Liu Ka Lok Carol v. Pun Lai Yin Stella and Others

HCMP 689/2024

[2025] HKCFI 6336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLEANOUS PROCEEDINGS NO 689 OF 2024

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D E C I S I O N

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A.  INTRODUCTION

1.This Court gave judgment on 16 May 2025, rejecting Madam Liu’s application for recovery of a property under Order 113 of the Rules of the High Court (“RHC”) and finding the 1^st and 2^nd Defendants (“Pun and Yang”) to be in adverse possession (“the Judgment”). This is Madam Liu’s Summons for an extension of time (“the Summons”) to appeal against the Judgment. She relies on the following grounds:

(1)  That the delay is not unacceptably long or inexcusable; and

(2)  That her claim has a real prospect of success.

I will adopt the abbreviations used in the Judgment.

B.  LEGAL PRINCIPLES

2.The principles governing the extension of time to appeal are well settled. In the exercise of its discretion to grant extension of time, the court will take into account 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. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success. See Progetto Jewellery v Lau Chiu Ying [2022] 2 HKLRD 845, at §6.

3.In assessing the merits of the appeal, the Court will bear in mind that:

(1)  An appeal is not a second trial of the case. What the appellate court has to consider is mainly the evidence at the trial, and whether the decision of the trial judge is right or wrong;

(2)  Accordingly, an appeal is not the occasion for regurgitating arguments advanced and rejected by the judge.

See Progetto Jewellery, at §16.

C.  LENGTH OF DELAY AND REASONS FOR DELAY

4.The deadline for Madam Liu to serve a notice of appeal expired on 13 June 2025. Madam Liu’s Summons was only filed on 18 July 2025. Her application is 35 days out of time. The delay is substantial.

5.Madam Wong and Madam Liu failed to enforce the 2019 Judgment. Madam Liu only issued the OS in the present case 5 years after the 2019 Judgment. This Court has criticized Madam Liu for not having herself substituted in the 2014 Action, but “knowingly stood by, waiting for the 2014 Action to be fought out by Madam Wong”, thus abusing the process in issuing the OS in this action (Judgment, §63). Her delay had enabled Pun and Yang to be in possession of more than the requisite 12 years and so she lost in her Order 113 application. Madam Liu has not learned her lesson of acting expeditiously to assert her rights. Her 35-day delay is inexcusable.

6.Further, Madam Liu’s explanations for the delay were not supported by her own affirmation but an affirmation of her “attorney”, Mr Kenneth Kwok (“Kwok-aff”). It is not clear if Madam Liu has agreed to Mr Kwok’s version of events or the steps taken by Kwok in pursuing the Summons.

7.Even if I were to rely on Kwok-aff, I do not find the explanations for the delay reasonable or excusable.

8.Firstly, I fail to see why Madam Liu had to appoint an attorney. An appeal is on points of law. Madam Liu could have instructed a lawyer straightaway to handle her appeal without appointing an attorney.

9.Secondly, the explanation that Madam Liu had to make frequent business trips out of town indicated that she prioritized her own business above the appeal. That was her choice and she could not blame the Court for not being lenient towards her non-compliance with time limits.

10.Further, with electronic communications these days, the fact that a person is out of town would not prevent her from communicating with her lawyers and approving a notice of appeal whilst overseas.

11.Thirdly, the power of attorney (omitted from the hearing bundle) merely authorized Mr Kwok to act on behalf of Madam Liu in all matters in respect of the action, without mentioning any intended appeal.

12.Fourthly, there was delay in instructing lawyers. CT Chan & Co was allegedly “reluctant to continue representing Madam Liu” (to use Mr Kwok’s words). There was no explanation as to when Madam Liu learnt about CT Chan & Co’s reluctance. Madam Liu/Mr Kwok only approached the current firm of solicitors on 16 June 2025, when the appeal period had expired. Counsel’s advice was given on 23 June. Even so, the Summons was only filed another 3 ½ weeks later, on 18 July 2025. There was simply no excuse for Madam Liu / Mr Kwok not to instruct lawyers earlier.

D.  MERITS OF THE APPEAL

13.The theme running through the submission of Mr Koo and Mr Rex Yam, counsel for Madam Liu, is that Madam Wong and hence Madam Liu, as her successor in title, has a title superior to that of Pun and Mr Yang. Whether or not Pun and Yang have been in continuous adverse possession of the Red Portion for not less than 12 years was irrelevant. They were bound by the 2019 Judgment, whereas Madam Liu was not; she took the benefit of it. The fact that Madam Liu was not substituted as a party to the 2019 Judgment should not prejudice her rights and her entitlement to enforce the 2019 Judgment. The position may be materially different if the limitation time for enforcing the 2019 Judgment had expired but that is not the case here.

14.Without disrespect, this largely regurgitates arguments already advanced and rejected in the Judgment. More importantly, Madam Liu’s theme is unsustainable as a matter of law.

15.Firstly, Madam Liu’s assertion that she can enforce the 2019 Judgment is contrary to her former counsel’s submission that she had no standing to enforce the 2019 Judgment because she was not a party to that judgment (§46 of the Judgment). Madam Liu is bound by the conduct of her counsel and cannot run arguments which are inconsistent and which should have been raised at first instance: Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 §§47-48.

