NG BING LIN, THE EXECUTOR OF THE ESTATE OF NG YUK CHING ALIAS NG SHUN CHOI v. CHEUNG SAU CHU AND ANOTHER

DCCJ 4397/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4397 OF 2012

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DECISION

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1.  This is the hearing of the 1^st defendant’s application by summons for leave to appeal to the Court of Appeal against my Judgment made on 24 June 2015. By another summons, the 1^st defendant also applies for a stay of execution for delivering vacant possession of the 11 Properties to the plaintiff pending appeal.

Background

2.  In this Decision, I shall not repeat the factual background of this case, which is covered in my Judgment. For the sake of convenience, I shall adopt the same abbreviations used in my Judgment.

3.  In a nutshell, Ng Yuk Ching passed away in 1949. The Estate includes some pieces of land in Ng’s village. The 1^st defendant is the granddaughter-in-law of Ng Yuk Ching. Her case is that she has adversely possessed the 11 Properties, which are the lands among the Estate. The plaintiff’s case is that permission was given to the 1^st defendant to manage and use the 11 Properties. In this case, factual possession of the 11 Properties is not in dispute.

4.  After trial, I did not accept the 1^st defendant’s evidence and decided that she did not have intention to adverse possess the 11 Properties and entered judgment for the plaintiff.

Legal principleof leave to appeal

5.  Under section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal shall not be granted unless the appeal has a reasonable prospect of success, or the matter in the interests of justice ought to be heard by the appellate court.

6.  Reasonable prospect of success connotes the prospect of succeeding must be reasonable and more than fanciful, without having to be probable.  An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains a discretion as to whether to grant leave, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion (see Hong Kong Civil Procedure 2015, Vol 1, §59/2A/4).

Proposed Grounds of Appeal

7.  Ms Fong, counsel for the 1^st defendant, puts forward five grounds in seeking leave to appeal. The 1^st ground is that I was erred in finding that the 1^st defendant did not have any intention of adverse possession of the 11 Properties because I erroneously premised my finding on a case of “implied licence” not pleaded by the plaintiff.

8.  The 2^nd to 5^th grounds are challenging my finding of facts.

Ground 1 : intention of adverse possession and implied licence

9.  The plaintiff’s case has all along been a case of express licence. Ms Fong submits that in §86 of my Judgment, I said “the licence derived from Exhibit P1”. Because the 1^st defendant is not a party to Exhibit P1, Ms Fong therefore submits that I must have found that the 1^st defendant was given an implied licence, a point not pleaded by the plaintiff. The 1^st defendant was therefore prejudiced.

10.  Ms Fong also refers me to a decision by Deputy High Court Judge Marlene Ng in Civic Limited v 余綺妙, HCA 225 of 2011 (unreported, 28 March 2014) and emphasizes the importance to distinguish between acquiescence and express/implied licence. Ms Fong points out that the test for finding an implied licence was not yet settled in Civic Limited v 余綺妙. So, this appeal shall clarify the test for implied licence in the context of limitation claims, and thus has public interest.

11.  In reply, Mr Chan, counsel for the plaintiff, submits that implied licence did not form part of my Judgment. §86 of my Judgment concerns the state of mind of the 1^st defendant and must be a factual finding.

12.  Further, Mr Chan submits that even if assuming that I did make a finding on implied licence, all the material facts relevant to the issue of licence, whether express or implied, have been sufficiently pleaded. He quotes the relevant extracts from the plaintiff’s reply and defence to counterclaim and submits that the plaintiff’s case had been properly pleaded with no scope to argue that the 1^st defendant is taken by surprise.

