To Hin Cheung and Others v. All Occupier(S) of a Portion of Lot No 240 in Demarcation District No 128, Yuen Long, New Territories Hong Kong and Another

HCMP 1692/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1692 OF 2013

(ON AN INTENDED APPEAL FROM DCMP NO. 1288 OF 2011)

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DECISION

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Hon Chu JA (giving the decision of the Court):

1.This is an application by the 2^nd defendant for leave to appeal against the Judgment of His Honour Judge Wilson Chan (“the Judge”) given on 16 April 2013.

2.The plaintiffs are the registered owners of Lot No. 240 in D.D. No. 128, Yuen Long, New Territories. The 2^nd defendant is an occupier of a portion of the property, which is coloured green on the plan annexed to the Statement of Claim (“the Subject Portion”).

3.By the Judgment, the Judge ordered the 2^nd defendant to deliver to the plaintiff vacant possession of the Subject Portion. He dismissed the counterclaim for declaratory relief that the 2^nd defendant has acquired a possessory title to the Subject Portion by adverse possession. The 2^nd defendant’s application for leave to appeal to the Court of Appeal was heard and dismissed by the Judge on 28 June 2013.    

4.We consider this is an appropriate case to exercise our powers under Order 59 rule 2A(5)(a) of The Rules of the High Court, Cap. 4A to determine the application for leave to appeal on the basis of written submissions without an oral hearing.

5.Section 63A(2) of the District Court Ordinance, Cap. 336 provides that leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard.

6.The basis of the 2^nd defendant’s defence to the plaintiff’s claim for vacant possession and his counterclaim is that he has acquired possessory title to the Subject Portion by adverse possession. His pleaded case is that he has been in continuous occupation of the Subject Portion since mid-1997. Specifically, he says that he and his former business partner, Mr Lee Siu Bun (“Mr Lee”), started occupying the Subject Portion in June 1997 pursuant to a written agreement that Mr Lee made with one Madam Tsim Yuk Lan.  The 2^nd defendant and Mr Lee operated a kennel for breeding dogs on the Subject Portion. Mr Lee quitted in July 2001 and the 2^nd defendant has since operated the kennel by himself with the assistance of his girlfriend Ms Hui. It is also the 2^nd defendant’s evidence that he has since 1997 been living in the Subject Portion.

7.In support of his case, the 2^nd defendant had adduced at the trial: (i) two receipts for supply of dog food dated 8 October and 25 November 1997; (ii) an invoice dated 22 November 2001 for purchase of angular bar and steel wire; (iii) several dog licences dated 17 June 2002; (iv) an electricity bill dated 4 April 2002 issued to Mr Lee; and (v) various electricity bills dated 4 April 2007, 4 December 2008, 4 June 2009 and 8 April 2010 that are issued to the 2^nd defendant.

8.The Judge doubted the credibility of the 2^nd defendant and found him not a reliable witness. He did not accept the 2^nd defendant’s evidence that he has since 1997 been living in the Subject Portion and operating a kennel. He held that the 2^nd defendant has failed to make out a case of adverse possession.

9.The 2^nd defendant put forward four grounds of appeal in the draft Notice of Appeal. Ground 1 complains that the Judge erred in finding the 2^nd defendant not a reliable witness. It is trite law that it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness: Benmax v. Austin Motor Co Ltd [1955] AC 370, 375 quoted in Ting Kwok Keung v. Tam Dick Yuen & Ors (2002) 5 HKCFAR 336, para.35. And as Godfrey JA had stated clearly and emphatically in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657 at 663F-I, an appeal to the Court of Appeal is a re-hearing on the papers, the appeal court will not usurp the function of the trial judge to find the facts, and it is not enough to show there is little evidence to support the judge’s finding or that it was contrary to the weight of the evidence. What weight should be given to particular evidence is a matter for the trial judge.

10.The 2^nd defendant contends under Ground 1(a) and (b) that the Judge should not equate zero consumption as shown in the electricity bill dated 4 April 2002 (item (iv) in paragraph 7 above) with no consumption of electricity and had given undue weight to the 2^nd defendant’s inability to explain why the bill shows no electricity consumption. In our view, the submission that the Judge could not infer from the bill that there was no electricity consumption in the absence of evidence showing that the meters were working properly and/or had not been tampered with is untenable when this is a document produced and relied upon by the 2^nd defendant. We are also in agreement with the Judge’s reasoning that it is inexplicable for the electricity bill to show no electricity consumption for a continuous period of 17 months, including the summer months, if the Subject Portion was indeed used as a kennel for dog breeding. The fact that the account was at the time held under the name of Mr Lee and that the 2^nd defendant said in evidence that Mr Lee paid for the electricity charges is irrelevant. Similarly, the Gift Agreement dated 4 July 2001 between Mr Lee and the 2^nd defendant is irrelevant to this issue.

