LI CHUN BON AND ANOTHER v. CHINA MOBILE HONG KONG CO LTD

CACV 405/2024, [2026] HKCA 1259

ON APPEAL FROM [2023] HKDC 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 405 OF 2024

(ON APPEAL FROM DCCJ NO. 617 OF 2017)

________________________

________________________

________________________

DECISION

________________________

Hon Cheung JA (giving the Decision of the Court) :

I. Leave to appeal to the Court of Final Appeal

1.  On 28 January 2026, this Court gave judgment allowing the plaintiffs’ appeal against the judgment of H H Judge Ko, Chief District Judge, dated 25 May 2023.

2.  On 24 February 2026, the defendant filed 1) a notice of motion seeking leave to appeal our judgment to the Court of Final Appeal; and 2) a summons seeking leave to file and serve the affirmation of Chan Fu Yee Denise (‘Chan’) affirmed on the same day in support of its application for leave to appeal.

3.  Having considered the submissions filed by the parties, we consider it appropriate to determine the application for leave to appeal on the basis of the written submissions without an oral hearing.

II.  The requirement for granting leave to appeal

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (‘the Ordinance’), 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.

III.  The question

5.  The notice of motion identifies one question said to be of great general or public importance :

‘ Where a deed of mutual covenant and/or conveyance grants sole and exclusive right and privilege to the use, occupation and/or enjoyment of a roof of a building, whether and in what circumstances would there be effective specification or designation that (i) the inner parapet wall surrounding the roof and (ii) the surfaces of walls within the vertical area above the roof enclosing the staircase to the roof are not a common part for the purposes of section 2 of the Building Management Ordinance (Cap. 344).’

6.  The affirmation of Chan which consists of over 800 pages of exhibits provides new evidence that the defendant has entered into numerous similar use permit agreements as in the present case for outdoor base stations on 2,012 properties across Hong Kong, with a summary list of properties in Hong Kong for which the defendant has entered into a use permit agreement for outdoor base stations and a detailed list of sites with building type and mounting method.  The defendant argues that leave is not required to file the affirmation in the context of seeking leave to appeal to the Court of Final Appeal.  Alternatively, leave should be granted as the purpose of adducing the new evidence is for the contention that the question is of great general or public importance rather than the merits of the action.  The plaintiffs do not object to have the new evidence referred to on a de bene esse basis.

IV.  The defendant’s arguments

7.  The arguments raised by the defendant in support of its claim that the question is of great general or public importance may be summarised as follows.  The defendant itself has entered into similar use permit agreements for the mounting of antennae on rooftops as in the present case.  This involves 2,012 properties of various building types in Hong Kong.  Of these 2,012 properties, 1,347 involve wall-mounted antennae mounted on the inner side of the parapet wall, similar to that in the present case, whereas 655 involve floor-mounted antennae with power cables mounted on the inner side of the parapet wall.  Out of these 2,012 properties, 27 village-type houses have assignments of the roof using similar language as in the present case.  Should the antennae on these 27 village-type houses be removed, about 1 million subscribers and users would be affected.  The installation on these 27 houses provides mobile signal coverage which includes voice, internet and data service coverage.  It is also the market practice for other mobile network operators to enter into similar use permit agreements involving similar arrangements for the mounting of antennae on inner parapet walls and rooftops. The Court’s approach to construing the ambit of a ‘wall’ and a ‘roof’ in the deed of mutual covenant (‘DMC’) may potentially lead to a large number of claims. Thus, the question is of significant ramifications for the operations of both the defendant and other mobile network operators.  In addition, the intended appeal would not only exert an impact on multiple owners of these 27 village‑type houses by the interpretation exercise in similar cases but also a knock‑on effect on about 1 million subscribers and users.  Hence, the question is of great general or public importance, which warrants the clarification of the law by the Court of Final Appeal.

8.  The defendant also submits that the question is reasonably arguable and basically repeats its arguments that had been advanced before us in the appeal.

V.  Our view

9.  In our opinion, the question of great general or public importance is not engaged.  Our judgment is based on a construction of the terms of the DMC which is case‑specific and fact‑sensitive.  The construction is in line with the approach decided by the Court of Final Appeal in its recent judgment of Donora Co. Ltd v Tsuen Kam Centre (IO) (荃錦中心業主立案法團) [2024] HKCFA 3.  

10.  The common usage by the defendant and other mobile network operators to install equipment on the roof of buildings does not turn a case‑specific construction exercise into a question of great, general, public importance because the issue remains a case‑specific and fact‑sensitive one.  Even according to the defendant, of the 2012 properties identified by it, in respect of the terms of the assignment of the roof, only 27 (i.e. 1.3% of the total) use similar language like the assignment in the present case.  There is also no indication that there are similar challenges like the present case by the other owners of these buildings to the use of the roof by the defendant and other operators. 

11.  The reliance by the defendant of Building Authority v. Appeal Tribunal (Buildings) [2018] 1 HKLRD 186 is misplaced because the construction there was on a specific Special Condition of the Government Grant and its impact on dangerous hillside orders served by the Government for remedial work to be carried out to parts of man‑made slopes.  The context was that 25 of the 79 active orders involve registered features not sited within the boundaries of the lots and the boundaries of the access road concerned a right of way clause; and over half of the 25 orders are found to involve a developed or underdeveloped access road that had already existed before the execution of the Government leases or land grants concerned.  On that basis, this Court held that an appeal to the Court of Final Appeal would help to clarify whether the maintenance responsibility would depend on the distinction to be drawn on these different situations.  The question of great general or public importance was clearly engaged.  The case is a far cry from the present one.

12.  We are further of the view that the question is not reasonably arguable for the reasons we have stated in our judgment. 

13.  Although the defendant also seeks to rely on the ‘or otherwise’ ground, it has not identified what this ground is but only rather brazenly said that ‘it will develop this ground in the application for leave from the Court of Final Appeal’.  If the defendant cannot even formulate its argument at this stage, then it should not seek to rely on this ground at all.

14.  Accordingly, the application for leave to appeal is refused with costs to the plaintiffs. We will make no order on the summons save that the costs of the summons be to the plaintiffs.  The plaintiffs’ costs are summarily assessed at $120,000.

15.  We would like to comment on the format of the notice of motion lodged by the defendant by first repeating what is said by this Court in Maeda Kensetsu Kogyo Kabushiki Kaisha also known as Maeda Corporaton and China State Construction Engineering (Hong Kong) Limited v. Bauer Hong Kong Limited, CACV 301/2019 [2021] HKCA 653 :

‘ 8.    The notice of motion should clearly identify and properly formulate questions that meet the criteria of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  It should not include arguments or factual materials or allegations seeking to support the contention that the questions are of great general or public importance.  The proper place for arguments and contentions is the skeleton submissions to be served by the applicant under paragraph 3 of Practice Direction 2.1.’

16.  In the present case, the defendant has included in the notice of motion, the background of the case, a summary of the judgment below and of this Court and arguments in support of this application.  It has completely ignored the requirement.  But as we have dismissed the application with costs to the plaintiffs, we will say no more on this issue, save to remind practitioners once again to strictly adhere to this requirement and the costs implications for non‑observance.