YU PAK KAN v. BUSY FIRM INVESTMENT LTD

DCCJ 2083 & 3630/2017 (Consolidated)

[2022] HKDC 1092

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2083 OF 2017

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3630 OF 2017

(formerly HCA 797/2017)

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BETWEEN

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(Consolidated by Order of Master S H Lee dated 8 September 2017)

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DECISION

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1.  The defendant took out a summons (“the Summons”) on 9 August 2022 for leave to appeal from my judgment handed down on 14 July 2022 (“the Judgment”). The facts and the reasons have been set out in the Judgment and I do not repeat the same herein. For ease of reference, the abbreviations used in the Judgment are adopted in this decision.

The principles

2.  District Court Ordinance s 63A(2) provides:-

“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.”

3.  The principles concerning leave to appeal from this court to the Court of Appeal are well established. They are not in dispute in this application. A succinct summary of the same can be found in the Court of Appeal’s decision in Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi and Others (HCMP 3305/2015, 18 February 2016), in which Poon JA (giving the judgment of the court) said:-

“9. It is well established that leave to appeal under section 63A(2) is not lightly granted. 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: see SMSE v KL [2009] 4 HKLRD 125, per Le Pichon JA at [17].”

4.  In respect of a challenge against the factual findings made by the trial judge, the appellant has to overcome a very high threshold in order to succeed. The Court of Appeal would not set aside the factual findings made by the trial judge unless the findings are plainly wrong. See Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336. See also China Gold Finance Ltd v CIL Holdings Ltd and Others (CACV 11/2015, 27 November 2015), in which Lam VP (giving the judgment of the court) said:-

“14. …… In our judicial system, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge. It is thus, as we said above, a misuse of the appellate process to place before this court submissions which, in substance, are (or should be) submissions advanced by way of closing submissions at the trial after the judge has heard all the evidence.

15. In an appeal, the court of appeal should focus on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court. As explained in the cases, it is not germane that judges in this court may reach a different conclusion from that of the judge. There are many areas, particularly those in relation to findings of fact, where judges can reasonably reach different conclusions from each other. That would not be a ground for intervention.”

The proposed grounds of appeal

5.  Mr Chan for the defendant has proposed grounds of appeal setting out the errors made by this court in the Judgment:-

(a) Flawed Assessment of plaintif’s credibility (“NOA 1”).

(b) Error in finding on the Hoarding (“NOA 2”).

(c) plaintiff’s alleged mistaken belief (“NOA 3”).

(d) Licence (“NOA 4”).

(e) Burden of Proof (“NOA 5”)

Ground 1: Credibility of Mr Yu

6.  Mr Chan submits that:-

(a) This court wrongly dismissed the significance of plaintiff’s credibility in giving evidence on the basis that certain matters were not “directly relevant to the issues in dispute.

(b) This court wrongly characterised defendant’s questions to plaintiff in cross-examination that Winning first patronized P’s business in 2016 as “made on no basis” (Para 22-23 of Judgment).

Whether question on credibility of the plaintiff wrongly dismissed by this court

7.  Mr Yu, the plaintiff, is the only factual witness to give evidence in support of his claim. His credibility is relevant especially when the core issues of exclusive possession (“Possession”) and the required intention to exclude all others (“Required Intention”) are to be dealt with.

8.  This court cannot agree with Mr Chan’s submissions that the plaintiff’s case is largely built upon his own uncorroborated assertions. This court has looked into all evidence produced by both parties such as their expert opinions on the survey sheets and aerial photographs and what they had seen at the site inspections. There are of course sub-issues to be determined before coming to a conclusion on the core issues. For example, on the issue of Required Intention, the time and by whom the Hoardings were built is relevant. This court has studied the materials put before it to check against the assertion of the Mr Yu before coming to its conclusion on his credibility. Paragraphs 32 to 49 of the Judgment are relevant.

9.  Mr Chan also complains that this court has erroneously brushed aside some inconsistencies by taking them as irrelevant. Mr Chan submits that the inconsistencies had not been properly dealt with. He comments that the reason Mr Yu registered the business is relevant and there are inconsistencies in his evidence in particular when it comes to the question of when the business with Winning has started. Further, the evidence on the conversation with the Property Agent and SKY staff about the subject matter of the conveyance must also be relevant to the issues of Possession and Required Intention. It is the submission of Mr Chan that this court has erroneously assessed the credibility of Mr Yu and has failed to deal with the inconsistencies.

