CHEUNG KWAN KEI v. CHEUNG KWAN FAI

HCMP 1841/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1841 OF 2012

(ON AN INTENDED APPEAL FROM DCCJ NO. 838 OF 2008)

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.  By an Assessment of Damages dated 11 June 2012, Simon Leung DJ assessed mesne profits payable by the defendant to the plaintiff in respect of his occupation of residential premises at 5/F Chew Onn Building, Yen Chow Street, Kowloon. This assessment followed an earlier Decision of the Judge dated 11 March 2009 in which he gave judgment in favour of the plaintiff against the defendant for vacant possession of those premises.

2.  The Judge found that the defendant was a licensee of the premises but rejected the plaintiff’s case that the defendant was a trespasser as from 1 December 2001. Instead, the Judge found that the plaintiff only unequivocally terminated the defendant’s licence to remain in occupation of the premises as from the time when he commenced the action in February 2008.  He found that the defendant moved out of the premises since June 2009 and, on that basis, he assessed mesne profits for the period 1 March 2008 to 31 May 2009 at the market rental values provided by the plaintiff’s expert surveyor.  The total mesne profits so assessed were HK$32,704.50.

3.  Both parties sought leave to appeal against the Assessment of Damages.  By a Decision dated 16 August 2012 (“the Leave Decision”), the Judge dismissed both parties’ summonses for leave to appeal.

4.  By summons filed on 30 August 2012, the plaintiff has renewed his application for leave to appeal to this Court pursuant to RDC O.58 r.2(4A).  The summons sets out the proposed grounds of appeal and is also accompanied by a draft notice of appeal (setting out the same proposed grounds of appeal) and by a document entitled Plaintiff’s Submission signed by counsel acting for the plaintiff.

5.  Although no statement in opposition has yet been filed by the defendant, we are satisfied that we can and should proceed to determine this application on the papers.

6.  The proposed grounds of appeal seek to challenge a single issue, namely the Judge’s finding of fact as to when the defendant’s licence was unequivocally revoked by notice.

7.  The plaintiff seeks to argue that the terms of a written agreement in Chinese dated 1 December 2001 constituted such notice to terminate the defendant’s licence.  He also seeks to rely on the terms of a letter from his solicitors to the defendant dated 30 November 2007 as constituting an alternative terminating notice.

8.  These arguments were considered by the Judge in his original Decision dated 11 March 2009 (at §§39-44) and also in the Assessment of Damages (at §§16-18 and 20-22).  The Judge was not satisfied that the plaintiff had, through either document, the substance of which he summarised in the Decision, unequivocally terminated the defendant’s licence as a matter of fact.

9.  As the Judge held in the Leave Decision (at §8), an appellate court will not interfere with a judge’s findings of primary fact unless it is satisfied that the judge’s conclusion on the facts was plainly wrong.

10.  Like the Judge himself, we are also satisfied that the proposed appeal against the Judge’s finding of fact that the licence was not terminated by the documents relied upon by the plaintiff does not enjoy a reasonable prospect of success, that being the threshold required by s. 63A(2)(a) of the District Court Ordinance (Cap. 336).

11.  It is not suggested by the plaintiff that there is any other reason in the interests of justice why the appeal should be heard (s. 63A(2)(b)).

12.  In the circumstances, we dismiss the plaintiff’s application for leave to appeal.

13.  Further, since the application is totally without merit, we make an order pursuant to RHC O.59 r.2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

14.  The defendant not having submitted a statement in opposition, we decline to make any order as to costs of the plaintiff’s summons for leave to appeal.