LOU KIM HUNG ALIAS LAU KIM HUNG v. WONG MEI WAH

IN THE COURT OF APPEAL

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JUDGMENT

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Cons, J.A.:

1. The Plaintiff in these proceedings is the holder of a Crown Land Permit entitling him to possession of land in Clear Water Bay Road, Kowloon. In or about 1963 he allowed one Yip Kam to use part of the land and to erect a stone hut thereon. Yip Kam did so with his own money. In 1968 Yip Kam purported to sell to one Yip Tak Keung and Yip Tak Keung and his wife moved into the hut in place of Yip Kam. We make no comment upon the legal effect of that transaction.

2. Yip Tak Keung died in 1971. In the same year his widow requested Yip Kam to execute a document of transfer in her favour, which he did. Later, in 1978, the widow moved out and allowed her own brother, who is the Defendant in these proceedings, to live there. Apparently he has done so ever since.

3. The Plaintiff said he became aware of these matters in April last year, and the Defendant not acceding to his request to move out, he issued proceedings to recover possession under Rule 64 of the District Court (Civil Procedure) Rules. That rule is equivalent to Order 113 of the Supreme Court Rules.

4. The matter came before His Honour Judge Leong on the 7th June, and after what appears on the record to be very short argument, he made an order for possession in favour of the Plaintiff, stayed for two months. Both parties at the time were represented by solicitors. The only point recorded as having been taken by way of defence was that –

"Yip Kam was granted an irrevocable licence, i.e. a licence complied with an interest. "

5. The appeal which comes before us today seeks to raise many further points, points which could have been taken below and which, if there is anything in them, should have been taken below with evidence adduced in their support. But that did not happen. Those advising the Defendant seem to have adopted a very superficial approach on his behalf. That normally would have been the end of the matter. However the procedure adopted by the Plaintiff is a very special procedure originally designed for circumstances not quite the same as the present and we feel we may adopt a more flexible attitude than we would with regard to proceedings whose scope had initially been defined by regular pleadings.

                In the circumstances we formed the opinion that justice could only be done by remitting the case to the court below and for it to be tried in the normal fashion. Having intimated our feelings to the Counsel in the case we are pleased to say that they, and their lay clients, have agreed to our proposal and came to terms as to costs. We therefore allow the appeal and remit the action to the District Court with a direction that the Originating Summons be treated as the Writ and that the normal District Court procedure follow thereafter; further, by consent, we order that all costs incurred so far, that is both in this Court and below, be paid by the Appellant to the Respondent, that those costs be taxed as soon as may be and paid within a reasonable time after taxation.