CHI YUM BUDDHIST HALL ASSOCIATION LTD v. YU LIK WAI WILLIAM AND OTHERS

CAMP 460/2022, [2023] HKCA 1061

On Appeal From [2022] HKDC 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 460 OF 2022

(ON AN INTENDED APPEAL FROM DCCJ NO. 642 OF 2019)

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(By Original Action)

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(By Counterclaim)

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D E C I S I O N

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Hon Cheung JA (delivering the Decision of the Court) :

I.  Introduction

1.  This is the renewed application of the 1^st, 2^nd and 4^th defendants (by original action) who are also the 1^st, 2^nd and 3^rd plaintiffs (by counterclaim) (‘D1’, ‘D2’ and ‘D4’ respectively and collectively, ‘the defendants’) by way of summons dated 1 November 2022 for leave to appeal out of time to the Court of Appeal against the judgment of Deputy District Judge Jonathan Wong dated 14 April 2022 (‘the Judgment’). The Judge 1) gave judgment for the plaintiff against the defendants and the 3^rd defendant, granting an order for possession of a Chinese Buddhist Hall and the land (‘the Land’) it was built on (collectively, ‘the Property’) and also granting an injunction restraining the defendants and the 3^rd defendant from entering, remaining, or in any other way trespassing the Property; and 2) dismissed the counterclaim made by the defendants.

2.  The Judge in his Decision dated 14 October 2022 (‘the Decision’) had dismissed their application for leave to appeal. Having considered the documents filed and lodged by the parties, we are of the view that it is appropriate to determine the present application on paper without an oral hearing.

II.  Procedural background

3.  The relevant background is summarized in [2] to [17] of the Judgment. In a nutshell, the plaintiff is a Hong Kong company that has, since November 2017, held a licence issued by the District Land Office (‘the DLO’) in respect of the Land on which the Property is situated, and claimed that the defendants and 3^rd defendant had trespassed on the Property. Madam Lau Pik Kwan Echo (‘Lau’) and her husband Mr. Tsang Yuk Piu (‘Tsang’) are the directors of the plaintiff.

4.  According to Lau and Tsang, their association with the plaintiff and the Land came about due to Lau’s association with Aunt Kwan, one of the founders of the Buddhist Hall built on the Land. The Land was originally licensed by Government Land Licence in 1963 (‘Original Licence’) to four founders who included Aunt Kwan who built the Buddhist Hall. Lau is the grandniece of one of the disciples (‘Grand Aunt’) of Aunt Kwan. Lau lived for a period with Grand Aunt and Aunt Kwan. The plaintiff was incorporated in 1964, with Aunt Kwan being one of the directors. When Aunt Kwan passed away in 2003, Grand Aunt became the successor to her property. In 2003, at the request of the Grand Aunt, Lau and Tsang became directors of the plaintiff. In 2017, the Licence was issued to the plaintiff in respect of the Land and the plaintiff replaced the Founders as payer of the licence fees. The Special Conditions of the newly-issued Licence were similar to those of the Original Licence.

5.  D1, D2 and D4 disputed the plaintiff’s claim, and also commenced a counterclaim against the plaintiff. D4 is a Cayman company, of which D1 and D2 were at all material times respectively the sole directors and only shareholders.

6.  The remaining defendant, the 3^rd defendant, are unknown persons entering or remaining without the consent of the plaintiff at the Property and other unknown persons interfering with the plaintiff’s use, occupation and enjoyment of the Property.

7.  D1, D2 and D4 pleaded the following defences against the plaintiff’s claim, alleging contractual rights to occupy the Property and also by way of estoppel, as follows :

1)  Pursuant to an alleged agreement with the plaintiff made in 2010 partly in writing and partly orally (‘Alleged Agreement’), D2 and D4 had the sole right to occupy the Property and also the obligation to fund its operation including the maintenance and upkeep of the Property, and the plaintiff would permit D2, D4 and their agents to occupy the Property during the pendency of the Licence. The part of the Alleged Agreement made in writing was contained in a written agreement dated 1 November 2010 made between D4 and the plaintiff (‘Written Agreement’), whilst the oral part was pleaded to have been made in conversations between D2, Lau and Tsang in 2010.

2)  D4 is entitled, by virtue of proprietary estoppel, to occupy the Property during the pendency of the Licence. D4 had in reliance on and pursuant to the Alleged Agreement occupied the Property and operated the Buddhist Hall there since 2010. The plaintiff was aware of D4’s performance of its obligations under the Alleged Agreement and encouraged D4 to incur substantial expenditure in running and refurbishing the Buddhist Hall.

3)  In the alternative, in order to encourage D4 to incur substantial expenditure, the plaintiff had acquiesced in D4’s expenditure.

8.  D1, D2 and D4 also counterclaimed against the plaintiff, Lau and Tsang for, inter alia, an injunction restraining them from preventing, hindering or interfering with the occupation of the Property (‘counterclaim’).

9.  The trial was heard on 13, 17 and 20 September 2021. The defendants were not represented and did not appear. Their absence from the trial, and the consequences arising out of their absence, is an issue relevant to one of the intended grounds of appeal raised by them in this application.

