CHENG KA SHING v. BONUS PLUS COMPANY LTD

CACV 85/2020, [2023] HKCA 859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 85 OF 2020

(ON APPEAL FROM HCA NO. 674 OF 2013)

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JUDGMENT

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Hon Chu VP (giving the judgment of the Court):

A.  Introduction

1.  On 12 April 2023, we handed down our judgment[1] dismissing the plaintiff’s appeal against the judgment of Ng J (“the Judge”) given on 28 February 2020 which dismissed his claim for adverse possession.

2.  By a notice of motion filed on 10 May 2023, the plaintiff applies for leave to appeal our judgment to the Court of Final Appeal. The application is opposed by the defendant.

3.  Having considered the notice of motion and the written submissions lodged by both parties, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this appeal and the issues in the trial and this appeal have been set out in our judgment. We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

B.  The plaintiff’s application

6.  The plaintiff’s application is made under the “or otherwise” ground. The notice of motion puts forward five questions for decision by the Court of Final Appeal as follows (respectively “Question 1” to “Question 5”):

“(1) the first instance Judge’s wholesale rejection of the plaintiff’s evidence is unfounded and has such an exceptionally overwhelming flavour of bias that it would be a grave injustice to the plaintiff and open travesty of justice if his judgment is allowed to stand.

(2) the totality of the plaintiff’s evidence was inherently probable, credible, cogent and sufficient.

(3) the first instance Judge was manifestly wrong in holding against the plaintiff for not calling his wife to give evidence on construction of fences by the plaintiff’s father and the plaintiff.

(4) the first instance Judge was manifestly wrong in holding against the plaintiff for not calling his neighbour Wong Junior to give evidence.

(5) the first instance Judge wrongly characterised the plaintiff’s evidence as self-serving, hence to be given little or no weight.”

7.  The plaintiff’s written submissions refer to Questions 1 and 2 as the principal questions and Questions 3 to 5 as the subsidiary questions. In a nutshell, while acknowledging that it is not the practice of this Court to grant leave on the “or otherwise” ground, the plaintiff argues that as the Judge’s rejection of his evidence is seriously flawed and amounts to miscarriage of justice and he is aggrieved by the Judge’s decision, the case ought to be submitted to the Court of Final Appeal for determination.

8.  The plaintiff’s arguments under each of the questions may be summarized as follows:

(1)  Question 1

(1.1)  The Judge was unjustifiably bogged down in a meticulous and microscopic examination of the plaintiff’s case going back to 1979 and early 1980s on matters mostly historical, peripheral or secondary, when the plaintiff only needed to establish adverse possession for a continuous period of not less than 20 years expiring on or before 1 July 2011.

(1.2)  The Judge wrongly required documentary evidence, other than survey sheets, water supply records and the livestock keeping licences, to show that the plaintiff’s farm existed before the first livestock keeping licence was issued on 11 December 2000.

(1.3)  The Judge failed to have regard to Regulation 4(2)(a) of the Public Health (Animals and Birds) (Licensing of Livestock Keeping) Regulation, Cap. 139L (“Reg 4(2)(a)”), under which no licence may be granted unless the premises had been continuously used for livestock keeping for at least 12 months immediately before the Waste Disposal (Amendment) Ordinance 1994 took effect. The grant of a licence in 2000 is thus cogent and sufficient evidence that the plaintiff’s farm (which included the Disputed Area) had since at least 1 July 1993 been continuously used for livestock keeping.

(1.4)  The Judge erred in his approach to the plaintiff’s evidence, requiring the plaintiff to prove his case beyond reasonable doubt, and attacking the plaintiff’s credibility at every point. The plaintiff is aggrieved by the Judge’s depiction of him “as a dishonest witness determined to lie and make up stories as he went along” in that “his good and unblemished reputation is seriously injured on public record in the form of court judgment”.

(2)  Questions 1 and 2

(2.1)  There was incontrovertible or compelling evidence showing that for a continuous period of not less than 20 years expiring on 1 July 2011, (a) the plaintiff had operated a pig farm on his own land and had obtained a livestock keeping licence in December 2000 for a farm that covered the Disputed Area; (b) a high septic tank was built, which served as a continuous barrier, and, together with the adjoining bamboo grove, blocked the entry to the defendant’s land and replaced part of the original fencing and bamboo grove there; (c) the only access to the Disputed Area was through the plaintiff’s enclosed farm area; (d) two elongated southern strips, being part of Lot 759 along the northern frontage of the plaintiff’s land, were fenced in and under the plaintiff’s exclusive control; and (e) no one other than the plaintiff and his father would have built the southern boundary fence.

(2.2)  The rental agreement of an electric water pump dated 23 April 1990 was a significant document that supports the plaintiff’s case, showing that there was already electric supply to the plaintiff’s farm.

