Sham Oi Yun and Others v. Ma Ching Wah

HCMP 1491/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1491 OF 2015

(ON APPEAL FROM DCCJ NO. 2047 OF 2014)

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JUDGMENT

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

1.This is the 1^st-named Plaintiff’s application for leave to appeal against the judgment of Deputy District Judge WK Wong [“the Judge”] on 24 December 2014 in DCCJ 2047 of 2014. By that judgment, the Judge refused to grant summary judgment to the 1^st-named Plaintiff for the possession of RP of Lot 369 in Demarcation District No 3, Lamma Island and mesne profit.

2.The 1^st-named Plaintiff applied for leave to appeal against that judgment and such leave was refused by the Judge on 5 June 2015.

3.The 1^st-named Plaintiff now renews the application for leave before us.

4.As has been said before, a party appealing against a refusal of summary judgment carries a high burden, see Treewell Development v Tsang Chun Wah [2003] 4 HKC 401 at §10; Xpoly Recycling Ltd v Gold Leader Enterprises Ltd [2011] 4 HKLRD 230.

5.The Defendant claimed that he held a tenancy in respect of the land from a co-owner of the predecessor-in-title of the 1^st-named Plaintiff.  The Judge held that there was a triable issue as to whether the person who agreed with the Defendant to grant the tenancy was an agent of the co-owner.

6.Though there is no direct evidence, in the circumstances of the present case as highlighted by the Judge in his judgment, we are of the view that there is sufficient basis for him to hold that there is a triable issue in respect of the authority of Shum Kwok Leung.

7.Mr Ho also tried to persuade us that as a matter of law the 1^st-named Plaintiff would still be entitled to recover possession based on the previous tenancy between the 1^st-named Plaintiff’s predecessor in title and the Defendant.  Counsel cited a number of authorities to support his contention.

8.We have read those authorities and we do not think any of those authorities go as far as Mr Ho suggested.  There may be room for argument but it is not a suitable point to be resolved in a summary context.  This being the case, this point cannot afford a reasonable ground for an Order 14 appeal against the refusal of summary judgment.  

9.In the circumstances, it is plain to us that the intended appeal has no reasonable prospect of success and there is no other reason in the interest of justice to grant leave to appeal.  The 1^st-named Plaintiff’s intended appeal does not satisfy the requirement in Section 63A(2) of the District Court Ordinance.

10.We therefore refuse to grant leave and dismiss the 1^st-named Plaintiff’s summons of 19 June 2015.

11.We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), the Rules of the High Court, we make an order that no party may request our refusal of leave to be reconsidered at an oral hearing inter partes.

12.We also order the 1^st-named Plaintiff to pay the Defendant’s costs.  Solicitors for the Defendant have lodged a statement of costs in the sum of $77,803 of which $36,000 is counsel fee.  Having considered the statement of costs and the reasonable amount of work on this application, we fix the costs at $54,000.

Written submissions by Mr Simon Ho, instructed by David YY Fung & Co, for the 1^st-named plaintiff

Written submissions by Mr Albert Cheung, instructed by KC Ho & Fong, for the defendant