WORKWISE CORPORATION v. THE OCCUPIER(S) of Lot No.250, Section A of Lot No.251, Sub-Section 2 and Sub-Section 3 of Section B of Lot No.251, The Remaining Portion of Section B of Lot No.251, The Remaining Portion of Lot No.265 and Lot No.266 all in Demarcation District No.111, Yuen Long, New Territories, Hong Kong AND ANOTHER

CAMP 258/2023, [2024] HKCA 78

On An Intended Appeal From [2023] HKDC 447 &

[2023] HKDC 926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 258 OF 2023

(ON AN INTENDED APPEAL FROM DCMP NO 1067 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Plaintiff’s renewed application for leave to appeal against the judgment of His Honour Judge K C Chan dated 4 April 2023 (“the Main Judgment”), whereby the Judge upheld the 2^nd Defendant (“Ngai”)’s counterclaim in respect of what is referred to in the Main Judgment as the “Disputed Land” by way of adverse possession. Leave to appeal was refused by the Judge by his decision dated 6 July 2023 (“the Leave Decision”).

2.  The basic facts of this case and the Judge’s reasons for his decision are set out in the Main Judgment and will not be repeated here.

3.  In view of the fact that the parties, the witness (Ngai), and the parties’ respective expert surveyors did not adopt uniform terminologies to refer to various areas or parcels of land in the pleadings/witness statement/affirmation/expert reports, we shall, in the interest of clarity, adopt the following terminologies used by the Judge in the Main Judgment:

(1)  “the Subject Lots” – the lands acquired by the Plaintiff between September and November 1996 and forming the subject-matters of the Plaintiff’s claim in the action or its counterclaim to Ngai’s counterclaim;

(2)  “the Disputed Land” – a majority part of the Subject Lots occupied by Ngai’s Farm (“the Farm”) and forming the subject-matter of Ngai’s counterclaim against the Plaintiff by way of adverse possession;

(3)  “the Claimed Land” – an area delineated and marked by red hedged lines on a plan (“the RAD&C Plan”) attached to Ngai’s Re-Amended Defence and Counterclaim dated 15 May 2020 which was intended to correspond to the area enclosed by fencing and occupied by the Farm (note: the Claimed Land includes lands other than the Disputed Land);

(4)  “the Possessed Area” – an area delineated on a plan attached to D’s Expert Report as Appendix 2 (“the Expert Report Plan”) which was intended to correspond to the area enclosed by fencing and occupied by the Farm based on a survey conducted by Madam Chan (“D’s Expert”) on 17 July 2019.

4.  Having considered the papers before us, we consider that it is appropriate to deal with the present application on paper without an oral hearing, notwithstanding Mr Chan’s invitation, on behalf of the Plaintiff, to this Court to give directions for an oral hearing.

DISCUSSION

5.  Under s 63A(2) of the District Court Ordinance, Cap 336, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. For this purpose, reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable”, and therefore more than “fanciful”, without having to be “probable”.

6.  Attached to the Plaintiff’s summons dated 20 July 2023 seeking leave to appeal is a draft Notice of Appeal containing 4 paragraphs or intended grounds of appeal (“Ground 1” to “Ground 4”). Ground 4 is not a self-standing ground, and its validity is dependent on the Plaintiff being able to make out one or more of the earlier grounds of appeal (ie Grounds 1 to 3).

7.  Under Ground 1, the Plaintiff contends that although the Judge upheld Ngai’s counterclaim in respect of the Disputed Land, the Judge erred in dismissing the Plaintiff’s claim for possession of the Subject Lots against the 1^st and 2^nd Defendants in its entirety, in that the Plaintiff is entitled to an order for possession of the reminder of the Subject Lots (ie lands other than the Disputed Land, hereinafter referred to as “the Remaining Land”) for which no defence of adverse possession has been raised or proved by any other occupier.

8.  Ground 1 has no merits, for the following reasons:

(1)  As pointed out by the Judge at §§11 and 12 of the Leave Decision, there was no evidence adduced at the trial that the Remaining Land had been occupied or trespassed upon by any person (known or unknown).

(2)  The Plaintiff relies on an affirmation filed on 20 April 2018 in support of the Originating Summons. However, after the conversion of the proceedings into a writ action, there was no order made that the affirmation should stand as evidence at the trial.

(3)  The Plaintiff further relies on Order 18, rule 13(1) of the Rules of the High Court, Cap 4A, to contend that there was an implied admission of the allegation of trespass against the 1^st Defendant made in §§2-4 of the Amended Statement of Claim.

