TANG SHEK KIU v. TANG LIM KWONG

HCMP 2643/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2643 OF 2015

(ON AN INTENDED APPEAL FROM DCCJ NO. 2921 OF 2012)

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

1.  This is a renewed application for leave to appeal against the judgment of Deputy Judge W Tsui [“the Judge”] of 7 May 2015. After trial, the Judge gave judgment in favour of the Plaintiff, granting damages and injunctive relief against the Defendant in respect of trespass. The Judge refused leave to appeal on 7 October 2015.

2.  Before us, the Defendant sought to raise 4 new grounds which were not canvassed before the Judge either at the trial or at the application for leave before her.  Three of those grounds were, though purportedly framed as errors of law, in substance challenges to the assessment of the evidence by the Judge.  They were not proper grounds of appeal and in the absence of proper explanation as to why those were not raised earlier, this court should not in accordance with well established practice grant leave, see Jenho Development Ltd v Pensonic Technology HCMP 277 of 2013, 25 March 2013; Kiddie China Ltd v Etech Fire Ltd HCMP 1673 of 2014, 16 Sept 2014; Lehman Brown Ltd v Union Trade Holdings Inc HCMP 977 of 2014, 17 June 2015.

3.  The other new ground, Ground 9 in the draft placed before us, is again a new point not raised before the Judge.  Further, we cannot see any reasonably arguable basis for suggesting that the Judge awarded damages in respect of trespass occurring in 2004.  The Judge said in her judgment that she found the Defendant liable for trespass in 2012.  Though there were previous acts of trespass mentioned in the judgment, there is nothing in the judgment to suggest that the Judge awarded damages with reference to those earlier acts of trespass as opposed to what happened in 2012.  The point is particularly unarguable in view of the Judge’s confirmation with counsel for the Defendant as to the quantum of damages in closing submissions as mentioned at paragraph 10 of her Decision of 7 October 2015.

4.  In respect of the original grounds of appeal, ground 1 is clearly unarguable in light of the Judge’s Decision paragraphs 7 to 11. 

5.  Ground 2 is completely misconceived.  Section 12(1) of the Limitation Ordinance only has effect in deeming the date of accrual of right of action for the purpose of that ordinance.  No limitation issue arose from the trespass in 2012 in the present case. 

6.  As to the grounds relating to the grant of injunction, it is a matter of the exercise of discretion by the Judge.  We do not see any reasonably arguable ground for disturbing the Judge by reference to Grounds 3 and 4. 

7.  As to Ground 5, the form of the injunction, whatever complaint there is (not raised before the Judge at the trial), we are satisfied that it is adequately addressed by the undertaking offered by Mr Chain on behalf of the Plaintiff (as set out in the letter of 17 November 2015).  This court will not grant leave simply for such a sterile point to be canvassed as it would be wholly disproportionate to do so, see Leung Lai Kwan v Lo Kai Wing HCMP 1554 of 2015, 20 Aug 2015.  We said so without accepting that Ground 5 is reasonably arguable.  In that connection, we are minded to agree with the Judge’s observations at paragraph 27 of her Decision.

8.  With respect, we are of the clear view that this application for leave is wholly without merit and it should not be renewed after the Judge had refused leave.  In the circumstances, we order the Defendant to pay the costs of the Plaintiff on indemnity basis.  Having considered the statement of costs and the submissions on costs, we fix the costs at $104,000.