To Wai Sing v. To Hung Tai and Another

HCMP 533/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 533OF 2011

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Between

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D E C I S I O N

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1.This is D1’s (the nomenclature employed in the judgment dated 18 February 2014 (“Judgment”) will be adopted herein) application for a stay of execution of the Judgment pending appeal against the same (“Appeal”), which is due to be heard in July this year.

2.The guiding principles for an application of this type are trite and undisputed.  This court is required to have an appreciation of the merits of the Appeal to begin with.

3.Doing the best I can to be objective, and recognising that I may be wrong however convinced I am as to the correctness of the Judgment, in examining the 6 grounds of appeal (“Grounds”) advanced in the skeleton arguments of Ms Wong, who appears for D1, I am of the view that the Appeal is barely arguable. 

4.In light of the Appeal, it would not be appropriate for lengthy reasons to be provided on my view on the merits of the same.

5.In respect of the complaint concerning the refusal of the application made on the first day of trial for a site inspection (Ground 1), it has to be borne in mind that there were 2 case management conferences and 1 pre-trial review.  It was never suggested that there was any need for a site inspection.  The orders of the court provided for any interlocutory application to be taken out well before trial.  Further, from the transcript of the trial, one can see whether a meritorious application was properly made out. 

6.In this application (not cited at the trial), Ms Wong relied upon Tito v Waddell [1975] 1 WLR 1303.  The facts of that case are quite unique.  In any case, it was decided nearly 4 decades ago.  With great respect, what was said by Mr Justice Megarry in that case will have to be considered in light of the advancement in case management by the court and the modern ethos in just and expeditious resolution of litigation. 

7.Grounds 2 and 3 concern the assessment by the court of D1’s case.  It cannot be controversial that his case was that he resided in the Storage since 1972 (Judgment, p 21Q).  I have a good deal of reservation why he can be permitted to shift his stance.

8.As to the termination (by operation of law) of the licence granted to TCS in 1974 (Ground 4), it is premised upon a misunderstanding of the Judgment.  There is no suggestion in the Judgment that all along D1’s possession of the Storage was premised upon the said licence.  Hence, I cannot see how this point can assist D1’s case.  He was required to discharge the burden of proof over the alleged adverse possession, which he had failed.

9.The challenge over the court’s finding on the credibility of D1 (Ground 5) is unconvincing.

10.Finally, I agree with Mr Lau, who appears for P, that the acknowledgment of title point (Ground 6) was made to deal with an additional argument (some may say an opportunistic one) raised by Ms Wong based on the evidence adduced at the trial (Judgment, para 96).  I cannot see how the point assists the Appeal. 

11.Despite my reservation over the merits of the Appeal, and at the risk of erring in favour of D1, I believe that this application should, on balance, be granted given the following. Firstly, a refusal may result in the demolition of, inter alia, the Storage and there is evidence that once demolished the government will not allow it to be rebuilt.  I have not overlooked Mr Lau’s submission that it is unlikely for any demolition to be carried out prior to the hearing of the Appeal.  However, there is no assurance given to the court that no action of such kind would be carried out pending the resolution of the Appeal. Secondly, the hearing of the Appeal is not very far away and there is no suggestion of any urgency in recovering possession of the Land by P.

12.Accordingly, I grant the order sought in the Summons dated 7 March 2014 as amended upon the undertaking given to the court by D1 to prosecute the Appeal with all due expedition. 

Mr Roland Lau, instructed by So, Lung & Associates, for the plaintiff

Ms Emma Wong, instructed by Wong & Co, for the 1^st defendant