HORN KING LTD v. WONG CHOR CHEUNG AND ANOTHER

DCCJ 296/2018

[2024] HKDC 1478

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 296 OF 2018

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D E C I S I O N

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1.  These proceedings arose from the parties’ rival claims of possession of Garage Space B2 on No. 23 Plantation Road, Hong Kong. On 27 May 2024, I handed down the judgment (“Judgment”)[1] in which, among other things, I made a declaration that the plaintiff is the rightful owner of Garage Space B2 and ordered that the defendants’ counterclaim of adverse possession of Garage Space B2 be dismissed.[2]

2.  By summons dated 24 June 2024, the 2^nd defendant applied for leave to appeal against the Judgment. In the draft notice of appeal, the 2^nd defendant put forward two proposed grounds of appeal which are said to have a reasonable prospect of success.[3]

3.  Having read the parties’ respective written submissions, I am satisfied that an oral hearing is not necessary and that the summons is suitable for disposal on paper only, pursuant to the guidance laid down by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350, §24, per Lam VP (as he then was).

The applicable legal principles

4.  It is common ground that no leave to appeal should be granted unless the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard: see section 63A(2) of the District Court Ordinance (Cap 336). A “reasonable prospect of success” means an appeal with prospects that are more than “fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125, §17, per Le Pichon JA.

The first proposed ground of appeal

5.  The 2^nd defendant’s first proposed ground of appeal alleges that there was a violation of the Browne v Dunn principle as enunciated by Lord Herschell LC in Browne v Dunn (1893) 6 R 67 at 71, in that Mr Chiu was not cross-examined on the difference between the dimensions of the sliding door referred to in his receipt dated 8 October 2005 (“October Receipt”)[4] and the measurements of B2 Sliding Door on the Floor Plan,[5] and that the court was plainly wrong in rejecting the October Receipt and his written and oral evidence as sufficient proof that B2 Sliding Door was installed on or before 8 October 2005.

6.  It is recognised that, as a general rule, if a witness is to be impeached on his credibility, he should be given an opportunity of explanation which is open to him. The exception is where notice has been given or where the point is so apparent: Browne v Dunn (supra) at 71, per Lord Herschell LC; Dr Fong Ka Yeung v The Medical Council of Hong Kong, CACV 159 of 2007 (15 March 2011), §30(1), per Cheung JA.

7.  It is therefore pertinent to note that the Browne v Dunn principle is not an inflexible one. It is not broken even if a material matter is not put to a witness, if the witness can fairly and objectively be said to be on notice of it or where the point is so apparent. Nor does the principle inflexibly require every point which might be used against a witness to be put to him. In essence, the principle is breached if in all the circumstances an omission to cross-examine on a specific point is unfair to a witness: Pacific Electric Wire & Cable Company Limited v Texan Management Limited and Others, CACV 90, 91, 93, 94, 95 and 96 of 2012 (17 September 2013), §§124-125, per Kwan JA (as she then was).

8.  Having said that, even if the Browne v Dunn principle is transgressed, it does not inexorably follow that matters which have not been put to a witness in cross-examination cannot be relied on. It may be a question of the weight to be given to a witness’ testimony taking into account all the available evidence. Thus, for example, a witness’ evidence may be so incredible as to be incapable of belief or his evidence may be unsupported or contradicted by known facts and contemporaneous documents: Kaifull Investments Ltd v Commissioner of Inland Revenue [2002] 1 HKLRD 858, §31(3), per DHCJ Reyes SC (as he then was).

9.  In the present case, on the first day of trial, Ms Lau, counsel for the plaintiff, and Mr Chung, counsel for the 2^nd defendant, agreed that a more relaxed view about the Browne v Dunn principle may be taken in cross-examination of the witnesses. It is against the above background that the 2^nd defendant’s first proposed ground of appeal is to be considered.

10.  The 2^nd defendant’s pleaded case was essentially that (1) the 1^st defendant began using Garage Space B2 for storage from around late 1992; (2) on around 2 July 2005, the 1^st defendant caused Mr Chiu to install, among other things, B2 Gate, Middle Gate 1 and Middle Gate 2; and (3) on around 8 October 2005, the 1^st defendant further caused Mr Chiu to install B2 Sliding Door.

