LEE YIN MUI CATHERINE v. LAU SAU KONG JOHN AND OTHERS

HCA 566/2016

[2019] HKCFI 2462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.566 OF 2016

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J U D G M E N T

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1.  The plaintiff claims for declaration of her possessory title of the land in question against the registered owners, the defendants, on the ground of adverse possession. This is the plaintiff’s application for summary judgment.

Background

2.  The land in question is described as the South Portion of Lot No 1339 in DD 79 situated at Fanling, New Territories (“the Land”).  It is identified and coloured pink in the lot index plan annexed to the statement of claim.  For the purpose of the present application, a plan with delineation of the Land professionally prepared by surveyor engaged by the plaintiff has been produced[1].

3.  According to the plaintiff, she first came into possession of the Land as a result of a handwritten assignment dated 13 October 2001 by a Madam 林梓梅 (“Madam Lam”), whereby Madam Lam assigned to her the ownership of the building structures erected on the Land and described as “坪輋水流坑長嶺咀10號” (or No. 10, Cheung Lang Tsui, Shui Lau Hang, Ping Che).  The building structures consisted of five iron houses for rearing poultry and livestock as well as one stone house for human habitation.  Madam Lam claimed to be the owner of the structures.  The assignment provided that it took effect from 6 August 2001.  The consideration was HK$230,000, which the plaintiff paid by two instalments on 6 August and 13 October 2001 respectively.

4.  In 2003, the plaintiff demolished two of the five iron houses.  She also knocked down the walls of another iron house, leaving its roof or effectively a canopy.  These structures have since remained on the Land up to the present.  She has been residing in the stone house ever since, and iron houses have been used for storage.  Trees and flowers have been planted around the Land.  The Land has also been fenced off by iron nets. Accounts for utility supplies to the building structures in the Land have been registered in her name at the address of No 5 Wong Kan Shan New Village, Ta Kwu Ling, Fanling, New Territories and No 5 Shui Lau Hang Tsuen, Fanling, New Territories.  The plaintiff confirms that both addresses refer to the same location, i.e., the Land.

5.  The plaintiff claims that she has been in open and uninterrupted exclusive possession of the Land for a period in excess of 12 years adverse to the its registered owners.  The defendants’ title in the Land was thus extinguished by virtue of sections 7(2) and 17 of the Limitation Ordinance, Cap 347 (“LO”).  She claims declaration to that effect.

6.  The defendants are brothers, and became the registered owners of the Land as tenants in common in equal shares in January 1996.  Apparently, the defendants are all residing in the UK.  In defence, they refer to the Land being first acquired by their grandfather in 1905.  According to them, before their late father migrated to the UK in 1962, he had asked a Mr Fu Sze Yan and his wife (“the Fu’s”) to manage and to guard the Land from trespassers.  This arrangement is said to have lasted after the defendants succeeded to the Land in 1996.  However, Fu’s wife passed away in 2007 and Fu suffered a stroke in 2015.  Other than these assertions, the defendants essentially put the plaintiff to strict proof of her case.

7.  By summons filed on 15 May 2018, the plaintiff applies for summary judgment pursuant to O.14 of the Rules of the High Court.

The principles

8.  The principles governing summary judgment are trite.  Whilst it is the plaintiff’s burden to prove his claim, the defendant has the burden of showing triable issues or some other reason that would call for a trial of the action.  To succeed in resisting an application for summary judgment, the defence must be demonstrated to be a credible one.

9.  In the context of adverse possession, the relevant provisions of the LO are:

Section 7(2):

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person…”

Section 8(1):

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

Section 13(1):

“No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

Section 17:

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

10.  The person claiming adverse possession must show that he has a sufficient degree of factual possession and animus possidendi (the requisite intention to possess).  This was laid down by Slade J in Powell v McFarlane (1979) 38 P & CR 452 (Ch D) at pp 470-472.  In Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588, Nazareth NPJ explained:

“…

Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances…acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree…is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.

…the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.

…

An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved.  This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession.  In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world.  If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”

11.  It is accepted on behalf of the plaintiff that she bears the burden of adducing cogent and sufficient evidence to prove the requisite elements of factual possession and intention to possess.  However, that, she submits, does not alter the standard of proof being the normal civil standard. This must be right.  There is no principle that the nature of the claim of adverse possession or the incidental burden of proof of the claimant mentioned above renders such kind of case inappropriate for disposal under O.14.  As an instance, Li Yau Kee Wan v Cheung Sing Man, HCA 67/2006 (3 May 2007) was cited by the plaintiff.

