Fung Yuk Luen v. Wong Fung Lan and Others

CACV 398/2021, [2023] HKCA 641

On Appeal From [2021] HKDC 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 398 OF 2021

(ON APPEAL FROM DCCJ NO 447 OF 2017)

________________________

________________________

_________________

J U D G M E N T

_________________

Hon Chow JA (giving Judgment of the Court):

1.On 21 February 2023, this Court handed down its judgment (“the CA Judgment”) allowing the Plaintiff’s appeal against the judgment of His Honour Judge Harold Leong dated 22 April 2021 (“the First Instance Judgment”) and declaring that:

(1)  the Plaintiff had been in adverse possession of the Disputed Land (as defined in §9 of the CA Judgment) for a continuous period of over 20 years prior to the commencement of the action on 26 January 2017;

(2)  the Defendants’ title to the Disputed Land has been extinguished under section 17 of the Limitation Ordinance; and

(3)  the Plaintiff has acquired a possessory title of the Disputed Land under the Limitation Ordinance.

2.The basic facts of this case and the Court’s reasons for the allowing the Plaintiff’s appeal were fully set out in the CA Judgment and will not be repeated here.

3.On 21 March 2023, the Defendants issued a Notice of Motion seeking leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the following question (“the Proposed Question”), said to be a question of law of great general or public importance, is identified as being appropriate for determination by the Court of Final Appeal:

“In a claim for adverse possession, if factual possession is exercised jointly by more than one person and/or if the intention to possess is shared by more than one person, is the claim properly constituted if it is not brought by all the joint possessors?”

4.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.The Proposed Question was considered at §35 of the CA Judgment. We shall not repeat our analysis here, save to mention that, as pointed out by the Defendants and accepted by the Plaintiff, the issue of joint possession was raised by the Defendants at the trial[1], but was not considered by the Judge. The fact remains, however, that the Judge made no finding that the Plaintiff was in possession of the Disputed Land jointly with his family members, and the Court of Appeal took the view that the evidence did not justify a finding that the Plaintiff was in possession of the Disputed Land jointly with his family members (see §35 of the CA Judgment). In the absence of any finding by either the Court of First Instance or the Court of Appeal that the Plaintiff and his family members were in joint possession of the Disputed Land, the Proposed Question does not arise for determination.

6.In the Notice of Motion, the Defendants also rely on the “or otherwise” limb in support of the application for leave to appeal. It is only in exceptional circumstances that the Court would grant leave to appeal on this basis. Further, the settled practice of the Court of Appeal is to defer to the Appeal Committee of the Court of Final Appeal for consideration of whether leave to appeal should be granted on the “or otherwise” limb. We do not see any such exceptional circumstances in the present case:

(1)  At §2.1 of the Notice of Motion, the Defendants contend that the Court of Appeal palpably erred in overturning the Judge’s finding of fact that “it was more likely than not that the Plaintiff’s occupation of Lot 365RP and Lot 371 (“the Lots”) was pursuant to the [local land borrowing practice between relatives in Shui Hau Village]”. The Court’s reasons for this ruling are set out at §§18-26 of the CA Judgment. A disagreement with the Court’s factual finding does not, in our view, constitute exceptional circumstances for granting leave to appeal on the “or otherwise” limb.

(2)  At §2.2 of the Notice of Motion, the Defendants argue that the Court of Appeal was plainly wrong in stating that the Judge “did not make any express finding on whether the Plaintiff had the requisite intention to possess (animus possidendi) the Disputed Land, but held against the Plaintiff because of his finding of the existence of a land borrowing arrangement”, relying on §66 of the First Instance Judgment to contend that the Judge made an express finding that the Plaintiff failed to show he had the requisite animus possidendi. There was no issue that the Judge did find against the Plaintiff on the issue of animus possidendi. At §28 of the CA Judgment, the Court held that “[i]n view of the Judge’s finding of the existence of a land borrowing arrangement between the Plaintiff and the owner of the Disputed Land, he must implicitly have found against the Plaintiff on the issue of animus possidendi”. In our view, it is clear from a proper reading of the First Instance Judgment, in particular §§64-66 thereof, that the Judge found against the Plaintiff on the issue of animus possidendi because of his finding of the existence of a land borrowing arrangement. The true question is whether this finding is justified on the facts of the present case. We do not consider that this question can properly engage the jurisdiction of the Court of Appeal to grant leave to appeal based on the “or otherwise” limb.

(3)  At §2.3 of the Notice of Motion, the Defendants contend that the Court of Appeal palpably erred in substituting its own finding that the Plaintiff had the requisite intention to possess the Lots. Again, we do not consider that a mere disagreement with the Court’s factual finding can constitute exceptional circumstances for granting leave to appeal on the “or otherwise” limb.

7.In any event, we can see no good reason in the present case to depart from the well settled practice of the Court of Appeal to defer consideration of the “or otherwise” limb to the Appeal Committee of the Court of Final Appeal.

8.For the above reasons, the Notice of Motion is dismissed with costs to the Plaintiff, which we summarily assess in the amount of HK$140,000.

Mr Wilfred Tsui, instructed by Stephen Lo & P Y Tse, for the Plaintiff

Mr Osmond Lam, Mr Derek J Y Chan and Mr Dexter Leung, instructed by C W Heung & Partners, for the 1^st to 4^th Defendants