Fine Hill Holdings Ltd v. Chung Kwok Kee Jenssion and Others

DCCJ 6745/2024

[2026] HKDC 954

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6745 OF 2024

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DECISION

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1.The Plaintiff took out an inter partes summons (“P’s Summons”) on 28 October 2025 for leave to appeal from my judgment handed down on 30 September 2025 (“the Judgment”). The facts and the reasons for the Judgment have been set out therein and I do not repeat the same here. For ease of reference, the abbreviations used in the Judgment are adopted in this decision.

Applicable Principles for Leave to Appeal

2.The legal principles applicable for leave to appeal are well-established and not being disputed between parties. Under s. 63A(2) of the District Court Ordinance, Cap. 336, leave for appeal shall not be granted unless the judge hearing the application for leave is satisfied that 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.

The proposed grounds of appeal

3.In paragraph 44 of my Judgment, I made the following findings:

“For the reasons set out in the foregoing paragraphs, I am satisfied that P has proved, on a balance of probabilities, that it and its predecessors-in-title had continuous and uninterrupted use of the Disputed Path from P’s Lot to the Public Road over 20 years before the Obstruction in 2017.”

4.Mr. Chiu for D1 and D2 averred that I have erred in counting the 20 years from 2017 instead of 2013, and thus P must prove that it did have uninterrupted use of the RP334 Access Footpath without D1 and D2’s permission since mid-1993.

5.I agree, and it appeared from Mr. Tsui’s submissions that P also agreed that the 20 years period of uninterrupted use and as of right for an easement by prescription should be counted from 2013 instead of 2017.

6.As a brief summary, the significance of year 2013 was the year where D1 and D2 installed the Gate with permission granted to P’s tenants for the use of the Disputed Path. Yet in 2017, D1 and D2 refused to give out the passcode of the Gate to P, and thus rendered the Obstruction to P’s access to its own land.  

7.However, there is, in reality, no difference made to the final findings whether it was counted from 2013 or 2017. It has always been P’s case that it and its predecessors had uninterrupted use of the Disputed Path as far back since 1975, and in the Judgment, I accepted evidence that P’s Lot has been landlocked since 1905 (see paragraph 48 of the Judgment) and P’s House existed on P’s Lot no later than 1975 and occupiers therefrom would be using the Disputed Path as their accessway to the Road at all material times (see paragraph 42 of the Judgment).

8.Thus, it is apparent that the crux of my finding is that the Court was satisfied that P has proved, on a balance of probabilities, that it and its predecessors-in-title had continuous and uninterrupted use of the Disputed Path from P’s Lot to the Public Road since 1975, if not earlier.

9.The next draft ground of appeal in the P’s Summons is that the Court should not rely solely on the findings of experts to infer usage of the Disputed Path prior to 1998. Mr. Chiu argued that since the earliest aerial photo available to the experts for their opinions was taken in April 1998, the Court should not, in the absence of any evidence, make inference as to the usage of the Disputed Path between 1975 and 1998.

10.D1 and D2 are therefore seeking to appeal against the facts that I reached through a process of inferences from documentary or expert evidence. Indeed, appeal against findings of facts made by a process of inference will be approached very differently from findings of primary facts by the appeal court, see Ting Kwok Keung v Tam Dick Yuen [2002] 1 HKC 601 per Bokhary PJ at 611B to E. In drawing inference, the appellate court is in as good a position as the trial judge and is free to arrive at a conclusion different from that of the trial judge: as per Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657 at 663 (See Wong Sui-Kwan v Cheong Pui Fan, DCCJ 4987/2004, 18 May 2007.)

11.The findings as to the usage of the Disputed Path were not made by mere inference but based on factual observations and weighing of evidence. It was plainly wrong that I had only relied solely on the experts’ opinions to form my conclusion, but considerations were made to objective facts that the stone house in P’s Lot was registered for dwelling purposes in 1976 with a Squatter License registered in 1978 (see paragraph 38 of the Judgment) and the geographical location of such house would require access to open road rather than just the Ginger Lily Road (see paragraph 41 of the Judgment).

12.Even if the appellant court is in as good a position as the trial judge to arrive at a conclusion, D1 and D2 could not offer any grounds to aver that my inference was premised on some mistaken facts, but simply a complaint of the court’s assessment and evaluation of evidence. As such, an appeal court should be slow to reverse any finding which arrived through proper inference of facts.

13.The last ground of appeal proposed by D1 and D2 was that the Court erred in granting damages to P in terms of mesne profits from 2021 onwards, that was after the Obstruction was removed.

14.This ground must fail because the removal of the Obstruction was not made known in any witness statements or pleadings but was only revealed at trial. In particular, D1 and D2 admitted under paragraph 15 of the Defence that they maintained and intended to continue to maintain the Obstruction that was set up in March 2017. No application had ever been taken out by D1 and/or D2 to amend the pleadings, and it is simply arbitrary to argue that they are not liable to P’s losses as the Obstruction was removed in 2021.

15.To conclude, there is no merit in any of the grounds proposed by D1 and D2. There is no reasonable prospect of success in their appeal and the Summons must be dismissed with costs to P with certificate for one counsel, to be taxed if not agreed.

Mr Wilfred Tsui, instructed by Messrs Chow Wong & Lawyers, for the plaintiff

Mr Peter Chiu, instructed by Messrs Lam, Lee & Lai, for the 1^st and 2^nd defendants

The 3^rd defendants were not represented