TANG KAI TUNG, the Manager of TANG YUK CHO TSO v. TANG WAI LUN

CACV 176/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 176 OF 2015

(ON APPEAL FROM HCA 2411 OF 2012)

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J U D G M E N T

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Hon Yuen JA:

1.1. This is the defendant’s appeal from a judgment of DHCJ Seagroatt given on 30 June 2015 (“the Judgment”) in HCA2411/2012 which was commenced by the plaintiff the Tang Yuk Cho Tso 鄧旭(煜)初祖 (“the Tso”) against the defendant Tang Wai Lun 鄧煒麟 (“TWL”) for possession of six lots of land in Kam Tin, New Territories registered in the Tso’s name, an injunction restraining him from entering into or remaining on the lots, and damages for trespass.

1.2. In the Judgment, the judge ordered TWL to give possession to the Tso and to pay the costs of the action.  Although there was no order for split trial, the sealed order contained an order that damages be assessed.

2. It was the Tso’s case that after the death of TWL’s father Tang Ping Kwan 鄧炳坤 (“TPK”) on 24 April 2001, TWL “wrongfully and without the consent of the [Tso] commenced to enter and did enter the said lands and thereafter remained in possession thereof regardless of the [Tso’s] rights”. 

3.1. TWL put forward two defences:

-  first, that he was the beneficial owner of the lots through succession as his grandfather Tang Shu Fun 鄧樹勳 (“TSF”) had bought them in 1936/1937;

-  second and alternatively, adverse possession. 

3.2. In respect of the second defence, TWL pleaded in para. 5 of his Defence that:

(1)  by 1957 TPK acquired rights in the lands as adverse possessor and

(2)(a) thereafter TPK and he (TWL) jointly adversely possessed the lands, and upon TPK’s death in 2001, he was the sole adverse possessor;

 (b)  alternatively to (a), on TPK’s death, he and TPK’s other children succeeded to TPK’s rights in the lands. 

3.3. It would however be noted that in TWL’s witness statement, he said (para. 48):

“After the death of TPK on 24^th April 2001, I entered the said lands and have since remained in uninterrupted possession and/or control thereof without the [Tso’s] consent”.

That does not seem to support the allegation in para. 5 of joint adverse possession between 1957 and 2001. Rather, in respect of that limb of his defence where he was asserting sole adverse possession after 2001, his statement is consistent with the Tso’s case. 

Background

4. The case had a long factual and procedural history.  For present purposes, it is sufficient to summarize it as follows. 

5. The parties are all distantly related through birth or adoption, although TWL initially disputed the status of the branch of the family to which the current manager of the Tso, Tang Kai Tung 鄧啓東 (“TKT”), belongs. 

6. The lots in question, viz Lots 915, 961, 1109 and 1144, and Kam Tin Pak Pin Lots 137 and 168, all in DD 109 (“the subject lots”) were originally acquired by Tang Ching Tai 鄧政泰 (who was also known as Tang Yuk Cho).  The subject lots then came to be held in the name of the Tang Ching Tai Tso. 

7. By a memorial dated 5 December 1919, a “Division of Property” was registered whereby the subject lots were registered in the name of the Tso. 

Appointment of Tang Cheong Ming as trustee

8. On 24 October 1931, there was registered against the subject lots the appointment of Tang Chong Ming 鄧創明 (“TCM”) as trustee for the Tso.  The memorial explicitly stated “that no transactions are to take place in the property without the consent of the DO [District Officer]”.

“Conveyances of sale”

9. It was TWL’s case that a few years after this, TCM sold the subject lots to his grandfather TSF.  In support of this, TWL produced at the trial two original Chinese documents, exhibited as “D1” and “D2”. 

“D1” - conveyance of land

10.1.  Document “D1” was written on a form with the printed letterhead 厘印總局 (Stamp Duty Main Office).  A 10-cent Stamp Duty revenue stamp was affixed at the top, and a “Hong Kong Stamp Duty” chop impressed on the stamp indicated the date “30 January 1937”.

10.2. The document was handwritten in Chinese and was dated 28 December 1936.

10.3.  It stated the following:

-  the maker of the document TCM has entered into an irrevocable sale of fields 賣斷田;

-  the fields sold were “DD109 Lots 915, 961, 1109 and 1144 and separately two houses DD109 Lots 168 and 137”;

-  the fields were property left by TCM’s ancestors, which he has sold to his relative TSF;

-  the sale price was $140, of which the deposit of $108 was transferred immediately, with the balance to be paid the next day.

10.4.  At the end of the document, after the date, the name TCM was written as the maker of the document.

10.5.  Next to the name was a signature under the word “witness”.  Above that was an endorsement which stated that half of the south side of Lot 137 in DD109 was given to TSF for his management and control 歸樹勳管業.

“D2” - conveyance of house

11.1. Document “D2” was also written on a printed Stamp Duty Main Office form.  Similarly a 10-cent revenue stamp was affixed at the top, but the Hong Kong Stamp Duty chop impressed on the stamp indicated the date “18 January 1937”.

