SHING LUEN FAT v. SHING CHI PING

DCCJ3789/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3789 OF 2010

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RULING

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INTRODUCTION

1. This is the application of the defendant for leave to appeal to the Court of Appeal, pursuant to s 63A of the District Court Ordinance, Cap 336 and O 58, r 2 of the Rules of the District Court (“RDC”).

2. The case was about the dispute between the parties over a small plot of land, which is the western portion of the Remaining Portion of Lot 256 in Demarcation District 123 (“the Property”) in Tai Tseng Shing Uk Tsuen, a village in Yuen Long.  Very briefly stated, the plaintiff, by relying on the alleged successive adverse possession of his parents and himself starting in about 1960, sought a possessory title to the Property.  Further or in the alternative, by relying on common law prescription, he sought a right of way over a strip of land (“the Pathway”) running along the southern side of the Property.  On the other hand, the defendant counterclaimed for vacant possession of the Property, arguing that (i) the possession of the Property by the plaintiff’s father was pursuant to a free licence granted by the late sworn father of the defendant; (ii) the plaintiff’s mother and the plaintiff stayed on the Property only as permittee/licensee of the plaintiff’s father and therefore there was no successive adverse possession; and (iii) as the plaintiff’s family ceased to live on and possessed the Property after 1971, they had not been in continuous possession of the Property for a period of time sufficient to give the plaintiff a possessory title.

3. On 30 September 2013, this Court found for the plaintiff (“the Judgment”) and made the following orders in his favour:-

(i) a declaration that the plaintiff has acquired a possessory title to the Property, the defendant’s right to recover the Property has been time-barred and his title to the Property has been extinguished;

(ii) the defendant is to execute a deed poll and all other necessary documents for the purpose of carving out the Property from Lot 256 RP in DD 123;

(iii) an injunction that the defendant and his agents be restrained from doing anything to interfere with the plaintiff’s occupation of the plaintiff’s property and/or the Property (including the Pathway) and the plaintiff’s items on the Property;

(iv) the defendant is to pay the plaintiff damages in the amount of $10 for the defendant’s interference with the quiet enjoyment of the plaintiff’s property and the Property in 2010 and 2011;

(v) the defendant is to pay the plaintiff damages in the amount of $60,675, for the plaintiff’s property loss, such damages is to carry interest at half of the judgment rate from 27 January 2011 to the date of this judgment and after that at judgment rate to the date of payment; and

(vi) costs be to the plaintiff.

4. By a summons dated and filed on 25 October 2013, the defendant seeks leave to appeal against the above orders.

5. Both Mr Siu for the plaintiff and Mr Chu for the defendant had filed detailed written submissions for this leave application, which were supplemented by oral submissions in court, to all of which I am greatly indebted.

DRAFT GROUNDS OF APPEAL

6. The defendant’s draft grounds of appeal can be summarized as the following complaints:-

(i)  this Court failed to recognize the divergence of the common law between the United Kingdom and Hong Kong on adverse possession and wrongly followed the English approach stated in JA Pye (Oxford) Ltd & Anor v Graham & Anor[1] rather than the Hong Kong approach stated in Wong Tak Yue v Kung Kwok Wai David & Anor[2] (Grounds 1 to 3);

(ii) this Court applied the wrong test for assessment of the evidence, misunderstood part of the evidence and failed to approach the evidence of the plaintiff’s witnesses with scepticism, thus resulting in erroneous findings on animus possidendi (Grounds 4 to 12);

(iii) this Court erred in following the line of case authorities which say that animus possidendi can be established in case of a squatter who believed, erroneously, that he owned the property, thus resulting in erroneous findings on the presence of animus possidendi on the part of the plaintiff’s father (Grounds 13 to 15);

(iv) this Court erred in finding that there had been no abandonment of the Property by the plaintiff’s father (Grounds 16 to 22); and

(v) this Court erred in finding that there had been continuous, successive adverse possession of the Property by the plaintiff’s mother and the plaintiff  (Ground 23).

Based on the above complaints, Mr Chu submitted by concluding that the Court ought to have found in favour of the defendant (Ground 24).

TEST

7. The test for granting leave to appeal is well-known.  It is for the applicant to show that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard: see s 63A(2) of the District Court Ordinance.  A “reasonable prospect of success” means that there is an arguable case such that the chance of success is more than “fanciful” but without having to be “probable”: see Wing Tat Haberdashery Company Limited v Elegance Development & Industrial Co Limited [2011] 5 HKC 474, 476B-C; and also Ma Bik Yung v Ko Chuen [2009] 3 HKC 359, 360H-I, 361A-C.

