LAI WAI CHUN v. CHAN PUI CHUEN

DCCJ 1933/2021

[2025] HKDC 1984

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1933 OF 2021

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DECISION

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1.  The Plaintiff took out a summons (“P’s Summons”) on 7 May 2025 for leave to appeal from my judgment handed down on 10 April 2025 (“the Judgment”) and for a stay of execution of the Judgment pending outcome of the P’s Summons.

2.  A draft Notice of Appeal which was attached to P’s Summons has set out her grounds of appeal. I directed that P’s Summons would be determined on paper without an oral hearing. The parties have provided me their respective written submissions in accordance with my directions. I have duly considered all the submissions provided by the parties. The facts and the reasons for the Judgment have been set out therein and I do not repeat the same here. For ease of reference, the abbreviations used in the Judgment are adopted in this decision.

Applicable Principles for Leave to Appeal

3.  The legal principles applicable for leave to appeal are well-established. Section 63A of the District Court Ordinance, Cap 336 (“DCO”) is the governing provision. Section 63A(2) stipulates:-

“(2) 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.”

4.  The relevant test of whether an appeal has a reasonable prospect of success under section 63A(2) of the DCO is whether the applicant can show that he has an arguable case with reasonable chances of success on appeal. It means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see the Court of Appeal (“CA”) decision in KNM v HTF per Fok JA (as the learned PJ then was) at paragraph 9[1]. The same test has been consistently applied by the CA: see for example, Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi & Others[2].

5.  If there is a challenge of the court’s finding of facts, the following legal principles apply:-

(a)  The CA can only intervene in a finding of fact by a primary judge where the finding is plainly wrong;

(b)  In an appeal, the CA focuses on the question whether the primary judge has fallen into palpable errors which could only give rise to grounds for intervention by the appellate court; it is not germane that the CA may reach a different conclusion from that of the judge;

(c)  Where a trial judge has reached a conclusion on the primary facts, the kinds of mistake which could engage an appellate court’s power of intervention are:-

(i)  where there was no evidence to support the conclusion;

(ii)  the conclusion was based on a misunderstanding of the evidence; or

(iii)  the conclusion was one which no reasonable judge could have reached.

6.  As such, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the 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. The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category. (See China Gold Finance Ltd v CIL Holdings Ltd, unreported, CACV 11/2015, 27 November 2015 at paragraphs 14 and 16, and Yu Pak Kan v Busy Firm Investment Limited [2023] HKCA 105 at paragraph 19)

The proposed grounds of appeal

7.  The draft grounds of appeal in P’s Summons can be broadly grouped into four groups as follows (“P’s Grounds of Appeal”):-

Evidence

(i)  I ought to have held that P was a truthful witness and accept her evidence (Ground 4);

(ii)  I relied on my own interpretation of the aerial photos to draw conclusions in terms of agricultural or other activities across the Disputed Land and failed to consider the relevant common character of locality of the Disputed Land (Ground 2);

(iii)  I ignored expert evidence and erred in finding that dense vegetation on parts of the Disputed Land indicated a lack of possession (Ground 5);

(iv)  I erred in law and fact by placing undue weight on the absence of documentary evidence to dismiss P’s claim (Ground 9);

Factual Possession

(v)  I erred in law and fact in concluding that the Disputed Land was not exclusively occupied by P from 1983 to 2003 because:-

(a)  There is no evidence to the contrary (Ground 1);

(b)  I misapplied the legal test for factual possession by failing to consider the relevant common character of locality of the Disputed Land (Ground 2);

(c)  I failed to give sufficient weight to P’s evidence of unequivocal acts of possession (Ground 3);

Animus possidendi

(vi)  I erred in law and fact in failing to find that P had the requisite intention to possess the Disputed Land because:-

(a)  I misapplied the test in Powell v McFarlane (1979) 38 P & CR 452 by failing to take into account of P’s own belief that she purchased the Disputed Land from her Mr Sin Cheung in 1982 (Ground 7);

(b)  I ought to have inferred animus possidendi from P’s unequivocal acts of possession (Ground 8);

Damages

(vii)  The order for mense profit is incompatible with the finding that P did not exclusively occupy the entirety of the Disputed Land (Ground 10).

