Lam Ping Hing v. Yeung Leung Wai

DCCJ 2673/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2673 OF 2008

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Coram: His Hon Judge Leung in chambers (open to public)

Date of hearing: 6 August 2010

Date of decision: 27 August 2010

D E C I S I O N

1.Lam, the Plaintiff, sought to recover possession of plots of land in Tai Po, New Territories from Yeung, the Defendant. On 30 April 2010, I handed down my judgment whereby I found for Lam and dismissed Yeung’s counterclaim (“the Judgment”). Yeung now seeks to appeal against the Judgment. If leave is granted, Yeung also asks for stay of execution of the order against him.

2.No leave to appeal shall be granted unless the intended appeal has a reasonable prospect of success or there are issues that should in the interest of justice be heard by the Court of Appeal: section 63A(2) of the District Court Ordinance. The grounds have to be more than merely arguable: Wynn Resorts (Macau) SA v Mong Henry, HCA 192/2009 (10 August 2009).

The Judgment

3.The background of the case is set out in paras.2 to 17 of the Judgment.  After setting out the issues (paras.18 to 20) and the relevant legal principles (paras.21 to 23), this court observed that it was Yeung’s burden to prove the alleged bases for his claim of interest in the properties concerned against Lam, the registered owner.

4.Considering the evidence and analysing the circumstances, I found against Yeung and gave judgment in favour of Lam.  I ordered that possession of the land concerned to be delivered to Lam; and I also made an order for mesne profits to be paid (para.86).  I dismissed the counterclaim (corrigendum).

The intended appeal

5.For the grounds set out in the draft notice of appeal, Yeung seeks to reverse this court’s findings or alternatively to have a trial de novo.  Before the hearing of this application, an additional ground of intended appeal was put forward, namely, that this court actually had no jurisdiction to hear and determine the case.  I would deal with this new ground first.

Jurisdiction

6.The issue of the jurisdiction of this court was never raised at any time (including the pre-trial review) until after the Judgment adverse to Yeung was handed down. This was notwithstanding the fact that Yeung has been represented by full legal team, including 2 solicitors’ firms and 2 counsel (in the trial).  Mr Chong, who did not appear for Yeung in the trial, could only describe this as regrettable.  To me, this is astonishing.

7.Section 35 of the District Court Ordinance provides that this court has jurisdiction to hear and determine any action for the recovery of land, where the annual rent or the rateable value of the land, determined in accordance with the Rating Ordinance, or the annual value of the land, whichever is least, does not exceed HK$240,000.

8.The evidence before this court was:  The rateable value of House 10B in 2001 was HK$74,400. According to the surveyor’s report in 2009, the annual market rent of House 10B was HK$82,000.  Counsel for Yeung confirmed no dispute in respect of these figures.  For RP483/485/490, Yeung had been paying Lam annual rent in the sum of HK$6,000.  There was no other evidence of the annual rent, rateable value or annual value of the land.  This put the present case fairly within the jurisdiction of this level of court.

9.I must take strong exception regarding the filing of an affirmation on behalf of Yeung that purported to adduce a valuation report dated 3 days prior to the hearing apparently in support of this new ground of appeal.    The affirmation was said to be filed on the day of the hearing but actually reached the court only after the hearing.  No indication of intention to refer to such affirmation was made in Mr Chong’s submission during the hearing.  Regarding the value of RP483/485/490, Mr Chong referred to ‘logic and common sense’.

10.Whether further evidence may be adduced for the purpose of appeal is a matter for the Court of Appeal pursuant to O.59, r.10 of the Rules of the High Court.  No evidence was adduced and no submission was made as to how the conditions set out in Ladd v Marshall [1954] 1 WLR 1489 are said to be satisfied.

11.Raising the jurisdiction point at this stage and in this manner is nothing but desperate. This must be rejected.

The other grounds

12.Considering the evidence and analysing the allegations (paras.25 to 76 of the Judgment), I preferred the evidence of Lam to Yeung (para.77 of the Judgment).  I find that Lam has not given up the land where House 10B is.  I do not find that Lam shares a common intention or belief that the land has become the property of Yeung or his wife.  Yeung has indeed carried out improvement to House 10B and development of RP483/485/490, but this was not pursuant to any intention or belief that they belonged to him or his wife.  The claim of interest or right to occupy failed (paras.78-79 of the Judgment).

Yeung’s alleged belief

13.Throughout the proposed grounds of the intended appeal (Grounds 1, 2, 3, 4, 6, 7 and 8), one point is emphasized, namely, that this court erred in failing to make finding of Lam’s knowledge about Yeung’s (mistaken) belief of his interest in the lands concerned.

14.Lam’s evidence in respect of Yeung’s alleged belief must be understood in context.  He was indeed asked to speculate the mind of Yeung during his cross-examination.  This is now described as Lam’s acknowledgement or even knowledge about Yeung’s belief.

