TSUI YIN FONG AND ANOTHER v. EDWARD JOHNSON

HCMP 2878/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2878OF 2012

(ON AN INTENDED APPEAL FROM DCCJ NO. 4726 OF 2011)

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the Court):

1. This is an application by Mr Edward Johnson made on 21 December 2012 for leave to appeal from a decision of District Judge Simon Leung given on 26 September 2012.

2. In that decision, the judge dismissed Mr. Johnson’s appeal from an order for summary judgment given by Master Tracy Chan on 16 March 2012.  He refused an application for leave to appeal to this court on 7 December 2012.  Detailed written judgments were given for these decisions. 

3. Very briefly, the background to this case is as follows. 

(1)   Mr Johnson had rented the plaintiffs’ property in Mui Wo, with the last tenancy due to expire on 14 December 2011.  However Mr Johnson had failed to pay rent since May 2011. 

(2)   On 14 November 2011, a letter before action was sent by the plaintiffs’ solicitors to Mr Johnson.  Proceedings (DCCJ4726/2011) were issued against him on 9 December 2011 for delivery up of vacant possession and arrears of rent.

(3)   However in an undated “Defence Statement”, Mr Johnson alleged that:

(a)   on 18 October 2011, Mr Tsui Ming Wai one of the plaintiffs had together with others assaulted him and damaged his property when he did not move out that day. According to Mr Johnson, Mr Tsui had given him an ultimatum when they had met earlier that month – on 10 October (according to the Defence filed by Mr Johnson) or on 8 October (according to Mr Johnson’s Time Line exhibited as “A” to his affidavit filed on 20 December 2012 and other documents);

(b)   as a result of the assault and property damage, Mr Johnson made a report to the police; and

(c)    Mr Johnson intended to sue Mr Tsui for about $2m in damages for personal injuries and property damage.

Master’s order for summary judgment

4. The master gave summary judgment for the plaintiffs to the extent of ordering Mr Johnson to:

(1)   deliver up vacant possession, although the master stayed the order until 15 June 2012,

(2)   pay arrears from 15 October 2011 to 14 December 2011 (when the term of tenancy would have expired by effluxion of time in any event), and

(3)   pay mesne profits from 15 December 2011 until vacant possession is delivered. 

5. That is the order from which Mr Johnson appealed to the judge.  However, he was late by 5½ months. His appeal out of time was filed only on 19 September 2012. 

Events before appeal out of time

6. After the master’s order but before the filing of his appeal, the following had occurred:

(1)   Mr Johnson issued a writ in the High Court in May 2012 in HCA709/2012 for a substantial amount of damages for personal injuries and property damage;

(2)   he did not pay any rent or mesne profits, and did not deliver up vacant possession at the expiry of the stay of execution on 15 June 2012;

(3)   on 4 July 2012 the plaintiffs applied for a writ of possession and execution; and

(4)   on 6 September 2012 the plaintiffs obtained a writ of possession and execution.

Pausing there, it would be noted that even assuming Mr Johnson had a meritorious claim for damages in his High Court action, at law that still gave him no right to stay on the property.   

Allegations on lodging appeal (19 September 2012)

7. However in his affidavit filed on 19 September 2012 Mr Johnson alleged that:

(1)   a settlement had been reached on 14 July 2012 between “the plaintiff Winnie Tsui” and Mr Johnson’s representative whereby he “could stay in the house as long as [he] wanted to in settlement of the issue of [his] claim”;

(2)   Winnie Tsui refused to sign an agreement but “stopped the enforcement notices”, so he believed there was a settlement; 

(3)   he told the police he would consider dropping the charges/agreeing to binding over to release the alleged assailants;

(4)   on 3 September 2012 an inspector said it was not necessary to have a written agreement as “everyone knows the agreement as it was openly spoken about”; but

(5)   contrary to the alleged settlement, the plaintiffs enforced the order against him.

8. That was the state of Mr Johnson’s evidence before the judge on 25 September 2012.  It was not supported by any affidavit evidence from his “representative”, and there were no contemporaneous documents in support of his allegations.  The High Court action was still extant. 

9. The plaintiffs did not file any evidence in opposition to Mr Johnson’s allegations.  The absence of evidence in opposition does not mean that the judge is compelled to accept one party’s evidence.  The judge must still consider the evidence that was adduced to see if it was inherently improbable.

