TSANG WOON MING v. TSAN HING TAT HEIDI AND OTHERS

DCCJ 3791/2016

[2021] HKDC 1091

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3791 OF 2016

________________________

________________________

________________________

DECISION

________________________

1.  On 27 April 2021, this court handed down the written judgment after trial in the present action, whereby the claim was dismissed and judgment was entered on the counterclaim (“the Judgment”). A nisi costs order was made against the plaintiff (“the Costs Order”). Both sides have since taken out applications, which are now disposed of on paper. For this purpose, I adopt the same definitions and abbreviations in the Judgment.

The applications

2.  There are the following applications before this court:-

(1)  the defendants’ summons filed on 5 May 2021 for variation of the Costs Order;

(2)  the plaintiff’s summons filed on 11 May 2021 for variation of the Costs Order;

(3)  the plaintiff’s summons filed on 25 May 2021 for leave to appeal against the Judgment and stay of execution.

3.  For each of the applications, the parties have lodged their respective written submissions in support, opposition and reply.

The defendants’ summons for variation of the Costs Order

4.  The defendants rely on their offer to settle on terms as set out in what is known as a Calderbank letter to the plaintiff prior to the trial.  The plaintiff rejected that outright. Failing completely in this action, the plaintiff, the defendants contend, ought to bear their costs since his rejection of their offer on a higher basis with enhanced interest.

5.  Costs is a matter of discretion of the court: see section 53(1)  of the District Court Ordinance (“DCO”).  O 62, r 5 provides for the special matters to be taken into account in the exercise of the discretion, namely:-

“(1)  The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances take into account –…

(aa)  the underlying objectives set out in O 1A, r 1;

…

(d)  any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings, but the Court may not take the offer into account, if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

…

(g)  any admissible offer to settle made by a party, which is drawn to the Court’s attention”.

6.  The underlying objectives set out in O 1A, r 1 include, amongst others, those to increase cost-effectiveness and to facilitate the settlement of disputes.

7.  An offer to settle made pursuant to O 22 will carry the specified consequences.  Insofar as a sanctioned offer by a defendant is concerned, the specified consequences are set out in r 23. They include costs on higher basis and enhanced interest on costs. Circumstances may not permit an offer to be made in such manner.  However, O 22, r 2(4)  permits an offer to settle in whatever way the party chooses, only that the specified consequences under O 22 will not (automatically)  follow unless the court so orders.  That includes an offer by a Calderbank letter: see Bright Gold Ltd v Mega Well Development Ltd [2019] 3 HKLRD 868.

8.  In line with the underlying objective enshrined in O 1A, r 1 for the court to encourage dispute settlement, failure to respond constructively to a reasonable Calderbank offer, coupled with the subsequent failure to beat the offer, would weigh heavily against the offeree on costs.  See also Montrio Ltd. v. Tse Ping Shun David [2012] 2 HKC 392 (at §§13-26); [2013] 4 HKC 505 (at §§68-69); CACV 291/2011 (31 January 2013)  (at §§2-4).

9.  In view of the nature of the claim and counterclaim in the present case, the defendants were not expected to be able to deploy the O 22 mechanism in making a settlement offer.  Hence their “without prejudice save as to costs” letter dated 5 June 2020.  The defendants offered, in full and final settlement of this action (“the Settlement Offer”), that:-

(1)  the defendants would pay the plaintiff a sum of HK$380,000 within 14 days of the signing of a settlement deed;

(2)  the plaintiff and his family would move out of the Lot within 1 month of the signing of the settlement deed;

(3)  the plaintiff would discontinue the claim within 7 days of the signing of the settlement deed, and the defendants would likewise withdraw the counterclaim;

(4)  the plaintiff would vacate the registration of the writ against the Lot at the Land Registry within 30 days;

(5)  there would be no order as to costs of the proceedings (each party would bear its own costs)  except for the costs orders already made; and

(6)  the parties would keep the settlement terms confidential.

10.  The Settlement Offer was open for acceptance for 7 days.  It was stated that the defendants reserved the right to produce the Settlement Offer to the court should the circumstances so warranted.

11.  On 12 June 2020, the plaintiff through his solicitors’ letter flatly rejected the Settlement Offer.

12.  Choosing to reject a reasonable Calderbank offer and pressing ahead with legal proceedings that did not yield a result that could beat that offer has been held to be not in line with the policy objective of facilitation of settlement of dispute.  That also caused the offeror to have to incur further costs that could have been avoided.  Hence the basis for making an adverse order as to costs to be taxed on a higher basis: see for instance Bright Gold Ltd (above); Leung Lai Kwan v Lo Kai Wing [2015] 3 HKLRD 152; HCMP 1554/2015 (20 August 2015); and Sam Sien San Albert v Sam Mo Yee [2019] HKCFI 1188.

