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

Ngan Cheung Wah v Kwong Shook Ling

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date20 August 2014
Year2014
Judgement NumberCACV92/2014
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV92/2014 NGAN CHEUNG WAH v. KWONG SHOOK LING

CACV 92/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 92 OF 2014

(ON APPEAL FROM DCCJ NO. 578 OF 2011)

________________________

BETWEEN

NGAN CHEUNG WAH ( 顏祥華 ) Plaintiff
and
KWONG SHOOK LING (鄺淑玲) appointed by Order dated 5th August 2011 of Master I. Wong to represent the estate of Yu King Kwok ( 余經國 ), deceased Defendant

________________________

Before: Hon Cheung, Kwan and Chu JJA in Court
Date of Hearing: 13 August 2014
Date of Judgment: 13 August 2014
Date of Reasons for Judgment: 20 August 2014

________________________

REASONS FOR JUDGMENT

________________________

Hon Kwan JA (giving the Reasons for Judgment of the Court):

Introduction

1. This is the plaintiff’s appeal against the judgment of Deputy District Judge S P Yip of 10 January 2014 (“the Judgment”), given after a three-day trial in July 2013. The judge dismissed the plaintiff’s claim for possessory title by adverse possession of a piece of land of about 1,000 sq ft in Cha Kwo Ling, Kowloon, known as the Remaining Portion of Sub-Section 4 of Section A of Lot No 622 in Survey District No 3 (“the Property”).

2. Leave to appeal was granted by the judge on 17 April 2014 on the grounds of the draft Notice of Appeal appended to the plaintiff’s summons for leave to appeal. There were three grounds in that notice, contending that the judge had made various errors in law.

3. On 22 July 2014, the plaintiff filed an amended Notice of Appeal without leave, invoking Order 59 rule 7(b) of the Rules of the High Court, which provides that a notice of appeal may be amended without leave by supplementary notice served not less than three weeks before the date fixed for the hearing of the appeal. Two additional grounds of appeal were put forward in the amendment. Ground 4 relates to the challenge of the judge’s finding that the plaintiff failed to establish factual possession of the Property in that he had failed to have regard or sufficient regard to the matters set out under that paragraph. Ground 5 seeks to contend that the judge should have inferred in all the circumstances that the plaintiff did have requisite intention to possess the Property before 2008/09.

4. These additional grounds would appear to be challenges to conclusions on findings of fact that had been or should have been made by the judge. We do not agree with the submission of Ms Joyce Leung[1] for the plaintiff that these grounds do not involve any attack on the findings of fact in the Judgment, or that they are merely extensions of grounds 1 to 3 and no new grounds of appeal on fact are advanced.

5. At the conclusion of the hearing, we dismissed the appeal with reasons to be handed down. These are the reasons.

If leave is required to argue grounds 4 and 5

6. Ms Leung submitted that no leave of the court is required to argue the additional grounds in the amended Notice of Appeal.

7. Counsel referred to section 63A(1) of the District Court Ordinance, Cap 336, which provides that leave to appeal to the Court of Appeal may be granted “in respect of a particular issue arising out of the judgment, order or decision”. She contended that when the judge granted leave to appeal, he did not limit the appeal on a particular issue. Hence, the plaintiff is entitled to amend his Notice of Appeal in any manner pursuant to Order 59 rule 7, without seeking leave of the court, provided this is done not less than three weeks before the date fixed for the hearing of the appeal. Furthermore, in both the draft Notice of Appeal and the Notice of Appeal filed on 28 April 2014, provision was made for the plaintiff’s right to add to or vary the grounds of appeal upon receiving a copy of the transcript of proceedings. So in granting leave, the judge was aware that the plaintiff had reserved his right in that respect.

8. We do not agree with any of the above.

9. In giving leave to appeal, the judge’s order provided expressly that it was on the grounds of appeal in the draft Notice of Appeal appended to the plaintiff’s application. Although the word “issue” did not feature in the order, the meaning is perfectly clear. The plaintiff was restricted to arguing the matters or issues raised in the three grounds of appeal and no further. If the plaintiff wishes to expand the scope of his arguments on appeal, leave must be sought from the court.

10. Order 59 rule 7 cannot be prayed in aid in the situation where leave to appeal on an issue must first be obtained under section 63A(1).

