LIN JIAN CHUN v. LIN XIU MEI AND OTHERS

HCMP 157/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 157 OF 2012

(ON AN INTENDED APPEAL FROM DCCJ NO 2491 OF 2008)

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BETWEEN

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DECISION

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Hon Yuen JA:

1.  I agree with Hon Kwan JA's decision.

Hon Kwan JA:

2.  This is an application made by the 1^st and 2^nd defendants in the proceedings below (DCCJ 2491/2008) for leave to appeal to the Court of Appeal against the judgment of Deputy District Judge Clement Lee on 13 July 2011 (“the Judgment”). The judge refused leave to appeal to this court in a decision handed down on 28 November 2011 (“the Decision”).

3.  There is annexed to the summons seeking leave to appeal a draft Notice of Appeal of 18 pages. This draft Notice of Appeal, although revised after the Decision, is substantially the same as the draft considered by the judge in some detail in the Decision.

4.  The defendants served the skeleton arguments of their counsel, Mr Wallace Cheung, on 20 January 2012. The plaintiff served the skeleton submissions of his counsel, Mr Patrick Szeto, on 9 February 2012. I will treat the respective submissions of counsel as the statement in support of the application and the statement in opposition. Pursuant to the powers of this court under Order 59 rule 2A(5)(a) of the Rules of the High Court, this application is determined on the basis of the statement in support and the statement in opposition without an oral hearing. I have, insofar as necessary, considered relevant documents filed in the court below referred to in the Judgment, the Decision, the statements in support and in opposition.  

5.  Under section 63A(2) of the District Court Ordinance, Cap. 336, leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

6.  The plaintiff brought this claim as the registered owner of Lot No 427 in Demarcation District No 51 North in Sheung Shui, New Territories (“the Land”) for recovery of possession and arrears of rent or mesne profits for the use and occupation of the Land. The defendants denied there was any relationship of landlord and tenant and alleged that the plaintiff’s predecessor in title, Liu Tso Hung, was dispossessed by adverse possession of the late Ho Lai Biu (“the late Mr Ho”; the 1^st defendant’s husband and the 2^nd defendant’s father) since 1976 for more than 20 years, alternatively by the adverse possession of the 1^st and 2^nd defendants since February 1995 for more than 12 years.

7.  After a four-day trial, the judge gave judgment for the plaintiff for vacant possession, arrears of rent and mesne profits and dismissed the defendants’ counterclaim. He held on the evidence that the late Mr Ho and his family had not been in exclusive and continuous possession of the Land for more than 20 years before the plaintiff brought proceedings in March 2008, nor had the 1^st and 2^nd defendants been in exclusive and continuous possession of the Land for more than 12 years prior to March 2008. He found on the evidence that the late Mr Ho and the 1^st defendant had been in possession of the Land as the tenants of the plaintiff’s predecessor in title, and later of the plaintiff, and that the 2^nd defendant and his family were occupiers by virtue of the 1^st defendant’s status as the tenant. The judge also found in favour of the plaintiff that the 1^st defendant did promise to the plaintiff in November 2004 she would continue to pay rent. He accepted the evidence of the plaintiff’s three witnesses and rejected the evidence of the 1^st and 2^nd defendants and their witness. Hence, the defendants failed to establish on the evidence both factual possession and the requisite intention to possess the Land to exclude the world at large including the true owner for adverse possession to succeed.

8.  Having failed on the evidence at the trial, the defendants in their intended appeal sought to impugn the judge’s findings by raising various legal arguments not canvassed at the trial. These arguments were considered by the judge in the Decision when he refused leave to appeal. 

9.  As I am in agreement with the Judgment and the Decision, which have addressed to a very large extent the contentions of the defendants’ counsel, it is not necessary for me to go over the same matters at length and I can deal with the proposed grounds of appeal much more concisely.

10.  In his skeleton arguments, Mr Cheung dealt with the 17 grounds of appeal under five broad headings. I will follow the same scheme.

Exclusive possession and intention to possess

11.  Mr Cheung’s argument here is that as the plaintiff has pleaded and alleged that the Land was let to the late Mr Ho and later the 1^st defendant as tenants, the judge should have found that the late Mr Ho and his family had been in exclusive possession as they were entitled to exclusive possession as tenants. This argument was rejected by the judge for the reasons given in paras 4 to 13 of the Decision, with which I agree. I agree also with Mr Szeto’s submission that it is inherently inconsistent for the defendants to deny there was a relationship of landlord and tenant and yet to rely on the plaintiff’s pleading of a tenancy to support their case that there was exclusive possession for the purpose of adverse possession. As Mr Szeto has put it, exclusive possession under a tenancy is only an entitlement in law; whether a tenant did enjoy exclusive possession of the land in question is a question of fact and an entirely different matter. The judge made a finding of fact that the defendants had not been in exclusive and continuous possession for the requisite period, whether on their primary case or alternative case.

