CHU PO LING v. CHUNG CHUN SHING AND ANOTHER

DCCJ32/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 32 OF 2012

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REASONS FOR DECISION

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1. On 28 March 2014, I handed down judgment (the Judgment) after a trial of the action over 7 days, by which I gave judgment in favour of the plaintiff against the 1^st defendant and dismissed the 1^st defendant’s counterclaim[1]. In short, the action was concerned with the plaintiff’s claims for vacant possession, outstanding rent and mesne profits in respect of a parcel of agricultural land in the New Territories (the Lot) and the 1^st defendant’s counterclaim for possessory title. These reasons should be read to together with that Judgment.

2. On 27 May 2014, the 1^st defendant, who was previously represented in the action but was by that time acting as a litigant in person, issued a summons handwritten in Chinese seeking (1) leave to appeal against the Judgment; and (2) a stay of execution pending the intended appeal.  In support of the summons, the 1^st defendant filed a short affirmation annexing a document entitled “Note to Solicitors” dated 16 April 2014 (the Note).  The Note appears to be an advice drafted by Mr Andy Hung, counsel who appeared before me at the trial on behalf of the 1^st defendant, advising on the merits of the intended appeal.  I shall examine the contents of the Note in further detail below, but in short, Mr Hung advised that there were reasonable prospects of appeal.

3. On 17 June 2014, KC Ho & Fong filed a notice to act on behalf of the 1^st defendant, apparently upon the instructions of the Director of Legal Aid.  However, shortly before the hearing, on 6 November 2014, the 1^st defendant filed a notice to act in person and he appeared unrepresented before me.  Mr George Chu, counsel for the plaintiff, informed me that the plaintiff’s solicitors recently received notice that the 1^st defendant’s legal aid certificate has been discharged.

4. At the hearing, it was clear that 1^st defendant had substantial difficulties with his hearing and could not present his case himself.  I therefore allowed his wife, Madam Siu Hou Guen, to assist him as a Mackenzie friend.  Although the 1^st defendant and Madam Siu indicated to me that they did not understand the contents of the 1^st defendant’s summons or his affirmation, both of them confirmed that the 1^st defendant would rely upon the grounds contained in the Note.

5. At the end of the hearing, I dismissed the summons with costs, save that I ordered a short interim stay of execution of 28 days so as to enable the 1^st defendant, if he so wished, to renew his applications pursuant to RDC Order 58 r 2(4A) on an urgent basis before the Court of Appeal.  Mr Chu informed me that no steps had yet been taken by the plaintiff to enforce the Judgment in the light of the 1^st defendant’s pending application for leave to appeal.  I gave brief oral reasons for my decision at the hearing and indicated that I would reduce those reasons into writing, which I now do.

Leave to appeal

6. Under section 63A(2) of the District Court Ordinance (Cap 336), leave to appeal shall not be granted unless: (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.  In SMSE v KL [2009] 4 HKLRD 125, Le Pichon JA held at paragraph 17 that reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful” without having to be “probable”.

7. On the basis of the Note, the 1^st defendant suggested that there were reasonable prospects of successfully challenging the Judgment on two principal grounds: (1) that the decision of the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-1998) 1 HKCFAR 55, which I had applied in the Judgment,should be revisited having regard to the subsequent dicta of Lord Browne-Wilkinson in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 438E-G; and (2) my finding that the 1^st defendant (or Madam Siu on his behalf) had in fact paid rent at various intervals during the period in which he claimed adverse possession of the Lot was wrong.

8. At paragraphs 30 to 35 of the Judgment, I noted the apparent divergence between Hong Kong and English jurisprudence on the question of the intention to possess, and if the result of this action were based upon the application of Wong Tak Yue alone, I would have granted leave in order that a higher court may consider whether the position in Hong Kongshould be reexamined.

9. However, as I explained in paragraph 61 of the Judgment, in the event I was wrong in my application of Wong Tak Yue, or if the principle in Wong Tak Yue were to be revisited, it was necessary for me to consider and make findings of fact as to whether any rent was in fact paid.  For the reasons set out in paragraphs 62 to 79 of the Judgment, I reached the conclusion that the 1st defendant had in fact paid rent to the plaintiff (or her predecessors-in-title) in the period during which he claimed adverse possession.  As Mr Hung accepted at the trial, such a finding would be fatal to his client’s case.

10. My findings are set out in detail in the Judgment and the case turned primarily upon the credibility of the respective witnesses.  In the Note, various arguments are advanced as to why such findings should not be upheld, which I do not intend to set out here.  The principles upon which an appellate court would interfere with findings of fact are well established: Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657 at paragraphs 24 to 26.  Having considered the arguments in the Note and the additional submissions made by the 1^st defendant and Madam Siu at the hearing, I was not persuaded that there were reasonable prospects of appeal on the facts.  It followed that the application for leave to appeal fell to be dismissed.

Stay of execution

11. As I refused leave to appeal on the grounds that there were no reasonable prospects of appeal, the application for stay of execution pending the intended appeal must also be dismissed.  As Ma J (as he then was) explained in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 at §9, “The existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay.  In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted.”

12. That said, it is nonetheless clear that the court does have the power in a case such as the present to order a short interim stay of execution or a suspension of operation of its judgment for a short period in order to enable a party to renew his applications on an urgent basis before the Court of Appeal (see, for instance, TYG Capital Fund v Hilda Hor Yee Chan & Others (unreported) HCA 1585/2014, 25 August 2014, at paragraphs 13 to 15).  I am cognisant of the fact that immediate enforcement of the Judgment after my refusal of a stay may cause significant and potentially irremediable prejudice to the 1^st defendant (and his family) in the event that I am wrong.  I therefore proposed a short interim stay of execution of 28 days, bearing in mind that the 1^st defendant is unrepresented and may need more time than would otherwise be necessary to mount an application before the Court of Appeal.  Mr Chu fairly did not object to the making of such an order.

13. Costs should follow the event, and hence, I granted costs in favour of the plaintiff, with certificate for counsel.  Mr Chu invited me to order costs on an indemnity basis, having regard to the lack of merits of the applications.  Whilst I have found against the 1^st defendant, I did not think that there was anything to justify an order for indemnity costs. I therefore ordered that the plaintiff’s costs be taxed (if not agreed) on a party and party basis.