11.2. The document was also handwritten in Chinese and was dated 26 January 1937 (which was after the date of the Stamp Duty chop).

11.3. It stated the following:

-  the maker of the document TCM has entered into an irrevocable sale of a house 斷賣屋 as he was unable to pay household expenses and had no money to meet urgent needs;

-  the house was on Lot 137;

-  the house was property left by TCM’s ancestors, which he has sold to his relative TSF;

-  the sale price was $34 of which TCM acknowledged receipt in full on the same day 即日… 收足 for his household use;

-  the house was given on the same day即日推出to TSF for his permanent management and control 永遠管業. 

11.4. As in “D1”, after the date, the name TCM was written at the end of the document as the maker of the document.  However, unlike “D1”, there was no endorsement or attestation. 

11.5. Neither of these alleged conveyances was registered against any of the subject lots. The Tso alleged that they were forged.  The judge considered that they were “highly suspect” (para. 107). 

Death of TCM

12. The judge accepted on the basis of a death certificate (albeit issued in the name of Tang Cheung Ming 鄧昌明) that TCM died on 2 September 1937 (paras. 33-34). There is no appeal from this finding of fact.  For reasons which will appear later in this judgment, this date is important. 

Death of TSF

13. Subsequently TSF died in 1939 (para. 4). 

Vacancy in position of manager of Tso

14. The death of TCM led to a vacancy in the position of manager of the Tso. 

15. In 1974, TKT’s brother Tang Kai To 鄧啓濤 applied to be appointed manager of the Tso.  However TPK objected to this.  As mentioned earlier, there was a dispute regarding the status of the branch to which he belonged.  Importantly, according to TWL’s testimony at the trial, TPK wished to be manager of the Tso himself.

“The TPK letter”

16.1. The following year (1975), TPK sent a letter to the Kam Tin Rural Committee (“the TPK letter”), alleging that since his father TSF had bought the subject lots, the Tso had no property for Tang Kai To to manage (this notwithstanding TPK’s own wish to be manager). 

16.2.  TWL produced a copy of the TPK letter at trial.  The following contents are notable:

(1)  TPK alleged that TSF had taken over 官契 (the official title deeds) of the subject lots and his family had paid the Crown rent over the years for which they had receipts;

(2)  TPK alleged that Tang Kai To had falsely reported that TCM died in March 1935, when in fact TCM had died in 1938, which (TPK claimed) could be verified at the Births and Deaths Registry and amongst the elders of the village;

(3)  the sale and purchase of the Tso property from TCM to TSF was evidenced by 當年單據 (contract note of the same year) of November 1937;

(4)  a photocopy of the contract note was purportedly enclosed with the letter. (However neither the original nor a copy was produced at trial, and TWL’s testimony was that he had never seen a contract note dated 1937).

16.3. It would be noted that the date of the contract note (November 1937) which TPK relied upon as evidencing the sale and purchase of the subject lots from TCM to TSF is 

(a)  inconsistent with the dates of “D1” (28 December 1936) and “D2” (26 January 1937); and

(b)  after TCM’s death (2 September 1937). 

Appointment of manager of Tso

17. Even though Tang Kai To’s application to be appointed manager of the Tso was made in 1974, the position was not filled until 16 October 1995 when the District Officer approved the appointment of his brother TKT. 

The 1998 Action

18.1.  In February 1998, TPK issued HCA1705/1998 (“the 1998 Action”) against TKT as manager of the Tso.  He claimed that TCM was “the sole beneficial owner” of the lots after the Division of Property, and that TCM had by the “conveyances of sale” sold the subject lots to TSF.

18.2.  TPK sought:

(a)  an order that TKT execute a confirmatory assignment to confirm the transfer to himself (TPK) of “the Tso’s legal and beneficial interest in” the subject lots;

(b)  alternatively, declarations that

-  the Tso’s title to the subject lots was in or about 1957 or thereafter extinguished pursuant to s.17 of the Limitation Ordinance Cap. 347 (“LO”);

-  he (TPK) had an adverse possessory title over the subject lots.

19. It would be noted that:

(1)  the year 1957 was 20 years after 1937 which was the year of the conveyance of the house and the contract note, but not the year of the conveyance of land; and

(2)  TWL was not a party in the 1998 Action, and although TPK pleaded that he (TPK) occupied the lots with his family, he did not assert that TWL was in joint adverse possession with him.

20. In the Defence, the Tso (amongst other things) 

(a)  alleged that the purported signatures of TCM on the “conveyances of sale” were forged; and

(b)  denied TPK’s claim of adverse possession.  It pleaded that the lots were either let to the Tso’s tenants or were currently vacant, and that Lot 168 had been vacant before TPK erected a house there in 1994 or 1995.  However it did not go on to plead who was in possession of the house on Lot 168 and there was no counterclaim for possession against TPK.

