WAN KAI WAH v. LEUNG MAN FAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS.10622 AND 10623 OF 1994

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HCA10622/1994

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(Heard together)

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REASONS FOR JUDGMENT

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Introduction

1. The present dispute concerns Section D and Section E of Lot 218 in Demarcation District No.185, Shatin, New Territories ("Section D" and "Section E" respectively).

2. The plaintiffs in HCA 10622/1994 and HCA 10623/1994 claimed to be the respective beneficial owner of Section D and Section E since 21 September 1992 and 17 February 1992. They commenced these proceedings against the same defendant on 22 October 1994, alleging that he has been a trespasser in wrongful occupation of the land since a date unknown to them. The defendant does not dispute that he is a trespasser. But he alleges that he has been in adverse possession of both Section D and Section E since 1959. He counterclaims for a declaration that any cause of action that the plaintiffs might have is time barred under section 7(2) of the Limitation Ordinance, Cap. 347 ("the Ordinance") and that their rights and title to the land had been extinguished by virtue of section 17 of the Ordinance.

3. The two actions were consolidated on 23 April 1996. The plaintiff had all along been legally represented. However, they filed a Notice to Act in person on 20 November 2001. The trial was set down on 17 June 2002. (The reason for the substantial delay is not apparent from the evidence before me.) By a letter dated 1 June 2002, the plaintiffs informed the court that they were living in USA and were unable to attend the trial. In the event, the trial took place as scheduled. The plaintiffs, as foreshadowed in their letter, did not appear. The defendant then proceeded to prove his counterclaim. In the end, I dismissed the plaintiffs' claims and entered judgment for the defendant with costs. These are the reasons of my judgment.

Issue

4. The defendant concedes that he has not occupied a small part of the land at a corner in Section E adjacent to the Remaining Portion of Lot 218 ("the Unoccupied Portion"). He is not claiming adverse possession of that. Subject to this minor change in his case, there is no dispute that the defendant has trespassed on both Section D and Section E. The only issue is whether the defendant has been in adverse possession of the land since 1959 as claimed, that is, more than 20 years prior to the commencement of these proceedings on 22 October 1994, such that the plaintiffs' cause of action is time barred and their title in the land is extinguished by virtue of the relevant provisions in the Limitation Ordinance.

The law

5. Before setting out the evidence, I shall first summarize the applicable legal principles. They are well settled.

6. First, the burden is on the defendant, as a claimant for adverse possession, to prove that he had both possession and the requisite intention to possess. The question of intention to possess is one of fact. Whether the intention could be established depended on an assessment of all the circumstances in a particular case : Wong Tak Yue v. Kung Kwok Wai David [1998] 1 HKC 1, CFA.

7. Second, factual possession signifies an appropriate degree of physical control. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used : Powell v. McFarland & another [1977] 38 P&CR 452 at p.471.

8. Third, in the case of open land (like the present case), physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. What is a sufficient degree of sole possession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants : West Bank Estates Ltd v. Arthur [1967] AC 665 at pp.678 and 679.

9. Fourth, it is clearly settled that 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. It is impossible to generalize with any precision as to what acts will or will not suffice to evidence factual possession : Powell v. McFarland & another, above. There is no general principle that to establish possession of an area of land a claimant had to show that he had made physical use of the whole of it; that acts done on part of the land could establish possession of the whole land and whether those acts did establish possession was a question of fact and degree and depended on a consideration of all the circumstances : Higgs v. Nassauvian Ltd [1975] AC 465, PC, at p.474.

10. Fifth, the animus possidendi, which is necessary to constitute possession, is the intention of excluding the owners as well as other people. What is really meant is that 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 : Powell v. McFarland & another, above.

11. I now turn to the evidence.

Evidence

12. As noted, the plaintiffs are absent. There is simply no evidence to support their claims or contradict the evidence adduced by the defendant.

13. The defendant himself gave evidence and called two factual witnesses, that is, his son, Mr Leung Chi Hung ("Mr Leung") and his neighbour, Madam Poon Wai Sin ("Madam Poon") and one expert, Mr Leung Shou Chun ("the Expert"). Their evidence is summarized below.

(1) The Expert

14. The Expert dealt with the boundary of the land and the Unoccupied Portion. He has been a chartered surveyor by profession since 1966. From 1966 and 1996, he worked in the Hong Kong Government. When he retired from civil service, he was the head of the Surveying and Mapping Section of the Lands Department. He then opened his own surveyor firm. His expertise can hardly be challenged. He had prepared a plan showing the occupation of Lot 218 and adjacent lots. The plan is adduced and marked "D2". According to the plan, the portion of land in Section D and Section E on which buildings are erected is marked dark green in colour. The portion that is vacant is marked green. At the south west corner of Section E adjacent to the remaining portion of Lot 218, a fence was erected in a L-shape with the longer line running along the boundary line of the remaining portion of Lot 218 and a piece of adjacent government land on its left. A line is drawn perpendicular from the end of the fence on Section E to the boundary between Section E and the remaining portion of Lot 218. This forms the boundary of the Unoccupied Portion, which is marked orange in colour.

