CHAN KIT v. YAU YIK WAH AND ANOTHER

HCMP 283/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO. 283 OF 2006

(INTENDED APPEAL FROM HCA 4259/2000)

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REASONS FOR DECISION

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Introduction

1. This is an application to extend time for appealing from the judgment of Recorder Ronny Wong SC that was given on 23 July 2004 in High Court Action No HCA 4259/2000 (“the Action”). 

2. In the Action, the plaintiff raised claims in respect of a house known in various periods of time as 35 Nam Wai, 89 Nam Wai and 22A Nam Wai, in Sai Kung.  The house stood or partly stood on Lot No 286 in Demarcation District No 214 (“Lot 286”).  By the Action, the plaintiff claimed that he was the owner of the house or alternatively for a declaration that he had been in adverse possession of the house for over 20 years.  The house was demolished in about April 2000 by the 1^st defendant who engaged the 2^nd defendant to do so, in the course redeveloping Lot 286.  The plaintiff claimed damages for the demolition of the house as well as the removal or destruction of his chattels inside it by the defendants. 

3. The Recorder rejected the plaintiff’s claim as regards his proprietary interest in the house or Lot 286 but gave judgment in his favour for damages in the sum of $110,000 against both defendants for the loss of his chattels inside the house.  

4. By a summons dated 13 February 2006, the plaintiff seeks leave from this Court to extend the time for him to appeal against the judgment.  

5. After hearing the parties on 1 March 2006, I refused the application.  My reasons appear below.

The law

6. The law in relation to extension of time for appealing is succinctly set out in para 59/4/14 of Hong Kong Civil Procedure, 2006, at p. 869, as follows:

“It is entirely in the discretion of the court to grant or refuse an extension of time.  The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appealing is extended; and (4) the degree of prejudice to the potential respondent if the application is granted; …”

Examination against the factors

7. The judgment was given on 23 July 2004, and the normal time as stipulated in the rules for launching an appeal is 28 days after the judgment.  The time had expired over a year and five months ago.  This is an extremely long delay which alone militates against leave being granted.  It has to be understood that a judgment against which there is no appeal is a final determination of the issues between the parties which should not be disturbed, not only because the successful party should not be deprived of the fruit of his judgment, but also because public interest requires the finality of court proceedings and prevention of multiplicity of litigation.

8. Regarding the reasons for the delay in his attempt to appeal, the plaintiff by his affirmation in support of his application for leave provides two explanations. 

9. First, it is said that at the time when the judgment was given, he did not have sufficient funds for launching the appeal.  As I see it, this is but a lame excuse.  In the hearing before the Recorder, the plaintiff and the 1^st defendant were each represented by solicitors and counsel.  The 2^nd defendant was not involved because he had not given any notice of intention to defend and interlocutory judgment for damages to be assessed had been entered against him on 26 April 2003.  The application now made by the plaintiff is made in person, demonstrating that had he wished to appeal, the lack of funds to retain legal representation could not have been a stumbling block.

10. Secondly, the main reason, as stated in the plaintiff’s affirmation, is that at the time when the Recorder gave his judgment, another case which similarly involved a claim based on adverse possession was on appeal, namely, CACV 71/2003, which was only decided in November 2004.  That case went to the Court of Final Appeal in FACV 7/2005.  The Court of Final Appeal gave judgment in FACV 7/2005 and in other similar cases, namely, FACV 12/2005, 13/2005 and 21/2005 only recently on 5 January 2006.  The plaintiff states that there was no point for him to launch the appeal in this case until the Court of Final Appeal eventually decided on those appeals.  The relevance of this reason for the delay will be examined together with the chances of the plaintiff’s succeeding in the intended appeal.

The intended appeal

11. The part of the judgment subject to the intended appeal of the plaintiff relates to the Recorder’s decision to dismiss the plaintiff’s claim for having a proprietary interest in the house and Lot 286 (“the premises”) by purchase or by adverse possession.  

12. The bases of the plaintiff’s claim of interest in the premises were as follows:

(1)   In 1967, he went into possession of the house as a tenant of Madam Shing Yuk Ying (“Madam Shing”). 

(2)   By a written agreement dated 21 December 1970 and made between Madam Shing and her three sons Yau Yan Fuk, Yau Ying Sau and Yau Ying Choi as vendors and the plaintiff and his wife as purchasers, the house together with the land were sold to the plaintiff and his wife for $10,000.

(3)   He had continuously occupied the said premises thereafter.

13. On the other hand, as found by the Recorder, on 20 March 1979, one Yau Koon Lin instituted High Court Action No 1157 of 1979 against the plaintiff for wrongful occupation of the house and claimed for possession and mesne profits for the plaintiff’s wrongful occupation as from 1 January 1968.  In respect of this 1979 action, the Recorder found:

“5. On 20 March 1979, one Yau Koon Lin instituted High Court Action No. 1157 of 1979 (‘the 1979 Action’) against the Plaintiff.  … The Plaintiff filed his Defence on 30 April 1979.  He relied on the sale and purchase of 21 December 1970.  He denied that house No. 89 was erected on Lot 286.  He pleaded in the alternative that Lot 286 was part of the estate of Yau Mo Fat who was the father of Yau Koon Lin and Yau Tin, the husband of Madam Shing.  If house No. 89 was erected in whole or in part on Lot 286, the Plaintiff relied on the beneficial interests of Madam Shing and her sons in the estate of Yau Mo Fat.  He also prayed in aid the Limitation Ordinance to defeat any claim for damages/mesne profits in respect of any period before 19 March 1973.

