Lam Man Lau and Another v. Secretary for Justice

DCCJ1682/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1682 OF 2012

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DECISION

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Introduction

1.The plaintiffs seek leave to appeal against my Judgment handed down on 25 July 2016, and a stay of execution pending appeal to the Court of Appeal.  The defendant opposes to both applications.

The standard of review

2.There is no dispute that leave to appeal should be granted if the intended appeal has reasonable prospect of success.  This means that the merits of the intended appeal is more than fanciful, but the plaintiffs need not show they will probably succeed.

3.But the parties differ as to the circumstances in which the Court of Appeal will interfere with the Judgment.  Ms Teresa Wu, counsel for the defendant, submits that the main issues I decided in the Judgment, ie whether the plaintiffs established uninterrupted possession of the Land for 60 years before 12 November 2011, together with the requisite intention to possess, were questions of fact. Therefore, the Court of Appeal will only intervene if my findings are plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §42.

4.Mr Tony Ko, counsel for the plaintiffs, submits that the findings in the Judgment were just inferences that I drew from the unchallenged primary facts.  For inferences, the Court of Appeal is more willing to intervene and overturn them, because it is in as good a position as the trial judge in making them.

5.With respect, the distinction made by Mr Ko does not sit well with repeated Court of Appeal decisions.  I start with Pang Ketian Sally v Tam Yuk Hung Annie CACV 147/2013 (Cheung CJHC, Kwan & Barma JJA; 25.04.2014) at §§26-30:-

“26.  It has to be appreciated that nowadays, very rarely can a finding of fact be entirely based on the demeanour of the witnesses, except in “the simplest of cases”: Tradepower (Holdings) Ltd v Tradepower (Hong Kong) Ltd (2009) 12 HKCFAR 417, para 140 (per Litton NPJ).  One situation where demeanour alone may be decisive is where neither rival account is appreciably more inherently probable or improbable than the other, and there is little or no evidence other than the testimony of the protagonists, each with an interest to serve.  In such a situation, “there may be little or nothing for the factfinding judge to go on apart from demeanour”: Ting Kwok Keung, para 38.  That represents one “extreme” end of the possible situations.

27.  “At the other extreme”, there can be situations such as where the judge found that he could get nothing from the demeanour of the witnesses, and expressly proceeded to choose between their rival accounts according to the inherent probabilities – see the real example given by Bokhary PJ in paragraphs 38 and 39 of Ting Kwok Keung.

28.  But, as the learned judge pointed out, most cases fall somewhere in between these two extremes.  In fact, unless the contrary is expressly said, one proceeds on the basis that demeanour or credibility did play some part in the finding of fact made by a trial judge, irrespective of whether the judge made any observation with regard to credibility or not.  Ting Kwok Keung, para 39.

29.  The reality, as explained in paragraph 40 of that case, is that no judge can afford to be complacent about his ability to arrive at the truth by assessing demeanour; but, likewise, no judge can afford to be complacent about his ability accurately to say which story is more probable.  Therefore, in practice, almost invariably trial judges are expected to and indeed do take into account both demeanour and inherent probability in arriving at their findings of fact, save in those exceptional circumstances falling within either of the two extremes explained above.

30.  It was in the context of that discussion that Bokhary PJ, in Ting Kwok Keung, came to the conclusion that as a general rule, the Court of Appeal, which does not enjoy the advantages enjoyed by the trial judge who received the evidence at first hand, should only disturb a finding of fact if it is satisfied that the same is “plainly wrong”: paras 41 and 42.

31.  This “plainly wrong” test, in other words, is applicable unless the finding of fact is based purely on inferences, or otherwise has nothing to do with the witnesses’ demeanour or the trial judge’s having received the evidence at first hand.  In this regard, it is worth remembering that when Bokhary PJ referred to the dichotomy between a finding of primary fact and a finding of fact made by a process of inference in paragraph 34 of the judgment, he referred to Benmax v Austin Motor Co Ltd [1955] AC 370 as an example to illustrate the second category of finding of fact based on inference.  As explained by the judge, the issue of fact in that patent case was whether the invention claimed involved an inventive step.  No question of credibility arose.  By a process of inference, the trial judge found that the invention claimed involved an inventive step. Also by such a process, the Court of Appeal reversed the finding.  The House of Lords affirmed the Court of Appeal’s decision and pointed out that whilst there is a universal reluctance to reject a finding of specific fact, particularly where the finding could be founded on the credibility or bearing of a witness, there is no less a willingness to form an independent opinion about the proper inference of fact, subject only to the weight which should, as a matter of course, be given to the opinion of the trial judge (per Viscount Simonds at page 374).

