Leung Chi Cheong (The Person Appointed To Represent the Estate of Leung Fai, Deceased) v. Liu Che Wun and Another

CACV 487/2021

[2023] HKCA 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 487 OF 2021

(ON APPEAL FROM HCA NO. 1128 OF 2007)

________________________

________________________

Before :  Hon Cheung, G Lam and Chow JJA in Court

Date of 1^st Defendant’s Written Submissions :  3 October 2022 and

Date of Plaintiff’s Written Submissions :  12 October 2022

Date of Decision :  11 January 2023

_____________________

D E C I S I O N

_____________________

Hon Cheung JA (giving the Decision of the Court) :

I.  Leave to appeal

1.This is the 1^st defendant’s application for leave to appeal to the Court of Final Appeal from our judgment dated 6 September 2022. We will deal with this application on paper.

2.The 1^st defendant identifies seven questions said to be of great, general or public importance that ought to be submitted to the Court of Final Appeal for decision :

1)  In the context of more than one squatter in physical possession of a piece of land as one joint and single unit, whether the principle of joint squatters having equal rights of adverse possession exist?

2)  Is the test of joint squatters the presence or absence of licence from another person who possesses the land at the same time as one joint and single unit?

3)  Is it correct that the rights and status of a joint squatter does not depend on the absence of other persons and the number thereof in joint and single possession of the land who may also be joint squatters or licensees of another joint squatter?

4)  If the answer to 1) is yes, whether the principles of distinction of ‘joint tenancy’ and ‘tenancy in common’ in the context of joint squatters are the same as other interest holders in land, namely, based on the four unities?

5)  If the answer to 4) is yes, in the case of ‘tenants in common’ in joint squatters, the joint squatters may commence physical possession of the land at the different times?

6)  Is it correct that the death of one joint squatter during the period when the other joint squatter’s right is still accruing does not affect the right and status of that other joint squatter who remains in possession of the land continuously after the death of the first joint squatter?

7)  Is it correct that the extinguishment of title of a registered owner of land under section 17 of the Limitation Ordinance (Cap. 347) vis-à-vis one joint squatter does not affect the rights and status of another joint squatter, whether such rights and status has already accrued or is accruing?

II.  Our view

3.The focus of any application for leave to appeal to the Court of Final Appeal is whether the questions or issues as framed meet the threshold requirement of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). Instead of focusing on the merits of the seven questions, what the 1^st defendant does is to argue that our judgment is wrong and only briefly mentions that the issues raised ‘…have not been authoritatively pronounced by any higher courts’ and ‘It is appropriate for the Court of Final Appeal to resolve the questions framed’. She goes on to say that the legal issues are important in that they affect many families who possess land jointly as a single unit and ask the Court of Final Appeal to clarify the law on joint adverse possession. In our view, this approach is incorrect and the 1^st defendant has rendered little assistance in the determination of the seven questions.

1)  Question 1

4.We decided against the 1^st defendant who claimed to be in adverse possession together with her deceased husband of the land since 1980 on the distinct context of the case, namely, 1) she entered the land in 1980, probably only as a licensee of her husband, 2) even if she took possession of the land jointly with her husband since 1980, her husband had by 1992 acquired a possessory title against the paper title owner and she could not have crafted out another possessory title together with her husband from the same paper title owner and 3) her claim that she acquired possessory title because she was a tenant‑in‑common with her husband is not supported by authorities which have consistently held that the title acquired by more than one squatter is held by the them jointly.

5.Question 1 which seems to be concerned with 3) above ignores the contextual background of the case. As such the question is academic and in any event no issue of great, general or public importance is engaged.

2)  Question 2

6.This question does not arise from our judgment.　　Plainly, it ignores the context of this case. The question is academic and does not engage any question of great, general or public importance.

3)  Questions 3, 4 and 5

7.The questions are academic and no issue of great, general or public importance is engaged.

4)  Questions 6 and 7

8.No issue of great, general or public importance arises from these two questions.

III.  Conclusion

9.Accordingly, the application is refused.

IV.  Costs

10.Costs of application be to the plaintiff to be taxed. The plaintiff’s own costs and the 1^st defendant’s own costs be taxed in accordance with Legal Aid Regulations.

11.This costs order accords with the consent directions for costs lodged by the parties on 1 October 2022 and approved by the Court on 24 October 2022.

Mr Tommy Lo, instructed by W K To & Co., assigned by the Director of Legal Aid, for the plaintiff

Mr Erik Shum, instructed by Hobson & Ma, assigned by the Director of Legal Aid, for the 1^st defendant