TANG TAK HONG AND OTHERS v. CHEUNG YAT FUK

CACV 203/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 203 OF 2002

(ON APPEAL FROM HCMP NO. 3265 OF 1996)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This was an application for leave to appeal to the Court of Final Appeal. The application was made under both section 22(1)(a) and (b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. At the conclusion of the hearing, this court gave leave to appeal under the latter subsection and said that it would give its reasons in writing.

2. The background to this matter is set out in the judgment in the court below dated 19 February 2002 and the judgment of this court (Mayo VP, Yuen JA and Chu J) dated 30 October 2002.

3. On the application for leave to appeal to the Court of Final Appeal, the respective parties sought to rely upon their own valuations of the land in question. The defendant's valuation was slightly more than $1 million whereas the plaintiffs' valuation was significantly less. In those circumstances, this court did not consider that it could be satisfied that the appeal involved property of the value of HK$1 million or more and the application under section 22(1)(b) was therefore considered.

4. Although there was before the court a draft amended notice of motion for leave to appeal, because that was in a lengthy and discursive form, which this court considered was inappropriate for such a document, it was treated, instead, as a skeleton argument. Nevertheless, it contained what was said to be the point of law. That read:

"Whether a squatter claiming to oust the paper owner can rely on occupation by the squatter's tenant to satisfy the requisite period of occupation?"

5. In argument, this court drew counsel's attention to the fact that there were two declarations sought in the originating summons. The first declaration was to the effect that the defendant's title to the property had been extinguished pursuant to section 17 of the Limitation Ordinance, Cap. 347. The second was that the 1st plaintiff had established a possessory title to the property and his assignees were entitled to be registered as the holders of the property. Accordingly, it appeared that the point of law, as drafted, was directed to the second declaration.

6. Following an adjournment, counsel presented an amendment to the point of law. That amendment was in two parts. However, on consideration it appeared that the second part raised a question which had not been decided against the defendant in the present case and, indeed, was pertinent to a decision of this court in another case. Counsel did not demur from this and, thereafter, only sought to pursue the first part. The question as drafted then read:

"Whether a squatter claiming to oust the paper owner can rely on occupation by the squatter's tenant to satisfy the requisite period of possession and in particular whether during the currency of a tenancy created by the squatter, the squatter remains 'a person in whose favour the period of limitation can run' within the meaning of section 13(1) of the Limitation Ordinance?"

7. Since the question of whether a squatter who had rented out the relevant property had a locus to bring proceedings was, seemingly, not covered by direct authority, this court considered that it would be appropriate to grant leave to appeal in respect of that question.

Hon Yuen JA:

8. I agree.

Hon Chu J:

9. I agree.