Tsui Kwong on v. Koo Ling Sung also known as Koo Lam San

DCCJ 4550/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4550 OF 2009

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Coram: Deputy District Judge Rebecca Lee in Chambers

Date of Hearing: 6 February 2012

Date of Handing Down Decision: 8 February 2012

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DECISION

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Introduction

1.This is an application by the Plaintiff for leave to appeal against my Judgment dated 9 November 2011 (“the Judgment”) where I dismissed the Plaintiff’s claim for adverse possession of the property at Flat B, 9^th Floor, Wing Wah Building, 14-24 Sai Yeung Choi Street South, 40P Shantung Street, Kowloon, Hong Kong (“the Property”).

2.I shall adopt the same abbreviations used in the Judgment for the purpose of the present hearing.

The Principles

Leave to Appeal

3.Section 63 of the District Court Ordinance, Cap. 336 provides that a party may only appeal from the District Court to the Court of Appeal with leave.  If a judge below refuses leave, the intended appellant may still apply to the Court of Appeal for leave.

4.Section 63A(2) provides that leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that:

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.

5.Section 63A(2) test is the same test as laid down by the long line of authorities since Smith & Cosworth Casting Processes Limited [1997] 4 All ER 840 (at 841) as set out in Ma Bik Yung & Ko Chuen HCMP No. 4303 of 1999:

“(1) The court would only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word ‘realistic’ makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

(2) The court can grant the application even if it is not so satisfied.  There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success.  For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue whether law requires clarifying.”

6.The applicant needed to show that there was a good arguable case in respect of the intended appeal that had a reasonable and not a fanciful prospect: Commissioner of Inland Revenue v Nam Tai Trading Co Ltd. [2009] 3 HKC 421.

The Plaintiff’s Stance

7.The Intended Grounds of Appeal relied on are stated in the Skeleton Submission of Mr. Poon for the Plaintiff.

8.It is said that having regard to the evidence as a whole, the Court erred in finding that:

(a) the Plaintiff had no exclusive possession of and dealing with the Property as an occupying owner;

(b) The Plaintiff had no intention to dispossess the true owner.

9.In effect, the Plaintiff is saying that the Court erred in finding of facts in relation to both “factual possession” as well as “intention to possess”.

10.Regarding “factual possession”, Mr. Poon argued that I should have attached more weight to the evidence that the Plaintiff has spent money on improving the Property.

11.In relation to “intention to possess”, Mr. Poon argued that the Plaintiff’s testimony that he was willing to pay rent to Mrs. Koo has not been clarified by trial Counsel. Therefore this piece of evidence cannot carry important weight.

12.Moreover, Mr. Poon submitted that the case of Wong Tak Yue v . Kung Kwok Wai & Another [1998] 1 HKLRD 241 should have been distinguished, in that the defendant in Wong Tak Yue has an alternative defence that he was a protected tenant under Part II and/or Part V of the Landlord and Tenant (Consolidation) Ordinance (which was subsequently struck out) (“LTCO”) as well as a defence of adverse possession.

13.In the present case, the Plaintiff’s case has always been adverse possession.

14.It is argued that Wong Tak Yue is a decision upon facts and does not lay down any legal principle.

15.Mr. Poon also argued that I should have followed the House of Lords decision in J A Pye (Oxford) Ltd. v. Graham [2003] 1 AC 419 that the Plaintiff’s intention to possess on his behalf to exclude the world at large is not inconsistent for him to be willing, if asked, to pay the Defendant while being in possession in the meantime.

Discussion

16.I shall deal with Mr. Poon’s argument in relation to Wong Tak Yue first.

17.I am not satisfied that Wong Tak Yue can be distinguished because the defendant in that case had an alternative defence under LTCO.

18.It is clear that the Court of Final Appeal in Wong Tak Yue held that a statement of the squatter that he was willing to pay rent to the owners if they had requested payment and that he was ready and willing to do so was inconsistent with the intention to possess. See also: Cheung JA in Yu Kit Chiu v. Chan Shek Woo CACV 137 of 2010.

19.I disagree that Wong Tak Yue can be viewed simply as a decision on facts. The Court of Final Appeal clearly stated how such a statement should be treated when considering “intention to possess”.

20.This is different from the House of Lords’ approach in Pye.

21.Further, the Court of Final Appeal also stated:

“The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on assessment of all the circumstances in a particular case.

Where the occupier had made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the court should approach them with scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they might deserve. Conversely, where the occupier had made statements as to what was his intention and such statements were against his interest, the court would usually accord to them considerable weight. A defendant’s intention to pay rent if the owners had requested payment demonstrated that he was treating himself as enjoying possession under a lawful title from the owners. His intention to possess was not “as of wrong” but was “as of right”.”

