Cheung Wai Hung v. Tam Kwok Wai and Another

HCMP 1684/2009

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS no. 1684 of 2009

(on AN INTENDED appeal from DCCJ NO. 919 of 2007)

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BETWEEN

Before: Hon Rogers VP in Chambers

Date of Hearing: 16 November 2009

Date of Decision: 16 November 2009

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D E C I S I O N

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1.On 3 June of this year HH Judge Chow gave judgment in a case of adverse possession in the New Territories.  Such cases are notoriously difficult because the evidence is always very difficult.

2.Application was made by the defendants for leave to appeal and that was granted on 17 September.  A few days later, the plaintiff sought to put in a notice of opposition to that out of time.  The reason put forward for being out of time is that the lawyers had misread the rules and, therefore, they were late.  That is not a satisfactory explanation to my mind, but nevertheless, I will consider the matter.

3.This appeal, for which leave has already been given, is an appeal on fact.  It is always difficult to appeal a decision on facts.  The onus is high on the appellant.  Nevertheless, I do not view this case as being one where the appellant has no chance on appeal.  In those circumstances, I am not prepared to allow the submission of the notice of opposition although I have read it de bene esse and considered it.  I consider that this appeal should go ahead and these preliminary skirmishes should cease.

4.The plaintiff’s application is refused.

(Submissions on costs)

5.Costs to defendants in any event.

Mr Tony Ko, instructed by Messrs George Y C Mok & Co., for the Plaintiff/Respondent

Ms Winnie Chan, instructed by Messrs Paul W Tse, for the 1st and 2nd Defendants/Applicants