TANG MAN CHEE as The Personal Representative of the Estate of Tang Kwong Ah, deceased v. LO CHUN

CAMP 6/2022

[2022] HKCA 492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 6 OF 2022

(ON AN INTENDED APPEAL FROM DCMP NO 3363 OF 2016)

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J U D G M E N T

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

Introduction

1.  This is the Defendant’s application by summons dated 5 January 2022 (“the Summons”) for leave to appeal:

(1)  the Judgment of Deputy District Judge Timon Shum (“the Judge”) dated 7 August 2020 (“the Judgment”), whereby the Judge, inter alia, ordered the Defendant to deliver up vacant possession of “the Encroached Area” (as delineated in Appendix A to the Statement of Claim) to the Plaintiff within 28 days, and dismissed the Defendant’s counterclaim; and

(2)  the Judge’s decision dated 20 December 2021 (“the Decision”) refusing to grant leave to appeal.

2.  Pursuant to Order 59, r 2A(5)(a) of the Rules of the High Court, Cap 4A, the Summons is disposed of on the basis of written submissions only without an oral hearing.

BACKGROUND

3.  Tang Kwong Ah, deceased, was the registered owner of the land known as Lot No 917 in Demarcation District No 103 (“Lot 917”), which is situated in Kat Hing Wai, Kam Tin, New Territories.

4.  Tang Kwong Ah passed away on 7 August 2009.  The Plaintiff, Tang Man Chee (“TMC”), is the son, and executor named in the will, of Tang Kwong Ah, probate of which was granted by the Court of First Instance on 29 October 2010.

5.  Lo Chun, deceased (“the Deceased”) claimed to have been in adverse possession of Lot 917 since 1983 when she purchased it, together with some adjoining lands, from a person surnamed “Chung” (鍾) for HK$37,000.  The Deceased passed away on 31 December 2017.  Cheung Ah Ping (“CAP”, the 1^st named defendant) and Lei Cuiye (“LCY”, the 2^nd named defendant) are the executors of the will of the Deceased dated 17 March 2018.  They were not related to the Deceased, but apparently had taken care of the Deceased for a long time prior to her death.  Under the Deceased’s will, she gave, devised and bequeathed all her rights, benefits, interests and entitlements in respect of her claim for adverse possession of Lot 917 to her executors.

6.  On 8 November 2016, TMC, as the personal representative of the estate of Tang Kwong Ah, commenced proceedings by way of originating summons against the Deceased for recovery of vacant possession of a portion of Lot 917 (“the Encroached Area”) which he said was unlawfully occupied by the Deceased.  Pausing here, it may be noted that Lot 917 has an area of about 282.3 m², while the Encroached Area has an area of about 250.8 m².  Those proceedings were later converted into a writ action pursuant to the order of Master M Lam dated 15 May 2017.  After the death of the Deceased, CAP and LCY were appointed to represent the estate of the Deceased by the order of Master S P Yip dated 5 July 2018.  They resisted TMC’s claim based on the defence of adverse possession.

7.  The trial of the action came before the Judge in June 2019.   The Judge heard oral evidence from (i) TMC and a person called Tang Sai Yue (“TSY”), the village representative of Kat Hing Wai, on the Plaintiff’s side, and (ii) CAP and LCY on the Defendant’s side.  In addition, the Judge had before him an affirmation (“the Affirmation”) made by the Deceased on 9 January 2017 prior to her death, as well as 2 surveyor’s reports (one on each side) and their joint statement.

THE JUDGMENT

8.  In the Judgment:

(1)  The Judge found that the Deceased only went into occupation of Lot 917 (or a portion thereof) in or after 2006, and rejected her claim that she purchased Lot 917 in 1983 and commenced her occupation of it since that time.  In coming to this conclusion, the Judge relied upon, inter alia, the following matters:

(a)  According to TSY (whose evidence was accepted by the Judge), who owned another lot in the neighbourhood, he only saw the Deceased for the first time in 2006 occupying what has been referred to as the “Enlarged Hut” upon Lot 917.  In 2005, the original, smaller, metal hut was once occupied by someone who was around 20 odd years old and believed to be a drug addict (§§27, 58-60 of the Judgment).