13.  The plaintiff seeks to explain why he rejected the Settlement Offer.  However, the importance of the Lot as his home and his personal circumstances per se may not carry much weight in justifying his flat rejection of the offer.  Importantly, a settlement offer could have been rejected in different ways.  In the present case, it was a flat rejection in one sentence without indication of room for negotiation, let alone any counter-offer that might address the concern and personal circumstances of the plaintiff either in terms of provision for monetary compensation or accommodation or time.  The plain message by the flat rejection was that he was not prepared to consider anything short of the defendant’s concession that their title in the Lot has been extinguished.

14.  The plaintiff also considers that the Settlement Offer was made at too late a stage.  It was made one and a half months before trial.  The plaintiff borrows the observation of the court in Yau Lai Wah v Wong Kan Yu [2020] HKCFI 1399 (at §11).

15.  Yau Lai Wah was remarkably different from the present one in many ways.  Even if one focuses on how one would view the terms at the time when they were offered, the circumstances of that case still materially differed from those of the present case.  As the court there observed, the offer in that case of HK$1 in full and final settlement inclusive of both interest and costs was no different from one for the parties to simply “drop hands” and for the plaintiff to be out of pocket absolutely and for nothing.  The reasonableness, if not genuineness, of such an offer was questionable.

16.  The terms offered in the present case made far more sense than the attempt to settle in Yau Lai Wah.  An admittedly not insignificant sum of money was offered.  The costs orders previously made, including those in favour of the plaintiff, would be left undisturbed.  Even assuming that any costs order previously made against the plaintiff or the first charge of the Director of Legal Aid might have eaten into the sum offered, he would still have been better off by avoiding the incurring of further costs for a full blown 7-day trial, albeit on legal aid, for an un-favourable outcome.  Precisely because the defendants’ side was so brought into incurring such further costs, they now seek full compensation for such further costs.

17.  The plaintiff suggests that as a matter of principle costs on a higher basis should be ordered only in case of very unreasonable rejection of a settlement offer.  He refers to the dicta in Kiam v MGN Ltd (No 2)  [2002] 1 WLR, which was also referred to in Yau Lai Wah. This caused the defendants to reply by detailed analysis of how such dicta was subsequently read by the English court and should now be read by this court.  However, as the court in Yau Lai Wah also acknowledged, with reference to what the court said in Heung Wing Yan v Hangway Housing Management Ltd, HCPI 347/2012 (14 February 2017), each case still is decided on its own facts.  In principle, this suffices.

18.  On the facts, one only needs to visit the main judgment of Yau Lai Wah (dated 29 April 2020)  to realise what the court there said about the legitimate questions that could be asked about the successful party’s case and the evidence adduced on her behalf. Hence pressing ahead with the claim against the successful party not being entirely unreasonable.  In the present case, there is no question about the primary position of the defendants to put the plaintiff to strict proof of the requisite ingredients of the alleged adverse possession by cogent evidence: see Choi Tak Man v Chan Yuk Lan Didi [2017] 5 HKLRD 619.  By choosing to have his day in court, the plaintiff took the risk of not being able to discharge such burden and beating the Settlement Offer.  He did so not without problems in terms of the quality and quantity of evidence in respect of the requisite intention of adverse possession in his own name that were highlighted in the Judgment.  Various key aspects of that part of the plaintiff’s case were found to be inherently incredible or artificial.

19.  All circumstances considered, this court is prepared to exercise discretion to award the defendants’ costs since the rejection of the Settlement Offer on a higher basis, which will be common fund basis.

20.  Regarding interest on costs, the defendants pray for higher interest rate on the costs incurred after the rejection of the Settlement Offer, relying on see Lo Yuk Sui v Fubon Bank (HK)  Limited [2017] 2 HKLRD 477.  The plaintiff opposes.  Insofar as such enhanced interest is sought to run prior to the date of judgment is concerned, the plaintiff also opposes on the ground that the court has no jurisdiction to make such an order.  The plaintiff argues that it would in any event be unfair to award enhanced interest on costs in the present case.