21. Between November 1998 and 2001, there was little progress in the 1998 Action. 

22. On 24 April 2001, TPK died.  Pausing here, it appears to be common ground between the Tso and TWL (see para. 3.3 above) that TWL on his own then commenced to enter into possession.

23. On 5 September 2001, TWL was appointed to represent TPK’s estate and to carry on the proceedings by order of the court made under Order 15 rule 6A RHC.  It would be noted that TWL was thereby made a party only in the capacity of representative of TPK’s estate, but not in his personal capacity.

24. The 1998 Action also did not progress.  Eventually in 2011, the court ordered the action to be struck out for want of prosecution.  An appeal against the order was dismissed by the Court of Appeal (Hartmann JA, Lam and Barma JJ) on 17 February 2012. 

The 2012 Action

25.1.  A few months later, the Tso commenced the present action (“the 2012 Action”). As noted earlier in this judgment, the Tso’s cause of action alleges TWL’s trespass after 2001.  TWL’s defence in the pleadings and his witness statement have been set out in paras. 3.1 – 3.3 above. 

25.2.  At the trial, both TKT and TWL gave evidence in court, particularly regarding the use of the lots over the years. 

The judge’s Judgment

-  No beneficial title

26. The judge’s findings in respect of the first issue, ie whether TWL had beneficial title to the subject lots by way of TSF’s purchase from TCM, were as follows.  The judge held that he was not satisfied that the two “conveyances of sale” exhibited as “D1” and “D2” were authentic.  The custody, provenance and the creation of the documents were unknown (para. 122).  Moreover the judge found they had not been signed by the alleged vendor and so would have been ineffective in any event under the Conveyancing and Property Ordinance Cap 219 (“CPO”) (para. 120).  He also held that they did not meet the requirements of the “Lands Ordinance, section 134/31 and its succeeding legislation” (para. 121, a matter which will be discussed later in this judgment).

27. Further the judge discussed certain original documents TWL had produced at trial in support of his case, viz

(a)  a certificate 執照 (“the certificate”), originally issued on 1 December 1919 by the District Land Office, Tai Po, but containing subsequent endorsements which recorded that in the Rent Rolls, TCM as manager of the Tso was the registered owner of the lots listed in the certificate (including the subject lots); and

(b)   Crown Rent receipts for the subject lots dating from 1946 and continuing (intermittently) to June 1997. 

- (a) The certificate  

28.1.  As far as (a) the certificate was concerned, the judge accepted that “somehow, at sometime the certificate came into the possession of [TWL’s] family” (para. 109), but that “when and how [TWL’s] family obtained possession of the certificate is not known” (para. 95).

28.2.  In any event, as the judge noted, the certificate contained an express caveat that it gave no title to the lands, nor could it be transferred or dealt with in any way (para. 44). 

28.3.  The judge also noted the handwritten endorsement, which stated:

“No transaction to be allowed on this property without the consent of D.O. see L.O. 134/31”.

28.4.  This is identical to the endorsement in the memorial registering TCM’s appointment as trustee of the Tso in 1931. The judge noted that there was no evidence that TWL or his forebears ever tried to obtain consent for TCM’s purported sale of the subject lots (para. 45). 

28.5.  Pausing here, the judge seemed to think that “L.O. 134/31” referred to “Lands Ordinance, section 134/31” (para. 121).  With respect, that was in error. “L.O. 134/31” was the file reference in the box for “Name and additions of Witness” in the memorial registering TCM’s appointment as trustee of the Tso in 1931.

28.6. Despite this error, the judge was nevertheless correct in finding that there was no evidence that TWL or his forebears ever tried to obtain consent which was required under s.15 New Territories Ordinance Cap 97 (“NTO”) for dealings with Tso land.  There is no dispute that this section, or previous versions, applied to the subject lots at all relevant times as they were tso properties.  In its current form, the section provides (where material):

“15. Whenever any land is held from the Government under lease or other grant, agreement or licence in the name of a clan, family or t’ong, such clan, family or t’ong shall appoint a manager to represent it. Every such appointment shall be reported at the appropriate New Territories District Office of the Home Affairs Department, and the Secretary of Home Affairs on receiving such proof as he may require of such appointment shall, if he approves thereof, register the name of the said manager who shall, after giving such notices as may be prescribed, have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, subject to the consent of the Secretary for Home Affairs, and shall be personally liable for the payment of all rents and charges and for the observance of all covenants and conditions in respect of the said land. ...”. (Emphasis added).

28.7. The judge also observed that in the list of lots on the certificate, the numbers of some lots had been struck through and the word “Sold” written in English against them.  However that was not done for the subject lots (para. 43).  The judge took the view that if the subject lots had indeed been sold by TCM to TSF, there would have been similar notations (para. 47).

28.8. Accordingly the judge found that the certificate was inconsistent with the alleged conveyances.

- (b) The Crown rent receipts

29.1.  As for (b) the Crown rent receipts, the judge accepted that “these receipts were in the possession of [TWL], no doubt handed down to him by his forebears” (para. 38).

