Yu Kit Chiu and Another v. Chan Shek Woo t/a 陳潮昌士多
Read the full judgment text of DCCJ 5488/2003 on BabelCite. This District Court judgment was delivered on 26 July 2012.
1. The plaintiffs are the executors of the estate of Yu Ki Cheung (“ Yu ”). They commenced the present action in 2003 to recover possession of certain land in the New Territories from the defendant. Judgment after trial was eventually obtained in March 2010, which was upheld on appeal in February 2011. In the course of the enforcement of the judgment early this year, the 1st intended party (“ Cheng ”) and the 2nd intended party (“ Madam Chan ”) appeared and now apply to be joined as parties to t
Cited by 1 case · Cites 1 case
|
DCCJ 5488/2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5488 OF 2003 ________________________
Before: His Hon Judge Leung in Chambers (open to public) Date of Hearing: 20 July 2012 Date of Decision: 26 July 2012 ________________________ D E C I S I O N ________________________ 1.The plaintiffs are the executors of the estate of Yu Ki Cheung (“Yu”). They commenced the present action in 2003 to recover possession of certain land in the New Territories from the defendant. Judgment after trial was eventually obtained in March 2010, which was upheld on appeal in February 2011. In the course of the enforcement of the judgment early this year, the 1st intended party (“Cheng”) and the 2nd intended party (“Madam Chan”) appeared and now apply to be joined as parties to this action. BACKGROUND 2.Yu was the registered owner of what used to be known as Lots 994 and 995 in DD 115, Yuen Long, New Territories. As a result of the resumption of part of the land in these lots by the Government in the 1980’s, the 2 lots have since become known as the Remaining Portions of Lots 994 and 995 (“Lot 994RP” and “Lot 995RP” respectively) in the demarcation district. 3.Yu passed away in June 1980. 4.In September 2003, the plaintiffs commenced the present action against the defendant for possession of Lot 994RP and damages for trespass. The defendant, by his guardian ad litem, put up a defence and counterclaim, asserting adverse possession. 5.Much time has been taken until the case was eventually tried before HH Judge Mimmie Chan. In her judgment handed down on 22 March 2012 (“the Judgment”), HH Judge Mimmie Chan found in favour of the plaintiffs and, among other things, gave the order for possession of Lot 944RP. 6.The defendant appealed. The Court of Appeal handed down their judgment on 18 February 2011 affirming the Judgment (“the CA Judgment”). 7.In November 2011, writ of possession (and fieri facias combined) was issued in execution of the Judgment. On 4 January 2012, notice to quit was served on Cheng, an occupier in Lot 944RP. By summons dated 20 February 2012, Cheng applied for literally extension of time for moving out and joinder of him as a party in this action. 8.When the summons was heard on 23 February 2012, Cheng was absent and the Master dismissed the application. On 2 April 2012, Cheng filed another summons seeking identical reliefs as before. Cheng applied for legal aid in the same month. 9.On 7 March 2012, notice to quit was served on Madam Chan, another occupier in Lot 994RP. By summons filed by her solicitors on 5 April 2012, Madam Chan applies to be joined as a party in this action, to have the execution of the writ of possession stayed and to have the Judgment set aside. 10.Interim stay of execution of the writ of possession was granted until the determination of these applications. O.15, R.6 11.O.15, r.6(2) of the Rules provides:
CHENG 12.Cheng’s first summons was dismissed by the Master as he failed to show up at the hearing of his own application. Had there been reasons for his absence, Cheng could have subsequently applied to the Master to have the decision set aside (if the order has yet to be perfected) so that his application could be heard afresh. Alternatively, he could have filed a notice of appeal to be heard before a judge in chambers pursuant to O.58 of the Rules of the District Court. 13.Cheng did neither of them. Instead he took out the second summons applying for identical reliefs as before. That he was unrepresented does not change the fact that this is strictly abuse of legal process. 14.In any event, O.15, r.6(3) of the Rules requires that:
15.An application for joinder of party can be made at any stage of the proceedings. But an application at this stage is unusual. In these circumstances, the discretion to exempt the applying party from the requirement under the above sub-rule should not be lightly exercised. 16.Notwithstanding various extensions of time, Cheng has not filed any further affidavit in support of his second summons. In court, Cheng appeared in person; and the hearing of his application was conducted in Chinese. He made no submission. 17.There is simply no material before this court in support of his application. His application by the second summons has to be dismissed. MADAM CHAN 18.Unlike the case of Cheng, evidence was filed on behalf of Madam Chan to establish her interest in the cause. This action between the plaintiffs and Chan, the defendant, has reached the stage of execution of the writ of possession. Yet O.15, r.6 permits the joinder of party at any stage of the proceedings. In principle, Madam Chan may seek to be joined for the purpose of what remains in this action, i.e., the execution proceedings. However Madam Chan seeks to be joined for a more radical purpose. 19.In support of Madam Chan’s application, her son, Choi Chi Fook (“Choi Junior”), has filed affirmations. According to Choi Junior, the defendant has always been occupying part of Lot 994RP while his late father, Choi Yan Fat (“Choi Senior”), mother, he and his siblings occupied another part of the lot as residence. He is still occupying the same part. The building structures occupied by the two neighbouring families respectively are separated by a footpath. As summarised in his first affirmation (at §7(ii)):
20.On Madam Chan’s behalf, Mr Cheung contended that by way of adverse possession, the right of Yu, as the registered owner, to recover the part of Lot 994RP occupied by his family has long been extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347. 21.Madam Chan asks to be joined as a party so that she could be heard to first set aside the Judgment. I pointed out during the hearing that even assuming that Madam Chan is right, she is in no position to seek to set aside the Judgment to the extent that affects the defendant’s occupation of the lot. This is reinforced by O.15, r.6(1):
Mr Cheung for Madam Chan accepted that; and confined his client’s purpose to setting aside the Judgment to the extent that affects the part of the lot occupied by her family. Madam Chan’s interest in the cause 22.The plaintiffs in the amended statement of claim claimed for an order for possession of “the suit portion”. The suit portion was defined (in §2(ii)) as Lot 994RP. It was the plaintiffs’ contention that the defendant has been in occupation of Lot 994RP since a day prior to 28 October 1978. 23.In the re-amended defence and counterclaim, the defendant contended that since 1962, he has been occupying “the subject portion of Lot 994RP”. The subject portion of Lot 994RP was identified and coloured yellow in the Lot Index Plan attached to the pleading. It forms part of the lot. The defendant asserted adverse possession of the subject portion of Lot 994RP, not the entire Lot 994RP. 24.The plaintiffs were seemingly aware that there are other occupiers in Lot 994RP besides the defendant. In their pleading (at §3m), the plaintiffs referred to the letters of demand from their then solicitors on 4 July 2002 to “the occupiers of the suit portion, inclusive of the Defendant”. 25.The materials before me suggest that the plaintiffs were aware that part of Lot 994RP has always been occupied by Choi Senior and his family. As pleaded and found in the Judgment, the defendant was permitted to maintain the building structures erected by him on part of the original Lot 994 by virtue of a Modification of Tenancy (“MOT”). The permit was cancelled on the abovementioned date of 28 October 1978. Then in 1986, with the consent of Yu through his solicitors, the District Land Office granted the defendant a Short Term Waiver (“STW”) for him to convert his occupation to the operation of a shop on part of what then had already become Lot 994RP. It was the store that the defendant was occupying as at the date of commencement of this action. 26.The plaintiffs suggest that Choi Senior was in a similar situation. They disclosed by affidavit that another MOT was issued to Choi Senior for his maintenance of the building structures that had been erected for his occupation of other parts of Lot 994 (and Lot 995) in 1970. The permit was terminated in June 1980. With effect from 1 July 1985, a new permit was issued providing for Choi Senior’s occupation of those parts of what have become known by then as Lots 994RP and 995RP. 27.Also before me are the letters from the then solicitors for Yu to the District Land Office in 1985 expressing Yu’s consent to the occupation of part of Lot 994RP by Choi Senior. Then the letter dated 5 February 2004 from the District Land Office to the plaintiffs’ then solicitors explained the above history and confirmed that the new permit granted to Choi Senior with effect from 1985 is still valid. 28.As the plaintiffs deposed, they were advised and verily believe that Choi Senior and now his family members were and still are occupying, if at all, those parts of Lot 994RP with the consent of Yu and the plaintiffs. 29.In the circumstances, well before the amended statement of claim was filed in August 2007, the plaintiffs were aware that the defendant was not the sole occupier of the entire Lot 994RP; and that part of the lot was subject to occupation by others including Choi Senior (or his family). The permit issued to Choi Senior with effect from 1985 apparently remains effective. 