LUCKWAY PROPERTIES LTD v. LIU, CHI KONG AND OTHERS

CAMP 294/2023 and CAMP 295/2023, [2024] HKCA 1069

On Appeal from [2023] HKDC 52

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 294 OF 2023

(ON AN INTENDED APPEAL FROM DCCJ NO 2388 OF 2017)

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 295 OF 2023

(ON AN INTENDED APPEAL FROM DCMP NO 4082 OF 2004)

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(Heard Together)

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D E C I S I O N

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

A. INTRODUCTION

1.  These are the renewed applications of Teng Hung Ping (“D7”) for leave to appeal out of time from the Judgment (“the Judgment”) of His Honour Judge Harold Leong (“the Judge”) dated 2 February 2023 ([2023] HKDC 52).

2.  By way of the Judgment, the Judge allowed the respective plaintiff’s claim for recovery of possession of: (a) RP of Section A of Lot No 2942 in DD104 (“Lot 2942”) in DCMP 4082/2004 (“DCMP 4082”); and (b) Lot No 2953 in DD104 (“Lot 2953”) in DCCJ 2388/2017 (“DCCJ 2388”), and further dismissed D7’s claims for adverse possession of those lots. The Judge set out his detailed reasons for the Judgment in his written judgment of the same date (“the Reasoned Judgment”).

3.  By a decision dated 10 August 2023 ([2023] HKDC 917) (“the Leave Decision”), the Judge refused D7’s application for leave to appeal.

4.  After reviewing the parties’ respective written submissions, we are of the view that it is proper to dispose of this application on paper pursuant to Order 59, rule 2A(5) of the Rules of the High Court (Cap 4A) (“the RHC”). This is our decision.

B.  BACKGROUND

5.  The factual background of this case has been set out at [2] ‑ [5] of the Reasoned Judgment and need not be repeated here. For the present purpose, we will highlight the following.

6.  Luckway Properties Limited (“Luckway”) is the registered owner of Lot 2942 and claimed for recovery of possession of the lot against Lam Yau Gun (“Gun”), the original 7^th defendant in DCMP 4082. After Gun passed away on 20 March 2014, probate of his estate was granted to D7[1] on 11 March 2016. Subsequently, D7 substituted Gun as the 7^th defendant of DCMP 4082.

7.  Siu Chiu Choi (“Siu”) is the registered owner of Lot 2953 and claimed for recovery of possession of Lot 2953 against D7 in DCCJ 2388.

8.  Gun/D7 defended both claims on the basis that they have obtained possessory titles to Lots 2942 and 2953 (“the Lots”), having adversely possessed them for more than 20 years since 1975. Gun/D7 therefore also counterclaimed in both actions for declarations that Gun/D7 have been in adverse possession of the Lots and Gun/D7 have acquired possessory titles to the Lots.

9.  Essentially, it is Gun’s case that his late father Lam Yung Tai (“Tai”) had been farming and living in Wo Sang Wai, Yuen Long (“the Village”) since around 1948 occupying various plots of lands (“the Lands”), which included the Lots. Gun came to Hong Kong in around 1953 to join his father, and since 1975, he and his father (collectively “the Lams”) converted the Lands to various fishponds for breeding red worms and later running a fish breeding business. Gun claimed that they had been paying rent to one Mr Man Kin (“Mr Man”) for the use of the Lands until around 1975 when Mr Man and / or his agents stopped collecting rent for unknown reasons. Since then, the Lams had acquired factual possession and the intention to possess the Lands to the exclusion of the world at large, and thus acquired possessory title after 20 years in around 1995 (or latest by 1997). Tai passed away on 13 January 1998.

C.  THE JUDGMENT

10.  The trial was conducted before the Judge for five days where witnesses gave oral evidence and were cross-examined. All parties, including D7, were represented by counsel.

11.  By way of the Judgment, the Judge granted the plaintiffs’ claims and dismissed Gun/D7’s counterclaims for adverse possession.

12.  The Judge applied the trite principle that, in order to establish the relevant adverse possession, the burden was on D7 to show by compelling evidence that he (and his predecessor) had (a) factual possession of, and (b) the necessary intention to so possess, the Lots to the exclusion of world at large (animus possidendi) for the relevant 20-year period[2].