29.2.  However in his discussion of these documents at paras. 35 - 40 of the Judgment, the judge noted that the receipts were in the name of the Tso as owner, in contrast with one receipt (in respect of another lot) which was in the name of TSF.  The judge decided that “the only conclusion to be drawn from the position disclosed by these receipts is that throughout the period concerned, and beyond it if more receipts exist, [TWL’s] forebears were acknowledging the Tso’s ownership of the lots of land and paying the Crown Rent on its behalf” (paras. 40 and 110). 

29.3.  Accordingly the judge rejected TWL’s defence of beneficial title. 

-  No adverse possession

- Findings of fact

30.1.  As for the defence of adverse possession, the judge made the following findings of fact.

30.2. The judge found (amongst other things) that:

-  it was “impossible to know what happened between 1937 and 1946” (para. 123);

-  after the liberation of Hong Kong, “if [TWL’s] forebears were in possession of the lots (emphasis added) ... it was as quasi-managers of the Tso or as trustees and they acknowledged this” (para. 123);

-  between 1946 and 1974, the family paid the ground rent (para. 96) and “had the de facto management of these lots on behalf of the Tso for a number of years”, but “how they used these lots is not known with accuracy” (para. 95);

-  in 1974/75, the TPK letter “raised a claim of entitlement by virtue of an alleged contract of sale” which he knew to be disputed (para. 97); however the judge did not believe that at that time the family had in its possession the alleged conveyances (para. 99); 

-  between 1975 and 1995, TPK blocked the appointment of a manager to represent the Tso (para.101) and “one of the obvious motives for this was to be in a position whereby they could establish their title to the lots in question” (para. 94);

-  in 1998, TPK instituted the 1998 Action and “extended their activity in relation to a number of the lots” (para. 102);

-  the period taken up by the 1998 Action (ie 1998 to 2011) was not a period on which TWL could rely for adverse possession (para. 105) 

30.3.  It would be noted that as far as the actual position on the ground was concerned (ie the use of the subject lots),

-  the judge examined TWL’s evidence in relation to each of the lots (paras. 71 - 82) and found that his direct evidence was “very limited” and “not supported by any of his brothers” (para. 82);

-  the judge noted that there were no statements from the persons who had allegedly rented some of the lots from TWL or his forebears (paras. 75, 77, 79 and 81);

-  the judge found TWL to be “an unconvincing witness” (para. 92) and that “how they used these lots is not known with accuracy” (para. 95).  The judge held that since he did not accept TWL’s evidence, “he has not established exclusive possession.  He may well have had ‘animus possidendi’ for some time – and certainly this is demonstrated by what he tried to do after 1997 (assuming for the moment that this leasing activity had not been fabricated) but that falls short of ‘adverse possession’” (para. 104);

-  in contrast, the judge was “inclined to the view that the [Tso’s] version of their use, certainly up to 1995/1996, is more credible” (para. 104).

- Decision on law

31.1.  Further, the judge held that even if the conduct of TPK and TWL in relation to the subject lots were to be regarded as adverse possession, the relevant limitation period had been “renewed by the continual birth of new members to the Tso” (para. 116). 

31.2. The judge adopted Deputy Judge Lam (now Lam VP)’s encapsulation of the law in Leung Kuen Fai v Tang Kwong Yu Tso [2002] 2 HKLRD 705 which was to the following effect.  The concept of adverse possession and the LO applied to land in the New Territories.  However under Chinese customary law, a male descendant of the Tso’s focal ancestor automatically becomes a member of the Tso at birth and is therefore entitled to an interest in the Tso’s land for his lifetime.  As a beneficiary, each member has an interest in the land and can claim possession against a stranger.  The legal consequence is that upon each member’s birth, the limitation period against a stranger is extended by virtue of s.22(1) LO to the 6^th anniversary of his reaching the age of majority.  Leung Kuen Fai was applied by this court (Cheung CJHC, Lam VP and Barma JA) in Tsang Kwong Kuen v Hau Wai Keung Gaius [2014] 5 HKLRD 622.    

32.1.  In the present case, the list of members of the Tso and their respective dates of birth have been set out in the Judgment at para. 115.  There was a period of slightly short of 3 years between 6 December 2005 and 25 November 2008 when all the members of the Tso had attained majority for 6 years or more. 

32.2. However during this 3-year period, the 1998 Action was still extant.  The judge held (para. 119):

“Any gap in the succession of beneficiaries was inconsequential with the 1998 action being afoot. By the time it was struck out, two new beneficiaries had been born. Equity does not aid the negligent, the dilatory or the vexatious. The period occupied by that action, viz at least 12 years, cannot be used by a person claiming adverse possession, as part of the period of such claimed possession”.

33. Accordingly the judge gave judgment for the Tso.  Although there was no order for split trial and the Judgment did not refer to a separate assessment of damages, the sealed order contained an order that damages be assessed.