CONSIDERATION

As to (i): the divergence between Wong Tak Yue and JA Pye

8. It has been firmly established that adverse possession requires the presence of two elements: (1) a sufficient degree of exclusive physical control (factual possession) and (2) an intention, in one’s own name and one one’s own behalf, to exclude the world at large, including the owner of the paper title, so far as reasonably practicable and so far as the processes of the law will allow (animus possidendi): see the celebrated judgment of Slade J in Powell v McFarlane[3] which has been authoritatively affirmed by the Court of Final Appeal in Wong Tak Yue.  The House of Lords in JA Pyehas also affirmed Powell v McFarlane.[4]  The only matter that Lord Browne-Wilkinson, who gave the leading judgment in JA Pye, said Slade J had erred was the latter’s reference to the necessary intention as being an “intention to own” rather than an “intention to possess”.[5]  Other than that, Lord Brown-Wilkinson approved as correct Slade J’s formulation of the “intention to possess”.  It has also to be noted that Li CJ, who gave the main judgment in Wong Tak Yue,also said “A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess.”  Therefore, there is no real inconsistency between JA Pye and Wong Tak Yue as to the constituent elements of adverse possession.  It is certainly not the effect of JA Pye, as Mr Chu seems to suggest, that factual possession alone would be sufficient.[6] 

9. Nevertheless, as observed by the Court of Appeal in Yu Kit Chiu & Ors v Chan Shek Woo,[7] there is a difference in approach between Wong Tak Yue and JA Pye as regards the legal effect of a statement by the squatter that he was willing to pay rent to the owner of the paper title if he had been requested to do so.  In Wong Tak Yue, it was held that such a statement by the squatter is inconsistent with the intention to possess.  However, in JA Pye, it was held that there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession.  It was also held that an admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime. 

10. The aforesaid difference in approach was also noted in Lau Wing Hong & Ors v Wong Wor Hong & Ors,[8] a case heavily relied upon by Mr Chu.  In Lau Wing Hong, what Recorder McCoy described as the separation point in the jurisprudence between UK and Hong Kong is also the relevancy and legal effect of a statement by squatter that he had the “intention to pay rent if the owners had requested payment”.  The learned recorder also noted the different conclusions reached by the Court of Final Appeal and the House of Lords as to whether such a statement “demonstrates that the squatter “was not intending to exclude the owner with the paper title, but showed that he was treating himself as enjoying possession under a lawful title from the owners.”[9] 

11. Nevertheless, the position remains the same, whether in UK or Hong Kong, that a squatter is required to show both physical possession and intention to possess in order to establish adverse possession.  With respect, the difference in approach between the courts in UK and Hong Kong is not, as Mr Chu submitted, that the former stresses on actual physical possession, whilst the latter emphasizes on the intention to possess.  The difference is about whether an inference of intention to possess can be drawn when the squatter admitted the title of the paper owner.  Lau Wing Hong’s case does not in fact support Mr Chu’s over-simplified proposition.

12. Furthermore, the aforesaid difference in approach between Wong Tak Yue and JA Pye is not germane to the present case.  The reasons are as follows:-

(a)  This Court set out at full length and applied the test as summarized in the Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire,[10] in which Powell v McFarlane, JA Pye and Wong Tak Yue were followed.

(b)  The passages from JA Pye referred to in the Judgment are about the meaning of intention to possession and they are consistent with what is said in Wong Tak Yue.

(c)  There was no evidence that the plaintiff’s father had agreed to pay any rent to the defendant’s sworn father or had otherwise treated himself as enjoying possession of the Property under the lawful title of the latter.

(d)  There was a finding that the plaintiff’s parents had the intention to possess the whole of the Property as their own to the exclusion of all others (see §49, Judgment)

13. Thus, this ground is wholly academic and can have no bearing on the outcome of the proposed appeal.

As to (ii): assessment of evidence

14. Mr Chu further submitted that, this Court by wrongly relying on JA Pye failed to appreciate the effect of Powell[11] that “clear and affirmative evidence” from the squatter is required so as to show that “he has to make it perfectly plain to the world at large” and if “his acts are open to more than one interpretation, then the courts will treat him as not having had the requisite animus possidendi”.

