CHUNG LIBURT WONG AND ANOTHER v. PUN LAI YIN STELLA AND ANOTHER

CACV 302/2019, [2023] HKCA 1095

On Appeal From [2019] HKCFI 1473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 302 OF 2019

(ON APPEAL FROM HCA NO 2198 OF 2014)

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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):

1.  On 12 June 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Defendants’ appeal against the judgment of Deputy High Court Judge Allan Leung dated 5 June 2019 (“the CFI Judgment”) ordering the Defendants to deliver up to the Plaintiff vacant possession of (inter alia) a portion of Lot No 1294 in Demarcation District No 222, Pak Kong Village, Sai Kung, New Territories, Hong Kong (“the Lot”) marked “P” (the “Pink Portion”) on a plan attached to the CFI Judgment as Schedule A, and dismissing the 1^st and 2^nd Defendants’ counterclaim that they are entitled to the Pink Portion on the ground of adverse possession and/or estoppel.

2.  The background facts of this case and the Court’s reasons for dismissing the Defendants’ appeal have been set out in the CA Judgment and will not be repeated here.

3.  By Notice of Motion dated 19 June 2023, the Defendants apply for leave to appeal the CA Judgment to the Court of Final Appeal.

4.  In the Notice of Motion, the Defendants set out 7 questions said to be questions involved in the intended appeal which, by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision. The 7 questions are as follows:

(1)  Whether an owner of land who divested his interests in the land prior to the conclusion of trial and the handing down of judgment by the first instance court, has standing or locus standi to pursue a proprietary claim, and obtain and be granted an order of possession of land in his favour? If not, whether in the absence of the addition or substitution of the subsequent owner of the land as a plaintiff prior to the conclusion of trial and the handing down of judgment by the first instance court, an order of possession granted by the first instance court is invalid and ineffective, or otherwise liable to be set aside?

(2)  Whether an appellate court can uphold a judgment for possession of land and grant costs in favour of a party who (i) is no longer the owner of such land by way of secretive transfer prior to the first instance judgment and (ii) has misled or otherwise wrongfully withheld disclosure or failed to inform the court and the counterparties about such secretive transfer?

(3)  Whether an appellate court can grant costs of joinder and costs of appeal in favour of the current owner who (i) was not the owner of the subject land at trial, (ii) has not been added or substituted as a party to the action prior to the conclusion of trial and the handing down of the first instance judgment, and/or (iii) has acted in concert with the former owner of the subject land in entering into a secretive transfer and withholding disclosure of the same to the court and other counterparties?

(4)  In cases where the Court can carry out its own visual examination of evidence, whether treatment to the experts’ unanimous opinion on that evidence should depart from the general principle where the Court and the experts are not equally equipped, particularly where the unanimous opinion was formed with the aid of optical instrument, namely, stereoscope, which was not available to the trial judge?

(5)  When the Court is faced with unanimous expert opinion on visual examination of evidence, whether the Court is entitled (and if so the appropriate test or threshold) to reject such unanimous opinion in favour of factual evidence that is not in complete conflict with the unanimous expert opinion, or whether the Court should attempt to reconcile the expert evidence with the factual evidence to the extent possible?

(6)  In cases where various portions of a land (“Land A”) are now owned by the same owners but used to be owned by different owners, and for the purpose of a claim of adverse possession by such current owners of Land A against the owner of another piece of land (“Land B”), whether it is relevant to consider if the adverse possession by a former owner of a portion of Land A (the “Former Owner”) against Land B was to the exclusion of the former owners of other portions of Land A (the “Other Former Owners”), or whether the current owners of Land A can simply rely on the possession of the Former Owner and the Other Former Owners collectively for the claim of adverse possession against the owner of Land B?

(7)  In cases where a party claims both proprietary estoppel and possessory title to a piece of land on the ground of adverse possession, whether the Court can dismiss the estoppel claim based solely on the maxim of equity which states “he who comes into [sic] equity must come with clean hands” on the basis that the party, as in the case of many other squatters, had no regard to the rights and interests of other landowners (including the Government)?

5.  Having considered the papers before us, we consider that it is appropriate to determine this application on paper without an oral hearing pursuant to §3 of Practice Direction 2.1.

