HARVEST GOOD DEVELOPMENT LTD v. SECRETARY FOR JUSTICE AND OTHERS

cacv 10/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 10 of 2007

(on appeal from HCAL NO. 32 of 2006)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from a judgment of Hartmann J given on 19 December 2006 whereby he disjoined the second and third respondents from this action.  The judge also made an order striking out the leave granted to the applicant to apply for judicial review against the second and third respondents.  At the conclusion of the hearing of this appeal, the appeal was dismissed with reasons to be given in writing.

Background

2.  The background to this matter is fully set out in the judgment below.  There is no need for the purposes of this appeal to repeat that.  It suffices to say that in 2000 the second and third respondents brought an action against the applicant for a declaration that they and their family had been in adverse possession of an area of land over which the applicant had paper title for more than 20 years.  Declarations were sought under section 7(2) and section 17 of the Limitation Ordinance Cap. 347.

3.  The matter was contested by the applicant on a number bases: not only on the factual basis as to actual possession but as to the effect of the New Territories Leases (Extension) Ordinance, Cap. 150 (“the Extension Ordinance”).  Those proceedings were ultimately decided in the Court of Final Appeal.  See Chan Tin Shi & Others v Li Tin Sung & Others (2006) 9 HKCFAR 29.  The court held that the Extension Ordinance had the effect of simply extending the leases in the New Territories, including in particular the lease held by the applicant.  There was no new grant nor any grant of any new estate.  On that basis the court held that since the estate or title was the same both before and after the coming into effect of the Extension Ordinance it remained barred.

4.  Whilst the Court of Final Appeal acknowledged that there was an anomaly in the operation of the Limitation Ordinance by reason of the fact that a landlord who was dispossessed of his land by a squatter would still be liable to pay rent to the government and, in paragraph 37 of the judgment, Lord Hoffmann referred to the changes which had been made to the Limitation Act in England and Wales which now required conditions to be satisfied before a squatter was entitled to claim land by reason of adverse possession.  As the opening sentence of that paragraph points out, the position in Hong Kong was the same both before and after the coming into force of the Extension Ordinance.

5.  In the action the applicant did not, in any way, seek to take the point that sections 7(2) and 17 of the Limitation Ordinance are inconsistent with the Basic Law and, in particular, Articles 6 and 105.  However, after the delivery of the judgment of the Court of Final Appeal this application was launched.  The first relief sought is a declaration that section 7(2) and section 17 of the Limitation Ordinance are inconsistent with Article 6 and Article 105 of the Basic Law and are therefore of no effect.

6.  In so far as that matter is sought to be taken up as against the Secretary for Justice on the basis that there had been no response to a demand that steps should be taken with a view to changing the law, no exception can be taken.  But the applicant sought to join in the second and third respondents.  It did so specifically in paragraph 4 of the relief which was sought which read:

“	….a declaration that the 2nd and 3rd respondents must compensate the applicant for the loss of its property right in relation to the said 5 Lots, the amount of which compensation shall correspond to the real value of the said 5 Lots at the time of their deprivation.”

7.  In brief the judge came to the conclusion based on the proposition that it was a fundamental precept that there must be finality in litigation, that these proceedings should not be permitted as against the second and third respondents.  He relied on is the well-known propositions set out in the judgment of Wigram V-C in Henderson v Henderson (1843) 3 Hare 100 at 115, the advice of the Privy Council given in the opinion of Lord Kilbrandon, in Yat Tung Investment Co. Ltd v Dao Heng Bank Ltd [1975] AC 581 and the judgment of Bingham MR in Barrow v Bankside Members Agency Ltd [1996] 1 ALL ER 981 at 983.

8.  In my view the judge was a correct in this.  In so far as concerns the second and third respondents, the point as to the inconsistency of the provisions of the Limitation Ordinance with the Basic Law could and should have been taken in the earlier litigation.  As Lord Hoffmann made clear, the position under the Limitation Ordinance was the same both before and after the coming into force of the Extension Ordinance.  There was thus no justification for waiting until an interpretation of that latter Ordinance was made by the Court of Final Appeal.

9.  In those circumstances I had no hesitation in dismissing this appeal.

Hon Le Pichon JA:

10.  I agree.