13.  I find that there is no substance in Ms Fong’s argument. The main issue of trial is whether or not the 1^st defendant had the requisite intention to adverse possess the 11 Properties. For various reasons given in my Judgment, I decided that the 1^st defendant did not possess the requisite intention. One of the reasons is that: I found that the 1^st defendant knew that Tse Chiu Fook, her mother-in-law, was authorized by Exhibit P1 (which I accepted is a genuine document) to manage the properties in Ng’s village. In §86 of my Judgment, I did not make any finding that the 1^st defendant was under any implied licence in possessing the 11 Properties as now submitted by Ms Fong. What I concluded in §86 of my Judgment was that: “With that knowledge in mind, ……, I do not agree that [the 1^st defendant] would have intention of adverse possession of the 11 Properties.”

14.  In any event, the plaintiff’s case is clear: the plaintiff permitted the 1^st defendant to manage the lands in Ng’s village. In particular, §§7 and 11 of the reply and defence to counterclaim unfolded the plaintiff’s case in full. I cannot see on what basis the 1^st defendant would be prejudiced and/or caught by surprise even if I found (which I did not) that the 1^st defendant was under an implied licence to occupy the 11 Properties. 

15.  Further, Ms Fong also submits that I was erred in my finding that the 1^st defendant did not have the requisite intention. In essence, she repeats the final submission during trial. She tried to particularize again each and every piece of evidence that was “in favour” of the 1^st defendant’s case. Still, I am not persuaded by Ms Fong’s submission that I was erred. Suffice for me to say is that I have stated all my reasons for rejecting the evidence of the 1^st defendant in my Judgment. On this ground, I do not agree that the 1^st defendant’s appeal has a reasonable prospect of success. I also do not agree that there is any public interest involved in this case that justify for granting leave.

Grounds 2 & 3: knowledge of the Will

16.  The 2^nd and 3^rd grounds relate to my finding as to whether or not the 1^st defendant and Tse Chiu Fook knew the contents of the Will.

17.  There are more than one reasons for me to find that they knew the contents of the Will (§§40 to 49 of my Judgment). §44 of my Judgment is one of the reasons. I think it is a commonsense that Hasting, a solicitors firm handling the Will, would inform the beneficiaries contents of the Will upon the death of Ng Yuk Ching.

18.  Ms Fong, in submitting that I was wrong, says that there is no direct evidence if Hasting was given the duty to inform the beneficiaries. She further submits that I have failed to consider all the evidence. 

19.  I cannot accept Ms Fong’s submission. I never say that there is any direct evidence on this point. I acknowledged that there is just “flimsy evidence” of what happened in 1949 when Ng Yuk Ching passed away. In approaching this issue, I started from what should be the natural response of the members among the Ng’s family in §43 of my Judgment and decided that it was natural for them to find out if Ng Yuk Ching left any will.  Then, I analysed this issue from another viewpoint, ie, what a professional would have done, in §44 of my Judgment. After that, I tried to look for documentary proof. In §§45 to 48 of my Judgment, I pointed out that the 1^st defendant’s own version of fact in this issue was in direct contradiction to the documentary evidence.

20.  I took all the circumstance into account. Judging from each of the three viewpoints, the 1^st defendant should have known the contents of the Will. So, I am not persuaded I was wrong in my Judgment. As submitted by Mr Chan, it is trite law that the appellate court will not lightly reverse the factual findings of a trial judge. In the circumstance, I do not consider that there is any substance in the 2^nd and 3^rd grounds of appeal.

Ground 4 : knowledge of Exhibit P1

21.  The 4^th ground relates to Exhibit P1, a document authorizing Tse Chiu Fook and Tse Man Chun to manage the lands in Ng’s village.

22.  Having accepted the authenticity of Exhibit P1 (§§36 to 38 of my Judgment), I decided that Tse Chiu Fook was entrusted to manage the lands in Ng’s village (§39 of my Judgment).

23.  Ms Fong submits that I was erred in finding that it was unreasonable for Tse Chi Fook not to inform Ng Chi Chun and the 1^st defendant that she was entrusted to manage and collect rents of the lands in Ng’s village (§78 of my Judgment).