6.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), 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.

Questions (1) to (3) – the issue of locus standi and costs

7.  Questions (1) to (3) concern the issue of whether the Plaintiff, being the former registered owner of the Lot (including the Pink Portion) but having assigned the Lot to the 2^nd Respondent prior to the conclusion of the trial, had locus standi to obtain judgment at first instance for vacant possession of the land against the Defendants (trespassers).

8.  The above issue was not raised in the Defendants’ Amended Notice of Appeal, or in their submissions to the Court of Appeal. We do not consider the Defendants are entitled to raise this issue for the first time in their intended appeal to the Court of Final Appeal.

9.  Well before the hearing of the appeal, the Defendants were fully aware that the Plaintiff had, subsequent to the commencement of the trial but before the CFI Judgment was handed down on 5 June 2019, assigned the Lot to the 2^nd Respondent on 25 April 2019. In fact, it was upon the Defendants’ application by summons dated 6 September 2021 (“the Joinder Application”) that the Court (Cheung JA) made an order on 18 February 2022 that the 2^nd Respondent be joined as a party to the appeal.

10.  In their summons of 6 September 2021, the Defendants also applied for leave to amend the Notice of Appeal filed on 2 July 2019. Leave to amend was granted by Cheung JA accordingly.

11.  In the Amended Notice of Appeal dated 4 March 2022, 4 grounds of appeal were raised, which have been summarised at §19 of the CA Judgment (see also §15 of the Notice of Motion). It is apparent that the issue of whether the Plaintiff had locus standi to obtain judgment at first instance for vacant possession of the land against the Defendants was not raised in any of the 4 grounds of appeal.

12.  At §9(8) of the Defendants’ Skeleton Submissions for Leave to Appeal dated 18 July 2023, it is said that “as stated in §35 of the Applicants’ submissions to the CA, P ceases to have any locus standi because she ceases to be the paper owner of the Lot”, and at footnote 4 on page 4 of those submissions, it is said that “[t]he Applicants’ primary position is that the question of locus is a live issue before the CA. By way of fallback, even if the CA is of the view that the question of locus was not argued (which is however denied), the Applicants respectfully submit that this matter should still be considered by the CFA …”.

13.  The suggestion that “the question of locus is a live issue before the CA” or the question of locus was “argued” before the Court of Appeal is incorrect. At §35 of the Defendants’ Skeleton Submissions dated 27 March 2023, what was said was that:

“By assigning the Lot to Liu [the 2^nd Respondent], the plaintiff (1^st Respondent) ceases to have any locus standi in the present appeal for she ceases to be the paper owner of the Lot. On the other hand, Liu, as the present paper owner of the Lot, should be the proper respondent in the present proceedings. Although Liu was not the original defendant to the 1^st and 2^nd Defendants’ counterclaim in the HC Action, the relief sought by the Appellants in the present appeal affects Liu.” [emphasis added]

14.  In other words, what was submitted by the Defendants’ counsel to the Court of Appeal was that the Plaintiff had no locus standi “in the appeal”, not that she had no locus standi to “pursue and obtain a judgment for possession” or that “any judgment purportedly obtained is liable to be set aside on the same ground” (as now sought to be argued by the Defendants, see §13 of the Defendants’ Skeleton Submissions for Leave to Appeal). The arguments now raised at §§12 to 25 of the Defendants’ Skeleton Submissions for Leave to Appeal were not raised at the hearing of the appeal, and none of the authorities mentioned in those paragraphs were cited to the Court of Appeal.

15.  We have not overlooked the fact that at §8 of the 1^st Defendant’s affirmation filed on 6 September 2021 in support of the Joinder Application, the 1^st Defendant stated that she had been advised by her solicitors and verily believed that “the Transfer of the Lot would affect the Plaintiff’s right and capacity in the HCA”, and at §14(2) of that affirmation, she said that “[i]t is questionable as to whether the Plaintiff has rights and capacity to seek for the reliefs given the fact of the Transfer of the Lot”. However, the contention that the Plaintiff had no right or capacity to obtain the CFI Judgment was not raised in the Amended Notice of Appeal. The Amended Notice of Appeal was apparently settled by 2 counsel, and the Defendants were represented by 2 counsel at the hearing of the appeal. The Defendants can hardly complain that the Court of Appeal did not deal with an issue which was not raised in either the Notice of Appeal or their submissions (written or oral).

