MAN FONG HANG v. CHOY KWONG

LDPD 996/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 996 OF 2012

________________

________________

_________________________

REASONS FOR DECISION

_________________________

1.  On 15 October 2013, I handed down my judgment in this case dismissing the applicant’s (Mr Man’s) claim for vacant possession of the suit premises but ordering the respondent (Mr Choi) to pay the outstanding rent (“the Judgment”). Mr Choi’s subsequent application for review was dismissed by me on 14 November 2013 (“the Review Decision”).

2.  This is Mr Choi’s application for leave to appeal against the Review Decision and for stay of execution pending the appeal. 

3.  I heard the argument on 6 January 2014 and dismissed the application.  I have further ordered Mr Choi to pay Mr Man’s costs of the application to be taxed on District Court scale if not agreed with certificate for counsel.  Here are the reasons for my decision.

Discussion

4.  There is no dispute on the applicable law, which may be summarized as follows:

(a) A party may only appeal to the Court of Appeal against a judgment, order or decision of the Lands Tribunal on the ground that such judgment, order or decision is erroneous on point of law: section 11(2) of the Lands Tribunal Ordinance (“LTO”).

(b) No appeal may be made under section 11(2) unless leave to appeal has been granted by the Lands Tribunal or the Court of Appeal: section 11AA(1) of the LTO.

(c) Leave to appeal shall not be granted unless the court is satisfied that either (i) the appeal has a reasonable prospect of success; or (ii) there is some other reason in the interests of justice why the appeal should be heard: section 11AA(6) of the LTO.

5.  Mr Choi’s application is accompanied by a Proposed Notice of Appeal setting out the following grounds of appeal:

(a) “The Tribunal has acted in excess of its jurisdiction to hear the current proceedings when it was clear that the Applicant’s application for possession would fail in limine and/or the Applicant had conceded that there had not been effective termination of tenancy.” (Appeal Ground 1)

(b) “Even if the Tribunal had jurisdiction, which is denied, the Tribunal should have exercised the discretion or judicial restraint to discontinue the proceedings because the only plea appearing in the Notice of Application (Form 22A), which had been conceded to be bad at the start of the trial, was that there was effective termination of tenancy notice, and that the relief of recovery of outstanding rent was only ancillary to that plea.” (Appeal Ground 2)

(c) “The Tribunal has misdirected itself in treating the modification of tenancy (“MOT”) applied by ‘莫坤’ as supportive of [Mr Man’s] case that [Mr Choi’s] occupation of the Land was with [Mr Man’s] predecessor’s approval.  In particular,

(i) The Tribunal erred in presupposing:

(a) The existence of government policy that if a MOT was applied for in relation to certain lot(s), all structures within that area needed to be included under the MOT, and/or

(b) That Mok Kun (莫坤) was willing to make the application covering the other tenants of [Mr Man’s] predecessor; and/or

(ii) The Tribunal failed to take into account:

(a) The entitlement of the permittee under an MOT is non-transferrable, and/or

(b) another person applied for MOT in respect of one of the lots occupied by Mok Kun (莫坤) in the same year as Mok Kun (莫坤) applied for his MOT.” (Appeal Ground 3)

(d) “The Tribunal erred in law in finding the particulars of tenancy when no case had been put forward by [Mr Man].” (Appeal Ground 4)

(e) “The Tribunal misdirected itself in finding there was insufficient evidence to support the Appellant’s case of adverse possession.  As the Respondent had admitted in his answer to the Appellant’s Request for Particulars that the Appellant has occupied the Land as identified in the plan annexed thereto in pink (page 11 of the Trial Bundle) since the 1960s, it no longer falls upon the Tribunal to decide whether the Appellant was in physical possession of the Land.” (Appeal Ground 5)

(f) “… the following question is submitted to the Court of Appeal for its decision by reason of its great general or public importance: Does the Lands Tribunal have jurisdiction to deal with an application for payment of rent based on a claim for possession when it was clear before the start of the trial that the Appellant’s application for possession would fail in limine and/or the Applicant had conceded that there had not been effective termination of tenancy?” (Appeal Ground 6)

6.  Ms Ma (counsel for Mr Choi) has re-grouped the above grounds under 5 headings:

(1) The Tribunal acted in excess of its jurisdiction to hear the proceedings.

(2) Alternatively, the Tribunal failed to exercise its discretion to discontinue the proceedings.

(3) The Tribunal should not have treated “莫坤”’s modification of tenancy as supportive of the Mr Man’s case that Mr Choi occupied the disputed land with the approval of the Mr Man’s predecessor.

(4) There was no credible or sufficient evidence for the Tribunal to find the commencement date of the periodic tenancy which was allegedly from year to year.

(5) The Tribunal’s conclusion that there was insufficient evidence to support Mr Choi’s case of adverse possession was contrary to the agreed evidence that Mr Choi was in physical possession of the disputed land.

7.  Ms Ma has confirmed that the grounds of appeal put forward by Mr Choi are variation of his grounds of review, namely:

(a) The Tribunal has acted in excess of its jurisdiction. (Review Ground 1)

(b) The Tribunal has misunderstood the effect of the evidence in that it mistakenly treated the Modification of Tenancy signed by “莫坤” as a modification which covered my structures. (Review Ground 2)

(c) The Tribunal proceeded on the mistaken basis that there was no challenge as to the certainty of terms of the alleged tenancy. (Review Ground 3)

(a) Headings 1 & 2

8.  Appeal Grounds 1, 2 and 6 are a repeat of Review Ground 1.  This has been dealt with in paragraphs 6-9 of the Review Decision.  Significantly, Mr Choi did not agree to any amendment of the pleadings so much so that the trial proceeded as pleaded and did not take issue on jurisdiction or apply to strike out the case. 

(b) Heading 3

9.  Appeal Ground 3 is a variation of Review Ground 2.    In my view, this proposed ground is based on a misapprehension of the Judgment and I stand by what I said in paragraph 30 thereof.  This is, after all, a finding of fact based on the evidence for which there is no appeal.

(c) Heading 4

10.  Appeal Ground 4 is a repeat of Review Ground 3.  As I have pointed out in paragraph 11 of the Review Decision, the commencement date of the yearly tenancy is confirmed by the table prepared by Mr Chung which has been admitted in evidence.

(d) Heading 5

11.  Appeal Ground 5 relates to what I said in paragraphs 40-43 of the Judgment.  The complaint is that there was actually no dispute on the fact that Mr Choi has been in occupation of the land depicted in the plan annexed to Mr Man’s answer since 1960s and so my decision in that regard is unwarranted.

12.  I have certainly not missed the answer as it features in paragraph 23 of the Judgment.  That answer (including the plan) is premised on Mr Man’s case that Mr Choi had been a tenant.  Insofar as the defence is concerned (which is based on adverse possession), Mr Choi bore the burden of proving factual possession of the land in question for the requisite period of time.  However, his evidence (consisting of his oral testimony only, see paragraph 24 of the Judgment) was scanty and lacking in material particulars.  His case that he came across the land as a barren land and gradually built upon it does not sit comfortably with the answer and the plan and the other evidence in this case.  The problem becomes particularly acute when one has to find out what was being possessed by Mr Choi at any given time so as to determine if he has indeed been in possession of the land for the requisite period of time.  That was the point I was making in the Judgment. 

13.  In any event, this is a minor point on fact (comparing to my finding that Mr Choi did not have the requisite intention to possess, see paragraph 39 of the Judgment) and will not earn Mr Choi leave to appeal.

Conclusion

14.  For the foregoing reasons, I have dismissed the application.