LEE AH KEUNG AND ANOTHER v. 李國忠transliterated as LEE KWOK CHUNG AND ANOTHER

CAMP 477/2022

[2023] HKCA 449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 477 OF 2022

(ON AN INTENDED APPEAL FROM DCMP NO 2128 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the 1^st defendant’s renewed application for leave to appeal to the Court of Appeal against the judgment of HH Judge M K Liu given on 17 August 2022 after a three-day trial (“Judgment”)[1] and for stay of execution and leave to adduce new evidence on appeal. Leave to appeal and stay of execution pending appeal was refused by the judge on 1 November 2022 (“Leave Decision”)[2].

Factual background

2.  The background of this case has been set out in §§3 to 14 of the Judgment. In gist, two brothers who are the registered owners of the land sued the defendants for recovery of possession of one of the two units (referred to as “House A” in the Judgment) inside the building erected on the land. House A is being occupied by the 1^st defendant (who is the second cousin of the plaintiffs) and his family, while the adjacent unit (referred to as “House B” in the Judgment) is possessed by the plaintiffs. The 1^st defendant counterclaimed for a possessory title to House A by adverse possession.

3.  By the Judgment, the judge found in favour of the plaintiffs and dismissed the 1^st defendant’s counterclaim. The 1^st and 2^nd defendants were ordered to deliver up vacant possession of House A to the plaintiffs within 42 days of the Judgment. The 1^st defendant was further ordered to pay mesne profits to the plaintiffs in the agreed sum of $83,571 up to the date of the Judgment with interest and further mesne profits at the rate of $57 per day until the delivery of vacant possession.

The present applications

4.  Having failed to obtain leave to appeal against the Judgment from the judge and for stay of execution pending appeal, on 15 November 2022, the 1^st defendant filed a renewed application for leave to appeal and stay of execution (CAMP 477/2022), as well as an application to adduce further evidence on appeal, being the affirmation of Lee Ting Yau (李丁有的非宗教式誓詞) dated 29 November 2022. Lee Ting Yau was referred to as “the former village head” in the 1^st plaintiff’s witness statement filed on 23 February 2021. The 1^st defendant filed another summons on 12 December 2022 for leave to amend the summons for adducing further evidence to correct some clerical errors in the summons.

5.  As the plaintiffs did not raise any objection to the summons of 12 December 2022, we grant leave to the 1^st defendant to amend the summons of 15 November 2022 to adduce further evidence.

6.  Having considered the papers, we think it appropriate to determine all the 1^st defendant’s applications on paper without an oral hearing.

7.  The application to adduce further evidence was issued in CAMP 477/2022. As pointed out by Lam VP (as he then was) in Man Tin Fook v 梁根林 [2019] HKCA 846 at footnotes 1 and 2, the summons to adduce further evidence on appeal issued in an application for leave to appeal is “procedurally misconceived”, as such an application cannot be entertained until leave to appeal has been granted. The court can however consider the new evidence proposed to be adduced on a de bene esse basis if it can be shown it is reasonably arguable that the Court of Appeal would grant leave to admit such evidence under the criteria in Ladd v Marshall [1954] 1 WLR 1489 at 1491.

Draft grounds of appeal

8.  The 1^st defendant stated the following grounds of appeal in his draft notice of appeal (which have been raised in the leave application before the judge):

(1)  The judge erred in rejecting the evidence in support of the 1^st defendant’s counterclaim for adverse possession by (i) failing to consider that the building of the partitioning wall dividing the building into Houses A and B was strong evidence of adverse possession, (ii) disregarding the unchallenged evidence that the assault by Lee Ah Ting on Lee Sun Kwai’s wife was the reason for building the partitioning wall, and/or (iii) failing to consider that the 1^st plaintiff’s ignorance of when Lee Sun Kwai’s wife moved out from House A is evidence proving that the 1^st defendant and his family had exclusive control and possession of House A (“Ground 1”);

(2)  The judge was wrong to accept the hearsay evidence from the 1^st plaintiff claiming that he was told by the village head that Lee Ah Ting invited Lee Sun Kwai to purchase House A (“Ground 2”).

Legal principles

9.  Under section 63A(2) of the District Court Ordinance (Cap 336), leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice that the matter should be heard by the appeal court.

10.  Reasonable prospect involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”[3].

The further evidence proposed to be adduced

11.  We do not agree with the 1^st defendant it is reasonably arguable that the criteria for admission of further evidence on appeal are met. In particular, the first condition in Ladd v. Marshall (ie it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial) is plainly not satisfied.

12.  The 1^st plaintiff had averred in his witness statement filed on 23 February 2021 that he heard from the “former village head” that Lee Ah Ting (the plaintiff’s father; “Ah Ting”) had invited Lee Sun Kwai (the 1^st defendant’s father; “Sun Kwai”) to purchase the title of House A and that Lee Ka Wai (the 1^st defendant’s elder sister; “Ka Wai”) had asked Ah Ting to sell her the title of House A[4]. The 1^st defendant explained that he was not aware of the importance of the evidence of the village head back then as the village head did not make any witness statement and he believed that the court would not place reliance upon the purported words of the village head[5]. This only shows the misjudgment of the 1^st defendant and/or his former solicitors and trial counsel but cannot be taken to show that that the relevant evidence could not have been obtained at the trial with reasonable diligence.

