HONG KONG FERRY (HOLDINGS) Co. Ltd. v. CHAN KWAN FAT and others

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J U D G M E N T

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Godfrey, J.A. :

1. This is an appeal from an order of Mayo J. made on 22 April 1994, dismissing the appellants' appeal against an order of the Master, made under Order 113 of the Rules of the Supreme Court on 3 March 1994, in favour of the respondent, for possession of some land at Lantau, in the New Territories.

2. The proceedings, issued on 4 June 1993, raised a familiar point, that is to say, whether squatters who were in occupation of land in the New Territories prior to the coming into effect of the New Territories (Renewable Crown Leases) Ordinance, Cap. 152 whereby Crown leases were renewed on 1 July 1973, are protected from eviction by virtue of s. 4(4)(c) of that Ordinance.

3. This court has decided that, in the case of a squatter who went into possession before 1 July 1953, s.4(4)(c) does preserve his rights. But in the case of a squatter who went into possession after 1 July 1953, this court has decided that the squatter has no rights which are protected by s. 4(4)(c).

4. The case in which the latter point was decided is Chung Ping-kwan & others v. Lam Island Development Co. Ltd.; unreported, Civil Appeal Nos. 66 & 67 of 1994 (26 October 1994). There is an application for leave to appeal from the decision in that case to Her Majesty in Council presently pending before another division of the Court of Appeal, which, if it considers that the point raised is one of great general or public importance, may well give leave to appeal. The decision in that case, whichever way it goes, will be determinative of the issues in the present appeal; none of the appellants here, on their own evidence, went into possession before 1 July 1953.

5. I am, for my part, satisfied that this court ought not to make any order at this stage which may prejudice the position of the appellants in the present case. Nevertheless, this court is bound by the decision of the Court of Appeal in Chung Ping-kwan's case as matters stand and it is possible:

(a) that the application for leave to appeal to the Privy Council in that case may fail; and

(b) that even if that application succeeds, the appeal to the Privy Council may be abandoned, or, if prosecuted, may fail.

6. What then is this court to do? In my judgment, the correct course is for this court to dismiss this appeal; but to stay execution of the order for possession made below until after the determination of the application presently pending before the Court of Appeal in Chung Ping-kwan's case for leave to appeal to the Privy Council and if leave granted further to stay such execution.

7. This will protect the appellants, who will not be evicted until after Chung Ping-kwan's case is finally resolved. It does, however, leave the respondent in limbo; and in my judgment, the right course is to provide that the respondent should be at liberty, at any time during the course of the stay, to apply to lift the stay if so advised.

8. In the event that the respondent applies to lift the stay, the appellants must be at liberty to apply to this court at the same time for leave to appeal to the Privy Council in the present case. In this way, the position of both the appellants and the respondent in the present case is preserved and this machinery should ensure that justice is done between the parties.

9. I would therefore propose an order be made dismissing this appeal, but staying execution of the order made below until after the determination of the application for leave to appeal to the Privy Council which is pending in Chung Ping-kwan's case and further staying such execution, if that application is successful, until after the determination of the appeal to the Privy Council in that case; but with liberty to both parties to apply to this court in the circumstances I have mentioned.

Mortimer, J.A.:

10. I also agree that this appeal must be dismissed.

11. No one who has heard the facts can but have considerable sympathy with the appellants. They have all been in adverse occupation of the land for well over 20 years, but by the provisions of the New Territories (Renewable Crown Leases) Ordinance, Cap. 152, s. 4(1), the respondents were deemed to have their Crown lease renewed. It is that which is determinative of these proceedings, for none of the appellants claims to have been in adverse possession for 20 years before 1 July 1973. So, following the decision of this court in Chung Ping-kwan v. Lam Island Development Co. Ltd., they have no rights which were preserved under s. 4(4) of that Ordinance, nor have any of them been in adverse possession of the land for 20 years under that new lease from 1 July 1973. Their claim on their own evidence, must fail.

12. However, as my Lord has said, there is an application before another division of this court in Chung Ping-kwan for leave to appeal to the Privy Council. As has been conceded by counsel for the respondents, that appeal, if leave is granted, is determinative of this appeal. In order to preserve the possible rights of the appellants I would agree also that any order for possession should be stayed in the same manner as has been proposed by my Lord.

Wong, J.:

13. I agree with the judgments delivered by my Lords. I also share their sentiments. Sadly there is nothing this court can do to help the appellants as the law now stands. We are bound by the decision in Chung Ping-kwan.

14. For these reasons I, too, would dismiss this appeal with a stay of execution in the form proposed by my Lord Godfrey.

Mortimer, J.A.:

15. In those circumstances, the appeal is dismissed. The order for possession will be stayed until the determination of the application for leave to appeal to Her Majesty in Council in the case of Chung Ping-kwan & Others. If that leave is granted, there will be an automatic stay of the order for possession until the determination of the appeal. There will be liberty to apply to lift the stay if the application for leave to appeal is refused, or if the appeal should fail. By the same token, the appellants will have liberty to apply for leave to appeal to the Privy Council should the application for leave in Chung Ping-kwan be not granted. There will be no order for costs of this appeal.