22.Again, the Court of Final Appeal is effectively saying how a self-serving statement on “intention to possess” should be treated.

23.I see no reason why I should not have followed Wong Tak Yue in treating the Plaintiff’s testimony at trial.

24.The real issue is whether my conclusion on the facts in relation to “factual possession” and “intention to possess” was plainly wrong, and that the Plaintiff has a reasonable and not a fanciful prospect in showing the same.

25.Bokhary PJ inTing Kwok Keung v. Tam Dick Yuen trading as Tam Dick Yuen, Engineering [2002] 3 HKLRD 1 held that:

“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 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.”

26.His Lordship went on to say that:

“The specific circumstances capable of justifying the Court of Appeal in feeling satisfied that a trial judge's decision on the facts is wrong are infinitely various. No useful purpose would be served by attempting to catalogue such circumstances. Illustrations of such circumstances can, however, be useful. I offer three. The first is taken from Whitehouse v. Jordan where the House of Lords affirmed the decision of the Court of Appeal in England which had reversed a trial judge's conclusion on the facts. The second is taken from Universal Dockyard Ltd v. Trinity General Insurance Co. Ltd [1989] 2 HKLR 160 where the Privy Council affirmed the decision of our Court of Appeal which had reversed a trial judge's conclusion on the facts. And the third is taken from Rainfield Design & Associates Ltd v. Siu (2000) 3 HKCFAR 134 where this Court affirmed the decision of the Court of Appeal which had reversed a trial judge's conclusion on the facts.

In Whitehouse v. Jordan, as Lord Wilberforce noted (at p.253 E-G), the trial judge had rejected a witness's account and then reconstructed it. The result was, as Lord Edmund-Davies characterised it (at p.260 F), "in truth a finding without an evidential basis".

In the Universal Dockyard case it was contended that the Court of Appeal had no right to interfere with the trial judge's findings of primary fact. Delivering the advice of the Privy Council, Lord Goff of Chieveley said (at p.167 I) that the Court of Appeal was entitled to so interfere where, as happened in that case, the trial judge "had misdirected himself as to the effect of certain evidence which he understood to support his conclusion".

In the Rainfield Design case the general impression which the trial judge formed of the plaintiff's credibility was a favourable one. The plaintiff was, the trial judge said, "a very frank witness who gave his evidence with admirable composure and honesty". Notwithstanding that favourable impression, the trial judge resolved the crucial issue of fact against the plaintiff. That was done by taking a view opposite to an answer which the plaintiff gave on a matter on which the onus was on the defendant since the plaintiff had already made out a prima facie case on it. And that view was taken merely because the plaintiff had hesitated before answering. But what the plaintiff was responding to had amounted to two hypothetical questions rolled into one. And the trial judge had failed to direct his mind to what I described (at p.142 F) as the inherent likelihood "that this frank witness hesitated merely because he was puzzled at being asked two hypothetical questions rolled into one, and not because he was thinking up a false answer".”

27.Ting Kwok Keung was cited in Hong Kong Civil Procedure 2012, Vol. 1 at 59/0/53.

28.Regarding “facutal possession”, I do not see that inappropriate weight was attached to the Plaintiff’s spending on improvement to the Property. The evidence a squatter has to adduce must be compelling: Cheung J, Chang Shun Tak v. Leung Sun Fat, HCA 13809/1997.

29.Even if I were wrong on “factual possession”, on “intention to possess”, I followed Wong Tak Yue in treating that a statement of the squatter that he was willing to pay rent to the owners if they had requested payment and that he was ready and willing to do so was inconsistent with the intention to possess.

30.Mr. Poon pointed out the testimony of the Plaintiff in this respect has not been clarified by trial Counsel. That might so but such was the state of evidence before me and I must deal with the evidence as it was.

31.In the premises, I do not see that my conclusion on the facts can be said to be plainly wrong in the Ting Kwok Keung sense.

Conclusion

32.I concluded that the Plaintiff does not have a realistic prospect of success or an arguable case in the Intended Appeal.

33.I also see no basis for granting leave under the second limb of section 63A(2) in the circumstances of the case.

Order

34.The Plaintiff’s application for leave to appeal is dismissed.

35.I order costs of the application to the Defendant, to be taxed if not agreed.

36.I thank you Counsel for his assistance.

Mr. Billy Poon (instructed by Messrs. Francis Kong & Co.)for the Plaintiff

Defendant in person absent