TSOI PING HUNG AND ANOTHER v. CHEUNG CHOW LAN AND OTHERS

CACV 126/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 126 OF 2014

(ON APPEAL FROM DCMP NO. 1884 OF 2012)

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BETWEEN
TSOI PING HUNG 1st Plaintiff
MAN HING CHEUNG 2nd Plaintiff
and
CHEUNG CHOW LAN 1st Defendant
TSOI MAN PO 2nd Defendant
TSOI KO CHIU 3rd Defendant

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Before: Hon Cheung, Kwan and Barma JJA

Dates of Plaintiffs’ Written Submissions: 19 June & 10 July 2015
Date of Defendants’ Written Submissions: 3 July 2015
Date of Decision: 4 August 2015

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DECISION
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Hon Cheung JA (giving Decision of the Court) :

1. The plaintiffs apply for leave to appeal to the Court of Final Appeal against our judgment of 22 April 2015. The defendants opposethe application. We will deal with the application on paper.

2. The plaintiffs rely on both limbs of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). In respect of the great, general or public importance ground, the following questions are identified :

‘ (1) Whether and to what extent can an appellate court depart from the general principle of not disturbing the primary factualfindings of a trial judge except where they are plainly wrong, but substitute the trial judge’s findings by the appellate court’sown determinations on facts based on disputed testimony of witnesses;

(2) In proving adverse possession, whether the requirements of (1) “clear and affirmative evidence” of the squatter excludingthe world at large (Powell v McFarlane (1979) 38 P & CR 452 at 472), and (2) “the actions of the occupier make it clear that he is using the land in the way in which a full owner would …”(Pye (JA) (Oxford) Ltd v Graham [2003] 1 AC 419 at 447F per Lord Hope), are abrogated, when ground laying work is done on the land?

(3) Is ground laying work on the land in preparation for future occupation use sufficient by itself, before the .occupation commences,and in the absence of any manifestation of excluding anyone from the land, to constitute exclusive possession with the necessaryanimus possidendi so that the limitation period commences before the intended occupation?’

3. In support of these three questions, the plaintiffs devoted seven pages of a ten-page written submission on this topic. This isfollowed by another five-page written submission in reply.

4. We do not consider it appropriate or even necessary in a leave application for this Court to provide a detailed response to thesubmissions made by the plaintiffs. It is sufficient for us to state that our judgment was fact-specific and based on the totalityof the evidence.

5. The three questions, although skilfully dressed up by the plaintiffs as questions of law, are in essence nothing more than factualchallenges to our judgment. Principles concerning how an appellate court can reverse a lower court’s finding of fact and alsoadverse possession are so well-established that they hardly need a revisit by the highest Court of the land.

6. What the plaintiffs really wanted is to have a further round of appeal on facts and, with respect, they cannot achieve it underthe guise of the great, general or public importance ground. The only plank in which the plaintiffs can seek to achieve their goalis really under the ‘or otherwise’ ground. As to that they have not demonstrated that justice requires the factual issues tobe reconsidered by the Court of Final Appeal afresh. In any event, the usual practice of this Court is to let the Court of FinalAppeal to decide whether leave should be granted on the ‘or otherwise’ ground.

7. Accordingly the application is refused with costs to the defendants which we assessed at $210,000 of which $160,000 is for two counseland $50,000 for solicitors.

(Peter Cheung) (Susan Kwan) (Aarif Barma)
Justice of Appeal Justice of Appeal Justice of Appeal

Written Submissions by Mr Chan Chi Hung SC and Ms Jo Siu, instructed by Jesse H. Y. Kwok & Co., for the 1st and 2nd plaintiffs

Written Submissions by Mr Gerard McCoy SC and Mr Francis Yip, instructed by Ko & Chow, for the 1st, 2nd and 3rd defendants