(2.3)  The plaintiff’s comprehensive account of the open, visible acts of cultivating the special pasture for pig feeds on Lots 860 to 862 ought to have been accepted as credible and sufficient evidence of the plaintiff’s intention to exercise a sufficient degree of physical control and possession over the lots.

(2.4)  Contrary to what was found by the Judge, the plaintiff did not embellish his evidence on the mesh door as he was merely responding to the defendant’s expert evidence.

(3)  Question 3

The drawing of adverse inference against the plaintiff from the fact that he did not call his wife as a witness is unwarranted since the plaintiff’s wife is not an independent witness and cannot be expected to add to the cogency or the substance of the plaintiff’s evidence.

(4)  Question 4

  It is not reasonable to expect the plaintiff to call his neighbours. Wong Senior, who had personal knowledge of the fences and the side gate, died before the trial whereas his son, Wong Junior, does not have personal knowledge of the relevant facts. It is also open to the defendant to call Wong Junior to testify.

(5)  Question 5

(5.1)  The Judge wrongly characterized the plaintiff’s application to surrender his livestock keeping licence and for compensation as self-serving statements that should be given little or no weight. Both the Judge and this Court wrongly assumed that the compensation was paid without a rigorous verification process. The approval letter from the Government had set out the areas of the pig farm and storeroom, which was said to be obtained after checking (經審核後).

(5.2)  The Judge also failed to consider that a livestock keeping licence was first issued in 2000 upon an application made in 1996 and after inspections were carried out at the plaintiff’s farm by government officers. The defendant could have, but did not, call the government officers to give rebuttal evidence.

(5.3)  The Judge also failed to appreciate that the principle on admission of self-serving evidence with skepticism in adverse possession cases only relates to the issue of animus possidendi and the principle should not be applied to the issue of factual possession.

C.  Our reasons for decision

9.  For the reasons set out below, we are of the view that the application has no merits and should be dismissed.

10.  First, the grant of leave under the “or otherwise” ground is exceptional: Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260 at [90]. Further, it is the well-settled practice of this court to defer consideration of the “or otherwise” ground to the Court of Final Appeal.

11.  Second, it is evident from the five questions and the plaintiff’s arguments that he is seeking to overturn the Judge’ findings of fact that his evidence is incredible, and he has failed to prove both the requisite continuous period of factual possession of the Disputed Area and the necessary animus possidendi. We have in our judgment upheld the Judge’s findings. It is well established that the Court of Final Appeal will not review concurrent findings of fact unless there are special circumstances, namely where there is miscarriage of justice or violation of some principles of law or procedure: Hong Kong Kam Lan Koon Ltd v Realray Investments Ltd (2010) 13 HKCFAR 215; Menno Leendert Vos v Global Fair Industrial Limited & Ors, FAMV 7/2015, unrep., 10 July 2015, at [17], citing Chinachem Charitable Foundation Ltd v Chan Chun Chuen (2011) 14 HKCFAR 798 at [40]-[58], and Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd, FACV 1/2015, unrep., 26 June 2015, at [24].

12.  The plaintiff argues there is a miscarriage of justice and special circumstances exist that merit intervention by the Court of Final Appeal. The argument is mounted on the bases that the Judge’s rejection of his evidence is seriously flawed, he is aggrieved by being depicted as a dishonest witness, and his evidence is inherently credible and weighty. However, the submissions in support of his challenge to the Judge’s findings, as summarized above, are in effect a re-run of the submissions made to us in this appeal. There is no attempt to engage with our reasons for rejecting his submissions and upholding the Judge’s findings. As the discussions of the five questions below show, the submissions fall short of showing special circumstances or a case of miscarriage of justice that warrants a review by the Court of Final Appeal.

C1.  Questions 1 and 2

13.  As pointed out in our judgment, the plaintiff’s complaint that the Judge’s approach to the evidence was wrong, in that he only focused on the events in 1979 or 1980 and did not address the core issue of whether he was in adverse possession for the 20-year limitation period, has to be considered in the overall factual circumstances of the case. We held at [50] and [52] of our judgment that:

“50. In light of (1) the fact that the fences existed before 1984, (2) the plaintiff’s failure to establish that the fences were erected by Cheng Senior in 1982 for the purpose of fencing off the land said to be in his possession from the world at large, and (3) there had been no significant change to the occupational status of the Disputed Area which was essentially enclosed by the fences, once the Judge rejected the plaintiff’s case and evidence on the start of the farm in 1979 and its expansion to the Disputed Area in 1980, there would be no basis for him to further consider whether Cheng Senior and the plaintiff had been in continuous possession in the 20-year period before the issue of the writ in April 2013. The present case is accordingly different from Yu Siu Cheuk.”

“52. … As analysed above, there is no evidential basis for finding that the plaintiff was in possession of the Disputed Area at some point before 1991 given the Judge’s rejection of the plaintiff’s evidence that the farm started in 1979 and expanded to the Disputed Area in 1980 and the objective evidence that there was no significant change to the land use and state of occupation of the Disputed Area up to 1992.”

