TANG MAN KIT AND ANOTHER v. HIP HING TIMBER CO LTD

CACV 137/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 137 OF 2002

(ON APPEAL FROM HCA NO. 8000 OF 1990)

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D E C I S I O N

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Hon Rogers VP:

1. This was an application for leave to appeal to the Court of Final Appeal from a judgment of this court handed down on 11 December 2002. At the conclusion of the hearing, this court reserved its decision to be given in writing. The facts and background of this case are contained in this court's judgment.

2. The application for leave to appeal was made under section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484, on the ground that the questions involved in the intended appeal were by reason of their great general or public importance or otherwise such as should be submitted to the Court of Final Appeal for decision. There were four questions which had been framed. As modified in the skeleton argument they were as follows:

"(1) Whether a 't'ong' ('a section 15 t'ong') within the meaning of section 15 of the New Territories Ordinance ('NTO') includes a t'ong established to carry on business or commerce for the purposes of gain.

(2) Whether the commencement and continuation of legal proceedings based upon the non-payment of rent fall within the words 'dispose of or in any way deal with the said land' under section 15 of NTO such that the consent of the Land Officer or Secretary for Home Affairs would be required.

(3) Whether the letting of land in the New Territories falls within the words 'dispose of or in any way deal with the said land' under section 15 of NTO such that the consent of the Land Officer or Secretary for Home Affairs would be required.

(4) Whether proceedings commenced by persons purporting to be managers of a section 15 t'ong in the absence of proper authority could be retrospectively validated by the subsequent approval and registration of such or other persons as managers of a section 15 t'ong."

In argument, Mr Mok on behalf of the defendant concentrated on the first three questions.

3. In considering this application the following matters would appear to be relevant. In the first place, the pleading, as presently framed on behalf of the defendant in the amended defence and counterclaim, is that the plaintiff ("the Heung") is and has at all material times been the beneficial owner of the land in question. It is also the defendant's pleaded case that Mr Wong Tat To was at all material times a manager of "the Heung". The defence to the plaintiff's claim for possession is based in part upon agreements said to have been entered on behalf of the plaintiff with the defendant and those responsible for running the defendant. The defence of estoppel is also raised. In the counterclaim, the defendant seeks an order for specific performance of the agreements said to have been reached between the defendant and the plaintiff.

4. To put the matter simply, therefore, it is the defendant's case that the land, which is the subject of this action, is owned by an entity, namely the plaintiff, and that at some stage, a manager, Mr Wong Tat To, had authority and power to deal with the land in such a way as to bind the plaintiff such that the defendant is now in a position to claim that it is entitled to remain on the land. It is not part of the defendant's pleaded case that there is no entity capable of owning the land, nor, indeed, is it their case that the plaintiff was incapable of owning the land. In those circumstances, the questions which are sought to be raised on this application do not arise on the pleadings. On the contrary, they are in conflict with the defendant's pleaded case.

5. As this court pointed out in the judgment handed down on 11 December 2002, the matter under appeal was the order of the judge below, made on a motion, setting aside the re-re-amended writ of summons and dismissing the action because the writ of summons had been issued without authority. These matters were pointed out during the course of the hearing for leave to appeal, as indeed, it was pointed out that this action was commenced in 1990 and the matters sought to be taken to the Court of Final Appeal do not begin to address the issues raised in the defence and counterclaim. Mr Mok on behalf of the defendant suggested that the action could continue on a parallel basis at the same time as leave being given to appeal to the Court of Final Appeal. It is not clear to me how that could happen. In conclusion, Mr Mok sought the leave of this court to appeal to the Court of Final Appeal on the basis that the questions sought to be raised in the Court of Final Appeal would have to be re-litigated if a trial were to take place.

6. In my view, if the defendant wishes to raise the matters which are the subject of the questions, the pleadings should be amended so that these issues are raised in the action. The trial can then take place. The appropriate facts can then be found, for example, as to the existence of the plaintiff or otherwise. Once the relevant facts have been established, the issues can then be decided. Even if anything said by this court were to be considered binding I see no reason why that would preclude the defendant from raising any appropriate issues in the Court of Final Appeal. Although Mr Mok submitted that there might be some kind of time bar, I do not see that any should apply in the circumstances of this case where the real issue to date has been whether the action has been commenced with proper authority.

7. In my view, it would be inappropriate for the questions to be submitted to the Court of Final Appeal in the state in which the action is at present.

Hon Le Pichon JA:

8. I agree.