TSANG WOON MING v. TSAN HING TAT HEIDI AND OTHERS

CACV 18/2022, [2024] HKCA 321

ON APPEAL FROM [2021] HKDC 482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2022

(ON APPEAL FROM DCCJ NO. 3791 of 2016)

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Decision on Leave to Appeal

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Hon Cheung JA (giving the Decision of the Court) :

1.  This is the plaintiff’s application for leave to appeal to the Court of Final Appeal against our judgment of 4 December 2023. The plaintiff now appears in person and uses Chinese in his application. In view of the fact that our judgment is in English and the defendants responded in English, we will use English for our decision and provide an English translation of the two questions framed by the plaintiff said to be of questions of law of great general public importance or otherwise fit to be considered by the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’).

2.  The two questions now relied upon by the plaintiff appear from his written submissions in support of the application, although they appear in a slightly different form in the Notice of Motion in the midst of the plaintiff’s arguments on why we were wrong in our judgment on the issues of implied licence and joint possession.  Since the plaintiff has specifically relied upon the two questions and responded to the defendants’ comments to these two questions in his submissions, we will proceed by reference to these two questions.

問題(1a)： 當一個佔用人佔用土地，在完全沒有任何明確批准的證據支持下，只是憑藉佔用人與註冊業主是家庭成員的關係，法庭會用甚麼準則去判定這是默示許可 (implied licence)還是默許 (acquiescence) ?

問題(1b)： 當業權由個人轉到去一間公司(該轉讓人是公司的其中一名股東)，縱使在轉讓前該業主曾經給予許可 (縱使原告人不認同)，當土地業權轉讓到另一獨立法人 (separate legal entity)後，在欠缺任何明確批准的證據下，法庭是否可以單憑雙方的家族關係推論有新的批准/批准仍然持續?

問題(2)：  若然非法佔用人並不只是一人，而是由多於一人的家庭成員組成，那麼在Bannerman 案例中提出的法律觀點是否仍然成立/可循?

[Translation]

Question (1a) :   In the case of an occupant occupying land, where there is a total absence of evidence that there is clear permission for him to occupy and the only evidence is the family relationship between the occupant and the owner of the land, what criteria should the Court adopt to decide whether the occupation is by way of implied licence or acquiescence?

Question (1b) :   When the title to the land is transferred from a person to a company [the transferor is one of the shareholders of the company] even if licence is given by the owner before the assignment [which the plaintiff denied], and when the title is transferred to another separate legal entity, can the Court infer, in the absence of any evidence of a clear permission, that there is a new permission or the previous permission still continues by merely relying on the family relationship between the parties?

Question (2) :     If the illegal occupant is not a single person but is constituted by more than one member of the family, can the legal viewpoints raised in Bannerman still be valid or adhered to?

3.  We will deal with the two questions in turn.

Question 1(a)

4.  In our view the threshold requirement for leave to be granted under section 22(1)(b) is not met and the question is not reasonably arguable.  The plaintiff is in substance submitting that the facts of the case do not support the defendants’ case that an implied licence had been granted to the plaintiff to occupy the property.  How an implied licence is to be established in any case must be fact‑specific.

Question 1(b)

5.  Again section 22(1)(b) of the HKCFAO is not engaged.  The question is clearly drafted by reference to the transfer by Tsang Yung of the property to his company Yung Hing Investment Company Limited which subsequently transferred it to Madam Luk Yuk Lin.  The issue is fact‑specific and the question is not reasonably arguable.  In essence the plaintiff is challenging the finding of facts by this Court and the Court below when he referred to the ‘the lack of evidence on any clear permission’.

Question 2

6.  Again section 22(1)(b) of the HKCFAO is not engaged.  The issue of joint possession does not arise.  The issue is fact‑specific and the question is not reasonably arguable.  This is in essence a challenge to the concurrent finding of fact by this Court and the Court below.

7.  The defendants also objected to the plaintiff’s application on the ground of procedural irregularly.  It is said that the plaintiff did not give the seven‑day notice of his intended application before the expiry of the 28 days for the filing of the Notice of Motion under section 24(2) of the HKCFAO.  In this case both documents were served on the defendants on the same day.  The plaintiff explained that he was waiting for the result of his legal aid application which only reached him on 28 December 2023.  In view of the 28‑day deadline expiring on 2 January 2024 he did not have sufficient time to give the seven‑day notice and instead served both documents on the defendants at the same time.  We accept the plaintiff’s explanation and we have dealt with the plaintiff’s application on its merits.

8.  The defendants also complained that the Notice of Motion did not comply with Practice Direction 2.1 by not framing the questions to meet the criteria under section 22(1)(b) of the HKCFAO and question (1b) raises an entirely new issue.  Bearing in mind the plaintiff had since framed the questions, we have dealt with the application on its merits.

9.  Accordingly the application is dismissed.

10.  We will assess the defendants’ costs of this application summarily on a party and party basis by awarding the defendants the sum of $200,000 which includes counsel fee of $140,000.