NG BING LIN v. CHEUNG SAU CHU AND ANOTHER

HCMP 3255/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3255 OF 2015

(ON INTENDED APPEAL FROM DCCJ 4397 OF 2012)

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J U D G M E N T

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

1. By a judgment handed down on 24 June 2015, Deputy District Judge Cheng (a) dismissed the 1^st defendant’s counterclaim for adverse possession of the 11 Properties (as defined); (b) ordered the 1^st defendant and the 2^nd defendant to deliver vacant possession of the 11 Properties; (c) restrained the defendants from trespassing on the 11 Properties; and (d) ordered the 1^st defendant to pay mesne profits of HK$150,000.00 to the plaintiff with interest and costs.

2. By another judgment dated 24 November 2015, the Judge dismissed the 1^st defendant’s application for leave to appeal.

3. The 1^st defendant now renews her application before the Court of Appeal.

Background

4. The plaintiff is one of the natural sons of the deceased Ng Yuk Ching (吳郁青) (“Mr Ng”).  The plaintiff is also one of the executors and beneficiaries of Mr Ng’s estate.  The 1^st defendant is a granddaughter-in-law of Mr Ng.  She is also one of the beneficiaries of Mr Ng’s estate.  The 2^nd defendant was absent throughout the proceedings below.

5. Mr Ng came from Mainland China in early 1900s.  Mr Ng had since made a fortune and became a wealthy man at his time.  Amongst others, he had acquired some pieces of land in Yuen Long which were then turned into a village called “吳家村” (Ng’s village).

6. Mr Ng had three wives and many children and grandchildren.  Two of his sons Ng Hok Luen (吳學聯) and Ng Kin Lin (吳建連) were in Mainland China at the time. They were not the natural sons of Mr Ng.  吳學聯 and his wife Tse Chiu Food (謝招福) (“Madam Tse”) had two sons, one of whom was Ng Chi Chun (吳志春). The 1^st defendant is the wife of吳志春.

7. In about 1950s, after the death of吳學聯 and due to poor living condition in China, Madam Tse brought her two sons to Hong Kong to seek Mr Ng’s help.  Mr Ng allowed them to stay in his villa called “郁清別墅” (“the Villa”) in Ng’s village.

8. By a document (Exhibit P1) dated 8 August 1959, Madam Tse and another daughter-in-law of Mr Ng’s were entrusted to manage and collect rents of those lands in Ng’s village.

9. In 1965, by marriage to 吳志春, the 1st defendant moved into the Villa and has since been residing in the Villa.  Over the years, the 1^st defendant has occupied various properties in Ng’s village which were all owned by Mr Ng.  Altogether, the 1^st defendant has occupied the 11 Properties in Ng’s village.  Some of the 11 Properties were leased out to generate rental income.

10. By the time Mr Ng passed away in 1949, he left the Villa and other landed properties to his descendants.  According to Mr Ng’s will, his estate was divided into 40 equal shares.  Each of his natural children was given 4/40^th equal shares.  The two Mainland sons who were not his natural sons were each given 1/40^th equal share.

11. The plaintiff is one of the executors and beneficiaries of the estate of Mr Ng.  In the course of administering the estate, the plaintiff demanded the 1^st defendant to deliver vacant possession of the 11 Properties.  The 1^st defendant refused to do so.

12. In 2012, the plaintiff commenced the proceedings below for recovery of possession of the 11 Properties.

13. The 1^st defendant raised the defence and counterclaim based on adverse possession, alleging that she had been in possession of the 11 Properties since 1965 (over 40 years).  As such, the 1^st defendant said the plaintiff is barred from recovering the 11 Properties by virtue of the Limitation Ordinance (Cap 347).

The Judge’s judgment

14. The Judge accepted the plaintiff’s case that the 1^st defendant had always been occupying the 11 Properties under permission and consent of legal owner (ie, Mr Ng).  The Judge was not convinced with the evidence before him that the 1^st defendant had proved on the balance of probabilities that she had the requisite intention to possess the 11 Properties to the exclusion of the legal owner and the world at large – an essential element to establish a case of adverse possession.

15. The Judge then entered judgment as he did.

Discussion

16. Under section 63A of the District Court Ordinance, Cap 336, leave to appeal should not be granted unless :

(1) the court is satisfied that the appeal has a reasonable prospect of success; or

(2) there is some other reason in the interests of justice that the appeal should be heard.