10.  Prior to the trial, a pre-trial review was heard on 12 July 2021. In the months prior to the pre-trial review, D1 and D2 sent letters to the Court asking for an adjournment of the pre-trial review and trial. These letters, along with responses from the plaintiff and the Court, are summarised in the Judgment at [8] to [14]. Essentially, D1 and D2 asked to adjourn on the basis of their being stranded in Malaysia due to COVID. No adjournment was granted.

11.  At the pre-trial review on 12 July 2021, DDJ Rebecca Li at the request of the plaintiff ordered, inter alia, that the Counterclaim be provisionally struck out and fixed the trial to commence on 13 September 2021. Thereafter, D1, D2 and D4 further wrote to the Court and sought to adjourn the trial.

III.  The Judge’s judgment

12.  On the first day of trial, the Judge decided 1) not to grant an adjournment of the trial; 2) to dismiss the counterclaim in light of the absence of D1 and D2; and 3) to grant leave to the plaintiff to amend the Statement of Claim in order to make clear that references to ‘Shun Yu’ in the Statement of Claim referred to the D4.

13.  The Judge proceeded to hear the case and ordered the plaintiff to prove its case. Lau and Tsang both gave evidence at trial. The Judge summarised their evidence at [38] to [67] of the Judgment. He concluded at [68] that he accepted their evidence in their entirety, on the basis that

‘ There was no challenge against the evidence of Lau and Tsang and the material aspects of their evidence is consistent with the cotemporaneous documents…’

14.  As to the substantive issues, the Judge rejected the defences of the defendants set out at [7] above and accepted the plaintiff’s case that as the licensee in respect of the Land, the plaintiff may claim possession against a trespasser and was entitled to the relief sought.

IV.  Subsequent applications by the defendants

15.  The defendants then issued two applications in the court below. The first application was issued whilst they were still acting in person. They issued a summons dated 13 May 2022 for leave to appeal against the Judgment out of time and for a stay pending the outcome of the leave application (‘1^st Application’). The draft Notice of Appeal attached to the 1^st Application contained 11 intended grounds of appeal. Those 11 intended grounds of appeal are substantially the same as the 11 intended grounds of appeal contained in the present application before this Court. The second application made by them was made with legal representation. On 24 August 2022, they issued a summons seeking to set aside the Judgment on the basis of their absence from the trial (‘2^nd Application’). The Summons sought an order that the Judgment

‘ be set aside for reason that [D1, D2 and D4] could not appear at the trial that took placed [sic] on 13, 17 and 20 September 2021 when [D1 and D2] were being locked down in Malaysia …’.

16.  The Judge heard both applications on 31 August 2022. By the Decision, the Judge dismissed both the 1^st and 2^nd Applications. As recorded in the Decision, Counsel for D1, D2 and D4 confirmed at the hearing that they no longer pursued the 1^st Application :

‘ At the adjourned hearing on 31 August 2022, Mr Dickson Chan and Mr Neal Clough appeared respectively for the plaintiff and [D1, D2 and D4]. In the light of its (lack of) merits, Mr Clough confirmed that [D1, D2 and D4] no longer pursued the 1^st Application.’

17.  The Judge was only required to deal with the 2^nd Application.

V.  The present application

18.  On 1 November 2022, D1, D2 and D4 issued the present application.

1)  Applicable principles

19.  The relevant approach to determine an application for extension of time to appeal is well established, namely, the Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted.

2)  Grounds of appeal

20.  The defendants have set out eleven grounds of appeal in the draft Notice of Appeal. Ground 1 challenges the Judge’s decision in not adjourning the trial. Grounds 2 to 10 deal with the merits of the Judgment. Ground 11 purports to explain the delay in bringing the application.

3)  Our view

21.  As observed earlier, Counsel for the defendants had informed the Judge below that the defendants would not pursue the application for leave to appeal because of the lack of merits of the application and the only issue before the Judge was their application to set aside the Judgment that had been entered in their absence. In the light of the abandonment of the application for leave to appeal, we see no justification for this Court to hear the same application afresh when the defendants have not put forward any grounds why we should do so. In any event, the grounds are not reasonably arguable. The Judge’s refusal to adjourn the trial was a proper exercise of his discretion and he had also correctly addressed the essential issues of the case. We will dismiss the application.

22.  The defendants have not challenged the Judge’s refusal to set aside the Judgment that was entered in their absence. In any event, even if they have intended to do so, we can see no merit in their challenge. The Judge had set out the reasons for his refusal in his Decision of 14 October 2022. We do not see any error in the exercise of his discretion.

VI.  Conclusion

23.  For the reasons set out above, we dismiss the summons dated 1 November 2022. We order D1, D2 and D4 to pay the plaintiff’s costs of this application to be assessed summarily at $45,000, and no order as to costs between the 3^rd defendant and the other parties.

24.  As this application is totally without merit, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, we will make an order that no party may request our determination to be reconsidered at an oral hearing inter partes.