CHAU TAK CHUN, the administrator of the estate of LEE AH TIM, deceased v. TSE LUNG YIM AND ANOTHER

HCMP 3320/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3320OF 2015

(ON AN INTENDED APPEAL FROM DCCJ NO 529 of 2013)

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REASONS FOR JUDGMENT

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

1.  On 22 October 2015, Deputy District Judge S P Yip [“the Judge”] gave judgment in favour of the Plaintiff after trial in a land dispute. The Judge found that the Plaintiff had been in adverse possession of the disputed land for over 20 years and the legal title of the 1^st and 2^nd Defendants in respect of the same had been extinguished.

2.  The Defendants applied for leave to appeal against that judgment.  On 4 December 2015, the Judge refused leave.

3.  By a summons of 15 December 2015, the Defendants renewed the application for leave in the Court of Appeal.

4.  Sadly, the Plaintiff passed away shortly before the hearing on 26 October 2016. It was expected that the son of the deceased Plaintiff could obtain a grant of Letters of Administration in respect of her estate and obtain carrying on order in these proceedings. In line with the spirit of the underlying objectives in Order 1A, parties sensibly agreed to continue with the hearing before us though the reason for judgment would not be handed down and the order would not be sealed until such formalities are completed. The son, Chau Tak Chun, obtained the grant on 17 May 2017 and applied for a carrying on order on 20 July 2017. We accept that the application is in order and we grant the carrying on order. The nomenclature of the Plaintiff in the title of the proceedings is therefore amended to “Chau Tak Chun, the administrator of the estate of Lee Ah Tim, deceased”.    

5.  After hearing the application on 26 October 2016, we refused to grant leave. These are our reasons.

6.  In the draft Notice of Appeal attached to the summons, counsel for the Defendants set out 7 grounds of appeal.  The last ground is just a summing up and not an independent ground.

7.  The first 4 grounds challenge the finding of fact by the Judge that the Plaintiff had been in possession of the disputed land continuously for not less than 20 years since 1967.

8.  It has been said on many occasions that this court should not disturb the findings of fact by the trial judge unless we are of the view that such findings are plainly wrong.  In the absence of palpable errors in the judge’s consideration of the evidence, this court would not interfere with the assessment of evidence and the weight attached by the trial judge to a particular piece of evidence: see Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 November 2015; Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240 of 2014, 7 December 2015.

9.  With respect, none of the grounds advanced by Mr Tsui (counsel for the Defendants) can remotely demonstrate that the Judge was plainly wrong or made any palpable errors in his assessment of the evidence. The Plaintiff gave evidence before the Judge and he was fully aware of the shortcomings in her evidence.  The extent to which he should accept or reject her evidence on account of such shortcomings is primarily a matter for the Judge having regard to all the evidence before him.  Reiterating submissions that were advanced or should have been advanced in this respect by way of closing submissions cannot provide the Defendants with viable grounds of appeal.

10.  We are satisfied that the Judge did not make any error in understanding the evidence and he was entitled to draw the inference he did.  He was clearly mindful of the total area of the disputed land (as stated at [2] of the judgment). He was entitled to assess the evidence of the Plaintiff together with the aerial photos and come to the conclusion he did in his judgment.  As submitted by the solicitor for the Plaintiff in the written submissions, the Judge had rejected the suggestion that the Plaintiff cultivated only 22.3 square metres of land.  Yet Mr Tsui deemed fit to put this forward without producing the relevant transcript of evidence when the Judge already explained for his benefit at [4] to [8] and [12] in his Decision refusing leave why that supposition was wrong.  We cannot accept this as reasonably arguable.

11.  The same can be said with regard to Mr Tsui’s submission based on co-occupation of land, see [9] to [11] of the Decision of 4 December 2015.

12.  The Judge was entitled to attach little weight to the evidence of Madam Tse for the reasons he gave in the judgment. 

13.  Ground 5 relates to events after 1981.  The Judge dealt with the same at [39] to [40] of the judgment.  We agree with the Judge that events that took place in 2000 and 2004 cannot possibly have any bearing on the extinguishment of title due to adverse possession for 20 years prior to 1981. 

14.  Ground 6 is an obviously bad point.  The Plaintiff was in possession of the disputed land until 2010, see [3] of judgment of 22 October 2015.  We cannot understand how it could be asserted that there were laches or acquiescence on the part of the Plaintiff in terms of not taking action prior to 2010.

15.  The intended appeal has no merit at all.  This is an application which should not have been brought, particularly in light of the Decision of the Judge of 4 December 2015.

16.  We dismissed the summons of 15 December 2015.

17.  In view of the lack of merit of the application and the failure to pay heed to the Decision of 4 December 2015, in line with the approach of this court as set out in Compania sud Americana de Vapores SA v Hin-Pro International Logistics Ltd HCMP 1932 of 2014, 16 Oct 2014; Good Form Co Ltd v Cheung Wai Han HCMP 3153 of 2014, 16 Jan 2015; Ricoh Hong Kong Ltd v Wallbanck Brothers Securities (Hong Kong) Ltd HCMP 2228 of 2015, 13 May 2016, we would order the Defendants to pay the costs of the Plaintiff in this application on indemnity basis.  After considering the statement of costs of the Plaintiff, we fixed such costs at $97,600.00.  The Plaintiff’s own costs shall be taxed according to Legal Aid Regulations.