Lee Ah Keung and Another v. 李國忠 Transliterated As Lee Kwok Chung and Another

DCMP 2128/2018

[2022] HKDC 1181

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2128 OF 2018

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BETWEEN

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Before:  His Honour Judge MK Liu (Paper Disposal)

Dates of Written Submissions:  7 and 28 October 2022 (the 1st Defendant)  14 October 2022 (the 1^st & 2^nd Plaintiffs)

Date of Decision:  1 November 2022

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DECISION

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1.On 17 August 2022, I handed down a judgment (“the Judgment”)  in which I dismissed the adverse possession claimed by D1 and entered judgment in favour of Ps. By a summons dated and filed on 14 September 2022, (“the Summons”), D1 applies for the following:

(1)  leave to appeal against the Judgment (“the Leave Application”); and

(2)  stay of execution of the Judgment pending the outcome of the appeal (“the Stay Application”).

This decision should be read together with the Judgment.  For ease of reference, the abbreviations used in the Judgment are adopted herein.

2.On 23 September 2022, I directed that the Summons would be determined on paper without an oral hearing.  The parties have provided me their respective written submissions in accordance with my directions.  I have duly considered all the submissions provided by the parties. 

3.In the Leave Application and the Stay Application, D1 are represented by Mr Danny Chan and Ms Tina Mok of counsel (who are not the counsel representing D1 in the trial).  Ps are still represented by Mr Lewis Law of counsel.

A.  LEAVE APPLICATION

4.The principles concerning leave to appeal are trite and can be summarized as follows:-

(1)  Leave to appeal from this court to the Court of Appeal can only be granted if 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.[1]

(2)  Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable.[2]

(3)  The assessment of evidence and credibility of witnesses is primarily the task of the trial judge.  The Court of Appeal would not re-assess the evidence afresh on its own unless an appellant can show that there are palpable errors in the assessment or the trial judge has gone plainly wrong in his assessment.  The appellant has to overcome a very high threshold in order to successfully challenge the factual findings made by the trial judge.[3]

A1.   Grounds of the intended appeal

5.Mr Chan has put forward 3 grounds of appeal, and Mr Chan calls these grounds as (1)  “Evidence Ground”, (2)  “Hearsay Evidence Ground”, and (3)  “Revocation Ground” respectively.  Mr Chan submits that the intended appeal has a reasonable prospect of success.  Mr Chan is not seeking leave under the “some other reason in the interests of justice” limb.

6.I would examine each of the grounds proposed by Mr Chan.  However, before doing so, I would highlight the following findings made by me in the Judgment:

(1)  The core issue in this case is whether D1’s parents began to have possession of House A with permission from Ah Ting, and continued to have such possession under the permission of Ah Ting’s family.  For the reasons set out in the Judgment, the answer to this core issue is in the affirmative.[4]

(2)  D1’s allegation that the 1978 Works were done by Sun Kwai notwithstanding the objections from Ah Ting is untrue.  This allegation is the cornerstone of D1’s case.  Since D1’s evidence on this crucial point is untrue, I do not regard D1 as an honest and reliable witness.[5]

(3)  Based upon the evidence accepted by this court, there is no reliable evidence in support of the adverse possession claimed by D1. Accordingly, D1’s claim must be dismissed.[6]

7.With respect, in my view, Mr Chan has failed to demonstrate that it is reasonably arguable that these findings are plainly wrong.  I do not regard that D1 has a reasonable prospect of success in the intended appeal.

A1.1. Evidence Ground

8.Mr Chan submits that I erred in rejecting the alleged assault mentioned by D1 in his evidence, and I also erred in rejecting D1’s case that the 1978 Works were done by Sun Kwai notwithstanding the objections from Ah Ting.  As far as I can understand, Mr Chan’s points are as follows:

(1)  It defies common sense that a bare licensee would be able to divide the Building into House A and House B.  Ps’ case that Ah Ting merely granted a bare licence to Sun Kwai cannot be true.

(2)  This court erred in rejecting the proposition that the 1978 Works could be done notwithstanding Ah Ting’s objection.  Mr Chan submits that it is common and far from being unheard of that trespassers may carry out building works to exclude the true owner from the subject land or property.  The fact that the 1978 Works were done notwithstanding Ah Ting (who was living in the Building)’s objection is a piece of evidence in favour of D1’s claim for adverse possession.

(3)  In P1’s evidence, P1 admitted that he did not know when Sun Kwai’s wife moved out from House A. This suggested that Sun Kwai’s family in fact had exclusive possession of House A.

(4)  D1 only mentioned the alleged assault in the witness box, because he was asked for a reason why Sun Kwai built the Partitioning Wall dividing the Building into House A and House B under cross-examination. Ps have not put forward any evidence to rebut the alleged assault incident.

9.With respect, none of these points has any merit.

(1)  What is contrary to common sense is the point now being put forward on D1’s behalf, i.e. while Sun Kwai was a bare licensee and the Building was under the de facto control of Ah Ting, Sun Kwai could carry out the 1978 Works (which were extensive in nature)  notwithstanding Ah Ting (whose whole family was living in the Building)’s objection.

(2)  At [32] and [44] of the Judgment, I have explained why it would be inherently improbable that the 1978 Works could be carried out by Sun Kwai notwithstanding Ah Ting’s objection.  Mr Chan has failed to demonstrate any arguable palpable error in my analysis.