32.  Paragraph 14(b) of Tin Kwong International Enterprise[1]should therefore be understood in the light of the above discussion.  There, this court (differently constituted) was not giving a definition of a finding of primary fact, nor was it defining a finding of primary fact as limited to one based only on the credibility of the witnesses or the preference of the evidence of one witness to that of another.  For that would have been an extremely narrow definition of a finding of primary fact which could seldom be satisfied, given the rarity of situations where a finding of fact could justifiably be made on the basis of credibility or demeanour alone.  A finding of primary fact includes, of course, a finding which is based entirely on credibility or demeanour (where that is appropriate).  But, in my view, it also includes a finding of fact which is partly based on demeanour and partly based on inherent probabilities, which is the commonest of all situations.  To challenge such a finding of primary fact, the appellant must succeed in persuading this court that the finding is “plainly wrong”.”

6.The above passage has been adopted in Ageas Insurance Co Ltd v Lam Hau Wah Inneo CACV 65/2014 (Lam VP, Kwan & Barma JJA; 09.01.2015).  In China Gold Finance Limited v CIL Holdings Limited & Ors CACV 11/2015 (Lam VP, Kwan & Chu JJA; 27.11.2015), the Court of Appeal at §22 also said that there would be a greater appreciation of the need to exercise restraint in respect of findings of secondary facts based on inference drawn from findings of primary fact.

7.I do not accept the findings that I made in the Judgment were pure inferences.  As set out in the Judgment, I considered whether, in light of the factual matrix, the evidence of the plaintiffs’ witnesses could be relied upon to show that there had been exclusive possession of the Land together with the requisite intention to possess.  In my judgment, this involved both an assessment of the credibility and reliability of the plaintiffs’ evidence, and also their effect on the plaintiffs’ arguments.  Therefore, the “plainly wrong” test should be applied in determining whether the plaintiffs have reasonable prospect in their intended appeal.

8.Mr Ko has drafted a 13-page Notice of Appeal setting out the errors allegedly made in the Judgment.  I will go over them in turn.

The general grounds

9.The plaintiffs first submit (in ground 1 of the draft Notice of Appeal) that I erred in §54 of the Judgment in finding that the 1^st plaintiff’s evidence as unreliable, and Lam Chau Shing was not to be believed unless it was matters personal to him.  Mr Ko argues that such findings are not permissible, when (i) the defendant did not challenge the credibility of the 1^st plaintiff and Lam Chau Shing; and (ii) Lam Chau Shing had personal knowledge on a number of matters which he could be expected to reasonably remember despite the long lapse of time.

10.Ms Wu vehemently opposes the assertion that the defendant did not challenge the credibility of the 1^st plaintiff and Lam Chau Shing.  I agree with her.  It is clear that the defendant always challenged the plaintiffs’ evidence.  For example, at §10 of the defendant’s closing submissions, Ms Wu submitted that the plaintiffs’ witnesses could not give complete and reliable evidence.  At §28, she characterised the 1^st plaintiff’s evidence as “confusing, contradictory and incomplete”, and cast doubt on the accuracy of Lam Chau Shing’s evidence.  I think Ms Wu is right that, insofar as Mr Ko suggests that there was no dispute as to the credibility of the plaintiffs’ witnesses, the defendant was only acknowledging that they did not intentionally lie in their evidence.  It was not agreed between the parties that I should accept the evidence of the plaintiffs’ evidence as the truth.

11.I set out in my Judgment the basis on which I formed my impression about Lam Chau Shing’s evidence.  In my judgment, Mr Ko cannot show that my assessment falls outside the reasonable range of conclusions a reasonable trial judge could have arrived at.  Hence, I do not accept that there is a reasonable prospect for the Court of Appeal to overturn my assessment.

