Cheung Kwong Yuen v. Sun Hui Fang

DCCJ 743/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 743 OF 2016

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Before:  His Honour Judge MK Liu in Chambers (Open to Public)

Date of Hearing:  22 November 2017

Date of Decision: 22 November 2017

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DECISION

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1.The plaintiff took out a summons (“the summons”) on 19 September 2017 for leave to appeal from my judgment handed down on 6 September 2017 (“the Judgment”). The facts and the reasons for the judgment have been set out in the Judgment and I do not repeat the same herein. For ease of reference, the abbreviations used in the Judgment are adopted in this decision.

The principles

2.District Court Ordinance s.63A(2) provides:-

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that:-

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

3.The principles concerning leave to appeal from this court to the Court of Appeal are well established.  A succinct summary of the same can be found in the recent Court of Appeal’s decision in Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi and Others (HCMP 3305/2015, 18 February 2016), in which Poon JA (giving the judgment of the court) said:-

“9. It is well established that leave to appeal under section 63A(2) is not lightly granted. Reasonable prospects of success involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable: see SMSE v KL [2009] 4 HKLRD 125, per Le Pichon JA at [17].”

4.In respect of a challenge against the factual findings made by the trial judge, the appellant has to overcome a very high threshold in order to succeed.  The Court of Appeal would not set aside the factual findings made by the trial judge unless the findings are plainly wrong.  See Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  See also China Gold Finance Ltd v CIL Holdings Ltd. and Others (CACV 11/2015, 27 November 2015), in which Lam VP (giving the judgment of the court) said:-

“14. …… In our judicial system, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge. It is thus, as we said above, a misuse of the appellate process to place before this court submissions which, in substance, are (or should be) submissions advanced by way of closing submissions at the trial after the judge has heard all the evidence.

15. In an appeal, the court of appeal should focus on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court.  As explained in the cases, it is not germane that judges in this court may reach a different conclusion from that of the judge.  There are many areas, particularly those in relation to findings of fact, where judges can reasonably reach different conclusions from each other.  That would not be a ground for intervention.”

The proposed grounds of appeal

5.Mr Law for the plaintiff has proposed 3 grounds of appeal, which are as follows:-

(a) This court erred in failing to consider or properly consider the issue of whether the defendant was a licensee of MF (“Ground 1”).

(b) This court erred in failing to consider or property consider the evidence in relation to the alleged occupation of Flat A by Lee (“Ground 2”).

(c) This court erred in failing to properly assess the credibility of the defendant and MF (“Ground 3”).

6.I will deal with these grounds in turn in the paragraphs below.

Ground 1

7.Mr Law submits:-

(a) This court erred in finding that it was not open to the plaintiff to suggest that the defendant was merely possessing Flat A as a licensee of MF for the reason that this was an unpleaded point.  Mr Law says that the defendant bears the burden to prove that her possession must be in her own right and not as licensee or representative of another person, and the plaintiff bears no persuasive burden to prove that the defendant was a licensee of MF.

(b) Further or alternatively, this court should have found that the defendant did not have the requisite animus possidendi as she did not have the intention in her own name and on her own behalf to exclude the world at large, including the plaintiff and MF.

8.All the arguments put forward by Mr Law boil down to this, ie the plaintiff should succeed in defeating the defendant’s case by the licensee point.  I have dealt with the licensee point raised by Mr Law in §§40 to 45 of the Judgment.  Mr Law refers me to Order 18 rule 7(3)[1] and submits that it would not be necessary for the plaintiff to plead the licensee point, and the plaintiff may rely upon the same in the absence of any pleading.  I do not think Order 18 rule 7(3) can provide any assistance to Mr Law, for the defendant has specifically pleaded in the defence that she had the factual possession and the intention to possess Flat A at all material times and she can claim adverse possession of the same[2].  In these circumstances, even under Order 18 rule 7(3), the plaintiff is required to raise the licensee point in the reply, but the plaintiff has not done so. 

9.I reject Mr Law’s submissions that since the defendant bears the burden to prove the adverse possession claimed by her, the plaintiff may take the licensee point in the final submissions without any pleading, without any prior notice to the defendant, and without putting the point to the defendant’s witnesses during cross examination.  If Mr Law were right, Order 18 rule 8(1) of the Rules of the District Court^[3] would be completely nugatory.

10.There is no merit in Ground 1.

