LI KWOK CHING v. SECRETARY FOR JUSTICE

CACV 88/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 88 OF 2015

(ON APPEAL FROM HCA NO. 1303 of 2010)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  The Plaintiff is the owner of Tsiu Kang Hang Tau Lot No 1 in Demarcation District 100. He was born in 1952 and he had inherited that property from his grandfather. Since the 1930s, a house was built on Lot No 1 and the adjoining lot, Lot No 2. It was a large family house made up of two units, each unit had its own entrance. Immediately outside the entrances, to the west of that house, there was a piece of land of about 70 square metres [“the Land”] which was Government land. There was redevelopment on the two lots in 1995 and the house was demolished and rebuilt. There is now a wall enclosing the Land. The Plaintiff claimed that the Land had been encroached upon by the Li family since time immemorial and after a lapse of 60 years, the title of the Government in respect of the Land had been extinguished by reason of s7(1) of the Limitation Ordinance. The Plaintiff sought declaratory relief to such effect in the present action.

2.  By way of counterclaim, the Government sought to recover possession of the Land.  Since the counterclaim was filed on 25 July 2011, the 60-year statutory limitation period ran back to 25 July 1951. 

3.  As an alternative, the Plaintiff also relied on proprietary estoppel to resist the counterclaim. 

4.  The case was tried before G Lam J [“the Judge”] for 4 days.  On 31 March 2015, the Judge found against the Plaintiff and gave judgment in favour of the Government.  He ordered the Plaintiff to deliver vacant possession of the Land and to pay mesne profits at the agreed rate of $8,330 per annum for a period agreed between the parties until the delivery of vacant possession.

5.  The Plaintiff appealed against this judgment and we heard the appeal on 15 December.  This is our judgment in the appeal.   

6.  Though the Plaintiff was represented by counsel up to the date before the hearing of the appeal, and counsel had lodged skeleton submissions for the appeal on his behalf, we were informed on the day of the hearing that the Plaintiff had terminated the retainer for his lawyers at the very last moment.  Counsel for the Plaintiff appeared at the hearing to explain his position.  The Plaintiff told the court that he would appear in person in the appeal.  In the course of his oral submissions, he adopted the skeleton submissions of his counsel.

7.  It was accepted before the Judge and also in counsel’s skeleton submissions lodged on behalf of the Plaintiff in this appeal (adopted by the Plaintiff in his oral submissions) that according to the applicable law as discussed in Secretary for Justice v Chau Ka Chik Tso (2011) 14 HKCFAR 889, the Plaintiff had to establish adverse possession of the Land against the Government for at least 60 years. 

The Judgment

8.  In the judgment of 31 March 2015, the Judge summarized the case of the Plaintiff on factual possession of the Land at paragraph 19:

“ 19. The plaintiff’s case of factual possession consists of the following alleged matters:

(1) A short wall 2 to 3 feet tall was erected along the northern and western boundaries of the disputed land. That wall was later raised to about 6 feet tall (a photograph of this version of the wall was attached to the statement of claim). The wall was rebuilt together with the house in around 1995 (though the new wall was built further out to the west by about 2 metres). At all material times the disputed land abutted a house on the south and abutted another house along half of its northern boundary. The wall in question therefore has the effect of enclosing the disputed land.

(2) In the 1950s, another nephew of the plaintiff’s, Li Tim-hei, erected two structures on the disputed land.

(3) The disputed land was used by the family for various purposes including rearing poultry and drying grains.”

9.  It was common ground that a wall had been in place at some point in time between 1965 and 1969. Given the nature of the use and occupation of the Land as alleged by the Plaintiff, as the Judge correctly noted, the critical issue was whether the wall existed during the period from 1950 to late 1960s.  More precisely, the Plaintiff had to establish that the wall had been there since a date not later than 25 July 1951.  Short of that, the Plaintiff could not have a sufficient period of exclusive possession to support a case of 60 years of adverse possession to bar the title of the Government.

10.  Though on paper there was some uncertainty on the precise nature of the Plaintiff’s case on the wall, by the time of the trial the Plaintiff advanced his case on the basis that originally the wall was one made of yellow mud bricks with a height of 2-3 feet, see paragraph 24 of the judgment.

11.  The Judge then examined the evidence in that regard under three main heads: (1) aerial photos together with expert evidence on the assessment of those photos; (2) survey sheets; and (3) the viva voce evidence of the witnesses called by the Plaintiff.

12.  At paragraphs 25 to 41 of the judgment, the Judge considered the aerial photos and the expert evidence.  The earliest aerial photos (1945 and 1956) were of little probative value due to the fact that they were taken from 20,000 feet and 16,700 feet respectively and the image quality was poor.  The Judge found the photos taken in 1963 and 1964 to be important.  They were taken from a lower height of 3,900 feet and the image quality was good.  Considering those photos in light of the expert evidence at paragraphs 28 to 31, the Judge came to this conclusion at paragraph 32:

“ 32. The evidence based on the 1963 and 1964 aerial photographs therefore suggests that there was no wall, short or tall, as alleged by the plaintiff, in the period between the dates of the two pairs of photographs, ie February 1963 to December 1964.”

