Yu Kit Chiu and Another v. Chan Shek Woo t/a "陳潮昌士多"

CACV 129/2006 and CACV 159/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 129 AND NO. 159 OF 2006

(ON AN INTENDED APPEAL FROM DCCJ 5488 OF 2003)

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BETWEEN

Before : Hon Cheung JA in Chambers

Date of Hearing : 28 June 2006

Date of Decision : 28 June 2006

Date of Reasons for Decision : 30 June 2006

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Reasons for Decision

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1.These are the reasons of my decision given on 28 June 2006.

Stay of execution

2.This is the defendant’s application for stay of execution of the judgment of H H Judge Chan pending the determination of the appeal to the Court of Appeal.  Leave to appeal has been granted.

The parties’ case

3.The plaintiffs claimed that the defendant has trespassed on their land since 1 July 1997.  The defendant claimed that he has been in adverse possession of the land since 1962. 

4.The plaintiffs applied for judgment under Order 14A, Order 14 and Order 18 Rule 19.  As appeared from the transcript of proceedings, the plaintiffs were contented to have judgment after the determination of the legal issues under Order 14A without asking the judge to deal with their application under Order 14.  The legal issues that the judge were asked to decide were the same ones that had been decided by the Court of Appeal in Chan Tin Shi v. Li Tin Sung & others (CACV No. 71/2003).  The judge found for the plaintiffs and ordered possession of the land to be given to the plaintiffs.  The Court of Final Appeal ([2006] 1 HKLRD 185) has since reversed the decision of the Court of Appeal.  The defendant has shown that there are strong grounds of appeal.

Occupation with consent

5.The plaintiffs, however, argued in the respondents’ notice that the defendant was not in adverse possession because he was allowed to occupy the land with the consent and licence of the plaintiffs.  The plaintiffs relied upon

1) a permit issued by the Government to the defendant which was cancelled in 1978,

2) a ‘short term waiver’ granted to the plaintiffs by the Government in 1986 as a result of the defendant’s application.  The plaintiffs through their lawyers had agreed to the terms offered by the Government in the short term waiver.

The plaintiffs argued that the defendant does not have a meritorious appeal and stay should not been granted. 

6.While the matters now relied upon by the plaintiffs were pleaded in the reply, there was no evidence on the nature of the permit or how the permit and short term waiver came into being.  In view of the concession made by the plaintiffs, the judge did not adjudicate on this issue.

7.The defendant’s case is that he has acquired adverse title by 1982 and the effect of the short term waiver is an issue that cannot be properly determined at this stage of the proceedings.

Re-entry 

8.It was argued that the user of the land has been changed and there is a risk of re-entry by the government.  The position is that the defendant has been in occupation for a substantial period and there is no evidence that the government is considering re-entry at this stage.

Conclusion

9.The defendant and his family have been occupying the land since 1962 and have not paid any rent to the plaintiffs.  The position should be preserved pending the determination of the appeal. 

10.Accordingly I granted a stay of execution of the judgment without conditions until the determination of the appeal. 

11.Costs of the application be in the cause of the appeal.  The defendant’s own costs be taxed in accordance with Legal Aid Regulations.

Ms Emma Wong, instructed by Messrs Liu, Choi & Chan, for the Plaintiffs

Mr. Andy Hung, instructed by Messrs Wong, Kwan & Co., for the Defendant