30.Notwithstanding the above, the plaintiffs put forward their claim, alleging that the defendant was and is the occupier of the entire lot; and decided not to name any other occupier of the lot, whether known or unknown, as defendant. On pleading, there was no suggestion that all the other occupiers of Lot 994RP derived their occupation of the lot under the defendant so that an order against the defendant may be good against the others. In view of the evidence in respect of the occupation by Choi Senior and his family since the 1970’s, there could be no such suggestion as a matter of fact either. 31.When it came to the Judgment, the defendant was somehow said to be claiming that he and his family have been occupying “the Site” since 1962 (see the Judgment at §1). As defined in the Judgment, “the Site” was Lot 994RP. The defendant was eventually ordered to deliver up vacant possession of “the Site” to the plaintiffs. Such definition of “the Site” was adopted on appeal (see the CA Judgment at §2). 32.On the face of it, the description in the Judgment of the extent of the defendant’s claim is at variance with the defendant’s actual pleaded case. Eventually the order for possession against the defendant also covered the entirety of Lot 994RP, not just the portion of it that the defendant claimed to possess. 33.Having said the above, I however refrain from drawing any conclusion or I would run the risk of making unfair speculation or assumption without the benefit of the actual hearing that the trial judge and the appellate court had. I must also not lose sight of the fact that the defendant was legally represented both during the trial and the appeal. Should the above observation cause real concern about the legitimacy of the ambit of the order being sought, I expect counsel for the defendant would have raised that during the trial or the appeal. Whether Madam Chan should be joined 34.In any event, whether to make the order remains a matter of discretion of the court. As such, the discretion has to be exercised considering all the circumstances of the case. 35.Mr Chong (with Miss Wong) for the plaintiffs submitted that though not named as a defendant, Madam Chan and her family could have come forward and asked to be heard. They have not done so over the past years until now. 36.According to Choi Junior, Madam Chan is now 89 years old and has moved to an elderly care home since 2008. However he claims to be residing at his family home as before. In his first affirmation, Choi Junior was unequivocal in that the first time he came to know about the proceedings in this action was when he made enquiry with the bailiff upon the service of the writ for possession in March 2012. 37.The plaintiffs questioned how Choi Junior failed to notice the service of court documents in this action over the past years. In particular, they relied on the various affirmations of service previously filed. It was invariably deposed to in those affirmations that the court documents have been served, including by way of posting up at the conspicuous place at the “main entrance” of the lot. 38.There is no suggestion that the “main entrance” of the lot is or includes the door to where the Choi family resides in the lot. However I notice from the correspondence between the District Land Office and the solicitors for the plaintiffs in 2004 mentioned above that the MOT permits issued to Choi Senior in the 1970 and 1985 were not addressed to him either. Instead they were addressed to others in the vicinity for forwarding to Choi Senior. The last permit issued in 1985 was addressed to no one but the store of the defendant for forwarding to Choi Senior. There is no denial of receipt of those permits through the defendant by Madam Chan’s family. 39.The plaintiffs also produced a statement of Choi Soo Keung, who was supposed to be a witness for Chan at the trial. He was eventually not called. This Mr Choi is actually the younger brother of Choi Junior. The younger brother stated that he was approached to be a witness for the defence in this action because his elder brother informed the defendant’s family that he would be in Hong Kong during the time of the trial. 40.In response, Choi Junior in his second affirmation had to admit that his younger brother did inform him of the proceedings in this action. This was effectively a retraction of his earlier deposition that he had no knowledge about the proceedings in the present action until execution by the bailiff in March 2012. In court, Mr Cheung tried to explain the change but in my view unsuccessfully. 