Read the full judgment text of CAMP 445/2022 on BabelCite. This Court of Appeal judgment was delivered on 3 February 2023 before Au and Chow JJA.
Civil appeal – leave to appeal – adverse possession – Limitation Ordinance (Cap 347) s 17 – High Court Ordinance (Cap 4) s 14AA – whether intended appeal has reasonable prospect of success – test for granting leave to appeal – factual possession – animus possidendi – continuous period of 12 years – appellate restraint in review of findings of fact. The Plaintiff purchased Lot 1005 in DD 122, Yuen Long from two sisters in 2004. The adjacent Lot 1006 was owned by the Defendant. A stone house stood partly on Lot 1005 and partly on the Portion of Lot 1006. In early 2004, the Plaintiff enclosed the Occupied Area (including the Portion) with hoardings and installed a gate, and used the area for his fire services installations business and residence. Both lots were resumed by the Government on 2 August 2017. The Plaintiff claimed he had been in exclusive adverse possession of the Portion for over 12 years, extinguishing the Defendant's title under s 17 of the Limitation Ordinance, Cap 347. The Judge at trial found in favour of the Plaintiff, holding that he had established both factual possession and the necessary animus possidendi since 2004. The Defendant applied for leave to appeal, raising five grounds: (1) error in the assessment of the Plaintiff's credibility; (2) reliance solely on the Plaintiff's uncorroborated assertions about erecting the hoardings; (3) error in finding that the Plaintiff mistakenly believed he purchased the Portion; (4) misplacing the burden of proof for establishing a licence; and (5) failure to direct herself on the necessity of cogent and compelling evidence. Held, dismissing the renewed application for leave to appeal: (1) On the credibility assessment, the Judge was aware of the need to evaluate the Plaintiff's evidence against undisputed facts, and her approach could not be faulted. Her characterisation of a suggestion by counsel as 'made on no basis' was properly explained. The Judge's treatment of alleged inconsistencies was sufficient in the circumstances. (2) On the hoardings, the Plaintiff's evidence was not contradicted or inherently improbable. The absence of documentary records of the HK$35,00 paid was unsurprising given the small sum and passage of time. The Defendant did not raise a positive case that the hoardings were erected by someone else, and no adverse inference should be drawn from the Plaintiff's failure to call the three construction workers (per Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd, applying Wisniewski v Central Manchester Health Authority). (3) On the alleged mistaken belief finding, the Judge did not make any such finding. She applied the principle in Law Yuk Fong v Man Chung Wai that a squatter's mistaken belief of ownership does not preclude animus possidendi, and based her finding on the erection of hoardings and installation of a gate. (4) On the licence issue, this was never pleaded in the Defence and was not a live issue; the Judge's statement concerned the absence of evidence, not burden of proof. (5) On the cogent and compelling evidence complaint, this added nothing of substance to the other grounds. The Summons was dismissed with costs to the Plaintiff, summarily assessed at HK$80,000. The Court made an order under Order 59, rule 2A(8) of the Rules of the High Court that no party may request the present determination to be reconsidered at an oral hearing inter partes.
Legal issues: Whether the Judge erred in her assessment of the Plaintiff's credibility · Whether the Judge erred in relying solely on the Plaintiff's uncorroborated assertions about erecting the Hoardings · Whether the Judge erred in finding that the Plaintiff mistakenly believed he purchased the Portion · Whether the Judge erred in placing the burden of proof for establishing a licence on the Defendant · Whether the Judge erred in failing to direct herself on the necessity of cogent and compelling evidence
Outcome: Leave to appeal application dismissed; the Defendant's intended appeal was found to have no reasonable prospect of success.
Cited by 18 cases · Cites 6 cases