21.  The plaintiff relies on Mission Marketing Ltd v Chan Yuet Foon & Ors [2021] HKCFI 360 where the court held that the court has no jurisdiction to order interest on costs to run prior to the date of judgment.  The reason is section 49(1)  of the High Court Ordinance, Cap 4 (“HCO”)  (section 50(1)  of the DCO)  which expressly provides for interest to run from the date of judgment until payment.  The court observed that the jurisdiction under O22 is exceptional.

22.  However, it is pointed out on behalf of the defendants here that as the court has jurisdiction under O 22, r 2(4)  in cases of settlement offer in any form other than that pursuant to O 22 (for instance, a Calderbank offer)  to order any of the consequences specified under rr 20 to 24 in appropriate case, there is no reason why (enhanced)  interest, as costs on higher basis, could not be ordered and for that to run differently from what section 50(1)  of the DCO provides.  The parties in Mission Marketing Ltd did not advance their arguments precisely along such line, and the court there did not come to make observation on that in addition to the plain wording of section 49(1)  of the HCO.

23.  I do not propose to go further regarding the above argument.  The reason is that the other ground put forward by the plaintiff suffices to dissuade this court from ordering enhanced interest at all.  For the reasons discussed in Mission Marketing Ltd and Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd [2013] 4 HKC 282, I can see the lack of sufficient alert to the plaintiff about the intention of the defendants to seek enhanced interest on costs, and that to run prior to the date of judgment, as a consequence of the rejection of the Settlement Offer.  The plaintiff’s legal representatives might be expected to be in a position to advise the plaintiff on the possible consequence of rejection of the offer as reflected by an adverse costs order.  The same may not be said about enhanced interest on costs, let alone such interest running prior to the date of judgment, when the defendants were not deploying the sanctioned offer mechanism under O 22.

The plaintiff’s summons to vary the Costs Order

24.  The plaintiff argues that the defendants have unreasonably raised issues, which failed, and the length and costs of the proceedings have been increased.  The defendant, albeit successful, ought to be deprived of such part of their costs.  He suggests 50% of their costs.

25.  The basis, so the plaintiff’s summons says, is to take into account the apportionment of costs in relation to (i)  the boundary dispute and (ii)  the dispute on factual possession.  However, when it comes to the submission, it is now argued on behalf of the plaintiff that more issues should be taken into account for the suggested apportionment, though he does not thereby seek to increase the percentage discount of the defendants’ costs as sought in the summons.  The additional issues are those of illegality and squatter control raised in the defence, which this court ruled against.

26.  Again, the starting point is that costs are in the discretion of the court.  However, they should follow the event except when it appears to the court that in the circumstances of the case, some other order should be made as to the whole or part of the costs: see O 62, r 3(2).  The special matters set out in O 62, r 5, cited above, also include:-

“…

(e)  the conduct of all the parties;

(f)  whether a party has succeeded on part of his case, even if he has not been wholly successful; and

…”

27.  The conduct of the parties includes whether it was reasonable for the party to raise, pursue or contest a particular allegation or issue, the manner in which a party has done so and the conduct of the parties before and during the proceedings.  If the failed allegation or issue raised and pursued by the successful party has significantly increased the length and costs of the proceedings, such part of his costs may be deprived: see Re Elginata Ltd (No 2) [1992] 1 WLR 1207; Cheng Ka Shing v Bonus Plus Company Limited [2020] HKCFI 828 (20 May 2020).

28.  The boundary dispute concerned the western boundary of the Lot shown in the DD survey sheet as located on the ground.  The defendants as the owners said it was located not as further out as the plaintiff said, and therefore the Lot was smaller than what the plaintiff said it was.  Expert evidence was adduced, and the parties’ experts were called to give evidence in respect of their difference in respect of such boundary.  After trial, I preferred that contended by the plaintiff in this respect.  The plaintiff now argues that the defendant has unreasonably raised the dispute, which increased the length and costs of the trial.

29.  I do not agree with the plaintiff.

30.  Expert evidence was reasonably necessitated by the need to adjudicate on not just the fact but also the nature and extent of the land use and occupation history of the plaintiff (§27 of the Judgment).  Expert evidence was so adduced pursuant to the court’s directions. The defendants did not (as they probably were not able to)  invent the western boundary dispute but was alerted to that on the basis of their expert’s observation.  The boundary dispute became a real issue after the parties’ experts have produced their reports by January 2019.  Hence their joint statement in April 2019.

