LUCKY POWER LTD v. LAM, PHILIP YUNG TAK and/or other occupiers AND ANOTHER

HCMP 2798/2016
and HCMP 3331/2016
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NOS 2798 OF 2016 AND 3331 OF 2016

(ON AN INTENDED APPEAL FROM HCA NOS 481 of 2012 AND 1785 OF 2012)

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HCA NO 481 OF 2012

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BETWEEN

AND

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HCA NO 1785 OF 2012

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BETWEEN

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(Heard together)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 27 July 2015, after a trial of 5 days, Chow J gave judgment for the Plaintiff in two High Court Actions.  The main dispute in the trial related to the true effect of written memorandum of 8 June 1984 [“the Memorandum”] between Mr Casedei, a predecessor in title of the Plaintiff, and Mr Lam, the Defendant in HCA 1785 of 2012 and the 1^st Defendant in HCA 481 of 2012.  The 2^nd Defendant Educational Mahjong Card Game Ltd was a tenant of the 1^st Defendant pursuant to a tenancy agreement of 10 May 2007 (for a term of 10 years from 1 June 2007).  The Memorandum was made in respect of the Remaining Portion of Lot 48 in DD 212 and Remaining Portion of Lot No 49 in DD 212 [“the Land”].  A portion of the Land situated in RP of Lot 49, identified as the Green Area in the judgment, was the subject matter of the tenancy agreement. 

2.  The judge accepted the Plaintiff’s case that the true effect of the Memorandum was an equitable mortgage.  By reason thereof, as purchaser of the Land from Mr Casedei, the Plaintiff was entitled to redeem the mortgage.  He rejected the case of the defendants that the true effect of that transaction was a sale and purchase of the Land. 

3.  The judge ordered account be taken as to the outstanding indebtedness under the mortgage and, upon payment of the amount due, Mr Lam shall deliver up all title deeds relating to the Land and vacant possession.  He also ordered inquiry as to equitable compensation in respect of the Green Area for the deprivation of the Plaintiff of its use to be paid by Mr Lam. 

4.  Subsequently, in a judgment of 12 October 2016, the judge found the outstanding amount due under the mortgage to be $320,000 and ordered the said sum to be paid into court.  He also ordered that within 14 days of the payment into court, the title deeds and vacant possession of the Land (including the Green Area) be delivered to the Plaintiff.

5.  On 17 October 2016, Mr Lam took out a summons in HCMP 2798 of 2016 seeking extension of time to appeal against the judgment of 27 July 2015. 

6.  On 29 November 2016, Mr Lam took out another summons in HCMP 3331 of 2016 seeking extension of time to appeal against the decision of 12 October 2016.

7.  On 31 December 2016, Mr Lam took out 2 summonses in HCMP 2798 and 3331 of 2016 respectively seeking stay of execution of the order of 12 October 2016 pending appeal.

8.  On 6 January 2017, Mr Lam took out 2 summonses in HCMP 2798 and 3331 of 2016 respectively seeking consolidation of the 2 sets of HCMP proceedings. 

9.  Though Mr Lam purported to issue some of these summonses on behalf of the 2^nd defendant, as the latter is a limited company and no leave had been sought from the Registrar to permit Mr Lam to represent the company in these proceedings (as Mr Lam is not a solicitor, such permission is required under Order 5 Rule 6 of the Rules of the High Court and leave previously granted in the context of the High Court Action is not valid for the HCMPs), we could not treat the 2^nd defendant as parties to these summonses.  

10.  We proceeded on the basis that these are applications by Mr Lam alone. In any event, as indicated at the hearing, if we were minded to give leave to Mr Lam, he could then seek the appropriate leave to represent the 2^nd defendant. As we shall see, we come to the conclusion that there is no merit in the intended appeal and extension of time should not be granted. 

11.  It is not necessary to deal with the summonses for consolidation.  The two sets of proceedings were listed for hearing at the same time.  There is no need for any formal consolidation of the proceedings. 

12.  We shall address the summons for extension of time to appeal.  We cannot see any ground for appeal against the decision of 12 October 2016 if Mr Lam cannot persuade us that there is any reasonable prospect of success in the intended appeal against the judgment of 27 July 2015.  Neither can we see any ground for staying execution if we do not grant any extension of time to appeal.  The judge had refused to grant a stay on 20 December 2016.  The Plaintiff had recovered possession of the Green Area on 10 February 2017 upon enforcement of the judgment through the bailiff. 

13.  Focusing therefore on the application for extension of time to appeal against the judgment of 27 July 2015, it is well established that the court shall consider the following criteria in considering whether extension of time should be granted:

(a) Length of delay;

(b) Explanation for the delay;

(c) The merits of the intended appeal;

(d) Prejudice to the other party.

14.  In the present case, the delay on the part of Mr Lam in seeking to appeal against the judgment of 27 July 2015 is serious and substantial.  The summons was taken out more than a year after the judgment.  Mr Lam did not offer any reasonable explanation for such serious delay.  

15.  The delay being inexcusable, we should not grant extension of time unless the intended appeal has a real prospect of success, see SJ v Hong Kong Yaumati Ferry Co Ltd [2001] 1 HKC 125.  

16.  Based on the materials placed before us, we cannot see any merit in the intended appeal in this case.  As the judge explained in the judgment of 27 July 2015, the Memorandum was prepared by the solicitor for Mr Lam and its contents clearly pointed to the transaction being a mortgage. The instrument was registered at the Land Registry as a “Memorandum of Mortgage” and the parties were described as “Lender” and “Borrower” respectively.  The judge also had regard to other matters, including letters and other matters relied upon by Mr Lam to contend that the transaction was in substance a sale and purchase of the Land.  After giving careful consideration of the same, he concluded that the true nature of the transaction was an equitable mortgage.

17.  Mr Lam placed before us a large volume of original materials, trying to re-argue his case that it was a sale and purchase.  With respect, this is not the proper approach.  As has been stressed in the past, an appeal is not an occasion for a litigant to regurgitate materials or arguments which had been properly considered by a first instance judge.  This court will not overturn a decision of the first instance judge unless an appellant can pinpoint specific errors in the judge’s conclusions. 

18.  In the present case, Mr Lam’s summonses did not pinpoint any errors on the part of judge.  His disagreement with the conclusions of the judge alone cannot be a valid ground of appeal. 

19.  There is also no merit in Mr Lam’s attempt to challenge the devolution of title from Mr Casedei to the Plaintiff.  His bare allegation of forgery, unsupported by any credible evidence, cannot discharge his burden of proving such serious allegation.  The complaint regarding the admission of the irrevocable power of attorney from Mr Casedei to the Plaintiff is a matter of no moment as the title of the Plaintiff stems from the assignment in the latter’s favour.  Without any reasonable explanation as to why handwriting expert’s opinion was not adduced before the judge, this Court will not admit fresh evidence on appeal. Mr Lam’s attempt to place before us a handwriting expert report was rejected accordingly. 

20.  We are of the view that the judge was plainly entitled to come to the conclusions he did in his judgment of 27 July 2015. There is no prospect of success in the intended appeal against that judgment.

21.  There is no reason to permit Mr Lam to pursue appeals which have no prospect of success.

22.  The delay had occasioned prejudice to the Plaintiff in terms of the final resolution of the matter.

23.  For these reasons, we refuse to grant any extension of time and dismiss all the summonses taken out by Mr Lam.  We also order Mr Lam to pay the costs of the Plaintiff.  Having regard to the statement of costs of the Plaintiff and the submissions of the parties, we fix such costs at $102,800.