13.  The Judge also discussed the opinion of the Plaintiff’s expert in relation to a dark image in the 1956 photo as indicative of a shadow of an elevated object forming the border of the Land.  He took account of the opinion of the Defendant’s expert. At paragraph 37, the Judge concluded that the 1956 aerial photo was of little probative value in this context. 

14.  At paragraphs 38 to 41, the Judge analysed the evidence on the 1945 aerial photos including the experts’ evidence on the same.  He again came to the conclusion that the 1945 photos were of little probative value regarding the western boundary.  He further said that the photos tended to show that there was no wall on the northern boundary.

15.  In respect of the survey sheets, finding that there could be a substantial time gap between their source of information, viz the aerial photos, and the recording of such information on the survey sheets, the Judge found them to be of little probative value. 

16.  Two witnesses gave evidence on the Plaintiff’s case before the Judge.  At paragraphs 46 to 48, the Judge explained why the evidence of the Plaintiff himself was unsatisfactory. The Plaintiff was born in 1952.  As the Judge rightly pointed out, even if one were to give credence to his evidence, it extended at most back to the late 1950s.  As such, it could not establish that the wall existed as far as back as 25 July 1951.

17.  The other witness who gave evidence for the Plaintiff was Lee Cheung Kan.  The Judge found his evidence to be muddled.  Further, as the Judge pointed out at paragraph 50, even if one were to take his evidence at face value, it did not prove the existence of the wall before the mid 1950s.

18.  The Judge also found the omission on the Plaintiff’s part to call Lee Tim-choi, the registered owner of Lot 2, not satisfactorily explained.  However, due to the unsatisfactory aspects in the other evidence, the Judge did not find it necessary to draw an adverse inference from such omission. 

19.  At paragraph 53, the Judge made the following findings:

“ 53. Taking into account all the evidence, I find, on the balance of probabilities, that (1) the 6-foot wall on the northern and western borders of the disputed land, which existed by 1969, was built at a time between 1965 and 1969; (2) there was no mud brick wall of 2–3 feet’s height on those borders during the period from 1950 to 1964.”

20.  The Judge then explained at paragraphs 54 to 57 why the erection of structures in the 1970s and the uses of the land for drying grains and rearing poultry could not constitute exclusive possession on the facts of the present case.  His conclusion on the Plaintiff’s case appears at paragraph 58:

“58. For the reasons stated above, I find the plaintiff has not proved factual possession of the disputed land by himself or his predecessors for 60 years before the writ.  It seems to me that, on the facts as I have found them, the requisite intention to possess only arose at the earliest when a wall was built, and that was long after 1950.  It follows that the plaintiff’s case of encroachment fails on the facts.”

21.  On proprietary estoppel, the Judge summarized the Plaintiff’s case at paragraphs 87 to 90. After discussing the relevant legal principles, the Judge held against the Plaintiff on this head of claim because he was not satisfied that it would be unconscionable for the Government to assert title over the Land in view of the following:

(a) As Lee Tim-choi, to whom the Plaintiff entrusted the re-development works relied upon by him to assert proprietary estoppel, was not called to give evidence and there was an unusual time gap between the reconstruction of the house and the rebuilding of the wall, the Judge did not accept that the Plaintiff could assert he had undertaken the works over the Land under a mistake as to the title to the Land;

(b) As the new wall was not built together with the reconstructed house, there was no evidence the Government was aware of the new wall being built and stood idly by;

(c) There was also no evidence that the new wall was built and the Land paved in reliance on building permission given by the Government as the plans submitted to the Government did not include those works and there was no explanation from the Plaintiff why that was so;

(d) The new wall was re-positioned westwards and the Judge found it unlikely that the Plaintiff believed it had a right to do so.

Appeal in respect of factual possession

22.  In the Notice of Appeal of 28 April 2015, Grounds 1 to 4 related to the Judge’s findings on factual possession.  These grounds challenged the primary findings of fact by the Judge.  Grounds 1 and 2 only asserted that the Judge erred in making the findings.  Ground 3 asserted that the Judge “failed to give any or sufficient weight to the evidence of the Plaintiff’s expert”.  Ground 4 asserted that if sufficient weight were given to the Plaintiff’s expert evidence and the factual evidence of the Plaintiff and Lee Chueng Kan, the Judge should have found that the Land was enclosed by the wall since at least 1950.

23.  It is well established that this court will not disturb the primary findings of fact by the trial judge unless such findings are plainly wrong.  In the recent cases of China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 November 2015, Singh Harjit v Determination Business Ltd CACV 68 of 2015, 24 November 2015 and Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240 of 2014, 7 December 2015, this court explained the rationale for such a rule and its implications at length.  We shall not repeat what had been said in those judgments.  For the reasons canvassed in those judgments, it is not the proper function of an appeal to allow an appellant to re-argue a point of fact by repeating submissions that were advanced or could have advanced before the judge. Unless an appellant can pinpoint some palpable errors of the judge in his factual findings, this court will not intervene in relation to such findings. 

