LAW BING KEE v. PERSON(S) IN OCCUPATION OF RP AND ANOTHER

HCMP 672 /2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 672 OF 2013

(ON AN INTENDED APPEAL FROM HCMP NO. 2270 OF 2009)

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D E C I S I O N

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The Application

1. As a matter of form, the application before the court today is an application for leave to appeal out of time against the judgment of Mr Recorder Ho SC dated 8 March 2013 by which he dismissed the plaintiff’s claim and gave judgment in favour of the 2^nd defendant on its counterclaim.

2. As a matter of substance, however, since that judgment is a final judgment against which an appeal lies as of right, the application is for an extension of time for service of the notice of appeal.

3. Although a draft notice of appeal was annexed to the original summons seeking the extension of time, dated 8 April 2013, the plaintiff now wishes to rely on a substituted draft notice of appeal.  It has issued a further summons dated 25 April 2013 for that purpose.

4. The Court has a discretion to extend time for serving a notice of appeal and it is well-established that the factors which are normally taken into account in deciding whether to grant an extension of time are: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appealing is extended; and (4) the degree of prejudice to the potential respondent if the application is granted: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor [2001] 1 HKC 125 at 127H.

The delay and the reasons for that delay

5. The judgment sought to be appealed against was handed down on 8 March 2013.  By virtue of O.59 r.4(1)(c), a notice of appeal should have been served under O.59 r.3(5) within 28 days of the date of the judgment. This means that the notice of appeal should have been served on or before 5 April 2013.  It is clear from the evidence that the plaintiff’s solicitor was aware that this was the relevant deadline.

6. The evidence of the plaintiff’s solicitor is that instructions were received from the plaintiff to launch the appeal on 4 April 2013, which was a public holiday.  In paragraph 7 of her first affirmation in support of this application she says:

“It is due to the intervening holiday and the need for the staff members of our firm to rectify the relevant documentations to be filed as advised by the clerk of the Registry of Court of Appeal, the Notice of Appeal was not successfully served on the Respondent and filed in the Registry before the closing time of the Registry on the day of the Deadline.”

7. In her second affirmation, the plaintiff’s solicitor seeks to expand on the explanation for the delay as follows:

“5. I was told by my colleague Mr. Dickson Tam (the messenger) and verily believe that in the morning of 5^th April 2013, he attended the Appeal Registry delivering the Notice of Appeal, without bringing the Judgment dated 8^th March 2013 and delivering the same to the Appeal Registry for filing together with the Notice of Appeal.

6. The staff of the Appeal Registry then informed the said messenger to bring also a copy of the said Judgment to the Court for the said filing purpose.

7.   The said messenger was then busy engaging in many other tasks for the rest of the working day and, on the same day, he did not inform any other colleague of my firm about what the said staff of the Appeal Registry instructed him, did not rectify the said problem in filing, did not serve the Notice of Appeal on the 2^nd Defendant’s Solicitors, and did not apprehend the seriousness of the failure to file and serve the Notice of Appeal on time due to his inexperience.”

8. The plaintiff’s solicitor also exhibits a copy of a fax sent to the Registry of the Court of Appeal at 6.06 pm on 5 April 2013 indicating that her firm had instructions to file a notice of appeal against the judgment of the Recorder but “owing to the intervening holidays, we were unable to file the Notice of Appeal in time today” and asking for the Court of Appeal’s indulgence on the basis of an undertaking to file the notice of appeal by Monday 8 April 2013 at the latest.

9. There are a number of fundamental errors disclosed in the evidence of the plaintiff’s solicitor and it is necessary to restate some basic general propositions relating to the commencement of an appeal.