(b)  The documentary evidence produced by the Deceased did not support her claim that her occupation of Lot 917 commenced in 1983.  The earliest electricity and water bills that she could produce to prove her occupation of Lot 917 were dated 24 February 2007 and 8 November 2007 respectively, while the business registration certificate that she produced showed that the commencement date of her farming business on Lot 917 was on 1 March 2007 (§61 of the Judgment).

(c)  According to the Affirmation of the Deceased, her elder son, who was 7 years old in 1983, did not live with her at Lot 917 until 2003.  By then, the elder son would be 27 years of age.  There was, apparently, no explanation given by the Deceased on why the elder son was not raised on Lot 917 during his childhood years.  The Judge considered this aspect of the Deceased’s evidence to be inherently incredible (§62 of the Judgment).

(d)  The Deceased’s claim was contradicted by what her son said to the police during an incident which occurred on 29 June 2013, namely, that he had been a “tenant” of Lot 917 for about 2 years only.  This finding is based on the evidence of TMC which the Judge accepted (§63 of the Judgment).

(e)  The Deceased’s claim was also contradicted by what she herself said to the police in April 2014, namely, that she had been a “tenant” of Lot 917 since 1983 and was paying a yearly rent of HK$700 to Mr Chung.  This finding is based on the evidence of TMC which, as earlier mentioned, the Judge accepted (§64 of the Judgment).

(f)  The evidence of the surveyors and the aerial photos referred to by them indicated that there were farming activities on Lot 917 from 1983 to about 1990, but the land appeared to have been abandoned and left vacant between 1991 and 2005 (§§66-67 of the Judgment).

(2)  The Judge found that LCY was not a reliable witness, for the reasons given in §69 of the Judgment.

(3)  The Judge considered that, even if the evidence of LCY and CAP were to be accepted, such evidence would not be sufficient to support the Deceased’s allegation that her occupation of Lot 917 started in 1983, because they only came to know the Deceased in 2002 and 2014 respectively, and could not tell whether she started occupying the Lot 917 in 1983 (§§68 and 70 of the Judgment).

(4)  The Judge found that the earliest time that a complete fencing of the Encroached Area could be seen was in an aerial photo dated 22 December 2006.  Prior to that time, a fence could be seen from an aerial photo dated 21 November 1986. However, the surveyors agreed that this fence belonged to the southern adjoining Lot 916.  Furthermore, there was at that time no fence on the northern, eastern and western sides of Lot 917.  Thus, the Judge rejected the Deceased’s allegation that she fenced off the Encroached Area in 2002 (§§73-76 of the Judgment).

9.  On the basis of the above findings, the Judge rejected the defence of adverse possession and ordered the Defendant to deliver up vacant possession of the Encroached Area to the Plaintiff.

10.  By the Decision dated 20 December 2021, the Judge dismissed the 2^nd named Defendant’s application for leave to appeal.

THE PRESENT APPLICATION

11.  By the Summons, the Defendant applied for leave to appeal both (i) the Judgment, and (ii) the Decision.

12.  The Defendant’s application for leave to appeal the Decision is unnecessary. Following the Judge’s refusal to grant the Defendant leave to appeal the Judgment, the Defendant could renew the application for leave to appeal to the Court of Appeal within 14 days from the date of refusal under Order 58, r 2(4A) of the Rules of the District Court, Cap 336H.

13.  For the present purpose, both applications will be treated as an application for leave to appeal the Judgment.  Further, we shall overlook the slight delay on the part of the Defendant in making the application, but shall concentrate on the merits of the intended appeal.

