FASTWAY (H.K.) INVESTMENT LTD v. WING BO MOTOR CO

HCMP 1565/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1565 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ NO. 3507 OF 2008)

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D E C I S I O N

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Hon Kwan JA (giving the decision of the Court):

1. This is the defendant’s application for leave to appeal to the Court of Appeal against the judgment of Deputy District Judge Alfred H H Chan made on 22 March 2013. The defendant is a sole proprietorship registered in the name of Lee Kwok Wai but the business has been operated by his elder brother Lee Chi Man at all times.

2. By his judgment of 51 pages (“the 1^st Judgment”), which was given after a six-day trial, the judge found for the plaintiff and ordered the defendant to deliver up vacant possession of the premises in dispute in Ha Hau Village, Ting Kok Road, Tai Po, New Territories (“the Premises”), and to pay mesne profits of $9,000 per month from 1 February 2008 until the delivery up of vacant possession with interest.  He dismissed the defendant’s counterclaim for declaratory relief that it has acquired a possessory title by adverse possession to certain parts of the Premises being Houses 47 and 48 and an area marked “A” in the plan annexed to the Re-amended Defence and Counterclaim (“Area A”).

3. The defendant’s application to the judge for leave to appeal to the Court of Appeal was heard and dismissed on 11 June 2013 and the judge handed down reasons for his decision in a nine-page judgment on 17 June 2013 (“the 2^nd Judgment”).

4. The defendant had legal aid at the trial and in its application to the judge for leave to appeal.  It was represented by two different counsel at the trial and the leave application.

5. When the defendant renewed its application to this court for leave to appeal, it is no longer legally aided and is now acting in person.  The defendant’s summons in the present proceedings and its supporting affirmation dated 24 June 2013 are in Chinese.  For the grounds of the intended appeal, the defendant referred to the supporting affirmation of Lee Kwok Wai.  The latter document simply exhibits a Notice of Appeal dated 24 June 2013 signed by Lee Kwok Wai.  This Notice of Appeal is in English and is exactly the same as the draft Notice of Appeal settled by the defendant’s former counsel and annexed to its summons for leave to appeal dated 17 April 2013 that had been considered by the judge in the 2^nd Judgment.  As the 1^st Judgment, the 2^nd Judgment, the draft Notice of Appeal, and the skeleton argument of the plaintiff dated 8 July 2013 opposing the application are all in English, we consider it appropriate to give our decision in English.

6. We exercise our power under Order 59 rule 2A(5) of the Rules of the High Court to determine this application without an oral hearing.

7. Under section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”[1].

8. The main issue in this case is whether an oral tenancy agreement made by the plaintiff’s predecessors in title and Lee Chi Man in 2002 covered only House 45 and the land in front, a small strip of land adjacent to and to the west of House 45, and House 46 and the land in front, as alleged by the defendant in its latest amended pleading, or whether it covered the whole of the Premises, as alleged by the plaintiff, which would have included Houses 47, 48 and Area A.  The judge decided this issue in the plaintiff’s favour in the 1^st Judgment, which is balanced, well-reasoned and thorough in its analysis of the conflicting evidence.  The findings of fact made by the judge in his determination of the main issue are primary findings of fact.  There is no basis for the appeal court to interfere with his findings unless it is satisfied that the findings are plainly wrong.

9. We have considered the written submission of the defendant’s former counsel in support of the five grounds he put forward in the draft Notice of Appeal.  We agree entirely with the comprehensive reasons given by the judge in the 2^nd Judgment why none of these grounds would satisfy the threshold requirement for leave to appeal to be granted.

10. None of the grounds of appeal put forward are of any merit.  In renewing his application to this court, the defendant has not advanced any new or additional argument to justify the granting of leave to appeal, nor has it been shown that the reasons in refusing leave in the 2^nd Judgment are wrong.  The present application is simply an exercise in futility.

11. We therefore dismiss the application for leave to appeal.

12. As the application is wholly without merit, we make a further order pursuant to 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.

13. We consider it appropriate to order costs against the defendant on an indemnity basis, as this application should not have been made.  We make an order nisi that the defendant is to pay the plaintiff’s costs of this application.  We further assess the costs payable by the defendant on a gross sum basis.  In making our assessment of indemnity costs, we take into account that no new argument was advanced by the defendant in the present application and that the plaintiff’s counsel has simply re-organised the arguments in her skeleton submission before the judge and there is no real difference in substance in her skeleton argument placed before us.  Our assessment of the costs payable by the defendant, which is an order nisi, is $13,500.

14. Any party that is dissatisfied with the above costs order nisi may apply to this court to vary the order within seven days of the handing down of this decision.  The application must set out that party’s contention how the order nisi should be varied and the grounds thereof.  The opposing party may serve its response within seven days thereafter.

[1] SMSE v KL [2009] 4 HKLRD 125 §17