(4)  Insofar as Ngai (as 2^nd Defendant) is concerned, the allegation of trespass against the 1^st Defendant was not admitted (see §§8-10 of the Re-Amended Defence and Counterclaim). Plainly, there would be no basis for the Judge to make any order for possession of the Remaining Land against Ngai.

(5)  Insofar as the 1^st Defendant is concerned, no person falling within the description of the 1^st Defendant has been identified. Apparently, no defence was filed by the 1^st Defendant.

(6)  It would appear that, at the trial, the contest was treated as one between the Plaintiff and Ngai only[1]. In neither the Plaintiff’s Opening nor Closing Submissions did the Plaintiff ask for an order for possession of the Remaining Land against the 1^st Defendant. On the contrary, at §32 of the Plaintiff’s Closing Submissions dated 8 October 2021, the Plaintiff asked the Judge to enter judgment “in favour of P in the terms identified above on P’s claim and counterclaim-to-counterclaim …”. The “terms” as identified did not include an order for possession of the Remaining Land against the 1^st Defendant.

(7)  Since the Plaintiff did not ask the Judge to make such an order, the Plaintiff can hardly complain that the Judge did not make the order that is now being sought.

(8)  If the omission was the result of an inadvertence, it might be possible for the Plaintiff to apply, as mentioned by the Judge at §14 of the Leave Decision, to correct the judgment under the slip rule. For the avoidance of doubt, we express no view on the viability or merits of such an application.

(9)  In any event, it has not been suggested that the Plaintiff has in fact encountered any difficulty in taking possession of the Remaining Land. The Plaintiff’s intended appeal under Ground 1 would appear to be academic.

(10)  In all the circumstances, we do not consider Ground 1 to be reasonably arguable.

9.  Under Ground 2, the Plaintiff contends that the Judge fundamentally erred in law and/or was plainly wrong in permitting Ngai to depart materially from her pleaded case in the RAD&C Plan on the basis of different boundaries delineated by the “Possessed Area” as surveyed by D’s Expert in 2019 and giving judgment on that basis.

10.  The alleged material departure from Ngai’s pleaded case arises from the fact that the area occupied by the Farm and enclosed by fencing as delineated on the RAD&C Plan (ie the Claimed Land) is slightly different from that as surveyed by D’s Expert and delineated on the Expert Report Plan (ie the Possessed Area). The differences are shown on a plan attached to the Main Judgment as Annexure A. On the basis of the evidence before the Judge and as found by him, the delineation of the enclosed Farm as shown on the RAD&C Plan is inaccurate, and the correct delineation is as shown on the Expert Report Plan. We do not, however, consider that such discrepancy or inaccuracy should be regarded as a material departure on Ngai’s part from her pleaded case, for the following reasons:

(1)  It is abundantly clear from Ngai’s pleadings that her claim for adverse possession is in respect of those parts of the Subject Lots enclosed by fencing and occupied by the Farm.

(2)  As found by the Judge, the boundary of the Farm and the position of the fences have remained at the same locations over the years since 1976[2]. The Judge also found that Ngai’s case and evidence regarding physical possession and animus possidendi in respect of the subject matter of the adverse possession claim has remained consistent throughout[3].

(3)  That Ngai was claiming adverse possession of those parts of the Subject Lots falling within the enclosed area as delineated on the Expert Report Plan, instead of the enclosed area as delineated on the RAD&C Plan, was clear from Ngai’s witness statement filed on 16 October 2019[4]. In this regard, the Judge accepted Ngai’s oral evidence that “at the time of filing the [Defence], she had not yet engaged a surveyor and that the RAD&C Plan was only compiled by her solicitors with her instructions and therefore was not entirely accurate”[5].

(4)  Further, as pointed out by the Judge, the parties’ respective experts were aware of the slight differences in the boundary of the enclosed Farm as delineated on the RAD&C Plan and on the Expert Report Plan, and the Plaintiff’s Expert (Mr Joseph Wong) was not in any way hindered or affected in giving his expert opinion[6].

(5)  If there was still any doubt about Ngai’s case, it was dispelled by Mr Ng’s opening when he confirmed that “(a) the boundary of the Possessed Area is the correct boundary of the Farm and that the boundary of the Enclosed Area in RAD&C Plan was inaccurate, (b) Ngai was therefore in fact claiming such part of the Subject Lots that are within the Possessed Area, which part is the part delineated by coloured pink in Appendix 2 of D’s Expert Report plus Lot 270 …”[7].