14.  In the Summons, the Defendant refers to and relies upon the grounds contained in a draft notice of appeal (“the 1^st Draft NOA”) annexed to the affirmation of the 2^nd named Defendant filed on 5^th January 2022. The 1^st Draft NOA contains one intended ground of appeal.  However, in the application bundle lodged by the Defendant’s solicitors, there is another draft notice of appeal (“the 2^nd Draft NOA”) which contains two intended grounds of appeal.  For the purpose of this judgment, we shall consider both intended grounds of appeal contained in the 2^nd Draft NOA.

15.  We should mention at this juncture that the 2^nd Draft NOA is defective. Ground 1 consists of one continuous paragraph spanning over 9 pages.  It fails to identify, clearly and succinctly, the ground(s) on which it is contended that the Judge fell into error.  It is, effectively, a lengthy submission seeking to re-argue various issues of fact which have been considered by the Judge in the Judgment.  The same applies to Ground 2, which consists of one continuous paragraph spanning over 2 pages.  The 2^nd Draft NOA wholly fails to comply with the requirements of a proper notice of appeal as set out in Practice Direction 4.1:

“[20] A notice of appeal should be a concise document setting out clearly and succinctly the reasons why the Court should interfere with the judgment of the court below.

[21] In an appeal against findings of fact, the grounds of appeal must pinpoint the palpable errors of the court below which warrant the interference by the Court. A bare statement that the findings are against the weight of the evidence or that the court below was wrong to reject or did not pay sufficient regard to the evidence of a witness is not a proper ground of appeal.

[22] A notice of appeal must not be prolix, unfocused or canvass evidence or submissions at length.”

DISCUSSION

16.  In Ground 1 of the 2^nd Draft NOA, the Defendant alleges “bias” on the part of the Judge based on his comment at §68 of the Judgment that both LCY and CAP were “friends and not relatives” of the Deceased.  The Defendant says that the Judge’s “bias” is also evidenced by §10 of the Decision, where the Judge referred to the fact that the Deceased “bequeathed Lot 917 to [LCY and CAP] as tenants in common in equal shares”.  In our view, this complaint of bias against the Judge is wholly unwarranted and unsustainable.  At §68 of the Judgment, the Judge was considering the credibility of the evidence of LCY and CAP, and pointed out that although they were friends and not relatives of the Deceased, they had a direct interest in the outcome of the proceedings because the Deceased had bequeathed Lot 917 to them as tenants in common in equal shares.  Likewise, the Judge was considering the issue of credibility at §10 of the Decision, this time in the context of an argument made by the Defendant’s lawyers that TSY’s evidence should not be accepted because he might have an interest in the outcome of the proceedings.  This prompted the Judge’s comment:

“If LCY is genuinely of the view that a witness’s testimony should not be accepted because he might have an interest in the outcome of the proceedings, I am puzzled that LCY’s legal representatives did not submit to the court that the testimonies of the 2 defence witnesses CAP and LCY should also be rejected on the ground that [the Deceased] bequeathed Lot 917 to them as tenants in common in equal shares.”

We can see nothing in §68 of the Judgment or §10 of the Decision which suggests “bias” on the part of the Judge.

17.  Under Ground 1, the Defendant also makes a number of unfocused attacks on the facts found by the Judge in the Judgment:

(1)  The Defendant argues that “there is no evidence from any of the witnesses of fact on both sides to rebut or counter the fact as found from [the Deceased’s] evidence by her affirmation in regard to all indicia of her adverse and/or exclusive possession of Lot 917 since 1983 …”.  This argument is plainly unsustainable, having regard to the matters considered and relied upon by the Judge to reject the Deceased’s claim referred to in §8(1) above.

(2)  The Defendant argues that “in considering expert evidence to rebut or counter [the Deceased’s] version of her adverse and/or exclusive possession of Lot 917, [the Judge] failed to appreciate the consequence, implications and limitation of the expert evidence in its proper context and perspectives …”  The assessment of expert evidence, including the aerial photos referred to by them, was primarily a matter for the Judge.  We do not see that the Judge fell into any palpable error in his assessment of the expert evidence.  Effectively, the Defendant’s complaint is that they do not agree with the Judge’s findings of fact, and wish to re-argue the case afresh in the Court of Appeal.  It is well-established that a mere disagreement with a trial judge’s finding of fact is not a valid ground of appeal.