13.  As the first condition is not met, it is unnecessary to discuss whether the other two conditions in Ladd v. Marshall are satisfied. We shall disregard the further evidence for the purpose of the application for leave to appeal.

14.  As the amended summons to adduce further evidence is procedurally misconceived and plainly without merit, we dismiss this summons with costs to the plaintiffs.

15.  We turn to consider the draft grounds of the intended appeal.

Ground 1

16.  In the Judgment, the judge had accepted the 1^st plaintiff’s evidence that Ah Ting wanted to give Sun Kwai’s family more private room and hence had the idea of dividing the building into two units and let Sun Kwai and his family live in one unit. The judge found the 1^st plaintiff an honest and reliable witness and took the view that his evidence is consistent with the undisputed or indisputable facts and is inherently probable[6]. Ground 1 seeks to challenge the findings of primary fact made by the trial judge. It is trite that the Court of Appeal would not interfere with the findings of primary fact made by the trial judge, who enjoyed advantages which came from receiving the evidence at first hand, unless it is satisfied that the conclusion reached by the trial judge on the facts is plainly wrong[7].

17.  In respect of the partitioning wall, the judge had set out his reasons in §§44 to 48 of the Judgment why he rejected the 1^st defendant’s allegations that Ah Ting assaulted Sun Kwai’s wife which caused Sun Kwai to determine to build the partitioning wall to divide the building into two units[8] and that the construction works were done by Sun Kwai notwithstanding the objections from other members of the extended family living in the building[9]. The judge also explained in §§49, 50 and 56 why he accepted the 1^st plaintiff’s case that it was Ah Ting’s idea to build the partitioning wall to divide the building into two units and let Sun Kwai and his family live in one unit.

18.  Despite the submissions of the 1^st defendant it is not inherently improbable for a person to forcefully carry out building works against the will of another person living in the building at the time, the judge is entitled to decide to the contrary and to reject the “cornerstone” of the 1^st defendant’s case that the partitioning wall was caused to be constructed by Sun Kwai in 1978 notwithstanding Ah Ting’s objections. There is nothing to indicate that his decision is plainly wrong. Therefore, there is no merit in the contention that the building of the partitioning wall is strong evidence of adverse possession. The 1^st plaintiff’s ignorance of when Sun Kwai’s wife moved out from House A is not inconsistent with the 1^st plaintiff’s case that the 1^st defendant has possession of House A under a bare licence. Thus, there is also no merit to rely on such ignorance to support a case of adverse possession.

19.  The contentions raised by the 1^st defendant in Ground 1 have been considered by the judge. The 1^st defendant has failed to demonstrate any palpable error in the judge’s analysis and assessment of the evidence.

20.  There is no reasonable prospect of success for Ground 1.

Ground 2 – hearsay evidence

21.  According to section 47 of the Evidence Ordinance (Cap 8), evidence shall not be excluded in civil proceedings on the ground that it is hearsay unless (a) a party against whom the evidence is to be adduced objects to the admission of the evidence, and (b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice. In other words, if the party looking to exclude the hearsay evidence fails to satisfy the court that excluding the hearsay evidence is not prejudicial to the interests of justice, the hearsay evidence will be admitted.

22.  As pointed out by the judge, the 1^st defendant’s submission by his new counsel that his former trial counsel had objected to the admissibility the 1^st plaintiff’s evidence referred to as “Ah Ting’s Invitation” (that in 2018, the 1^st plaintiff learned from the former village head that Ah Ting had invited Sun Kwai to purchase House A but Sun Kwai did not take up the offer for he had insufficient money) is factually incorrect. The trial counsel has only challenged the truthfulness of Ah Ting’s Invitation, not the admissibility of this hearsay evidence[10]. The present situation is not within section 47 and the hearsay evidence adduced by the 1^st plaintiff is not rendered inadmissible.

23.  Besides, it is not wrong for the judge to accept the 1^st plaintiff’s evidence on Ah Ting’s Invitation, for the reasons set out in §53 of the Judgment.

24.  In any event, as stated by the judge, even if the 1^st plaintiff’s evidence on Ah Ting’s Invitation is to be disregarded, this would not have changed the whole landscape of this case[11].

25.  There is no reasonable prospect of success in respect of Ground 2.

Disposition

26.  As the 1^st defendant failed to show any reasonable prospect of success in his intended appeal, we dismiss his application for leave to appeal and for stay of execution pending the intended appeal.

27.  We make a further order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes as the applications are wholly without merit.

28.  There is no reason to depart from the general rule that costs should follow the event. We order that the 1^st defendant to pay the plaintiffs’ costs of these applications.

29.  Having considered the plaintiffs’ statement of costs lodged on 23 December 2022 for summary assessment, we assess reasonable fees payable to the plaintiffs at $57,000, noting that the plaintiffs have engaged the same team of lawyers throughout.

30.  The costs order and summary assessment are orders nisi. If there is no application for variation within 14 days of the handing down of this judgment, the orders will be made absolute.