12.In addition, the plaintiffs submit that (in ground 2b of the draft Notice of Appeal) I erred in applying the wrong standard of proof.  They argued that, at §§67-69 of the Judgment, the use of the word “must” in those paragraphs indicates that I did not assess the plaintiffs’ evidence on a balance of probabilities.

13.I agree with Ms Wu that, on an objective reading of the Judgment, the plaintiffs’ argument is no more than one on semantics.  In my view, there is no reasonable prospect for the Court of Appeal to accept the plaintiffs’ argument, given that the legal principles were extensively set out in the Judgment, in which the correct burden of proof was repeated.  I am not persuaded that, without more, I adopted the wrong standard simply by the choice of one word. 

14.Further, I disagree with Mr Ko that the plaintiffs’ claim was fully supported by contemporaneous documents, including survey sheets, aerial photographs and title documents (c f ground 2a of the draft Notice of Appeal).  Mr Ko clarified at the hearing to say that those documents were not inconsistent with the plaintiffs’ claim.  I think that is the highest one can describe the situation.  With respect, it is a far cry from saying that the documentary evidence lent credence to the plaintiffs’ claim.

The evidence of Lam Chau Shing

15.The plaintiffs argue that I erred in not accepting the plaintiffs’ case simply because I rejected the 1^st plaintiff’s evidence.  Mr Ko submits that I failed to analyse Lam Chau Shing’s evidence, which could have supported the plaintiffs’ claim alone (see ground 4 of the draft Notice of Appeal).

16.In the Judgment, I referred to Lam Chau Shing’s evidence at §§58, 71, 78, 82, 88 and 95.  I do not agree I overlooked his evidence in any significant way.

17.As to whether I misunderstood his evidence, Mr Ko may well have a point in saying that §95 of the Judgment shows that I might have overlooked §18 of Lam Chau Shing’s witness statement, stating that he witnessed the building of the public lavatory.  But in my judgment, this must be considered in the context of the remaining evidence in the present case.  I do not find it reasonably arguable that Lam Chau Shing’s evidence could have been independently considered, and sufficient to support the plaintiffs’ claim, despite it being inconsistent with the 1^st plaintiff’s evidence.  Since the 1^st plaintiff and Lam Chau Shing grew up in the same neighbourhood, it would be difficult to accept that they could have entirely different understanding and knowledge about the Land.  I find it unrealistic that, simply because Lam Chau Shing is a few years older than the 1^st plaintiff, his personal knowledge would necessarily be credible and reliable despite it being inconsistent with the 1^st plaintiff’s evidence.

18.Indeed, one has to remember that Lam Chau Shing did sign on the 1^st plaintiff’s letter dated 28 May 2003 (referred to at §38 of the Judgment) lending his support to the 1^st plaintiff’s application.  The plaintiffs’ solicitors, in their letters to the DLO/YL (referred to at §93 of the Judgment) claimed to be acting for the Tso as well as the 1^st plaintiff.  As one of the managers of the Tso, there is no evidence to suggest that Lam Chau Shing did not subscribe[2] to what was put forward in those letters.  Hence, I find Mr Ko’s submissions that one can simply consider Lam Chau Shing’s evidence in isolation artificial.

Planting vegetation

19.Under ground 5 of the draft Notice of Appeal, Mr Ko first submits that I was wrong in not relying on the 1^st plaintiff’s evidence.  He identifies the error as my failure to consider Lam Chau Shing’s evidence, and the allegedly undisputed documentary evidence.  As I explained before, those 2 matters cannot help the plaintiffs to show that I was plainly wrong in my assessment.

20.Mr Ko further argues that the documents clearly showed that the 1^st plaintiff’s grandfather, Lam Kwong Tat, was in control of the Land since 1917.  This could be inferred from the fact that he purchased Lot 313 on behalf of his father, Lam Wan Tsoi. Mr Ko did not attempt to cast his case in this way at trial.  More importantly, without further evidence being led at trial, I cannot see how one can infer factual control of the Land solely from the information revealed from the Land Registry records.  I find this ground has no reasonable prospect of success.

21.It is Mr Ko’s next point (at ground 6 of the draft Notice of Appeal) that I ignored the inherent probabilities of the case.  He submits that, since there was no dispute that fruit trees were on the Land as early as 1945, it was inherently probable that Lam Kwong Tat planted them, and he exerted his exclusive control of the Land through this.

