LI SHIU KWAN v. LIU CHI KONG AND OTHERS

DCMP 4082/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4082 OF 2004

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BETWEEN

LI SHIU KWAN Plaintiff
and
LIU CHI KONG 1st Defendant
YU KAM HO HILLMOND 2nd Defendant
LEUNG TAK CHUEN PERRY 3rd Defendant
LEUNG KWOK HUNG 4th Defendant
VIEWBEST ENGINEERING LIMITED 5th Defendant
THE OCCUPIERS AND EVERY OTHER PERSONS IN OCCUPATION OF THE LAND known as THE REMAINING PORTION OF SECTION A OF LOT NO. 2942 IN DEMARCATIONDISTRICT NO. 104 6th Defendant
LAM YAU GUN 7th Defendant

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Coram: Deputy District Judge W.C. Li in Chambers

Date of Hearing: 29th September 2006

Date of Decision: 29th September 2006

DECISION

1. I will deal with the first paragraph of the summons first. The order made on 26 May 2005 was made on the strength of the decisionin the Chan Tin Chi case. As observed, the order would not have been made had the parties known of the outcome of that CFA appeal. The result of thisCFA appeal is now known, the appeal in the Chan Tin Chi case was unanimously allowed. The judgment in favour of the plaintiff therefore could not be executed.

2. Indeed, it would be in the plaintiff’s interests to have D1 included in the appeal against my order made on 26 May, indeed allparties are considering consolidating both actions, i.e. the present action and the so-called D7 case. D1 has also asked today toappeal against the order after having been explained of the situation then and of the situation now by the court. D1’s intimationto appeal was only made today. So, all parties, i.e. plaintiff and D7, had prepared themselves fully to argue on the basis thatD1 was not appealing, those arguments would not be necessary in the light of D1’s intimation to the court that he wants to appeal.

3. D1 is unrepresented. From the conversation between Mr Liu (D1) and the court, it does appear that he was quite unaware of the legalarguments involved in the case. The appeal is out of time. In the light of D1 being unrepresented and in the circumstances thatit is probably in all parties’ interest to have D1 included in their appeal, I grant leave to allow D1 to appeal out of time. The Plaintiff does not really oppose the appeal. So, in these circumstances, paragraph 1 of the summons is made order in terms. Paragraph 1 reads, for the sake of the record,

“Leave to appeal from the judgment made by Deputy Judge W C Li, on 26 May 2005 against the 1st defendant and 7th defendant, thatthe plaintiff do recover possession of the land known as The Remaining Portion of Section A of Lot No. 2942 in Demarcation DistrictNo. 104, notwithstanding the time for making the application for leave to appeal, as prescribed under Order 58 Rule 2 of the Rulesof the District Court Cap 336, has expired.”

(Court discussion re costs)

4. Regarding costs of this application today, there will be no order as to costs. D7’s own costs will be taxed in accordance withLegal Aid Regulations. As regarding costs of the originating summons on 26 May 2005, there will be no order as to costs as well, and D7’s own costsbe taxed in accordance with Legal Aid Regulations.

5. Hopefully that puts all matters at rest and concentration could be on the future handling of the case.

( W.C. Li )
Deputy District Judge

Representation:

Mr. Alfred Fung instructed by Messrs. Lo & Lo for the Plaintiff

1st Defendant appeared in person

Mr. Simon Ho instructed by Messrs. K. Y. Leung & Carina Chen for the 7th Defendant