10. An appeal to the Court of Appeal is brought by a notice of motion in writing called a “notice of appeal” (see O.59 r.3(1)).  As stated in Note 59/3/4 in Vol. 1 of Hong Kong Civil Procedure 2013:

“A notice of appeal does not have to be stamped, sealed or in any way authenticated by the Court of Appeal (or any other court) prior to service. There is no such process as ‘issue’ of a notice of appeal in the case of an appeal to the Court of Appeal. It is thought by some members of the legal profession that a notice of appeal is not valid unless it has first been sealed or somehow authenticated by the Appeals Registry, and that absent such authentication, it is not a valid notice of appeal and service of it can be rejected. That is not so. The order of events is: first, service of the notice of appeal on the parties required to be served (see paras 59/3/11, 59/16/2 and 59/19/5 (below)), then secondly, setting down of the appeal in the Office of the Deputy Clerk of Court (Civil Appeals) (see paras 59/5/1 to 59/5/20 (below)). There is no need to send the notice of appeal to the Appeals Registry prior to service; indeed it is pointless to do so.”

11. The proper way to commence an appeal is therefore by service of the notice of appeal on the intended respondent.  There is no need for issue or prior authentication of the notice of appeal by the Appeals Registry.

12. The usual modes of service in O.65 apply to the service of a notice of appeal.  Not being a document requiring personal service, the provisions of O.65 r.5 apply and the notice of appeal may be served by various methods, including leaving it at the address of the solicitors for the intended respondent if that is the proper address for service of the respondent: see O.65 r.5(1)(a) read with r.5(2).

13. It is only when one reaches the second or setting down stage that the rules require the appellant to lodge with the Registrar a copy of the sealed judgment or order and a copy of the reasoned decision (if any) as well as two copies of the notice of appeal, one of which shall be indorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice: see O.59 r.5(1).

14. In the present case, the plaintiff’s solicitor did not need to file the notice of appeal in the Appeals Registry before proceeding to serve the notice of appeal on the solicitors for the 2^nd defendant (the intended respondent) and it would appear that the two stages of the service of the notice of appeal and the setting down of the appeal were confused.

15. There is no reason to think that, if a proper understanding of the process had been brought to bear, the notice of appeal could not have been served on the solicitors for the 2^nd defendant on 5 April 2013 and therefore within the time limit for appealing.  It is not clear whether the notice of appeal has yet been served on the solicitors for the 2^nd defendant, although a draft notice of appeal was annexed to the summons dated 8 April 2013.  The solicitor for the 2^nd defendant has deposed that he first became aware of the proposed appeal when his firm was served with the summons and affirmation in support in the afternoon of 8 April 2013 and he accepts on behalf of the 2^nd defendant that the delay was minimal.

16. The length of the delay is therefore insubstantial but the question remains whether it is excusable.  The fact that it was the result of what appears to be a mistake on the part of the plaintiff’s solicitor does not automatically excuse the delay and it is to be noted that in Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor (supra) the delay which was held to be inexcusable was caused by the solicitor’s mistake.

17. Since a proper understanding of the process can easily be gleaned by reading the relevant parts of Hong Kong Civil Procedure 2013 to which I have referred, I am not satisfied that the delay, albeit short, is excusable.  The process in question has not been the subject of any recent change prior to 5 April 2013 and it is not readily understandable why the plaintiff’s solicitor did not take steps to ensure that the notice of appeal was properly served on the solicitors for the 2^nd defendant within the deadline on 5 April 2013.  The fact that instructions to appeal were received relatively late within the 28 day time limit, for reasons which have not been explained, makes it all the more incumbent on the plaintiff’s solicitor to have acted promptly in accordance with the process on 5 April 2013. Nothing complicated was involved, simply the service of the notice of appeal on the solicitors for the 2^nd defendant.  The summons dated 8 April 2013 seeking, albeit erroneously, the grant of “leave to appeal out of time” was addressed to and served on the solicitors for the 2^nd defendant so it is not the case that the plaintiff’s solicitor did not know on whom to serve the notice of appeal.  Indeed, the possibility that the plaintiff’s solicitor’s messenger might have served the notice of appeal on the solicitors for the 2^nd defendant on 5 April 2013 is alluded to in paragraph 7 of her second affirmation, from which I have already quoted.