11. It is fallacious to speak of a right to add to or vary the grounds of appeal that may be reserved. There is no right to add to or vary the grounds of appeal that would have the effect of raising an issue for which leave to appeal has not been granted. And it is clear on the wording of the draft Notice of Appeal and the Notice of Appeal that was filed that the plaintiff did not assert such a right, as contended by his counsel. What was stated there was that “the Plaintiff reserves the right to apply to add to or vary the above grounds upon receiving a copy of the transcript of the evidence of the trial” (Emphasis supplied).

12. We therefore treated the arguments advanced in respect of grounds 4 and 5 as supportive of an application for leave to appeal in respect of the issues raised therein, albeit out of time. If the threshold requirement in section 63A for granting leave is met, we would grant leave to raise those grounds in this appeal and treat the arguments as advanced in the appeal. Otherwise, we would refuse leave to advance those arguments in the appeal.

The background and findings in the Judgment

13. We would first relate the background matters and the judge’s findings before we consider the issues in this appeal.

14. The late Yu King Kwok became the registered owner of the Property in 1972. He passed away in 2002 and the Property fell into his estate. His widow and executrix is the defendant in this action.

15. The plaintiff’s evidence was summarised in the Judgment at §§3 to 7:

“3. According to P, he moved to live about 300 feet away from the Property in about 1977 and noticed an abandoned house and pigsty thereon.

4. In about 1982, P replaced the door lock of the house and refurbishing it for entertainment purposes and stored building materials in the pigsty for his said business. In the same year, a fire broke out at the Property. Later in 1984, a more extensive fire broke out and destroyed the said structures.

5. After the 1984 fire, P returned to the Property to clear off debris and continued to store materials on it. He claimed to erect a wire mesh fence on two sides of the Property.

6. In around 1986, P allegedly began to build a house on the Property but was stopped by the government before completion, thereby leaving a short wall.

7. In around end of 2008 or early 2009, P erected a wire mesh fence around the Property to prevent others from entering the Property as he was frequently in Mainland China.”

16. It is the plaintiff’s case that his adverse possession of the Property began in 1984 and continues up to present for about 30 years (the Judgment, §17). The limitation period required in this case is 20 years.

17. The activities relied on by the plaintiff to show adverse possession were summarised in the Judgment at §18:

“(i) placing his building materials on the Property;

(ii) after the 1984 fire using wire mesh along two sides of the Property;

(iii) in 1985/86 embedding of a line of half bricks into the ground along the boundary to signify to others the Property was occupied by P;

(iv) leaving the external walls of a house consisting of a few layers of bricks in height (“the short wall”) on the Property after he stopped the construction of the house;

(v) cutting the grass inside the Property periodically;

(vi) during the Tin Hau Festival for about the past 10 years, letting out part of the Property facing CKL Road[2] at $300 per day for the sale of joss sticks and other articles of offering;

(vii) for a period of about three months in 2004/2005 allowed Leung Kwok Man to use the subject lot for waste metal recycling; and

(viii) at the end of 2008 or beginning of 2009, enclosed the Property by wire mesh.”

18. The judge then assessed the evidence in §§19 to 30 of the Judgment, including certain aspects of the evidence of Mr Sung Shu Hung, the defendant’s surveyor who visited the Property on 3 September 2002, which are not contradicted by the plaintiff’s evidence. Among the matters considered was this admission in §8(b)(i) of the amended reply that the Property was vacant to a certain extent:

“the Property was vacant as from 1999 to 2008 only in the sense that there was no structure being erected thereon and no one occupying the same and the ground of the Property was not cemented and was covered wholly or partly with grass and a tree at one side of the Property.”

19. The judge accepted Mr Sung’s evidence that at the time of his visit in 2002, the Property was not occupied or used by anyone, there was no fence erected on the Property just some wooden poles of the fence were left, and what appeared as rubbish were dumped there (the Judgment, §§23 to 27 and 39).

20. The judge then made the following findings of fact in §31, which were the only acts that might add markings or features on the ground of the Property:

“(i) P has been placing his building materials on the Property since 1984;

(ii) after the 1984 fire P erected wire mesh along two sides of the Property as per Exhibit P3 which ceased to exist sometime before 2002 and when Mr Sung visited the site he did not see wire mesh; only some poles of the wire mesh remain today;

(iii) in 1985/86 P embedded a line of half bricks into the ground along...

To continue reading

Request your trial

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