Hau Wai Cheung and Others v. All Persons in Occupation of Lot No.174 in Demarcation District No.95 and Another

CACV 41/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CIVIL APPEAL NO. 41 OF 2007 

(ON APPEAL FROM HCMP NO. 2807 OF 2003) 

----------------------

----------------------

Before:  Hon Yeung JA, Lam J & A Cheung J

Date of Hearing:  9 September 2008

Date of Judgment:  17 September 2008

----------------------

J U D G M E N T

----------------------

Hon Yeung JA (giving the Judgment of the Court):

Introduction

1.In a judgment handed down on 10 January 2007, Mr Recorder Jat, SC rejected the appellant’s case, put forward in order to defeat the plaintiffs’ title over Lot 174 of DD 95 (“the Lot”), that his father (Mr Tsang Lim) had been in adverse possession of the Lot for over 20 years.

2.The judge gave judgment for the plaintiffs represented by Mr Hau Wai Yan (“Mr Hau”), and allowed them to recover possession of the Lot with costs.

3.The appellant appeals against the judgment.

4.The plaintiffs are brothers and, in 1999, became the registered owners of the Lot by succession from their late father who purchased the Lot in 1961.

5.The plaintiffs claimed that Mr Tsang Lim leased the Lot and used it as farmland up to 1995 when the lease was terminated. The plaintiffs therefore contended that the appellant had no right to remain on the Lot.

6.The appellant, on the other hand, claimed that Mr Tsang Lim and his uncle Mr Tsang Chor farmed on the Lot and other adjacent lots to the exclusion of others without paying any rent and without the permission or license from anyone.

7.It was the appellant’s case that he and his father had been in adverse possession of the Lot for more than 20 years and therefore the plaintiffs’ title to the Lot had been extinguished.

8.The case rested largely on factual disputes with very little relevant contemporaneous documents. Each side called three factual witnesses and one expert to give evidence on the usage of the Lot as seen from aerial photographs.

9.Mr Tsang Lim was the only defence witness who could give direct evidence on the arrangement on the use of the Lot prior to 1995.

10.Having examined and analysed the evidence in great detail, the judge rejected the evidence of the defence witnesses and accepted those of the plaintiffs.

11.The judge took the view that it was “simply unimaginable” that the appellant and/or his father would be allowed to farm the Lot without any permission for all these years.

12.The judge found that the Lot was rented to Mr Tsang Lim up to 1995. The judge rejected the defence’s case that the appellant had been planting fruit trees on the Lot since 1995 and concluded that there was in fact no consistent farming activity being carried out on the Lot between 1995 and 2003, and therefore the appellant had no valid claim over the Lot either.

13.The judge further accepted Mr Hau’s evidence that in 1996, he had allowed a rattan factory to use the Lot in order to remove some heavy machinery when the Lot was then uncultivated, having just been returned to him by Mr Tsang Lim in 1995.

14.The judge also accepted Mr Hau’s evidence that in 2002, he was personally present when the new owner of the adjacent Lot 177 fenced off Lot 177 from the Lot and that he had, at the request of Mr Tsang Lim, hired some workers to cut the grass near the appellant’s houses.

15.The judge rejected the appellant’s claim that he and Mr Tsang Lim had been in adverse possession of the Lot since 1963. The judge concluded that the appellant had no right to remain on the Lot and therefore granted the plaintiffs an order for possession of the Lot.

Grounds of Appeal

16.In his Notice of Appeal, the appellant suggests that the judge’s findings of fact were erroneous. He emphasizes that his witnesses were truthful and reliable witnesses. The appellant further suggests that Mr Tsang Lim only rented part of the Lot to farm on, but as he had also fenced off and used part of the Lot as the residence of his family, his right should not be affected by the termination of the lease granted to Mr Tsang Lim.

17.The appellant expresses concern that the structures occupied by him and his family will be affected by the order for possession granted by the judge.

18.In support of his appeal, the appellant also applies to have certain fresh evidence admitted, saying that the fresh evidence has significant impact on the “truth of the case”.