41.Then Choi Junior turned to explain that as the present action was directed against the defendant, he and his mother decided not to take any step. However, judging from the statement of his younger brother, I would be sceptical about any denial of knowledge by Choi Junior that the plaintiffs’ claim touched and concerned his family’s occupation of part of Lot 994RP. The essence of his younger brother’s statement (at §§7 and 8) was nothing but exactly an explanation of his family’s occupation of part of Lot 994RP. 42.Mr Chong also submitted that as far as the merits of the contentions of Madam Chan are relevant, her position should be no better than that of the defendant, in view of the analysis by the trial judge and the appellate court of the issue of animus possidendi required in proving adverse possession in the circumstances of this case. I think such observation is fair. 43.Further, the younger brother of Choi Junior in his statement acknowledged that his family came to know in the 1980’s from the MOT demands that registered owner of Lot 994RP is Yu; and that they have been meeting such demands to pay the annual land rent. As mentioned, the District Land Office confirmed in writing in 2004 that the MOT permit issued to Choi Senior with effect from 1985 is still valid. 44.Even assuming that Madam Chan has a possible cause for complaining that the order for possession was made to cover the part of Lot 994RP that has always been in the possession of her family without her being heard, I do not see how this court is in a position to set aside the Judgment. The Judgment is one delivered after trial. It is not for the trial judge, let alone any other court of the same level, to set it aside. 45.Mr Cheung for Madam Chan relied on O.35, r.2(1) which provides that any judgment or order obtained where one party does not appear at the trial may be set aside by the court on the application of that party. The rule is irrelevant. It does not cover a situation where a person is not a party to the action that has been tried. Reading it in conjunction with O.35, r.1 (which stipulates what the judge may do if both parties or one of them fails to appear) should leave one with doubt about such understanding. This, I believe, explains why only 7 days after trial are allowed for the absent party to make an application under that rule. 46.Of course, the Judgment went to appeal; and the Court of Appeal affirmed it. The CA Judgment is binding on this court. What Madam Chan now seeks to do is to impeach the CA Judgment by this court that is not allowed by law. 47.Mr Chong for the plaintiffs submitted that Madam Chan should have considered commencing a new action for her purpose instead of seeking to join in this action at this stage. Inevitably the new action will raise the issue of the plaintiffs’ entitlement to the part of Lot 994RP that was and is in the possession of her family. Mr Chong submitted that the principle of res judicata (even in its broad sense) would not stand in the way of Madam Chan, who is not a party to this action. 48.If the suggestion by Mr Chong is followed, I would expect the question of multiplicity of legal proceedings would still arise. The suggestion was not hinted in Mr Chong’s written submission but only during the hearing. In the absence of sufficient argument, I refrain from expressing any conclusive view on the feasibility of a fresh action. 49.Anyway Mr Cheung for Madam Chan did not agree to commence a fresh action. Instead he proposed the alternative of an application to the Court of Appeal for leave to appeal to the Court of Final Appeal. This again impressed me as being an ad hoc suggestion during the trial. Mr Cheung was unable to refer to the basis for such an application to be made in accordance with the rules of court. Conclusion 50.Being the applying party, Madam Chan has the burden to satisfy this court that she ought to be joined. As mentioned, Madam Chan is not seeking to be joined because of her interest in the execution proceedings. For her purpose of setting aside the Judgment (and necessarily the CA Judgment) so as to enable her to re-open the case concerning the part of Lot 994RP occupied by her family, I am not satisfied that joining her at this stage would be proper exercise of discretion in all the circumstances of the case. ORDER 51.The summons filed on 2 April 2012 by Cheng and that filed on 3 April 2012 by Madam Chan are both dismissed with costs to the plaintiffs. Costs shall be taxed, if not agreed, with certificate for counsel. The costs order is nisi; and shall become absolute in the absence of application within 14 days to vary.
Mr K M CHONG and Miss Emma WONG instructed by Messrs K M Lai & Li for the plaintiffs The 1st intended party, in person, present Mr Albert K H CHEUNG instructed by Messrs Louis K Y Pau & Company for the 2nd intended party Note: Interpreter’s assistance could be provided to the 1st Intended Party in receiving this decision. Please refer to HCMP2799/2012 for the relevant appeal(s) to the Court of Appeal. | |||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under DCCJ 5488/2003