MAN TIN FOOK ALSO KNOWN AS MAN TIM FOOK, DECEASED, AS REPRESENTED BY MAN MAY YUNG UNDER O.15 R.15 RDC v. 梁根林AND ANOTHER

DCMP 1213/2014

[2019] HKDC 544

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1213 OF 2014

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DCMP 1214/2014

[2019] HKDC 545

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1214 OF 2014

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D E C I S I O N

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1.  On 21 November 2018, this Court handed down a judgment (“Judgment”) granting various reliefs in favour of the Plaintiffs in the 2 Actions and dismissing the Defendant’s (i.e. the 1^st Defendant in both Actions) counterclaim founded on adverse possession. On 18 December 2018, the Defendant filed in each Action 2 summonses for:

i)  leave to appeal to the Court of Appeal (“CA”) (“leave to appeal application”). The Defendant seeks an order for the Judgment be set aside and there be an order for a re-trial; and

ii)  leave to adduce new evidence in the intended appeal (“new evidence application”).

The Judgment

2.  It will be useful to recap briefly the parties’ respective cases and the reasons why the Defendant’s defence and counterclaim were dismissed by this Court before dealing with the 2 applications.

3.  The Defendant’s case is that his father and family settled on 2 pieces of land of about 20 lots which comprised the 3 lots in question in as early as 1976. The 2 pieces of land are referred to as the Smaller Lot and Larger Lot in the Judgment. The 1^st Lot is part of the Smaller Lot, and the 2^nd and 3^rd Lots part of the Larger Lot. In or about 1986, he and his family enclosed these 2 pieces of land by erecting 2 separate fences each as tall as 1.5 m high using iron/wooden poles and wire net. The family carried on farming activities such as culturing sandworms, growing flowers, rearing pigs and pigeons, etc on the land. Pig sheds and pigeon houses were built. The Defendant was born in late 1968. He therefore spent almost his entire life there. He said the building of the wire fence a strong manifestation of possession to the exclusion of the whole world. The Plaintiffs had no quarrel with him on this point[1]. He was asked to, and did, identify on a lot index plan the boundaries of the 2 pieces of land and the alleged fences. It is not denied that the Defendant did amend those boundaries once shortly before trial.

4.  The 1^st Plaintiff said the fence only appeared in mid-2013 because they did visit the 1^st Lot shortly before then and found no fence. Even when fence started to appear it was not a total enclosure. The surveyors engaged by her were able to complete a land survey, resulting in a survey map being lodged with the Lands Office.

5.  The 2^nd Plaintiff’s case was that on a date unknown to her, the Defendant entered into possession of the 2^nd and 3^rd Lots by erecting a fence.

6.  After hearing evidence and reading the experts’ joint report, this Court considered the Defendant untruthful and rejected his evidence totally. Based on the evidence adduced at trial, this Court believed the fence now found surrounding the 3 Lots a recent erection. The one surrounding the 1^st Lot was erected between March and July 2013; and there was only a partial fence next to the 2^nd and 3^rd Lots which was less than 12 years old from the date of action[2]. In any event the Defendant failed to discharge the burden of proving adverse possession of the 3 Lots in question against the Plaintiffs.

7.  In the Judgment, this Court considered the Defendant shifting, evasive and did not readily answer simple questions. His evidence was unreliable, implausible and did not sit well with objective, undisputed or indisputable evidence[3]. In rejecting the Defendant’s evidence as untruthful and concluding there was no such fence as alleged, this Court took into account, inter alia,

i)  he came to 2 different versions of the fenced off areas but he should not have got them wrong, particularly when there were clear landmarks on the land where he claimed to be his home for 40 years: see [67] of the Judgment;

ii)  he was bound by his evidence in DCCJ1806 which was inconsistent with what he had contended in the present Actions: see [68] to [72] of the Judgment;

iii)  his pleadings and evidence were inconsistent with each other: see [73] to [74] of the Judgment;

iv)  the existence of the fence is inconsistent with objective source materials. Only aerial photos and survey sheets were referred to in the analysis of the experts and this Court. The last survey sheet referred to was dated November 2013[4]. These survey sheets did not record existence of fence until 2001. Even so, it was only a small, localized one and was nothing compared to that described by the Defendantin term of scale and size[5]. Further, given its alleged existence for over 30 years and the continued updating of information reflected in these survey sheets, it should have been recorded in the survey sheets had the fence   really existed. Their absence was not a result of inaccessibility, cartographic omission or human error[6]. It could not have escaped attention of any land survey teams over more than 30 years[7]: see [76] to [93] of the Judgment; and

v)  The alleged existence of the fence, or its signs was inconsistent with aerial photos. Barren footpath, junction or land surface were revealed even the fence was said to have run over. No sign of any fence covered by vegetation was shown. Further, land surveyors could still manage to complete a land survey of the 1^st Lot: see [94] to [109] of the Judgment.

