PROSPEROUS WORLD LAND INVESTMENT CO LTD v. LAI FUNG SHAN

DCMP 3931/2019

[2021] HKDC 484

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3931 OF 2019

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BETWEEN

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DECISION

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1.  This is the defendant’s application for leave to appeal against the Decision of this Court dated 13 November 2020 (the “Decision”). The application is, by consent, to be dealt with by paper disposal and this court has already made a decision for a stay of execution pending this decision.

2.  The factual background of the case was set out in the Decision and needed not to be repeated here.

3.  The draft Notice of Appeal shows the defendant is relying on a sole ground of appeal which, in essence, is that the defendant’s fixed pitch hawker licence (“Hawker Licence”) granted by the government conferred a right to occupy the relevant piece of land over-riding the superior possessory title of the plaintiff over the defendant (in accordance to the doctrine of “relativity of titles”).

The legal principles

4.  As provided by s. 63A(2)(a) of the District Court Ordinance (Cap. 336), leave to appeal shall not be granted unless the judge is satisfied that the appeal has a reasonable prospect of success.

The ground of appeal

5.  The defendant has already raised a similar argument at the hearing on 15 September 2020 and it has been addressed at paragraphs 31 and 32 in the Decision and needed no repeating.

6.  In the skeleton submission, the defendant referred various precedents including Manchester Airport Plc. v Dutton [2000] 1 QB 133 and submitted that “a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys”.

7.  However, in the Manchester Airport case, the landowner granted a license to occupy land for works in connection with construction of an airport runway. The other cases cited by the defendant also deals with the right of a person who was properly granted a licence to occupy land.

8.  In my analysis, a Hawker Licence does not confer such rights: the licence is clearly regulatory in nature and does not confer a right to occupy land (see section 83A of the Public Health and Municipal Services Ordinance Cap. 132 and the Hawker Regulation Cap. 132AI).

9.  The purpose of the legislation is to make hawking activities unlawful unless rendered lawful under the licensing scheme which also served to regulate and control such activities under the scheme.

10.  It is not within the scope or purpose of this legislation to grant any licence to occupy land: the power to grant lease or licence over Government land rests with the Director of Lands, not the Authority in charge of hawkers.

11.  Thus, although the Hawker Regulation uses the wordings like “to place…any commodity…on the pitch”, “every licence shall…specify particulars of the locations of the pitch”, “to erect on any fixed pitch…a wall stall” etc. (which the defendant was at pains to point out in the Reply Submissions), none of such are relevant in a dispute in the right of occupation or possession of the relevant piece of land.

12.  This position is made very clear at clause 16 of the License Conditions for the Hawker Licence:

“The licence does not vest any proprietary rights or interests in land in the licensee. Any dispute over the use of any party of the stall (or pitch) between the licensee and a private land owner has to be resolved between the parties and the Director disclaims any responsibility or liability in such a dispute.”

13.  In Tsang Foo Keung and Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527, the 1^st defendant sought to appeal against a judge’s decision that he could not acquire title by adverse possession of a disputed area when such occupation came about by the grant of a hawker licence. The Court of Appeal dismissed the appeal. Harris J (sitting as an appellate judge) stated in paragraph 30 that:

“…I consider the correct analysis of the effect of the licences is as follows. The fixed pitch hawker licences authorised the licensee to carry out the approved trade from a designated location. The right to do so was always subject to objection from the owner of the land, who could require the hawker to vacate the designated area and certainly by 1972 the licenses contained a provision expressly dealing with this eventuality.”

14.  Although Harris J only mentioned “objection from the owner of the land” (given that this was not a case regarding the parties’ relative possessory titles like the current case), he clearly held that the Hawker Licence could not confer to the “licensee” a right to occupy or possess land and any dispute over occupation must be settled by applying the usual principles, like the doctrine of “relativity of titles”.

15.  This was, of course, completely in line with paragraph 16 of the License Conditions for the Hawker Licence as stated above.

16.  But, the defendant’s case goes beyond this: in order for her argument to succeed, the court must find not only that the Hawker Licence confers a right to occupy land, but also take such right takes priority over the previous occupier who has a superior possessory title. If true, this would create a ridiculous situation: I could envisage, for example, that every adverse possession claim against the government could be frustrated by the hawker Authority simply granting a fixed pitch hawker license on the disputed land.

17.  As such, the court is not satisfied that the appeal has a reasonable prospect of success.

Order

18.  I would therefore dismiss this application with costs awarded to the plaintiff. If there is no agreement on costs, the plaintiff shall lodge and serve a summary statement of costs within 28 days of this decision. The defendant shall lodge and serve a list of objections within 28 days thereafter and the cost shall be assessed summarily.