WONG SHING CHAU v. TO KWOK KEUNG

DCMP 2096/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2096 of 2002

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DECISION

1.  On 21 June 2007, the judgment after trial in this case was handed down (“the Judgment”). I found in favour of the Plaintiff.  The Defendant now applies for leave to appeal.  I was told that what appears to be delay in making this application was caused by the stay of proceedings upon the Defendant’s application, though apparently unsuccessfully, for legal aid.  Parties have no dispute that this application was filed within time.

2.  The applicable principles are not in dispute.  The Defendant argues that leave should be granted because the intended appeal has a realistic prospect of success as well as raises an issue where the law requires clarification as a matter of public interest: Smith v Cosworth Casting Processes Limited [1997] WLR 1538; Ma Bik Yung v Ko Chuen, HCMP 4303/1999, 8 September 1999.

The Judgment

3.  This case is about the Defendant’s claim of adverse possession of land in the New Territories since 1972.  It was part of the Tso’s land until 1996 when it was assigned by the Tso to the Plaintiff.

4.  At the trial, there were the following issues for determination:

(1)	Whether the Defendant proved the adverse possession.
(2)	Whether and, if yes, how the land in question being part of the Tso’s land prior the assignment affects the operation of the Limitation Ordinance in the circumstances of this case.

5.  On the tso issue, both parties referred to the application of the Ordinance to this type of customary landholding in Leung Kuen Fai v Tang Kwong Yu Tong & Ors [2002] 2 HKLRD 705.  Essentially so long as there is a member of the tso whose right to recover the land has not been barred, any claim of adverse possession of the tso’s land would effectively not succeed (see paras.14-20 of the Judgment).  This was the situation in the present case prior to the assignment to the Plaintiff (see para.21 of the Judgment).

6.  The Defendant’s argument at trial was that the Plaintiff’s right to recover possession has to be considered independently from that of the managers and the other members of the Tso.  Considered in isolation, the Plaintiff’s right of action has been barred prior to the assignment of the land in question to the Plaintiff (see paras.23-25 of the Judgment).

7.  I did not accept this argument.  The reason is that the Defendant indeed claimed adverse possession against the Plaintiff and his predecessor in title, namely the Tso which assigned the land to the Plaintiff.  This was what he pleaded and what he practically sought to achieve (see paras.26-29 of the Judgment).

8.  My ruling on the tso issue against the Defendant would have sufficed to dispose of the case irrespective of whether adverse possession was proved.  Nevertheless I proceeded to consider and found that the adverse possession was not proved.  First, I rejected the Defendant’s case that he lived at the hut on the land as his home exclusively and continuously over the requisite period of time (see paras.39-43 of the Judgment).  Secondly, as far as the Defendant relied on de facto control of the land, he failed to prove that he was and was intended to be the one (out of his family) to be in control of the land continuously over the years (see paras.35-37; 44-57 of the Judgment).

The intended appeal

9.  The grounds of appeal are set out in the draft notice of appeal.  On the tso issue, the Defendant would seek to raise the following arguments in the intended appeal: (1) Even if the Defendant’s possession was not adverse to the Tso, his possession was still adverse to the Plaintiff prior to the assignment.  (2) The Defendant did not need to establish possession adverse to the Tso.  (3) The Plaintiff took the assignment of the land in question subject to the Defendant’s possessory title.

10.  In the Judgment, I did not reject the first argument.  I rejected the second argument, in view of the Defendant’s pleaded case and what he sought to achieve practically even prior to the assignment.  Having said that, I would not rule out a realistic prospect of success of these arguments on appeal, also in view of the formulation of the third argument.  The appellate court may also consider seizing the opportunity to consider the principles discussed in the first instance judgment of Leung Kuen Fai and their application in circumstances like the present case.

11.  On the possession issue, the Defendant would seek to argue that I simply rejected the Defendant’s case of living at the hut on the land in question but I did not rule out his case of other forms of (de facto) control.  As mentioned above, the question was whether the Defendant has proved that he was in fact and was intended to be the one in these other forms of control of the land in question continuously over the requisite number of years.  I did rule against the Defendant on this.  My finding was one of fact.  Having said that, I agree that this involved finding of primary facts as well as inference.  The appellate court is entitled to draw different inferences after considering the totality of the evidence.

12.  In the circumstances, I am prepared to grant leave to appeal.

Stay of execution

13.  The appeal would be meaningful to the Defendant only if the subject matter of this case is preserved by the time of the determination of the appeal.  The prejudice so caused by depriving the Plaintiff of the fruit of the Judgment should not be substantial in view of the history of this case.  In the circumstances, I am also prepared to stay the execution of the judgment pending appeal.

Order

14.  I grant leave to appeal.  I stay the execution of the judgment pending the determination of the appeal on condition that the Defendant files the notice of appeal in 21 days.  Mr Chong for the Plaintiff and Mr Siu for the Defendant have concensus as to the appropriate costs order pending my decision.  In line with that, I order that costs of this application shall be in the cause of the appeal to be taxed, if not agreed, with certificate for counsel.