ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN

HCMP 3192/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3192 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ 1154/2010)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1. These are cross applications for leave to appeal from the judgment dated 23 August 2013 of HH Judge Alex Lee given in a case of adverse possession.

2. The plaintiff seeks leave to appeal the learned judge’s upholding of the defendant’s claim of adverse possession of “the Portion”, that is, that portion of “Site B” on which the “Squatter House” stands – HCMP 3223/2013.  The defendant, on the other hand, seeks leave to appeal the judge’s dismissal of his claim of adverse possession of the entire Site B (and not only the Portion) and the adjacent “Site C” – HCMP 3192/2013.

3. The plaintiff’s intended appeal seeks to challenge the judge’s finding that the defendant’s parents had been in adverse possession of the Portion starting from 1954/1956 which continued for 20 years.  Mr Erik Shum, for the plaintiff, essentially argued that the available evidence, particularly the objective expert evidence, was not compelling and cogent enough to support the judge’s conclusion that the defendant’s parents were in exclusive physical possession of the Portion in favour of the defendant, on whom the burden of proof rested.  Counsel emphasised that it was incumbent upon the defendant to prove by sufficient evidence that the Portion was “exclusively” possessed by the defendant’s parents.  Counsel also argued that the same evidence was insufficient to prove the necessary animus possidendi either.  He further submitted that self‑serving oral evidence at trial carried very little weight in the present case, and the only material evidence, that is, the expert evidence, was insufficient to enable the court to infer the requisite animus possidendi.

4. The intended appeal seeks to challenge the judge’s findings of primary fact which cannot be disturbed on appeal unless they are “plainly wrong”: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  In his judgment, the judge has given clear and full reasons for his findings of fact.  He was fully aware of the limitations of the defendant’s and his witnesses’ evidence.  Indeed, that was why he preferred to attach greater weight on the objective expert evidence.  He was entitled to consider that the position of the Portion is different from the rest of Site B in that there is the Squatter House standing on it which is a lasting structure with walls, windows and doors.  He was also entitled to accept the evidence that the Squatter House had been the defendant’s home for many years before he moved out in 1978 and lived with his mother elsewhere.  Furthermore, there was sufficient evidence for him to conclude that notwithstanding his moving out in 1978, the defendant had not subsequently abandoned the Portion.  The judge was also quite entitled to infer from the same evidence that there was the requisite intention to possess the Portion adversely.

5. In our view, the findings of primary fact made by the judge are far from “plainly wrong”.  There is simply no scope for interfering with his findings.

6. The plaintiff’s application for leave to appeal is therefore dismissed.  We order, pursuant to Order 59, rule 2A(8), that the plaintiff may not request our determination to be reconsidered at an oral hearing inter partes.

7. As for the defendant’s application for leave to appeal, the defendant by Mr Paul Lam SC essentially argued that there was a presumption of continued possession in his client’s favour once adverse possession was established to have commenced.  Mr Lam also challenged the judge’s finding that the defendant’s family abandoned possession of Sites B and C (with the exception of the Portion) in about 1973.  Mr Lam further complained that the judge had failed to consider an alternative case of adverse possession since 1996 based on the new limitation period of 12 years.

8. In our view, the judge was correct in rejecting the contention of a presumption of continued possession in favour of the defendant’s family after the commencement of adverse possession back in the 1950s.  Whether, at any material time, there was adverse possession, and whether any such adverse possession once begun continued unbroken for 20 years, are questions of fact to be established by evidence, the burden being on the squatter.  He has to discharge the burden of proof by cogent and sufficient evidence.  Whilst such evidence can take many forms, including direct oral evidence, documentary evidence and inferential evidence, and the parties’ cases must be considered in light of inherent probabilities and commonsense, there is no place for any presumption, whether legal or evidential, in favour of the squatter.  Everything must naturally depend on the facts of each case.  The situation of a squatter who has enclosed the land in question and that of one who seeks to establish a case of continuous adverse possession of open land must, by the nature of things, be rather different.

9. We do not believe that the single sentence found in Lord Hope’s concurring judgment in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, 445H (para 70) (“Once possession has begun, as in the case of the owner of land with a paper title who has entered into occupation of it, his possession is presumed to continue”) is any authority for the existence of a presumption of continued possession, whether legal or evidential, in favour of a squatter once adverse possession has begun.  We have not been referred to any other authorities which suggest the existence of such a presumption in favour of a squatter.  Rather, textbooks such as Gray & Gray, Elements of Land Law (5^th ed), para 9.1.40 and Megarry & Wade, The Law of Real Property (8^th ed), para 35-018 (p 1467) only refer to a presumption of continued possession in favour of the paper owner, but not the squatter.  Indeed the former actually cites Lord Hope’s dictum as authority for the presumption in favour of the paper owner (fn 1).  And it should be noted that there is by no means a complete equivalence between the position of a paper owner and that of a squatter in terms of dispossession: cf Generay Ltd v The Containerised Storage Co Ltd [2005] EWCA Civ 478 (23 March 2005), paras 51‑54.

10. The judge’s findings on abandonment since 1973 are findings of primary fact.  The judge has given clear and sufficient reasons for his findings.  He was entitled to draw his inferences from the emergence of footpaths based on the evidence available.  He was also entitled to his views on the significance of tree‑planting.  He has not, in particular, forgotten his other finding that there was no abandonment of the Portion situated within Site B, nor has he overlooked the relevance of that finding to the question of whether the rest of Site B was nonetheless abandoned by the defendant’s family after 1973.

11. The question of weight is a matter for the judge.  In our view, there was sufficient evidence before the court to enable the judge to make his findings of fact.  They are far from being “plainly wrong” and there is no scope for interference.

12. As for the alleged failure to consider an alternative case of adverse possession since 1996 based on a shorter period of 12 years, we have considered, amongst other things, what the judge said in his ruling dated 15 November 2013 refusing leave to appeal.  We are satisfied that the defendant cannot succeed on this alternative case.

13. For these reasons, the defendant’s application for leave to appeal is also dismissed.  We further make an order, under Order 59, rule 2A(8), that the defendant may not request our determination to be reconsidered at an oral hearing inter partes.

14. As for costs, taking a global view of the two unsuccessful applications for leave to appeal, and bearing in mind that the arguments before us are substantially the same as those before the trial judge when leave to appeal was sought, we make no order as to costs of these two applications before us.