CHAN KING TONG v. HENRY FRANCIS LUE AND OTHERS

CACV 942/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 942 OF 2001

(ON APPEAL FROM HCA 828/1997)

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Coram: Hon Rogers VP, Le Pichon and Cheung JJA in Court

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J U D G M E N T

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Hon Rogers VP:

1. This is an application made out of time for leave to appeal to the Court of Final Appeal. The factual background to this case is set out in the judgment of this court and will not be repeated, save to say this: The basis of this application is that it is now said on the plaintiff's behalf that the foundation of the plaintiff's case in the way it was pleaded and formed part of a factual agreement which was agreed between both parties in the court below and was put in this court, was wrong; that this is of fundamental importance to the plaintiff's claim and the agreement as to facts was made without instructions in the court below. In this court the plaintiff represented himself.

2. As far as this application is concerned Mr Lai, who has said all he can on behalf of the plaintiff, has in effect conceded that he cannot rely upon the proposition that the matter in dispute is of the value of $1 million or more and therefore has to rely upon this matter being of great general or public importance.

3. The major difficulty, it seems to me, is that it is wholly wrong to give leave to appeal under that heading for a matter which is primarily a disputed question of fact as well as a fundamental change of case which will be raised for the first time in the Court of Final Appeal and relates to this case and this case only. Therefore, it does not seem to me that the basis of this application falls within that head.

4. It seems to me, on the basis of the submissions which have been made by Mr Lai on behalf of the plaintiff today, that if the plaintiff is correct in what is now said, then it is a clear case for an investigation of whether proceedings could be taken against the lawyers who represented the plaintiff in the court below and it seems to me that, on the basis of what we have been told this morning, if that is correct, that claim should be, or may well be, a good one.

5. In those circumstances, I do not consider that this is an appropriate case to grant leave to appeal to the Court of Final Appeal.

Hon Le Pichon JA:

6. I agree.

Hon Cheung JA:

7. I agree.

Representation:

Mr Thomas Lai, instructed by Messrs Alvin Liu & Partners, for the Plaintiff/Applicant

Mr Walker Sham, instructed by Messrs Preston Gates & Ellis, for the Defendant/Respondent

CACV 942/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 942 OF 2001

(ON APPEAL FROM HCA NO. 828 OF 1997)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This is an appeal from a judgment of Deputy High Court Judge Poon given on 11 May 2001. In the action the plaintiff sought declarations that the registered owners and their personal representatives of the ground floor and second floor of 50 Tung Choi Street, Kowloon had lost their right to bring any action to recover any part of those premises and their rights in respect of those premises had been extinguished by the plaintiff's adverse possession. The plaintiff also sought orders that the premises should be vested in him and that his name should be entered as the owner of those premises in the Land Registry. By counterclaim the defendants claimed an order for possession of that part of the second floor premises which the plaintiff occupied, an account of all rental monies which the plaintiff had received in respect of the ground floor premises and mesne profits in respect of his occupation of the second floor of the premises from 19 July 1994 until the date of delivery of vacant possession.

2. The judge below dismissed the plaintiff's claims, ordered delivery up of vacant possession of that part of the premises occupied by the plaintiff and ordered an account of rentals and the payment of mesne profits as prayed for by the defendants.

3. On this appeal the plaintiff appeared in person. Apart from the fact that the plaintiff considered that he had been unfairly treated by the trial judge his appeal was in respect of the judge's findings of fact. At the conclusion of the hearing, this court dismissed this appeal with costs and indicated that it would give its reasons in writing which we now do.

4. In a detailed and careful judgment the judge reviewed the evidence before him and had no hesitation in rejecting the plaintiff's evidence that he had obtained possession of the premises by excluding from possession a Mr Liu Tong and refusing to allow him or anybody else to have possession of premises. According to the plaintiff that occurred in approximately 1964.

5. Quite apart from the oral testimony given on behalf of the defendants to refute the plaintiff's claim there was a wealth of documentary evidence which was only explicable on the basis that the plaintiff had not exercised adverse possession.

6. The registered owners of the premises were a Mr Lue and a Madam Lue. Madam Lue was the plaintiff's sister. In 1964, the Lues had purchased the premises although they resided in Jamaica. In 1974 they executed powers of attorney in favour of the plaintiff's second son Mr Chan Chung Wah, amongst other things, to enable him to manage the properties including renting them out and collecting rents from the tenants.