Ground 2

11.Mr Law submits:-

(a) This court erred in finding that there was no evidence suggesting that Lee has never resided in Flat A (§33 of the Judgment).  The certificate issued by the Immigration Department (“the Certificate”, copy of which is in the trial bundle, page 125) shows that Lee was residing in “Room 2, 9/F, 108 Tai Nam Street, Kowloon” from 1996 to 2003.

(b) This court erred in failing to draw adverse inferences on the basis of the Certificate and the absence of Lee to give evidence in the trial.

(c) This court erred in failing to take into account the aforesaid matters in assessing the credibility of the defendant’s evidence and MF’s evidence, which both suggested that Lee had been residing in Flat A.

12.I have to point out that Mr Law has never asked the defendant or MF any question concerning the address as shown on the Certificate during cross-examination.  Both the defendant and MF have given evidence and said that Lee was residing in Flat A from 1994 to 2001.  If Mr Law takes the address as shown on the Certificate as a point contradicting the defendant’s evidence and MF’s evidence, as a matter of fairness, Mr Law has to ask these witnesses questions on that address.  If questions on this have been asked, the court can see whether the answers given by the witnesses are satisfactory or not, and then can determine whether there is any substance in the point taken by the plaintiff.  Regrettably, Mr Law did not ask these question but now takes issue on the address as shown on the Certificate.  With respect to Mr. Law, this is not a fair approach.

13.While the address as shown on the Certificate is different from the address of Flat A, the 2 addresses bear similarities.  The plaintiff has not adduced any evidence to show that the address as shown on the Certificate is definitely another unit and not Flat A (for example, by producing evidence showing that there are 2 separate buildings on 107 Tai Nam Street and 108 Tai Nam Street respectively).  Further, Mr Law has never explored with the defendant and MF during cross-examination in respect of the address shown on the Certificate.  Both the defendant and MF said that Lee was residing in Flat A from 1994 to 2001, and both the defendant’s evidence and MF’s evidence have been accepted by this court.  In these circumstances, it is not clear whether the address as shown on the Certificate is definitely not Flat A, and there is certainly no cogent evidence showing that Lee has never resided in Flat A.

14.As to the absence of Lee as a witness in the trial, I have dealt with this in §33 of the Judgment.  Mr Law submits that the explanation offered by Mr Lam at the beginning of the trial is not evidence and this court should not accept evidence from the Bar table.  The fact is after Mr Lam offering this explanation, Mr Law did not raise any objection and did not ask the defendant any question concerning the absence of Lee during cross examination.  Mr Law only urged the court to draw an adverse inference against the defendant by reason of the absence of Lee in the final submissions.  In the circumstances, I am not persuaded that I have erred in any aspect in dealing with the issue of adverse inference in the way as set out in §33 of the Judgment.

15.There is no merit in Ground 2.

Ground 3

16.Mr Law submits that this court has erred in failing to properly assess the credibility of the defendant and MF.  Counsel submits:-

(a) In relation to MF’s evidence, there is no basis for this court to make the findings in §38(e) of the Judgment.

(b) In relation to the defendant’s evidence, the defendant has given different versions of facts (as recorded in §37(a) of the Judgment) as to how the alleged adverse possession started.

17.I am of the view that taking all the evidence into account, including the defendant’s evidence and MF’s evidence, I am entitled to make the findings in §38(e) of the Judgment.

18.In respect of the different versions as recorded in §37(a) of the Judgment, these concern when HY and Lee started to live in Flat A and not how the adverse possession started.  I have dealt with these discrepancies in §37(b) of the Judgment, and I do not see any error in my resolution of these discrepancies.

19.Accepting or rejecting the evidence of a particular witness is a factual finding made by the trial judge.  In saying that I have not properly assessed the credibility of the defendant and MF, the plaintiff is challenging the factual findings made by me.  In my judgment, the plaintiff is miles away from the very high threshold required in respect of appeal against factual findings made by the trial judge.

No reason for granting leave

20.There is no merit in any of the grounds proposed by the plaintiff.  In my view, there is no reasonable prospect of success in the plaintiff’s appeal. I am also of the view that there is no other reason that the appeal should be heard in the interests of justice.  The summons must be dismissed.

Costs

21.Having heard submissions on costs, I am of the view that the general rule of costs following the event should apply.  The costs of the summons should be to the defendant, with a certificate for counsel.

Disposition

22.I dismiss the summons with costs to the defendant, with a certificate for counsel, to be taxed if not agreed.

23.I thank Mr Law and Mr Lam for the assistance provided to the court.

Mr Ryan T H Law, instructed by Herman Kwok & Co, for the plaintiff

Mr Solomon Lam, instructed by KCL & Partners, for the defendant