CHENG HANG FONG and CHENG TSAN CHEUNG suing as administrator of the estate of CHENG CHUNG PING, Deceased v. LOK KAM WING AND OTHERS

DCCJ 6217/2019

[2025] HKDC 1639

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6217 OF 2019

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BETWEEN

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DECISION

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Introduction

1.  By a summons filed on 9 October 2024, the 3^rd defendant applied for leave to appeal against my judgment dated 12 September 2024 (“my judgment”).

Legal principles

2.  Section 63A(2) of the District Court Ordinance provides:

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that…

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

3.  The test of whether an appeal has a reasonable prospect of success under the new statutory provision is the same test as applied before the amendment to Cap 336, i.e. whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal as is laid down in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd, HCMP 357/2011, 8/7/2011, unreported.

4.  Where the appeal is against the exercise of a discretion, the appellant ought to demonstrate that the decision was plainly wrong, or that the trial judge has taken irrelevant matters into consideration or has ignored relevant matters: see SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37 at p 48.

5.  In considering an appeal against a primary finding of fact, the question for the Court of Appeal was whether, even though it did not have the advantage enjoyed by the trial judge who received the evidence at first hand, it was nevertheless satisfied that his conclusion on the facts was plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if some doubt as to its correctness: see Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at pp 349J-350F.

6.  In Wong Myra Repizo v Ling Fung Coach and School Service Co Ltd trading as Ling Fung Coach and School Service Company and Jacky Wong School Bun Company and ano, CACV 64/2015, 7/12/2015 (unreported), the appellate counsel who sought to challenge the trial judge’s findings of fact was not the trial counsel. The Court of Appeal had this to say at para 21:

“This heavy burden of the appellant is not satisfied by re-running arguments that have been fully canvassed before the judge, or by asking the appeal court to evaluate the evidence afresh from reading selective parts of the transcript, or by trying to pick holes in the judgment by emphasising certain parts of the respondent’s testimony and complaining that the judge should not have rejected such evidence or should not have given insufficient weight to it.”

The intended grounds of appeal as formulated

7.  The 3^rd defendant is now represented by Mr Andrew HP Lau of counsel who was not the trial counsel.

8.  Mr Lau formulated 8 grounds of appeal. To err on the side of excess, they are reproduced below:

(1) On the finding that Lo YF stopped paying rent to the Estate in February 2011 before he sold the land to the 1^st Defendant on 11 July 2011 and since then his possession of the land had become adverse for the purpose of the Limitation Ordinance (Judgment para 75), the learned Deputy Judge ought to find that:

(a) The cause of action accrued from February 2011 and hence the new limitation period of 12 years should apply instead of 20 years (Judgment para 36);

(b) Lo YF showed the animus possidendi to displace the true owner from February 2011 onwards when he stopped paying rent, if not before that time;

(c) The 1^st Defendant continuously showed the same animus possidendi to displace the true owner from 11 July 2011 when he was passed the 3 squatter structures built on the land from Lo YF (Judgment para 30);

(d) The 3^rd Defendant seamlessly further displayed animus possidendi to dispossess the true owner when he bought the squatter structures and the land from the 1^st Defendant by a written agreement dated 31 October 2021 and a written declaration dated 1^st December 2012; and

(e) The 3^rd Defendant is therefore in continuous factual possession of the squatter structures and the land with the requisite intention to dispossess the true owner from February 2011, if not earlier. (Ground 1)

(2) On the determination to refuse the late application by the plaintiffs to amend the re-amended statement of claim and to file a 2^nd supplemental list of documents at commencement of trial (Judgment para 2) which sought to prove that Kenny collected rent of the land up to 2015 instead of 2004 (Judgment paras 4, 71), the learned Deputy Judge ought not to accept the changed evidence from the 1^st named plaintiff at trial that he was reminded by some unknown old documents (which could well be the 2 inadmissible affirmations under HCMP 85/2017 unless proved otherwise which was not (Judgment paras 7, 72) and ought not to allow the 1^st named plaintiff to have the second bite of the cherry by circumventing the learned Deputy Judge’s earlier decision in attempting to prove a disallowed un-pleaded case against his earlier decision in attempting to prove a disallowed un-pleaded case against his earlier pleaded case (Judgment paras 71-72) by using inadmissible evidence or otherwise a vague source of evidence, particularly as the learned Deputy Judge had ruled that such an approach is totally unacceptable (Judgment para 9). In fact, the learned Deputy Judge ought to find that such a new evidence (2015 instead of 2004 being the last year rent was collected by Kenny, see Judgment para 4) was a recent fabrication in the circumstances and the backdoor approach at trial to prove an un-pleaded case is totally unacceptable, consistently throughout all stages of trial after dismissing the late application at commencement of trial (Judgment paras 2-9). (Ground 2)

