Fung Yuk Luen v. Wong Fung Lan and Others

DCCJ 447/2017

[2021] HKDC 990

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 447 OF 2017

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BETWEEN

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Coram: His Honour Judge Harold Leong in Chambers

Date of Hearing: 2 August 2021

Date of Decision: 13 August 2021

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DECISION

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1.This is the plaintiff’s application for leave to appeal against the Judgment of this court dated 22 April 2021.

2.This is an adverse possession claim and the background and decision are stated in the Judgment and needed not be repeated in details here. In short, this court does not find for the defendants’ pleaded case of an oral licence agreement 1994 but still finds the plaintiff failing to discharge the legal burden to show animus possidendi.

3.The legal principles for the court to allow leave for appeal is trite and need not be repeated here.

4.The grounds for appeal as stated in the draft Notice of Appeal and the plaintiff’s skeleton submissions are as follows:

a. Inconsistent findings

b. No supporting evidence and irrelevant considerations

c. Omitting key evidence

d. Applying wrong legal principles

5.I would agree with the defendants’ submission that the first 3 grounds are all challenges with this court’s findings of facts, which the Court of Appeal would only intervene when the trial judge has fallen into palpable error. The arguments under these grounds were disagreements about the weight the court gave to various evidence, and given that a reasoned judgment was given, I do not think that there is a reasonable prospect of success for such.

6.However, the 4^th ground is a legal argument.

7.The plaintiff’s case is that he has considered all along since 1980 that the lots in question belonged to him. This court finds that there was a common practice of oral agreements for “land borrowing and return on request” in the village and, for the lots concerned, there was a long history of disputes, negotiations and parties engaging in a land survey regarding the lots etc. These disputes, negotiations and the land survey, however, all happened after the limitation period had expired.

8.The court was aware of the legal principle that once the limitation period expires, the registered owner would lose his rights to claim possession (Cheung Yat Fuk and Tang Tak Hong & Others (2004) 76 HKCFAR 70, Sanders v Sanders 91881) 19 ChD 373 and Lam Sai Wan and Minloy Limited [2018] HKLKCFI 1710.

9.However, the court’s decision was based on the argument that such evidence could still be used to infer the state of mind of the plaintiff at the relevant period before the expiry of the limitation period, and given the circumstances of this case, e.g. the site location, the village practice, the negotiations (offer to purchase, offer to swap land), allowing a land survey etc. were an acknowledgement of the title (Edginton v Clarke & Anor 1964 1 QB 367 at 376).

10.The plaintiff’s argument is that the court cannot use evidence occurring in 2013 - 2016 to infer that the plaintiff did not have animus possidendi during 1980 - 2000 and also that the form of acknowledgement of title must necessarily be in writing, made within the limitation period and be in form of a conclusive agreement (mere negotiation would not suffice).

11.As such, I find that there is a genuine legal issue in question. There is clearly a reasonable and not merely fanciful prospect of success for an appeal.

12.I would therefore allow leave for appeal with costs of the application be in the cause of the appeal.

Mr Wilfred Tsui, instructed by Messrs Stephen Lo & P.Y. Tse, for the plaintiff

Mr Osmond Lam and Mr Dexter Leung, instructed by Messrs C.W. Heung & Partners, for the 1^st, 2^nd, 3^rd and 4^th defendants