16.The suggestion that Madam Liu has a title superior to Pun and Yang is erroneous. It conflates Madam Wong’s title with Madam Liu’s. The claim was solely founded on Madam Liu’s status as a registered owner and not the 2019 Judgment. Madam Liu had to substantiate her claim against Pun and Yang and their defence of over 12 years’ adverse possession was relevant.

17.Secondly, none of the authorities cited by Mr Koo can show that this Court’s ruling that the 2019 Judgment was a judgment in personam (§57(1) of the Judgment) was erroneous. As Mr Suen SC submits, in Yu Fung Co Ltd v Olympic City Properties [2018] HKCA 323, §§52, 57-58, the Court of Appeal held that an order for possession can be itself personal in nature whilst a writ of possession would operate in rem.

18.Thirdly, none of the authorities cited by Mr Koo can answer the obiter dicta in Grand Wayfair Investment Co Ltd v Chan Yung Kan, [2014] HKEC 1591, cited in §40 of the Judgment.

19.Goldthorpe v Bain [1952] 2 QB 455, 457, 460, 464-465, CA, is cited by Mr Koo for the proposition that where a property owner obtains a possession order against an unlawful occupier and the property is transferred, the right to enforce the possession order passes to the new owner.

20.With respect, the English CA did not make such a sweeping statement. The facts were wholly distinguishable from those before this Court. The landlord obtained an order for possession on the ground that she required the premises for occupation as a residence for herself and her family, but she died before the order could be executed.

21.The plaintiff was the daughter of the landlord and beneficiary under her will. With the assent of the personal representative, the daughter brought proceedings to enforce the order and also asked for possession in her own right. The county court judge dismissed the action, holding that the order to the landlord was personal to her, ceased at her death and that the tenant was entitled to judgment on the issue of greater hardship (pp458-459). On appeal, CA allowed the daughter’s appeal, holding that the order for possession granted to the landlord concerned a proprietary interest, which did not cease at her death but devolved to her personal representatives, heirs or beneficiaries (p460, 463, 464). The daughter was thus entitled to enforce it, but subject to the right of the tenant to apply to the judge to extend the time for giving up possession.

22.The occupier was a lawful tenant and there was no transfer of the property. None of the parties conflated the concepts of enforcement, possession and title. The daughter was enforcing a court order in favour of the estate for her own benefit. Goldthorpe does not apply to the present case where Madam Liu, as the transferee of title, stood by without substituting herself as a party and without enforcing the 2019 Judgment for her own benefit.

23.Next, Mr Koo cities Mercer Alloys Corporation v Rolls Royce Ltd [1971] 1 WLR 1520, §§1526 E-F for the proposition that even after the 2019 Judgment, any application for substitution would have been granted as it was necessary to meet the justice of the case and give effect to the 2019 Judgment.

24.With respect, Mercer Alloys can be distinguished. In that case, the parties reached a compromise such that the defendants submitted to a money judgment and costs. After judgment was entered, the defendants became aware of P2’s merger with its parent company, which caused P2 to cease to exist as a separate corporate entity. The defendants applied to set aside the judgment on the ground that it was a nullity. The application was dismissed as the judge at first instance found that, pursuant to Californian statute, a pending action could be prosecuted to judgment, which shall bind the consolidated corporation, or the consolidated corporation may be substituted in the place of P2 (1523C to H). The decision was upheld on appeal. It was held that the intention of all the parties was to settle the litigation finally (1524E) and there would have been no objection by the defendants prior to judgment to substitute P2’s parent company as second plaintiff (1526B, G-H). Pursuant to the plaintiffs’ respondents’ notice, P2’s parent company was substituted as 2^nd plaintiff and the judgment stood. It was held that even after judgment, even if the judgment was a nullity, both under its inherent jurisdiction and under Order 15, rules 6 and 7, the court could substitute a third party as a plaintiff in lieu of one of the plaintiffs and would exercise that jurisdiction where it was necessary to see that justice was done and that the intention of the parties was carried out (1526E-F, 1528H).

25.In the present case, the fact remains that Madam Liu was not substituted and did not apply to be substituted so as to enforce the 2019 Judgment. It is also uncertain whether Pun and Yang would have consented to the substitution.

26.Mr Koo also cities BP Properties Ltd v Buckler (1988) 55 P&CR 337, at 344-345. However, that is authority that Madam Wong, not Madam Liu, could enforce the 2019 Judgment within 12 years.

27.In summary, none of the grounds of appeal (as reflected in Mr Koo’s theme) have any real prospect of success.

E.  CONCLUSION AND COSTS

28.Given the substantial delay, the lack of good explanation for the delay and the lack of real prospect of success in the appeal, I decline to grant extension of time for appeal. Madam Liu’s Summons is dismissed.

29.Costs should follow the event. On a nisi basis, I order Madam Liu to bear Pun and Yang’s costs for the Summons, with certificate for one counsel (Mr Suen SC), summarily assessed at HK$150,000.

30.I thank counsel for their assistance.

Mr Ernest Koo and Mr Rex Yam, instructed by David Y.W. Fong & Co., for the Plaintiff

Mr Jenkin Suen SC and Ms Manalie Chan, instructed by Adrian Yeung & Cheng, for the 1^st and 2^nd Defendants