15. With due respect, this submission ignored the fact that the House of Lords in JA Pye actually affirmed what was said in Powell about intention to possess.[12]  It also ignored the fact that the Court at more than one place in the Judgment quoted and applied the same paragraph in Powell on which Mr Chu relied.[13] 

16. Besides, this Court quoted and relied on what Li CJ said in Wong Tak Yue that the question of intention to possess, as with any other question of intention, is one of fact and whether adverse possession can be established depends on an assessment of all the circumstances in a particular case.[14] Li CJ said in Wong Tak Yue about assessment of evidence as follows:-

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”[15] (Emphasis supplied)

17. The above passage does not support the broad proposition, which Mr Chu seemed to advocate, that the courts should be sceptical of whatever the squatter or his witnesses say which is in his favour and give full weight to whatever they say which is in his disfavour.  This broad proposition do not do justice to the true import of Li CJ’s guidance, that is to say that the squatter’s statements as to what his state of mind was at the relevant time should not be accepted at face value, but should be viewed against the backdrop of the circumstances in which they were made and given such weight if any as they may deserve.  On the other hand, it is trite that the mere fact that a witness has aself-interest to serve does not necessarily mean that all of his testimony is untrue.  In the present case, this Court arrived at its findings only after all the relevance evidence had been considered as a whole.  Moreover, demeanours and credibility of witnesses were measured against the inherent probabilities and improbabilities of the matters they testified.  

18. This Court made the following findings:-

“39. Having observed PW1, the plaintiff, PW3 and PW4 giving evidence in the witness box, I find that they gave their evidence in a straightforward manner and their evidence is not shaken under cross-examination. I also found that there are no major inconsistencies among them which cause me to doubt their general credibility or reliability.

…

42. Having observed the defence witnesses giving evidence in the witness box, I do not find their evidence on the alleged abandonment as credible. I do not accept their evidence that the Building was not secured after 1971, that there was no gate at the entrance of the Building and that poultry had been kept in the Pathway.

43. Secondly, I note that the defence evidence on the aforesaid areas is contradictory to the evidence of the independent witness PW1, who said that he had not seen anyone playing inside the Building or dumping garbage on the Property. Also, PW1 had not seen DW5 rearing poultry in the Pathway. Instead, he said that she kept chicken and ducks at a location close to and beside her house.

44. Thirdly, I find the defence evidence that there was no gate at the entrance of the Building inherently improbable. As the Building did not have a front door, if there was not a gate, then anyone could walk straight from the pathway into the plaintiff’s home without any hindrance. That would be extraordinary to say the least. I accept the evidence of the plaintiff that there was a gate made of iron pipes and mesh wire when his family was living there. Although there is evidence that the roof of the Building was damaged by typhoon in 1972, there is no evidence that the typhoon also damaged the gate. There is also no evidence that the gate was removed by anyone before 2000 when the plaintiff built his village house. The inference I draw is that the gate was still there after they had moved out.

…

46. Having considered all the evidence as a whole, I find that there was a gate at the entrance of the Building after the plaintiff’s family had moved out. I find that after their moving out in 1971, the plaintiff’s family continued to keep their belongings on the Property, that the Building was then secured by means of the gate and a padlock, that the plaintiff’s family regularly returned to the village and entered the Building by means of a key, that subsequently Shing Yat Yi also stored bathroom and toilet sets on the Property and some of them were still there when the defendant demolished the remains of the brick walls on 27 January 2011, that the plaintiff stored building materials on the Property when his village house was being built, that the gate was only removed by the plaintiff in 2000 and that after the plaintiff moved into his village house he planted trees and put potted plants and tools in the Property.

…

49.   Based on the evidence before me, I also find that all along the plaintiff’s parents had the intention to possess the whole of the Property as their own to the exclusion of the others.  …”

The above are findings of fact which this Court was entitled to make.  The Court did not start at the winning post and run backwards as Mr Chu suggested it did.  Even if one may disagree with the findings of the tribunal of fact, that alone does not afford a party a ground of appeal: Ting Kwok Keung v Tam Dick Yuen & Ors.[16]