Appeal

34. On appeal Mr Ambrose Ho SC (who did not appear below) leading Mr Gary CC Lam advanced the following grounds, put briefly:

(1)  the judge was wrong to reject the authenticity of the two conveyances of sale exhibited as “D1” and “D2”;

(2)  the judge was wrong to take into account the fact that the subject lots were not included in the memorial on succession to property when TPK succeeded TSF in 1958;

(3)  the Tso had not pleaded or run the argument that if TWL and his forebears had occupied the subject lots, such occupation was as agents for the Tso, and the judge’s view was in any event erroneous;

(4)  the judge was wrong in holding that the 1998 Action stopped the running of the limitation period;

(5)  in respect of Lot 137, TKT’s evidence was that TWL had changed the lock of the house in 1992/3 after which the Tso’s tenant no longer rented it, and in respect of Lot 168, the Tso’s case was that TPK or TWL had erected a house on this lot in 1994/5; accordingly, even on the Tso’s own evidence, the judge should have found that the limitation period in respect of these two lots had expired in 2007;

(6)  limitation had run against all the members of the Tso in 2002 (Mr Ho later accepted that the correct year is 2005)¹, and the right to seek recovery of possession did not revive when the next member was born in 2008;

(7)  since there was no order for split trial, the court should only award nominal damages if no evidence had been called on quantum.

Respondent’s Notice

35. The Tso filed a respondent’s notice to affirm the Judgment on two additional grounds:

(1)  that even if the two conveyances of sale exhibited as “D1” and “D2” were genuine and bore the signature of TCM, they were ineffective as they failed to comply with s.15 NTO;

(2)  even if TWL had been in adverse possession, the limitation period had not expired because the interest of an unborn member had not yet run out.

Discussion

(1)  The two “conveyances of sale”

36. There were a number of points on this topic and I shall deal with each in turn. 

37.1. First, the Tso’s case was that the signatures of TCM were forged (para. 18).  The judge did not explicitly find they were forged, but he did find that they were not signed by TCM (paras. 21 and 25) and as the documents had not been signed, they did not comply with the CPO (para. 120).  Although the documents purport to have been written in TCM’s own hand, Mr Ho did not submit that a predecessor of this ordinance did not nevertheless apply. 

37.2.  However this is only one aspect of the evidence concerning these conveyances.  I shall discuss the other aspects below. 

38.1.  Second, Mr Ho submitted that the judge had failed to take into account the Tso’s lack of challenge to the authenticity of the witness’ signature, and the “significance of there being a witness must be to attest to the content of the transaction and/or the signature of the signatory (TCM)”. 

38.2.  I accept Mr Ho’s submission that in the normal course, a document would not be attested unless its content was of some importance.  But the judge was expressly aware of the attestation.  The weight to be given to that fact was a matter for the judge and it is well-established that an appellate court would not intervene with a trial judge’s weighing of individual pieces of evidence.

39.1.  Third, Mr Ho pointed out that the Tso did not challenge the authenticity of the revenue stamps and (he submits) “both stamps bore dates contemporaneous with the documents themselves”.  He relied on the presumption of regularity which applies to documents 20 years old or more. 

39.2. With respect to Mr Ho, I cannot agree with the latter submissions.  The alleged conveyance of the house (“D2") was stamped before it was executed.  The judge was referred during the closing submissions to passages in two works that suggested that pre-paid stamped blank forms/“deeds blank” were issued by the Stamp Office and had been used by people in the New Territories before the Second World War.  However no expert evidence was called and the judge did not find this explained the dates in “D2”.  In the absence of such a finding, this document is irregular for the reasons following (paras. 39.3. – 39.5). In this court Mr Ho did not refer us to those passages, but it seems to me that if indeed there were such blank forms available, then anyone who acquired such a blank form could have written on it at any point in time (these documents not having been registered), which would lead to questions of authenticity and veracity especially when (as will be discussed later) the evidence of provenance and custody was unreliable. 

39.3.  First, it is trite that liability to stamp duty arises only on executed instruments relating to property.  It is not a tax on the transaction as such – instruments are stamped because without stamping, the instrument could not be enforced.  Second, the amount of stamp duty depends on the terms disclosed in the instrument.  For those reasons, instruments are stamped after they are executed.  However that was not the case with the purported conveyance of the house. 

39.4. Moreover the date written on the document did not purport to be a date on which an act would take place in the future.  On the contrary, it purported to record a transaction which had already taken place on the date written on the document.

39.5.  In my view, the dates of the stamping and the document raise a significant question about the regularity of the document.  It is a question to which TWL, the proponent of the document, has not provided any evidence in answer. It rebuts the presumption of regularity which applies only to documents which are produced from proper custody and which are “otherwise free from suspicion”: Phipson on Evidence, 18^th ed para. 40-36.

39.6.  Mr Ho submitted that irrespective of “D2”, there was no such problem with “D1”, the conveyance of the lands.  However, the court cannot shut its eyes to the irregularity of “D2” when considering “D1”.  The two documents purport to have been made between the same parties and were meant to be complementary, one being a conveyance of the lots, and the other being a conveyance of the house on one of the lots.  They were produced together.