(3) The learned Deputy Judge misdirected himself in reaching the finding by inference that on balance it is more likely than not that the 1^st named plaintiff lost contact with Kenny in or about 2015 (Judgment para 73) and apparently Kenny only stopped collecting rent in 2015 though against the plaintiffs’ pleaded case (Judgment para 4) in failing to consider that:

(a) It is equally if not more hard to explain why the 1^st named plaintiff was already acting like an administrator in 1995 to have the alleged conversation with Mrs Lo long (Judgment para 50) long before he was appointed as a co-administrator in 2017 (Judgment para 26) and why Mrs Lo had to be told that the farmland were sold to the 1^st Defendant if the 1^st named plaintiff did not know that Mrs Lo had already moved to Tsz Wan Shan before the conversation and why Mrs Lo did not already know that Kenny had been collecting rent after 1992 if Lo YW and Lo YF indeed continued to pay rent to Kenny as alleged (Judgment para 25);

(b) Pastor Cheng moved in the huts from 1 February 2015 and stayed until in or about March 2019 (Judgment para 82), yet there is no documentary evidence after 1992 (receipt, accounting book, bank statement, property tax record, a lease or rental income in the probate documents or otherwise) that anyone had collected rent for the estate from Pastor Cheng or earlier occupants before or after the 1^st named plaintiff became one of the administrators of the estate of the Deceased on 2 March 2017 (Judgment para 26);

(c) The belief that the Lo family would pay rent in arrears if so demanded is an afterthought as there was no evidence that the Lo family was ever demanded payment of the rent in arrears before or after 2017 when the 1^st named Plaintiff became an administrator of the estate of the Deceased. (Witness Statement of the 1^st named Plaintiff para 13). Such a belief only supports the 3^rd Defendant’s case but is detrimental to the Plaintiffs’ case even if accepted;

(d) In fact, it is more likely than not that due to the insignificant amount of the rent (HK$50 per year), it had never been collected by Kenny or anyone after the Deceased passed away on 10^th June 1992 (Witness Statement of the 1^st named Plaintiff paras 5,10);

(e) Further, the 1^st named plaintiff is bound by his own evidence that he had to tell Mrs Lo who to pay rent to in 1995 (Witness Statement of the 1^st named Plaintiff paras 5,11) (Judgment para 58) which suggests that no rent was paid to anyone before 1995 (Judgment para 50);

(f) The 1^st named plaintiff is further bound by his own considered decision not to call Mrs Lo to testify that there was such a conversation in 2015 (Witness Statement of the 1^st named Plaintiff paras 5,11) which does not lend support to his credibility or to summon Lo YF and/or his younger brother who were living in the land to testify that they did pay rent to Kenny before and/or after 1995 (Judgment para 50); and

(g) There is never any evidence on how the rent had varied over the years from 1972 onwards which suggests that it had never been paid at least since 1992 if not even earlier, after 1985. It is inconceivable that if rent was continuously paid after 1985 or 2004, there was not even a recollection in the evidence of how much the rents had been increased and how often rents were increased or the tenancy or lease was renewed. (Ground 3)

(4) In coming to the belief that after the passing of the Deceased, Kenny did carry out his duty as administrator to collect rent of the land from Mr and Mrs Lo and after the passing of Mr Lo, from Lo YF (Judgment para 60), the learned Deputy Judge misdirected himself in failing to consider the fact that there is no evidence that either Kenny or the 2 named Plaintiffs put down the lease into the Schedule of Assets and Liabilities in the probate documents of 1994 and 2017 respectively (Judgment paras 58, 26). There was no reason why Kenny would have forgotten that if he were receiving rent annually at the material times (since 1992 until probate was granted to him in 1994) or the conversation alleged by the 1^st named Plaintiff with Mrs Lo did take place in 1995 that he was able to remind Mrs Lo to pay to Kenny but forgot to add back the lease in the Schedule of Assets and Liabilities when he became an administrator in 2017. Omissions of the lease by all administrators at all stages only suggest that the alleged lease was considered insignificant to be registered in the Schedule of Assets and Liabilities and the rent was so insignificant that it was never collected after 1992 or the tenancy agreement, or lease is detrimental to the Plaintiffs’ case if properly disclosed. (Ground 4)

