TREASURE WISE LTD v. LAM MAN AND OTHERS

HCMP 2747/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2747 OF 2002

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J U D G M E N T

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1. This is an appeal by the 1^st defendant against the decision of Master de Souza given on 8 June 2005 whereby he ordered that

(1)	final judgment in the action be entered against the 1st defendant for vacant possession of the said land known as Lot No. 38, the Remaining portion of Lot No. 102, the Remaining portion of Lot No. 105, the Remaining portion of Lot No. 106, Lot No. 107 and Lot No. 108 all in Demarcation District No. 98 (“the remainder land”) ;
(2)	interlocutory judgment in this action be entered against the 1st defendant for damages to be assessed in respect of the wrongful possession of the remainder     land by the 1st defendant;  and
(3)	the 1st defendant do pay the plaintiff’s costs of the action including the costs of the application, such costs to be taxed if not agreed.

2. The plaintiff’s claim against the 1^st defendant is for an order for possession of the remainder land and for damages to be assessed.  The defendant’s case is that he has since 1952 had undisturbed possession of the remainder land and that the plaintiff’s claim is statute-barred by reason of the Limitation Ordinance, Cap. 347.  He counterclaims for declaratory relief.

3. The only defence raised is that the plaintiff’s claim is statute-barred by reason of adverse possession on the part of the 1^st defendant. 

4. The Master gave judgment to the plaintiff on its application for summary judgment under O.14, r.1, RHC.

5. In Chan Tin Shi v. Li Tin Sung and others [2005] 1 HKC 1, the Court of Appeal decided that the effect of the New Territories Leases (Extension) Ordinance, Cap. 150 was to create a new estate.  That being so, the fact that a squatter’s right may have been acquired would not affect the new lease which took effect either on the coming into operation of the New Territories Leases (Extension) Ordinance or upon expiry of the old lease in June 1997.  That decision is binding on me as it was on the Master.  In view of the law as it presently stands the Master held that the plaintiff was entitled to summary judgment and gave judgment accordingly. 

6. Mr. Victor Chan, for the 1^st defendant, submitted that the court should allow the appeal and grant an adjournment of the plaintiff’s O.14 summons pending the outcome of the decision of Chan Tin Shi in the Court of Final Appeal.  The appeal will be heard either at the end of October or November this year.  He submitted that it was appropriate to adjourn rather than give judgment to the plaintiff in the light of the pending appeal to the Court of Final Appeal in Chan Tin Shi. 

7. The court undoubtedly has discretion as to whether to grant an adjournment of the plaintiff’s summons for O.14 or to determine it. 

8. In the event that the Court of Final Appeal will uphold the decision of the Court of Appeal in Chan Tin Shi, then it seems to me that the plaintiff will be unduly prejudiced if its summons is adjourned rather than determined.  Not only will the plaintiff have to await the outcome of the decision in Chan Tin Shi but if the Court of Final Appeal should uphold the decision of the Court of Appeal the plaintiff may have to wait for some time before obtaining a hearing of their summons for summary judgment.  That delay would, in my view, be unduly prejudicial to the plaintiff. 

9. I also have to bear in mind that there is a possibility that the Court of Final Appeal will reverse the decision of the Court of Appeal in Chan Tin Shi. 

10. In Hong Kong Ferry (Holdings) Co Ltd v Chan Kwan Fat & Ors [1995] 1 HKC 542 the Court of Appeal dealt with the situation where there was a pending appeal to the Privy Council on the effect of the New Territories (Renewable Crown Leases) Ordinance, Cap. 152.  It was held by the Court of Appeal that since there was a pending application for leave to the Privy Council, the correct course was to dismiss the appeal that they were dealing with but to stay execution of the order made below until after the determination of the application for leave to appeal to the Privy Council and further staying such execution, if that application was successful, until after the determination of the appeal to the Privy Council in that case. 

11. Le Pichon J (as she then was) adopted a similar course in Kung Wong Sau Hin & Anor v Sze To Chun Keung & Ors [1996] 2 HKC 616 where she was also dealing with the effect of the New Territories (Renewable Crown Leases) Ordinance, Cap. 152.  She was dealing with an application to strike out the defence which was bound to fail on the law then in force.  She struck out the defence.  However, she also ordered that the execution of the order for possession should be stayed until after the determination of the appeal in the Privy Council case. 

12. I have heard and considered the submissions made to me on behalf of the plaintiff and the 1^st defendant.  In the exercise of my discretion I consider that I ought not to grant an adjournment of the plaintiff’s summons for O.14 judgment.  The Master was right, in my view, to deal with it on the law as it presently stands.  There is simply no defence on the law as it presently stands.  The plaintiff is entitled to have the matter determined on the law as it presently stands.  However, I am satisfied that I ought not make an order which may prejudice the position of the 1^st defendant in the event that the Court of Final Appeal does decide to reverse the Court of Appeal’s decision in Chan Tin Shi.  This can be achieved, in my view, by dismissing the appeal and ordering a stay of execution of the Master’s judgment until after the determination of the appeal to the Court of Final Appeal in Chan Tin Shi.  I so order and give liberty to the parties to apply.