CHEUNG KWAN KEI v. CHEUNG KWAN FAI

DCCJ 838/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 838 OF 2008

________________________

BETWEEN

CHEUNG KWAN KEI (張均祺) Plaintiff

and

CHEUNG KWAN FAI (張均輝) Defendant
________________________

Before: His Hon Judge Leung in Chambers (open to public)

Date of Hearing: 14 August 2012

Date of Decision: 16 August 2012

________________________

D E C I S I O N

________________________

1. The plaintiff commenced this action to evict his brother, the defendant, from the residential property at Yen Chow Street, Kowloon(“the Property”). By written decision dated 11 March 2009 (“the Decision”), this court gave summary judgment in favour of the plaintiff against the defendant for possession of such part of the Propertyas might be occupied by the defendant and mesne profits for his occupation of the same to be assessed.

2. The plaintiff made the appointment for the assessment of mesne profits some 2 years later. After hearing, this court handed downthe written judgment on 11 June 2012 (“the Judgment”) whereby the defendant was found to be liable to pay mesne profits for his occupation of the Property during the period between1 March 2008 to the end of May 2009. The defendant moved out on 1 June 2009.

3. Against the Judgment, both parties seek leave to appeal.

4. Pursuant to section 63A(2) of the District Court Ordinance, Cap. 336, leave shall not be given unless the intended appeal has a reasonable prospect of success or for the interest of justiceshould be heard by the appellate court.

THE PLAINTIFF’S INTENDED APPEAL

5. The starting point is that the defendant occupied the Property as a licensee for no specific term: see the Decision. As explainedin the Judgment, for the purpose of assessment of mesne profits payable by the defendant, the following facts had to be and werefound:

(1) when the defendant’s licence was unequivocally revoked (by notice) (at §§12-23);

(2) whether and, if yes, when the defendant moved out of the Property (at §§24-36); and

(3) the rate(s) of mesne profits (at §§37-47).

6. Through counsel, the plaintiff confirmed that the intended appeal relates to (1) above and there is no challenge in respect of (2)or (3) above. This is nevertheless an appeal on finding of facts.

7. The plaintiff repeats his reliance on various documents including the Chinese agreement in 2001 and his solicitors’ letter in2007. The context in which the documents were relied on were first explained in the Decision (at §§39-44) and then consideredin the Judgment (at §§16-23).

8. The appellate court will not interfere with the findings of primary facts unless it is satisfied that the conclusion reached bythe trial judge on the facts was plainly wrong. If not so satisfied, the appellate court will defer to the trial judge’s conclusioneven if in some doubt as to its correctness. The burden on the appellant is thus a heavy one: see Ting Kwok Keung v Tam Dick Yuen & Ors [2002] HKCFAR 336.

9. Applying the test, I am not satisfied that leave should be given for the intended appeal by the plaintiff under either limb of section 63A(2).

THE DEFENDANT’S INTENDED APPEAL

10. By summons filed on 25 June 2012, the defendant seeks leave to appeal. According to his affirmation, he objects to paying mesneprofits and the plaintiff’s costs. There are the following proposed grounds of appeal:

(1) The defendant voluntarily served his mother and should not be liable for the mother’s debt.

(2) The mense profits assessed is less the amount claimed by the plaintiff.

(3) The plaintiff owes him HK$450,000.

11. In respect of ground (1) above, this is essentially repetition of the argument attempted during the assessment hearing. The defendantfails to convince me the Judgment in this respect (at §50) would reasonably be overturned.

12. In the absence of indication that the defendant was prepared to concede any amount at all, the assessment proceedings would havebeen necessary; and the event of that remains against the defendant. So is the incidence of the costs liability. Ground (2) abovecould not succeed.

13. In respect of ground (3) above, the defendant repeats that the plaintiff has not contributed towards the management fees and otherexpenses for the maintenance of the Property in a sum in excess of HK$450,000. He advanced no argument for the present purpose thatcauses me to doubt the Judgment in this respect (at §§48-49).

14. In court, the defendant repeated his challenge against the surveyor’s evidence adduced by the plaintiff; and that he merely occupieda bedroom instead of the entirety of the Property. Again, he fails to demonstrate any ground on which the Judgment in these respects(at §§43-45) would reasonably be impeached on appeal.

15. I am not satisfied that the intended appeal by the defendant has a reasonable prospect of success. Nor should leave be given underthe alternative limb of section 63A(2).

ORDER

16. The parties’ respective summonses are dismissed. In view of the outcome, I make no order as to costs in respect of each summons.

(Simon Leung)
District Judge

Mr Norman C M YAU instructed by Messrs Lennon & Lawyers for the plaintiff

The defendant, in person, present

Note: interpreter’s assistance would be provided for receiving this judgment, if required by the defendant