7. There were a number of tenancy agreements signed with one of the tenants by Mr Chan Chung Wah in his capacity as the attorney. There were also tenancy agreements which was signed in respect of the main shop, the side shop and what was referred to as the staircase shop where the plaintiff had purported to sign as agent for the landlords.

8. There was also a letter dated 3 May 1992 signed by the plaintiff addressed to a solicitor formerly working for the defendants' solicitors in which it was stated that Madam Lue had repeatedly told her children that the rental income generated by the properties was for the plaintiff's use, that the plaintiff was allowed to live at the second floor premises for life and that the plaintiff would not ask for ownership.

9. After carefully reviewing the evidence the judge below made clear findings of fact that the plaintiff and his family had moved into the second floor premises because the plaintiff's sister Madam Lue had permitted them to live there rent free and that they were there as mere licensees. The judge further found that up until 1970 a Mr Lui had been living in part of the second floor premises and that from 1971 to 1992 the plaintiff's first wife from whom he was divorced and who was the mother of the plaintiff's sons, had collected any rent which arose from the second floor premises. Furthermore for some time prior to 1994 the plaintiff had not lived the second floor premises and in that year when one of Madam Lue's daughters had visited Hong Kong the plaintiff had asked her for permission to live there. The daughter, Selma, had agreed and the plaintiff had moved back into the second floor premises where he continued to live rent free as a mere licensee. The judge concluded that insofar as the plaintiff had purported to act as the agent for the landlords he had intermeddled in the affairs of Madam Lue's estate into which the premises had become vested. The judge further held that the letter which the plaintiff had signed addressed to the solicitor had been written of his own free will.

10. In the circumstances, the judge came to the conclusion that neither had the plaintiff exercised adverse possession of the premises nor had he intended to do so.

11. I consider that there is no basis for challenging the judgment. In those circumstances, this court had no hesitation in dismissing this appeal.

Hon Le Pichon JA:

12. I agree.

Hon Burrell J:

13. I agree.

Representation:

Mr Chan King Tong, the Plaintiff/Appellant in person (present)

Mr Walker W M Sham, instructed by Messrs Preston Gates & Ellis, for the Defendant/Respondent

CACV 942/2001

香港特別行政區

高等法院上訴法庭

民事司法管轄權

民事上訴

案件編號：民事上訴案件 2001 年第 942 號

(原高等法院民事案件 1997 年第 828 號)

主審法官: 高等法院上訴法庭法官張澤祐內庭聆訊

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判案書

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1. 原訟法庭經聆訊後，在 2001 年 5 月 11 日判被告人勝訴。原審法官頒發的命令包括原告人需要把他在香港九龍通菜街，48 至 50 號，2 字樓內佔用的地方及位於該物業地下的樓梯舖位交還給被告人。

2. 原告人對判決不服，並已經對判決提出上訴。上訴定於 2002 年 3 月 21 日進行聆訊。原告人現申請暫延上述的收樓令直至上訴完畢為止。據他所說，樓梯舖位不屬於被告人，這是公共樓梯、斜角空巷，內裝置大廈消防喉。他亦指現時該物業地下的一間書店佔用了行人路，該佔用的部分亦不是屬於該物業地下的範圍。

3. 法律的原則是即使敗訴的一方對判決提出上訴，該判決亦不會當然地被暫緩執行，申請人必須證明如不暫緩執行該判決，將來就算他上訴得直，亦只是會獲得一個虛有，無實質作用的判決。

4. 原告人現提出了兩個理由來支持他的申請，但它們都不是合理的理由。在審訊期間，原告人是有律師代表的，在判決書第 2 頁內已經說明雙方同意該物業地下所有的舖位都是列入該物業的範圍內，所以原告人所指兩個舖位不是屬於該物業範圍之內是不能構成暫緩執行判決的理由。再者，原審法官並沒有下令原告人交還現由書局佔用的地下舖位，因此，原告人所持的第二個理由亦是不合理的。至於原告人佔用 2 樓的部分樓宇，證供顯示原告人是另有居住的地方，就算他日後上訴得直，但因收樓令而引致損失，這方面的損失亦可以用金錢作為補償。

5. 本席撤銷原告人的申請及下令原告人需要支付本申請的訴訟費用，該費用以共同基金計算方法評核。

原告人：無律師代表,親自出庭。

被告人：由普蓋茨律師事務所委托沈偉民大律師代表。