DCMP 3807/2016
[2022] HKDC 233
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 3807 OF 2016
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IN THE MATTER OF All those pieces or parcels of land now known and registered in the Yuen Long Land Registry as Lot No 1347 in Demarcation District No 102, Yuen Long, New Territories, Hong Kong (the “Land”).
and
IN THE MATTER OF Order 113 Rule 1 of the Rules of the District Court, Cap 336H.
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BETWEEN
RICHLANDS PROPERTIES LIMITED
Plaintiff
and
THE OCCUPIER(S) of Lot No 1347
1st Defendant
in Demarcation District No 102,
Yuen Long, New Territories, Hong Kong
CHAN MING LUNG
2nd Defendant
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Before: Deputy District Judge Zabrina Lau(Paper Disposal)
Dates of the 2nd Defendant’s Written Submissions: 17 January and 28 February 2022
Date of the Plaintiff’s Written Submissions: 31 January 2022
Date of Decision: 10 March 2022
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DECISION
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1. On 27 August 2021, I gave judgment (“the Judgment ”) in favour of the plaintiff for recovery of possession of the Land and dismissed the 2nd defendant’s counterclaim for adverse possession and easement / right of way. Unless otherwise stated, in this decision I adopt the same abbreviations used in the Judgment.
2. The 2nd defendant had previously obtained legal aid and was legally represented throughout the trial. On 24 September 2021, he filed a Notice to Act in person. By a summons issued on the same date, he applied for leave to appeal to the Court of Appeal. The grounds of appeal as set out in the summons are:
(1) certain findings by the court were unreasonable;
(2) further signed letters from other witnesses will be provided; and
(3) further photographic evidence will be provided.
3. The 2nd defendant urged the court to fix the hearing of his application not before February 2022 (ie over four months away from the date of the summons) allegedly because he would not be available before then. In any event, pursuant to the decision of Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350, [2018] HKCA 759 at §24, I ordered that the 2nd defendant’s application be dealt with on paper and gave consequential directions.
4. Since then the 2nd defendant made a number of applications to extend the time for his filing of submissions. According to the original directions, the 2nd defendant was required to file and serve his submissions by 3 December 2021 and submissions were to be closed by 31 December 2021. As a result of the 2nd defendant’s applications for time, he filed his submissions on 17 January 2022 and the plaintiff filed its submissions in opposition on 31 January 2022.
5. Consequently, the 2nd defendant was supposed to file and serve his reply submissions, if any, by 14 February 2022. However, shortly before the deadline he made a further application for time extension of 56 days for the filing of his reply submissions. I dismissed the application on the grounds that (i) the Judgment was handed down in August 2021 and the 2nd defendant had ample time to prepare his application for leave to appeal and (ii) the proceedings had already been delayed due to his previous applications for time. Nonetheless, I gave the 2nd defendant an additional two weeks in view of the fact that there were intervening Chinese New Year holidays and the pandemic situation in Hong Kong had become more severe. To avoid any further delay to the proceedings, I made an “unless order” that the 2nd defendant was required to file his reply submissions by 28 February 2022 or he would be debarred from doing so.
6. The 2nd defendant duly filed his reply submissions by the deadline. Although he continues to act in person, his submissions were all prepared in English. As such, this decision is written in English.
Relevant legal principles
7. The relevant principles concerning leave to appeal from the District Court to the Court of Appeal are well established. Leave to appeal can only be granted if the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard: section 63A (2) of the District Court Ordinance (Cap. 336).
8. Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125 at §17.
9. Grounds of appeal (even those prepared by litigants in person) must identify probable errors by the judge and it would not be sufficient if the appeal court might reach a different conclusion on the evidence: China Gold Finance Ltd v CIL Holdings Ltd (unreported, CACV 11/2015, 27 November 2015) at §§14-16.
10. For any new evidence to be admitted in an appeal, the three conditions as set out in Ladd v Marshall must be satisfied:-
(1) The proposed evidence could not have been obtained at the trial or at the hearing with reasonable diligence;
(2) The evidence would or might, if believed, have a very important effect on the mind of the court; and
(3) It is of a sort which inherently is not improbable.
(See: Aluhouse Co Ltd v Success Lane Development Ltd [2022] HKDC 17 at §5 per HHJ MK Liu)
Proposed new evidence
11. The 2nd defendant did not make any application for leave to adduce the proposed new evidence for the purpose of this application. He simply attached several signed, but not sworn, statements made by various persons whom he identified in his submissions as:
(1) three of his neighbours purporting to corroborate that the 2nd defendant was farming on various lots from 1953 to 1993;
(2) the owner of Tung Fat Store;
(3) a person purporting to prove that the 2nd defendant purchased chickens for sale; and
(4) a relative, his son-in-law, daughter and son purporting to prove that he was farming or rearing chickens on various lots up to 1993.