11.  In our view, the Judge was correct to find that the Plaintiff has not suffered any prejudice or unfairness arising out the slight discrepancy between the delineated boundary of the enclosed Farm as shown on the RAD&C Plan and the Expert Report Plan[8]. While it would have been desirable for Ngai to apply to amend the Re-Amended Defence and Counterclaim by replacing the RAD&C Plan with the Expert Report Plan, we consider that, in the circumstances of this case, the Judge was correct to reject the Plaintiff’s pleading objection.

12.  As for the detailed matters raised by Mr Chan at §§6-9 of the Plaintiff’s Written Statement, the main points have been dealt with by the Judge at §§16-30 of the Leave Decision. We agree with the Judge’s analysis and do not propose to repeat the same here.

13.  Under Ground 3, the Plaintiff complains that the Judge erred in finding that the location of the fences of the Farm allegedly built by Ngai’s father in 1976 was along the boundary of the Possessed Area and remained unchanged up until the date of survey by D’s Expert in 2019, when none of the factual witnesses gave evidence to that effect and such case is contrary to the objective evidence.

14.  Although the Plaintiff has characterized this alleged error of the Judge as an error of principle, we do not see that any issue of principle is involved. The Plaintiff is, in substance, seeking to challenge a finding of primary fact made by the Judge. The Plaintiff has to overcome a high threshold in order to make out this ground of appeal. In the circumstances of this case, the Plaintiff will have to show that the Judge’s finding is plainly wrong.

15.  The Judge made the above finding on the basis of the evidence before him referred to at §§84-117 of the Main Judgment, including photographs of the Farm starting from 1978, the oral evidence of Ngai, Ngai Senior, Lam and Cheung (the latter two being villagers living nearby the Farm since 1963 and 1989 respectively), aerial photographs taken since 1981, and the Experts’ evidence. In our view, the Judge was fully entitled to make the said finding based on the above evidence.

16.  Of the 5 matters relied upon by the Plaintiff in support of Ground 3:

(1)  Paragraph 3.1 relates to the last sentence in §7 of Ngai’s witness statement dated 16 October 2019 where she confirmed that the location of the fences enclosing the Farm was as delineated on the RAD&C Plan. However, as mentioned by the Judge at §29(a) of the Leave Decision, it was clear to everyone at the trial and beyond any peradventure that Ngai did not adopt the RAD&C Plan in her evidence or affirmed to its correctness at the trial. We agree with the Judge that there are no merits at all in the Plaintiff’s complaint based on the last sentence in §7 of Ngai’s witness statement[9].

(2)  Paragraphs 3.2 to 3.5 are, in essence, attempts by the Plaintiff to re-argue various aspects of the evidence which were not accepted by the Judge, or attack the Judge’s assessment of the evidence (which is a matter within the province of the Judge). The main points relied upon by the Plaintiff have been dealt with by the Judge at §§36-40 of the Leave Decision. Mr Chan’s criticisms of the Judge’s treatment or assessment of the evidence mentioned at §§11-15 of the Plaintiff’s Written Statement are nothing more than nit-picking bits and pieces of the Main Judgment out of context, and are far from being sufficient to make out an arguable case that the Judge’s finding of primary fact is plainly wrong.

17.  In all, Grounds 1 to 3 are not reasonably arguable. Having reached this conclusion, Ground 4 does not require separate consideration.

18.  We are not satisfied that the Plaintiff’s intended appeal has any reasonable prospect of success. Neither do we see that there is any other reason in the interests of justice why the appeal should be heard.

DISPOSITION

19.  The Plaintiff’s summons dated 20 July 2023 is dismissed with costs to the 2^nd Defendant, to be summarily assessed. The 2^nd Defendant shall have leave to file and serve a statement of costs (limited to 2 pages) within 14 days from the date of this judgment, and the Plaintiff shall have leave to file and serve a statement of objection (limited 2 pages) within 14 days thereafter. Subject to such further directions as may be given, the Court will assess the 2^nd Defendant’s costs summarily without further notice to the parties. The above order as to costs is an order nisi, and shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.

20.  Lastly, as the Plaintiff’s application is totally without merit, we make an order that no party may request the present determination to be reconsidered at an oral hearing inter partes pursuant to Order 59, rule 2A(8) of the Rules of the High Court.