13.  After evaluating all the evidence in detail, the Judge found on the totality of the evidence that:

(1)  On the issue of factual possession:

(a)  there was no compelling evidence to show that the Lams had sufficient degree of exclusive control over the Lands including the Lots. It was not disputed in evidence that the relevant lots were converted into ponds in around 1975 to 1977 (Lot 2942) and 1975 to 1981 (Lot 2953), and the ponds had gradually become one pond during 1994 to 2017 (Lot 2942) and 1982 to 1999 (Lot 2953). The Judge noted in particular that there was no fencing around the fishponds or the entirety of the Lands and the evidence of the alleged “steps to exclude others” given by D7 were illogical and inconsistent.

(b)  based on the documentary evidence, the Judge only found (i) Tai was occupying two squatter structures in around 1976; and (ii) Tai was also likely to be occupying the fishponds in around 1975/1976, but there was no documentary evidence showing continuous occupation of the Lands for at least 20 years by the Lams or any documents showing the continuous existence of a fish‑breeding business during the material period as alleged. See [4] and [102] ‑ [115] of the Reasoned Judgment.

(2)  As to the animus possidendi, the Judge found no consistent or convincing (let alone compelling) evidence to support Gun’s/D7’s pleaded case that after the tenancy of the Lands with Mr Man came to an end, the Lams had the intention to use the Lands as their own. See [116] ‑ [120] of the Reasoned Judgment.

14.  It must be noted that, in arriving at the above factual findings:

(1)  The Judge rejected the evidence of D7 and all his witnesses in relation to material aspects on the requisite adverse possession and intention as being unreliable and/or incredible as those evidence was inconsistent, irrational, unsupported by any documentary evidence when there should have been such if the assertions were true, and / or purely self-serving. See [25] ‑ [31] and [88] ‑ [99] of the Reasoned Judgment.

(2)  The Judge also did not place any or any material weight on the evidence of Luckway’s witness (Tsai Po Po) and Siu, as he considered those evidence not relevant other than confirming the undisputed fact that Luckway and Siu are the current registered owners of Lots 2942 and 2953 respectively. See [100] ‑ [101] of the Reasoned Judgment.

15.  Accordingly, the Judge dismissed Gun’s/D7’s claim for adverse possession and granted the orders as sought by Luckway and Siu with costs.

D.  THIS APPLICATION

16.  By two summonses both dated 25 August 2023 (“the Summonses”) together with his supporting affirmations, D7 (now acting in person) reapplied to this court for leave to appeal out of time the Judgment (under both DCMP 4082 and DCCJ 2388).[3]

17.  Pursuant to Order 58, rule 2(4A) of the Rules of the District Court (Cap 336H), D7 had 14 days from the date of the Leave Decision to take out these applications after leave to appeal was refused by the court below. As such, D7 was late for one day in filing the Summonses.

18.  In essence, D7 has advanced the following proposed grounds in his draft Notices of Appeal (referred to as “Ground 1” to “Ground 5” respectively):

(1)  The Judge erred in concluding that all the objective evidence was insufficient to prove that Tai and Gun had had sufficient degree of exclusive control over the fishponds for the relevant period;[4]

(2)  The Judge erred in holding that the present case shared similarities with Gotland Enterprises Ltd v Kwok Chi Yan and Others (unreported, CACV 260/2014, 19 January 2016) when Gotland is distinguishable on the facts;[5]

(3)  The Judge erred in speculating that Tai might have at some point of time abandoned the lots and / or the fishponds when that was not the plaintiffs’ case, nor was there any evidence to show the same. The Judge should have instead held on the evidence (including Siu’s evidence that Gun was still present on the site after 2010) that possession by the Lams was a continuing one;[6]

(4)  The Judge thus erred in speculating that the Lams did not have the requisite intention to possess, the Judge ought to have held on the evidence that by constructing the fishponds and caretaker huts, the Lams were in exclusive possession of them by making full use of the land/fishponds which carried with it an intention to so possess;[7]

(5)  The Judge erred in failing to have any or any sufficient regard to the fact that Siu only issued his proceedings in DCCJ 2338 more than 12 years after Gun made a claim to Lot 2953 (Siu’s land) in his first affirmation filed in 2004 in DCMP 4082. This fact is important and highly relevant as, by the time Siu issued his writ in DCCJ 2388 in 2017 seeking possession of the lot as its title owner, Gun must have already been in continuous occupation of Lot 2953 for at least 12 years with both the necessary physical possession and the requisite intention and thus established the relevant adverse possession. If the Judge had had regard to this fact, as he ought to have, the Judge should have held that Siu’s claim was time-barred.[8]

19.  D7 lodged his written submissions on 27 February 2024 in support of these applications[9]. In opposition, Luckway lodged its written submissions on 6 September 2023[10] and Siu lodged his written submissions on 19 April 2024.