(3)  Ps’ case is that the exclusive possession of House A by Sun Kwai’s family was granted by Ah Ting’s family, and hence could not be adverse possession.  That P1 did not know when Sun Kwai’s wife moved out from House A could not add any strength to D1’s case.

(4)  At [46] of the Judgment, I have explained why I regarded the alleged assault as a lie told by D1 in the witness box.  I am not persuaded that there is any arguable error in my analysis.

10.There is no merit in the “Evidence Ground”.

A1.2. Hearsay Evidence Ground

11.Mr Chan argues that I erred in giving weight to the hearsay evidence mentioned by P1 as recorded in [52] of the Judgment.  The episode in question is that in 2018, P1 learned from the village head, Lee Ting Yau, that at one time, Ah Ting had invited Sun Kwai to purchase House A, but Sun Kwai did not take up the offer for he did not have sufficient money at that time (“Ah Ting’s Invitation”).  Mr Chan submits that:

(1)  D1 has objected to the admissibility of Ah Ting’s Invitation, and hence I should consider whether, having considered the circumstances of the case, the exclusion of this episode would not be prejudicial to the interests of justice.  See s.47(1)  of the Evidence Ordinance (“EO”).   In doing so, I should consider the factors listed out in s.49 of the EO.

(2)  The reason given by P1 for not calling the village head to give evidence in the trial, i.e. avoiding putting the village head into an embarrassing position, is not a good or a satisfactory reason.

(3)  Admitting Ah Ting’s Invitation into evidence is highly prejudicial to D1.

12.To set the record straight, counsel representing D1 in the trial has not objected to the admissibility of Ah Ting’s Invitation on the ground that this is hearsay evidence.  The trial counsel has only challenged the truthfulness of this episode.  As to why I accept the truthfulness of this episode, I have given my reasons in [53] of the Judgment.  Mr Chan has not tried to argue that I have erred in any aspect in my analysis as set out in that paragraph.

13.In any event, even if Ah Ting’s Invitation should be regarded as inadmissible evidence because it is hearsay, I do not see how this would change the whole landscape of this case.

14.There is no merit in the Hearsay Evidence Ground.

A1.3. Revocation Ground

15.Mr Chan submits that:

(1)  As a matter of law, the bare licence granted by Ah Ting would have been automatically terminated upon Ah Ting’s death on 2 August 2006.

(2)  There is no evidence showing that after Ah Ting’s death, Ps did grant a bare licence to D1 and his family. Accordingly, this court erred in finding that after the death of Ah Ting, D1 and his family resided in and occupied House A on a bare licence.

(3)  At [60] of the Judgment, it is stated that “Ps continued to have negotiations with D1 to try to resolve the difference between them for many years.”  Since Ps and D1 have “difference between them for many years”, it is inherently improbable that Ps would have granted a bare licence to D1 and his family to reside and occupy House A.

16.I am not persuaded by Mr Chan’s submissions.

(1)  It is Ps’ pleaded case that after the death of Ah Ting, Ps and Ah Ching (as landlords)  continued to grant a bare licence to D1 and his family.  Ps continued to grant a licence to D1 and his family after Ah Ching ceased to be a landlord.

(2)  At the very beginning of the trial, it was agreed by the parties that if Ah Ting is found to have granted a licence to Sun Kwai to occupy House A with his family from mid-1970’s to 2006, there should be judgment in favour of Ps.  D1 would not be allowed to depart from this agreed position.

(3)  In fact, D1 has never sought to establish a possessory title commencing from 2006 or afterward.  D1 has never put forward a pleaded case that his adverse possession of House A began at the time of the death of Ah Ting (i.e. on 2 August 2006), but not at any earlier time.

(4)  Ps have adduced evidence (which has been accepted by this court)  showing that there has been discussion between Ps and D1 concerning D1’s future accommodation after Ps requested D1 and his family to move out from House A in 2011.  As submitted by Mr Law, this is clear evidence that D1 has accepted his status as licensee.  To the contrary, there is no evidence showing that D1 started possessing an animus possidendi which was different from the animus possidendi possessed by him or Sun Kwai before 2006.  D1’s case has always been continuous adverse possession from 1978. 

17.Further, I agree with Mr Law that Ah Ting passed away on 2 August 2006, and Ps commenced these proceedings on 1 August 2018.  Even accepting all the points put forward by Mr Chan under this ground, the intervening period is just 1 day less than the 12-year period required for D1 to acquire any possessory title by adverse possession.  Accordingly, the Revocation Ground is unarguable in any event.

18.There is also no merit in the Revocation Ground.

A2.   Leave refused

19.For the reasons above, the Leave Application must be refused.

B.  STAY APPLICATION

20.The existence of an arguable appeal (that is, one with reasonable prospects of success)  is the minimum requirement before a court would even consider granting a stay.  If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.[7]

21.Since the intended appeal does not have any reasonable prospect of success and the Leave Application has been refused, the Stay Application must also be refused.

C.  DISPOSITION

22.I dismiss the Summons. Costs should follow the event.

23.I order that costs of the Summons be paid by D1 to Ps forthwith, with a certificate for counsel. Those costs are summarily assessed at HK$45,000.

24.I thank all counsel for the assistance provided to the court.

Mr Lewis Law, instructed by Vitus Lawyers, for the 1^st & 2^nd plaintiffs

Mr Danny Chan and Ms Tina Mok, instructed by Alex To & Co, Solicitors, for the 1^st defendant