Li Shiu Kwan v. Liu Chi Kong and Others

DCMP 4082/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4082 OF 2004

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BETWEEN

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Coram: Deputy District Judge W.C. Li in Chambers

Date of Hearing: 29^th September 2006

Date of Decision: 29^th September 2006

DECISION

1.I will deal with the first paragraph of the summons first.  The order made on 26 May 2005 was made on the strength of the decision in the Chan Tin Chi case.  As observed, the order would not have been made had the parties known of the outcome of that CFA appeal.  The result of this CFA appeal is now known, the appeal in the Chan Tin Chi case was unanimously allowed.  The judgment in favour of the plaintiff therefore could not be executed. 

2.Indeed, it would be in the plaintiff’s interests to have D1 included in the appeal against my order made on 26 May, indeed all parties are considering consolidating both actions, i.e. the present action and the so-called D7 case.  D1 has also asked today to appeal against the order after having been explained of the situation then and of the situation now by the court.  D1’s intimation to appeal was only made today.  So, all parties, i.e. plaintiff and D7, had prepared themselves fully to argue on the basis that D1 was not appealing, those arguments would not be necessary in the light of D1’s intimation to the court that he wants to appeal. 

3.D1 is unrepresented.  From the conversation between Mr Liu (D1) and the court, it does appear that he was quite unaware of the legal arguments involved in the case.  The appeal is out of time.  In the light of D1 being unrepresented and in the circumstances that it is probably in all parties’ interest to have D1 included in their appeal, I grant leave to allow D1 to appeal out of time.  The Plaintiff does not really oppose the appeal.  So, in these circumstances, paragraph 1 of the summons is made order in terms.  Paragraph 1 reads, for the sake of the record,

“Leave to appeal from the judgment made by Deputy Judge W C Li, on 26 May 2005 against the 1st defendant and 7th defendant, that the plaintiff do recover possession of the land known as The Remaining Portion of Section A of Lot No. 2942 in Demarcation District No. 104, notwithstanding the time for making the application for leave to appeal, as prescribed under Order 58 Rule 2 of the Rules of the District Court Cap 336, has expired.” 

(Court discussion re costs)

4.Regarding costs of this application today, there will be no order as to costs.  D7’s own costs will be taxed in accordance with Legal Aid Regulations.  As regarding costs of the originating summons on 26 May 2005, there will be no order as to costs as well, and D7’s own costs be taxed in accordance with Legal Aid Regulations.

5.Hopefully that puts all matters at rest and concentration could be on the future handling of the case.

Representation:

Mr. Alfred Fung instructed by Messrs. Lo & Lo for the Plaintiff

1^st Defendant appeared in person

Mr. Simon Ho instructed by Messrs. K. Y. Leung & Carina Chen for the 7^th Defendant