Lei Wa v. Mo Pak Hung

HCMP 252/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 252 OF 2017

(ON AN INTENDED APPEAL FROM DCCJ NO 124 of 2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is the Defendant’s renewed application for leave to appeal against the judgment of Deputy Judge Winnie Tsui (as she then was) of 25 November 2016 in DCCJ 124 of 2013. After trial, the learned judge gave judgment in favour of the Plaintiff and ordered possession of the subject lot (Lot No 339 in D.D. 85, North, New Territories) be delivered to the Plaintiff and payment of mesne profits by the Defendant with interest and costs. She also dismissed the counterclaim of the Defendant.

2.The Defendant sought leave to appeal and the judge refused leave on 19 January 2017 after hearing the parties.  A transcript of the reasons given by the judge refusing leave is included in the bundle before us.

3.By a summons of 2 February 2017, the Defendant applied to this Court for leave to appeal.  His intended grounds of appeal were set out in Appendix 1 attached to his affirmation of 2 February 2017.  He divided his grounds into two parts.  In Section A, he focused on a challenge to the findings of fact by the judge that the land was held by his late father (and after the demise of the father, by himself) under a yearly tenancy.  In Section B, he relied on ownership of property protected under the Basic Law.

4.We treat his Appendix 1 as his statement in support of his application under Order 59 Rule 2A(1) of the Rules of the High Court.

5.Solicitors for the Plaintiff lodged a statement on 28 March 2017 opposing the application for leave.  They also placed before the Court a bundle of documents relevant to the application (the Plaintiff not having done so) in accordance with the directions of the Registrar of Civil Appeals on 7 February 2017.

6.Under Section 63A(2) of the District Court Ordinance Cap 336, leave to appeal should not be granted unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

7.An appellant faces a very high threshold in seeking to challenge the findings of fact by a trial judge.  We shall not repeat what has been discussed in this regard in Ting Kwok Keung v Tam Dick Yuen [2002] 3 HKLRD 1, China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27.11.2015.

8.In our judgment, the proposed grounds raised by the Defendant under Section A in his Appendix 1 cannot overcome that threshold. There is nothing inherently improbable for Mr Mo senior incurring the costs to erect the brick houses and pigsty for his own purposes notwithstanding that he was only granted an oral yearly tenancy.  As borne out by subsequent events, he might have believed that there was a good prospect of such yearly tenancy being renewed for a long period of time.  As it turned out he (and after his demise, the Defendant) had enjoyed the occupation of the land under yearly tenancies from 1963 to 2012.  Viewed in that light, it is not surprising that construction works took place for more than one year.

9.The judge had analysed the evidence with care in her judgment of 25 November 2016 and we do not see any basis for this Court to disturb her findings.

10.The Defendant’s reliance on the protection of property right in the Basic Law is misconceived.  The Defendant’s interest in the Lot was that of a yearly tenant.  In respect of the buildings erected on the lot, by virtue of the principle of annexation (see Elitestone Ltd v Morris [1997] 1 WLR 687; Goldful Way Development Ltd v Well Stable Development Ltd [1999] 1 HKLRD 563) the ownership of the same belonged to the landlord as a matter of law when a tenant erected the same on the land though the tenant has the right to use the same in the course of the tenancy.

11.Articles 6 and 105 of the Basic Law protects private ownership of property in accordance with law.  There is no infringement of the Defendant’s property rights under those articles if the ownership of the relevant property (viz the buildings in question) has always been vested in the landlord according to the law. 

12.Further, the Basic Law challenge was not pleaded in the Defence of the Defendant of 23 April 2013.  Thus it is not open to him in these proceedings to assert that the property right in respect of the structures is ambiguous.

13.None of the proposed grounds of appeal is reasonably arguable.

14.For these reasons, we refuse to grant leave to appeal.  We are also of the view that the application is totally without merit. Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes. 

15.We also order the Defendant to pay the costs of the Plaintiff for this application.  Solicitor for the Plaintiff did not submit to us a statement of costs in accordance with the directions of the Registrar of Civil Appeals.  Following the course adopted by this court in Rhonda Jeanine Pohn v Mac Richard Pohn HCMP 3439 of 2015, 1 Feb 2016, bearing in mind the complexity of the matter and the inputs from the solicitor for the Plaintiff, we fixed the costs at $30,000. 

Written submission by KM Tang & Co, for the plaintiff

The defendant appeared in person