Oral evidence on the reason he registered the business in 2016

10.  Mr Chan suggests that the plaintiff registered his business in 2016 for the purpose of the litigation only. It is submitted that the plaintiff lied in this regard to the extent that he said he had business with Winning only after 2016 where documents in one of the hearing bundles show that there was business with Winning prior to 2016. Mr Chan submits that he had sound and reasonable basis to ask Mr Yu whether Winning only first patronized him in 2016. It is submitted that this court has erroneously commented that the suggestion to Mr Yu was made on no basis. Further he says this court has erred in analysing the evidence and brushing aside Mr Yu’s willingness to tailor his evidence as forgetfulness.

11.  That was the conclusion reached by this court after hearing evidence and further reading the Transcript for accuracy. In fact Mr Chan did not ask Mr Yu an open question whether Winning only first patronized him in 2016. He suggested to him “Winning only patronised you after 2016, is that what you mean.” Actually, in my view, Mr Yu’s earlier answers did not suggest that Winning had not patronised him before 2016. What he had been saying was that Winning asked them to register in 2016. Mr Yu did not in particular say there was no business with Winning prior to 2016. Further, Mr Chan was well aware of the presence of relevant documents in the hearing bundles showing business with Winning dating back in 2011, prior to 2016. In the circumstances, this court is entitled to take the view that the suggestion made to Mr Yu by Mr Chan was not on basis of evidence. Although Mr Chan in cross-examining Mr Yu could ask him questions with less restrictions, the court is however entitled to make observation and to decide how much weight to give to the answers. Mr Chan might have misunderstood my concern when he said Winning was raised by Mr Yu. My concern was whether Mr Yu had said there was no business with Wining before 2016. He had not say so. This has been dealt with in the Judgment[1].

12.  Mr Chan also criticises Mr Yu for telling lies and it is his submission that Mr Yu had gone so far as to deny having included documents of Winning in the hearing bundles for the trial. In his submission Mr Chan says this was “demonstrably untrue”. The court sees it differently. When somebody “lies” about something which is “demonstrably untrue” it could also indicate that his memory or knowledge has failed him. In §24 (11) of the Judgment, I have cited the Transcript recording that Mr Yu said his memory had failed him.

13.  Having said the above, this court agrees with Mr Chow that even if Mr Yu was found not telling the truth in this line of questions, it went to the issue of whether he registered the Business for the prospective litigation or these proceedings. Even an adverse finding was made, it would not affect the court’s determination on the core issues at the end (§§32-53 of the Judgment). The rulings remain to be good as this court was assisted also by evidence coming from the plaintiff’s expert and his interpretation on the public documents.

Conversation with Property Agent and KST Staff

14.  Mr Chan says that the inconsistency in Mr Yu’s testimony has not been dealt with by this court. He refers to Mr Yu’s testimony on his not telling the Property Agents about getting also the Portion (11 I-V, 12 U-13A, 14D-F of the Transcript)[2], and his later evidence that he had told the Property Agent he had also get the Portion (14 E-L of the Transcript). I agree with Mr Chan that this may not be the time for this court to make up an error in this decision. However, when there is a different view leading to the “error” it should be stated.

15.  First, it was not apparent to this court that there was material inconsistency. The questions and answers as recorded in 11 I-V, 12 U-13A of the Transcript show that Mr Yu was referred to the time of the site visit he had with the Property Agent. Mr Yu said he did not tell. At 14 D-F Mr Yu was asked the same question and Mr Chan was referring to the time after Mr Yu had reached an agreement with the Mother. In reply to these questions, again Mr Yu said he did not tell the Property Agent. Yet in the questions recorded in 23 E-F of the Transcript, Mr Yu was referred to read the Provisional Agreement. Here Mr Yu said he had told the Property Agent that he would also get the Portion. He was asked the same question but at different stage in the process of purchase. Secondly, Mr Chan did not challenge Mr Yu with the inconsistency at this juncture. There was no question asked about the alleged inconsistencies for him to explain.

16.  Further when listening to the questions and answers on this topic, this court found them a bit vague. I have no intention of criticizing Mr Chan at all as he has conducted the trial in a very able manner. This however could be seen in the questions and answers that follow. In reply to the question on whether he had told KST staff he had purchased also the Portion, Mr Yu said he had done so. He said the reply from the KST staff was that “so the place would be big enough”[3]. Seeing that the question and answer might not be directly to the point, this court asked Mr Yu to clarify whether he had asked the Property Agent or the KST staff to add the Portion onto the conveyance documents which Mr Chan had asked him to read. He said he did not as he did not know the law[4]. Mr Chan followed up and questioned him further on whether he had asked the Property Agent to attach a map to show what he had purchased. He said he did not ask because there was an agreement between himself and the Land Owners.

