TANG TZE NANG v. TANG KWONG MING

DCCJ 4616/2020

[2025] HKDC 1686

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4616 OF 2020

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DECISION

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1.  By the Summons dated 29 May 2025 (“the Summons”), the defendant is seeking leave for appeal (“the Leave for Appeal Application”) and a stay of execution (“the Stay of Execution Application”) against the Judgment by this court dated 23 May 2025 (“the Judgment”).

Background

2.  This is an adverse possession claim and the background was stated in details under paragraphs 2 to 10 of the Judgment.

The Leave for Appeal Application

Legal Principles

3.  Under s63A(2) of the District Court Ordinance (Cap.336):

“Leave to appeal shall not be granted unless the judge…hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4.  It is trite that “reasonable prospect of success” means that “the prospect of succeeding in the appeal need only be “reasonable” and “not fanciful”, without having to be “probable”” (Hong Kong Civil Procedure 2025, Vol 1, paragraph 59/2A/4).

5.  If there is a challenge of the court’s finding of facts (as opposed to the court’s application of law), the following legal principles apply:

a)  The Court of Appeal can only intervene in a finding of fact by a primary judge where the finding is plainly wrong;

b)  In an appeal, the Court of Appeal focuses on the question whether the primary judge has fallen into palpable errors which could only give rise to grounds for intervention by the appellate court; it is not germane that the Court of Appeal may reach a different conclusion from that of the judge;

c)  Where a trial judge has reached a conclusion on the primary facts, the kinds of mistake which could engage an appellate court‘s power of intervention are:

i)  where there is no evidence to support the conclusion;

ii)  the conclusion was based on a misunderstanding of the evidence; or

iii)  the conclusion was one which no reasonable judge could have reached.

(China Gold Finance Ltd v CIL Holdings Ltd, unreported, CACV 11/2015, 27 November 2015 and Yu Pak Kan v Busy Firm Investment Limited [2023] HKCA 105)

Ground 1

6.  The defendant submitted that the court erred by failing to apply the correct legal test of “exclusive physical possession” in whether “the defendant had exercise a sufficient degree of control over the lot, taking into account the nature of the land and the usual way the lot is or would have been used by the owner”.

7.  In particular, the defendant submitted that the court has wrongly placed “undue emphasis” etc. on the issue of whether there was an “inaccessible barrier” against outsiders entering the lot which was not “the proper test”, “burden” / “standard of proof” required etc. (Ground 1 (a) and (b))

8.  Further, the defendant also challenge the finding of facts of the court in “wrongly disbelieving the defendant’s evidence” regarding the “inaccessibility” and when there was the “mere possibility” but “no evidence” of actual entry of strangers into the lot (Ground 1 (b) and (c)).

9.  Firstly, I note that the proper legal test for factual possession was stated under paragraph 12 of the Judgment.

10.  According to the defendant, the “circumstances” and the “nature of the land and the manner of which that nature is commonly used or enjoyed” (as defined in the legal test) were: “cultivation works…for leisure purposes by growing fruit trees, new year tangerines plants and assorted vegetables” and use of the lot as their “backyard” (paragraph 35 of the Judgment, quoting paragraphs 10 and 13 of the defendant’s witness statement).

11.  Further, it was the defendant’s own case that the “circumstances” and “manner of use” was that he (and his family) constructed various water channels and elevated slopes / banks on the side, planted rows of fruit trees on the banks of the water channels (evidence first mentioned during the trial), constructed various fences, occupied the Courtyard etc.. And that all these had formed an “inaccessible boundary” to the lot since around 1980’s (paragraphs 85, 92 and 125 of the Judgment, quoting paragraphs 28-29 of the defendant’s witness statement).

12.  In other words, it was the defendant’s case that he had acquired “sufficient degree of exclusive physical control” of the lot under these “circumstances” and “manner of use”.

13.  On the other hand, the plaintiff‘s case was that TKK, the cousin of the plaintiff, could see the lot from his house and that the lot has all along been abandoned land with wild vegetation and rubbish, with no sign of occupation until construction of metal fences in November 2015 (paragraphs 24 and 27 of the Judgment).

14.  Therefore, it was clear that the “circumstances” and “the manner of use” of the lot was in dispute and the legal test regarding the burden of proof on the defendant’s claim of adverse possession was that it “must be compelling” (see paragraph 14 of the Judgment).

15.  The court did not use “inaccessible boundary” as the legal test for the finding of factual possession. Instead, the court was testing whether there was “compelling evidence” to support the defendant’s alleged “circumstances” and “manner of use” of the lot.

16.  This was therefore a fact-finding exercise for the court, not an application of the legal test.

17.  Grounds 1(c) and (d) were also a dispute of the factual finding of the court.

18.  Firstly, I note that the defendant’s argument that there was “no evidence of actual entry of strangers” is not correct: the plaintiff’s evidence contradicted this (paragraph 21 of the Judgment).

19.  More importantly, I do not agree with the argument that there needed to be “a finding of actual entry by strangers” into the lot without which the court must accept exclusive physical possession.

20.  The case of Gotland concerned with the scenario of an “open” piece of land under use and what measures were needed to secure “exclusive occupation” (e.g. stopping unwelcomed strangers).

21.  Given that the defendant’s case was that this was not “open land” and that unwelcomed guest were stopped by various “inaccessible barriers”, such claims would be his burden to prove with “compelling evidence”. If he failed to do so, he could not turn around and argued that it was “open land” after all, and because he had simply given some (essentially self-serving) evidence that there was no incidence of actual entry by strangers, the court must therefore find that there was “compelling evidence” for exclusive physical possession.