19. As regards Mr Chu’s submission that this Court erred by “failing to accord considerable weight to the alleged inconsistent evidence of PW1 as to whether or not there was a lock securing the gate since the 70’s”,[17] it has to be noted out that PW1 was not living in the village between 1964 and 1980 and therefore he was not in a position to say what there was a lock during 1970s.  Moreover, in re-examination PW1 said that he observed the gate from the far end of the Pathway at a distance of 20 to 30 feet and he had not come close to have a look.  As such, little weight could be attached to this part of his evidence.  In relation to PW3 (盛蘭竹), contrary to Mr Chu’s submission, she had not changed her evidence.  She had not said that the chain was employed to lock up a bicycle.  It was her firm evidence that the gate was secured with a lock.  Her younger sister PW4 (盛蘭好) gave similar evidence.  Moreover, the evidence of the plaintiff, PW3 and PW4 was the same that every time they returned to the “Pig House”, they had to ask their mother for the key for entrance and they had to lock the gate when they left.  As regards PW5 (盛逸廣), who was the younger brother of the defendant’s sworn father, there was no evidence that he had ever come close to the gate to see if there was a lock.  As noted in the Judgment, there were no material inconsistencies among them which caused the Court to doubt their general credibility and reliability.[18] 

20. As regards the complaint about the reference in the second last sentence of paragraph 37 of the Judgment to “PW1” being the person who built a village house in 2000,[19] that it is a typo is obvious from a reading of the whole paragraph.[20]  The sentence should read “According to PW2 (the plaintiff), the gate was removed and the water well was filled when he built his village house in 2000.”[21]  I should say that this ground was not keenly pursued by Mr Chu in his oral submission in court. 

21. As to PW4’s incorrect assertion made at the village meeting held on 9 September 2010 that the Property was purchased by her late father from Cheng,[22] that had been adequately dealt with in the Judgment.[23] 

22. As regards PW3’s evidence in cross-examination that she was told by her mother in 2005 that the defendant had gone to her (the mother) and said that the Property was his and not theirs, PW3 at the time did not accept that the Property was not their family land. [24]  As regards the intention of the plaintiff’s mother, there was no evidence before the court that she had ever given up possession of the Property.  To the contrary, the fact that she had not given up possession of the Property can readily be seen from her objection to the defendant’s purported re-development of the Property in 2005 by asserting adverse possession.[25]  The plaintiff’s mother died in 2007.  As already discussed in the Judgment, the incorrect assertion of PW4 at the village meeting on 9 September 2010 was fully explained on the basis of what she had been told by PW5.  It was a finding of fact by this Court that the incorrect assertion of PW4 did not affect her general credibility as a witness.[26]

23. This Court did not err in saying that there was “undisputed evidence” that the Pathway was paved with concrete.[27] The evidence of the plaintiff’s witnesses was that the paving was done by the plaintiff’s father in around 1960.  That part of their evidence was not contradicted in cross-examination.  Even DW1 (盛治安) admitted in his evidence that the Pathway was paved with concrete back in 1960s.  Moreover, it had not been put to any of the plaintiff’s witnesses that the Pathway was muddy in 1970s. 

24. It is difficult to understand the defendant’s complaint that this Court “failed to accord considerable weight regarding the conflicting evidence of Shing Yat Kwong, PW5 and PW3 and PW4 regarding the levels of the 2 pieces of land Lot 256RP and Lot 254 SC.”[28] It is difficult to see what the conflict, if any, was about,[29] why it was material and how it could either weaken the plaintiff’s case or advance the defence case.  Mr Chu did not seek to elaborate this ground either in his written or oral submissions. 

25. As regards the meeting between the defendant and the plaintiff at the latter’s floral shop in 2005,[30] that had been dealt with at paragraphs 62 and 63 of the Judgment and full reasons were given as to why this Court rejected the defendant’s version that the plaintiff had agreed to vacate the Property if and when requested.  Furthermore, the fact that the plaintiff had not there and then expressed an intention to oust the defendant is a matter of no moment.  The law does not require that the squatter has to announce an express ouster to the face of the paper owner in order to show animus possidendi.  Furthermore, at the time the plaintiff’s mother, who was the head of the household, was then still alive.  It would be inherently improbable that the plaintiff would make any decision about the Property without consulting her.  Lastly, by 2005 the plaintiff’s family had been in possession of the Property for more than 20 years. 

