CHU CHUNG SHING INVESTMENT CO LTD v. LAM CHUNG AND OTHERS

HCMP 3456/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3456 OF 2016

(On intended Appeal from DCMP NO. 2773 of 2011)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

Introduction

1.  By a judgment dated 30 November 2015 (“Main Judgment”), Deputy District Judge WY Ho (“the Judge”) entered judgment for the plaintiffs for, among other things, an order of possession of the suit property and dismissed the counterclaim of the 3^rd and 4^th defendants for, among other things, possessory title of the suit property based on adverse possession.  The 3^rd and 4^th defendants’ subsequent application for leave to appeal was dismissed by the Judge on 10 June 2016.

2.  By a summons dated 10 December 2016, supported by an affirmation of the same date, the 3^rd defendant sought leave to appeal against the Judge’s judgment out of time and a stay of the judgment.  The plaintiff filed its statement of objection on 12 January 2017.  Having considered the written materials, we take the view that the 3^rd defendant’s application can be disposed of on paper.  We now hand down our judgment.

Discussion

3.  It is well established that when deciding whether an extension of time should be granted, the court will consider :

(1)   the length of the delay;

(2)   the explanation for the delay;

(3)   the merits of the intended appeal; and

(4)   the prejudice to the other party.

4.  Leave to appeal was refused by the Judge on 10 June 2016.  Pursuant to Order 58, rule 2(4A) of the Rules of the District Court, Cap 336H, the 3^rd defendant should renew her leave application before the Court of Appeal within 14 days after 10 June 2016, that is, 24 June 2016.  The 3^rd defendant applied for legal aid.  A memorandum of notification of her legal aid application was filed with the court on 17 June 2016.  Under section 15 of the Legal Aid Ordinance, Cap 91, the proceedings were automatically stayed for 42 days until 29 July 2016.  The deadline for her to renew the leave application before this Court therefore fell on 5 August 2016, after the legal aid stay expired.  However she did not do so until 10 December 2016.  She was 127 days late.  The delay was inordinate.

5.  The 3^rd defendant said she had insufficient funds to instruct a lawyer.  She therefore applied for legal aid. When legal aid was refused, she appealed against the refusal but her appeal was dismissed at the hearing on 25 November 2016.  And she only received the written notification of the dismissal on 8 December 2016.  As this Court has said repeatedly, the application for legal aid, the process involved and the ultimate failure to obtain legal aid, without more, is not a reasonable excuse for not prosecuting an appeal within the statutory time limit.

6.  The 3^rd defendant also complained that the Judge had refused to provide a Chinese translation of the Main Judgment when she asked for one at the hearing of her leave application on 10 June 2016.  We note that at the trial below, she was legally represented.  At the leave stage, she was acting in person.  But the absence of a Chinese translation of the Main Judgment did not prevent her from pursuing her leave application before the Judge.  We fail to see how the Judge could be criticized for refusing to provide a Chinese translation of the Main Judgment in the exercise of her discretion.  In any event, the 3^rd defendant had obtained a Chinese translation from a translation service provider in July 2016.  Plainly, the Judge’s refusal to provide a Chinese translation is not a satisfactory explanation for the inordinate delay in pursing the appeal.

7.  Since the 3^rd defendant has failed to explain the delay satisfactorily, she must demonstrate that her intended appeal has a real prospect of success.  For present purposes, we need not discuss the 3^rd defendant’s grounds of appeal in detail. 

8.  The 3^rd defendant first complained that the Judge had not considered various evidential aspects of her case on adverse possession.  In doing so, she is essentially appealing against the Judge’s findings of fact.  In order to succeed, she must demonstrate that those findings made by the Judge are plainly wrong.  That is a very high hurdle.

9.  We have read the Main Judgment.  The Judge had correctly stated the applicable legal principles on adverse possession. She was fully aware of all the factual issues pertaining to adverse possession.  She had carefully analyzed the parties’ evidence and for the reasons that she had stated, resolved the factual disputes in favour of the plaintiffs and against the defendants.  She had applied the legal principles to the facts as found by her.  In our view, her finding that the 3^rd and 4^th defendants had failed to establish adverse possession of the suit property and her other findings in support of the plaintiffs’ claims against them are entirely correct.  There is simply no prospect whatsoever that the 3^rd defendant could show that the Judge’s findings are plainly wrong.

10.  The 3^rd defendant said she suspected that the notice issued to the occupiers of the Roof by the plaintiffs were false because she and other occupiers had never seen them.  The Judge did not find the notices relevant and did not place any weight on them in coming to her findings.  There is no substance in this complaint.

11.  The 3^rd defendant complained that the Judge erred in finding that she and the 4^th defendant were jointly and severally liable for the damage caused by the structure occupied by them.  There is no substance in this complaint whatsoever when they were sued as joint tortfeasor.

12.  The 3^rd defendant complained that the Judge was wrong in ordering she and the 4^th defendant to pay the mense profit of the Roof jointly and severally.  There is no merit in this complaint when they were sued on that basis and the quantum of the mense profit was agreed at trial.

13.  Lastly, the 3^rd defendant said that she would endure great hardship if judgment were enforced.  But as a matter of law hardship is not a ground of appeal.

14.  To complete the discussion, we will dispose of the 3^rd defendant’s application to adduce new evidence to show that Part A and Part B of Flat B were separated by a partition wall in the living room and each part had its own entrance.  For such new evidence to be admitted on appeal, the 3^rd defendant must satisfy the court three conditions, one of which is that such evidence could not have been obtained at the trial with reasonable diligence.  The 3^rd defendant has failed to explain why such evidence was not adduced at the trial below, especially bearing in mind that she was then legally represented.  We reject her application to adduce new evidence.

Orders

15.  For the above reasons, there is plainly no reasonable, let alone, real, prospect of success in the 3^rd defendant’s intended appeal.  We therefore refuse to grant her leave to appeal out of time.  We also refuse the stay application.  Her summons of 10 December 2016 is dismissed in its entirety.

16.  Costs should follow the event.  We order the 3^rd defendant to pay the plaintiff’s costs to be assessed summarily.  We direct the plaintiff to file and serve a skeleton bill of costs (limited to 2 pages) within 14 days from the date of this judgment and the 3^rd defendant to file and serve a statement of objection (limited to 2 pages with no exhibits) within 14 days thereafter.  We will then assess the plaintiff’s costs on paper.

17.  As the 3^rd defendant’s application is wholly without merit, we make an order under Order 59, rule 2A(8) of the Rules of the High Court, Cap 4A, that no party may request our determination to be reconsidered at an oral hearing inter partes.