8.  It is therefore obvious from the Judgment that the Defendant failed because he was unable to discharge the burden of proving adverse possession by putting in clear and cogent evidence.

The New Evidence Application

9.  By the new evidence application, the Defendant seeks to adduce the Lot Index Plan No LIP119868P of Demarcation District No. 102 (“DD No. 102”) dated 23 November 2018 together with the Lot Index Plan Legend (“2018 Lot Index Plan”) to be used in the intended appeal.

10.  The 2018 Lot Index Plan relates to DD No. 102 where the 3 Lots are located. It is the most updated one according to the Defendant, and is published after the handing down of the Judgment. Despite the evidence from witnesses (from both sides) that fences of different scale were found on the Lots at different time, yet no fence was shown on the 2018 Lot Index Plan. It follows, the Defendant argues, the source material based on which this Court came to its conclusion is unreliable. The Judgment against him is unsafe.

11.  Counsel for both sides have no quarrel on the guiding principles for leave to adduce further evidence on appeal. They have been set out in Ladd v Marshall[8]. Further evidence is admissible on an appeal only where such evidence:

i)  could not have been obtained with reasonable diligence for the use of the trial;

ii)  if given, would probably have an important influence on the result of the case, though it needs not be decisive; and

iii)  is of a sort which inherently is not improbable.

12.  Since the 2018 Lot Index Plan is only available after judgment, it is natural that it was not available at the time of trial. The first condition is accepted to have been satisfied.

13.  As for the second condition, this Court considers it can be disposed of right the way.

14.  Firstly, it is the Defendant’s case that there existed the alleged fence since 1986. It is a question of fact, and the burden of proof is on the Defendant. After trial, this Court rejected the Defendant’s evidence in its entirety. Taking his evidence as a whole, even though the source materials are to be ignored, this Court’s conclusion will remain unchanged. He is still an untruthful witness and his evidence must be rejected (see the grounds in [7] above).  The additional evidence could not change this Court’s primary conclusion about his credibility and his evidence being unreliable.

15.  Secondly, the Defendant must have misconceived the sort of source materials analyzed by the experts and referred to by this Court. Apart from aerial photos, the other source material relied on in the Judgment is the survey sheets, not the lot index plans as the Defendant now seeks to put in. Although the experts did refer to the lot index plan, it was referred to for the purpose of the boundaries of the lots in question. It is observed a lot index plan shows mainly the designation of lot numbers, as the description of the plan suggests, their relative location to each other and their boundaries[9] but not land use features. On the other hand, survey sheets contain more surveyed land use features/structures (agreed between counsel at trial). These features include, e.g. footpath, ponds, temporary structures but not lot boundaries. That is why the experts have to super-impose the land boundaries obtained from lot index plan onto the survey sheets (and also the aerial photos) in order to see what land use features could be found within the lots in question. They analyzed the survey sheets, not lot index plans. So a lot index plan is of very little use, if not at all useless, on the existence or otherwise of the alleged fence.

16.  Thirdly, as pointed out by Mr Siu, the Defendant’s stance is, and this Court accepts, difficult to follow and is contradictory. The Defendant asserted that despite the fact there was evidence suggesting the existence of the fence and accepted by this Court as recent erection, the latest 2018 Lot Index Plan shows nothing of this sort. He deposed in paragraph 10 of his first affirmation to the effect the plan is unreliable[10]:

“… This shows that after a lapse of time of over 6 years, the survey sheet in question still could not reflect the fence erected at the 1^st Lot and Lot 880 in D.D, 102”

17.  Implicit in the above is that the contents of 2018 Lot Index Plan are inaccurate as regards land features, e.g. fence. It follows it should not be referred to. It is understandable the said plan helps if it shows the fence. However, absent such fence, this Court cannot understand to what extent it helps. It is at most neutral, if not operating against the Defendant’s case because it is consistent with a case of no fence. This argument of the Defendant shows he (or perhaps his counsel) has misconceived the sort of source materials relied on by the experts and the Court.

18.  The Defendant fails to meet the second requirement of Ladd v Marshall (supra). Given the above analysis, the contents of the 2018 Lot Index Plan as regards the existence or otherwise of the fence cannot be presumed to be believable. The 3^rd condition is also not satisfied. The new evidence application must fail.

Leave to Appeal Application

19.  Section 63A of the District Court Ordinance (“DCO”) stipulates: -

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—

(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.”

20.  The relevant test of whether an appeal has a reasonable prospect of success under section 63A of the DCO is whether the applicant can show that he has an arguable case with reasonable chance of success on appeal. In other words, it means an appeal with prospect that are more than “fanciful” but which do not need to be shown to be “probable”: see the CA decision in KNM v HTF per Fok JA (as he then was) at [9] [11]. The same test is consistently applied by the CA: see [9] of Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi & Others[12] in which Hon Poon JA stated:

“It is well established that leave to appeal under section 63A(2) is not lightly granted. Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable: see SMSE v KL [2009] 4 HKLRD 125, per Le Pichon JA at [17].”