39.7.  Moreover, the judge was entitled to question whether the conveyances had been produced from proper custody.  TWL’s evidence was that his father TPK had received them from his adoptive mother (TSF’s wife), and TPK then passed them on to him in 1990.  TWL said he had first seen these documents “in the early 1970’s” (para. 29). 

39.8.  However if TPK indeed had the documents back then, there was no reason why he did not rely on them in his letter to the Rural Committee in 1975.  Instead he sought to rely on a “contract note”, which could not have been either of these “conveyances of sale” because its date was well after the dates appearing on the conveyances, and indeed even after TCM’s death.  Putting it another way, in view of TPK’s purpose in sending the letter, it would have been natural for him to put forward these conveyances in support of his case, had they been in the family’s custody since the early 1970’s as TWL alleged.  The fact that TPK did not do so speaks volumes. 

39.9.  Taking these two important matters (paras. 39.5 and 39.8) into account, the judge was entitled to take the view that “D1” and “D2” were not reliable pieces of evidence on which the court could base a finding that TCM had purportedly transferred the subject lots to TSF.

40.1.  I say “purportedly transferred” because the other, and perhaps more important, point is that the conveyances would not have been effective in any event, for the consent of the District Officer had not been obtained to that dealing with Tso land under s.15 NTO (set out in para. 28.6 above).

40.2.  In Light Ocean Investments Ltd & Anor v Enway Development Ltd [1994] 3 HKC 31, it was a condition of an agreement for sale of properties from the appellants to the respondent that on a specified date (29 March 1993), the appellants must have a legal or equitable title to the properties.  The properties belonged to two Tsos.  Before the specified date, the managers of the Tsos had in fact agreed to sell the properties to one of the appellants.  However it was only after that date that (a) the managers’ appointments were registered and (b) the consent of the Land Officer was obtained for the sale of the properties. 

40.3. The Court of Appeal held that the appellants had not complied with the condition. Nazareth JA held (p.37-38):

“I would add that approaching the matter from the different direction of simple statutory construction, consent is on the plain meaning of s 15 necessary, and cannot be dismissed as surplusage or insignificant, given the object of the legislation as explained by Briggs J (as he then was) in Lai Chi Kok Amusement Park Co Ltd (No 2) v Tsang Tin-sun [1966] HKLR 124, 130.

Addressing the foregoing matters as on 29 March 1993, clearly the managers were not registered. Equally, consent had not been obtained and the prospect of obtaining it was no better than uncertain. Plainly the vendors had not demonstrated on 29 March 1993 that they had legal or equitable right to a good title ...” (Emphasis added).

40.4.  In Lai Chi Kok Amusement Park, Briggs J had held that the consent of the Land Officer was “necessary to protect members of the t’ong against malpractices on the part of managers.  For this, the personal supervision [by the Land Officer] of any transaction entered into by the manager was desirable”. 

40.5. In Light Ocean, Litton JA described the requirement for consent of the Land Officer as a “statutory fetter on the powers of the manager” (p.40). 

40.6.  Mr Ho has not sought to argue that Light Ocean is not binding on this court, but he submitted that as between the parties, the agreement to sell the subject lots was nevertheless binding.  With respect, the issue is not whether TCM could have been held personally liable to TSF for breach of contract.  The issue is whether the title in the subject lots passed from the Tso (whose property they were) to TSF.  It is clear from Light Ocean that no legal or equitable right passed because there was no consent. 

40.7. In my view, that is fatal to TWL’s defence of beneficial ownership by way of succession from TSF.

(2)  Non-inclusion of subject lots in memorials of succession

41.1.  As such, it is not necessary to consider TWL’s second ground of appeal regarding the judge’s reference to the fact that the subject lots were not included in the memorial on succession to property when TPK succeeded TSF in 1958.  The judge said “it does therefore support the contention that [TWL’s] family had no claim of title to these [disputed lots]”.

41.2.  With respect to the judge, no point arises from the non-inclusion of the subject lots in the memorial of succession.  Since the subject lots were registered in the name of the Tso, s.21 NTO (which permits registration of successors to deceased landholders) would not have applied. 

41.3. However I do not think this matters to the end result on the beneficial title defence, which in my view is conclusively determined against TWL by the matters discussed above under the 1^st ground of appeal. 

(3) No case pleaded or run by Tso on occupation by agents

42. In relation to the adverse possession defence, Mr Ho first submitted that as the Tso had not pleaded or run the argument that if TWL and his forebears had occupied the subject lots, such occupation was as agents for the Tso, the judge was wrong to hold that they acted as the Tso’s agents, and the judge’s view was in any event erroneous.

43. The Tso’s case on the facts was that it was itself in occupation, whether by its members or its tenants (I shall discuss Lot 168 in more detail later in this judgment).  It is correct that the Tso did not plead or run an alternative case that TWL’s forebears occupied the subject lots as its agents.

