CHAN TIN SHI v. LI TIN SUNG AND OTHERS

CACV71/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 71 OF 2003

(ON APPEAL FROM HCMP NO. 4191 OF 1998)

J U D G M E N T

Hon Rogers VP:

1. This is an application for leave to appeal to the Court of Final Appeal from a judgment of this court dated 19 November 2004.  The application was not made under Section 22(1)(a) of the Court of Final Appeal Ordinance Cap. 484 because the value of the land does not come to that amount.  This court has indicated it is not prepared to make orders under Section 22(1)(b) on paper.  It is necessary, where there are matters of great general and public importance, that the applications are made in court.

2. One of the reasons for the application to have to be made in court is that it is important for all parties to concentrate their minds on exactly what the question is.  Unfortunately, the issues were ventilated in general terms.  It is quite clear that this is a matter which should go to the Court of Final Appeal because not only was this court divided on the effect of the New Territories Leases (Extension) Ordinance Cap. 150 but there are conflicting decisions at first instance.  In those circumstances it is important that the effect of this Ordinance should be decided once and for all.

3. Prior to the hearing today, the question had not been fully formulated and we asked that that should be done.  We were not particularly happy with the formulation that was presented to us at short notice.  So, we ourselves have formulated a question in the course of a very short adjournment and with the difficulty of not having been able to consider it over any lengthy period.

4. The question that we have formulated is as follows:

Whether the effect of Section 6 of the New Territories Leases (Extension) Ordinance Cap. 150 was to create a new estate in respect of government leases (save those excepted or excluded under that Ordinance), so that any person in adverse possession of the land cannot rely under the Limitation Ordinance Cap. 347 on possession prior to:

(a)    25 April 1988; or

(b)    30 June 1997,

those being alternate dates which might possibly be argued as being relevant.

5. On that basis, this court gives leave to appeal to the Court of Final Appeal on the usual terms, which we understand have been agreed between the parties, that security for costs in the sum of $400,000 be provided and that there be a stay of execution pending determination of the matter in the Court of Final Appeal.