Richlands Properties Ltd v. The Occupier(S) of Lot No 1347 in Demarcation District No 102 Yuen Long New Territories Hong Kong and Another

CAMP 115/2022

[2022] HKCA 1643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 115 OF 2022

(ON AN INTENDED APPEAL FROM DCMP NO. 3807 OF 2016)

________________________

________________________

________________________

Before :  Hon Cheung and Chow JJA in Court

Date of Decision :  31 October 2022

________________

D E C I S I O N

________________

Hon Cheung JA (giving Decision of the Court) :

1.By a summons filed on 9 April 2022, the 2^nd defendant sought leave to appeal against the judgment of Deputy District Judge Zabrina Lau (‘the Judge’) dated 27 August 2021 and her decision on 10 March 2022 (‘Decision’). By the judgment the Judge ordered that :

1)  The plaintiff is entitled to recover vacant possession of the Land known as Lot No 1347 in Demarcation District No. 102, Yuen Long, New Territories, Hong Kong (‘the Land’);

2)  The 2^nd defendant’s counterclaim for adverse possession of the Land and easement/right of way of a footpath be dismissed; and

3)  The 2^nd defendant is to pay the plaintiff’s costs of the action (‘the Judgment’).

2.By the Decision, the Judge refused to grant leave to appeal against her judgment.

3.Pursuant to Order 59, rule 2A(5) of the Rules of High Court, we will deal with the application on paper based on the submissions of the parties.

I.  The judgment

4.The Judge held :

‘ 94. For all the reasons discussed above, I conclude that the 2^nd defendant has failed to prove, on the balance of probabilities, that he has had factual possession of the Disputed Area with a sufficient degree of exclusive physical control for a period of at least 20 years. Having reached this conclusion on the first element of adverse possession, it is unnecessary for me to consider the second element, being intention to possess. Suffice it to note that the 2^nd defendant has not adduced any objective evidence to establish an unequivocal manifestation of his intention to possess the Disputed Area for a period of at least 20 years.’

5.It was common ground between the parties that if the 2^nd defendant failed to establish his claim for adverse possession of the Land, his claim regarding the footpath should also fail. In view of the Judge’s conclusion on adverse possession, the 2^nd defendant’s claim for easement/right of way of the footpath was also dismissed.

II.  Legal principles

6.The Decision was handed down on 10 March 2022. Pursuant to the Rules of District Court (Cap. 336H), Order 58, rule 2(4A), the 2^nd defendant had 14 days (i.e. by 24 March 2022) to make an application to this Court for leave to appeal. However, by reason of the COVID situation, the General Adjournment Period took place between 7 March 2022 and 11 April 2022. According to section 71(1A)(a) and (2) of the Interpretation and General Clauses Ordinance (Cap 70), the 2^nd applicant should have filed the summons on the resumption of business by the Registry on 12 April 2022, see WHWV v WECH [2020] 5 HKLRD 408. But he did not do so and only filed it on 19 April 2022. Hence it was filed late by seven days. Hence this Court is required to consider whether extension of time should be granted for this application. The relevant factors for consideration are the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted and the degree of prejudice to the other party if the application is granted.

7.The proper subject matter of the application is the Judgment and not the Decision as we are dealing with a renewed application for leave to appeal. In respect of the merits of the appeal, the 2^nd defendant must show there is a reasonable prospect of success of his appeal.

8.Where the appeal involves findings of fact by the Judge, the 2^nd defendant must show that it is reasonably arguable that the findings are plainly wrong before the Court of Appeal will overturn such findings.

III.  Application refused

9.We will refuse the application for the following reasons. In view of the slight delay we will focus on the merits of the intended appeal. We are not satisfied that the 2^nd defendant has shown a reasonable prospect of success of his intended appeal. The Judgment is based on findings of fact by the Judge. The 2^nd defendant seeks to overturn these findings and to adduce new evidence for his appeal. We are not satisfied that it is reasonably arguable that the findings are plainly wrong. The Judge had fully addressed these two matters in the Decision. We agree with the reasons given by the Judge.

10.Accordingly, the application must be refused.

11.As the application is totally without merit, we will, pursuant to Order 59, rule 2A(8), order that the 2^nd defendant is not allowed to apply for an oral hearing to reconsider this application.

12.The plaintiff is entitled to the costs of this application. We will assess the costs summarily upon the 2^nd defendant filing a statement of objection within 14 days to the plaintiff’s statement of costs dated 27 July 2022.

Foo & Li, for the Plaintiff.

The 2^nd Defendant acting in person.