Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Man Kai Tak v 梁妹 And Others

Judgment Cited authorities 11 Cited in 1 Precedent Map Related
Vincent
Judgment Date08 May 2018
Neutral Citation[2018] HKDC 493
Judgement NumberDCCJ1806/2010
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ1806A/2010 MAN KAI TAK v. 梁妹 AND OTHERS

DCCJ 1806/2010

[2018] HKDC 493

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1806 OF 2010

------------------------

BETWEEN
MAN KAI TAK Plaintiff
and
梁妹 1st Defendant
梁根林 2nd Defendant
梁金水 3rd Defendant

------------------------

Before: Deputy District Judge Timon Shum in Chambers

Date of Hearing: 6 June 2017

Date of Decision: 8 May 2018

-------------------------

DECISION

-------------------------


INTRODUCTION

1. This is the 2nd and 3rd defendants’ application by summons filed on 21 March 2017 for leave to appeal against my judgment dated 23 February 2017 (“the Judgment”) and for stay of execution pending appeal. Unless otherwise stated, I will adopt the same abbreviations and nomenclatures as used in the Judgment.

2. The concluding order from the Judgment was as follows:-

(a) The 2nd and 3rd defendants do give the plaintiff vacant possession of the premises described in the Re-amended Statement of Claim endorsed on the Writ of Summons as Lot No 995 in Demarcation District No 102, Yuen Long, New Territories, Hong Kong.

(b) The 2nd and 3rd defendants do jointly and severally pay the plaintiff:-

(i) damages at the annual rate of HK$600 from 19 July 2010 to the date of delivery of vacant possession; and

(ii) interest on the said damages at judgment rate from the date of judgment until payment.

(c) The counterclaim of the 2nd and 3rd defendants be dismissed.

(d) Save and except for previous costs orders made by the court, there be a costs order nisi that the 2nd and 3rd defendants do jointly and severally pay the costs of this action including the costs of the plaintiff’s claim and the costs of defending the counterclaim, to be taxed if not agreed, with certificate for counsel. The costs order nisi shall become absolute in the absence of application to vary within 14 days.

PRINCIPLES FOR GRANTING LEAVE TO APPEAL

3. Under section 63A(2) of the District Court Ordinance, leave to appeal shall not be granted unless:-

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.

4. In the case of SMSE v KL [2009] 4 HKLRD 125, Le Pichon JA said this in paragraph 17 of the judgment:-

“Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful” without having to be “probable”.

5. Paragraph 59/2A/4 of Hong Kong Civil Procedure 2018 also refers to the threshold for granting leave to appeal:-

“… In KNM v HTF (unrep., HCMP 288/2011, [2011] H.K.E.C. 1210, the Court of Appeal (at §9) confirmed that “The relevant test of whether an appeal has a reasonable prospect of success under section 63A [District Court Ordinance], is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’. It was insufficient to show that the appeal was “merely arguable” and “not fanciful” for the court to be satisfied that it had a reasonable prospect of success …”

6. With such principles in mind, I proceed to consider the grounds raised by D2 and D3.

GROUND 1 - PAYMENT OF RENT BY D2 & D3’S MOTHER

7. Mr Lam, counsel for D2 and D3, argues that I erred in law by finding that D2 and D3’s mother Kwok continued to pay rent after the expiration of the 1979 TA on 28 February 1984 and that there was a yearly tenancy afterwards. He says that I based my finding on hearsay evidence.

8. Mr Lam was not the counsel conducting the trial for D2 and D3. As a result, I am afraid he is not familiar with the evidence that the court heard at trial.

9. The payment of rent by Kwok was evidence coming from the plaintiff’s sister-in-law Hau. This was not hearsay evidence but direct evidence. This part can be found in paragraph 4 of her witness statement and her testimony at trial. Hau said she witnessed the payment of rental by Kwok to Hau’s mother-in-law Pang from 1980 to 1984. Hau was in Germany from 1985 to 1999. When she returned to Hong Kong in 1999, she also witnessed the payment of rent by Kwok to Pang until Pang was admitted to elderly home. She testified that she witnessed Pang collecting rent from Kwok when Kwok visited. But if Pang went to the Premises to find Kwok for rental collection, Hau would not follow. On most occasions, it was Kwok visiting Pang and paying rent to her.

10. In 2003 when Pang was staying at elderly home, Kwok paid rent to a neighbour and asked the neighbour to pass the same to Hau’s family. Mr Lam makes the criticism that Hau could not even say the neighbour was a male or a female. Such criticism once again shows that Mr Lam is not familiar with the evidence heard at trial. While it is true that Hau did not state clearly that the neighbour was a male or a female in her witness statement. She clarified in her testimony at trial that the neighbour was 文貴源’s wife and she called her grand auntie (叔婆). According to Hau, 文貴源 also rented out his land to Leung Senior.

11. The evidence of Hau showed that she had personal knowledge of the payment of rent by Kwok to Pang from 1980 to 1984 and from 1999 to 2003. Even though Hau’s personal knowledge could not cover the whole limitation period from 1 March 1984 to 28 February 2004 alleged by D2 and D3 because she was in Germany from 1985 to 1999, there is nothing to show the arrangement during the uncovered period was different from that for those periods witnessed by Hau. On the contrary, I would say that it was more likely than not that the arrangement was the same throughout the period from 1980 to 2003.

12. With respect to Mr Lam, I do not see any problem in my acceptance of Hau’s direct evidence and finding that Kwok paid rent to Pang from 1980 to 2003. Mr Lam’s argument is misconceived.

13. The plaintiff Man’s evidence also touched on the collection of rent by Pang. According to Man, matters relating to the 1979 TA were dealt with by his mother Pang until she was admitted to elderly home. Man emigrated to Singapore in 1995 but he would return to Hong Kong for visits once every 2 years. He would stay around 4 days each time. Man admitted that from 1970s up to the time before the 2005 TA was entered into, he did not handle matters relating to the 1979 TA personally. But he said he was sure rent was collected by Pang. On different occasions, he asked his mother Pang if there was any problem about the tenancy matter. Pang said no. The rent collected by Pang would be used as Pang’s living expenses until she passed away. Man believed that if Pang had any difficulty collecting rent from the Leung family, she would have told him. As her son, Man would certainly deal with the matter for her.

14. While it is true that Man did not state in his evidence that he directly witnessed Pang collecting rent from Kwok. His evidence did support the reasonable inference that rent must have been collected by Pang from the Leung family from the time of the 1979 TA until 2003 when Pang was staying at elderly home. Otherwise, Pang would certainly have raised complaint with her son Man, who became the registered owner on 25 May 1995.

15. In making my finding that Pang did collect rent from Kwok from the time of the 1979 TA until 2003, it was sufficient for me to rely on the direct evidence of Hau alone. Even without Man’s evidence on this aspect, my finding would have been the same.

16. So it is wholly incorrect for Mr Lam to say that I reached my finding based on hearsay evidence. I reached my finding because I accepted the direct evidence of Hau.

17. Also, Mr Lam criticised me for not considering Section 49 of the Evidence Ordinance before accepting hearsay evidence. Section 49 is about considerations that are relevant to weighing of hearsay evidence. As already said, the finding on collection of rent was based on the direct evidence of Hau, rather than hearsay evidence. Mr Lam’s criticism is unwarranted.

18. The only reference to Section 49 made by D2 and D3’s trial counsel was...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT