LEE AH TIM v. TSE LUNG YIM AND ANOTHER

DCCJ 529/2013

IN THE DICTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 529 OF 2013

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D E C I S I O N

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Background

1.  This is the defendants’ application for leave to appeal against my judgment dated 22 October 2015 by summons dated 17 November 2015.

2.  In my judgment, I found that the plaintiff had succeeded in her claim of adverse possession of the disputed land and dismissed the defendants’ counterclaim for trespass.

3.  Mr Tsui for the defendants originally submitted six grounds of appeal, and later revised it to seven grounds.  In general, the first five grounds are appealing against my factual findings.  The sixth ground involves new issues not argued at the trial.  The seventh ground is not an independent ground but is an accumulation of the first to sixth grounds.

Ground 1 – Plaintiff’s continuous cultivation on Lot 2244 over 20 years since 1961

4.  Mr Tsui submitted that the plaintiff could not give firm and affirmative evidence of her possession by farming activities on the disputed land and, therefore, I erred in finding the plaintiff had been cultivating on Lot 2244 since 1961 continuously for no less than 20 years.

5.  Mr Tsui’s attack on the plaintiff’s evidence about cultivation on Lot 2244 and her general creditability have been noted and summarised in paragraphs 13 and 21 of my judgment.  I do not intend to repeat those paragraphs.  It suffices for me to say that Mr Tsui has attacked the plaintiff’s evidence as to the location, size and duration of the relevant cultivation activities.

6.  I have referred to the precise time frame and locations of the questions put by Mr Tsui to the plaintiff were not clear and I have given certain leeway to the plaintiff, who is an 86-year-old lady as stated in paragraph 22 of my judgment. 

7.  When assessing the evidence of the plaintiff, I also took into account the entire circumstances like the undisputed aerial photos as stated in paragraph 25 of my judgment showing agricultural activities on Lot 2244. 

8.  Mr Tsui did not touch on my reference to the aerial photos in this application.  In fact, the points now taken by Mr Tsui in this application have been made before me at the trial.  I have considered and dealt with them in my judgment.  Defendants could disagree with my findings, but I fail to see such finding is plainly wrong on this ground one.

Ground 2 – Co-existence of the plaintiff and defendants on Lot 2243RP and plaintiff’s possession of Lot 2243RP

9.  The relevant paragraphs in relation to this ground could be found in paragraphs 29 to 32 of my judgment.

10.  It appears to me that Mr Tsui has misplaced the focus of paragraph 30 of my judgment where I said claims of cultivation on Lot 2243RP by both sides are not mutually exclusive, and I also said it is not inherently improbable that they had co-existed on the lot all along and each party was cultivating on their respective portions of the lot.

11.  I mean I could not exclude such possibility.  I was not making a positive finding.  My finding is at paragraph 32 of my judgment that the plaintiff did occupy the disputed part of Lot 2243RP for agriculture since 1961 continuously for no less than 20 years.  Again, I fail to see such finding is plainly wrong.

Ground 3 – Possession of the entire disputed land

12.  Apparently, Mr Tsui has misread or misunderstood my conclusion.  It is never my finding that the plaintiff only possesses 22.3m² approximately 14% of the entire disputed land.  It is not my inference from the possession of 14% of the entire disputed area to conclude that the plaintiff has possessed the entire disputed area.  Therefore, I see no merit on this ground.

Ground 4 – Too little weight attached on the evidence of Madam Tse

13.  The relevant parts of my dealing with Madam Tse’s evidence could be found in paragraphs 17 to 20 of my judgment.  Mr Tsui has a different approach in assessing Madam Tse’s evidence.While acknowledging the difference in the approach of assessment, I fail to see why I was plainly wrong in my assessment.

Ground 5 – Treatment of events after 1981

14.  I refer to paragraphs 39 and 40 under the heading “Subsequent Matters” in my judgment.  Mr Tsui submitted that those matters are relevant to negate the plaintiff’s intention to possess and complained that I failed to treat them as relevance. 

15.  As stated in paragraph 40, although I did not deal with those matters one by one, I expressly stated that those matters “do not affect my above findings in any event”.  I did not regard those matters as irrelevant to my findings but they do not affect my findings.  Therefore, I do not find any merit in this ground.

Ground 6 – New issues of laches and acquiescence

16.  Mr Tsui submits that I have failed to consider the prejudice caused to the defendants as a result of the plaintiff’s acquiescence in not taking action to assert her claim for 32 years.  Mr Tsui did accept that such equitable defences should be pleaded in the first place but they were not pleaded and not raised at the trial at all. 

17.  Mr Tsui relies on Flywin Company Limited v Strong & Associates Limited (2002) 5 HKCFAR 356 at 369, paragraph 38 under line B which says as follows:

“Therefore where a party has omitted to take a point at the trial and then seeks to raise that point on appeal, the position is as follows. He will be barred from doing so unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial.”

18.  Mr Szeto, on the other hand, objects the defendants raising a new argument that did not surface at trial.  As a matter of principle of law, Mr Szeto relied on a passage in Hong Kong Civil Procedure 2016 Vol 1 at 059-10-7 at page 1116: 

“A point not taken at the trial, and presented for the first time in the Court of Appeal… ought to be most jealously scrutinized …A Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it had before it all the facts bearing upon the new contention as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded to them in the witness box.”

19.  After consideration, I accept the plaintiff’s submission in this regard. I fail to see the exception in Flywin case could be applied in the present situation.  I reject the defendants’ reliance on this ground of new issues to apply for leave to appeal.

Ground 7

20.  Since I have rejected the previous six grounds, this final ground being the accumulation of the first six grounds must fail.

Conclusion

21.  For the above reasons, I fail to see any reasonable prospect of the appeal by the defendants and I thus dismiss the defendants’ summons for leave to appeal.

22.  Now I proceed to hear submission on costs. 

(Submissions on costs)

Costs

23.  I order by consent of the parties that costs of this application be to the plaintiff with counsel’s certificate to be taxed if not agreed.  The plaintiff’s own costs should be taxed in accordance with the Legal Aid Regulations.