LEE THEATRE REALTY LTD v. TONG WAH JOR AND OTHERS

CACV279/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 2009

(ON APPEAL FROM HCA No. 1251 OF 2003)

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BETWEEN

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D E C I S I O N

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Stay of execution pending appeal

1.  After a five day hearing, Deputy High Court Judge Carlson gave judgment for the plaintiff and ordered, among other things, the defendants to pull down the obstructing structures constructed over an area which encroached on the plaintiff’s property and also on a property to which the plaintiff has a right of way. The defendants lodged an appeal against the judgment and now apply for a stay of execution pending appeal.

Principle

2.  The principle is that a successful litigant should not be deprived of the fruit of its judgment and the Court will only grant a stay of the judgment pending appeal if the appellant can show that it has a reasonable prospect of success of the appeal and the appeal will be rendered nugatory if the judgment is not stayed.

The judgment below

3.  The defendants’ case is that they have been in adverse possession of the relevant area which extinguished the plaintiff’s title. The relevant area is a lane connecting Matheson Street and Percival Street in Causeway Bay. The Judge found that the relevant area has only been enclosed and in the exclusive possession of the defendants from 1990 onwards which is not sufficient to defeat the plaintiff’s title to its property. He accepted the evidence of two witnesses, the Leung brothers, who gave evidence for the plaintiff on this issue. No issue was taken at the trial by the defendants, who were then legally represented, on the right of the plaintiff to bring the action against them also in respect of the area in which it has a right of way. Mr. Man, counsel for the plaintiff, has referred to Gale on Easements 18^th Ed, paragraphs 1―01, 13―03 and 14―33 which shows that a person who enjoys a right of way is entitled to sue those who disturbed the right of way.

Reasonable prospect of success not shown

4.  The Judge decided the case on facts. The Court of Appeal is unlikely to disturb a finding of fact by a trial judge unless the finding was based on a material wrong consideration of the evidence, such as, for example, the finding was made contrary to some material uncontroverted evidence.

5.  In support of their application the defendants merely repeat their stand below of their long occupation but they have not shown why the Judge’s acceptance of the evidence of the Leung brothers was wrong.

6.  In my view the defendants have not shown that they have a reasonable prospect of success of the appeal. Having failed on the first hurdle, it is not necessary to consider whether the execution of the judgment will render a successful appeal nugatory. In this connection it is noted that the defendants stated that the remaining structure on the area is used for storage and the 4^th defendant only sleeps there from time to time.

Conclusion

7.  Accordingly the application is dismissed with costs to the plaintiff.