17.  Putting his evidence in order, Mr Yu said he did not tell the Property Agent he wanted to get the Portion at the time of the site visit and did not tell her about it after an agreement had been reached with the Land Owners. He had told the Property Agent and the KST staff about the Portion at the time of the execution of the conveyance documents, he however did not ask them to include the Portion into the same.

18.  In my view, it is speculative of Mr Chan to submit that it is “highly unlikely that if Mr Yu told the Property Agent or KST staff that the transaction also included his right to possess of the Portion, there would not be a single shred of documentary to record such agreement”. Mr Chan did not suggest the type of record which, according to him, would highly likely be created for Mr Yu’s getting the Portion.

19.  With benefit of hind sight, it might have been better if I have set out the above analysis in the Judgment. Since I did not find material inconsistencies in Mr Yu evidence under this topic, I dealt with it in paragraph 29 by saying that “I have considered all evidence, I find that Mr Yu’s evidence is not inconsistent with the circumstances of the present case.”

20.  In any event, accepting or rejecting the evidence of a witness is a factual finding made by the trial judge. High threshold is required in respect of appeal against the factual findings made by the trial judge. In my judgment, the defendant has failed to meet the requirement. There is no merit in Ground 1.

Ground 2: Hoardings

21.  Mr Chan comments that this court has erred in law in solely focusing on whether the Hoardings were in existence at the material time and failed to apply its mind or to give any adequate reasons for who has built the same. Mr Chan goes further to say that existing of fencing is not conclusive on proving Possession and Required Intention. He also complains that this court has solely relied on self-serving statement of the plaintiff.

22.  Mr Chow for the plaintiff points out in his submissions that this court has also considered aerial photographs, survey sheets and expert evidence of both sides. It is my finding that there were new hoardings (also referred to as the Hoardings in the Judgment) shown by “new line-type objects” in the aerial photograph AP Aug 2004 to replace the old fencings made of wire-mesh (鐵絲網). References have been made to expert opinion stating that sealing of the Gap and installation of the Gate in 2004 could also be seen in the same aerial photograph. Such evidence has been considered and found to be in support of the plaintiff’s case that he built the Hoardings after signing the preliminary sale and purchase agreement of Lot 1005 with planks (坑板) ( In the Judgment, it is mentioned that new hoardings had been erected in the manner as testified by Mr Yu)[5]. Mr Chan’s complaint is not substantiated.

23.  It is also the comment of Mr Chan that this court has made a remark saying that “there was no explanation as to the disappearance of the Gap”[6] which shows that the court has shifted the burden to the defendant. Mr Chan’s submission must be dealt with in the context of the defendant’s contention raised at that juncture. It was the defendant’s case that the Gap was there to allow convenience for the Land Owners to egress and ingress the Area meaning that the plaintiff has not proved Possession and Required Intention. It is my finding that the sealing of the Gap was an act giving an unequivocal indication of Required Intention. The enclosure by Hoardings, sealing of the Gap and installing the Gate is prima facie evidence in support of the plaintiff’s case that he possessed and used the Area to the exclusion of the others. When the defendant suggests that the Gap was there for a purpose against the plaintiff’s case, and a reason for its disappearance should be suggested for the plaintiff to answer. When there was none, the plaintiff’s case is not shaken. It is not true that the court has shifted the burden of proof.

Failure to take into consideration of absence of workers

24.  Mr Chan comments that this court has failed to take into account of the unexplained absence of workers as witnesses and documentary record of the $35,000 spent on buying materials since there were records in relation to his business back to 2002 and 2003. Mr Yu did give an explanation by saying that he had never thought of calling the 3 workers as witnesses[7]. There was no follow-up question from Mr Chan. Mr Yu also gave an answer to explain why there was no record of the spending[8]. He said he paid for the materials and there was no need for record. In this reply he told the difference between business records and his own purchase.