(5) In attaching little weight to the evidence of an impartial witness, Chan Chi Hung Eddy as hearsay, vague and imprecise (Judgment paras 43-44, 53, 56), the learned Deputy Judge erred in failing to consider that the same can be said of the evidence of the 1^st named Plaintiff in view of the above. No reasonable judge would find the existence of a tenancy agreement or a lease without any evidence on the term of the tenancy or lease or other key terms in the circumstances and without any documentary evidence of the tenancy or lease or any record of rental payment given the unchallenged evidence that the Deceased was a chancellor of Pak Kong Man Sun School between 1970 and 1985 (Judgment para 54) and hence should be comfortable putting down in writing a tenancy or lease with clear terms and keeping a book of rental receipts and in view of other grounds of appeal above or below. (Ground 5)

(6) In accepting the evidence of the 1^st named plaintiff that the Mr Lo senior paid rent to the Deceased on 17^th February 1985 (Judgment para 55), the learned Deputy Judge erred in law in presuming that Mr Lo senior or others ought to have paid rent to Kenny after the Deceased passed away in 1992 or in failing to consider other grounds of appeal above or below where there is no evidence to support but contrary evidence to oppose such a view that rent was continuously paid after 1985. (Ground 6)

(7) On the evidence adduced at trial including but not limited to the above, on balance of probabilities, it can be more readily inferred that no rent was paid between 1992 and 1994 (Judgment paras 24-25) or between 1992 and 2011 when the land and the squatter structures were sold to the 1^st Defendant even if the tenancy or lease is found to exist and a payment of rent was made in or around 1985. (Ground 7)

(8) In any event, there is no evidence that the squatter structures were owned by the estate of the Deceased but not the Lo family and the alleged HK$50 annual rent in 1972 (Judgment para 23) which payment was allegedly witnessed by the 1^st Plaintiff in 1985 (Judgment para 55) should cover the land on which the squatter structures were sited but not for the land for gardening business only (Judgment para 47). (Ground 8)

Discussion

9.  Mr Derek Hu and Miss Jacqueline Chan, counsel for the plaintiff, submitted that Mr Lau in gist is complaining this Court’s findings of facts.

10.  For obvious reason, Grounds 2, 3, 4, 5 and 6 are attempting to reverse the findings of facts of the Court. To succeed in the argument it must be shown that the findings were plainly wrong. It is not enough to say that the Court should have found the facts otherwise which, with respect, Mr Lau is doing just that.

11.  I see no force in Grounds 2, 3, 4, 5 and 6.

12.  Ground 1 seems to be a misapprehension of my judgment. As rightly pointed out by Mr Hu and Miss Chan, I did consider the 3^rd defendant’s case on the basis that the requisite period was 12 years. In any event, even if established, proof of factual possession and intention to possess from 2011 is insufficient.

13.  Therefore, Ground 1 is misconceived.

14.  In Ground 7, Mr Lau argued that the Court should have made certain findings which are against the plaintiff’s case. Suffice it to say, there is no evidence on which the Court should make such findings. With respect, wishful thinking does not assist the 3^rd defendant.

15.  Ground 8 is not easily comprehensible. Mr Lau seems to be saying the Court should find that the structures did not belong to the deceased and the annual rent of $50 in 1972 should cover the land on which the structures were built only. This is a non-issue and in any event does not advance the 3^rd defendant’s case.

16.  There is no merits in Grounds 7 and 8.

Conclusion and order

17.  By reasons of the aforesaid, I am not satisfied that the 3^rd defendant’s intended appeal has reached the threshold of granting leave and therefore his application must be dismissed.

Costs

18.  Costs to follow the event. I make a costs order nisi that the 3^rd defendant shall pay the plaintiff the costs of this application with certificate for one counsel, to be taxed if not agreed.

19.  In the absence of any application for variation by summons within 14 days from the date of this decision, the costs order nisi shall become absolute.