real Estate and Construction ■■ English editing The University of Hong Kong Dr. Stephen N.G. Davies (Vol. 21, 22, 23, 24 and this Hong Kong SAR, People’s Republic of China issue)

Dr. John P. Lea Faculty of Architecture, Design & Planning The University of Sydney Australia Contents

Editorial Constitutional capitalism in action? Planning and property rights in Hong Kong in Leighton Property Company Limited and Lee Theatre Realty Limited v. Town Planning Board

Articles Saiwan Redoubt Part I: A Unique, Intriguing but Neglected and Abused Example of Hong Kong’s Military Heritage By Stephen N.G. Davies, Ken S.T. Ching, Lawrence W.C. Lai Saiwan Redoubt Part II: Hong Kong’s Oldest Property Boundary Stone and Trigonometrical By Stephen N.G. Davies and Ken S.T. Ching A Preliminary Review of the Policy on Revitalisation of Old Industrial Buildings By Jimmy C. F. Leung and Kenneth S. S. Tang A Coasian Perspective on Informal Rights Assignment among Waste Pickers in Hong Kong By Mark Hansley Y. Chua Special Paper Remembrance of an Intellectual Giant: Professor Douglass North By Lennon H.T. Choy Practice Notes Regulations of Collective Investment Scheme: Case Study of Property Investments in Hong Kong By Chester K. K. Lee The Valuation of Upstairs Commercial Property with Direct Access to Ground Floor Level based on the Principle in Stokes v Cambridge By H. F. Leung The Surveyor and Built Heritage Conservation By Lawrence W. C. Lai Editorial

Constitutional capitalism in action? Planning and property rights in Hong Kong in Leighton Property Company Limited and Lee Theatre Realty Limited v. Town Planning Board

Lawrence Wai Chung Lai

The leading decision of the Court concerning the constitutional and of Final Appeal (CFA) in Leighton political future of Hong Kong. These Property Company Limited and fundamental concerns are reflected, Lee Theatre Realty Limited v. Town respectively, in the provisions of Article Planning Board (Leighton) is probably 2 and Article 5. the most significant one it has made since July 1997. Article 2 reads: “The National People’s Congress The reason is simple. It addressed authorizes the Hong Kong private property rights in land Special Administrative Region in relation to the Town Planning to exercise a high degree of Ordinance (TPO) as a constitutional autonomy and enjoy executive, issue. In particular in connection with legislative and independent planning (zoning) restrictions laid down judicial power, including that of by the Town Planning Board under the final adjudication, in accordance TPO, the judgment refers to the Basic with the provisions of this Law.” Law provisions as to private property rights under Article 6 and Article 105. Article 5 reads: Articles 7, 25, 27, 28(2) were also “The socialist system and mentioned in the decision. The heart of policies shall not be practiced the matter can only be fully grasped in in Hong Kong Special light of the purpose of the Basic Law Administrative Region, and itself. the previous capitalist system and way of life shall remain The fathers of the Basic Law surely unchanged for 50 years.” intended (a) to establish a “highly” autonomous local government as Article 5 is particularly significant as a special place within the People’s it expressly constitutionally protects Republic of China; and (b) to preserve “capitalism” (and that is why it can the economic and social “status quo” be argued that Hong Kong is now that prevailed in Hong Kong at the in an age of de jure “constitutional time of the Sino-British Agreement capitalism” (Lai 2002a, 2002b)). While SBE 5 the concept of a “capitalist system” is Leighton, was that the town planning open to interpretation, the fact remains and urban renewal legislation was that Article 5 is a unique example of constitutional. The expression “in constitutional provision for a specific accordance with the law” in Article 8 economic order. Most countries’ has often been advanced to suppose constitutions neither prescribe nor that the “protection of private property” forbid any particular economic system. is qualified. Thus, private property The “previous capitalist system” rights are always qualified by “the law” provision in Article 5 of the Basic (namely ordinances in force, such as Law of Hong Kong is a significant the TPO). This view further relied on exception1. The Constitution of the Article 105, which expressly provides United States of America, a textbook that property can be subject to “lawful example of a capitalist society, does deprivation”