Judge’s decision on appeal (26 September 2012)

10. The judge did not disturb the master’s order.  Not only was there no affidavit from Mr Johnson’s representative, the judge noted also the inherent improbabilities of the alleged settlement, as follows:

(1)   there was no reason for the sudden about-turn in the plaintiffs’ approach when

(a)   the police had been involved for the past 9 months, civil action had been threatened by Mr Johnson 6 months ago, and a High Court action had been issued 2 months ago; and

(b)   notwithstanding the above, the plaintiffs had carried on with proceedings including applying for a writ of possession and execution;

(2)   Mr Johnson could not in any event dictate to the police what action it should take;

(3)   the fact that Mr Johnson’s High Court action was still extant was inconsistent with his allegation of a settlement;

(4)   given the history of the parties’ dispute, both sides would have been anxious to see to it that a settlement be recorded in writing, but there was no contemporaneous documentation whatsoever.

11. These reasons were discussed in detail in the judge’s written decision of 26 September 2012.  In our view, the judge’s reasons cannot be faulted and he was clearly entitled in the exercise of his discretion to dismiss the appeal from the master, irrespective of whether it was out of time.

Application to the Court of Appeal for leave to appeal

12. On 21 December 2012 Mr Johnson applied to this court for leave to appeal. 

Subsequent documents sought to be adduced by Mr Johnson

13. In Mr Johnson’s affidavit in support filed the same day, he has sought to supplement his case by exhibiting:

(1)   a “statement” dated 29 October 2012 signed by a Miss Virginia Bartido and

(2)   a “Tenancy Agreement” between “Winnie Tsui” and himself, which only he had signed.

14. It is well-established law that a litigant may not adduce fresh evidence on appeal unless all three conditions of Ladd v Marshall [1954] 1 WLR 1489 are fulfilled.  Although these conditions are normally applied when there had been a trial below, these conditions equally apply where summary judgment has been given on the merits. The conditions are that:

(1)   the fresh evidence could not have been obtained with reasonable diligence for use at the hearing from which there is an appeal;

(2)   the fresh evidence must be such that, if given then, would probably have had an important influence on the result of the case, though it need not be decisive; and

(3)   the evidence must be apparently credible, though it need not be incontrovertible.  

15. We do not consider that these conditions have been fulfilled and therefore, even if Mr Johnson had applied for leave to adduce the fresh evidence, we would not have given it. 

16. Regarding (1) Miss Bartido’s statement, although it is dated 29 October 2012 and therefore after the hearing before the judge on 25 September 2012, it contains allegations about an event that is said to have occurred on 14 July 2012.  No explanation is given in the statement why it was not made earlier and placed before the judge.  Mr Johnson’s allegation in his “Brief Time Line” about Miss Bartido’s reluctance or fear to “testify” is not evidence coming from her.  It therefore does not comply with the first condition in Ladd v Marshall.  More importantly the statement is not an affidavit or affirmation, and therefore of little, if any, weight.  It therefore does not comply with the second and third conditions as well.

17. Regarding (2) the unilaterally signed Tenancy Agreement, it purports to have been made on or soon after 14 July 2012.  Again, no explanation is given why it had not been put before the judge.  It therefore does not comply with the first condition in Ladd v Marshall. 

18. Further, the document brings into sharp focus another problem with Mr Johnson’s case.  The document purports to be a Tenancy Agreement between “Winnie Tsui” as landlord and Mr Johnson.  Winnie Tsui is neither one of the registered owners nor one of the landlords in the previous Tenancy Agreements.  There is no evidence that she had been authorized to grant a new tenancy to Mr Johnson. 

19. Further the document purported to evidence an agreement whereby Mr Johnson was allowed to occupy the property on a “month by month basis renewable automatically, indefinitely ... for a monthly rental of $1" and that “all utility bills, including electricity and water will be transferred to his name without interruption of service”.  The inclusion of those details contradict Mr Johnson’s previous allegations that the agreement made between Winnie Tsui and his representative “was not detailed and was assumed to be clarified later”.  The second and third conditions of Ladd v Marshall are therefore also not fulfilled. 

20. For these reasons, the fresh evidence cannot be accepted.

No leave to appeal

21. The judge’s decision to dismiss Mr Johnson’s appeal from the master was reached in the exercise of his discretion.  It is well-established law that an appellate court will not lightly interfere with a judge’s exercise of discretion.  Mr Johnson has no reasonable prospect of success in his intended appeal. 

22. For these reasons we refuse leave to appeal and also make an order under Order 59 rule 2A(8) of the Rules of the High Court that neither party may apply for an oral hearing under rule 2A(7).  There will be no order as to costs.