TSOI PING HUNG AND ANOTHER v. CHEUNG CHOW LAN AND OTHERS

FAMV No. 34 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 34 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 126 OF 2014)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ :

1.  We dismissed this application for leave to appeal after hearing counsel for the applicant, indicating that we would give our reasons for doing so at a later date, which we now do.

2.  The dispute in this action concerned two adjacent portions of land, known as Part 1 and Part 2 of a particular Lot and the issue was whether the respondents (defendants below) had acquired a possessory title of the land by reason of adverse possession.  In the course of the trial, the applicants (plaintiffs below) conceded the respondent’s claim to Part 1.  As to Part 2, the judge held that the applicants were entitled to an order for possession as against the respondents and that the latter’s counterclaim based on adverse possession failed.  In reaching that conclusion, the judge found that the respondents had not obtained factual possession of Part 2 before 3 August 2000 (that being the relevant date to acquire title by adverse possession) and he also found that the respondents had not formed the necessary intention to possess Part 2 before that date.

3.  On appeal, the Court of Appeal[1] unanimously allowed the respondents’ appeal holding that the judge’s findings on both factual possession and intention to possess were flawed.   The Court of Appeal dismissed the applicants’ application for leave to appeal to the Court of Final Appeal,[2] leading to this application before us.

4.  It was contended, on behalf of the applicants, that the proposed appeal raised three questions of great general or public importance.[3] It was also contended that leave on the “or otherwise” basis should also be granted.

5.  We were satisfied that none of the three questions put forward by the applicants is one of great general or public importance or is engaged on the proposed appeal and agree with the Court of Appeal that the three questions, although formulated as questions of law, are essentially no more than factual challenges to the Court of Appeal’s judgment.[4] As to Question 1 in the Notice of Motion, the principles on which the Court of Appeal may overturn a judge’s primary findings of fact are well settled and the question as framed begs the question of whether the Court of Appeal departed from those principles.  We see no basis for concluding that it did so.  Question 2 proceeds on a flawed premise, namely that the Court of Appeal held that the requirement for clear and affirmative evidence of exclusion of the world at large was abrogated in a case involving ground laying work.  Question 3 is clearly a question of fact dressed up as a point of law.

6.  In short, the proposed appeal is one which seeks to re-litigate questions of fact as points of law.  The Court of Appeal was right to hold that such an attempt to have a second appeal on the facts to this Court is not something that should be permitted under the guise of questions of law of great general or public importance.[5]

7.  Insofar as the application for leave to appeal is based on the “or otherwise” limb of section 22(1)(b) of the Ordinance,[6] it was clear that the applicants’ submissions in this regard were seeking to re-open disputes as to the weight of the evidence considered by the Court of Appeal in reaching its conclusion that the relevant primary findings of fact of the judge were plainly wrong.  We were not persuaded that, exceptionally,[7] leave to appeal under this limb is warranted.

8.  For these reasons, we dismissed the application with costs.

Mr CHAN Chi-hung SC and Ms Jo Siu, instructed by Jesse H.Y. Kwok & Co., for the Plaintiffs/Applicants

Mr Gerard McCoy SC and Mr Francis Yip, instructed by Ko & Chow, for the Defendants/Respondents