31.  Not much could be read into this court’s remark (§131 of the Judgment)  about the failure of the defendants to engage the government departments in connection with such dispute.  Such remark was made in the context that any area outside the western boundary would undoubtedly be government land, and this court’s ruling on the location of the western boundary one way or the other will not bind the Government, as it is not a party to such resolution in this case.  No assumption was or could be made that engaging the government departments would have provided the indisputable answer, particularly when both sides’ experts had already taken into account the information obtainable from the departments.

32.  It is suggested that the defendants would have had nothing to lose by simply conceding on the issue of the western boundary.  The logic is that the defendants would only stand to benefit from such concession if the plaintiff’s claim failed, as it did.  This idea is not commendable, if correct at all.  The nature of the issue was not purely a matter of contest between the parties as any other factual dispute.  The plaintiff needed the adjudication and delineation of the Lot for the purpose of his claim for adverse possession as much as the defendants needed that for the purpose of their counterclaim for possession.

33.  Regarding the requisite factual possession, this court found in favour of the plaintiff.  The plaintiff now argues that the defendants were unreasonable in challenging his case in this respect.

34.  I do not agree.

35.  The plaintiff must not fail to appreciate that this is not a case of his having succeeded in part of his case, even though he has not been wholly successful, ie an O 62, r 5(1)(f)  situation.  Succeeding on proving to the court’s satisfaction his alleged factual possession led him nowhere if the requisite intention of adverse possession was not established.  The single ‘event’ of the dispute was whether he proved his claim for adverse possession against the defendants.  The court would not fillet the issues of a cause for costs purpose if success on any of them would not alter the event: see Wu Leung Kui Jacky v Leung Ming Yun & Ors, CACV 175/2011 (13 February 2002).

36.  As explained in the Judgment, it was the plaintiff who was expected to discharge the burden of proving the alleged factual possession of the Lot with the requisite intention over the relevant period of time.  The burden was never a light one, which required cogent evidence, particularly in respect of intention.  The defendants as the owners were entitled to put the plaintiff to strict proof of his case.  That entailed cross examination of the plaintiff on his evidence, oral and documentary, in the trial.  The circumstances of the present case were not such that the evidence disclosed by the plaintiff was on its face overwhelming or beyond scepticism.  Nor was the cross examination conducted in an unprofessional or prolix manner.  No such adverse view by this court of the conduct of the defence in respect of this factual dispute could possibly be detected from the Judgment.  This explains why this court at the end was simply prepared to accept the plaintiff’s case on factual possession.  This was no more than a matter of balance of probabilities made possible only after hearing the evidence at the trial.

37.  Reference was made to the plaintiff’s application to adduce new documentary evidence after the close of the plaintiff’s case.  The Judgment in this respect refers.  This court allowed one part but disallowed another part of the application, all at the costs of the plaintiff.  It was not the defendants’ fault for alerting the plaintiff to the relevance of those quite apparently relevant documents or causing the recall of the plaintiff to give evidence in respect of them.  It was primarily the plaintiff’s obligation to disclose those relevant documents for his own purpose, which the plaintiff somehow failed to appreciate even with legal assistance.

38.  The squatter control and illegality issues were raised in defence, but not referred to in the plaintiff’s summons for the present purpose.  As mentioned, they were raised by submission.  The squatter control issue entailed some investigation and the incidental documentary evidence was not substantial.  The illegality issue essentially boiled down to legal argument.  Both were not pressed ahead with in the trial. I found for completeness against such contentions.  Considering what this court said in Tsang Chiu Tung v 陳創成經營成記水喉渠務工程 [2011] 2 HKC 384, whilst I accept these were quite distinct contentions in defence, I do not agree that their existence and dispute added together to a significant portion of the costs.  In a broad-brush way, I give them a 10% share of the costs.

Conclusion on the parties’ respective summonses to vary the nisi costs order

39.  All arguments considered, I order that the Costs Order shall be varied as follows:-

(1)  The plaintiff shall pay 90% of the 1^st to the 6^th defendants’ costs of the action (including the claim and the counterclaim)  on a party and party basis up to 12 June 2020, to be taxed if not agreed;

(2)  The plaintiff shall pay 90% of the 1^st to the 6^th defendants’ costs of the action (including the claim and the counterclaim)  on a common fund basis from 13 June 2020 onwards, with certificate for one counsel, to be taxed if not agreed.

(3)  The plaintiff’s own costs shall be taxed in accordance with legal aid regulations.

