CISSIE SUEN MIU LING, also known as SUEN MIU LING CISSIE v. KONG YUEN LING AND ANOTHER

DCCJ 35/2023

[2026] HKDC 1071

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 35 OF 2023

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DECISION

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Introduction

1.  On 13 February 2026, I handed down judgment in this case following a trial in which I dismissed the claim of the Plaintiff (“Ms Suen”) for vacant possession against the 2^nd Defendant (“Thomas Kong”), and allowed Thomas Kong’s counterclaim for adverse possession (see [2026] HKDC 264).

2.  By a summons dated 10 March 2026, Ms Suen seeks leave to appeal against my judgment and a stay of execution thereof. The parties were directed to lodge written submissions. Having perused those submissions, I consider that the applications can be disposed of on paper without a hearing. In this decision, I shall continue to adopt the abbreviations used in the trial judgment.

Applicable Principles

3.  Section 63A(2) of the District Court Ordinance (Cap 336) stipulates that leave to appeal shall not be granted unless the judge, the master, or the Court of Appeal hearing the application is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard.

4.  With respect to findings of fact, the Court of Appeal will only intervene when it is satisfied that the findings of the primary judge are plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §42; China Gold Finance Limited v CIL Holdings Limited CACV 11/2015 (unreported, 27 November 2015) at §11.

Intended Grounds of Appeal

5.  In the draft Notice of Appeal, Ms Suen advances six intended grounds of appeal. To put these grounds into context, it is useful to first recapitulate the primary reasoning behind my judgment.

6.  Ms Suen alleged that, since late 2004, she had let the Property to YL Kong (the 1^st Defendant herein and the sister of Thomas Kong) on a monthly basis at $1,800 per month. In paragraph 29 of the trial judgment, I observed that if the alleged oral tenancy agreement existed, Thomas Kong’s claim for adverse possession must necessarily fail. I then rejected Ms Suen’s case regarding the oral tenancy agreement in paragraphs 33 to 40 for the following reasons:-

(1)  Prior to the alleged oral tenancy agreement, Ms Suen had let the Property to Mr Kong Hon-kit, the father of YL Kong and Thomas Kong, since the 1960s or 1970s. Ten rental receipts issued between 1977 and 2003 were produced in evidence. Furthermore, a written receipt issued on 16 December 2001 acknowledged that Thomas Kong received reimbursement for renovation expenses from Mr Sun, the late husband of Ms Suen.

(2)  By contrast, there was no documentary evidence to substantiate the alleged oral tenancy agreement with YL Kong since late 2004, save for a written notice dated 3 November 2016. In that notice addressed to YL Kong, Mr Sun requested that YL Kong contact him to discuss how rent should be paid from 1 November 2016. I held that this notice did not support the existence of the alleged oral tenancy agreement because it merely reflected Ms Suen’s intention to collect rent from YL Kong starting in November 2016.

(3)  I accepted Thomas Kong’s evidence that YL Kong had moved out of the Property in December 2009 in anticipation of her marriage in January 2010. Consequently, I found it inherently unbelievable that YL Kong would agree to remain responsible for paying rent on the Property. Furthermore, Mr Sun failed to explain in his witness statement where he collected the monthly rent from YL Kong during the many years she did not reside there.

(4)  I noted that Ms Suen had entered default judgment against YL Kong, and that the default judgment itself served as evidence of YL Kong’s implied admission of Ms Suen’s case. However, I held that YL Kong’s refusal to participate in this action or to set aside the default judgment was understandable given that she no longer resided in the Property, and her inaction should not be unfairly held against Thomas Kong. In any event, when weighed against the other evidence, the significance of YL Kong’s implied admission faded away.

7.  In paragraphs 42 to 58 of the trial judgment, I held that Thomas Kong had discharged his burden of proving his physical possession of the Property and his intention to possess it at the material time. Ms Suen raised a pleading point, arguing that Thomas Kong had pleaded exclusive possession when he was, in fact, in joint possession with his two sisters. I rejected this argument for the reasons stated in paragraphs 49 to 56, which can be summarized as follows:-

(1)  I found as a matter of fact that Thomas Kong was indeed in exclusive possession of the Property, rather than joint possession. His two sisters resided there merely as licensees.

(2)  Even if Thomas Kong and his two sisters had been in joint possession of the Property, the proper course of action would not have been to dismiss Thomas Kong’s claim. Rather, I would have made a declaration to the effect that Thomas Kong and his two sisters had acquired possessory title as joint tenants.

8.  The six intended grounds of appeal can be summarized as follows:

(1)  I erred in failing to give proper weight to the implied admission arising from the default judgment against YL Kong.

(2)  I was plainly wrong to reject Ms Suen’s case on the alleged oral tenancy agreement with YL Kong, in light of the new evidence she seeks to adduce on appeal.

(3)  I erred in allowing Thomas Kong to run an unpleaded case that his two sisters lived in the Property as licensees, and my finding that they were licensees was plainly wrong.

