YU KIT CHIU AND ANOTHER v. YU KIT CHIU t/a 陳潮昌士多

DCCJ 5488/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5488 OF 2003

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D E C I S I O N

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1. This is the application of Choi Chi-fook (“Mr Choi”) :-

(a) to join in this action as the 2^nd defendant; and

(b) for an interim stay of execution for 3 months of the writ of possession and fifa obtained by the plaintiffs in this case against the defendant.

2. The application is opposed by the plaintiffs.

Background

3. The plaintiffs are the executors of the estate of Yu Ki-cheung, deceased (“the Deceased”), who was the registered owner of Remaining Portion of Lot 994 and Lot 995 in DD 115 before his demise.

4. By this action, which was commenced on 19 September 2003, the plaintiffs claimed against the defendant for possession of Remaining Portion of Lot 994 and damages for trespass.  The defendant asserted in his defence that he had been in adverse possession of the land for over 20 years and counterclaimed for a declaration that the plaintiffs’ right to recover the land had been time-barred.

5. The action was tried before Her Honour Judge Mimmie Chan (as she then was) in February 2010 and, by a judgment dated 22 March 2010 (“the Judgment”), judgment was granted in favour of the plaintiffs and the counterclaim was dismissed.  The defendant’s appeal was subsequently dismissed by the Court of Appeal on 18 February 2011.

6. The plaintiffs proceeded with execution and obtained the subject writ of possession with fifa combined in November 2011.

7. Then came two applications:-

(a) the application by one鄭穎朗 (“Mr Cheng”), who claimed to be an occupier in Remaining Portion of Lot 994, for joinder and an extension of time for him to move out; and

(b) the application of one Chan Yuk-mui (“Madam Chan”), who claimed to be in occupation of the premises known as “No 9-D1, Choi Yuen Village, Au Tau, Yuen Long, New Territories” within Remaining Portion of Lot 994 (“the Premises”), to be joined as a party in this action, to have the execution of the writ of possession stayed, and to have the Judgment set aside.

8. Both applications came before His Honour Judge Leung (as he then was) and the learned Judge dismissed the applications on 26 July 2012.  Both Mr Cheng and Madam Chan applied for leave to appeal but their applications were dismissed by the Judge on 30 November 2012.  Madam Chan applied further to the Court of Appeal for leave to appeal, but her application was also dismissed on 19 February 2013. 

9. For the purpose of this application, Mr Cheng’s application is irrelevant and we should focus on Madam Chan’s unsuccessful application.  It is common ground that Mr Choi is the son of Madam Chan.

10. Judge Leung has this to say, in his decision dated 26 July 2012, on the relationship between the plaintiffs’ claim herein against the defendant and Madam Chan’s application:-

“ 22. The plaintiffs in their amended statement of claim claimed for an order for possession of the suit portion. The suit portion was defined (in paragraph 2(ii)) as Lot 994 RP. It was the plaintiffs’ contention that the defendant has been in occupation of Lot 994 RP since a day prior to 28 October 1978.

23. In the re-amended defence and counterclaim, the defendant contended that since 1962 he has been occupying the subject portion of Lot 994 RP.  The subject portion of Lot 994 RP was identified and coloured yellow in the Lot Index Plan attached to the pleading.  It forms part of the Lot.  The defendant asserted adverse possession of the subject portion of Lot 994 RP, not the entire Lot 994 RP. 

24. The plaintiffs were seemingly aware that there are other occupiers in Lot 994 RP besides the defendant.  In their pleading (at paragraph 3M), the plaintiffs referred to the letters of demand from their then solicitors on 4 July 2002 to the occupiers of the suit portion inclusive of the defendant.

25. The materials before me suggest that the plaintiffs were aware that part of Lot 994 RP has always been occupied by Choi Senior [ie Mr Choi’s father] and his family…

30. Notwithstanding the above, the plaintiffs put forward their claim that the defendant was and is the occupier of the entire Lot and decided not to name any other occupier of the Lot whether know or unknown as defendant.  On pleading, there was no suggestion that all other occupiers of Lot 994 RP derived their occupation of the Lot under the defendant so that an order against the defendant may be good against the others.  In view of the evidence in respect of the occupation of Choi Senior and his family since the 1970’s, there could be no suggestion as a matter of fact either.

31. When it came to the Judgment, the defendant was somehow said to be claiming that he and his family have been occupying “the Site” since 1962 (see the Judgment at paragraph 1).  As defined in the Judgment, “the Site” was Lot 994 RP.  The defendant was eventually ordered to deliver up vacant possession “the Site” to the plaintiffs.  Such definition of “the Site” was adopted on appeal (see the Court of Appeal Judgment at paragraph 2).