6. … The 1979 Action did not however proceed to trial.  The disputes between Yau Koon Lin and the Plaintiff remain unresolved.”

14. In respect of the 1^st defendant’s interest in the premises, the Recorder found as follows:

“7. According to the Sai Kung Land Register, Yau Mo Fat was the original Crown lessee in respect of Lot 286.  Yau Koon Lin succeeded to his interest by an instrument dated 3 August 1961.  After the death of Yau Koon Lin, his wife Wong Lai Ching became the registered holder pursuant to instruments dated 3 March 1994 and 10 June 1994.  By an assignment dated 10 December 1994, Wong Lai Ching, in consideration of $980,000, assigned Lot 286 and ‘the messuages erections and buildings thereon (if any)’ in favour of her son, the 1^st Defendant in these proceedings.”

15. Although the Recorder found that the plaintiff had been in continuous occupation of the premises since 1967 until the Action being commenced, and gave judgment in his favour for damages for the loss of various chattels inside the house, the Recorder rejected the plaintiff’s claim for any proprietary interest in the premises.  The Recorder’s reasoning for the rejection can be found in paras 21 and 22 of his judgment, the relevant parts of which read:

“21. The Plaintiff went into occupation of 22A in 1967.  He purchased 22A from Madam Shing by agreement dated 21 December 1970.  Yau Koon Lin instituted the 1979 Action on 20 March 1979.  The Plaintiff relied on his purchase to justify his possession.  He did not accept the paper title of Yau Koon Lin.  He set up his own title with the view of defeating Yau Koon Lin's paper title.  His case was that he did not possess ‘as of wrong’ but ‘as of right’.  On the basis of the two leading authorities which I cited above, his possession is not adverse possession for the purpose of the Limitation Ordinance.

22. … The Plaintiff is seeking a declaration that the 1st Defendant's title in the Land has been extinguished by the Limitation Ordinance.  The onus is upon him to prove adverse possession for the requisite period.  Yau Koon Lin instituted proceedings before the expiration of the twenty years period.  The 1^st Defendant acquired his title on 10 December 1994.  Vis-à-vis Yau Koon Lin and the 1^st Defendant, the Plaintiff is still relying on his purchase from Madam Shing.  He has to make good his title from Madam Shing but such exercise is totally different from a case on the basis of adverse possession.  The Plaintiff made no attempt before me to make good his title from Madam Shing.  He tendered no evidence in this action to support the averments which he pleaded in the 1979 Action.”

16. The two authorities cited by the Recorder were Buckinghamshire County Council v Moran [1990] 1 Ch 623 and Wong Tak Yue v Kung Kwok Wai David [1998] 1 HKC 1.

17. The plaintiff has not in his affirmation in support of this application raised any intended grounds of appeal.  I have no idea how he is supposed to challenge the Recorder’s decision in rejecting his claim for any proprietary interest in the premises.  The two authorities cited by the Recorder are indeed the two leading authorities on the subject, which support his decision.  The case of Chan Tin Shi v Li Tin Sung and others, FACV No. 7 of 2005, on appeal from CACV 71 of 2003, together with the three other cases, namely FACV 12/2005, 13/2005 and 21/2005, in respect of all of which the Court of Final Appeal gave a single judgment on 5 January 2006, does not relate to the bases of the Recorder’s judgment.  The Court of Final Appeal judgment, insofar as it may be said to be relevant to the present proceedings, dealt with the finding of facts of adverse possession in FACV 13/2005.  That part of the judgment has nothing to do with the Action and does not help the plaintiff in his intended appeal.  The law as enunciated by the Court of Final Appeal in these cases has no relevance, let alone any bearing, on the Recorder’s decision. 

18. In the circumstances, the alleged main reason for the attempt to launch an appeal against the Recorder’s decision as well as the chances of success of the intended appeal must be determined against the plaintiff.

19. Moreover, the plaintiff’s alleged adverse possession since December 1970, if at all, would have been thwarted by the 1979 Action brought by Yau Koon Lin, the 1^st defendant’s predecessor-in-title.

Degree of prejudice

20. The 1^st defendant has told me that after the demolition of the house in April 2000, the land has been left vacant.  However, he submits that after such a long time he does not wish to be troubled further with litigation.  The 2^nd defendant also states that he is working to make a living and he does not wish to be dragged into litigation again.  The very long delay in this case without any valid explanation for the delay, in my view, itself amounts to an injustice if the application is allowed, although no substantial prejudice has been shown.

Conclusion

21. In the circumstances, I refuse to exercise my discretion in favour of the plaintiff.  His summons for extension of time to appeal must be dismissed.  As both defendants do not ask for costs, I make no order in that regard.