LIU KAM HOI AND OTHERS v. LIU PING KUEN, the personal representative of the estate of LIU FUN

CACV 209/2017

[2019] HKCA 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 209 OF 2017

(ON APPEAL FROM HIGH COURT ACTION NO 6728 OF 1998)

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J U D G M E N T

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Hon Yuen JA (giving the judgment of the court):

1.  On 20 December 2018 we dismissed the defendant’s appeal from the Judgment of Recorder S Wong SC given on 16 August 2017. On 22 February 2019 we handed down Reasons for Judgment.

2.  The defendant has applied for leave to appeal to the Court of Final Appeal.  The grounds appearing in his Amended Notice of Motion are as follows:

“ (1) Where an owner has pleaded a subsisting lease as defence to a squatter’s claim for possessory title of the owner’s land, does the squatter bear the burden to prove the negative (of lack of a lease) or is the burden on the owner to prove the positive (viz. the subsistence of the lease)? Must a squatter’s claim for possessory title fail if he cannot prove that the owner has not granted him such a lease?

(2) Can a judge validly grant a vacant possession order not sought for by a claimant? Where an owner claims vacant possession specifically of part only of his land-holding, namely, portion let under a specific lease, and has no acceptable proof that certain parcel of land in his land-holding was subject to such or any letting, can a trial judge nonetheless order delivery of vacant possession against an occupier of the ‘un-let’ parcel in the absence of a claim for vacant possession of all other parts of the land-holding?

(3) Where a trial judge has considered all the evidence before him and concludes that he cannot make a finding of a material fact pleaded by the plaintiff, making it necessary for him to decide the case on the burden of proof, can (or when can) an appellate court substitute the judge’s conclusion with its own conclusion/finding of fact, based on its assessment of the evidence de novo, in circumstances where the plaintiff as respondent has never contended, either by way of a respondent’s notice or submissions at the appeal hearing, that the judge was palpably or plainly wrong in his conclusion or assessment of the evidence and was wrong not to have made a finding of fact at all, or one in line with the appeal court’s conclusion which is in the plaintiff’s favour?”

3.  Section 22(1)(b) Hong Kong Court of Final Appeal Ordinance Cap.484 sets out the criteria for leave to appeal to that court.  It does not appear to us that any of the questions in the Amended Notice of Motion is of great general or public importance as they are case-specific. 

4.  As for the application for leave on the “or otherwise” limb, it is the practice of this court to leave that ground of application to the Court of Final Appeal itself.

5.  The application is accordingly dismissed with costs.  Having considered the plaintiffs’ written submissions and their statement of costs, we consider $150,000 to be an appropriate sum.