MAN TIN FOOK ALSO KNOWN AS MAN TIM FOOK, DECEASED, AS REPRESENTED BY MAN MAY YUNG UNDER O.15 R.15 RDC v. 梁根林AND ANOTHER

CAMP 73/2019
and CAMP 74/2019
(Heard together)

[2019] HKCA 846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 73 OF 2019

(ON AN INTENDED APPEAL FROM DCMP 1213/2014)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 74 OF 2019

(ON AN INTENDED APPEAL FROM DCMP 1214/2014)

________________

________________

(Heard together)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  On 21 November 2018, Judge K W Wong (“the Judge”) gave judgment in favour of the Plaintiffs in two actions (DCMP 1213/2014 and DCMP 1214/2014) after trial in a land dispute. The Plaintiffs were the respective registered owners of the two pieces of land at Demarcation District No.102 (“D.D. 102”) in question. The Judge rejected the defence that the Defendants and their predecessors had been in adverse possession of the disputed land for the requisite period under the Limitation Ordinance and the legal title of the 1^st and 2^nd Plaintiffs in respect of the same had been extinguished. The Judge ordered possession of the land and mesne profits in favour of the Plaintiffs respectively and granted mandatory orders and injunctions against the Defendants.

2.  The 1^st Defendant applied for leave to appeal against that judgment and sought leave to adduce new evidence[1].  On 18 April 2019, the Judge rejected the application for new evidence to be admitted and refused leave.

3.  By 2 summonses of 2 May 2019 (one in CAMP 73/2019 and one in CAMP 74/2019), the 1^st Defendant renewed the application for leave in the Court of Appeal and sought a stay of execution of the judgment. In the draft Notice of Appeal attached to the summonses, the three grounds of appeal are exactly the same as those set out in the draft considered by the Judge when he refused leave. 

4.  By two further summonses of the same date[2], the 1^st Defendant also applied for leave to adduce new evidence for the purpose of the appeal. The evidence which the 1^st Defendant sought to adduce is the Lot Index Plan for D.D. 102 of 23 November 2018 which is the same piece of new evidence considered by the Judge when he dismissed the application for fresh evidence to be adduced.

5.  In the Decision of 18 April 2019, the Judge clearly explained the misguided reliance placed by the 1^st Defendant on Lot Index Plans which were not the source materials relied upon by the Judge in coming to his finding on the fence.  The relevant source materials, according to the Judge at [7(iv)] and [15] of the Decision, were the survey sheets, not the Lot Index Plan.  In the circumstances, the Judge was plainly right in concluding that Lot Index Plans, including the 2018 Lot Index Plan, could not be of any relevance in the appeal and the second criterion of Ladd v Marshall [1954] 1 WLR 1489 is not satisfied.

6.  Surprisingly, counsel for the 1^st Defendant did not engage with this part of the reasoning of the Judge in his submissions of 1 June 2019 in support of the applications before us for adducing the 2018 Lot Index Plan. We cannot see any basis for disagreement with the Judge in this respect.

7.  Counsel for the 1^st Defendant submitted in the Reply Submissions of 26 June 2019 that it was for the experts to interpret the 2018 Lot Index Plan and the purpose of its use in this appeal. The fallacy of this argument is that the 1^st Defendant did not seek leave to further expert evidence to be adduced and this Court would not second guess what such expert evidence would be.

8.  Moreover, the submission actually highlighted the purpose of admitting the 2018 Lot Index Plan which was not by itself of any assistance. Rather it had to be interpreted together with expert evidence on the preparation of Lot Index Plans and their relationship with the survey sheets. If that were so, there is no reason why such expert evidence could not be adduced by reference to the older Lot Index Plans and the survey sheets placed before the Judge.  Viewed thus, what the 1^st Defendant really sought to do in this attempt is to adduce evidence of a type which he with reasonable diligence could have adduced at the trial.

9.  For these reasons[3], the summonses for admission of new evidence are dismissed.

10.  The 1^st Defendant sought leave to appeal to reverse the finding of fact by the Judge that the Defendants had not been in possession of the disputed land continuously for the limitation period prescribed by the Limitation Ordinance.

