TANG MAN CHEE (鄧萬治) as The Personal Representative of the Estate of Tang Kwong Ah (鄧光亞), deceased v. LO CHUN

DCMP 3363/2016

[2021] HKDC 1586

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3363 OF 2016

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DECISION

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INTRODUCTION

1.  This is Lei Cuiye’s, the 2^nd named personal representative of the estate of Lo Chun, application by summons filed on 31 August 2020 for leave to appeal against my judgment dated 7 August 2020 (“the Judgment”).  Unless otherwise stated, I will adopt the same abbreviations and nomenclatures as used in the Judgment.

2.  The hearing of the summons was originally fixed on 22 February 2021.  I decided to vacate the hearing date and deal with LCY’s application by way of paper disposal.  I directed the parties to file their written submissions.

3.  The concluding order from the Judgment was as follows:-

(a)  The defendant do deliver vacant possession of the Encroached Area of the Premises to the plaintiff within 28 days as more particularly indicated in Appendix A to the Statement of Claim.

(b)  The defendant do pay nominal damages at the rate of HK$1 per year from the date of the Originating Summons on 8 November 2016 until the date of delivery of vacant possession.

(c)  The counterclaim be dismissed.

(d)  Costs order nisi that the defendant do pay the costs of this action (including the costs of defending the counterclaim and all costs reserved), to be taxed if not agreed, with certificate for counsel.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.

PRINCIPLES FOR GRANTING LEAVE TO APPEAL

4.  Under section 63A(2) of the District Court Ordinance, leave to appeal shall not be granted unless:-

(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.

5.  In the case of SMSE v KL [2009] 4 HKLRD 125, Le Pichon JA said this in paragraph 17 of the judgment:-

“Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful” without having to be “probable”.”

6.  Paragraph 59/2A/4 of Hong Kong Civil Procedure 2021 also refers to the threshold for granting leave to appeal:-

“… In KNM v HTF (unrep., HCMP 288/2011, [2011] HKEC 1210), the Court of Appeal (at §9) confirmed that “The relevant test of whether an appeal has a reasonable prospect of success under section 63A [District Court Ordinance], is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’.  It was insufficient to show that the appeal was “merely arguable” and “not fanciful” for the court to be satisfied that it had a reasonable prospect of success …”

7.  With such principles in mind, I proceed to consider the grounds raised by LCY in her draft Notice of Appeal.

GROUND 1 – TRIAL JUDGE’S ACCEPTANCE OF TSY’S EVIDENCE

8.  LCY’s 1^st ground is that I erred in accepting the evidence of TSY without reservation and I failed to analyse or consider his personal commercial interest in the outcome of these proceedings. TSY admitted in evidence that he had the intention to rent Lot 917 from TMC if TMC could recover the land from LC.

9.  In paragraphs 59 and 60 of the Judgment, I already stated my reason for accepting TSY’s evidence even when TSY might have an interest in the outcome of these proceedings.  Whether to accept a witness’s testimony is a matter for the trial judge.  LCY’s complaint on this aspect is not a sufficient ground.

10.  If LCY is genuinely of the view that a witness’s testimony should not be accepted because he might have an interest in the outcome of the proceedings, I am puzzled that LCY’s legal representatives did not submit to the court that the testimonies of the 2 defence witnesses CAP and LCY should also be rejected on the ground that LC bequeathed Lot 917 to them as tenants in common in equal shares.

GROUND 2 – TRIAL JUDGE’S FINDING ON STARTING TIME OF LC’S OCCUPATION

11.  LCY’s 2^nd ground is that I erred in relying on TSY’s evidence and concluded that LC did not start occupying the Enlarged Hut on Lot 917 until 2006.

12.  In paragraphs 57 and 58 of the Judgment, I already explained why I accepted TSY’s version that LC only went into occupation of the Enlarged Hut on Lot 917 in 2006 or thereafter.  TSY could not tell much about the situation of Lot 917 before his own occupation of Lot 789 in 2005-2006 which was within 10-15 minutes walking distance.  But TSY only saw LC for the first time in 2006.  If LC had occupied the Enlarged Hut as early as 1983, there would be no reason why TSY did not see her in 2005 when he went to Lot 789 to investigate the incidents of theft of electricity for 3 to 4 times.

13.  In any event, LC’s version that she started occupying the Enlarged Hut in 1983 was contradicted by other evidence as described in paragraphs 61, 62, 63 and 64 of the Judgment.  The defence has offered no reasonable explanation for such contradictions.

GROUND 3 – TRIAL JUDGE’S FINDING ON STRUCTURES S1, S2 & CA1

14.  The 3^rd ground of LCY is that I erred in not accepting that the improvement works to structures S1, S2 & CA1 in 1991, 2002 and 2005 respectively were carried out by LC.

15.  I already addressed this issue in paragraphs 82, 83 and 84 of the Judgment.  There is insufficient evidence to support the conclusion that the improvement works were done by LC.  Even LC did not say so in her own affirmation.  Besides, S1, S2 and CA1 only occupied a small corner on the western side of Lot 917.  Such improvement works cannot be representative of the whole Lot 917 and cannot lead to the conclusion that there was adverse possession.