40.  As to the costs of the parties’ respective summonses, considering the respective success of the parties, again in a broad-brush manner, I make the following order:-

(1)  The 1^st to the 6^th defendants shall have 70% of their costs of their summons on a common fund basis with certificate for one counsel, to be taxed if not agreed.

(2)  The plaintiff shall have 20% of his costs of his summons on party and party basis with certificate for counsel, to be taxed if not agreed.

(3)  The plaintiff’s own costs in respect of the summonses shall be taxed in accordance with legal aid regulations.

The plaintiff’s summons for leave to appeal and stay of execution

41.  Section 63A(2)  of the DCO provides that leave to appeal shall not be granted unless the appeal has a reasonable prospect of success or there is some other reason in the interests of justice the appeal should be heard.  By reasonable prospect of success, this means the ground of the appeal has to be more than arguable, though not to probably succeed: see Wynn Resorts (Macau)  SA v Mong Henry [2009] 5 HKC 515.

42.  Attached to the plaintiff’s summons is his draft of the following 5 grounds of appeal:-

(1)  This court erred in finding that the plaintiff and his family members knew that Tsan Yung had acquired the title to the Lot in mid-1910.

(2)  This court erred in effectively finding that when the Grandmother told the plaintiff’s mother that the plaintiff’s family could continue to live at the Lot without consideration, the plaintiff’s mother at the very moment formed the understanding that the Grandmother actually gave the Lot to her.

(3)  This court erred in failing to appreciate that Cheung was adopted as the granddaughter but not the daughter of the grandmother such that Cheung was subordinate to the plaintiff’s mother instead of being on the same level as the plaintiff’s mother in the family hierarchy.

(4)  Because of (1)  to (3)  above, this court erred in finding that the plaintiff failed to establish the requisite intention to possess.

(5)  Because of (1)  to (3)  above, this court erred in finding that the plaintiff’s occupation at the Lot is referable to an implied licence.

43.  It should be immediately apparent that all the grounds are for an appeal on findings of fact.  It is trite that the appellate court will refrain from interfering with the first instance findings of fact unless any of them is shown to have been plainly wrong.  This happens only where the findings are not supported by evidence at all or the evidence does not permit any reasonable tribunal to arrive at such findings. Possibly different interpretation of the oral evidence, when the appellate court has not had the chance of assessing the evidence first hand, would not suffice for concluding that the findings are plainly wrong.  See Ting Kwok Keung v Tam Dick Yuen (2002)  5 HKCFAR 336.

Ground (1)

44.  The plaintiff’s argument under this ground suggests that this court erred in stating what the plaintiff said or what the evidence suggested, which in fact he did not say or the evidence did not suggest.

45.  The plaintiff’s version of the occupation history was essentially set out in §§33 to 41 of the Judgment.  §33, amongst other things, mentioned the plaintiff’s understanding (from his mother, who further learned from the Grandmother)  that the Lot used to belong to Tsan Hei, the grandfather, and Tsan Yung managed to regain title to the Lot.  That was confirmed to be true, as evidenced by the transfer of mortgage dated 1916.  For the discussion of the evidence and reasons set out in the following paragraphs up to §58, this court was prepared to accept the plaintiff’s case on the history of the occupation of the Lot.  The history was further summed up in §60.

46.  This court then turned to the question of the requisite intention to possess.  §71 concerns the defendants’ contention in respect of consent by their branch of the Tsan family.  The plaintiff complains that this court stated the fact in that paragraph erroneously.  In my view, that is not a proper reading of that paragraph.  This court recited the plaintiff’s own case that he had no actual knowledge about the title to the Lot and its devolution.  What this court continued to state must be read together with, which also did not deviate from, what was stated in §33 mentioned above and §76, namely, Tsan Yung managed to regain the title to the Lot in the mid-1910s, which was known by the family.  What this court continued to state in the same and the following paragraph focused on the knowledge on the part of Tsan Yung as factually the title owner.  It was in such circumstances the question of the housing of the Grandmother’s household at the Lot came to be considered.

47.  The plaintiff’s own case was that the Lot used to belong to the grandfather, which Tsan Yung managed to regained its title.  That enabled the erection of the houses in the Lot which subsequently housed the Grandmother and the plaintiff’s father.  This court acknowledged the likelihood that the Grandmother became the household head. However, while Tsan Yung was in fact the title owner, whether or not the Grandmother did on any basis form the idea and even went further to impress upon the plaintiff’s mother that the Grandmother was the owner was a matter of objective view of the circumstances as the evidence permitted.  The factual basis for such alleged belief of the Grandmother was never concrete, if at all clear. When all facts were taken into account, this court did not accept the plaintiff’s case in this respect, and found that the arrangement for the occupation of the Lot by the Grandmother’s household must be known and approved by Tsan Yung as the title owner.