The relevant test

18. Two further propositions from Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor (supra) are relevant.  These are: (1) where the delay is inexcusable although insubstantial, a party seeking an extension of time must show a real prospect of success on the merits (see p. 129I); and (2) although the existence of prejudice to a would-be respondent is a ground for refusing an extension of time, the absence of prejudice to any would-be respondent is not a ground for extending time (see p. 133E-F).

19. In this case it is not suggested there is any prejudice that would be caused to the intended respondent if the time extension were granted, other than having to deal with the appeal and not having the benefit of the judgment below, neither of which matters constitute relevant prejudice for present purposes.

20. I therefore turn to consider the merits of the proposed appeal.

The Judgment below

21. The plaintiff claimed as registered owner of Lot 2008 HRP in respect of an area of about 154.6 square metres of that lot, referred to below as the Disputed Portion, which was being occupied by the 2^nd defendant.  The 2^nd defendant disputed the plaintiff’s claim for recovery of the Disputed Portion and counterclaimed for a declaration that the plaintiff’s right to claim possession was barred and his title to the Disputed Portion extinguished by operation of the Limitation Ordinance.

22. The Recorder found that the 2^nd defendant’s predecessors-in-title moved into a house erected on Lot 1819, the lot adjacent to Lot 2008 HRP and operated a poultry farm on Lot 1819.  The Recorder accepted on a balance of probabilities that wire-mesh fences were put up by the 2^nd defendant’s predecessors-in-title in the 1950s to keep poultry within the poultry farm.  He also found that they had enclosed the Disputed Portion, which was on a terrace on the same level as Lot 1819 and higher than Lot 2008 HRP, within the wire-mesh fences as part of the farm as it was thought that the boundary of their land ran along the terrace.  He found that the Disputed Portion was used to store miscellaneous items used in connection with the farm.

23. The Recorder also found that a single-storey structure was built partly on Lot 1819 and partly on the Disputed Portion and was in existence by 1984 and was used to store livestock feed until about 1988 when poultry was no longer kept on the farm.  This was referred to in the judgment as the Temporary Structure.  After that, the wire-mesh fences had fallen into disrepair and the Disputed Portion was not put to any specific use by the 2^nd defendant’s predecessors-in-title.

24. However, the Recorder found that, in 1995, the occupants of the land to the south of the Disputed Portion rented the Temporary Structure from the 2^nd defendant’s predecessors-in-title for use in connection with a cloth factory and continued to do so until 2009 when the 2^nd defendant purchased Lot 1819.

25. Since the Recorder considered the alleged adverse possession commenced before 1 July 1991, he held that by operation of s. 38A of the Limitation Ordinance (Cap. 347) the relevant limitation period was 20 years.

26. He concluded and found as a fact that the 2^nd defendant’s predecessors-in-title had all along regarded the Disputed Portion as part of their property for the purpose of operating the poultry farm and that, by enclosing it with fences, they had taken possession of the Disputed Portion and had unequivocally asserted exclusive possession over that area of land.  Accordingly, he dismissed the plaintiff’s claim and declared that the 2^nd defendant had possessory title of the Disputed Portion by way of adverse possession.

The proposed grounds of appeal

27. The proposed grounds of appeal repeat some of the submissions that were made to the Recorder below at the trial.  These are addressed under three headings in the skeleton submissions of the plaintiff’s counsel, Ms Karen Lau.

28. First, the plaintiff seeks to challenge the Recorder’s conclusion that adverse possession was made out on the basis of his finding that the 2^nd defendant’s predecessors-in-title had ceased to operate the poultry farm in 1988 and that it was only in 1995 that the Temporary Structure was let out for use of the neighbours for the purpose of the cloth factory.  The plaintiff seeks to contend that the Recorder should have found that the 2^nd defendant’s predecessors-in-title had therefore abandoned the Disputed Portion between 1988 and 1995.