(4)  I erred in allowing Thomas Kong to run a case of joint possession.

(5)  I erred in finding that Thomas Kong solely acquired possessory title to the Property after finding that the two sisters were joint possessors.

(6)  I erred in interpreting the meaning of the written notice dated 3 November 2016.

Intended Ground 1

9.  In paragraph 40 of the trial judgment, I explicitly referred to the principle that a default judgment can be taken into account as evidence, and I expressly considered the default judgment against YL Kong. However, after evaluating the other evidence alongside YL Kong’s lack of incentive to set aside the judgment, I concluded that the weight of the implied admission was insufficient to rule in Ms Suen’s favor on the issue of the alleged oral tenancy agreement. I see no merit in intended ground 1.

Intended Ground 2

10.  To support intended ground 2, Ms Suen indicates that she seeks to adduce new evidence on appeal. This new evidence comprises three categories of documents: (1) her tax returns for various years; (2) several copies of “Form R1A(D) Rating Ordinance – Requisition for Particulars of Tenements”; and (3) a Notice of Assessment and Refund of Tax for the 2013/14 tax year.

11.  Ms Suen has filed an affirmation explaining why these documents were not produced earlier. She deposed that they were found in a property in Hung Hom where Mr Sun’s two sisters lived during their lifetimes. Ms Suen stated that Mr Sun kept his personal belongings locked up in that property and did not permit her to access them. After Mr Sun passed away on 15 December 2024, she did not immediately search the property for evidence relevant to this case. It was only after reading the trial judgment that she attended the property and discovered the documents.

12.  Her tax returns show that she reported receiving annual rental income of $21,600 up to the 2012/13 tax year. From 2004 onwards, she identified YL Kong as the tenant on the “Form R1A(D) Requisitions”. For the 2013/14 tax year, the Inland Revenue Department refunded her the tax paid on rental income, which she claims indicates that YL Kong stopped paying rent in the 2012/13 tax year.

13.  As Lam VP (as Lam PJ then was) noted in Man Tin Fook v 梁根林 [2019] HKCA 846 at footnote 1:-

“Procedurally, an application for leave to adduce new evidence cannot be entertained until after leave to appeal has been granted, and it is a matter for the Court of Appeal to decide whether the new evidence should be admitted. However, an applicant in an application for leave to appeal can support such an application by reference to new evidence if he can demonstrate that it is reasonably arguable that the Court of Appeal would grant leave by reference to the criteria in Ladd v Marshall. Thus, a judge (including a first-instance judge) processing the application for leave must examine whether the new evidence could arguably satisfy these criteria. If these criteria are not satisfied, such evidence should be disregarded for the purpose of the application for leave to appeal.”

14.  As summarized by DHCJ Jonathan Wong in the recent decision BGA Holdings Limited v Chu Kong [2026] HKCFI 2031 at §4.14, the three Ladd v Marshall conditions, all of which must be satisfied to admit new evidence on appeal, are: (1) the evidence could not have been obtained with reasonable diligence for use at the hearing below; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed, or it must be apparently credible, though it need not be incontrovertible.

15.  I am not satisfied that Ms Suen can meet the first condition. In considering whether the first condition is met, the degree of reasonable diligence which the Court expects the applicant to have exercised in his effort to obtain the evidence in question must be assessed against the overall circumstances of the case. The Court will take into account all relevant factors, such as the time available to the applicant to gather the evidence, the nature of the evidence, the difficulty encountered in obtaining the evidence, and the effort that the applicant had used in gathering the evidence: Sky Joy Investment Ltd v Zheng Dunmu [2018] HKCA 259 at §13.

16.  Even if I accept Ms Suen’s explanation that the documents were kept by Mr Sun in the Hung Hom apartment to her exclusion, I cannot ignore the fact that Mr Sun prepared a witness statement for this case before he passed away. In that statement, the central issue he addressed was his collection of rent from YL Kong after 2004. He clearly knew that the alleged tenancy agreement with YL Kong was a critical issue for trial, yet no explanation is given as to why he failed to refer to the tax documents in his possession which would have buttressed his allegations.

17.  More importantly, as Ms Suen admitted, she personally signed the tax returns and the Form R1A(D) requisitions. Even if she did not retain copies, she must have known they existed. There is no acceptable explanation as to why she did not ask Mr Sun about them before his death, or why she failed to request copies from the Inland Revenue Department, especially given that she has been legally represented throughout these proceedings.

18.  Ms Suen was under no time pressure to gather evidence for the trial. Both she and Mr Sun must have been aware of the existence and relevance of these documents, which could have been produced with ease. Under these circumstances, it is not reasonably arguable that this new evidence could not have been obtained with reasonable diligence for use at trial.

19.  It is necessary to strike a fair balance between the need for concluded litigation to be determinative of the disputes and the desirability that the judicial process should achieve the right result: Hamilton v Al Fayed (No 2) [2001] EMLR 15 at §11. It is Ms Suen’s duty to bring forward her entire case at trial rather than presenting it piecemeal as she discovers the obstacles in her path: see Re New York Exchange Limited [1888] 39 Ch D 415 at 420.