21.  The above test will be applied to the present case.

22.  The Defendant advances 3 grounds of appeal. They are, so far as can be discerned form the draft notice of appeal and Mr Lam’s submission, are as follows:

i)  Ground 1: Since experts of the parties were not called to give evidence at trial, the Court erred in law in interpreting or accepting the Plaintiff’s submission on the survey sheets and aerial photos which should be a matter for experts. The Court also erred to accept, even with counsel’s consent, the mechanism of update of the survey sheets, which again should be a matter for the experts, and thus the Court’s conclusion is wrong or unsafe;

ii)  Ground 2: The Court erred in concluding that the Defendant had given 2 versions of lot boundaries when the effect of the amendment to pleadings is that such amendment takes effect from the commencement of action, and thus there is always only one version advanced by the Defendant;

iii)  Ground 3: The Court erred to doubt the date imprinted on the Defendant’s photo the authenticity of which was not in dispute and fabricated of the photo was not pleaded by the Plaintiffs: see [105] of the Judgment.

Ground 1

23.  I consider this ground of appeal misconceived. As can be seen from the Judgment and above, this Court was comparing the Defendant’s evidence asserting the existence of the alleged fence since 1986 against the undisputed evidence of the experts and the source materials which did not suggest a fence as from 1986. As pointed out by Mr Siu, this is an evaluation exercise which this Court is fully entitled to do.

24.  Further, one of the agreed concluding statements of the 2 experts in their joint report about the 1^st Lot after consideration of the relevant source material was as follows[13]:

“Also, no fence was found on the Survey Sheets. This situation could similarly not be ascertained if it is due to the disregarding of the fence as a too flimsy object on the Survey Sheet or due to the non-existence of the fence.”

25.  Implicit in the experts’ joint conclusion is that if the object is not too flimsy, they would not have been disregarded. This is exactly the conclusion now reached by this Court, given the considerable size and duration of its alleged existence. The alleged fence is something which any reasonable land survey team could not have overlooked as a too flimsy object over 30 years. This Court fails to see why it cannot reach the conclusion as it did.

26.  As for the 2^nd and 3^rd Lots, there was simply no mention of such fence in their conclusion, suggesting the 2 experts were unable to come to any view at all as to the existence of the alleged fence by the Defendant.

27.  This Court cannot see there is any prospect of success on this ground.

Ground 2

28.  Although the issue(s) raised before amendment is/are superseded and the newly pleaded case takes effect from the date of the original document, there is nothing stopping the Plaintiffs from testing the Defendant’s credibility by referring to his own inconsistent pleaded cases in cross-examination. It has to be remembered further and better particulars (“FBP”) are part of pleadings. After the CJR, they have to be verified by a statement of truth: see O.41A, r.4(1) of RDC. Accordingly, the primary facts set out in the FBP originally filed with the Court on 10 April 2015 are still “material facts” which have been duly verified by the Defendant despite the amendment filed with Court on 16 March 2017 (the same for the 2 Actions).

29.  Paragraph 2 of the Practice Direction 19.3 expressly requires that if a document verified by a statement of truth is amended, the previous statement of truth in respect thereof shall NOT be deleted. The reason is obvious. Verified factual matters cannot be lightly brushed aside as if it had never been said/happened. The Court is fully entitled to draw adverse conclusion against the maker of these inconsistent statements in the absence of a satisfactory explanation. It is exactly the case here.

30.  This Court cannot see there is any prospect of success on appeal relying on this ground.

Ground 3

31.  Given the overwhelming evidence suggesting the Defendant being dishonest, this Court cannot see why this Court cannot disbelieve what the Defendant has put in. This Court accepts Mr Siu’s submission that it is not a case in which fraud of the Defendant was alleged, and therefore it has to be particularly pleaded. It is a case in which the Defendant is put to strict proof of adverse possession. The date of the photo could not be taken as accepted.

32.  Even if this Court were wong and the date of the photo did show the date of its taking (i.e. 15/7/2012), it cannot help establish the Defendant having erected the fence since 1986 or he had been in exclusive possession of the Lots in question for at least 12 years. Neither had it got any bearing on the 2^nd Action as the photo is related to the 1^st Action only. This ground of appeal has absolutely no prospect of success at all.

Disposition and Order

33.  For the reasons set out above, the Defendant’s leave to appeal and new evidence applications must be dismissed. There is no reason why the usual rule of costs to follow the event should not apply. Accordingly, I make a costs nisi that the Defendant do pay the Plaintiffs costs of these 2 applications together with certificate for counsel, such order be made absolute in 14 days if no application is made to vary it.