CHU CHUNG SHING INVESTMENT CO LTD v. LAM CHUNG AND OTHERS

DCMP 2773/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2773 OF 2011

-----------------------------------

----------------------------------

----------------------------------

----------------------

DECISION

----------------------

1.  The 3^rd and 4^th defendants make the following applications:-

(a) An application to adjourn the hearing to another date;

(b) An application for leave to appeal against the judgment dated 30 November 2015 (“the Judgment”);  and

(c) An application for stay of execution.

2.  I shall not repeat the background of this case as the facts have already been set out in the Judgment.

Application for adjournment

3.  I have considered the reasons given by the defendants for adjourning the hearing.  However, I refuse their application for adjournment on the following grounds:-

(a) The defendants were previously represented by Legal Aid Department.  No doubt their solicitors and the Legal Aid Department would have informed them of the contents of the Judgment before they lodged their application for leave to appeal.

(b) The defendants have had five months to prepare for the hearing.  Their application for leave to appeal was lodged on 24 December 2015.  The defendants submitted that they had sought the help of translation agencies, their previous solicitors, and friends and family in obtaining the translation of the Judgment.  I find it difficult to believe that in the six months’ time since the Judgment, and in spite of all their efforts, they are still unclear about the contents of the Judgment.

(c) I accept counsel’s submissions that in fact the potential grounds of appeal show that the defendants understood the Judgment and the reasoning therein.  I accept that it would be highly unlikely, if not impossible, for the defendants to advance the various grounds of appeal without having understood the contents of the Judgment.

(d) This court is not obliged to provide a Chinese translation of the Judgment to the defendants because the defendants were represented when the Judgment was given.

4.  Having considered the reasons advanced by the defendants for an adjournment, I do not find those reasons to warrant an adjournment.  Furthermore, the case involves illegal structures which have caused a breach in the integrity of the building structure as well as potential risk hazards to its residents which should be resolved without further delay.  In such circumstances, I refuse the application for adjournment.

Grounds of appeal

5.  In respect of the potential grounds of appeal being advanced by the defendants, I find there to be no reasonable prospect of success in the grounds advanced for the following reasons:-

(a) In respect of the alleged failure to consider the possession by the defendants’ predecessors, I had already considered and dealt with such matters in the Judgment.  See paragraphs 15 to 17 and 25 to 44 of the Judgment.

(b) In respect of the submissions relating to the joint expert report and the use of the figure of $5,000 to assess the mesne profits, those matters (the admission of the joint expert report and the adoption of $5,000 as the figure for assessment of mesne profits) were agreed between the parties at trial.

(c) In respect of the letter issued by the Tai Po District Office in 1981, I agree with the plaintiff’s counsel’s submissions.  I have considered the case of Ladd v Marshall [1954] 1 WLR 1489 and the principles set out therein regarding the admission of new evidence.  The said letter does not support the contention that the illegal structures that existed before 1975 were exempted.  Furthermore, this fact was never brought up in the trial, or even pleaded by the defendants.  Even if it had been brought up in the trial, it would not have affected the Judgment, as it is not disputed between the parties that there was a building order issued against the structures in 2012.  The illegal structures would have been liable to be demolished in any event.

(d) In respect of the complaints made against the legal advisers, I note the crux of the complaint is against the defendants’ former solicitors, not the solicitors that represented the defendants at trial.  The defendants conceded that upon receiving complaints from them, the Legal Aid Department changed the firm of solicitors representing them.  There is no conduct or omission being alleged that would have detrimentally affected how the defendants’ case was presented or run in the trial.  I fail to see how the respective allegations would warrant leave to appeal being granted.  Furthermore, I accept the plaintiff’s counsel’s submission that the case was represented by the same barrister all along and no application for adjournment was made prior to or during the trial.  I therefore do not accept that there is reasonable prospect of success on this ground.

6.  By reason of the matters set out above, I do not find there to be any reasonable prospects of success on the grounds of appeal advanced by the defendants.  Furthermore, I do not find there to be other grounds on which I should allow the application.

7.  Hence, I dismiss the 3^rd and 4^th defendants’ application for leave to appeal and their application for a stay of execution.

Costs

8.  In respect of costs, I make the order that the costs of the application for adjournment, the application for leave to appeal, and the application for a stay of execution, be to the plaintiff, with certificate for one counsel, to be taxed if not agreed.