Yu Kit Chiu and Another v. Chan Shek Woo t/a 陳潮昌士多

DCCJ 5488/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

________________________

________________________

____________________________

REASONS FOR DECISION

_____________________________

1.In September 2003, the plaintiffs commenced the present action against the defendant for possession of land Lot 994RP in DD 115, New Territories, and damages for trespass. The defendant, by his guardian ad litem, put up a defence and counterclaim, asserting adverse possession.

2.The case lasted for years.  After trial, HH Judge Mimmie Chan (as she then was) handed down her judgment on 22 March 2010 (“the Judgment”) whereby she found in favour of the plaintiffs and, among other things, gave the order for possession of Lot 944RP.  The defendant’s appeal against the Judgment was dismissed by the Court of Appeal on 18 February 2011 (“the CA Judgment”).

3.Writ of possession (and fieri facias combined) followed, in execution of the Judgment.  Then the 1^st intervening party (“Cheng”) and the 2^nd intervening party (“Madam Chan”) applied to be joined as parties in this action.

4.After hearing, I handed down my written decision on 26 July 2012 whereby I dismissed the applications by Cheng and Madam Chan with costs to the plaintiff (“the Decision”).

5.On 14 August 2012, Cheng and Madam Chan applied by summons for, among other things, further stay of execution of the writ of possession.  As before, Cheng was unrepresented.  As to Madam Chan, she was represented by solicitors and counsel during the last hearing before this court.  However the applications since then have been taken out by Choi Ka Yan (“Choi”) as the “授權人” (or authorised representative) of Madam Chan.  Further Choi appeared in person before the master then.

6.The applications were heard before the master on 24 August 2012.  The master granted the stay of execution of the writ of possession until further order on condition that Cheng and Madam Chan took out their respective applications for leave to appeal against the Decision.  This Cheng and Madam Chan (again purportedly by Choi) did by their summons dated 29 August 2012 and 27 August 2012 respectively.

7.During yesterday’s hearing, Madam Chan was absent but Choi again appeared.  According to her, she is Madam Chan’s daughter.  She produced a letter of authorisation by Madam Chan and a doctor’s certificate.  Because of her advance age (said to be over 90) and health condition, Choi has been authorised to represent Madam Chan.  She also produced a notice to act in person.  I was reluctant to accept such representation of an absent litigant in person.  Nevertheless, in the absence of objection from the plaintiffs, as confirmed by counsel, and for completeness, I allowed Choi to speak.  In any event, what she spoke about did not actually differ from what were already set out in the summons and affirmation.

8.Counsel confirmed that no issue was taken as to whether the applications for leave to appeal were out of time.  At the conclusion of the hearing, I dismissed the applications with costs to the plaintiffs (to be taxed, if not agreed, but without certificate for counsel).  Accordingly I should and did lift the stay of execution of the writ of possession.  As indicated, I now give my reasons.

LEAVE TO APPEAL

9.Unless the intended appeal has a reasonable prospect of success or in the interest of justice the case ought to be heard by the appellate court, leave to appeal shall not be given: see section 63A(2) of the District Court Ordinance, Cap 336.  It is the burden of the applying party to demonstrate that either or both of the 2 limbs of the section are satisfied.

CHENG

10.Cheng’s last application before me was already his repeated application to be joined as a party.  As explained, that was strictly abuse of legal process (see §§12-13 of the Decision).  Further, in the absence of any affirmation in support or submission during the hearing, Cheng’s application had to be dismissed (see §§14-17 of the Decision).

11.Differing from the past, Cheng has filed an affirmation in support of his present application for leave to appeal.  The affirmation sought to assert the history of his father’s occupation in the lot and his lack of knowledge about the legal proceedings in the present case.  In other words, Cheng sought to adduce fresh evidence for the purpose of his intended appeal.

12.Cheng will have to overcome the hurdle under O.59, r.10(2) of the Rules of the High Court which stipulates that no further evidence (other than evidence as to matters which have occurred after the date of the hearing) may be received on the hearing of an appeal except on special grounds.  By special grounds, the court would effectively look to see if the conditions in laid down in Ladd v Marshall [1954] 1 WLR 1489 are satisfied, namely:

(1) the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(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;

(3) the evidence must be such as is inherently not improbable.

See Hong Kong Civil Procedure 2012 (Vol.1) at 59/10/8.

13.Considering the sketchy affirmation Cheng now relied on and all the circumstances (some of which were equally discussed in respect of Madam Chan’s case), I am not satisfied that the above conditions are satisfied.

14.I am not satisfied that Cheng demonstrated a reasonable prospect of success in the intended appeal.  Nor was the alternative limb of section 63A(2) demonstrated. Cheng’s application was therefore refused and dismissed.

MADAM CHAN

15.As explained, I was not satisfied that joining Madam Chan at this unusual stage would be proper exercise of discretion in the following circumstances of the case:

(1) I am sceptical about the assertion of lack of knowledge about the legal proceedings in the present case for all these years since 2003 (see §§35-41 of the Decision).

(2) Even assuming that the assertion mentioned in (1) above is true, I believe the merits of Madam Chan’s contention would likely be no better than those of the defendant.  In particular, the defendant’s assertion of animus possidendi in the alleged adverse possession of the lot was contradicted by the facts (see the Judgment, the CA Judgment, §§25-29; 42-43 of the Decision).

(3) In any event, Madam Chan cannot expect to be joined as a party for the purpose of seeking to set aside the Judgment and necessarily the CA Judgment so as to re-open the case concerning the part of Lot 994RP occupied by her family (see §§44-46 of the Decision).

16.By the affirmation now filed in support of the application for leave to appeal, the alleged lack of knowledge about the legal proceedings in the present case and the alleged history of occupation in the lot were repeated.  Repetition of the allegations does not afford Madam Chan with a reasonable prospect of success in the intended appeal, particularly in view of the observations mentioned in paragraph 15 (1) and (2) above.

17.Madam Chan also sought to capitalise my observation about the ambit of the order for possession.  It was suggested that the Judgment was “irregular”.  I could not agree.  What Choi has not recited was that I specifically warned myself against drawing any conclusion in this respect (see §§22-23; 29-33 of the Decision).  After trial, and confirmed by the appellate court, the Judgment could hardly be categorised as “irregular”.

18.More fundamentally, I am not convinced that joining Madam Chan (or Cheng) at this level and at this stage is the proper way to surmount the hurdle mentioned in paragraph 15(3) above, assuming that it is surmountable.

19.In the circumstances, I do not see a reasonable prospect of success in the intended appeal against the Decision.  Nor am I satisfied that the Decision ought to be considered by the appellate court on the alternative limb of section 63A(2).  I therefore refused to give leave to appeal and dismissed the application.

COSTS

20.Considering the applications and the grounds put forward, I declined to certify the engagement of counsel for the plaintiffs (who was neither the leading nor the junior appearing in the last hearing) but without compromising my gratitude for his assistance.

Mr Ernest Koo instructed by Messrs K M Lai & Li for the plaintiffs

The 1^st intended party, in person, present

The 2^nd intended party, in person, absent (but appearing by representative CHOI Ka Yan)

Note: Interpreter’s assistance could be provided to the parties in receiving these written reasons for decision.

Please refer to HCMP2799/2012 for the relevant appeal(s) to the Court of Appeal.