11.  It has been said on many occasions that this court would not disturb the findings of fact by the trial judge unless we are of the view that such findings are plainly wrong.  In the absence of palpable errors in the judge’s consideration of the evidence, this court would not interfere with the assessment of evidence and the weight attached by the trial judge to a particular piece of evidence: see Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd CACV 11/2015, 27 November 2015; Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015.

12.  In the present case, none of the grounds advanced by Mr Lam (counsel for the 1^st Defendant) remotely demonstrates that the Judge was plainly wrong or made any palpable errors in his assessment of the evidence. Those grounds were summarized by the Judge at [22] of the Decision:

“ Ground 1: Since experts of the parties were not called to give evidence at trial, the Court erred in law in interpreting or accepting the Plaintiff’s submission on the survey sheets and aerial photos which should be a matter for experts. The Court also erred to accept, even with counsel’s consent, the mechanism of update of the survey sheets, which again should be a matter for the experts, and thus the Court’s conclusion is wrong or unsafe;

Ground 2: The Court erred in concluding that the Defendant had given 2 versions of lot boundaries when the effect of the amendment to pleadings is that such amendment takes effect from the commencement of action, and thus there is always only one version advanced by the Defendant;

Ground 3: The Court erred to doubt the date imprinted on the Defendant’s photo the authenticity of which was not in dispute and fabricated of the photo was not pleaded by the Plaintiffs: see [105] of the Judgment.”

13.  In the Judgment of 21 November 2018, the Judge gave a number of reasons for rejecting the evidence of the 1^st Defendant at [66] to [109] and [131].  The Judge helpfully summarized the same at [7] of the Decision. The absence of record of the fence in the survey sheet was but one of those many reasons and the Judge set out the background to the reliance he placed on the survey sheets at [7(iv)]:

“ the existence of the fence is inconsistent with objective source materials. Only aerial photos and survey sheets were referred to in the analysis of the experts and this Court. The last survey sheet referred to was dated November 2013. These survey sheets did not record existence of fence until 2001. Even so, it was only a small, localized one and was nothing compared to that described by the Defendant in term of scale and size. Further, given its alleged existence for over 30 years and the continued updating of information reflected in these survey sheets, it should have been recorded in the survey sheets had the fence really existed. Their absence was not a result of inaccessibility, cartographic omission or human error. It could not have escaped attention of any land survey teams over more than 30 years: see [76] to [93] of the Judgment.”

14.  At [76] to [93] of the Judgment of 21 November 2018, the Judge carefully examined the evidence relating to the fence. In respect of the absence of the fence in the survey sheets prior to 2001, the Judge said at [83] to [85] of the Judgment:

“ 83.  On the other hand, this Court does not believe the absence of fence from the survey sheets was the result of inaccessibility, cartographic omission or human error. It is because neither the experts nor the Defendant have put in evidence to suggest it is the case here. Further, the experts did not identify any inconsistency between the aerial photos and survey sheets in the present case which justifies the use of one type in preference to the other.

84.  As stated above, the fence, with its scale and size, is a rather conspicuous structure on the ground. This Court does not believe it would have escaped attention of any reasonable ground survey team over almost 40 years. Unless there is an outer boundary which has completely cut off its accessibility, which evidence is lacking, survey teams over the years should have a chance to bump into at least part of it, if not the entire fence.

85.  Additionally, these survey sheets seem to have been regularly updated in many material respects over the last 40 years. For example, there was no temporary structures at the upper half of the 3^rd Lot recorded in the 1973 survey sheet. In the 1983 sheets, there were quite a numbers of structures appearing with two on the NE direction of the 3^rd Lot. One of which was on Lot 1010. It marginally touched on the upper half of the 3^rd Lot. There was another one in Lot 1011. These structures had been identified by the Defendant as pigeon houses. In the 1999 sheet, similar structures in the nearby areas disappeared but the said two structures remained. Legend “小徑” meaning “small path” or “track” started to appear next to the temporary structure touching upon the upper half of the 3^rd Lot, although this track appeared to be there in 1983 sheets. The same two temporary structures were marked “TS” (standing for “temporary structure” in the 2006 sheets but starting 2011, they were marked “R” which stands for “Ruin”. This Court believes that if the lots in question were inaccessible, the area could not have been updated regularly in the manner described. It would be quite unbelievable that survey teams were unable to capture any part of the 470 m fence alleged by the Defendant but on the other hand, could find the apparently shorter fence separating the 3^rd Lot and Lot 993 which is exactly on the path where the alleged 470 m fence runs.”

