CHOW SAI PING AND ANOTHER v. CHAN YAM KING

DCCJ 3416/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3416 OF 2010

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BETWEEN

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DECISION

1.  This is the Defendant’s application for leave to appeal against my Judgment of 30 November 2011, declaring that the Disputed Area (as defined in my Judgment) is part of the 1^st Plaintiff’s (Mr. Chow) property and granting an injunction in favour of Mr. Chow to compel the Defendant (Madam Chan) to pull down an Unauthorized Gate (as defined in my Judgment) installed at the doorway of Madam Chan’s property.

2.  In the decision below, I shall adopt the same abbreviations used by me in the Judgment.

3.  The basic facts of the case are sufficiently set out in my Judgment and I do not intend to repeat them here. Essentially, the main issue of the trial is whether the Disputed Area is part of No. 25 (owned by Mr. Chow) or the common area of the Building. Two plans, being the Assignment Plan and the Building Plan, were much referred to in the evidence and the submission made in the trial. Mr. Chow relied on `the Assignment Plan which purported to show that the Disputed Area was part of No. 25, whereas Madam Chan argued that the Building Plan showed that the Disputed Area was part of the common corridor. I ruled after trial that Mr. Chow has exclusive possession of the Disputed Area by virtue of the 1^st Assignment (and the assignments thereafter) and the Assignment Plan.

4.  Section 63A of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success. The Court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word "realistic" makes it clear that a fanciful prospect or an unrealistic argument is not sufficient: Ma Bik Yung v. Ko Chuen HCMP No. 4303 of 1999

5.  In the draft Notice of Appeal, Madam Chan has put forward substantially one ground of appeal, namely I was wrong in holding that the Disputed Area is part of No. 25 owned by Mr. Chow but not fall within the meaning of “common parts” of the DMC when Mr. Chow had not validly acquired the right to exclusive possession of the Disputed Area.

6.  Mr. Sham, Counsel for Madam Chan (Mr. Sham is not the Counsel appearing for Madam Chan in the trial) does not dispute that by the 1^st Assignment, the Developer purported to assign No. 25 together with the Disputed Area to Mr. Chow’s predecessor-in-title. However, he runs his argument like this. When the Developer of the Building executed the DMC on 2March 1966, it had not reserved to itself the right to exclusive possession of the Disputed Area. What it had allotted to itself was “Fifth Floors of Nos. 23 and 25 (formerly known as FOURTH FLOORS described in an Agreement Memorial No. 514851) [1^st Agreement]”. According to the 1^st Agreement, the description of property is “All Those said Flats 23 & 25 on the Fourth Floor….more particularly delineated on the Floor Plan annexed hereto and thereon coloured Pink [Building Plan]….”. In the Building Plan attached to the 1^st Agreement, the area coloured Pink does not include the Disputed Area. Since the Developer had not reserved its right to exclusive possession of the Disputed Area when it executed the DMC, the Disputed Area became common parts of the Building by virtue of Clause 4(m)(i) of the DMC. The Developer was thus incapable for conferring the right of exclusive possession in the Disputed Area to Mr. Chow’s predecessor-in-title and hence Mr. Chow.

7.  If I understand Mr. Wong, Counsel for Mr. Chow, correctly, his argument can be summarized into 2 main points. First, he submits that any areas not sold by the Developer should fall within the definition of “common parts” of the DMC. By virtue of the 1^st Assignment, the Disputed Area was expressly assigned by the Developer to the first purchaser of No. 25; thus the Disputed Area could not mean “common parts” of the Building. Secondly, the defence, in advancing its argument today, alleges that the Assignment Plan is incorrect and that the Building Plan should override the Assignment Plan. Such material factual allegations, Mr. Wong says, are never pleaded in the pleadings or raised in the trial by the defence. It thus follows that the defence is not entitled to raise them now at this late stage.

8.  To being with, I think Mr. Wong’s submission that the defence case has not been properly pleaded cannot be sustained, for the Building Plan is as a matter of fact mentioned and attached to the Amended Defence and Madam Chan has averred that the correct boundary of Nos. 23 and 25 was depicted therein (see para 10 and 11 and Annex I of Amended Defence). Further, Mr. Wong himself commented on the Building Plan in his closing submission as well (see para 20-27 of his submission).

9.  I must say that Mr. Shum has made a very tempting legal argument before me, an argument which, I should point out, was not put forward by the former Counsel appearing on behalf of Madam Chan in the trial. The closing submission made by the defence in the trial focused only on the following points: whether there was clear demarcation of the boundary of Nos. 23 and 25 in the Assignment Plan; whether the 1^st Assignment and the subsequent assignments in relation to Nos. 23 and 25 and the Assignment Plan were extrinsic evidence and if so, whether the same should be relied on, or whether the Building Plan instead should be relied on; and whether it was the intention of the parties in the DMC to create such landlocked situation should the Disputed Area was part of No. 25.

10.  Today, Mr. Shum has submitted a different angle in looking at the DMC, the 1^st Agreement (together with the Building Plan) and the 1^st Assignment (together with the Assignment Plan) to argue whether Mr. Chow is entitled in law to the exclusive possession of No.25, an angle which I cannot say there is no reasonable prospect of success in the intended appeal. Accordingly, I accept Madam Chan’s application and grant leave to appeal.

11.  I also order that costs of and incidental to this application be in the cause of the appeal with certificate for counsel.