48.  The plaintiff’s complaint in this respect does not afford reasonable prospect of appeal.

Ground (2)

49.  The statements under this ground highlight what this court said in §75 of the Judgment.  They suggest the alleged existence or development of different understanding on the part of the plaintiff’s mother at different times but somehow both, the plaintiff argues, should be accepted in support of his case.  The plaintiff also challenges this court’s interpretation of the oral evidence.

50.  The alleged understanding of the Grandmother and the plaintiff’s mother were based on his assertions in respect of his mother’s alleged representation about what the Grandmother had allegedly said to her (or his parents)  previously.  The plaintiff sought to satisfy this court that those were facts.  The self-serving and hearsay nature of such evidence were, as it had to be, assessed in the circumstances of the case as the overall evidence suggested.  The factual findings of this court in this respect after such assessment are not matters that could be challenged with any reasonable prospect of success.

Ground (3)

51.  §36 of the Judgment was not incorrect.  So was the assessment of the circumstances set out in §§73-74, which also concerned Cheung.  What should not be overlooked was the plaintiff’s actual oral evidence in this respect in court, which he does not refer to for the present purpose.  The emphasis on the family hierarchy is also that of the plaintiff for the present purpose, not this court.  This court did not even refer to Cheung as the Grandmother’s daughter or grand-daughter in the Judgment.  What this court referred to was the fact that Cheung was adopted by the Grandmother, and hence the former’s entry to stay in the household attributable to the latter.  This ground has no reasonable prospect of success on appeal.

Ground (4)

52.  It is so framed that this ground is advanced on the basis of grounds (1)  to (3)  above being accepted.  If they are not, this ground would lack the necessary basis.

53.  In any event, the elaboration under the 6 subparagraphs under this ground leads to the conclusion that this court erred in finding that the assertion of the understanding that the Lot was given by the Grandmother to the plaintiff’s mother was inherently and objectively incredible.  So was the finding that the passing of the Lot by the mother to the plaintiff was incredible.  The plaintiff argues that there was no evidence to cast doubt on the alleged understanding on his and his mother’s part, and that he bore no “further” burden of adducing evidence of manifestation of such understanding.

54.  The plaintiff’s argument cannot be right.  The assertions, which concerned the issue of the intention to possess on the part of the plaintiff’s mother and then him, must be objectively assessed in the circumstances of the case and against the history and events. Relevant circumstances for making the necessary finding or inference included whether there was evidence of manifestation of the alleged intention on the part of the persons concerned, particularly when there was suggestion of change or development of the relevant understanding over time.  It was the plaintiff’s burden of proof by cogent evidence.  The argument of the plaintiff reflects lack of sufficient understanding of the level of scrutiny expected of the court in assessing self-serving statements as to intention.

55.  I do not see reasonable prospect of success on this ground.

Ground (5)

56.  Ground (5)  relating to the issue of implied licence again is based on grounds (1)  to (3)  above being accepted. If they are not, this ground becomes baseless.

57.  In any event, the knowledge and understanding of the parties concerned ever since Tsan Yung regained the title to the Lot must be considered in the circumstances as the evidence permitted both holistically and objectively.  That included the own statement of the plaintiff’s mother that her family’s occupation of the Lot must have been acquiesced by Tsan Yung’s branch of the family (§93 of the Judgment).  I see no reasonable basis for challenging the findings made after such consideration. The reference to the fact that the defendants did not know their interest in the Lot until after the demise of Madam Luk misses the point.  The defendants never sought to dispute the licence binding on Madam Luk and her predecessors in title.

Stay of execution

58.  The power to stay execution pending appeal under section 66 of the DCO is discretionary.  As far as this court is concerned, there is no good reason for depriving the defendants of their fruit of success in the action when leave to appeal is refused on the ground that the intended appeal has no reasonable prospect of success.  Whether or not the plaintiff would seek a different view of his application from the appellate court is a matter for him.

Conclusion on leave to appeal and stay of execution

59.  The plaintiff’s summons for leave to appeal and stay of execution is dismissed with costs on a party and party basis, to be taxed, if not agreed, with certificate for one counsel.  The plaintiff’s own costs shall be taxed in accordance with legal aid regulations.