YU SIU CHEUK v. REALRAY INVESTMENTS LTD

HCMP1144/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1144 OF 2009

(ON AN INTENDED APPEAL FROM HCA NO. 277 OF 2007)

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BETWEEN

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D E C I S I O N

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Extension of time to appeal

1.  The defendant is the registered owner of a piece of land in the New Territories known as Lot Nos. 574 and 575 in Demarcation District 121.

2.  By a writ issued on 7 February 2007 the plaintiff claimed that he had been in continuous occupation and possession of the land from 1979 onwards. He claimed that he had been in adverse possession of the land for a period of 20 years immediately preceding the issuance of the writ and he sought, among other things, a declaration that the title of the defendant in the land had been extinguished by virtue of section 17 of the Limitation Ordinance (Cap. 347). The defence was that the plaintiff only occupied the land without the consent of the defendant on a day subsequent to 31 July 1995.

3.  After a 10 day trial, Mr Recorder Shieh SC dismissed the plaintiff’s claim on 31 March 2009. The judgment was sealed on 4 May 2009.

4.  By a summons dated 19 June 2009 the plaintiff seeks leave to appeal out of time against the judgment.

Factors

5.  The Court will take into account the following factors in considering whether time should be extended:

(1) the length of the delay;

(2) the reason for the delay;

(3) the merits of the proposed appeal;

(4) prejudice to the defendant if extension of time to appeal is granted.

Length of the delay

6.  Under Order 59 Rule 4 of the Rules of the High Court the plaintiff had 28 days after the sealing of the order to appeal. Taking into account the stay of the proceedings for 42 days because of the plaintiff’s application for legal aid, the defendant accepted that the time for appeal expired on 9 June 2009. There is a short delay of 10 days.

Reason for the delay

7.  The plaintiff applied for legal aid to proceed with the appeal on 21 April 2009. Legal aid certificate was granted on 25 May 2009. Counsel was assigned to the plaintiff on 9 June 2009, the plaintiff’s notice of appeal was finalised on 16 June 2009, request to the defendant for consent to serve the notice of appeal was made by the plaintiff’s solicitors on 17 June 2009 and the present application was made on 19 June 2009 after the defendant refused to give its consent.

8.  Mr. Erik Shum, counsel for the plaintiff, accepted that the delay between 9^th and 19^th June 2009 was due to the fault of the plaintiff’s solicitors who had not made an application to extend time after they were assigned by the Legal Aid Department and before the expiration of the appeal period. Mr. Shum who did not appear at the trial, obviously required time to prepare the notice of appeal. The plaintiff’s solicitors ought to have applied for an extension of time earlier.

9.  In my view the plaintiff had given a reasonable explanation for the delay.

Merits of the appeal

10.  Prior to 1 July 1991 the period of limitation was 20 years. After that date the period is shortened to 12 years : see Limitation Ordinance (Cap. 347) section 38A(1). It is accepted by the plaintiff that since he claimed he had been in possession since 1979, the relevant period of limitation is 20 years.

11.  The Recorder disbelieved the plaintiff’s evidence that he had been in possession since 1979. On that basis he dismissed the plaintiff’s case.

12.  Mr. Shum argued that the Recorder was wrong to hold that the sole issue in this case was whether the plaintiff had proved that his occupation of the land commenced in late 1979 failing which that would be the end of the plaintiff’s claim. He argued that so long as the plaintiff had been in adverse possession for 20 years prior to the issuance of the writ it does not matter if he was unable to prove the actual date when he began his occupation of the land. He submitted that the plaintiff had pleaded that he took possession of the land since the winter of 1979 and subsequently had been in continuous occupation and possession of the land. In other words the Recorder was wrong simply to focus on the commencement date of the plaintiff’s possession and not to make any finding as to whether the plaintiff had been in possession for 20 years.

13.  Mr. Chan Chi Hung S.C. argued that it was all very well for the plaintiff to say that it was sufficient for him to establish that he had been in adverse possession for 20 years i.e. commencing from 1987 when he had not put forward any alternative case as to when he began his occupation on the land if it did not begin in 1979.

My view

14.  While it is true that the plaintiff claimed that he entered into possession in 1979, it was also an integral part of his case that since 1979 and up to the time of the issue of the writ he had been in exclusive possession of the land. Hence arguably it is not sufficient for the Recorder to dismiss the plaintiff’s case simply because he failed to prove that he entered the land in 1979 but there should also be a determination that he was not there at all during the required period before the case could be dismissed. The present application satisfies the ‘reasonable prospect of success’ requirement.

Prejudice to the defendant

15.  The parties have not addressed me on the issue of prejudice.

Conclusion

16.  Having considered the short period of delay, the reason for the delay and merits of the appeal, I will grant the plaintiff extension of time to serve the notice of appeal.

Costs of the application

17.  I will make a costs order nisi that the costs of this application be in the cause of the appeal.