TO HIN CHEUNG AND OTHERS v. CHAN WAI KEUNG

DCMP 1288/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1288 OF 2011

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D E C I S I O N

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1.  This trial involved the claim by the plaintiffs against the 2^nd defendant for the delivery of vacant possession of a portion of the property identified in the Statement of Claim, of which the plaintiffs are and were at all material times the registered owners. The 2^nd defendant's defence to the plaintiffs’ claim is adverse possession.

2.  After trial, I handed down my written judgment on 16 April 2013 ("the Judgment”) whereby I gave judgment in favour of the plaintiffs. I dismissed the counterclaim by the 2^nd defendant. I also made an order nisi as to the costs of these proceedings in favour of the plaintiffs.

3.  By summons dated 13 May 2013, the 2^nd defendant applies for leave to appeal against the Judgment. The proposed grounds of appeal and the orders which the 2^nd defendant intends to seek upon the appeal were set out in the draft Notice of Appeal annexed to the summons.

4.  Under section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success, or the matter in the interests of justice ought to be heard by the appellate court.

5.  There is no dispute between the parties that to meet the "reasonable prospect of success" test, an applicant for leave to appeal is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although the applicant does not have to demonstrate that the appeal will probably succeed (see: Wynn Resorts (Macau) SA v Mong Henry, HCA 192/2009, Judgment of Chu J (as she then was) dated 10 August 2009).

6.  In gist, the 2^nd defendant's complaint is that the court has failed to give "satisfactory" and/or "adequate" reasons for finding the 2^nd defendant not to be a reliable witness and making the consequential finding that the defence of adverse possession has not been made out.

7.  It is important to note that in paragraphs 6, 7 and 8(a) of the Amended Defence and Counterclaim, the defence by the 2^nd defendant was pleaded on the basis that he has been in continuous occupation of the land in dispute since the middle of 1997. It was not the pleaded case of the 2nd defendant that adverse possession was constituted by anything less than actual continuous occupation of the property. In support of that averment, the 2^nd defendant gave evidence at trial to the effect that he has been living in the property with his dogs every day from 1997 onwards. In paragraph 14 of the Judgment, I made the express finding that that evidence cannot be true.

8.  At paragraph 14 of the Judgment, I gave my reasons for making that finding. Mr Lawrence Ngai, acting for the 2^nd defendant both at trial and today, reminded me that the electricity account concerned was under the name of Mr Lee Siu Bun ("Mr Lee"). He also reminded me of the 2^nd defendant's evidence in re-examination to the effect that electricity charges were paid by Mr Lee and not the 2^nd defendant at the material times.

9.  In my view, that is neither here nor there. In paragraph 8(h) of the Amended Defence and Counterclaim, the 2^nd defendant averred that he had shared the expenses of operating the kennel with Mr Lee before he quitted (in or about July 2001). That must include electricity charges. In the circumstances, the 2^nd defendant was clearly in a position to (but did not) give an explanation as to why the electricity bill showed zero consumption of electricity at the property during the period from April 2000 to August/September 2001.

10.  In paragraph 15 of the Judgment, I gave my reasons for finding that the contemporaneous documentary evidence adduced by the 2^nd defendant at trial was unsatisfactory.

11.  At paragraph 16 of the Judgment, I pointed out the fact that without calling the persons named in his Witness Statement and his girlfriend as witnesses to speak on his alleged continuous occupation of the property, the 2^nd defendant's case remained uncorroborated by evidence from other witnesses and depended largely on his own credibility as a witness. By so stating, I did not lay down corroboration as a requirement, whether legal or otherwise. Further, it is clear that I was not drawing any adverse inference against the 2^nd defendant from the absence of the witnesses.

12.  For the reasons stated above, I am not satisfied that the intended appeal by the 2^nd defendant has a reasonable prospect of success. Further, there is no basis for giving leave under the second limb of section 63A(2) of the District Court Ordinance in the circumstances of the present case.

13.  Accordingly, the application under the summons is dismissed.

[Discussion re: costs]

14.  I order that the costs of the application be paid by the 2^nd defendant to the plaintiffs. Such costs to be taxed, if not agreed, with certificate for counsel.  The 2^nd Defendant’s own costs be taxed in accordance with the Legal Aid Regulations.