Au Yeung on v. Che Shing Cheong Wilfred and Others

HCMP4745/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4745 OF 1999

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BETWEEN

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Before:  Deputy High Court Judge Saunders in Chambers

Date of Hearing:  22 March 2005

Date of Ruling:  22 March 2005

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R U L I N G

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1.This is a matter which raises issues in relation to the occupation of land in the New Territories.  The whole question of squatters’ rights in the New Territories has been thrown into chaos by the provisions of the New Territories Leases Extension Ordinance, Cap. 150. 

2.There are conflicting decisions in this Court which appear to have been resolved by a decision of the Court of Appeal in Chan Tin Shui v Lee Ting Sung and Others, CACV71/2003, which holds that the effect of the New Territories Leases Extension Ordinance is to make a new grant of all leases in the New Territories.  The effect of that is to start time running again for all squatters in the New Territories.  If the decision in the Court of Appeal is upheld on an appeal that is underway in the Court of Final Appeal, this matter will come to an end.  The plaintiff will have to accept that his 20 years must start to run again.

3.The Plaintiff, for those reasons, says that this matter should be adjourned pending the hearing in the Court of Final Appeal.  Mr Cheung, for the Defendant, says that there should be no adjournment, arguing that the Defendant is prejudiced because he is out of pocket of money that he says he is entitled to from the Government for the resumption of the land, - that is right - and that he does not get interest on the money from the Government - and that too is right.

4.If I were to uphold the Defendant’s argument today and dismiss the appeal, the Defendant will be able to collect the money and if the decision of the Court of Final Appeal is such that the Plaintiff can resume the proceedings, then the Plaintiff is faced with the difficulty of having to recover the money from the Defendant should the Plaintiff ultimately succeed.  That, in my view, is a greater prejudice than the prejudice faced by the Defendant at the present time through loss of interest and loss of use of the money.

5.Balancing the respective prejudice to each party, I am satisfied that this is a situation where the appeal ought to be adjourned pending the outcome of the decision in the Court of Final Appeal.

6.The order will be, therefore, that the application is to be adjourned sine die, to be brought on at seven days’ notice following any decision in, or resolution of, the appeal to the Court of Appeal in Chan Tin Shui v Lee Ting Sung and Others from the Court of Appeal. 

7.The question of costs for today is reserved.

Mr Walker Sham, instructed by Messrs Robertsons, for the Plaintiff

Mr Y L Cheung, instructed by Messrs Ho, Tse, Wai & Partners, for the Defendants