20.  Subsequently, on 24 May 2024, D7 lodged without leave further written submissions setting out “the translations and comments on his case by AI” and rough translations of various notes of advice rendered by this former counsel respectively dated 16 July 2018 and 24 February 2023 and submissions by his former counsel dated 24 November 2022. On 24 September 2024, D7 also lodged without leave a bundle of documents consisting of some 100 pages,[11] including an affirmation of 梁蕙芳 dated 23 September 2024, who alleged that she knew a Tsang May Ying (“Tsang”) for over 50 years and claimed that she saw the Lams living next to Tsang and that they had not left the fishponds. The bundle of documents also included a summons and affirmation of D7 both dated 5 July 2024 which were not filed, as well as various photos, letters and court documents.

21.  As these documents and submissions were all lodged contrary to Practice Directions 4.1 paragraph 36 and without leave of the court, we will not consider any of them in the present application.[12] In any event, given our discussion below, those further documents and submissions do not advance D7’s case for the purpose of the present application.

E.  LEGAL PRINCIPLES

22.  Under section 63A(2) of the District Court Ordinance (Cap 336), leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice that the matter should be heard by the appellate court.

23.  To meet the threshold of reasonable prospect of success, it must be shown that the prospect of succeeding is more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125 at [17]. In other words, the applicant is required to show more than just an arguable case, although he does not have to demonstrate that the appeal will probably succeed: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515 at [19].

24.  It is also well-established that in considering whether to exercise its discretion to extend time, the court will take into account: (a) the period of delay; (b) the reasons for delay; (c) the prospects of success of appeal; and (d) any prejudice to the other party: WHWV v WECH [2020] HKCA 839 at [22].

25.  The principles governing an appeal against a trial judge’s findings of fact are also well-established. In gist, the appellate court will only intervene when it is satisfied that the findings are “plainly wrong”. Under the “plainly wrong” test, the court has to be satisfied that the trial judge had fallen into palpable error in his finding of fact, such as where the finding was one (a) which there was no evidence to support; (b) which was based on a misunderstanding of the evidence; or (c) which no reasonable judge could have reached. Where a trial judge had reached a conclusion on the primary facts, the kinds of mistake which could engage an appellate court’s power of intervention are: (a) where there was no evidence to support the conclusion; (b) the conclusion was based on a misunderstanding of the evidence; or (c) the conclusion was one which no reasonable judge could have reached. The threshold faced by an appellant is high. See Yu Pak Kan v Busy Firm Investment Ltd [2023] HKCA 105 at [19]; Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd (unreported, CACV 11/2015, 27 November 2015) at [11] ‑ [22]; and ZJW v SY (unreported, CACV 10/2017, 1 December 2017) at [28] ‑ [34].

F.  DISCUSSION

26.  Although D7’s reapplications for leave to appeal are late by one day, for present purpose, we will focus on the merits of his intended appeal.

27.  In short, the crux of D7’s complaints is that on the totality of the evidence, the Judge erred in his factual findings and ought to have held that Tai/Gun/D7 had the requisite factual possession and animus possidendi to establish his claim for adverse possession. These intended grounds are plainly unarguable as explained below.

F1.  Grounds 1 to 4

28.  As Grounds 1 to 4 all relate to the challenge against the Judge’s factual findings and conclusion that Gun/D7 had failed to prove on the evidence the necessary continuous exclusive physical possession and the requisite intention to possess, they should be conveniently dealt with together.

29.  D7’s complaints under these grounds are essentially these:

(1)  Given that (a) it is not in dispute that between 1977 and 1997, the Lots and their neighbouring lots were man-made fishponds; (b) the Judge in fact found that Tai occupied two squatter structures in around 1975 to 1976; and (c) it is Siu’s own evidence that after 2010, Gun was still present on site, the Judge was plainly wrong to hold that there was no evidence to show that Gun had been in possession of the Lots for 20 years since 1975, as it must be more likely than not that the Lams had been in possession of those lots since 1975 until at the least 2010.