8.  Mr Tsang for D submitted that P’s Grounds of Appeal are challenges to the Court’s finding of facts and the appellant court would only reverse a finding of primary fact if it were satisfied that the finding is plainly wrong. If not so satisfied, it would defer to the trial judge’s conclusion on fact even if in some doubt as to its correctness: Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336 at paragraph 42.

9.  It is in Mr Chan’s Reply Submission paragraph 4 that P is not only seeking to appeal against my finding of facts but against the facts that I reached through a process of inferences from documentary or expert evidence. Indeed, appeal against findings of facts made by a process of inference will be approached very differently from findings of primary facts by the appeal court, see Ting Kwok Keung v Tam Dick Yuen [2002] 1 HKC 601 per Bokhary PJ at 611B to E. In drawing inference, the appellate court is in as good a position as the trial judge and is free to arrive at a conclusion different from that of the trial judge: as per Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657 at 663 (See Wong Sui-Kwan v Cheong Pui Fan, DCCJ 4987/2004, 18 May 2007).

10.  However, I do not agree that my findings were made by inference but based on factual observations, assessment of credibility of witnesses and weighing of evidence. The assertion that I assumed the experts’ role in making my own interpretation of the A-Photos is plainly incorrect. Paragraph 51 of the Judgment simply narrated my observations of the A-Photos exhibited by both experts and in fact my observations were largely consistent to their respective reports. After all, an exercise of visual examination of A-Photos “is not something so out of the ordinary experience and capability of a judge that he may not come to a view different from the experts.” See paragraph 24 of Chung Liburt Wong v Pun Lai Yin Stella [2023] 3 HKLRD 119.

11.  The finding that the vast area of Disputed Land was abandoned was not an inference made out by my observation of the A-Photos but with careful consideration of all other evidence. Paragraph 52 of the Judgment showed my analysis of the A-Photos coupled with the Joint Statement as well as P’s evidence, and I did not jump to the conclusion that the Disputed Land was abandoned, as suggested by Mr Chan. Rather, I made my finding in paragraph 53 that the dense vegetation was “more likely to be natural/wild grown trees”.

12.  Likewise, it is baseless for P to suggest that I ignored expert evidence that dense vegetation could result from cultivated fruit trees or natural barriers (Ground 5 of the P’s Grounds of Appeal). The Joint Statement from the experts agreed that the “majority of the Disputed Land had been covered with dense vegetation for most of the time with no signs of cultivation.” See paragraph 50 of the Judgment.

13.  I do not consider that the P has any reasonable chance of success in appealing against many of my primary findings of facts, particularly those after going through a weighing exercise. In fact most of the P’s Grounds of Appeal raised by P was considered and explained thoroughly in my Judgment and I do not intend to regurgitate here. I however wish to highlight the followings:

14.  By referring to paragraph 35 of the Judgment, Mr Chan stated in paragraph 6 of his reply submissions that “The Court found P a reliable witness, yet concluded that there was abandonment without reconciling this with the accepted evidence of continuous family use.” The Court, in fact, never ruled P being a reliable witness. Paragraph 35 of the Judgment read as follows:-

“As pointed out by D’s Counsel Mr Tsang, there are inconsistencies and weaknesses in P’s evidence, but in my view, not all of them are central to the resolution of the main dispute.”

15.  Mr Chan appeared to use the terms “Disputed Land” and “Occupied Land” interchangeably but careful distinction between these two terms must be drawn. The crucial question of this case is whether P was able to prove both her factual possession and intention over the Disputed Land that was part of the Occupied Land. However, in paragraph 8(2)(a), Mr Chan suggested that the Court made a finding as follows:

“The Disputed Land was P’s family habitat and provided for the family’s living. P’s second and third children were born while P was residing on the Disputed Land (§30 of the Judgment) …”

16.  What in fact was said in the Judgment in the relevant paragraph was in the context of the Occupied Land, which read as follows:-

“The Occupied Land is and was essentially P’s family habitat that also provided for the family’s living. Her second and third child were born …, and thus their birth certificates were registered with the address of the Occupied Land.”

17.  The Court made it clear in the Judgment that there were evidence showing human activities on parts of the Occupied Land and the ultimate question in this case was whether P could elicit sufficient evidence to prove exclusive possession and the necessary adverse intention over the entire Disputed Land. Hence, the misuse of the term ‘Disputed Land’ could be dangerously misleading.