The defendants’ affirmation

12.  The affirmation filed in opposition of the application was not made by the defendants but their solicitor.  Its substantive content amounts to less than two pages and contains mostly submission.  It says that the claim cannot be substantiated due to a number of inherent improbabilities, but the alleged inherent improbabilities are not elaborated.  What the affirmation does say are the follows:

(1)  The documentary evidence exhibited to the plaintiff’s affirmation in support were not provided through formal discovery, and no opportunity to inspect has been made available.  There is also no opportunity to cross examination on their internal inconsistency and the inconsistency with the pleaded case.

(2)  There is no expert evidence on the history of the use of the Land since 2001.

(3)  The boundary of the Land has to be determined for the purpose of judgment, even if granted.

(4)  It is the practice of the court not to grant declaratory relief without trial where it is not necessary to do justice to the plaintiff to make such a declaration.

13.  The defendants’ complaint about the lack of opportunity to inspect the documents produced by the plaintiff is unfounded.  The court is expected to assess the evidence contained in and exhibited to affidavits from both sides of the contest.  However, inspection of documents is not exclusive to formal discovery.  Neither side is prevented from requesting for inspection of the original or the original copy of the documents exhibited to the other side’s affidavit for the purpose of the substantive argument of the application.  In this respect, the solicitor for the defendants was not specific in his complaint.  There was no suggestion that request for inspection of any of the plaintiff’s documents has been made or that such request having been made has been refused by the plaintiff.

14.  The argument that the defendants are entitled to cross examine the plaintiff at trial and for that reason to leave to defend is also contrary to the principles of summary judgment.  In resisting summary judgment, it is the burden of the defendant to condescend upon particulars in his affidavit so as to raise triable issues.  Mere denial or assertion would not suffice: see Hong Kong Civil Procedure 2019 (Vol.1) (“HKCP”) at §§14/4/3-14/4/4.  Even if the defendant relies on the “some other reason” limb of O.14, he cannot resist summary judgment by a mere claim that there are circumstances requiring investigation if he does not have any credible basis to resist the claim: see HKCP at §14/4/10.

15.  As to the lack of expert evidence from the plaintiff, I take the solicitor for the defendants to be referring to a surveyor’s report with reference to aerial photographs in respect of the land in question that one sees in a typical adverse possession dispute.  However, such evidence is but a type of evidence commonly relied on for proving or inferring the occupation history of the land in question.  Whether the evidence adduced by the claimant of adverse possession is sufficiently cogent as proof varies from case to case, and it is wrong to assume that a case where there is no such expert evidence therefore lacks cogent proof and must fail.

16.  Further, as explained above, putting the claimant of adverse possession to strict proof of the claim per se does not disentitle the claimant from obtaining summary judgment.  Where the claimant of adverse possession has adduced evidence, including that of his own and other circumstantial evidence, in support of his alleged exclusive possession of the land in question with the necessary intent over the relevant period of time, nothing prevents the defendant, in discharge of his burden of condescending on particulars, from adducing contrary evidence, including expert evidence, to contradict the plaintiff’s case as in any given application for summary judgment.

17.  Regarding the boundary of the Land, in addition to the identification of the Land in the index lot plan annexed to the statement of claim, there is now the professionally prepared survey plan with proper identification and delineation of the Land mentioned above.

18.  It was argued on behalf of the defendants that it is not the practice of the court to grant declaratory relief without a trial, where it is not necessary to do justice to the plaintiff to make the declaration.  It was argued that full justice could be achieved after trial, not by giving summary judgment[2]. In my view, the defendant’s argument was advanced out of context.  In the context of default of defence[3], it is the practice that the court would not give declaratory relief without trial.  Even so, the court may still do so, when the fullest justice will be done to what the plaintiff is clearly entitled to.  Normally, the question to be asked is whether the plaintiff has a genuine need for the declaratory relief in respect of his entitlement: see HKCP at §19/7/20.  Application for summary judgment is not a default situation.

19.  There is no reason why the O.14 procedure may not be employed in an action for declaration, including that of proprietary right, when there is no credible defence to the claim.  It is only where the declaratory relief sought in a summary judgment application cannot realistically be separated from any other relief claimed that must go to trial in any event that it would be inappropriate to grant to declaratory relief summarily: see HKCP at §14/1/1A; and Lee Yau Kee Wan (above) as an instance.