29. The Recorder dealt with this abandonment issue in paragraphs 41 to 45 of the judgment.  It is significant that the Recorder found that, even after the 2^nd defendant’s predecessors-in-title ceased to operate the poultry farm, they continued in possession of the Disputed Portion whether or not it had been put to specific use.  I do not accept that on the Recorder’s findings of fact that the only reasonable inference is that continuous possession had been abandoned in 1988 or between 1988 and 1995.  The plaintiff has put nothing before the Court on this application to show that the evidence or findings of fact of the Recorder lead to this as the only reasonable inference such that his finding of fact as to continuous possession is liable to be overturned.

30. Secondly, the plaintiff seeks to contend that the possession of the Disputed Portion by the 2^nd defendant’s predecessors-in-title was disrupted by the occasional entries by the plaintiff and his wife into the Disputed Portion for the purpose of trimming the trees on it.

31. Again, this was an argument advanced at trial and rejected by the Recorder in paragraph 43 of the judgment.  I do not accept that the cases relied upon by the plaintiff (namely Tyrwhitt v Wynne (1819) 2 B & Ald 554 and Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex & B.P. Ltd [1975] QB 94) support the proposition that occasional trimming of trees must amount to the exercise of possession of land.  In this regard, it is significant that the Recorder found that it was not until 2006 that the plaintiff was aware that the Disputed Portion in fact formed part of Lot 2008 HRP.  In short, I do not think the proposed appeal against the Recorder’s finding of fact, that the occasional tree trimming by the plaintiff and his wife did not amount to a re-taking of possession of the Disputed Portion from and to the exclusion of the 2^nd defendant’s predecessors-in-title, enjoys a real prospect of success.

32. Finally, the plaintiff seeks to argue that there was not sufficient evidence for the Recorder to find that the 2^nd defendant’s immediate predecessor-in-title, Champwing Ltd, had taken over possession of the Disputed Portion from the previous owner of Lot 1819 when it acquired the lot in 1994 or that the 2^nd defendant had taken over possession of the Disputed Portion from Champwing Ltd when in turn it acquired the lot in March 2009.

33. The Recorder referred to these dispositions of the lot in the judgment (see paragraphs 12 and 13).  Champwing Ltd was in fact a company formed by the children of the Madam Lui who had owned Lot 1819 from 1954 and who had operated the poultry farm on the lot, including the Disputed Portion.  It is pertinent to note that the case of the 2^nd defendant (see paragraph 14 of the judgment) was that:

“Exclusive occupation remained unchanged on the ground notwithstanding that ownership of the Wong Family Properties was transferred to Champwing in 1994. When the 2^nd Defendant later acquired the Wong Family Properties in 2009, the 2^nd Defendant also obtained possession of the properties together with the Disputed Portion as well.”

34. When discussing the question of adverse possession, the Recorder spoke in terms of “the Wong family’s possession over the Disputed Portion” and he found (paragraph 43) that Madam Lui and the Wong family had continued in possession of the Disputed Portion, whether or not it had been put to specific use, and that it was clear that “Madam Lui and her family had enjoyed possession of the Disputed Portion through the years” (paragraph 45).  The reference to the Wong family and Madam Lui’s family members makes it sufficiently clear, in my judgment, that the Recorder was making findings that would apply equally to Champwing Ltd, which as noted was a company formed by Madam Lui’s children.  Further, there is nothing to suggest that the position as to possession of the Disputed Portion changed in any way after the 2^nd defendant purchased the lot in 2009 and before the commencement of this action later that same year.

35. I do not therefore accept that the plaintiff has demonstrated that this ground of appeal has a real prospect of success.

Conclusion

36. In the circumstances, I am not satisfied that the plaintiff has demonstrated that the proposed appeal has sufficient merit to justify the exercise of my discretion to extend the time for the service of the notice of appeal.

37. I therefore dismiss both of the plaintiff’s summonses.

38. Costs will follow the event.