32. On the face of it, the description in the Judgment of the extent of the defendant’s claim is at variance at the defendant’s actual pleaded case.  Eventually, the order for possession against the defendant also covered the entirety of Lot 994 RP, not just the portion of it that the defendant claimed to possess.”

The present application

11. Mr Choi is the son of Choi Senior and Madam Chan.  His application (for joinder and interim stay of execution) is supported by an affirmation in which he deposed to the fact that:-

(a) He is aware of the previous unsuccessful application of his mother but his present application is premised on the fact that he is in actual occupation of the Premises.

(b) In about July 2013, he received a notice to quit from the bailiff requiring him to vacate the Premises by 3 September 2013 in pursuance of the writ of possession and fifa.

(c) He has been advised by his legal advisors to:-

(i) apply to join in this action as a defendant;

(ii) commence a fresh action together with his mother against the plaintiffs claiming adverse possession of the Premises; and

(iii) take steps to further appeal the Judgment to the Court of Final Appeal.

(d) On 24 July 2013, he commenced DCCJ 2698 / 2013 against the plaintiffs herein as defendants claiming a declaration that the title of the plaintiffs herein to the Premises has been extinguished and that Mr Choi and his mother (ie Madam Chan) have acquired a title by means of adverse possession.

(e) The Judgment (against the defendant) extends to the whole of Remaining Portion of Lot 994 and thus covers the Premises upon which he resides.  He says that since the Judgment has been affirmed by the Court of Appeal on appeal, only the Court of Final Appeal has the jurisdiction to vary the Judgment.  He is minded to instruct a Senior Counsel to advise him on the procedural steps required to further challenge the Judgment.  In the past months, he had been trying to raise money to cover the legal costs and that accounted for the delay in making the application.

12. The plaintiff has filed an affirmation in opposition in which they recounted the history of this action and the involvement or interest of Mr Choi in the unsuccessful application of Madam Chan.  They complain that the present application is a re-litigation of the issues finally determined by Judge Leung (which was upheld on appeal) and is an abuse of the legal process. 

13. Today, the legal representatives of both sides elaborated on their respective position as stated above.

Discussion

14. In my view, Mr Choi’s application is misconceived and totally unnecessary.

15. The fight in this action was between the plaintiffs and the defendant.  The issues identified by Judge Chan in paragraph 7 of the Judgment were:-

(1) whether the defendant has been in possession of Remaining Portion of Lot 994 for more than 20 years next before September 2003;

(2) whether the defendant had been in possession of Remaining Portion of Lot 994 under licence by or with the consent of the registered owner;

(3) whether the defendant had the intention to possess Remaining Portion of Lot 994 to the exclusion of the whole world, including the registered owner thereof; and

(4) the damages payable by the defendant for his occupation of the Remaining Portion of Lot 994, if adverse possession is not established.

16. The learned Judge found on the evidence (which was affirmed by the Court of Appeal on appeal) that:-

(1) The entire Remaining Portion of Lot 994 was in the exclusive possession and occupation of the defendant and his family by May 1967, which is more than 20 years before the commencement of this action in September 2003.

(2) She was not satisfied that the Deceased’s agent had granted a licence to the defendant in 1962 to occupy Remaining Portion of Lot 994.

(3) However, the defendant did not have the intention to possess Remaining Portion of Lot 994 by reason of his acknowledgment in 1970 (in terms of the Modification of Tenancy issued by the Yuen Long District Office on 8 May 1970 under Permit No. 16222) that the owner of the land was the Deceased.  In any event, the defendant’s use and occupation of Remaining Portion of Lot 994 after 1985 and 1986 was with the consent and permission of the plaintiffs (see the plaintiffs’ solicitors’ letter to District Lands Office consenting to the defendant’s application for temporary building licence which led to the issue of the waiver).  The defendant has thus not discharged his burden of proving that he had the requisite intention to dispossess the owner.

(4) The defendant is liable to the plaintiffs for means profits for the period between 4 July 2002 and 24 February 2010 in the sum of $593,911 and thereafter at $6,900 per month until delivery of vacant possession.

17. Although Mr Choi has not identified the legal basis of his joinder application in his summons, his counsel, Mr Ho, confirms that the test is none other than Order 15, rule 6(2)(b) of the Rules of the District Court.

18. There is no suggestion that Mr Choi is privy to the events and documents pertaining to the issues between the plaintiffs and the defendant recounted above.  Mr Ho is not suggesting that Mr Choi can offer any material evidence in those regards.  I do not see how it can be said, in terms of Order 15, rule 6(2)(b)(i), that Mr Choi’s presence in this action is necessary to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon.