20.  Given my primary conclusion, it is unnecessary to address the remaining two Ladd v Marshall conditions. I will, however, make the following observations:-

(1)  A primary reason I rejected Ms Suen’s case regarding the alleged oral tenancy agreement was the lack of supporting documentation, which these new tax documents would go some way toward addressing.

(2)  The tax documents are historical records filed with or issued by the Inland Revenue Department. They are not newly created, and there is no suggestion of fabrication.

(3)  However, the tax documents are not determinative. They do not conclusively prove that YL Kong was the tenant or that she actually paid rent, as reporting rental income does not equate to proof of actual receipt.

(4)  Ms Suen apparently had little direct knowledge regarding the submission of these tax returns, and Mr Sun, who has already passed away, did not mention the matter in his witness statement. Consequently, neither the Court nor Thomas Kong can test why and under what circumstances he completed those returns on Ms Suen’s behalf.

(5)  There are various inconsistencies between the new documents and Ms Suen’s oral testimony. For instance, while Ms Suen testified at trial that YL Kong paid rent punctually until around 2016, the documents indicate that no rent was paid for the tax year ending 31 March 2015.

(6)  Indeed, Ms Suen now claims that YL Kong stopped paying rent even earlier, during the 2012/13 tax year, which contradicts both her oral testimony and the written notice dated 3 November 2016. Crucially, there is no evidence explaining why she and Mr Sun waited several years before demanding the unpaid rent, assuming that notice was indeed intended to pursue the arrears.

(7)  Finally, no rental receipts were produced for this period. This omission remains inexplicable given Mr Sun’s past practice of issuing written receipts to Mr Kong Hon-kit.

21.  Given my analysis of the Ladd v Marshall conditions, the new evidence must be disregarded for the purpose of this leave application. Consequently, intended ground 2 falls away.

Intended Ground 3

22.  As noted in paragraph 4 of the trial judgment, Thomas Kong’s pleaded case has always been that he was in exclusive possession of the Property. He never pleaded joint possession with his two sisters, nor did he rely on their occupation to establish his adverse possession claim. Ms Suen did not seek to rebut Thomas Kong’s claim of exclusive possession in her pleadings by suggesting that his sisters were in joint possession with him.

23.  Consequently, the capacity in which the two sisters lived in the Property was not a disputed issue on the pleadings. It is therefore difficult to comprehend the submission made on Ms Suen’s behalf that the sisters’ status as licensees constituted an unpleaded case. Intended ground 3 is not reasonably arguable.

Intended Grounds 4 and 5

24.  With respect, intended grounds 4 and 5 (as well as part of intended ground 3) appear to be premised on a mistaken understanding that I found Thomas Kong to be in joint possession with his sisters. In paragraph 51 of the trial judgment, I explicitly held that Thomas Kong was in sole possession of the Property. In paragraphs 53 to 55, I made it clear that in the alternative, if the sisters were not mere licensees, I would find them to be joint possessors — an alternative finding meant to dispose of Ms Suen’s argument that the three siblings each occupied only a part, rather than the whole, of the Property.

25.  In short, Ms Suen has mistaken alternative findings for inconsistent findings.

Intended Ground 6

26.  In paragraphs 36 and 37 of the trial judgment, I explained why the notice dated 3 November 2016 did not assist Ms Suen. Specifically, I gave three reasons in paragraph 36 as to why the notice failed to support her claim that YL Kong had previously paid rent but ceased doing so in 2016. Ms Suen has identified no error in those reasons, which is sufficient by itself to dispose of intended ground 6.

27.  Ms Suen takes issue with my reference in paragraph 37 to her application notice in the Lands Tribunal. There, I observed that she had not claimed any rent arrears prior to November 2016, and noted that her own formulation of the claim reinforced my finding that there were no such arrears, and hence no oral tenancy agreement before the date of the written notice.

28.  Ms Suen now complains that the only credible explanation she could have offered was that claims for arrears prior to November 2016 were time-barred, and argues that I prejudiced her by expecting an answer that would be protected by legal professional privilege. However, it was entirely up to Ms Suen to explain her omission to claim those arrears, and she did not assert that she was legally advised against doing so. Instead, her explanation was that there was “no need to chase so tightly”, which is incredible.

Conclusion

29.  For the reasons set out above, I do not consider that the intended appeal has a reasonable prospect of success. I therefore dismiss the application for leave to appeal. Consequently, the application for a stay of execution is also dismissed; in any event, because I have only granted declarations in favor of Thomas Kong, there is no conceivable execution capable of being stayed pending appeal.

30.  The summons dated 10 March 2026 is hereby dismissed. I make the following order nisi: (1) Ms Suen shall pay Thomas Kong’s costs of these applications, to be taxed if not agreed, with certificate for counsel; and (2) Thomas Kong’s own costs shall be taxed in accordance with the Legal Aid Regulations.