24.  I find no substance in her argument. Although the 1^st defendant denies knowledge of Exhibit P1, based on commonsense, it is reasonable for Tse Chiu Fook, a mother, to tell Ng Chi Chun and the 1^st defendant, her son and daughter-in-law, that she was entrusted to manage the lands in Ng’s village.

Ground 5: assessment of the plaintiff’s evidence

25.  The 5^th ground relates to my assessment of the credibility and reliability of the witness.

26.  Ms Fong, in support of her contention that I was erred in accepting the evidence of the plaintiff, prepares an “Annexure 1” attached to her written submission. After a close scrutiny of the said Annexure 1, I find that she effectively repeats the final submission during trial.

27.  Ms Fong, in formulating her argument that I was erred in my assessment of the evidence of the plaintiff, refers me to the frequently quoted decision by Chung J in Star Glory Investment Ltd v Kai Tua (HK) Technology Ltd & ors, HCA 3523 of 2002 (unreported, 13 August 2005).In that case, the learned judge provided objective tests for assessing a witness’s credibility and/or reliability as follows:-

“(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility.”

28.  Although I did not quote any authority regarding the test for assessing credibility and/or reliability of a witness in my Judgment, I never departed from the test.

29.  When I found that the plaintiff’s explanation as to why he mixed the Estate with his personal assets was inherently implausible, I rejected his evidence (§83 of my Judgment). But overall speaking, his evidence was unshaken. I think I was correct to take into account of his old age in assessing his performance in court (for example, talking about irrelevant mattes and repeat his answer). Having heard Ms Fong’s submission, I do not see I was wrong. There is no reason to reverse my finding.

Conclusion

30.  Having heard the submission by Ms Fong in this hearing, I am not persuaded that there is any substance in all the grounds put forward by her. I do not think that the 1^st defendant has a reasonable prospect of success in the appeal and I accordingly do not grant leave.

Stay of execution

31.  In view of my decision, I will not grant a stay of execution. I shall in any event deal with it for the sake of completeness.

32.  In Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 at p88I to 89B, Ma J (as the CJ then was) said:-

“(6) The existence of merely an arguable appeal cannot by itself amount to sufficient reason to justify a stay. It can be put this way : the existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted.”

33.  In the present application, I do not find that the 1^st defendant can justify a stay of execution. Ms Fong’s allegation that the plaintiff is going to sell the 11 Properties to developer is without supporting evidence. At most, during trial, the plaintiff mentioned some developers had approached him about purchasing the lands in Ng’s Village. There is no evidence to suggest the plaintiff will sell the lands, including the 11 Properties, soon.

34.  In any event, Mr Chan tells me that if leave is granted, he will not object to a stay of execution regarding Properties 1 to 3, which are currently the residence of the 1^st defendant. For the rest, there is no reason for a stay.

35.  I agree with the submission of Mr Chan. Even if I grant leave to appeal, I cannot see how the appeal would be rendered nugatory if no stay is imposed regarding Properties 4 to 11 and/or that the 1^st defendant would suffer loss which cannot be compensated in damages unless a stay is granted.

36.  The court does not make a practice of depriving a successful party of the fruits of his litigation (see Hong Kong Civil Procedure 2015, Vol 1, §59/13/1).  If I grant leave to appeal, I will only order a stay of execution regarding Properties 1 to 3, but not the others. However, as I do not grant leave to appeal, I will not order a stay of execution.

Order

37.  In conclusion, I am not satisfied that the 1^st defendant’s appeal has a reasonable prospect of success.  Neither am I satisfied that there are other reasons for allowing an appeal to be heard.

38.  In the circumstances, the 1^st defendant’s application for leave to appeal be refused. Also, I will not order a stay of execution. Both summonses are dismissed.

39.  I make an order nisi that costs of both summonses be to the plaintiff, to be taxed if not agreed, with certificate for Counsel. The cost order nisi should become absolute in the absence of application to vary within 14 days hereof.