19. The fight between Mr Choi and the plaintiffs is in DCCJ 2698/2013.  I am given to understand that that action is proceeding and has reached the stage of Case Management Conference.  Significantly, the plaintiffs herein (as the defendants in that action) has not applied to strike out that claim. Mr Choi and the plaintiffs will have to resolve their differences in that action.  I do not see how it would be just and convenient, in terms of Order 15, rule 6(2)(b)(ii), to allow Mr Choi and the plaintiffs to ventilate their disagreement in this action.

20. Mr Choi’s application to join in as a defendant is dismissed.

21. It appears that Mr Choi is most concerned that the plaintiffs, in enforcing the Judgment, may somehow evict him from the Premises before the disposal of DCCJ 2698/2013.  In my view, such fear is unfounded.

22. Judge Chan has indeed decided at paragraph 22 of the Judgment that:-

“…I am satisfied from the layout of the structures, and from the survey plans and sheets contained in the Survey Report that the entire Site was in the exclusive possession and occupation by Mr Chan [ie the defendant] and his family by May 1967…” (my emphasis)

23. Judge Chan’s decision was justified based on the evidence then available to her.  Mr Choi was not a party back then and did not participate at the trial.  The court was simply not aware of Mr Choi’s allegations.

24. The Judgment, including the order for possession, was made against the defendant in this case.  The sealed order for possession is in these terms:-

“The Defendant do deliver up to the Plaintiffs vacant possession of the land as described in the amended Statement of Claim as the Remaining Portion of Lot 994 in DD 115, Yuen Long, New Territories, Hong Kong (“the Site”) within 12 weeks from the date of service of the Order to be drawn up pursuant to the Judgment.”

25. Simply put, the Judgment is directed at the defendant and not against Mr Choi.  This may be contrasted with an order for possession made under Order 113 which is to enable the plaintiff in such a case to recover possession of the subject premises against those in occupation, in terms of Form No. 42A of Appendix A to the Rules of the District Court.  The plaintiffs have never invoked Order 113 in this action and the Judgment is directed at the defendant (as well as anyone claiming under the defendant).  Since Mr Choi’s claim is independent from that of the defendant, I am of the view that he is not bound by the Judgment.

26. Although the writ of possession issued on 17 November 2011 directed the bailiffs to “enter the said premises [defined as Remaining Portion of Lot 994 in DD 115] and caused the plaintiffs… to have possession of it”, it was made pursuant to leave granted by Master J Chow on 25 July 2011 which was in these terms:-

“IT IS ORDERED that the Plaintiffs do have leave to issue a Writ of Possession against the Defendant for the recovery of possession of the land known as the Remaining Portion of Lot 994 in DD 115, Yuen Long, New Territories and costs of this application be to the plaintiffs.”

27. When the Writ is read together with the order of Master Chow and properly understood in the context of an enforcement of the Judgment, it becomes clear that it does not have an effect of evicting Mr Choi, who has an independent claim against the plaintiffs.  Mr Chong (leading Ms Wong) does not dispute all these.

28. Mr Choi’s application for an interim stay of execution of the Judgment is therefore misconceived.

29. The above is sufficient to dispose of the application but I should say further that I agree with Mr Chong that the present application of Mr Choi is an attempt to re-litigate an issue finally determined by Judge Leung.

30. Mr Choi has quoted Order 45, rule 3 in his summons.  However, his counsel has advanced no argument based on that provision.  In my view, that is understandable having regard to Judge Leung’s observations in paragraphs 35 to 41 of his decision dated 26 July 2012.

31. The true basis of the present application seems to be the alleged claim of adverse possession by the Choi’s family in relation to the Premises. Madam Chan relied on the same factual scenario in her bid to join in this action.  Judge Leung dismissed that application and Madam Chan’s application for leave to appeal was dismissed by both Judge Leung and the Court of Appeal. Mr Choi’s present application is, in my view, an attempt to have a second bite of the cherry.  It goes without saying that any claim of adverse possession must be based on factual possession.  Mr Choi’s case (as disclosed in the pleadings in DCCJ 2698/2013) is premised on the occupation of his late father and Madam Chan.  Mr Choi has filed affirmations in support of his mother’s unsuccessful application.  When his mother’s attempt failed, he now mounts his own application seeking essentially the same relief.  That, in my judgment, is an abuse of process.

Conclusion

32. For the above reasons, I dismiss Mr Choi’s application with costs with certificate for one counsel, such costs to be taxed on District Court scale if not agreed on indemnity basis.

33. The simple reason for ordering indemnity costs against Mr Choi is that I have so far heard no justification for the present application, that is notwithstanding the short discussion before the argument.

34. Furthermore, Mr Choi has elected to proceed with this application notwithstanding the concession made by Mr Chong.  Taking all these into consideration, I consider that this is an appropriate case to order indemnity costs against Mr Choi.