Tang Sing Yu and Others v. Tang Tat Kwong and Others

cacv 361/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 361 of 2004

(on appeal from HCMP NO. 1466 of 1999)

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BETWEEN

Before: Hon Rogers VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 11 October 2006

Date of Judgment: 11 October 2006

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J U D G M E N T

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Hon Rogers VP:

1.This is an appeal against a judgment of Tang J.  It involved a piece of land in the New Territories.

2.Tang J heard the evidence.  He heard evidence from both sides.  He came to the conclusion that a tenancy existed.  He did not accept everything that the plaintiff said.  Nevertheless, having considered all the materials in front of him and the factors in favour of the plaintiffs and in favour of the defendants, he did not accept that the defendants had been squatters on the property for as long as the defendants cared to say.  It was a simple question of fact and I do not propose to go into the facts.

3.Mr Chan has come here this morning with a Notice of Appeal, which asks us to overrule those findings of fact.  In view of the clear law as to the role of this court in considering findings of fact by the courts below, I see absolutely no possibility of the defendants disturbing the judge’s findings of fact on the basis of the arguments that have been put forward in this court.  They were set out in the Notice of Appeal and I would simply say that what was set out in the Notice of Appeal are facts which emerged from the judgment.  The judge clearly took them into account when he came to his conclusion that the defendants had not established that they had been squatters for the requisite period, but that they had indeed been tenants on the land, and that the plaintiff was entitled to judgment.

4.In my view, this appeal should never have been brought and was a disgrace.

Hon Le Pichon JA:

5.I agree.

Hon Sakhrani J:

6.I also agree.

Mr Paul Harris SC and Mr George Lam, instructed by Messrs Ken Chiu & Co., for the Plaintiffs/Respondents

Mr Richard Chan, instructed by Messrs Joseph Leung & Associates, for the 1^st and 2^nd named Defendants/Appellants