GROUND 4 – TRIAL JUDGE’S FINDING OF ABANDONMENT FROM 1991 TO 2005

16.  The 4^th ground of LCY is that I erred in relying on the lack of farming pattern from 1991 to 2005 to conclude that Lot 917 was abandoned and not occupied by LC.

17.  This issue was already addressed in paragraphs 66 and 67 of the Judgment.  My conclusion that Lot 917 was abandoned and left vacant from 1991 to 2005 was based on the surveyors’ reports and their common view.  Both the plaintiff and the defendant agreed that there was no need to call the surveyors to testify at trial.  There was simply no challenge to the surveyors’ observation and conclusion by the defendant.

GROUND 5 – TRIAL JUDGE’S FAILURE TO CONSIDER OTHER EVIDENCE OF ADVERSE POSSESSION

18.  LCY’s 5^th ground is that I erred when I just considered enclosed fencing as evidence of adverse possession but failed to consider other evidence of adverse possession like the keeping of dogs, the presence of a drug addict and the acts of evicting or excluding others from the Encroached Area on Lot 917.

19.  In my view, LCY’s 5^th ground is misconceived.  Even LC in her own affirmation did not mention that she was keeping dogs on Lot 917 and that she relied on this as evidence of adverse possession.  LC never said in her affirmation that the man whom TSY saw in 2005 and believed to be a drug addict was occupying Lot 917 as her agent.  In paragraph 9 of the Defence & Counterclaim and paragraph 6 of LC’s affirmation, it has been pleaded that LC had evicted others from Lot 917 since 1983.  But there are no particulars given.  The evidence of the defence witnesses LCY and CAP does not cover the aforesaid aspects at all.

20.  As such, there is simply no evidential basis for the court to find that LC had been in adverse possession of the Encroached Area on Lot 917 by way of keeping dogs, by way of an agent’s occupation or by way of evicting others.

GROUND 6 – TRIAL’S JUDGE’S FAILURE TO FIND ADVERSE POSSESSION

21.  LCY’S 6^th ground is that I erred in my conclusion that the improvement works to structures S1, S2 and CA1 in 1991, 2002 and 2005 could not amount to adverse possession.

22.  This issue was already addressed in paragraphs 81 and 82 of the Judgment.  There is insufficient proof that the improvement works relating to S1, S2 and CA1 were done by LC.  In any event, S1, S2 and CA only occupied a small corner on the western side of Lot 917 and S1 did not wholly stand on Lot 917.  Improvement works done to S1, S2 and CA1 cannot be representative of the whole Lot 917.

23.  As to LCY’s complaint that I could have made a finding that she has been in adverse possession of the structures of S1, S2 and CA1 even if she has not been in adverse possession of the Encroached Area on Lot 917, one should note that LCY has never pleaded such an alternative case in her Defence & Counterclaim.

24.  In addition, according to the surveyors’ evidence, S1 did not wholly stand on Lot 917 while S2 and CA1 could not be seen from the aerial photo in 2005 anymore.

25.  As such, there is no basis for the court to make such an alternative finding as suggested by LCY.

LCY’S ATTEMPT TO ADDUCE NEW EVIDENCE

26.  In the summons filed on 31 August 2020, LCY also applies for leave to adduce the Affirmation of Lee Shek Pui filed on 31 August 2020 as evidence in support of her application for leave to appeal.

27.  Lee was not called as a defence witness at the trial.  Now in his affirmation, Lee says that LC has been in occupation of a metal hut and the nearby land as early as 1980s.  He has not specifically mentioned whether the land he refers to is Lot 917.

28.  Paragraph 59/10/8 of Hong Kong Civil Procedure 2021 states the relevant principles for admitting new evidence in an appeal hearing:-

“Applications for leave to adduce further evidence – Rule 10(2) was amended to delete restriction of “special grounds” criterion to “appeals from a judgment after trial or hearing of any cause or matter on the merits”. Accordingly, Ladd v Marshall conditions apply to all appeals, i.e. further evidence is admissible on an appeal only where such evidence:

(i) could not have been obtained at the trial with reasonable diligence;

(ii) would or might, if believed, have a very important effect on the mind of the tribunal; and

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

The Court adopts a strict approach in applying Ladd v Marshall:

“When a litigant has obtained a judgment in a court of justice … he is by law entitled not to be deprived of that judgment without very solid grounds” (Brown v Dean [1910] AC 373 at 374, per Lord Loreburn LC who adds that the maxim interest reipublicae ut finis sit litium applies).”

29.  In my view, if LCY is minded to adduce further evidence on appeal, she should convince the Court of Appeal at the hearing of the appeal if there is one.

30.  For my part, I would not allow LCY to rely on evidence of a witness not called at trial as a ground for seeking leave to appeal.  When I consider LCY’s application for leave to appeal, I should confine myself to the evidence heard at the trial.  If I follow LCY’s suggested course, there will not be any finality of the proceedings at this level.

31.  Even if I admit Lee’s affirmation, it would not advance LC’s case any further because Lee’s affirmation cannot dispel the objective evidence of the surveyors as outlined in the Judgment.

CONCLUSION

32.  As LCY has failed to convince me that she has a reasonable prospect of success if the case goes to appeal, her summons taken out on 31 August 2020 must be dismissed.

33.  Costs should follow the event.  I make a costs order nisi that LCY do pay the costs of summons taken out on 31 August 2020, to be taxed if not agreed, with certificate for counsel.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.