NGAI PAK HANG v. LEE DAN

HCMP 1358/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1358 OF 2014

(ON AN INTENDED APPEAL FROM DCCJ NO. 3988 OF 2012)

________________________

________________________

________________________

D E C I S I O N

________________________

Hon Kwan JA (giving the decision of the Court):

1. This is an application for leave to appeal to the Court of Appeal in which the defendant, Madam Lee Dan (李丹) seeks to challenge the findings of primary fact of the trial judge, Deputy District Judge A Chow, in a judgment given after a three-day trial in March 2014. Leave to appeal was refused by the judge on 22 May 2014. She renewed her application for leave to this court and we exercise our power to determine the application on paper without an oral hearing pursuant to Order 59 rule 2A(5) of the Rules of the High Court.

2. The plaintiff’s claim was for vacant possession of the suit premises on the ground that the defendant occupied the premises pursuant to a gratuitous licence which had been terminated by notice in May and June 2012.  He has waived his claim for mesne profits.

3. The defendant resisted the claim on the ground that she had purchased the premises from the plaintiff’s father and predecessor in title for RMB 800,000 in June 2001 and was deceived into not seeking a transfer of the title of the property.  She alleged that the plaintiff’s father, and the subsequent legal owners, being one Madam Chan Mei Yin and then the plaintiff, had been holding the property for her on a resulting trust.  She counterclaimed for a declaration the plaintiff holds the property in trust for her and an order that he should transfer the property to her.

4. The judge found against the defendant that she had paid the plaintiff’s father RMB 800,000 in June 2001 as purchase price of the property as alleged.  He rejected the submission made on the defendant’s behalf that the plaintiff and his father were untrustworthy witnesses and found that the plaintiff has satisfied “his basic burden of proof” and is prima facie entitled to possession of the property as the registered owner.  He analysed the defendant’s evidence in paras 41 to 77 of the judgment and came to the conclusion that she is an untrustworthy witness.  He mentioned various aspects of her evidence which make no sense and which he found difficult to believe or simply unbelievable.  He found as a fact she did not have RMB 800,000 in cash in around June 2001.  Had it been necessary, he would have found further that she did not pay the plaintiff’s father RMB 800,000 at the time and that any such payment was not for the purchase of the property.

5. The principles for challenging the primary findings of fact on appeal are well established, see Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336.  Three grounds of appeal are sought to be raised in this intended appeal.  The first queried why Madam Chan Mei Yin would have allowed the defendant to live in the property rent-free for a number of years.  The second sought to cast doubt on the father’s evidence that he had allowed the defendant to live in the property until her family found another place to live.  The third related to the defendant’s explanation for not asking for a receipt after paying RMB 800,000 to the father, which was rejected by the judge.

6. It was contended by the defendant’s solicitors that the judge’s adverse findings of fact against the defendant were wrong on the “totality of the evidence” by relying on those three matters which have not been mentioned in the judgment.  It was submitted that had the judge dealt with or considered them, he should have found in the defendant’s favour as the only reasonable inference to be drawn.

7. These contentions simply do not provide support for a viable appeal.  The fact that the judge did not mention them in his judgment does not necessarily follow that he had not taken them into consideration.  Even assuming that the judge had not considered them, they are clearly no answer to the compelling evidence which the judge analysed with care in paras 41 to 77 of the judgment and which are all one way against the defendant.  There is no basis to interfere with the findings of primary fact made by the judge.

8. The defendant plainly does not satisfy the threshold requirements in section 63A(2) of the District Court Ordinance, Cap 336 for leave of appeal to be granted.  Accordingly, we dismiss her summons for leave to appeal dated 5 June 2014.  And as this application is wholly without merit, we make a further order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

9. We make an order nisi that the defendant is to pay the plaintiff’s costs of this application, which we assess summarily on a gross sum basis at $15,000.  Any party who seeks to vary the order nisi shall lodge a written submission within seven days hereof, with leave to the other party to reply in writing seven days thereafter.