(3)  The Defendant argues that “in considering TSY’s evidence to rebut or counter [the Deceased’s] version of adverse possession, [the Judge] erred in law by finding that [the Deceased] only went into occupation of Lot 917 in 2006 or thereafter by singularly relying on and extrapolating TSY’s evidence …”.  We are unable to see that the Judge made any error of law in accepting TSY’s evidence and relying on it to (i) reject the Deceased’s claim that she commenced to occupy Lot 917 in 1983, and (ii) find that the Deceased only started to occupy Lot 917 (or a portion thereof) in or after 2006.  We also do not see that the Defendant has any valid basis to challenge the Judge’s assessment, and acceptance, of the evidence of TSY.

(4)  The Defendant argues that the Judge “failed to appreciate that documentary evidence from water and electricity bills and the business certificates were only part of the evidence to condescend upon the particulars of [the Deceased’s] occupation of Lot 917 …”.  We do not see any error in the Judge’s observations regarding those documents (see §8(1)(b) above).

(5)  The Defendant complains that the Judge “pick[ed] inconsistencies” in the affirmation evidence of the Deceased (see §8(1)(c) above), erroneously considered that “[the Deceased’s] own version that she purchased Lot 917 was contradicted by the hearsay version of her son” (see §8(1)(d) above), and was wrong in “giving more weight to [TMC’s] version … than [the Deceased’s] version without documentary or other evidence …” (see §8(1)(e) above).  Again, the Defendant is merely seeking, impermissibly, to re-argue factual issues that have been considered by the Judge.  We can see no valid basis to interfere with the Judge’s conclusions on those issues.

18.  In Ground 2 of the 2^nd Draft NOA, the Defendant argues that the Judge erred in law in failing to consider that “there is no counter evidence to rebut or counter the deceased’s version of possession prior to complete fencing in 2006 of the Encroached Area and there was other evidence of possession other than fencing such as …”  This ground of appeal is plainly misconceived and unsustainable, because:

(1)  There is no error of law involved in the Judge’s assessment of the evidence before him.  The Judge made a finding of fact, based on the aerial photos, that there was no complete fencing of the Encroached Area prior to 2006.

(2)  In so far as the Defendant relies upon matters deposed to by the Deceased in her affirmation, it was well within the province of the Judge to reject her evidence on the ground that it was inherently incredible and/or contradictory.

(3)  In so far as the Defendant seeks to attack the evidence of TMC and TSY, again it was well within the province of the Judge to assess their evidence and to give such weight to the evidence as he considered appropriate.

19.  In our view, the Defendant’s intended appeal is not arguable, and has no prospect of success.  We also do not see any reason in the interests of justice why the appeal should be heard.  Neither of the two conditions for granting leave to appeal under s 63A(2) of the District Court Ordinance, Cap 336, is met in the present case.

DISPOSITION

20.  The application for leave to appeal is refused, and the Summons is dismissed with costs to the Plaintiff, to be summarily assessed and paid by the 2^nd named Defendant.  Having regard to the unsatisfactory nature of the draft notice of appeal and the hopelessness of the intended appeal, we consider this to be a proper case to make an order that the Plaintiff’s costs shall be assessed on an indemnity basis.  The above order as to costs is an order nisi, which shall become absolute unless there is an application to vary it within 14 days after the date of the order.  In the absence of such application, the 2^nd named Defendant shall have leave to file and serve a statement of objections (limited to 2 pages) to the Plaintiff’s Statement of Costs dated 15 March 2022 within 14 days after the date of the order.  Subject to such further directions as may be given by the Court, the Plaintiff’s costs will be summarily assessed without further reference to the parties.

21.  Lastly, we are of the view that the application for leave to appeal is totally without merit.  Accordingly, we make an order under Order 59, rule 2A(8) of the Rules of the High Court, Cap 4A, that no party may request the present determination to be reconsidered at an oral hearing inter partes.