11.  Therefore, it was the 2^nd defendant’s pleaded case that Garage Space B2 had been fully enclosed since 2 July 2005 by the installation of B2 Gate, Middle Gate 1 and Middle Gate 2.[6]  It is right to point out that it has never been the 2^nd defendant’s case that Garage Space B2 was only fully enclosed since 8 October 2005 by the installation of B2 Sliding Door alone. Mr Chung now seeks to argue that B2 Sliding Door was the “foundation” of the 2^nd defendant’s case of adverse possession, but such argument is not supported by the 2^nd defendant’s pleadings and, in any event, the alleged installation of B2 Sliding Door must be considered in the light of the entirety of the 2^nd defendant’s case and evidence.

12.  During the trial, Mr Chiu was cross-examined on the receipts issued by him in 2005 (including the October Receipt) for the alleged installation of, among other things, B2 Gate and B2 Sliding Door. In particular, he was asked to confirm that none of his receipts stated the exact location of the works on the Ground Floor of the Building, and therefore B2 Gate and B2 Sliding Door were not in fact installed at the entrance of Garage Space B2. As I found at §44 of the Judgment, Mr Chiu was evasive in his oral testimony, in that even when he was shown the relevant receipts (including the October Receipt), he still disagreed that none of them specified the location of the relevant works. He was also unable to explain why, on the one hand, he accepted that he did not pay attention to which part of the Ground Floor was Garage Space B1 or Garage Space B2, and on the other hand, he was able to say that he installed B2 Gate and B2 Sliding Door at the entrance of Garage Space B2.

13.  Given that Mr Chiu’s receipts (including the October Receipt) were materially incomplete as to the exact location of the work done and that he admittedly did not pay attention to which part of the Ground Floor was Garage Space B1 or Garage Space B2, I found, on the whole of the evidence, that no inference could be drawn from those receipts that the installation works were carried out at the entrance of Garage Space B2 as Mr Chiu alleged in his oral testimony.[7]

14.  The 2^nd defendant now complains that the Browne v Dunn principle was infringed on the ground that Mr Chiu was not cross-examined on the difference between the dimensions of the sliding door referred to in the October Receipt and the measurements of B2 Sliding Door on the Floor Plan. In my view, no procedural unfairness arose as alleged or at all for the following reasons:

(1)  In Mr Chung’s closing submissions, he claimed, for the first time, that the dimensions of the gate referred to in Mr Chiu’s receipt dated 2 July 2005 (“July Receipt”) supported the 2^nd defendant’s case that B2 Gate was installed at the entrance of Garage Space B2 on or around 2 July 2005. Mr Chung also confirmed to the court that the measurements on the Floor Plan formed part of the 2^nd defendant’s case.

(2)  After this court pointed out to Mr Chung that the dimensions of the gate referred to in the July Receipt do not tally with the measurements of B2 Gate on the Floor Plan, Mr Chung submitted that he was unable to say whether the measurements on the Floor Plan were accurate without recalling Mr Chiu, and went on to apply for leave to recall Mr Chiu to explain the difference between the dimensions of the gate referred to in the July Receipt and the measurements of B2 Gate on the Floor Plan.

(3)  This court, after hearing parties’ submissions, acceded to Mr Chung’s application and allowed Mr Chiu to be recalled to explain the difference between the dimensions of the gate referred to in the July Receipt and the measurements of B2 Gate on the Floor Plan. As I stated at §44 of the Judgment, when the discrepancies were pointed out to Mr Chiu, he could not explain away the differences except to reiterate that he did install B2 Gate as per the July Receipt.

(4)  As to the October Receipt, first, it was never the focus of the parties’ submissions because, as explained above, it has never been the 2^nd defendant’s case that Garage Space B2 was only fully enclosed since 8 October 2005 by the installation of B2 Sliding Door alone. Given the parties’ agreement that a more relaxed view about the Browne v Dunn principle may be taken in cross-examination of the witnesses, fairness does not require each and every point in relation to the veracity of the October Receipt to be answered or explained by Mr Chiu. Indeed, none of the parties asked for the measurements stated in the October Receipt to be answered or explained by Mr Chiu during the entire trial.

(5)  Secondly, the point regarding the difference between the dimensions of the gate referred to in the July Receipt and the measurements of B2 Gate on the Floor Plan was so apparent, and in the light of the Floor Plan, Mr Chiu’s assertion that the sliding door referred to in the October Receipt was in fact B2 Sliding Door was so incredible, that an opportunity to explain on cross-examination would make no difference.

(6)  Thirdly, and in any event, even taking the 2^nd defendant’s case at its highest and assuming that Mr Chiu had a valid explanation for the difference between the dimensions of the gate referred to in the July Receipt and the measurements of B2 Gate on the Floor Plan, it would neither have changed the fact that the October Receipt is materially incomplete nor would it have salvaged the unsatisfactory evidence given by Mr Chiu or the inherent improbabilities of the defendants’ case as a whole as explained in the Judgment.