15.  In our judgment, these are sound and cogent reasons and the Judge was entitled to come to his view on the implications of the absence of record of the fence in the earlier survey sheets notwithstanding the views of the experts at paragraph 15 of their joint statement. On the facts of the present case, we do not accept that the court must have further expert evidence before it can come to such finding.

16.  In any event, as the Judge observed at [14] of the Decision:

“ 14.  Firstly, it is the Defendant’s case that there existed the alleged fence since 1986. It is a question of fact, and the burden of proof is on the Defendant. After trial, this Court rejected the Defendant’s evidence in its entirety. Taking his evidence as a whole, even though the source materials are to be ignored, this Court’s conclusion will remain unchanged. He is still an untruthful witness and his evidence must be rejected (see the grounds in [7] above).  The additional evidence could not change this Court’s primary conclusion about his credibility and his evidence being unreliable.”

17.  As set out in the Judgment, the Judge’s finding in respect of the fence is well-supported by other evidence even if one were to ignore the survey sheets.

18.  There is nothing in the first ground of appeal.

19.  The second ground of appeal refers to the testing of the 1^st Defendant’s credibility by reference to the pleadings before as well as after amendments.  The Judge succinctly and correctly addressed the same at [28] to [30] of the Decision of 18 April 2019.  The submission of Mr Lam with reference to an amendment taking effect from date of writ (and the citation of cases on that principle) completely misses the point.

20.  The third ground of appeal refers to the Judge’s rejection of the date of a photo purportedly taken on 15 July 2012.  As the Judge pointed out at [32] of the Decision, this is a matter of little moment since the photo cannot in any event establish that the fence had been there for more than 12 years.

21.  What the Judge actually said at [105] of the Judgment was as follows:

“ 105.  On balance, this Court rejects the Defendant’s evidence relating to the existence of the alleged fence surrounding the Smaller Lot since 1986.  Although at cross examination Fong somehow confirmed a photo imprinted with 15.07.2012 showing a fence was taken at the border of the 1^st Lot and Lot 880, given the overall credibility of the Defendant, one doubts very much the time of the photo and the lot identities during cross-examination. Further, the burden is on the Defendant to convince the Court with clear, compelling, affirmative and cogent evidence that the Defendant/Leung Senior had been in possession with the requisite intention since the alleged time of 1986.  The said answer of Fong picked up by Mr Lam cannot help make the Defendant’s overall evidence more believable.”

22.  We agree with the submission of Mr Siu that the Judge did not make a finding that the photo was a fabrication though he expressed doubt on its reliability which the Judge was entitled to do.

23.  Like the other grounds, the third ground also has no merit.  

24.  The intended appeal has no merit at all.  This is an application which should not have been brought, particularly in light of the Decision of the Judge of 18 April 2019.

25.  We dismissed all the summonses of 2 May 2019.

26.  We are of the view that the application is totally devoid of merits.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court (Cap 4A), we order that no party may request this determination be reconsidered at an oral hearing inter partes.

27.  In view of the lack of merit of the application and the failure to pay heed to the Decision of 18 April 2019, in line with the approach of this court as set out in Compania sud Americana de Vapores SA v Hin-Pro International Logistics Ltd HCMP 1932/2014, 16 October 2014; Good Form Co Ltd v Cheung Wai Han HCMP 3153/2014, 16 January 2015; Ricoh Hong Kong Ltd v Wallbanck Brothers Securities (Hong Kong) Ltd HCMP 2228/2015, 13 May 2016, we would order the 1^st Defendant to pay the costs of the Plaintiffs in these applications on an indemnity basis.  After considering the respective statement of costs of the Plaintiffs filed in these applications, we fixed the costs of each Plaintiff at $80,000.