(2)  The Judge further erred in holding (a) at [109] that the present case shared similarities with Gotland as the case is distinguishable from the present on the facts, and (b) at [115] and [120] respectively that Tai might have abandoned the lots or had paid rent to anyone else after 1975, as it was neither the plaintiffs case nor evidence that the Lams had paid rent to anyone else since 1975.

30.  These grounds have no merit at all.

31.  First, as rightly submitted by counsel for Luckway, in order to establish possessory title based on adverse possession, the squatter must show (a) factual exclusive possession and (b) the requisite intention to possess (animus possidendi), for the whole of the relevant period. In the premises, even though the Judge accepted that in 1975/76, fishponds and structures were occupied by Tai, D7 still had the burden to prove by compelling evidence that there had been continuous exclusive possession of the relevant lots from 1975/76 onwards for 20 years.

32.  In this respect, it is clear from the Reasoned Judgment that the Judge only held that, on the totality of the evidence, D7 could only prove that Tai occupied two squatter structures and also likely to be occupying the fishponds in around 1975 to 1976[13]. The Judge then further held that there is insufficient evidence to prove Tai’s continuous occupation beyond 1975/1976[14].

33.  However, D7 contends that, since Tai was present in the lands in 1975/76 and there was no evidence that the Lams subsequently abandoned the lots or the fishponds, and that Gun was present on site after 2010, the court ought to have held that the Lams possession was a continuing one. This amounts to essentially arguing that there is a presumption of possession in favour of the squatter, which has been explicitly rejected by this court (Cheung CJHC and Lam VP (as they then were)) in On Yip Property Development Company Limited v Kwok Tai Kuen Alan (unreported, HCMP 3192/2013, 15 October 2014) at [8] and [9].

34.  Specifically, whilst it was not disputed that man-made fishponds were present in the relevant lots, the Judge rightly considered that the burden was on Gun/D7 to prove their alleged exclusive occupation of the relevant lots. In relation to this, the Judge had fully considered all the relevant evidence (including a detailed assessment as to the evidence given by each of the witnesses in [9] ‑ [101] of the Reasoned Judgment), before finding that there was no effective exclusive occupation of the Lots as:

(1)  There was no fencing around the fishponds or the entirety of the Lands: [113] of the Reasoned Judgment;

(2)  the alleged steps taken by the Lams were clearly ineffective in ensuring exclusive occupation of all the Lands being claimed, as for example another lot (Lot 2951) of the Lands was reclaimed and taken away from the Lams by another company in 1989, and a signboard and other structures were also erected on another part of the Lands in 1989 and 1990: [113] of the Reasoned Judgment;

(3)  there was a lack of documental evidence (such as photographs, receipts and bills) to show a continuous occupation of the relevant lots for at least 20 years by the Lams: [115] of the Reasoned Judgment;

(4)  there was similarly a complete lack of documentary evidence (such as receipts and bills for fish stock, fish fee, equipment and facilities, sales of fish, etc) showing that the alleged fish‑breeding business was carried on continuously during the requisite period: [115] of the Reasoned Judgment; and

(5)  the letter from the Lands Department dated 12 October 2009 did not mention Gun and there was a lack of evidence as to when he came to occupy the lots: [115] of Reasoned the Judgment.

35.  D7’s submission that the Judge was speculating at [115] of the Reasoned Judgment that “there was no evidence to show whether Tai had at any point abandoned the huts and / or the fishponds (especially after the alleged contamination of the fishponds) or whether there were any other occupiers coming on the Lands at any point of time within the requisite period of time” is plainly incorrect and represents a mis-reading of this part of the Reasoned Judgment.

36.  [115] of the Reasoned Judgment reads as follows:

“115. Further, there is a lack of documental evidence to show a continuous occupation for at least 20 years by Tai (and Gun). There is a lack of any photographs, receipts, bills etc. to show any continuous occupation. There is also a complete lack of any documents showing the existence of a fish-breeding business continuously during this time period e.g. receipts and bills for fish stock, fish feed, equipment and facilities, sales of fish etc. Thus, there was no evidence to show whether Tai had at any point abandoned the huts and / or the fishponds (especially after the alleged contamination of the fishponds) or whether there were any other occupiers coming on the Lands at any point of time within the requisite period of time. Further, the Land Department letter did not mention Gun so there is also a lack of evidence as to when he came to occupy the lots, if at all.”