18.  To summarize P’s Grounds of Appeal, Mr Chan contended that while the Court found evidence suggesting possession over the Occupied Land (Sections A to D) and a small part of the Disputed Land, the Court ought to infer P’s requisite intention in occupying the entire Disputed Land. Mr Chan also contended that the Court ought to accept P’s evidence since D could offer no contrary evidence as to the historical use of the Disputed Land. Lastly, Mr Chan averred that the Court should infer P’s consistent intention and factual possession since 1983 over some short-lived structures such as first, the pool that I found was abandoned after P’s children have grown up, and secondly the East and West footpaths that both experts agreed only showing from 2015.

19.  It was held by Hon To J in paragraph 20 of Birkenhead Properties and Investments Limited v Lam Kai-Man & Anor (unreported) HCMP 1588/2012, 12 January 2016 that the paper owner of the property is not required to prove a positive case as the burden of proving adverse possession is on the squatter. The landowner is entitled to rely on its paper title and test the squatter’s case, and thus it is the squatter who bears the very high burden of proof.

20.  It is also trite that the squatter needs to establish (s)he has been in adverse possession of the land belonging to a paper title land owner for an uninterrupted period of 12 years or more.

21.  It is therefore clear that the Court should be slow in making any positive inference of P’s case in the absence of cogent evidence. I have already carefully considered in the Judgment all aspects of P’s evidence to conclude that no human activities could be found in the majority of the Disputed Land over a period of 12 years or more, and for the ease of reference for the appellate court when hearing P’s appeal, below is the reference as to the relevant parts of my findings in the Judgment vis-à-vis P’s Grounds of Appeal:

Ground 1: P offered no evidence to the contrary of her case — see paragraph 29 of the Judgment;

Ground 2: I misapplied the legal test for factual possession by failing to consider the relevant common character of locality of the Disputed Land — see paragraphs 24-25, 43 and 47 of the Judgment and paragraphs 10-12 above;

Ground 3: I failed to give sufficient weight to P’s evidence of unequivocal acts of possession — see paragraphs 36-54 of the Judgment;

Ground 4: I ought to have held that P was a truthful witness and accept her evidence — see paragraphs 37, 39, 44 and 52 of the Judgment;

Ground 5: I ignored expert evidence and erred in finding that dense vegetation on parts of the Disputed Land indicated a lack of possession — see paragraphs 50 - 53 of the Judgment and paragraph 12 above;

Ground 6: I erred in law and fact in failing to find that P had the requisite intention to possess the Disputed Land — see paragraphs 10, 16, 37-38, 47 of the Judgment;

Ground 7: I misapplied the test in Powell v McFarlane by failing to take into account the P’s belief that she purchased the Disputed Land in 1982 which supported her animus possidendi — see paragraphs 36-37 of the Judgment;

Ground 8: I ought to have inferred animus possidendi from P’s unequivocal acts of possession such as fencing, cultivation and building structures which demonstrated an intention to exclude the world — see paragraphs 45-47, 50-54 of the Judgment;

Ground 9: I erred in law and fact by placing undue weight on the absence of documentary evidence to dismiss P’s claim — see paragraphs 10, 36-37, 39-42 of the Judgment

22.  Last but not least, Ground 10 of P’s Grounds of Appeal suggested that the order for mesne profit is incompatible with the finding that P did not exclusively occupy the entirety of the Disputed Land.

23.  With respect, P’s complaint on this ground is misconceived as suggested by Mr Tsang. Paragraphs 55(6), (11) and (13) of the Judgment showed that a small area of the Disputed Land was occupied by P and her family over the years, and it defies logic and law that P only needed to pay mense profits when she occupied the entirety of the Disputed Land.

24.  In light of the above, I consider Mr Chan has failed to demonstrate that it is reasonably arguable that my findings are plainly wrong. There is no merit in any of the grounds proposed by P, and thus no reasonable prospect of success in P’s appeal.

25.  The P’s Summons must be dismissed.

Stay

26.  The existence of an arguable appeal is the minimum requirement before a court would even consider granting a stay. If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.

27.  Since the intended appeal does not have any reasonable prospect of success and the Leave Application has been refused, the Stay Application must also be refused.

Costs

28.  Costs should follow the event. The costs of P’s Summons for leave to appeal should be to the D, with certificate for counsel. I also order that the costs order nisi shall be made absolute if no application to vary the same is made within 14 days hereof.