15.More importantly, this court expressly refused to accept the alleged belief of Yeung as a matter of fact.  This court also expressly rejected the allegation that Lam ever shared such intention or belief on the part of Yeung.

16.Therefore the attack that this court failed to find whether Lam knew Yeung’s alleged belief is an unfair one.

17.It is also noteworthy that somehow Yeung now chooses to run his case on appeal by acknowledging that Lam was his landlord from whom he had rented RP483/495/490 (Ground 1). As found by this court (paras.47-76 of the Judgment) and discussed below, that was never Yeung’s stance according to the pleading or in his evidence in court.

House 10B

18.Regarding House 10B, it is argued that this court’s reference to the family relationship and status quo to explain the continued occupation and the renovation and improvement by Yeung is erroneous (Ground 3).

19.There was clearly pleaded basis for reference to these factual circumstances (paras.11-18 of the Reply and Defence to Counterclaim).  The allegations of Yeung and the evidence of the witnesses in relation to House 10B, including the renovation, were considered (paras.25-26; 29-31; 40-44; 69-73 of the Judgment).  This court ruled against Yeung on the issue of credibility and hence his alleged belief of interest in the house.

20.It is argued that in considering House 10B, this court has wrongly placed reliance on the tenancy agreements that related to RP483/485/490 (Grounds 3 and 7).  Properly read, the Judgment does not warrant such criticism.

Estoppel

21.It is argued that this court has erred in holding that the principle in Taylor Fashions Ltd v Liverpool Trustees Co [1982] QB 133 did not apply in respect of RP483/485/490 (Ground 4).

22.The principle in Taylor Fashions Ltd was discussed in the Judgment (at para.75 of the Judgment).  The estoppel arises out of an unregistered option to renew a tenancy that both the landlord and the tenant had acted upon in favour of a tenant so as to defeat the landlord’s right of reversion.  But by denying that the 1992 Agreement and the 2004 Agreement were genuine tenancy agreements, Yeung denied the very basis for invoking this principle (para.76 of the Judgment).

23.Yeung also had problem in seeking to run this as an alternative argument, in the event that the 1992 Agreement and the 2004 Agreement were found to be binding tenancy agreements. First, Yeung has not pleaded such alternative case.  Secondly, there was no evidence from Yeung that his alleged expectation was created or encouraged by the option contained in the tenancy agreements being acted upon by the parties including Lam in his capacity as the landlord (as in Taylor Fashions Ltd).  Lastly, as mentioned above, this court rejected as a matter of fact the alleged belief of interest on the part of Yeung.

False declaration

24.It is argued that this court ought to have held Lam to be incredible upon the finding that he made a false declaration to succeed the estate of the Eldest Brother (Ground 5).

25.This court considered the argument advanced in relation to the false declaration of Lam for the purpose of succeeding to the Eldest Brother’s estate and the evidence in that regard (paras.32-40 of the Judgment).  It was after the consideration of all the evidence, this episode being part of it, when this court concluded that Lam’s evidence (including his explanation for the false declaration) is preferred to that of Yeung.

26.This is a matter of assessment of witness credibility and I am not convinced that the appellate court would lightly interfere: see Cham Siu Tsan v Cham Kin Hung, CACV 208/2002 (20 December 2002) at para.14 (in a similar context).

RP483/485/490 and the tenancy agreements

27.It is argued that this court has placed undue weight on the 1992 Agreement in assessing the intention of the parties in relation to RP483/485/490 (Ground 6).

28.In respect of RP483/485/490, this court has considered the evidence including those specifically mentioned in the Judgment and the 1992 Agreement and the 2004 Agreement were parts of it (paras.25-40; 45-68 of the Judgment).

29.This is essentially another instance of challenge against this court’s assessment of the witnesses’ credibility.  For the reason explained above, I am not convinced that the appellate would lightly interfere.

The question of equity

30.It is argued that this court failed to make any finding of whether the detriment suffered by Yeung is proportionate to the relief sought (Ground 8).

31.It is not expected that this point would now be taken on behalf of Yeung.  The reason is that during the trial, it was Mr Yue who assisted this court on this issue in the event that Yeung’s case can be established (paras.80-81 of the Judgment). I heard no submission in this respect from counsel for Yeung.  But as I found that Yeung’s case failed, there was no need to give an academic ruling on this point.

Conclusion

32.In so many words, the major challenge mounted on behalf of Yeung in the intended appeal boils down to one against findings of fact mostly based on assessment of witnesses’ credibility.  I am not satisfied that there is a reasonable prospect of success in the intended appeal or the matter should go further for any other reason. It follows that the application for stay of execution does not come to be decided.

Order

33.The application for leave to appeal and stay of execution is dismissed with costs to Lam.  Costs shall be taxed, if not agreed, with certificate for counsel.

Mr Jonathan YUE instructed by Messrs Kevin Li & Co for the Plaintiff

Mr K M CHONG and Mr Johnny FOK instructed by Messrs Y T Szeto & Co for the Defendant