DCCJ 296/2018

[2024] HKDC 1478

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 296 OF 2018

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D E C I S I O N

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1. These proceedings arose from the parties’ rival claims of possession of Garage Space B2 on No. 23 Plantation Road, Hong Kong. On 27 May 2024, I handed down the judgment (“ Judgment ”) [1] in which, among other things, I made a declaration that the plaintiff is the rightful owner of Garage Space B2 and ordered that the defendants’ counterclaim of adverse possession of Garage Space B2 be dismissed. [2]

2. By summons dated 24 June 2024, the 2 ^nd defendant applied for leave to appeal against the Judgment. In the draft notice of appeal, the 2 ^nd defendant put forward two proposed grounds of appeal which are said to have a reasonable prospect of success. [3]

3. Having read the parties’ respective written submissions, I am satisfied that an oral hearing is not necessary and that the summons is suitable for disposal on paper only, pursuant to the guidance laid down by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350 , §24, per Lam VP (as he then was).

The applicable legal principles

4. It is common ground that no leave to appeal should be granted unless the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard: see section 63A(2) of the District Court Ordinance ( Cap 336 ). A “reasonable prospect of success” means an appeal with prospects that are more than “fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 , §17, per Le Pichon JA.

The first proposed ground of appeal

5. The 2 ^nd defendant’s first proposed ground of appeal alleges that there was a violation of the Browne v Dunn principle as enunciated by Lord Herschell LC in Browne v Dunn (1893) 6 R 67 at 71, in that Mr Chiu was not cross-examined on the difference between the dimensions of the sliding door referred to in his receipt dated 8 October 2005 (“ October Receipt ”) [4] and the measurements of B2 Sliding Door on the Floor Plan, [5] and that the court was plainly wrong in rejecting the October Receipt and his written and oral evidence as sufficient proof that B2 Sliding Door was installed on or before 8 October 2005.

6. It is recognised