11.Ground 1(c) says that the Judge erred in taking into account and/or attaching undue weight to the 2^nd defendant not producing more documentary evidence than he had. As the Judge rightly pointed out, the onus is on the 2^nd defendant to prove his case of adverse possession, including his assertion that he has since 1997 been in continuous occupation of the Subject Portion. The Judge was therefore entitled to have regard to the quality and sufficiency of evidence adduced by the 2^nd defendant. Further, the onus is not on the plaintiff to prove that the 2^nd defendant cannot possibly have been in continuous occupation of the Subject Portion since 1997. Accordingly, the 2^nd defendant’s argument that because the plaintiffs had not adduced documentary evidence to show they have been in occupation or possession of the Subject Portion after 1999, the Judge was wrong to have taken into account the lack of contemporaneous documentary evidence to support his case is misplaced.  

12.Grounds 1(d) and 2 complain that the Judge was wrong to consider there was no witness to corroborate the 2^nd defendant’s case. The Judge pointed out in paragraph 16 of the Judgment that although the 2^nd defendant claimed there were villagers who knew of his occupation of the Subject Portion and Ms Hui also lived on the Subject Portion and had helped him to operate the kennel; he did not call any of these people as his witness. The Judge went on to observe that the net result is that the 2^nd defendant’s case remains uncorroborated and depends largely on his credibility and concluded that, for the reasons given, he did not find him a reliable witness. We do not read this part of the Judgment as requiring the 2^nd defendant to adduce corroborative evidence or drawing adverse inference against his credibility for failing to call witness to corroborate his evidence. The Judge was merely explaining that the 2^nd defendant’s case relies primarily on his credibility as witness, and since he is not a reliable witness, his case is not made out.

13.Under Grounds 3 and 4, it is said that the Judge failed to consider the contemporaneous documents produced by the 2^nd defendant and the inherent probabilities of his case and also failed to make findings and give adequate reasons for rejecting the 2^nd defendant’s case. The pleaded case of the 2^nd defendant is that he has since 1997 been in continuous occupation of the Subject Portion. His evidence is that he has been living in the Subject Portion every day from 1997 onwards (paragraph 14 of the Judgment). The documents produced by the 2^nd defendant, however, barely support this allegation. The Transfer Agreement between Mr Lee and Madam Tsim on the face of it does not relate to the 2^nd defendant. The two receipts for dog food relate only to two months in 1997 and there is no available evidence in the case to connect the address stated on it to the Subject Portion. The Gift Agreement can only show Mr Lee had given to the 2^nd defendant the structures and land mentioned in it. There is however no evidence to link the address stated in it to the Subject Portion. More importantly, it does not show the 2^nd defendant to have lived and operated a kennel at the Subject Portion. As to the aerial photograph dated 2002, in the absence of expert evidence, it simply cannot be said to be supportive of the 2^nd defendant’s case.                     

14.The core issue of whether the 2^nd defendant has been in continuous occupation since 1997 relies mainly on the 2^nd defendant’s evidence and his credibility. Upon the Judge concluding that the 2^nd defendant is not a reliable witness, a view that he is entitled to for the reasons he had given, the 2^nd defendant’s allegation that he has been in continuous occupation since 1997 is not made out and his defence and counterclaim cannot stand. In these circumstances, it is not incumbent upon the Judge to dwell further and make other finding of facts.                                 

15.For the above reasons, we are not satisfied the threshold criterion for giving leave to appeal is met.  We refuse leave to appeal and make a further order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

16.We also make an order nisi that: (i) the 2^nd defendant pays the plaintiffs’ the costs of this application, which is assessed on a gross sum basis at $13,000; and (ii) the 2^nd defendant’s own costs be taxed under the Legal Aid Regulations. In making the assessment, we take into account that the grounds of appeal and the arguments in the present application are substantially the same as those in the leave application made to the Judge. Any party dissatisfied with the costs order nisi may apply in writing to vary the order within 7 days from the date of the handing down of this Decision, setting out the variation sought and the grounds relied upon. The opposing party shall serve its response within 7 days thereafter.

Written submissions by Mr Wilfred Tsui, instructed by Kelvin Cheung & Co, for the plaintiffs (respondents).

Written submissions by Mr Lawrence Ngai, instructed by S H Chou & Co, for the 2^nd defendant (applicant).