25.  When asked why he did not call KST staff to be witness, he said he did not know he had to do so[9]. There was no follow-up question asked. Mr Yu also said that the Property Agent shop had moved and he had no contact with the Property Agent[10]. He was asked why he did not call his tenant Mr Leung to be a witness to prove the existence of the Hoarding in 2016, he said he had not thought about this[11]. When asked why he did not call the Land Owners to be witness, he said they might not be willing to take the trouble. Earlier he said they moved away and he did not have their contact[12].

26.  Before the court, there are reasonable explanations given by Mr Yu as to why these people were not called. More importantly, there are sufficient evidence to prove the new hoardings (the Hoardings) built in the year of 2004 after the execution of the Preliminary Sale and Purchase Agreement. See paragraphs 33-34, 41, 42, 52 and 53 of the Judgment.

27.  Further there is no information that the defendant has asked for particulars of the 3 workers for application of subpoena and that the plaintiff had not been cooperative. As to the Land Owners, it cannot be disputed that the defendant has their contact because of another suit between them. Mr Chan’s saying that the defendant cannot be expected to call the adverse party to be its witness is neither here nor there. The question is whether the defendant believes the witness would have anything to say to assist the court or to assist its case.

Ground 3: The Plaintiff’s Mistaken Belief

28.  Mr Chan submits that this court has failed to apply its mind to the question not been the pleaded case of the plaintiff. I agree it has not been pleaded. This court has overlooked this pleading point. In fact this was looked into in all fairness to the defendant. This court was assessing the possible consequence of a mistaken belief and whether that would work in favour of the defendant.

29.  Even if this court has erred on this, this is not an error which the appellate court would reverse its finding that there was proof of the necessary animus possidendi. Such findings have been made in the preceding paragraphs when the Hoarding, the Gap and the Gate were discussed.

30.  There is no merit in Ground 3.

Ground 4: Plaintiff has been in possession as a Licencee

31.  Mr Chan relies on paragraph 5 in the CFA judgement of Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498 to say that this court has erred in shifting the burden of proof to the Defendant when dealing with parties’ contention on licence. It is a short passage succinctly stating the current legal position on burden of proof and what elements are to be proved by the squatter as discussed in Powell v McFarlane & another (1977) 38 P & CR 452; and Wong Tak Yue v Kung Kwok Wai David & another [1998] 1 HKC 1. The law remains and this court has borne in mind that the burden is squarely on the plaintiff who asserts that he has been in possession as of wrong and not a tenant nor a licencee.

32.  There was no suggestion made by this court that the defendant should but has failed to prove the existence of licence in the relevant paragraphs in the Judgment. It is plain that there is no such evidence before the court after considering evidence of Mr Yu including his witness statement and his testimony in court. This court has made its finding on the Hoardings, the Gap and the Gate and they went against the existence of a licence. There is after all no evidence in support of the existence of licence, not even a bare licence.

33.  It is also Mr Chan’s comments that the court has failed to caution itself against placing undue weight on self-serving statements and assertions made by the alleged squatter. In fact, I have set out in paragraph 46 of the Judgment similar guidelines to remind myself the caution this court should take when dealing with self-serving statement. The act of the plaintiff was then discussed to see whether there was anything in support of the submission of Mr Chan on licencee. The court then discussed the sealing of the Gap and the installation of the Gate. The court found nothing to make a finding in the defendant’s favour.

34.  Mr Chan also complains that I have taken into consideration irrelevant matters like the scope of the proceedings between the Land Owners and the defendant herein. There I made a remark by saying that it seemed that the Portion was not covered by the litigation between the Land Owners and the defendant. If so there should be common issues to be tried together. In any event, the said comment would not affect my finding on whether the plaintiff was a licencee because of the absence of evidence before the court.

35.  There is no merit in Ground 4

Ground 5 Burden of Proof

36.  I believe the complaint under this ground has been dealt with above. It was said that the expert did not tell the identity of the person who built the Hoardings. It is submitted that when Mr Yu said he was the one who built it, this is self-serving. The court is entitled to consider all evidence in the round and make its finding of facts.

37.  There is no merit in Ground 5.

No reason for granting leave

38.  There is no merit in any of the grounds proposed by the defendant. In my judgment, there is no reasonable prospect of success in the defendant’s appeal. I am also of the view that there is no other reason that the appeal should be heard in the interests of justice. The Summons must be dismissed.

Costs

39.  Having heard submissions on costs, I agree with Mr Chan that the general rule of costs to follow the event should apply. The costs of the Summons be to the plaintiff to be taxed if not agreed with a certificate for counsel.

Disposition

40.  I dismiss the Summons with costs order as stated above.