17. The test of whether an appeal has a reasonable prospect of success is whether the applicant can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospect that is more than “fanciful” but which does not need to be shown to be “probable” : see Hong Kong Civil Procedure 2016, Vol 1,paragraph 59/2A/4.

18. In the Draft Notice of Appeal, Mr Alan Ng, Counsel for the 1^st defendant, raised five grounds of appeal :

(1) The Judge has erroneously premised his finding on a case of “implied” licence not pleaded by the plaintiff because the plaintiff’s pleaded case has all along been a case of “express” licence and his case on “express” licence has been wavering and varying all the way.

(2) The Judge has erred in concluding that it was inherently implausible that Hastings (the solicitors’ firm that handled Mr Ng’s will) had done professionally unacceptable conduct in failing to inform Madam Tse of the contents of Mr Ng’s will.

(3) The Judge has erred in finding that Madam Tse was told the contents of the will upon the death of Mr Ng and that the 1^st defendant knew the contents of the will from Madam Tse before her death in 1967 was wrong.

(4) In coming to the conclusion that it was unreasonable for Madam Tse not to inform the 1^st defendant that she was entrusted to manage and collect rents of the land in Ng’s village, the Judge has failed to consider or adequately consider certain evidence (as particularized in the Draft Notice of Appeal).

(5) The Judge has erred in finding that the plaintiff was honest, reliable and unshaken is one which no reasonable tribunal of facts could have made.

19. In his written submissions, Mr Alan Ng focused principally on Ground 1.  It is however not necessary for us to dwell on counsel’s submissions on Ground 1 in detail.

20. The dispute between the parties on the 1^st defendant’s intention to adversely possess the 11 Properties was straightforward.  On the plaintiffs’ case, the 1^st defendant was permitted to use the 11 Properties after her marriage to Ng Chi Chun in 1965.  On the 1^st defendant’s case, she had all along been in adverse possession of the 11 Properties since 1965.  After carefully analyzed all the relevant evidence, the Judge did not believe that the 1^st defendant had any intention of adverse possession of any land in Ng’s village including the 11 Properties.  He found that she was under permission to use the 11 Properties.  Importantly, the Judge said :

“86. But the importance was that [the 1^st defendant] knew that Tse Chiu Fook, her mother-in-law, was permitted to manage and use the land in Ng’s village. With the knowledge in mind, together with particularly the fact that she was the granddaughter of Ng Yuk Ching, I do not agree that [the 1^stdefendant] (as well as Ng Chi Chun) would have intention of adverse possession of the 11 Properties.”

21. The findings that the 1^st defendant was permitted to use the 11 Properties and that she did not have the animus possidendi are what the Judge, as trial judge, was entitled to make on the evidence before him.  We can see no basis to disturb it on appeal.

22. Counsel’s reliance and submissions on implied licence are all misplaced for the simple reason that it was not what the Judge had found or based his finding on lack of animus possidendi on the part of the 1^st defendant.

23. In our view, Ground 1 is plainly unarguable.

24. Grounds 2 to 5 all concern various findings of fact made by the Judge.  We are not persuaded that the 1^st defendant has raised any reasonably arguable case that those findings were plainly wrong. Grounds 2 to 5 are not reasonably arguable either.

Conclusion

25. For the above reasons, the 1^st defendant has failed to satisfy us that her appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.  We accordingly dismiss her application for leave to appeal.

26. Since this application is totally without merit, we make an order under Order 59, rule 2A(8) of the Rules of the High Court, Cap 4A, that no party may under Order 59, rule 2A(7) requests the determination to be reconsidered at an oral hearing inter parties.

27. Costs should follow the event.  According to the plaintiff’s statement of costs, the plaintiff’s solicitors have incurred a total of HK$80,000.00 and counsel (of two years’ experience) has charged HK$70,000.00.  We think both solicitors’ costs and counsel’s fees are grossly excessive for such a simple application. Taking a global approach, we will summarily assess the solicitors’ costs at HK$30,000.00 and counsel’s fees at HK$30,000.00, totalling HK$60,000.00.  We accordingly order the 1^st defendant to pay the plaintiff costs in the sum of HK$60,000.00 forthwith.