16.  We would also observe that, had the issue of the Plaintiff’s entitlement to obtain judgment for vacant possession of the Pink Portion against the Defendants been properly raised in the appeal, there does not seem to be any good reason why the Writ and CFI Judgment could not have been amended or varied to add or substitute the 2^nd Respondent as a plaintiff. However, since this matter has not been argued in the Defendants’ submissions, we do not propose to express a final view on it.

17.  In passing, we note that the Defendants have also alleged that the transfer of the Lot by the Plaintiff to the 2^nd Respondent was “secretive” or “wrongfully withheld” from the court and the counterparties (ie the Defendants). For the present purpose, we do not consider it necessary to enter into any discussion of these allegations. It suffices for us to say that we must not be taken to have accepted that there was any impropriety on the part the Plaintiff or 2^nd Respondent as alleged by the Defendants.

Questions (4) and (5) – treatment of expert opinion

18.  Questions (4) and (5) concern the Judge’s treatment of the expert evidence on whether various aerial photographs showed that the “Orange Wall” was in existence in 1993, it being the Defendants’ case that their house (House A) and the Pink Portion had been completely enclosed by (inter alia) the Orange Wall since May 1993. As mentioned at §20 of the CA Judgment, the Judge made a finding of primary fact that the Orange Wall did not exist in 1993 but was built at the earliest after 3 April 2005. The Judge carefully considered the evidence of the parties’ respective experts, but ultimately decided not to accept their evidence. We have explained at §§22 to 30 of the CA Judgment why we considered the Judge was entitled not to accept the experts’ opinion on this matter, and do not propose to repeat our analysis here.

19.  In any event, the Judge made his finding that the Orange Wall was not in existence in 1993 not just on the basis of his own examination and observation of the relevant aerial photographs. The Judge also took into account and accepted:

(1)  the direct evidence of Mr Yeung Senior, whom the Judge considered to be a truthful witness – Mr Yeung Senior was the original builder of House A and gave evidence that he did not build the Orange Wall, and House A was not enclosed, in 1993 (in this regard, it is of note that there was no evidence, or suggestion, by the Defendants that the Orange Wall was built by anyone other than Mr Yeung Senior in or about 1993), and

(2)  evidence based on two survey sheets in 1999 and 2011 which suggested that the Orange Wall was not in existence even in 1999 (see §28 of the CA Judgment).

20.  In reality, the Defendants are seeking to challenge a concurrent finding of fact that the Orange Wall was not in existence in 1993. We do not consider that the Defendants’ intended appeal raises any question of great general or public importance as framed in Questions (4) or (5).

Question (6)

21.  In view of the conclusion reached that the Pink Portion was not fully enclosed until sometime after 3 April 2005, this question simply does not arise for determination (see §§39 to 40 of the CA Judgment).

Question (7)

22.  Again, the issue of “clean hands” does not arise for determination because the defence of proprietary estoppel cannot even get off the ground for the reasons mentioned in §§42 and 43 of the CA Judgment.

23.  Further, Question (7) is premised on the assumption that the Judge dismissed the Defendants’ estoppel claim solely on the maxim that “he who comes to equity must come with clean hands”. This assumption is wrong. The Judge dismissed the estoppel claim also because he found that the Defendants had failed to establish the requisite elements of (i) representation, and (ii) detriment (see §§157-158 and 160-161 of the CFI Judgment).

24.  In all, we do not consider that any question of great general or public importance is involved in the proposed appeal. We are also not satisfied that the Defendants have shown that their intended appeal has a reasonable prospect of success.

25.  The “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance is reserved for exceptional cases. We do not consider that there is any special or exceptional circumstance in the present case to justify granting leave to appeal under the “or otherwise” limb. In any event, it is the settled practice of this Court to defer the question of whether leave to appeal should be granted on the “or otherwise” limb to the Appeal Committee of the Court of Final Appeal for their consideration. We see no good reason to depart from this practice in the circumstances of the present case.

26.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed with costs to the 2^nd Respondent, to be taxed if not agreed.