44.1.  However it should first be noted that the burden was on TWL to prove that he and his forebears (1) had factual possession of the subject lots and (2) the intention to possess them.  “Factual possession” has been described as “exclusive possession”, or, put another way, “some sort of physical presence or at least being in physical control in some real way”.  For reasons summarized in paras.30.2 – 30.3 above, the judge was not persuaded by TWL’s evidence in this regard. 

44.2.  However the judge did accept that TWL’s forebears paid the Crown rents.  When the judge said that between 1946 and 1974 his forbears “continued to act as the Tso’s agent” (para. 96), and for the next 20 odd years (1975 to 1998) they “continued to pay the Crown Rents and acted as agents of the Tso” (para. 99), I think the judge was simply providing a legal description of their capacities when they made those payments.

44.3.  There was evidence to support such a conclusion.  First, the family could not have been paying the Crown rents as principals vis-a-vis the Crown, for the registered owner was the Tso, in whose name the District Office issued receipts. 

44.4.  Further, it should be noted that after TCM’s death in 1937, the Tso had no manager (the manager being the person responsible under the NTO to pay the Crown rents).  On TWL’s own evidence, TPK wanted to be appointed manager of the Tso.  Thus the payment of the Crown rents of Tso land by TPK was consistent with his claim to the position of manager, and it could not be said that the payment of the Crown rents was clear evidence on which the judge should have found that TPK himself had title in the subject lots or evidenced an intention to possess them.  In any event, an intention to possess by itself is not sufficient to prove adverse possession. 

(4) and (6) Limitation

45. Grounds (4) and (6) can conveniently be discussed together.  For ground (4), Mr Ho submitted that the judge was wrong in holding that the 1998 Action stopped time running for the purposes of limitation.  He submitted that even though TPK and the Tso were in litigation between 1998 and 2011 on the issues set out in paras.18 – 20 above, that did not stop time running because the Tso had not pleaded a counterclaim for possession, and hence during that period, it had not brought an action to recover land under s.7(2) LO. 

46. Before discussing that submission, the following points are notable regarding the Tso’s claim against TWL for trespass after April 2001:

(1)  as noted in para. 3.3 above, TWL’s own witness statement said it was after April 2001 that he entered the lands. Therefore, as far as that part of his defence of being sole adverse possessor in his own right is concerned, there would be no defence of limitation to the 2012 Action;

(2)  further, that statement is inconsistent with that part of his defence that TPK and he were in joint adverse possession before the latter’s death;

(3)   as for the yet other part of his defence that he (TWL) was entitled to remain in possession as one of TPK’s successors, Mr Ho didnotargue that the 1998 Action gave rise to any estoppel against the Tso.

47.1. In Mr Ho’s submissions on limitation, he cited the judgment of Neuberger J (now President of the Supreme Court, UK) in J A Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676.  In that case, the adverse possessor had registered cautions against the landowner’s title.  In 1997, the landowner applied to the Land Registry to vacate those cautions.  In 1998, the landowner issued an originating summons for an order that the cautions be cancelled.  But it was only in 1999 that the landowner issued proceedings for possession of the land.

47.2. Neuberger J held that the landowner’s acts in 1997 and 1998 were not actions to recover land for the purposes of the Limitation Act 1980.

47.3.  In the first place, the landowner’s application to the Land Registry in 1997 was not an “action” in the sense of a proceeding in a court of law. 

47.4. Then, in respect of the originating summons in 1998, his lordship first examined the nature and effect of a “caution”.  He held that the function of a caution was simply for the person registering it to obtain notice of proposed dealings by the landowner.  Even if a caution is vacated, the interest which it protects is not destroyed.  Therefore, even though the originating summons in 1998 was a court proceeding, it was not to recover land, but simply an action “whose purpose was to remove the cautions”, which did not affect the adverse possessor’s claimed interest (p.700). 

47.5. What s.15 of the Limitation Act (which is equivalent to s. 7(2) of the LO) envisaged was “proceedings in a court where the owner seeks, or perhaps specifically raises his right, to recover the land” (p.702). 

48.1. It can readily be seen that that is very different from our case.  In the 1998 Action, the parties were locked in litigation in respect of the claims of TPK to the beneficial title, alternatively, an adverse possessory title.  The Tso (albeit as defendant) specifically denied both claims and asserted its possession of the lots through the years.

48.2. In Neuberger J’s words, the landowner (the Tso) had in those proceedings “specifically raised [its] right to recover the land”.  In any event, the pleadings would have made it clear to TPK (and later TWL as his estate’s representative) what the Tso’s case was, and even if a counterclaim was technically necessary, had the action progressed, I do not see any judge refusing an application to amend the defence in order to add one (as the issues and evidence would be identical to the main action). 

48.3. In this connection Mr Ho referred us to the Reasons for Judgment of the Court of Appeal in CACV162/2011 dismissing TWL’s appeal against the strike-out of the 1998 Action.  In rejecting the second argument advanced by TWL’s then counsel, Barma JA (with whom the other members of the court agreed) noted that there was no extant counterclaim for possession and no indication that the Tso intended to make a claim for possession as it had not done so for the duration of that action (paras. 21 and 23). 