37.  Properly and objectively read as a whole, what the Judge explained in this paragraph is that the burden was on D7 to prove by sufficient evidence that the Lams had occupied the relevant lots continuously for 20 years, and D7 had failed to provide such evidence, which should reasonably have existed if there was such continuous occupation. In the premises, D7 simply failed to prove the necessary factual possession for the entire period of 20 years. The reference to “whether Tai had at any point abandoned the huts and / or the fishponds (especially after the alleged contamination of the fishponds) or whether there were any other occupiers coming on the Lands at any point of time within the requisite period of time” was only to underline the position that, in the absence of the necessary evidence, continuous occupation was not the only more plausible or logical conclusion that could be drawn.

38.  Once so understood:

(1)  There is no substance in D7’s argument that it is “not either of the plaintiff’s case, nor any evidence, that the Lams had paid rent to any one since 1975” and thus the Judge was wrong in speculating that they somehow continued to pay rent after 1975. In this respect, the Judge correctly noted that Gun/D7’s pleaded case was premised on the Lams paying rent to Mr Man until 1975, and afterwards, they acquired the intention to use the Lands as Mr Man and his agents did not appear to collect rent for unknown reasons[15].

(2)  However, after taking into account all the relevant evidence, the Judge found at [120] of the Reasoned Judgment that there was no credible evidence to support Gun/D7’s said pleaded case and the court “is not in a position to speculate whether Tai and Gun had or had not paid any rent to whoever at whichever period of time, thus there is simply no compelling evidence that at any time, if at all, Tai and Gun had acquired the requisite intention to possess”.

(3)  D7’s argument is therefore wholly without substance.

39.  There is also nothing in D7’s complaint about the Judge’s application of Gotland.

40.  The Judge dealt with Gotland at [110] ‑ [115] of the Reasoned Judgment as follows:

“110. In Gotland, the Judge of First Instance found that given the nature of using a fishpond for fish farming, there was a sufficient degree of exclusive control over fishponds by the occupier even when there was no fencing. He found that there was sufficient physical control but was not satisfied on the requisite intention for adverse possession.

111. In the Court of Appeal judgment (paragraphs 37 and 39), it was stated that though it was not absolutely essential to have the land fenced off to establish exclusive occupation, this was the classic way of doing so. The judge should not have dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. The correct approach should be whether the occupier had established exclusive occupation of the fishpond when there was no fencing, that is, what steps were taken by the occupier to exclude others.

112. Of course, each case turns on its own facts. In this case, all the evidence of such ‘steps to exclude others’ (i.e. D7’s evidence that Tai and Gun were guarding the ponds 24 hours a day every single day instead of simply putting up fencing, and Madam Tsang’s evidence of Gun and Tai being very aggressive against outsiders) are not only illogical and inconsistent, but also no more than self-serving bare assertions as stated above.

113. Further, if one applies the approach taken in Gotland and take into account the steps taken to ensuring exclusive occupation of entirety of the Lands (and not just the fishponds) claimed by D7 (which include other pieces of land and lots besides Lot 2942 and Lot 2953), it is of note that not only that there was no fencing around the fishponds, there was no fencing around the entirety of the Lands and any alleged steps taken by Tai and Gun were clearly ineffective in ensuring exclusive occupation of all the Lands being claimed. For example, another lot (Lot 2951) on the Lands was allegedly reclaimed and taken away from them in 1989 by a company (which later expanded its occupation into part of the fishponds), a signboard and other structures were erected in 1989 and 1990 on another part of the Lands etc.

114. As such, I am not convinced that there is compelling evidence that Tai and Gun had sufficient degree of exclusive control over the Lands including Lot 2942 and Lot 2953.

115. Further, there is a lack of documental evidence to show a continuous occupation for at least 20 years by Tai (and Gun). There is a lack of any photographs, receipts, bills etc. to show any continuous occupation. There is also a complete lack of any documents showing the existence of a fish-breeding business continuously during this time period e.g. receipts and bills for fish stock, fish feed, equipment and facilities, sales of fish etc. Thus, there was no evidence to show whether Tai had at any point abandoned the huts and / or the fishponds (especially after the alleged contamination of the fishponds) or whether there were any other occupiers coming on the Lands at any point of time within the requisite period of time. Further, the Land Department letter did not mention Gun so there is also a lack of evidence as to when he came to occupy the lots, if at all.”

