THE INCORPORATED OWNERS OF NO. 202 PORTLAND STREE v. 黃愈惜 AND ANOTHER

DCMP 3097/2019

[2021] HKDC 979

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3097 OF 2019

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BETWEEN

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DECISION

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1.  At the conclusion of the hearing on 24 June 2021, I dismissed the 1^st defendant’s appeal against the Order of the Master made on 26 March 2021 granting an Order of possession against her with costs (“the Decision”). The reasons for the Decision were handed down on the 29 June 2021 (“the Reasons”).

2.  By a summons dated 7 July 2021, the 1^st defendant now applies for leave to appeal against the Decision to the Court of Appeal (“the Summons”).  I considered it appropriate to deal with the Summons on paper without an oral hearing and so directed.

3.  Leave to appeal will not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard (Section 63A(2) of the District Court Ordinance Cap 336).  It is settled law that to amount to a reasonable prospect of success, the prospect of succeeding must be reasonable and therefore more than fanciful, without having to be probable; while it is insufficient to show that the appeal was “mere arguable” and “not fanciful” (SMSE v KL [2009] 4 HKLRD 125, KNM v HTF (unrep HCMP 288/2011) and Hong Kong Civil Procedure 2021 §59/2A/4).

4.  The ground of the proposed appeal was stated in the Summons thus:-

“The Grounds of the proposed appeal are mainly there is dispute on fact on whether or not the 1^st Defendant has acquired right of adverse possession against the Plaintiff on the roof structure in issue (details see D1’s Submission attached hereto)”

5.  In the attached submissions, 3 points were contended, that:-

(a) The 1^st defendant’s purchase “is a concrete token of satisfaction of all the requirements [of adverse possession].  The predecessors had also traded the structure one after the other as if it belonged to them, which was conduct undoubtedly adverse to the rights of the plaintiff and/or others”;

(b) O 113 is applicable to simple cases, and where only a dispute of fact is required to be raised, and not the adducing of evidence.  “D1 has not been allowed to properly introduce oral evidence to support her allegation of disputed fact of adverse possession.  In the interest of justice, the case should be ordered to be tried via ordinary proceedings where she has the opportunity to provide oral evidence …”; and

(c) “… currently numerous roof squatters exist in Hong Kong and many developers are endeavouring to use fast methods to oust those roof squatters at the expense of justice … A decision from the Court of Appeal in respect of the use of Order 113 is of great value to the Society one way or the other.”

6.  I take it that the 1^st defendant is arguing that this court has mis-evaluated the evidence and mis-comprehended or mis-applied the principles applicable to O 113 proceedings, and that it is in the interest of justice that the proposed appeal be heard by the Court of Appeal.

7.  In paragraphs 8 and 9 of the Reasons, I have set out the approach and principles applicable when considering an application under O 113, and have applied them in considering the 1^st defendant’s present appeal.  It is not said by the 1^st defendant in which specific regard this court has erred.

8.  The 1^st defendant cited in support §113/8/3 of the Hong Kong Civil Procedure 2021: “Limits on scope of Order – Where the existence of a serious dispute is apparent to a plaintiff he should not use this procedure (Filemart Ltd v Avery [1989] EG 92)”, and said that the present case involved a serious dispute. 

9.  The plaintiff did not dispute the general principle that is stated in that paragraph, but disputed that there is a serious dispute here.

10.  Evidently, the court will have to look at each case in its own context to come to a view if there is indeed a serious dispute.  As said in the Reasons, the acid test for whether the jurisdiction conferred by O 113 should be exercised is whether the issue between the parties, be it one of fact or law, is one which the defendant is entitled to have sent to trial. (§113/8/10 Hong Kong Civil Procedure 2021).

11.  In §113/8/10, the editors further said “When considering an application under O 113, the applicable approach is not to be significantly different from the approach under O 14”, and the case cited was Karupayee Ammal v Moorthy Selvaraj (HCMP 1341/2019, unrep, 24 January 2020), which was the case referred to in some detail in paragraph 9 of the Reasons.

12.  Therefore, a defendant in O 113 proceedings not only need to merely raise an issue, but has the onus of persuading the court, including adducing evidence as is sufficient in discharging the onus, that the issue is triable in that (as said in the Reasons and in the context of this case) the 1^st defendant has a fair or reasonable probability of showing a bona fide claim for adverse possession.

13.  Having considered and analyzed all the evidence adduced, and for reasons expressed in the Reasons, I came to the conclusion that the 1^st defendant has failed to so persuade the court.

14.  The said onus being on her and after having been given ample time and opportunity, the 1^st defendant chose not to, or was unable to, adduce such sufficient evidence before the Master, and then before this court on appeal. It is idle and unmeritorious now to contend that this matter should be sent to trial for the 1^st defendant to “introduce oral evidence”.  It would have been unjust to the plaintiff, and wrong, if such contention were acceded to.

15.  The contention that the purchases alone are sufficient to raise a triable case on adverse possession is a rehash of the point made at the hearing.  I have given the grounds in the Reasons why I did not accept that contention.

16.  I therefore take the view that there is no reasonable prospect of success in the 1^st defendant’s proposed appeal.

17.  Lastly, as the Decision is fact sensitive and there is no dispute over the applicable principles of law, I would not begin to consider granting leave under the second limb of Section 63A(2).

18.  The 1^st defendant’s application for leave to appeal is accordingly dismissed with costs to the plaintiff.