20.  What has the plaintiff adduced to prove her claim?

21.  The handwritten assignment of the building structures erected on the Land dated 13 October 2001 was produced.  By her affirmation, the plaintiff verified that since then, she has entered into possession of the Land to the exclusion of others.  Apart from the payment of the sum of HK$230,000.00 to Madam Lam for the building structures, she has not made any payment to any person for her possession, occupation and use of the Land.  Nor has her possession of the Land been interfered with.

22.  Counsel for the plaintiff submitted that there is no rule of law that factual possession and the requisite intention to possess cannot be established by a person who mistakenly believes himself to be the true owner or he has a good title and does not realise he is trespassing on another’s land.  In the absence of the knowledge or belief that someone else has the paper title to the land, it is sufficient for the possessor simply to demonstrate a manifest intention to exclude the world at large.  Cheung Kwong Yuen v Sun Hui Fang [2016] 1 HKLRD 464 (CA) at §§11-14, per Kwan JA was cited in support.

23.  It was also submitted that the requisite intention to possess can be readily inferred or presumed from the exclusive physical possession itself in cases where the act of possession is certain and unequivocal, citing Ho Hang-wan v Ma Ting Cheung as Personal Representative of Ma Sz Tsang, deceased [1990] 1 HKLR 649 (CA) at 654B-F, per Hunter JA.

24.  I do not see serious, if any, dispute as to the above principles in the argument advanced by the defendants.  As counsel for the plaintiff put it, the assignment by Madam Lam provided the mere backdrop of how the plaintiff came to possession of not just the building structures but the Land where those structures were.  The plaintiff’s claim of adverse possession and her consequential rights is never based on the assignment or its terms.

25.  By her affirmation, the plaintiff verified that the Land has at all material times since her occupation in 2001 remained fenced off by iron nets or materials.  Photographs depicting the current state of the various parts of the Land were produced in verification of the plaintiff’s case that the building structures had since been demolished and modified by now.  They also depict the trees and vegetation planted at various spots.

26.  Counsel for the defendant seems to dispute the identification of the Land by reference to the plaintiff’s evidence.  He submitted that the address described in the assignment made no reference to the Land, nor was there any indication that the photographs produced depict the Land.  I do not agree.  As mentioned above, the plaintiff is not claiming her rights over the Land by virtue of or pursuant to the assignment.  Whether or not the address described of the building structures in the assignment was official or accurate does not alter the fact that the plaintiff came to occupy the Land, where the building structures were, in 2001.  The plaintiff indeed verified that in her evidence. So did she in respect of the photographs depicting the different parts of the Land.

27.  Counsel for the defendants also took issue as to the addresses recorded in the confirmations issued by the utility companies to the plaintiff.  The confirmations were issued to the plaintiff at her correspondence address, which is her resident letter box number at Shui Lau Hang Village where the Land is situated.  This aligns with the same correspondence address of the plaintiff as stated in other documentary evidence produced in respect of various points of time since 2002.  The electricity and water companies confirmed that the plaintiff became the registered account holder in 2002 and 2003 respectively. However, the address to which the power and water are supplied to are respectively No.5 Wo Keng Shan New Village, Ta Kwu Ling, Fanling, New Territories and No.5 Shui Lau Hang Village, Fanling, New Territories.

28.  It is not that the plaintiff has no evidence in respect of the addresses or explanation of the apparently different addresses.  She expressly pleaded[4] that both addresses refer to the Land.  As to that, the defendants’ pleaded stance, like that in respect of other matters, remains that of mere non-admission[5].  The plaintiff exhibited the confirmations from the utility companies that show the apparently difference addresses, and confirmed what she pleaded[6].  Apart from confirming their pleaded case, which, as mentioned, is one of mere non-admission, the defendant chose to say no further in that respect and to tender no evidence to suggest that none of the addresses or what the photographs depict has anything to do with the Land.

29.  The surveyor’s plan and photographs depicting the various parts of the Land clearly demonstrate the control and occupation of the Land as described by the plaintiff at the present.  The signs of control are concrete and do not impress me to be a mere façade or recent existence^[7].