12.  Mr Cheung contended that the tenancies allegedly entered into by the plaintiff’s predecessor in title were void for uncertainty. I agree with the judge’s reasoning in para 21 of the Decision that the case of World Food Fair Ltd v Hong Kong Island Development Ltd (2006) 9 HKCFAR 735 would not assist the defendants.

13.  Mr Cheung further relied on Ho Hang-wan v Ma Ting-cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649 at 654D to E for the proposition that an intention to possess may be inferred or presumed from the fact of exclusive possession by unequivocal acts. That proposition has no application here on the finding of fact by the judge that the defendants had failed to establish exclusive and continuous possession for the requisite period.

Section 3 of the Conveyancing and Property Ordinance, Cap 219

14.  Mr Cheung invoked this statutory provision to contend that the plaintiff cannot rely on the two previous tenancies alleged by the plaintiff from the early 1970s to 1993 and from 1993 to 2000 to rebut the defendants’ counterclaim on adverse possession, as these tenancy agreements were not in writing, nor was there any memorandum or note in compliance with the statutory requirement. He submitted a draft amendment to the defence of the defendants to plead the reliance on section 3 of Cap 219 and cited Take Harvest Ltd v George H Liu [1993] AC 552 as an example why such late amendment of pleading should be allowed to raise this plea.

15.  The judge dealt with this argument in paras 15 to 20 of the Decision. As stated by the Privy Council in Take Harvest Ltd, the circumstances in that casewere exceptional. I agree with the judge in para 16 that the present case does not have special features to justify the exercise of discretion to permit a belated amendment after trial, having regard to the objectives of the Civil Justice Reform. It is unlikely that the appeal court would exercise its discretion to allow such an amendment to the pleadings to be made in the present climate.

16.  Further, as the judge has pointed out in paras17 to 19, by virtue of the provisions in section 4(2)(d) and 6(2) of Cap 219, section 3(1) would have no application to the oral yearly tenancy which was entered into with the plaintiff’s predecessor in title after 2000.

The plaintiff’s action based on non-payment of rent

17.  Mr Cheung argued there was no basis for finding that there was a landlord and tenant relationship between the plaintiff and the 1^st defendant during 2006 to 2008, so the judge was wrong to give judgment to the plaintiff premised on the 1^st defendant’s failure to pay rent during this period.

18.  I agree with Mr Szeto that the above contention does not avail the defendants. Once it is accepted that the plaintiff is the registered owner of the Land and the counterclaim for adverse possession fails, the plaintiff would be entitled to the relief for recovery of vacant possession and mesne profits for the occupation of the Land, even if there were no tenancy as between the plaintiff and the 1^st defendant.

The 1^st defendant’s intention to pay rent

19.  The defendants’ complaint is that the judge should not have allowed the plaintiff to raise the issue that the 1^st defendant had promised in a meeting in 2004 or 2005 that she would be willing to continue to pay rent as this was not pleaded by the plaintiff. The judge dealt with this comprehensively in paras 26 to 29 of the Decision, with which I am in complete agreement.

20.  There is nothing in the contention that the judge had wrongly applied the proposition in Wong Tak Yue v Kung Kwok Wai & Anr (No 2) (1997-98) 1 HKCFAR 55 about statements of intention against the interest of an occupier.

Credibility

21.  The judge dealt with the contention he had not properly assessed the credibility of the defendants and their witness in para 25 of the Decision. On the well established principles, there is no reasonable prospect for the appeal court to interfere with his findings that the defendants and their witness were lacking in credibility.

Conclusion and orders

22.  For the above reasons, the threshold requirement for granting leave to appeal to the Court of Appeal is not met. I would dismiss the defendants’ application for leave to appeal. As the application is entirely without merit, I would make a further order pursuant to 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.

23.  I would make an order nisi that the defendants are to pay the plaintiff’s costs of this application, to be assessed on a gross sum basis. For the purpose of a gross sum assessment, I would direct the plaintiff’s solicitors to submit a skeleton bill within 14 days hereof and that the defendants do have leave to respond within 7 days thereafter. As the defendants are legally aided, I would order their own costs be taxed in accordance with the Legal Aid Regulations.