14.  The plaintiff has simply not addressed the points we made. There is also no warrant for his criticism that the Judge applied the wrong standard of proof or was unfair in finding against him on credibility and rejecting his evidence and his case. There can be no doubt that the Judge had given full consideration to the evidence before him. Assessment of credibility and the weight to be given to the evidence are matters that the Judge, as a trial judge, was entitled to undertake. The Judge had given full reasons for his findings. What the plaintiff has sought to do, both at the appeal and in this application, is to ask the appellate court to view the evidence differently from the Judge and favourably to him. However, other than complaining that the Judge should not have made adverse findings against him, he has not really demonstrated in what way the Judge’s findings are plainly wrong.

15.  As to the argument on Reg 4(2)(a), the plaintiff accepts that this was neither raised at trial nor in the appeal before us. Despite this, he asserts that it is “an obvious point of law overlooked by everyone in the lower courts”. This is a bold assertion.

16.  Reg 4(2)(a) provides:

“Where any premises in respect of which a licence is applied for are within a livestock waste restriction area, the Director shall not grant the licence unless he is satisfied that —

(a) the premises had been continuously used for livestock keeping for at least 12 months immediately before the commencement of section 2 of the Waste Disposal (Amendment) Ordinance 1994 (28 of 1994);” (emphasis supplied)

17.  Reg 4(1) of the Regulation draws a distinction between premises in respect of which the licence is granted that are within (i) a livestock waste restriction area and (ii) a livestock waste control area. Livestock waste control area is defined by reference to column 2 of Schedule 1 of the Regulation, whereas livestock waste restriction area, with which Reg 4(2)(a) is concerned, is defined by reference to the Waste Disposal Ordinance, Cap. 354.

18.  As Mr Chan Chi Hung SC, together with Mr Derek JY Chan, for the defendant rightly points out, the Reg 4(2)(a) point is not pleaded and no evidence had been adduced at the trial to show that the Disputed Area or the premises in respect of which the livestock keeping licences were issued to the plaintiff were livestock waste restriction area. The Reg 4(2)(a) point simply has no evidential basis to stand on.

19.  Further, contrary to the plaintiff’s contention, this is not a pure question of law. The point is deployed in an attempt to bolster the credibility of the plaintiff’s case and evidence. It is a fact-sensitive point that will probably lead to a new area of factual enquiry. There is nothing in the case to support the assertion that it is an obvious point of law that was not taken before the Judge or before this Court due to an oversight. The Appeal Committee’s decision in Archer v The Hong Kong Channel Limited [1998] 1 HKLRD 829, at 833 therefore has no application. Given that this new point is fact-sensitive, it is so late in the proceedings, and in the absence of exceptional circumstances, the plaintiff cannot be permitted to run this point in this application: Flywin Co Ltd v Strong Associates Ltd (2002) 5 HKCFAR 356 at [39].

C.2  Questions 3 and 4

20.  These questions concern the drawing of adverse inference against the plaintiff for failing to call his wife and neighbour as witnesses to corroborate his evidence. The plaintiff’s arguments are a rehash of the submissions made at the appeal. For the reasons given at [64] of our judgment, they have no merits.

C.3  Question 5

21.  Question 5 relates to plaintiff’s evidence on the application to surrender his livestock keeping licence and for compensation. The Judge considered the plaintiff’s statement in the application on the location of his farm to be self-serving, neither contemporaneous nor objective, and thus not cogent or compelling. We do not accept that the plaintiff’s complaint, namely his evidence was mischaracterized as self-serving because the Judge and this Court wrongly assumed there was no rigorous process to verify his statement, is justified on the evidence in the case or made out by the sentence in the letter approving his application to the effect that the areas of the pig farm and storeroom were obtained after checking. As to the other complaint that the Judge wrongly applied the principle on self-serving statement to the issue of factual possession, it has no merits for the reasons we gave at [53] and [54] of our judgment.

C.4  Conclusion

22.  In conclusion, for the reasons set out above, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the notice of motion.

D.  Costs

23.  Applying the normal rule of costs follow the event, we further order the plaintiff to pay the defendant the costs of the application to be summarily assessed with a certificate for two counsel. The defendant seeks costs on indemnity basis on the basis that the application is wholly without merit and should not have been brought. We agree.

24.  We have considered the defendant’s statement of costs. Having regard to the fact that the papers, the issues and arguments involved in this application are substantially the same as those in the appeal, we are of the view that, notwithstanding costs are being assessed on indemnity basis, the time spent by the solicitors on attendance of counsel and perusal of documents as well as the counsel fees ought to be revised downwards. Taking a broad-brush approach, we summarily assess the defendant’s costs on indemnity basis at HK$400,000.