Ground 2

22.  This is dressed up as an error in law but is in fact a dispute in factual finding of the court regarding the nature, manner of use and entry of strangers into the lot regarding the test of exclusive physical possession.

23.  I have already dealt with such disputes above.

Ground 3

24.  The defendant submitted that the court erred in law in finding that the defendant did not have the requisite animus possidendi, in particular that “if exclusive possession is established, then animus possidendi is to be inferred” etc..

25.  However, this argument completely ignored the fact that the court found that there was no exclusive possession (paragraph 144 of the Judgment).

26.  Further, the court only accepted that the 2007 Statutory Declaration was evidence of an intention to possess at the date the declaration was made (paragraph 154 of the Judgment), the court needed not place much probative value upon (nor accept) the essentially self-serving evidence (of claimed exclusive possession since 1976) declared therein. That claim should be subject to a fact-finding exercise at trial.

Ground 4

27.  The defendant argued that “in the total absence of evidence from the plaintiff to contradict the defendant’s evidence” regarding the pipes, water channels, fences, trees, tenancy agreement, the Courtyard etc., the court must therefore accept the defendant’s case.

28.  I have some difficulty in understanding this line of argument.

29.  The defendant is effectively arguing that, under such circumstances, the court must wholesale accept the defendant’s case including all the self-serving evidence. There would be no need for cross-examination to test, for example, whether the defendant’s evidence was “compelling”.

30.  This is clearly not the law.

31.  As for the finding regarding “the row of linear features” identified by the experts and whether such would support the defendant’s case, this has already been argued before the court. The court has extensively considered such evidence under paragraphs 108 to 114 of the Judgment.

32.  The defendant is essentially disputing the weight that the court has placed on various evidence and arguments. As stated above, it is trite that the Court of Appeal would not entertain an appeal on the finding of facts on the argument that the appeal court might place different weight on certain evidence and so might come to a different conclusion as the trial judge.

Ground 5

33.  The defendant argued that the court has erred in law by “failing to address the defendant’s alternative case of 12 years’ adverse possession, when the objective evidence shows that the adverse possession began since 1979 and up to at least 2020 when the writ was herein issued”.

34.  I have already addressed the probative value of the content of the 2007 Statutory Declaration in paragraph 26 above.

35.  In his submission, the defendant further argued that “the court refused to consider the present case on the basis of a 12-year limitation period, on the incorrect basis that it was not pleaded by the defendant” when this was “in fact pleaded in the Defence & Counterclaim at paragraph 19”.

36.  Actually, such arguments stem from an issue already raised during the Closing Submission stage.

37.  The defendant appears to be concentrating on paragraph 154 of the Judgement without reading it together with the preceding paragraph 153, which stated:

“Mr. Shum, in the Closing Submission of the Defendant, submitted that that the 2007 Statutory Declaration was a “good contemporaneous evidence of adverse possession” and argued that if “the court finds that adverse possession started at the time of the 2007 Statutory Declaration, the applicable limitation period would be 12 years so that the squatter’s right fully accrued in 2019…” (paragraphs 11-12 of the Closing Submission of the Defendant).”

38.  Paragraph 154 went on to state:

“Whilst I agree that the 2007 Statutory Declaration might be evidence of an intention to possess, this alternative case was not pleaded in the Defence and Counterclaim.”

39.  When the two paragraphs are read together, it should be clear that the court meant that the alternative case that “the adverse possession started at the time of the 2007 Declaration” was not pleaded in the Defence and Counterclaim, and not that “the 12-year limitation period” was not pleaded at all.

40.  Indeed this position is further clarified in paragraph 156 of the Judgment:

“There is no mention of the Statutory Declaration in paragraph 4 of the Defence and Counterclaim (or in the whole document at all). The defendant’s case was that the period of possession was “in excess of 40 years”. This must necessarily mean that the date that the cause of action first accrued was before 1 July 1991. Therefore, the applicable limitation period is 20 years.”

41.  Therefore, the court did not reject the alternative case of the 12-year limitation period because it was not pleaded, but because the defendant has all along pleaded that the period of possession was “in excess of 40 years” instead of “starting from the 2007 Statutory Declaration”. The court was following the precedents of Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556 and Siu Chiu Choi v Teng Hung Ping [2024] HKCA 1069 which were already discussed, amongst others, at the Closing Submission stage.

Conclusion

42.  In conclusion, I am not satisfied that the appeal has a reasonable prospect of success and dismiss this application.

The Stay of Execution Application

Legal Principles

43.  It is trite that:

“The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal…That hurdle is higher than that of chances of success for considering whether leave to appeal should be granted...Unless a stay can be justified by good reasons, one will not be order…But the court is likely to grant a stay where the appeal would otherwise be rendered nugatory.” (Hong Kong Civil procedure 2025 Vol. 1 paragraph 59/13/1)

44.  As such, the court, having not granted leave for appeal on consideration of merit, should dismiss this application as well.

45.  Indeed, the defendant has not submitted any evidence of prejudice in support of the stay of execution application, let alone any grounds that not granting such would render the appeal nugatory.

Order

46.  The court will order that the Leave for Appeal Application and the Stay of Execution Application be dismissed.

47.  Cost of the Summons be awarded to the plaintiff to be dealt with by way of summary assessment if not agreed. The plaintiff shall lodge and serve a summary bill of costs within 28 days of this Decision and the defendant shall lodge and serve a summary list of objections 28 days thereafter. The court will assess costs summarily by way of paper disposal.