TANG MAN CHEE (鄧萬治) as The Personal Representative of the Estate of Tang Kwong Ah (鄧光亞), deceased v. LO CHUN

TANG MAN CHEE (鄧萬治) as The Personal Representative of the Estate of Tang Kwong Ah (鄧光亞), deceased v. LO CHUN

Applicant failed to demonstrate a reasonable prospect of success on appeal. The trial judge's factual findings on credibility, occupation dates, abandonment and the weight of unchallenged surveyors' evidence were within judicial discretion and supported by the record. The proposed fresh affirmation was not a proper basis for leave; even if admitted it would not overcome the surveyors' objective evidence. Accordingly leave to appeal was refused and costs ordered against the applicant.

Citation
[2021] HKDC 1586
Parties
Plaintiff / Personal Representative of the Estate of Tang Kwong Ah (deceased): Tang Man Chee; Defendant (deceased): Lo Chun; Defendant: Cheung Ah Ping; 2nd Named Personal Representative of the Estate of Lo Chun / Defendant / Applicant for Leave to Appeal: Lei Cuiye
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
20 December 2021
Case Number
DCMP3363/2016
Procedural Posture
Miscellaneous Proceedings (land) – Possession / Adverse Possession / Application for Leave to Appeal Under District Court Ordinance S63 A(2) (paper Disposal)
Outcome
Application for leave to appeal dismissed; leave to appeal refused.
Legal Topics
Adverse Possession, Leave to Appeal, Admissibility of Fresh Evidence on Appeal, Evaluation of Witness Credibility, Costs
Source Language
EN
Property Law Civil Procedure Evidence Law Appeal Adverse Possession Leave to Appeal Admissibility of Fresh Evidence on Appeal Evaluation of Witness Credibility +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Tang Man Chee

Plaintiff / Personal Representative of the Estate of Tang Kwong Ah (deceased)

Lo Chun

Defendant (deceased)

Cheung Ah Ping

Defendant

Lei Cuiye

2nd Named Personal Representative of the Estate of Lo Chun / Defendant / Applicant for Leave to Appeal

Procedural Posture

Miscellaneous Proceedings (land) – Possession / Adverse Possession / Application for Leave to Appeal Under District Court Ordinance S63 A(2) (paper Disposal)

Legal Issues

  1. 1 Whether defendant/estate was in adverse possession of Lot 917
  2. 2 Whether the trial judge erred in accepting witness TSY's evidence without sufficient scrutiny of his interest
  3. 3 Whether occupation commenced in 1983 or 2006

Ratio Decidendi

Applicant failed to demonstrate a reasonable prospect of success on appeal. The trial judge's factual findings on credibility, occupation dates, abandonment and the weight of unchallenged surveyors' evidence were within judicial discretion and supported by the record. The proposed fresh affirmation was not a proper basis for leave; even if admitted it would not overcome the surveyors' objective evidence. Accordingly leave to appeal was refused and costs ordered against the applicant.

Court Disposition

Application for leave to appeal dismissed; leave to appeal refused.

Orders

  • Summons filed 31 August 2020 dismissed.
  • Costs order nisi that the applicant (Lei Cuiye) do pay the costs of the summons filed 31 August 2020, to be taxed if not agreed, with certificate for counsel; costs order nisi to become absolute in absence of application to vary within 14 days.