Yip Yan Cheung Gary So Known As Yip Yan Cheung v. Chow Tin Choi

DCCJ 2645/2012

[2020] HKDC 193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2645 OF 2012

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Before:  Deputy District Judge Jason Wan in Chambers

Date of Hearing: 24 December 2019

Date of Decision:  17 April 2020

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DECISION

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Introduction

1.On 27 September 2019, judgment of the re-trial of this action was handed down (“the Judgment”).  In gist, I dismissed the plaintiff’s claim and entered judgment for counterclaim in favour of the defendant for adverse possession of some pieces of land, with costs to the defendant.

2.On 25 October 2019, 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 and I will not repeat here.  In this decision, I will adopt the abbreviations and definitions used in the Judgment.

The law

4.Section 63A(2) of the District Court Ordinance (Cap 336) provides that leave to appeal shall not be granted unless the court 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.

5.In SMSE v KL [2009] 4 HKLRD 125, the Court of Appeal held that “reasonable prospect of success” involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

The plaintiff’s grounds of appeal

6.The plaintiff raises four grounds of appeal and I will deal with them one by one.  The first ground is that the court erred in finding the defendant’s family dispossessed the plaintiff in 1981.  In particular, it was submitted that there was no evidence from the defendant that he or his family re-entered the Land after the oral licence was terminated in 1981.

7.It is true that there was no mention in the Judgment about the circumstances where the defendant’s family re-entered the Land as the defendant did not adduce any evidence to that effect.  However, given the fact that there is sufficient evidence including the aerial photos to prove that the defendant’s family continued to cultivate on the Land in 1981, 1982 and up to 1986, the circumstances of how the plaintiff was dispossessed became less crucial.  The most important question has always been whether the plaintiff was dispossessed in 1981.  Although it is unclear as to why and in what circumstances the defendant’s family decided to repossess the Land shortly after surrendering the same to the plaintiff, nevertheless, after considering the entirety of the evidence, I was satisfied that the defendant was able to discharge the burden to prove that the plaintiff was dispossessed by the defendant’s family since 1981.

8.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.

9.The second ground is that the court erred in failing to properly consider the nature of the defendant’s family’s possession of the Land.  It was submitted that the defendant’s family’s possession in 1981, if any, could only have been surreptitious and therefore does not suffice for the purpose of adverse possession.

10.Though it was found in the original trial and later confirmed by the Court of Appeal that the licence to use the Land was terminated in 1981, that does not mean that if the defendant’s family repossessed the land shortly after, such repossession could only be surreptitious.  It still depends on how the Land was repossessed.

11.In the Judgment, I accepted the evidence of the defendant that wire mesh fencing was erected by the defendant’s family at different locations of the Land.  There were oral evidence as well as contemporaneous photos adduced by the defendant to prove the existence of the fencing.  I also found that a gate with lock was installed by the defendant’s family at the entrance of Lot 109RP which would keep out any intruder to enter the Land without permission.

12.With the above findings, I do not agree that the nature of repossession of the Land by the defendant’s family in 1981 was surreptitious in nature.  Therefore, I do not see any merit in the second ground.

13.The third ground is that the court erred in the treatment of the defendant’s evidence.  It was submitted that the court failed to evaluate the defendant’s evidence properly and failed to consider the inconsistencies between the evidence of the defendant and his expert witness.

14.In the Judgment, I have explained why I preferred the evidence of the defendant and disbelieved the evidence of the plaintiff.  Reasons were given as to why I disbelieved the evidence of the plaintiff.  I have also set out the reasons why I preferred the evidence of the defendant and his witness.  After considering the submission for the plaintiff, I am not persuaded that there is any fault in the reasons I have given.

15.Under this ground, the plaintiff also complained that the court erred in assessing the evidential value of the Declaration. Again, I have explained my assessment of this particular piece of document in the Judgment and I see no merit in the plaintiff’s complaint.

16.Another complaint raised by the plaintiff under this ground is that the court failed to deal with the inconsistencies between the evidence of the defendant and his expert.  While it is correct to say that their evidence was not totally consistent, I have explained in the Judgment that it was due to the fact that the quality of aerial photos is not good enough.  As a result, when assessing the evidence of the expert witnesses, one cannot lose sight of the limitation of the materials available to the expert witnesses.

17.In any event, I do not see any error in the assessment of the evidence of the defendant and this ground is not reasonably arguable.

18.Lastly, the fourth ground is that the court erred in considering the unity of possession between the defendant and his father.  The plaintiff argues that even if the evidence of the defendant is accepted, the defendant was at most cultivating on the Land as a licensee of his father until the execution of the Declaration in 2002.

19.It has always been the case of the defendant that it was his family in particularly his father who adversely possessed the Land for cultivation back in 1981.  A few years later the defendant started to assist his family in cultivating on the Land.  Therefore, the defendant’s case is that it was his family including himself who jointly enjoyed the exclusive possession of the Land since 1981.  In fact, after the defendant’s father passed away in 2008, the defendant continued to possess and cultivate on the Land.  I see no reason why the defendant’s family could not jointly possess the Land.

20.Therefore, I do not find the fourth ground reasonably arguable.

Conclusion

21.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.

22.Costs should follow the event.  I make an 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 the Legal Aid Regulations.  This costs order nisi shall become absolute unless application is made within 14 days of this decision to vary.

Mr Ryan Chan, instructed by Li & Associates, for the plaintiff

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