Tsoi Ping Hung and Another v. Cheung Chow Lan and Others

DCMP 1884/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1884 OF 2012

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DECISION

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1.This trial involved the claim by the plaintiffs against the defendants for possession of a portion of the property known as the Remaining Portion of Lot No 2020 in Demarcation District No 76, North New Territories, Hong Kong (“Lot 2020 RP”).  The portion of Lot 2020 RP in dispute was identified by the parties in an agreed plan marked as Part 1 and Part 2.  The defendants’ defence to the plaintiffs’ claim was adverse possession.

2.After trial, I handed down my written judgment on 17 January 2014 (“the Judgment”) whereby I gave judgment in favour of the plaintiffs regarding Part 2.  I also dismissed the counterclaim by the defendants in that regard.

3.By summons dated 14 February 2014, the defendants apply for leave to appeal against the Judgment.

4.In their Skeleton Submissions, the defendants have set out 2 grounds of appeal.  Ground 1 on whether the defendants did obtain factual possession of Part 2 before 3 August 2000.  Ground 2 on whether the defendants had the necessary intention to possess Part 2 before 3 August 2000. Both of the 2 grounds relate to findings of fact by the court.  As pointed out in paragraph 17 of the Judgment, the question of intention to possess, as with any other question of intention, is one of fact.

5.Under section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal should not be granted unless the intended appeal has a reasonable prospect of success, or the matter in the interests of justice ought to be heard by the appellate court.

6.There is no dispute between the parties that to meet the “reasonable prospect of success” test, an applicant for leave to appeal is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although the applicant does not have to demonstrate that the appeal will probably succeed.

7.Regarding findings of fact made by a trial judge, the Court of Appeal would not intervene unless satisfied that the conclusion reached by the trial judge on the facts was “plainly wrong” [see: Ting Kwok Keung v Tam Dick Yuen & Others [2002] 3 HKLRD 1].

8.In paragraph 18 of the Judgment, I have pointed out that where the occupier has 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 some scepticism. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the court would usually accord to them considerable weight.

9.I have done precisely that in paragraphs 24 to 26 and 31 of the Judgment, regarding what was stated in paragraph 14 of the 2^nd defendant’s first witness statement. That alone is sufficient to dispose of both issues (i.e. factual possession and intention to possess) against the defendants. I do not see how I can be said to be “plainly wrong” in adopting that approach.

10.Further, I do not consider it to be arguable, with a reasonable prospect of success, that a 2 feet wide and 32 inches deep ditch formed a natural barrier that would keep intruders away in all the circumstances, as contended by the defendants.

11.In the circumstances, I am not satisfied that the intended appeal by the defendants has a reasonable prospect of success.  Further, there is no basis for giving leave under the second limb of section 63A(2) of the District Court Ordinance in the circumstances of the present case.

12.Accordingly, the defendants’ application under the summons is dismissed.

[Discussion re costs]

13.I order that the costs of the application be paid by the defendants to the plaintiffs. Such costs to be taxed, if not agreed, with certificate for counsel.

Mr Lee Yee Hung, instructed by Reimer & Partners, for the plaintiffs

Mr Yip Kim Ming, Francis, instructed by Ko & Chow, for the defendants