48.4. That was strictly speaking correct.  The Tso had not made a counterclaim for possession as its defence was that it had a right to, and was in, possession of the subject lots.  (Of course its case in the present action is that TWL commenced to enter into possession in 2001, during the 1998 Action, but TWL was not, in his personal capacity, a party in the 1998 Action.  The 1998 Action was an action involving only TPK’s claims which the Tso denied).

48.5.  In CACV162/2011, the court considered the pleadings as they stood, and considered the absence of a counterclaim for possession to be sufficient in the striking-out scenario to enable it to distinguish the case from Winpo Development Ltd v Wong Kar Fu and others (unrep., 8 February 2011, HCA 3541/1993).

49. For present purposes however, one must look at the substance of the issues in the 1998 Action.  Clearly the Tso had specifically raised its right to possession of the subject lots.  It was at the heart of the action and it would be artificial to suggest that it was not an action where the landowner had not raised its right of possession of the land.  A judgment on the merits in that case would have decided the issue of who was entitled to possession of the lots and would have been binding on the Tso and TPK (and those who succeeded him).

50. Further, it seems to me that where parties have commenced proceedings in court, any conduct outside court in furtherance of its case would be self-serving, and particularly so when that conduct complemented admitted, egregious delay in the conduct of proceedings. Therefore I agree with the judge that the 1998 Action did stop time running for the limitation period. 

51.1.  For Ground (6), Mr Ho submitted that limitation had run against all the members of the Tso in 2005, and the right to seek recovery of possession did not revive when the next member was born in 2008. 

51.2.  In light of my view on Ground (4), this submission cannot stand, because time had stopped running until 2011.  That is enough to dispose of this ground. 

52.1.  However I would just add that the Tso had filed a respondent’s notice to the effect that in any event, the limitation period has not expired because the interest of unborn members of the Tso had not yet run out. 

52.2.  The impact on limitation (if any) of unborn interests where the land is held by a t’ong or tso is a complicated and challenging issue.  Yam J expressed a view on this issue in To Kan Chi and Others v Pui Man Yau and Others (unrep. HCMP562/1992) but the discussion was extremely brief and this court should not be taken to confirm that view. 

52.3.  Subsequent to that case, in both Leung Kuen Fai and Tsang Kwong Kuen, the courts refrained from expressing a view on the issue, for in those cases, at no stage had time run out for all existing members.

52.4.  In our case, there is a period of about 3 years during which time had run out for all members (see para. 32.1 above) and if it had been necessary, this court would have had to tackle this issue head-on.  Unfortunately however no expert evidence on Chinese customary law was adduced on what interest (if any) an unborn member of a t’ong or tso has in property held by the institution, and what is the nature of that interest.  In the absence of relevant evidence on this aspect, it would in my view be unsafe simply to draw an analogy with unborn interests in traditional trust law.  In the event, the issue does not arise in the present appeal.

Ground (5) - Lots 137 and 168

53.1.  In respect of Lot 137, TKT’s evidence was that TWL had changed the lock of the house in 1992/3 after which the Tso’s tenant no longer rented it, and in respect of Lot 168, the Tso’s case was that TPK or TWL had erected a house on this lot in 1994/5.  Mr Ho submitted that accordingly, even on the Tso’s own evidence, the judge should have found that the limitation period in respect of these two lots had expired in 2007.

53.2. However, as was submitted by Mr Tony Ko (appearing with Mr Peter Chiu) counsel for the Tso, the evidence was only about two discrete acts.  There was no evidence that after those two acts, there was continuous possession of these lots for the required period because the judge rejected TWL’s evidence, and in any event, the 1998 Action had stopped time running.

Ground (7) - Damages

54.1 Finally Mr Ho submitted that as there was no order for split trial, the judge should have awarded only nominal damages since no evidence had been called on quantum. 

54.2. Counsel for the Tso accepted that there was no order for split trial, but submitted that the “fair letting value” of $30,000 a month had been pleaded in the Statement of Claim. 

54.3. I do not think that is enough.  The letting value was not admitted in the Defence and it is not suggested that any evidence was called to prove the allegation. Indeed it would appear that the issue of damages had slipped everyone’s minds, for there was no reference to it in counsel’s submissions or the Judgment.  In my view, the omission was not cured by including an order for split trial in the sealed order which was made without inviting submissions from the parties. 

54.4.  I would therefore allow the appeal on this ground only.

Order

55.1  I would dismiss the appeal save in respect of ground (7) and only set aside that part of the order whereby it was adjudged that the defendant do pay the plaintiff damages to be assessed.  In its place I would order that the defendant do pay nominal damages to the plaintiff in the sum of $100. 

55.2.  As for the costs of the appeal, I would make an order nisi that the defendant (the appellant) do pay the plaintiff (the respondent)  6/7th of the costs of the appeal with certificate for two counsel.

Hon Kwan JA:

56. I agree with the judgment of Yuen JA.

Hon Chu JA:

57. I agree.