30.  The defendants raised another query.  Amongst the documents produced by the plaintiff, there is the letter from an Australian University in 2007 certifying the plaintiff’s completion of a program at the university.  Counsel for the defendants suggested that the plaintiff must have been abroad for such study and therefore the continuity of possession for the purpose of adverse possession had been truncated at least for a few years.

31.  To begin with, the leap from what the letter says to what the defendants suggested or purported to infer is not founded on evidence.  Even assuming that the plaintiff might have been away from Hong Kong at any point during the relevant period, the continuity of her exclusive possession of the Land by way of control as mentioned in the paragraphs above remained.  Certainly the defendants did not suggest or adduce evidence to the effect that at any point during the relevant period, the access to or egress from the land depicted in the photographs was open to the outside world or actually controlled by them as the registered owners instead.

32.  Relevant to the alleged control of the Land by the defendants, the only material positive assertion featured in the defence is the alleged engagement of the Fu’s by the defendants’ late father to manage the Land since 1962.  The management is said to have taken the form of warning and removing trespassers from the Land.  However, this is an assertion with little, if any, particulars provided.  As mentioned, the defendants had their solicitor to verify such assertion.

33.  In the affirmation of the defendants’ solicitor, no particular or term of such alleged engagement of the Fu’s by the late father of the defendants was provided.  Nor was any personal particulars of the Fu’s, apart from their names.  There is no allegation of what concrete step or thing the Fu’s had done to the Land or in connection with such alleged warning against or removal of trespasser at any time, particularly during the relevant period.  Even insofar as the period since 1996 when the defendants succeeded the Land is concerned, the defendants still failed to plead or depose to a single detail in that respect, apart from the alleged continuation of the management of the Land by the Fu’s.  There is not even allegation of communication maintained between the defendants and the Fu’s during the relevant period concerning the Land or at all.

34.  Insofar as the alleged management of the Land by the Fu’s is founded on hearsay from the late father, there is no suggestion of how that could be verified.  Nor could the alleged management be verified by the Fu’s, as Fu suffered a stroke in 2015 and his wife passed away in 2007.  There is no suggestion that the state of the defendants’ evidence would differ, if the matter goes to trial.

35.  The contentions and evidence (or actually the lack of it) put forward by the defendants to contradict the case of the plaintiff and her evidence in support, in my view, are grossly inadequate for giving rise to a credible defence.  That they are entitled to put the plaintiff to strict proof of her claim, but at the same time fail to actually point to any of the so-called inherent improbabilities of the plaintiff’s case, would not suffice for allowing them to park with the “some other reason” limb of O14 for resisting summary judgment either.

36.  Last, counsel for the defendants took issue as to the relief sought by the plaintiff.  Beside the declaratory relief, the plaintiff also prays for an order vesting the title and interest in the Land in her, entering her name as the registered owner of the Land at the Land Registry as well as demanding the defendants to deliver up the title deeds in respect of the Land.  Essentially, it was argued that even assuming the plaintiff succeeds in establishing the alleged adverse possession of the Land, and that the defendants’ right over the Land is barred by the LO, the LO does not operate as a statutory conveyance of the defendants’ title to the plaintiff: see Wong King Lim v The Incorporated Owners of Peony House [2013] 4 HKC 295 (CA) at §33.2, per Yuen JA; §37, per Lam JA (as the VP then was).

37.  During the hearing, counsel for the plaintiff accepted that these other reliefs exceed the normal relief in respect of declaring the possessory title of the claimant and the extinguishment of the right of the paper owner in the land in question by virtue of the LO.  But I do not agree that the application should be dismissed for the mere reason that such other reliefs have been included in the summons.

Conclusion and order

38.  All matters considered, I see no credible challenge to the evidence of the plaintiff in proof of the adverse possession of the Land over the relevant period as pleaded.  I therefore give judgment for the plaintiff against the defendants in the following terms:

(1)  Declaration that the defendants (and their predecessors in title) be statute-barred from bringing any action to recover the Land (as identified as well as delineated and coloured pink in the plan^[8] attached to this judgment);

(2)  Declaration that by virtue of section 17 of the LO, all the title of the defendants (and their predecessors in title) to the Land had been fully extinguished, and that the plaintiff has acquired all the estate, title, right, interest and benefit in the Land, including the right to exclusive occupation of and in the Land.

39.  Following this event, the counterclaim of the defendants is dismissed.

40.  I also make a nisi order that the plaintiff shall have her costs of this action, including the present application, against the defendants to be taxed, if not agreed.

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