Yip Yan Cheung Gary also known as Yip Yan Cheung v. Chow Tin Choi

DCCJ 2645/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2645 OF 2012

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DECISION

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Introduction

1.On 23 July 2015, judgment of this action was handed down (“the Judgment”) in which I dismissed the plaintiff’s claim and entered judgment for counterclaim in favour of the defendant, with costs to the defendant.

2.On 20 August 2015, the plaintiff took out a summons to apply for leave to appeal against the Judgment.

3.The factual background of the case and the reasons for my decision were set out in detail in the Judgment so there is no need to repeat here.

The plaintiff’s grounds of appeal

4.The plaintiff raises five grounds of appeal and I will deal with them one by one. The first ground is that it was wrong for the court to infer that the defendant and his family were in continuous and uninterrupted possession of the Subject Lands since 1981.  In particular, it was submitted that the court erred to infer that the defendant had possessed the Subject Lands between the years of 1990 to 2000.

5.I do not agree that the court only drew inference of continuous and uninterrupted possession of the defendant.  In reaching the conclusion, the court has taken into various pieces of evidence, including expert opinions, aerial photos and the evidence of the defendant himself.  Concerning the situation between 1990 and 2000, it was made clear at paragraph 39 of the Judgment that putting all the evidence together the court preferred the version of the defendant.  In the circumstances, I am of the view that it was a clear finding of facts supported by sufficient evidence.  I therefore do not see any merit in this ground.

6.The second ground is that the defendant failed to discharge the burden of proof.  This ground is basically the same as the first ground.  The court of course was well aware of the burden of proof is always on the person who claims to be in adverse possession of a piece of land.  What the defendant meant is that the plaintiff failed to adduce sufficient evidence to prove that he (together with his family) had been in continuous and uninterrupted possession of the Subject Lands since 1981.  Again it is a challenge to the basic finding of facts and I believe I have made myself clear in the Judgment and the previous paragraph.  Again I do not think there is merit in this ground.

7.The third ground is that the court failed to consider adequately the overall credibility of the defendant.  The plaintiff contends that the evidence of the defendant was self-serving statement and the court should give very little or no weight to such evidence.  I disagree.  Any party to the litigation who chooses to give evidence will be giving self-serving statement.  I am not aware of any rule of evidence that the court should treat such evidence, self-serving or otherwise, any differently.  After all, it is always the duty of the court to assess and evaluate all the evidence and determine the credibility of the witnesses.  In this case, I have compared the evidence of the plaintiff and the defendant. For the reasons given in the Judgment, I preferred the evidence of the defendant.  I do not consider this ground to be reasonably arguable.

8.The fourth ground is that the court failed to give adequate consideration to the Village Elders Letter and the Father’s Declaration (“the two documents”).  It is true that there is no mention of the two documents in the Judgment.  However, it does not mean that the court has not considered the two documents in coming to the conclusion.  It only means the two documents are comparatively less significant than other pieces of evidence, such as aerial photos, expert reports or oral evidence of witnesses.  As the Judgment made no reference to the two documents, it only means that the two documents do not affect the overall credibility of the defendant.  Again, it is a challenge to the fact finding of the court and I do not see it was plainly wrong.  I see no merit in this ground.

9.The fifth ground is that the court failed to consider the three lots of land separately. Again I disagree.  At paragraphs 11, 12 and 35 of the judgment, I have dealt with the three lots separately and different observations were made according to the evidence.  I dealt with the lots collectively in other parts of the Judgment because the evidence allows me to do so and it would be the most convenient way to discuss the evidence.  I do not agree that the court failed to consider the three lots separately.                     

Conclusion

10.In view of the above, I am of the view that none of the grounds of appeal put forward by the plaintiff has any reasonable prospect of success.  Accordingly, I dismiss the plaintiff’s application for leave to appeal.

11.Costs should follow the event.  I make order nisi that the plaintiff do pay the defendant’s costs of this summons, with certificate for counsel, to be taxed if not agreed and the defendant’s own costs to be taxed in accordance with Legal Aid Regulations.  This costs order nisi shall become absolute unless application is made with 14 days of this decision to vary.

Mr. Derek Hu and Mr. Edward Tang, instructed by SSW & Associates, for the plaintiff

Mr. Adrian Leung, instructed by Wong Hui & Co., assigned by the Director of Legal Aid, for the defendant