22.I find Mr Ko’s argument problematic.  The aerial photograph taken in 1945 could only show the condition of the Land at that snapshot.  It could not assist me to find when the vegetation appeared (to use a neutral term) on the Land, and who planted them. What Mr Ko refers to as the “unchallenged evidence” is, in my judgment, just one way of looking at the evidence.  I do not accept that I was plainly wrong in my assessment.

The wall

23.Mr Ko submits, at ground 8 of the draft Notice of Appeal, that I was wrong in finding that the evidence was not sufficient to show the requisite factual possession and the intention to possess.  He primarily argues that (i) there was no need to completely encircle the Land by the wall; and (ii) the evidence showed that strangers to the Tso could not simply walk into the Land.

24.I acknowledged in the Judgment that the wall did not need to completely enclose the Land.  With respect, Mr Ko’s argument ignores the effect of the evidence adduced at trial as to the ownership of land north of the Land.  He argues that the Tso’s study room was to the north of the Land, and that was noted in §81 of the Judgment. But the fact remains that, based on what the witnesses told me as to the location of the study room on the Lot Index Plan annexed to the Amended Statement of Claim, the evidence still fails to show that the land to the north of the Land all belonged to the Tso.  Mr Ko put in valiant efforts to frame his clients’ case in the best light, but that was not what I found in the Judgment.  I cannot see how I can be said to have been plainly wrong in rejecting Mr Ko’s argument at trial.

25.The same can be said about Lam Chau Shing’s evidence on strangers walking onto the Land.  With respect, the draft Notice of Appeal was cherry picking the most favourable evidence from the cross examination and re-examination of Lam Chau Shing.  But given his evidence as summarised in the Judgment, I do not accept that Mr Ko can show my Judgment was plainly wrong.

The public lavatory

26.Ground 9 of the draft Notice of Appeal mainly relies on the errors that I allegedly made in rejecting to accept the evidence of Lam Chau Shing as reliable evidence.  Ms Wu was right to remind me that my assessment of Lam Chau Shing’s evidence also referred to the various letters written by the 1^st plaintiff.  I do not accept that my assessment was plainly wrong.

27.As to the evidence revealed from the survey sheets and aerial photographs, I do not think they could assist the plaintiffs’ case.  The draft Notice of Appeal noted that the plaintiffs needed to show the public lavatory was built in around 1950.  But the survey sheets and aerial photographs, whatever they actually showed, could only provide evidence on the condition of the Land in the 1960s.  I do not think they can provide sufficient foundation for the Court of Appeal to intervene into my factual finding.

The Tam House

28.As rightly pointed out by Ms Wu, the evidence on the Tam House does not assist the plaintiffs’s case, because it could only show the use of the Land since 1960.  Even assuming the facts in the most favourable way to the plaintiffs, they still cannot show continuous possession of the Land for 60 years prior to 2011.

29.And on this, it is convenient for me to say here that I also reject Mr Ko’s argument that I failed to consider the plaintiffs’ claim in a holistic way (see ground 3 of the draft Notice of Appeal).  The plaintiffs’ claim relied on 4 discrete matters to prove adverse possession, and I think it is natural that this court should consider them one by one.  Upon my query, Mr Ko appears to accept that I would need to make a finding the plaintiffs’ evidence with respect to the planting of vegetation, the wall, and the public lavatory, in order to come to a view as to whether the plaintiffs did establish their claim in adverse possession.  As I perceive it, what Mr Ko suggests is no different from what I did in the Judgment.  I do not understand how a “holistic” view of the evidence would have significantly changed by assessment – and in any event I did look at the evidence as a whole, as stated in §103 of the Judgment. 

Conclusion

30.I refuse to grant leave to appeal.  The plaintiffs’ application for a stay of execution of the Judgment is also dismissed.

31.Parties agree that costs shall follow the event.  The plaintiffs are to pay the costs of these applications (with certificate for counsel), to be taxed if not agreed.

32.I thank counsel for their valuable assistance.

Mr Tony Ko, instructed by George Y C Mok & Co, for the 1^st and 2^nd plaintiffs

Ms Teresa Wu, instructed by the Department of Justice, for the defendant