24.  Further, as pointed out in those judgments, the mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion on the evidence are not proper grounds for intervention.  An appellant challenging a finding of fact must either show that there was no evidence to support the judge’s finding or that it was based on a misunderstanding of the evidence (including disregarding relevant evidence) or that it was a finding which no reasonable judge could have reached.

25.  In the present case, the Plaintiff could not pinpoint any palpable error in the Judge’s primary findings at paragraph 53 of the judgment which warrants our intervention.  The Judge gave careful consideration to the relevant evidence and explained how he came to his findings on such evidence.  It is apparent from the judgment that he had regard to all the evidence before him, including the aerial photos, the expert evidence and the evidence of the factual witnesses.  He explained clearly why the evidence of the factual witnesses was of no assistance.

26.  In the skeleton submissions prepared by counsel, it was submitted that the Judge did not give sufficient weight to the evidence of the Plaintiff’s expert on a dark image in the 1945 and 1956 aerial photos and overlooked the lighter tone of the Land in the photos.  With respect, we are not impressed by this submission.  It is quite clear that the Judge had given great attention to the assessment of these photos and adequate reasons had been set out in the judgment why these photos did not have much probative value.  In substance, the submission was an invitation to this court to re-assess the evidence as a primary judge without any regard to the Judge’s findings.  As explained in the authorities, this is not a permissible course to take.

27.  In the oral submissions of the Plaintiff, he attempted to repeat his factual evidence.  We did not allow him to do so because it is not our function to re-hear such evidence. 

28.  Madam Chu Chi Li, the wife of the Plaintiff (we exceptionally granted her indulgence to address us at the request of the Plaintiff, who had become too emotional to address us) said there were other witnesses who could prove the existence of the wall.  However, those witnesses were not called at the trial and there is no proper basis for allowing such evidence to be adduced on appeal. 

29.  For these reasons, the appeal against the factual findings of the Judge at paragraph 53 of the judgment must fail.

Appeal on proprietary estoppel

30.  Ground 5 of the Notice of Appeal relates to the Judge’s holding against the Plaintiff on proprietary estoppel.  The Plaintiff did not elaborate on this ground in his oral submissions. 

31.  In the skeleton submissions, counsel for the Plaintiff argued this part of the appeal by reference to the five probanda of Fry J in Willmott v Barber (1880) 15 Ch D 96.  As the Judge discussed in the judgment, the law on proprietary estoppel should be put on a broader basis, see Taylors Fashions Ltd v Liverpool Trustees Co [1982] 1 QB 133 at 151; Kung Wong Sau Hin v Sze To Chun Keung [1996] 3 HKC 292 at p.299; Mutual Luck Investments Ltd v Yeung Chi Kuen (No 1) [2003] 1 HKC 47 paragraph 111.  At the same time, as observed by the House of Lords in Cobbe v Yeoman’s Row Management Ltd  [2008] 1 WLR 1752,  unconscionable conduct per se is not a sufficient ground for granting relief.  As Lord Scott said at paragraph 17, there has to be some coherent formulation of the content of the estoppel or the proprietary interest that the estoppel is designed to protect.  

32.  There is no challenge to the Judge’s conclusion on the law as stated at paragraph 97 of the judgment and we are content for the purpose of the present appeal to adopt this principle as the applicable law: it is unconscionable that a landowner should knowingly stand by while a stranger incurs a detriment or disadvantage acting upon some misapprehension of his legal position with regard to the land.

33.  In light of the following circumstances as identified by the Judge, we cannot see how the Judge’s conclusion that it was not unconscionable for the Government to assert its title over the Land can be faulted. 

34.  As found by the Judge, the Plaintiff entrusted the redevelopment of the house in 1995 to Lee Tim-choi.  He did not call that person to give evidence at the trial.  In this connection, we firmly reject the written submission of counsel for the Plaintiff that the knowledge of Lee Tim-choi was irrelevant.

35.  Further, the construction of the new wall and the paving of the Land happened after the inspections of the new house by the District Lands Office, North.  There was no explanation by the Plaintiff or Lee Tim-choi why, if either of them genuinely believed that he had a right to erect the new wall (as repositioned) and encroached upon the Land, there was such a time gap between the construction of the house and these works.  The Judge was plainly right in holding that the court could not be satisfied that there was mistaken belief or reliance upon such belief on the part of the Plaintiff in carrying out such works.  With such an unexplained gap, we cannot accept the written submission of counsel for the Plaintiff that the Plaintiff had manifested a settled intention to develop and occupy the Land for personal use throughout the course of redevelopment.

36.  We therefore reject this part of the appeal as well.

Disposition

37.  For the above reasons, we dismiss the appeal.  There is a cross-appeal by the Defendant challenging the Judge’s conclusion on whether time should start to run again in 1997.  In light of the lack of oral submissions by counsel for the Plaintiff on this point of law, Mr Mok properly and wisely accepted that the present appeal would not be the appropriate occasion for this point to be considered by this court if it is unnecessary to do so.  We therefore refrain from expressing our views on this part of the case.

38.  We shall also order the Plaintiff to pay the costs of the Defendant in the appeal.  But we would order each party to pay his own costs in respect of the cross-appeal.  The costs are to be taxed if not agreed.