Lau Mei Ngor v. Lui Hang Ki t/a Lei Yue Mun Seafood Restaurant

DCCJ 6151/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6151 OF 2003

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BETWEEN

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Coram : Deputy Judge W. Lam in Chambers

Date of Delivery of Decision : 29 September 2005

Decision

1.The Plaintiff (“P”) seeks summary judgment in liability, with damages to be assessed at a later date, against the Defendant (“D”) to deliver up possession of a building called “Structure A”, being situated inside Lot 747 SD3 in Sai Kung (“the premises”).  In November 2002 P discovered the premises had been possessed by D.  By letter dated 4th December 2002 P demanded D to deliver up latest by 22nd December 2002 but D refused.  The within Writ was issued on the 28th October 2003.  The Defence was filed on the 26th November 2003, with D pleading that he was a director of Hsun Lian Ltd which in 1993 had purchased adjacent land called Lot 746 SD3, and as we now know demolished that part of the then existing house structure falling on Lot 746 in order that he could redevelop Lot 746 into a 3-storey building and run a restaurant.  As to the remaining portion of the old house which fell on Lot 747, i.e. Structure A, D negotiated with the then adverse possessors for them to receive compensation from D and vacate.  This they did, and D has been storing furniture and other items inside Structure A. 

2.It is not in dispute that P was, and is, the registered proprietor of Lot 747: see Bundle pages 71, 74 and 89.  There is also no dispute that P’s “Lot 747” is indeed the premises relevant to these proceedings: see Bundle page 103 at paragraphs 2 and 4, page 107, page 114 at paragraph 23.5, pages 116 to 118, 141 and 142.  It is also not in dispute that no part of Structure A encroaches upon D’s land being Lot 746.  D says “the boundary is not clear”, but I fail to see why.  What P seeks and what all the documents representing the situation as obtains today leave me with not a shadow of doubt as to what the relief sought entails.

3.D seeks an adjournment of today’s application on the basis that the law in CHAN Tin-shi  v  LI  Tin-sung and Others [2005] 1 HKC 1, as to whether adverse possession can remain after 1997, is still to be clarified by the Court of Final Appeal, which is scheduled to be heard in November 2005, 1.5 months from today.

4.It is not in dispute that there is a line of cases which gave summary judgment as a result of CHAN Tin-shi’s case, e.g. CHAN Suk-yin & Anor  v  Harvest Good Development Ltd  CACV 101/2004.  D says there is a District Court case where adjournment was granted, although citation was not immediately available.  In any event, whether adjournment is granted is a matter for discretion, and the parties do not say I am bound by higher authorities in this regard.

5.D says, and I agree, that in exercising my discretion I need to consider whether prejudice is caused to any party and if so how much.  I take into account, inter alia, the following factors:

(1)	D is the adverse possessor. Putting aside whether he will or will not acquire legal rights depending on the decision of the Court of Final Appeal in due course, D has prima facie already caused grave prejudice to P. P is the official registered owner with legal title, but it was D and predecessors who had originally, wrongfully, used somebody else’s land.
(2)	P discovered loss of use of her premises as early as November 2002.
(3)	P has had to wait 3 years until now, but has still not regained possession.
(4)	As the law stands today, I am bound by CHAN Tin-shi’s case.
(5)	It is not probable, let alone certain, that in the end CHAN Tin-shi will rule in D’s favour. If there is anything called “more likely than not” in the results of appeals, it is more likely that the ultimate ruling will be in P’s favour, because that is what the Court of Appeal has already decided, not the other way around.
(6)	Whatever CHAN Tin-shi’s final ruling may be, the wait as from today is not 1.5 months but longer. If an adjournment is granted today, and CHAN Tin-shi emerges in P’s favour, she will need to ask this Court to re-list the case for trial, because D seems to continue his dispute on the geography of the premises in question, even though as stated above I myself can see no ambiguity. The trial and eventual judgment in this Court is not likely to be available, on today’s listings, until at least the middle of 2006, depending on the length of time requested.
(7)	This is not like an administrative action which needs to await for a court to pronounce validity.
(8)	Nor is today’s case a criminal case where a defendant risks unjust and unlawful loss of liberty when the relevant point of law is still uncertain.
(9)	If equity has to do with today’s decision, D is the person with unclean hands, not P.
(10)	Despite D’s submissions I can see nothing ambiguous regarding the geographical aspect of P’s claim. I can see no risk of such a claim being void for uncertainty.

6.I consider it unjust to make P wait further when D has failed to show any arguable, triable or credible defence.  I am bound by the Court of Appeal’s decision.  I am not entitled to speculate what the Court of Final Appeal may say.

7.Accordingly there will be judgment in liability in favour of the Plaintiff, with damages to be assessed.  Costs to the Plaintiff for this action, to be taxed if not agreed, with certificate for counsel.

Representation :

Mr. Jeremy Chan instructed by Messrs. Ma Tang & Co. for Plaintiff.

Mr. Tony Ng instructed by Messrs. C.K. Mok & Co. for Defendant.