As to (iii): mistaken belief

26. With respect, that if the squatter did believe, erroneously, that he owned the property, that is sufficient for the necessary animus is now beyond dispute: see Adverse Possession, 2^nd edition, by Stephen Jourdan QC & Oliver Radley-Gardner, at §§9-38 to 43.  This is not only the position in UK but also the position in Hong Kong: see Wong Luen Chun & Anor v Secretary for Justice,[31] which has been followed in many subsequent cases like Wong Kar Sue & Ors v Sun Hung Kai Properties Ltd & Anor[32] and Lee Bing Cheung v Secretary for Justice.[33]  The judgment of the Privy Council in Sze To Chun Keung v Kung Kwok Wai David & Anor[34] is also pertinent.  In that case, the defendant as licensee of the Crown occupied the plaintiff’s land.  The reason why the Crown granted the defendant the licence was that it did not know that the land was in private ownership.  In the plaintiff’s action for possession, the Privy Council held that the defendant could rely on the period during which the Crown was in adverse possession of the plaintiff’s land.[35]  It was also held that the fact that the Crown was also the grantor of the lease under which the plaintiffs were entitled to the land was irrelevant.  Therefore, it is implied in the judgment that the mistaken belief of the Crown, namely that it could lawfully grant a licence to the defendant to occupy the land when in fact it could not, would not prevent its possession of the land (through the defendant as its licensee) from being adverse.  Otherwise, the judgment cannot be explained. 

27. The cases of Country Rich Development Ltd v Ma Chan Fuk Kim[36] and Hyde v Pearce[37] do not assist the defendant, as neither of them concerned a mistaken belief of a trespasser.  In Country Rich, which was about an application for leave to appeal out of time, the defendant’s case was that she entered into possession of the suit property by virtue of an agreement for sale as evidenced by a Chinese deed.  In Hyde v Pearce, the purchaser similarly entered into possession of the suit property by virtue of a contract for sale which had not been completed.  In either of the two cases, the possession was not by a trespasser and was not “as of wrong”.  It is also pertinent to note that the learned authors of Adverse Possession do not regard Hyde v Pearce as a case of “mistaken believe” but rather a case of “purchaser in possession under a contract for the sale of land”.[38]  Similarly, in Lam Ngok Ching & Ors v Tsang Yuk Ming,[39] which followed Hyde v Pearce, the defendant, who sought specific performance and alternatively adverse possession, was let into occupation and/or possession of the suit property because of two agreements entered for sale and purchase.[40] 

28. In the present case, whether the plaintiff’s father mistakenly believed that he had purchased the Property or that he knew that he was a trespasser, he was not in fact a purchaser of the Property.  His possession was “as of wrong”. The defence case of licence was rejected with full reasons given.[41] Therefore, Country Rich and Hyde v Pearce are simply not pertinent. 

As to (iv): finding of no abandonment

29. This Court stated the relevant legal principles regarding abandonment as follows:[42]

“14.  If possession passed to the squatter at any point, then he would not have needed continuous use to have maintained possession.  See Chambers v Havering London Borough Council [2011] EWCA Civ 1576, adopted in Chow Tin Sang also known as Chau Tin Sang as manager of Chau  Fuk Tso v Citihero International Ltd, CACV 121/2012.  Whether a squatter had abandoned his possession is a question of fact to be decided in each case.  That question is not conclusively answered by showing that the squatter may for a short period of time have ceased to be in actual physical occupation of the land.  Moreover, mere non-user of the land for a time is not conclusive evidence of abandonment of possession: see Nicholas v Andrew (1920) 20 SR (NSW) 178, 184.  However, the burden of proof rests not on the owner of the paper title but on the person who is said to be in adverse possession: see Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078, 1087G.  As to this, although the civil standard of proof is applicable, there is clear authority that the squatter is required to provide “clear and affirmative evidence that he, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world”: see Powell v McFarlane, supra, at p 472.” 

There is no challenged from the defendant against the above statement of the law.  In particular, this Court expressly relied on what Slade J said in Powell about the requirement of “clear and affirmative evidence”.

30. In the present case, there can be little dispute that the plaintiff’s family was in possession of the Property between 1960 and 1971 when they were living there.  The issue about abandonment arose because of the plaintiff’s case that they had continued their exclusive possession of the Property after 1971. The relevant evidence of both sides was summarized and discussed at length from paragraphs 33 to 47.  It was based on the evidence before the Court that the following conclusion was reached:-

“48. Based on the evidence, I reject the defence contention that the plaintiff’s parents and/or the plaintiff had at any stage abandoned the possession of any part of the Property. I find as a fact that the plaintiff’s father, as the head of the household, was in exclusive possession of the whole of the Property from 1960 through to June 1993 when he passed away: see Ng Lai Sim v Lam Yip Shing & Anor, HCA 2963/1998, at p 8C-M.

