Chui Kwok Ying v. Yue Sing Loong and Others

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 19 OF 1972

(On appeal from O.J. 1305/1968)

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Coram: Huggins & Leonard, JJ.

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JUDGMENT

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Huggins, J.:

1.  This was an action for injunctions on the ground of alleged trespass by the Appellants. The respondent plaintiff alleged that he was the present owner of the property,which he had acquired by purchase from a Madam WONG Po-hong. He alleged that Madam WONG Po-hong purchased upon a sale by a mortgagee, KWAN Kai-ming. The mortgage had been assigned to KWAN Kai-ming by HO Shun-hing and had been originally created on 18th May 1940 by the Sui Fong Cinema Co. Ltd. four days after the purchase of the property by the company. The mortgage was registered on 25th May 1940. The appellant defendants alleged that they were either tenants or sub-tenants of the company of parts of the property. Not one of them alleged that his tenancy commenced prior to 25th May 1940. What they did allege was that the sale by the mortgagee, KWAN Kai-ming, to Madam WONG Po-hong was void on the ground of fraud and they referred to an action between other parties in which this matter was raised. The writ in that action had been registered as a lis pendens in the Land Register but the lis pendens was subsequently vacated.

2.  It is unfortunate that at the trial the learned judge saw fit to dispense with the attendance of a shorthand writer. In cases where parties appear in person it is especially desirable that there should be the fullest possible note of what takes place before a judge. In this case the notes leave much to be desired and we have not found it easy to ascertain what did take place at the trial.

3.  We do know that upon the pleadings, which I have tried to outline, the Appellants were called upon to begin and to prove their case. The Plaintiff called no witnesses but tendered as evidence a scaled copy of the consent order vacating the lis pendens to which I have referred. These documents did not constitute proof of the Plaintiff’s title and the first question we ask ourselves is whether it was necessary to prove the title, having regard to the state of the pleadings. In this regard we must not lightly assume that the learned judge wrongly regarded the documents as being proof of title: rather we must take it that he thought that the title was admitted subject only to the allegation of fraud. It is true that para.5 of the Defence put the Plaintiff to strict proof of her alleged interest in the property, but para.4 of the Defence was inconsistent with that. It read:

“ If (which is not admitted) the Plaintiff derived her title to the said property in suit through the said Madam Wong Po Hong, the Plaintiff’s title is therefore wholly dependent on the ultimate determination of the said Original Jurisdiction Action.”

4.  The words “her title” suggest that she had a title and the statement that it was wholly dependent on the ultimate determination of the lis pendens was an implied admission of the rest of the title, and this paragraph clearly led the judge and both parties to proceed on that basis. We say “both parties” because in their Notice of Appeal the Appellants referred to the cinema company as “the former landlord of the premises”. The learned judge had clearly made an implicit finding that the present landlord was the Plaintiff. There was support for his assumption that the Plaintiff’s title was in order in the fact that the lis pendens had been vacated by consent.

5.  The finding that the present landlord is the Plaintiff has not been challenged in the Notice of Appeal. It was undoubtedly for the Appellants to prove that they were tenants, and the learned judge expressly disbelieved the evidence given on their behalf. It is therefore not necessary for us to consider the question, about which there might have been considerable difficulty, whether the Appellants had acquired an estate in the property, they having taken their tenancies after 25th May 1940 – that being the date on which a mortgage, the terms of which we do not know, was alleged to have been registered.

6.  It is not possible for us to say that the learned judge came to a wrong conclusion in disbelieving the evidence given on behalf of all the Appellants as to the existence of the tenancies. This was particularly a matter for him – he heard and saw the witnesses and, as I say, we cannot hold that he was wrong.

7.  We must add that the Defence, which had been prepared by solicitors, raised no issue under the Limitation Ordinance, a fact which we mention because the second ground of appeal alleged:

“That the learned trial judge misdirected himself because from the evidences produced in Court the majority of the defendants have been in the subject matter doing lawful businesses under records in the Government and paying fees and duties to the Government for over twenty years or thereabouts and that the allegation by the plaintiff that the Appellants trespassed on the subject matter is not justified and it is owing to this that no injunction order should be made against the Appellants”.

8.  In all these circumstances we find no reason to upset the judgment of the learned judge and we dismiss the appeal. We propose to make no order as to costs.

24th October, 1972.