12. The 2nd defendant explained that these statements were not adduced because “they were not found until after the grant of Judgment in August 2021”.
13. Such an excuse must be rejected, as it is plain that the proposed evidence could have been adduced at trial with reasonable diligence. The makers of those purported signed statements appear to be persons whom the 2nd defendant had known all along before these proceedings (with a number of them being his close relatives); there is no explanation as to why they could not have been called to give evidence at trial. One must not lose sight of the fact that the 2nd defendant was legally represented throughout the trial and chose not to call them as witnesses. The first condition in Ladd v Marshall is clearly not satisfied.
14. It is not necessary for me to go into the second and third conditions. Suffice it to note that the statements are brief and general, and they appear to be pre-typed templates filled by various persons stating that they have witnessed the 2nd defendant farming on various lots for a certain number of years. I am not convinced that these statements, if admitted, would or might have a very important effect on the mind of the court.
15. In view of the above discussion, the 2nd defendant is not permitted to rely on the proposed new evidence for the purpose of this application.
Leave to appeal
16. The first ground of appeal is extremely vague and does not identify any specific errors in the judgment. The second and third grounds are not proper grounds of appeal.
17. In his submissions, the 2nd defendant made criticisms in respect of certain paragraphs of the Judgment. Even taking into account such arguments, I am not persuaded that the 2nd defendant has demonstrated that his intended appeal has a reasonable prospect of success. I will deal with each of those arguments briefly below.
18. Paragraphs 35, 54 to 61, 62 to 65: The 2nd defendant argues that I erred in not believing his elder son due to irrelevant events which are not acts of occupation. I disagree. The events related to the location of No. 62 House and the 2nd defendant’s decision to close the chicken farms, which are clearly circumstantial evidence relevant to the issue of the alleged occupation and the witnesses’ credibility.
19. Paragraph 39, 72 to 74, 80 to 86: It is argued that I had overlooked the agreed fact that the Disputed Area was enclosed by fences with access restricted since 1973 up to at least 2017. Again, I disagree. I had expressly acknowledged (at paragraph 69) the existence of fences in the vicinity of the Disputed Area since around 1972. However, it was for the 2nd defendant to prove that the fences were erected, maintained and controlled by him, and he failed to do so.
20. Paragraph 47: It is argued that I erred in making no finding that the 2nd defendant was farming on the Disputed Area while I held that he was a farmer. As I stated in the paragraph, there was nothing in the evidence that can relate him to the Disputed Area and I am unable to see any error in this regard.
21. Paragraph 52: The 2nd defendant argues that I had overly relied on the mentioning of “田主”but ignored other evidence such as the Disputed Area has been enclosed by fences in 1973, and there was no record of tenancy agreement as per the land search record. Contrary to that argument, it is quite clear from the Judgment that such evidence had been considered (see paragraphs 52 and 69).
22. Paragraphs 75 to 77: It is argued that I erred in not believing that the 2nd defendant erected the chicken farming structures. As I said at paragraph 77, while the acquittance roll can be considered as evidence that the 2nd defendant claimed to be the proprietor of the chicken sheds listed therein, there was no documentary evidence as to when the 2nd defendant started the alleged poultry farming to satisfy the statutory limitation period.
23. Paragraphs 78 to 79: The 2nd defendant said that I erred in considering the irrelevant structures listed in the acquittance roll which were located outside the Disputed Area. In my view, those structures are clearly not irrelevant as they were included in the acquittance roll as purportedly structures within the 2nd defendant’s alleged possession and/or for which he received compensation.
24. Paragraph 87: The 2nd defendant argued that I erred in finding that by signing the acquittance roll and accepting the ex-gratia payment, he had the intention to deliver up possession of the structures, where in fact his statement only meant that he would cease the chicken farming but he would not leave the Disputed Area. I am unable to discern such a meaning from the 2nd defendant’s statement in the acquittance roll.
25. For the purpose of completeness, I have also considered whether there is any other reason why the appeal should be heard in the interests of justice. As I see it, there is no such reason.
Disposition
26. The 2nd defendant’s summons for leave to appeal is dismissed.
27. There is no reason why costs should not follow the event. The 2nd defendant should pay the plaintiff’s costs of the summons, with certificate for counsel, summarily assessed at $50,000 and payable forthwith.
28. I thank counsel for the helpful assistance.
( Zabrina Lau )
Mr J Y Chan Derek, instructed by Foo & Li, for the plaintiff
The 1st defendant was not represented and did not appear
The 2nd defendant acting in person