19.The fresh evidence that the appellant wishes to adduce includes:

1.  The appellant’s travel record between January 2002 and January 2007 kept by the Immigration Department;

2.  A statutory declaration dated 11 August 2003 by Mr Tsang Lim to the effect that he had been occupying Lots 84, 170(174), 175 in DD 95 since 1968 without paying any rent as residence for his family, and as he was getting old and did not have good health, he had transferred the land, tool and all his interest to the appellant;

3.  A statement by the appellant setting out his rights and entitlement over Lots 84, 170, 174 and 175 in DD 95;

4.  The appellant’s application to the Hong Kong Bar Association for free legal service, setting out his claims; and

5.  Correspondence between Mr Tsang Lim and the plaintiffs’ solicitor.

Discussion

20.Under Order 59 Rule 10(2), the Court of Appeal have power to receive fresh evidence where there has been a trial or hearing on the merits, but only in special circumstances, and to establish special circumstances, three conditions laid down in Ladd v Marshall [1954] 1 WLR 1489, must be satisfied namely:

1.  The evidence could not have been obtained with reasonable diligence for use at trial;

2.  The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

3.  The evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible, though it need not be incontrovertible.

21.The appellant has not explained why the “fresh evidence” was not introduced at trial and there is no suggestion that it could not have been obtained with reasonable diligence. The statutory declaration and statement are self-serving documents, and in any event, their makers had testified and were disbelieved. The appellant’s travel record is collateral in nature and has no bearing on the result of the case at all.

22.None of the conditions laid down in Ladd v Marshall (supra) has been established and there is no acceptable basisfor this court to admit the fresh evidence at all.

23.The appellant’s application to adduce fresh evidence must be rejected.

24.The judge made findings of primary fact based on credibility of the witnesses. The judge’s findings were against the appellant and that was why the appellant’s case failed.

25.The finding of primary facts is the function of the trial judge and the appellate court would not usurp this function. Godfrey JA said the following in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657at p 663G:

“It is important for counsel and solicitors (and for the legal aid authorities) to remember the very limited extent to which this court will interfere in a case in which the appellant seeks to dispute the judge’s findings of fact. If it is necessary to disturb an adverse finding of primary fact, the appellant has to demonstrate either (1) that there is no evidence to support it; or (2) that it is contrary to documentary or other incontrovertible evidence which the judge overlooked. It is not enough to show there is little evidence to support the judge’s finding, or that it was ‘contrary to the weight of the evidence’. The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many.”

26.In Biogen Inc v Medeva Plc [1997] PRC 1 at p 45, Lord Hoffmann explained:

“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance…of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

27.Bokhary PJ, in Ting Kwok Keung v Tam Dick Yuen & Others (2002) 5 HKCFAR 336, having adopted the observation of Lord Hoffman in Biogen Inc v Medeva Plc (supra), further noted at p 350D:

“Where the judgment turns on an issue of fact, the Court of Appeal must have regard to the nature of that issue of fact. And it must have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words, in whose presence the whole of the evidence unfolded in its living state. Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v Edinburgh Tramways [1919] SC (HL) 35 at p 36, ‘sometimes broad and sometimes subtle’. The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness.”

28.The appellant complains that the judge had made wrong findings of fact. He reiterates his contentions that he and his father had been in occupation of the Lot as trespassers since 1963. The judge had dealt with those issues properly and they are not matters that can be interfered with by the court of appeal.

29.We have considered carefully the facts of the case and the submissions of the parties.

30.We are firmly of the view that the judge was entitled to conclude as he did that the Lot was rented to Mr Tsang Lim up to 1995 when he terminated the lease and surrendered the Lot back to the plaintiffs and that there was no farming activities being carried out on the Lot between 1995 and 2003. On the facts as found by the judge, the appellant’s case had not been made out.

31.The judge’s conclusion was not a conclusion that could be disturbed by the Court of Appeal in accordance with established principles.

32.If the structures occupied by the appellant and his family are not built on the Lot but only on Government Land, then the judge’s order for possession will have no adverse impact on those structures at all.

33.The appeal has no merits and is therefore dismissed with costs to be taxed if not agreed.

Mr Francis Yip instructed by Messrs Ko & Chow for the Plaintiffs/Respondent.

Appellant: In person, present.