Animus Possidendi

49.   Based on the evidence before me, I also find that all along the plaintiff’s parents had the intention to possess the whole of the Property as their own to the exclusion of the others.  In relation to the Pathway in particular, I find also that Shing Yat Yi, by paving it and treated it as his own, had done all that he could reasonably be expected to do to take it unambiguously clear of his intention to possess this strip of land as well to the exclusion of all others.  See Chapman v Godinn Properties Ltd & Ors [2005] EWCA Civ 941, paras 24-28.  The position remained unchanged after their moving out of the Property in 1971.”

As such, the paper title of the defendant’s predecessor in title and hence that of the defendant would have been extinguished by 1980.  

31. The following matters relied upon by Mr Chiu[43] are contrary to the evidence and none of them is capable of disturbing this Court’s findings that there had been no abandonment, namely:-

(a)  the fact that the plaintiff constructed a wall in 2000 to separate his own land and the Property; [44]

(b)  the fact that the plaintiff did not then rebuild any gate to prevent others from accessing the Pig House;

(c)  the so-called wrongful drawing of inference against the defendant (at paragraph 37 of the Judgment) from the fact that the plaintiff subsequently put potted plants and grew trees on the Property;

(d)  the fact that the plaintiff’s father had bought two pieces of land in the vicinity without developing the Property; and

(e)  the fact that there was no explicit ouster of the paper owner during the conversation between the defendant’s sworn mother of the defendant and Lee Sui Tai (the plaintiff’s mother) and also the conversation between the defendant and the plaintiff.

32. As to (a) above, as pointed out by Mr Siu in his oral submission, the evidence was that plaintiff built his village house according to the building plan as approved by the Government.  It is therefore natural that the surrounding wall of his village house did not include the Property, as he was not the paper owner of the Property.  As to (b), at the time the external wall of the Pig House was still there, there was simply no need or requirement for the plaintiff to rebuild the gate.  As to (c), paragraph 37 was only a summary of the plaintiff’s evidence.  The findings were made at paragraph 47 and only after consideration of all the evidence.  As to (d), it is difficult to see how the plaintiff’s father’s possession of other lands would mean that he had given up possession of the Property.  To the contrary, the evidence showed that the plaintiff’s father had not given up possession of the Property.  There was evidence that he had stored there six sets of bathroom and toilet utensils reserved for the future use of his sons in their village houses.  There is also evidence that the Property subsequently had served as the backyard and access road of the plaintiff’s own village house. As to (d), neither the plaintiff’s mother nor the plaintiff had agreed to give up their possession of the Property.  To the contrary, the plaintiff’s mother raised adverse possession as a ground to object the proposed re-development the Property and other lands of the defendant in 2005.  It is also telling that although she subsequently withdrew her objection in respect of other lands, she had never withdrawn her objection in respect of the Property.

As to (v): successive adverse possession

33. With the greatest respect, this point is unsustainable.  As Mr Siu was quick to point out, as a matter of law any licence by virtue of which the plaintiff’s mother might have relied upon for her stay on the Property would have been revoked upon the death of her husband in June 1993.  The situation was similar as regards the position of the plaintiff after the death of the mother in 2007. As a matter of evidence and the Court so found that the plaintiff’s mother became the head of the plaintiff’s household after the passing away of her husband and became the squatter in his stead.[45]

34. Mr Chu did not seek to challenge the correctness of the legal principle that periods of adverse possession by successive occupiers might be aggregated if there was no gap in the adverse possession, even though there had been no assignment of the possessory rights.  As such, the fact that the plaintiff has not been formally assigned with the Property from either his father or mother is neither here nor there.  See the judgment of the Court of Final Appeal given by Bokhary PJ in Cheung Yat Fuk v Tang Tak Hong & Ors[46] which was quoted in the Judgment.[47] 

35. In the circumstances, Mr Chu has failed to demonstrate why the period between 1971 and 2000 should not be counted for the purpose of establishing successive adverse possession or establishing open and peaceful usage in relation to the plaintiff’s alternative case of easement by prescription.

CONCLUSION

36. To conclude, the defendant’s proposed grounds of appeal, whether taken individually or collectively, do not give rise to a reasonable prospect of success in case of an appeal.  Also, I am unable to see any reason in the interests of justice that the proposed appeal should be heard. 

ORDER

37. In the circumstance, the defendant’s application for leave is dismissed. 

38. I also order that the defendant pay the plaintiff’s costs of this application (with certificate for counsel), to be taxed if not agreed.