LAU TIM FAT AND OTHERS v. LI BANG-YUEN AND OTHERS

HCMP 1117/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1117 OF 2004

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J U D G M E N T

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1.  This is an application made ex parte on notice on an urgent basis to stay, on an interim basis, the judgment of Deputy Judge L Chan given on 27 February 2009.  No satisfactory explanation has been provided as to why this application is made at this very late stage.  

2.  The interim stay is sought between now and 14 July 2009 when an application for stay of execution by the 3^rd defendant will be made before Deputy Judge L Chan.

3.  As far as I can see from the papers, the proposed appeal against the judgment of Deputy Judge Chan is on a question of fact. 

4.  The judge dealt with the matter carefully in his judgment dated 27 February 2009.  The plaintiffs’ action was to recover the various lots.  The defendants were trespassers on the plaintiffs’ case.  At the time of the trial only the 3^rd defendant was resisting the claim. 

5.  One of the defences raised by the 3^rd defendant was that he had a tenancy over the land from the 15^th defendant which was granted by one Winker Development Limited owned by one Max Chan as the agent of the 15^th plaintiff.  That was the tenancy dated 1 November 2001 with a 5-year term expiring on 31 October 2006. 

6.  The 3^rd defendant also relied on an option to renew the tenancy for another 3 years that was granted by Winker Development Limited on behalf of the 15^th plaintiff on 10 November 2001 and on the 3^rd defendant’s case the option had been exercised on 28 August 2006.  He, therefore, claimed to be entitled to remain on the land until 31 October 2009. 

7.  The judge dealt with the issues before him by reciting the evidence put forward on behalf of the 15^th plaintiff and on behalf of the 3^rd defendant.  Having heard the evidence the judge made his findings of fact. 

8.  He found as a fact that Max Chan was not authorized to let out the land.  As regards the tenancy agreement the judge found that the chop mark of the 15^th plaintiff and the signatures of the two directors of the 15^th plaintiff on the tenancy agreement were forged.  He found as a fact that the 15^th plaintiff had not granted any authority to Max Chan to let out the land to the 3^rd defendant or to grant an option to renew as alleged.

9.  He found that the 3^rd defendant gave inconsistent evidence.  As a matter of credibility he was disbelieved.  He made it clear that he accepted the evidence of Mr. Chan Lau Fong, the father of Max Chan. 

10.  So on those findings of fact it seems to me that there is very little chance, if any, for the 3^rd defendant to succeed on an appeal from the judge’s judgment. 

11.  The 3^rd defendant also relies on the affirmation of Chan Yuk Ping, the wife of Max Chan.  Miss Gwilt recognizes that this is new evidence and that she has a difficult task in persuading the court that the evidence ought to be relied on at the hearing of the appeal.  This evidence goes to the question of the option agreement and the knowledge of the 15^th plaintiff as to the option having been exercised. 

12.  It is well settled that where there has been a trial on the merits fresh evidence will not be admitted in the Court of Appeal unless the conditions laid down in Ladd v. Marshall are satisfied and a strict approach is adopted (marginal note 59/10/10 Hong Kong Civil Procedure 2009). 

13.  The first condition to be fulfilled is that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial below.  No attempt has been made to show that the evidence now relied on could not have been obtained with reasonable diligence for use at the trial.  The 3^rd defendant will, in my view, fail to establish and satisfy the first condition laid down in Ladd v. Marshall. 

14.  In the circumstances I see no reasonable prospect of success of the appeal and there is no reason, in my view, to stay the execution of the judgment.  I will dismiss the application.