Grand Wayfair Investment Co Ltd v. Chan Yung Kan and Others

CACV 238/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 238 OF 2013

(ON APPEAL FROM HCA NO. 558 OF 2007)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.By our judgment handed down on 26 September 2014, we dismissed the appeal by the plaintiff. The plaintiff applied on 23 October 2014 for leave to appeal to the Court of Final Appeal. The plaintiff did not contend that it could have leave as of right. Instead, the plaintiff sought leave on the basis that the intended appeal raises questions of great general or public importance [“GPI”]. It also relied on the “otherwise” limb in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

2.Pursuant to directions given on 3 November 2014, parties have filed submissions on the application and it can be disposed of on paper.

3.Unfortunately, those responsible for drafting the plaintiff’s notice of motion of 23 October 2014 did not formulate the GPI questions concisely.  Some of the questions are rather general propositions. We do not propose to reproduce in this judgment the full text of those paragraphs under which 5 questions were put forward. Instead, we would simply adopt the numbering in the notice of motion in addressing each of them.

4.Question (1) is about the effect of an unexecuted judgment for possession in the continuity of possession by a squatter.  Though we discussed this topic at paragraphs 26 to 30 in respect of the 1993 judgment, on the overall picture of the present case, the point is not a pivotal one.  In any event, the 2^nd defendant has sufficient period of adverse possession after 1993 since the plaintiff only commenced the present action in March 2007.  Mr Chan tried to have the benefit of both worlds by arguing that the relevant limitation period should still be 20 years instead of 12 years because the defence case of possession commenced earlier than 1991.  We do not think his contention is reasonably arguable.

5.Further, notwithstanding his further research, Mr Chan still fails to produce any authority to demonstrate that his contention of break of continuity of possession by an unenforced judgment is arguable. The authorities cited in our judgment are against him and nothing said by Mr Chan since our judgment has caused us to doubt our analysis at paragraphs 26 to 30 as a matter of principle. The contention of Mr Chan is not reasonably arguable.

6.Though it was dressed up as a question related to joint adverse possession, in substance question (2) is a point about the joint defence filed on behalf of the 2^nd and 3^rd Defendants.  As a matter of findings of fact, the judge had found (upheld by us) that the 2^nd Defendant had been in exclusive possession of the land since 1973, see paragraphs 31 to 36 of our judgment.

7.We do not see how the paragraphs cited by Mr Chan from the joint defence can support his claim that the 2^nd Defendant had admitted against his interest that he was not in exclusive possession after 1973.  In any event, at the highest the joint defence can only constitute part of the evidential matrix and how it was assessed against the overall evidence adduced at the trial can hardly be a GPI question.

8.Question (3) is about the transitional provision in s38A of the Limitation Ordinance.  As discussed above, the fallacy in Mr Chan’s argument is that he tried to blow hot and cold.  If he sticks to his primary case that there was a break in the continuity by the 1993 judgment (which we rejected), the adverse possession started to run again in 1993 and the relevant period is 12 years.  If he shifts to the case where there had not been any break in continuity in 1993, then the adverse possession started to run much earlier and there is certainly more than 20 years.  Thus, the contention raised by Mr Chan is a non-starter.

9.Question (4) is on the proper form of relief to a squatter.  It does not arise from our judgment since we set aside the declaration granted by the judge for the reasons we gave at paragraphs 46 to 49 of our judgment.  Neither can we see the basis for suggesting that there is any GPI question there.

10.Question (5) is a general question on how the court should approach expert evidence.  Mr Chan did not argue this as a GPI question in his written submissions.  Instead, he submitted that the treatment of expert evidence in the present case give rise to a case for leave to be granted on “the otherwise limb”.  This was taken together with other points relating the judge’s assessment of evidence.  We fail to see any merit in such line of argument.

11.We agree with Ms Gwilt that the application is utterly devoid of merit and it is appropriate to dismiss it with indemnity costs, see Sun Crown Trading Ltd v Holyrood Ltd FAMV 27 of 2014, 15 Oct 2014. Solicitors for the 2^nd defendant had lodged a statement of costs seeking costs in the sum of $222,200.  Deducting $50,000 (on account of the fact that we did not hold an oral hearing), bearing in mind the basis on which we order costs, we fix the costs of the 2^nd Defendant at $172,200.

Mr Kenneth CL Chan and Mr Billy NP Ma, instructed by Alfred Lam, Keung & Ko, for the plaintiff

Ms Angela Gwilt and Mr Leo Lui, instructed by YC Chow & Co, for the 2^nd defendant