41.  When this part of the Reasoned Judgment is read properly, it is plain that the Judge did not, as contended by D7, simply apply Gotland to the present case. Instead, he reminded himself the approach set out in Gotland that each case must be decided on its own facts to determine whether the relevant squatter has established by compelling evidence that there was the requisite exclusive possession of, and intention to possess, the relevant land in question:

(1)  Although the Judge at [109] of the Reasoned Judgment noted the factual similarities between Gotland and the present case in that both involved a fishpond with no fencing, the Judge rightly noted that “each case turns on its own facts” as to “what steps were taken by the occupier to exclude others”.[16]

(2)  The Judge did not simply “apply” Gotland in finding against D7 (as apparently alleged by D7), but carried out his own detailed assessment of all the evidence adduced at trial, and found on the totality of those evidence that he had accepted that D7 had not in the present case established all the necessary elements of the alleged adverse possession.

42.  For all the above reasons, in our view, not only is the Judge not plainly wrong in his findings, he was indeed fully justified to reject D7 and his witnesses’ material evidence and come to the conclusion that D7 failed to prove by compelling evidence the alleged adverse possession of the Lots.

43.  Accordingly, Grounds 1 to 4 are plainly unarguable.

F2.  Ground 5

44.  Under this ground, D7 argues that the Judge had failed but ought to have at least found that Gun had adversely possessed Lot 2953 for at least 12 years and thus had obtained the necessary possessory title. This is so as DCCJ 2388 was only issued by Siu against D7 in May 2017, which is more than 12 years after Gun filed his affirmation in DCMP 4082 on 20 December 2004. During these 12 odd years, it cannot be disputed that Gun had continued to be in physical possession of the relevant lot with the requisite intention.

45.  This argument is misplaced.

46.  First, D7’s pleaded case in his Amended Defence and Counterclaim in DCCJ 2388 is as follows:

“5. Mr Man ceased to collect rent since about the mid 1970s, and Lam Senior and his family has since then been in exclusive possession of the Property and treated it as his own including leasing it out to others without accounting to anyone until his demise; and thereafter the Deceased continued to be in exclusive possession and similarly treated it as his own without having to account to anyone until his demise.

…

13. The trespass (first by Lam Senior, then by the Deceased and thereafter by the Defendant) commenced in or about the mid 1970s. The Plaintiff’s and its predecessors-in-title’s cause of action arose more than 12 years before the issuance of the Writ of Summons herein.

14. The title of the Plaintiff’s predecessors-in-title to the Property has since about mid 1990s or anytime thereafter been extinguished under s.17 of the Limitation Ordinance, Cap. 347.” (Emphases added)

47.  Clearly, Gun/D7’s pleaded case was premised solely on Tai/Gun’s adverse possession commencing in around 1975, when Mr Man ceased collecting rent. Gun/D7 had never pleaded any case that alternatively, adverse possession only commenced in or after 2004. D7 himself also did not raise such a case at the trial. On this basis alone, it is not open for D7 to seek to raise a new alternative fact-sensitive case on appeal that adverse possession commenced on or after 2004. The Judge did not commit any error in not having considered such a case on his own. Ground 5 also has no merit at all.

G.  DISPOSITION

48.  For the above reasons, all the proposed grounds of appeal have no merits at all. There is no other reason in the interests of justice that this matter should be heard by the appellate court. It is therefore futile to grant D7 any extension of time to appeal against the Judgment.

49.  Accordingly, we refuse to grant leave to appeal out of time and dismissed the Summonses. We further order that D7 do pay Luckway and Siu respectively the costs of the respective Summonses.

50.  Having considered the Statement of Costs filed by Luckway’s legal representatives on 7 September 2023 and the Statement of Costs filed by Siu’s legal representatives on 19 April 2024, we consider that the costs as sought by the parties are reasonable. Accordingly, we further order that:

(1)  For CAMP 294/2023, D7 do pay the costs of Siu assessed summarily at the sum of HK$138,047.50; and

(2)  For CAMP 295/2023, D7 do pay the costs of Luckway assessed summarily at the sum of HK$132,610.00.

51.  Since this application for leave to appeal is totally without merit, we make an order pursuant to Order 59, rule 2A(8) of the RHC that no party may request this determination be reconsidered at an oral hearing inter partes.

52.  This judgment is written in English in view of the fact that the judgments below are all written in English. If required, the applicant may make an appointment with the clerk to this court for this judgment to be orally interpreted to him in Punti in the court’s premises.