15.  For the above reasons, and in all the circumstances of the case, I am of the view that there is no reasonable prospect of success in the 2^nd defendant’s argument that the Browne v Dunn principle was violated in relation to the October Receipt as alleged or at all.

16.  Turning to the 2^nd defendant’s contention that the court was plainly wrong in rejecting the October Receipt and Mr Chiu’s written and oral evidence as sufficient proof that B2 Sliding Door was installed on or before 8 October 2005, in effect, she complains that the court did not give sufficient weight to the October Receipt and Mr Chiu’s written and oral evidence on B2 Sliding Door.

17.  It is trite law that the weight of the evidence is a matter for the trial judge, and that the appellate court would not disturb the trial judge’s findings of primary fact and inferences from such findings unless they are plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, §42, per Bokhary PJ; Cheung Yuk Ying Engracia v MacGregor Isabella [2023] 3 HKLRD 164, §§28, 40, per G Lam JA. The 2^nd defendant therefore has to meet a “heavy burden” and a “high threshold” in order to challenge this court’s findings and conclusions: Cheung Yuk Ying Engracia (supra), §28; Mak, Rachel Wing Nam v Ching Kai Chung [2024] HKCA 818, §20, per G Lam JA. In the Judgment, I fully considered all the matters as contended for by the 2^nd defendant against the objective surrounding facts, such documentation as there is, and the inherent probabilities as they appear to the court.[8] Nothing in the draft notice of appeal or Mr Chung’s submissions suggest that the court’s factual findings are plainly wrong, or that there is any palpable error in making those findings. I also agree with Ms Lau’s submission that there is no proper evidential basis for the 2^nd defendant to suggest that the only sensible position where the sliding door referred to in the October Receipt was installed would be at the opening of Garage Space B2.

18.  For the above reasons, I am not satisfied that the first proposed ground of appeal put forward by the 2^nd defendant has any reasonable prospect of success.

The second proposed ground of appeal

19.  The 2^nd defendant’s second proposed ground of appeal alleges that the court was plainly wrong in concluding that the 1^st defendant did not have continuous exclusive possession of Garage Space B2 since 2005 on the basis that the 1^st defendant was unable to explain why all photos produced by the plaintiff, which were taken on five different occasions between June 2015 and January 2018, invariably show that the plaintiff’s personnel were able to gain free access into Garage Space B2 to take photos inside Garage Space B2.

20.  First, this proposed ground of appeal is premised on an assumption that the court should have accepted the October Receipt and Mr Chiu’s evidence as sufficient proof of the alleged installation of B2 Sliding Door on around 8 October 2005. As explained above, I do not find that there is any reasonable prospect of success for the 2^nd defendant to argue that such an assumption should have been made by the court in the first place.

21.  Secondly, the court’s findings on the 1^st defendant’s alleged exclusive possession of Garage Space B2 were not solely based on the photos taken by the plaintiff’s personnel on five different occasions between June 2015 and January 2018, but also in the light of all the matters as contended for by the 2^nd defendant as well as the objective surrounding facts, such documentation as there is, and the inherent probabilities as they appear to the court.[9] I agree with Ms Lau’s submission that it is wholly inadequate for the 2^nd defendant to try to complain about the court’s analysis of only a specific part of the evidence whilst implicitly (and rightly) accepting that the rest of the court’s analysis cannot be faulted.

22.  Thirdly, there is nothing in the draft notice of appeal or Mr Chung’s submissions which may tend to suggest that the court’s factual findings on the 1^st defendant’s alleged exclusive possession of Garage Space B2 are plainly wrong, or that there is any palpable error in making those findings. It seems that the 2^nd defendant simply disagrees with the court’s findings, but is unable to show how the findings are plainly wrong.

23.  For the above reasons, I am not satisfied that the second proposed ground of appeal put forward by the 2^nd defendant has any reasonable prospect of success.

Disposition

24.  In the absence of reasonable prospects of success in the proposed grounds of appeal put forward by the 2^nd defendant, and there being no other reason in the interests of justice why the appeal should be heard, the 2^nd defendant’s summons for leave to appeal against the Judgment shall be dismissed.

25.  Costs should follow the event. Having considered the plaintiff’s statement of costs,[10] I would order that the 2^nd defendant do pay the plaintiff’s costs of the summons, summarily assessed at $75,000.