(2) The defendant

15. The defendant's evidence in summary is thus.

16. He is now over 80. He first came to Hong Kong from the mainland in 1945. Upon arriving in Hong Kong, he settled down in No.9 Main Street, Shatin, New Territories. Between 1949 and 1956 he ran a small grocery store in the Shatin Market known as Mei Mei Store. In 1956, the defendant married Madam Cheng Fung Mui and rented a small room as their home in Ha Lung Chung, Shatin. His first son, 梁文, was born in that year. In 1958, the family moved to Ha Wo Che Village ("the Village") and rented a room at No.7 of the Village from the owner, one Mr Lee. His second son, 梁志偉, was born in 1958.

17. In 1959, the defendant rented a stone house at No.24 (also known as No.24C) of the Village from Mr Cheung Fook Hei and operated a grocery store called "LEUNG KEE" ("the Store"). The land upon which the Store was situated was later transferred to Madam Heung Miu Ying. The defendant wished to save the rent paid for the room at No.7 of the Village and noticed that there was a piece of abandoned land situated next to his store, that is Section D and Section E. The land was then fully covered by wild grass and weeds and seemed to have been deserted for quite a long time. The defendant made enquires with other villagers but no one knew whom it belonged to. As it was close to his shop, he took over possession of the land and levelled the rocky ground and began to erect various wooden structures thereon. The wooden structures occupied part of the land and since then had become the defendant matrimonial home. These structures were attached to one another forming a wooden house ("the House"). The defendant repaired and renovated them from time to time. The land on which the wooden structures stand are coloured dark green in Exh. D2. The vacant portion of the land was turned into a garden. He also stored miscellaneous items there.

18. In order to facilitate the passage between the House and the Store, the defendant also erected a zinc/iron cascade joining them together. Photographs of the House and the Store have been adduced as evidence. As he occupied the land as a squatter, the House itself had no house number and electricity. The defendant later adopted the house number of his store (No.24 or No.24C) as the address of the House. In fact, there were several houses nearby that were also identified by the same House No.24. The Store and the House shared the same electricity meter.

19. The defendant has seven children. As can be seen from the birth certificates for those born in or after 1960, the family address was stated as No.24 of Ha Wo Che Village.

20. During the 1980's, the government began to re-number all the houses in the Village. The Store was re-numbered from No.24 (or No.24C) to No.88 and the House, from No.24 (or No.24C) to No.79.

21. Throughout his occupation of Section D and Section E, the defendant has never paid any rent to any person for his occupation thereof and until the plaintiffs' claim no one had ever challenged his right to possession of the land. It is his evidence that he occupied the land exclusively as if he was the owner thereof. Lastly, he pointed out that he has not occupied the Unoccupied Portion, because it had been fenced off some time ago.

(3) Mr Leung

22. Born in Hong Kong in 1960, Mr Leung is the third son of the defendant. Since he was born, he has been living in the House until now. He has personal knowledge ever since the beginning of his childhood awareness, during his tender year in the 60's that the defendant has been operating the Store on the land next to the House. Prior to the 1980's, the House and the Store shared the same house number as No.24 or No.24C. The House and the Store also shared one electricity meter. Mr Leung then described how the numbers of the House and the Store were changed in 1980's. His evidence supports his father's.

23. Upon the assignment of different numbers to the House and the Store, the defendant decided to apply for separate electricity meter for the House. As his father had to look after the business of the Store, he attended to the matter for him and made the application with the China Light and Power Company Limited. Their application was allowed. By reason of his personal attendance of the matter, all correspondence with the China Light and Power Company Limited in respect of the electricity supply of the House, including the demand notes, deposit receipts, etc., were addressed to him. Copies of some of these demand notes and receipts have been adduced as evidence.

24. Mr Leung has been living with the defendant and his father in the House for more than 30 years when the plaintiffs herein instituted legal proceedings against his father in 1994. He was married in 1997. Thereafter, he continues to reside in the House with his father and other family members.

(4) Madam Poon

25. Madam Poon corroborated the defendant in several material aspects. She is now 71. She and the defendant have been living in the Village as neighbours for almost 43 years. To her knowledge, the defendant has all along been residing in the House exclusively without interruption since 1959 up to now.

26. She first met the defendant in about 1958 when the defendant and his wife moved into the Village and lived in House No.7. The said House No.7 belonged to one Mr Lee. Both Madam Poon and the defendant were his tenants each renting part of the premises from him. She lived in the room at the back and the defendant and his wife rented the front room. After settling down in the Village, the defendant started to run the Store at No.24 Ha Wo Che Village. The Store was situated immediately next to Section D and Section E, which was then abandoned and had been deserted for a long time.

27. The ground of Section D and Section E was then rocky and covered by wild grass. No one knew to whom it belonged. In about 1959, the defendant moved out from House No.7 and entered into possession of Section D and Section E and settled down there. The defendant began to erect various wooden structures there. The wooden structures formed the defendant's residence. Madam Poon personally eye-witnessed the defendant's construction of these structures on the land. The House was connected to the Store by a zinc/iron cascade. The House and the Store were therefore collectively referred to in the Village as House No.24 (also known as House No.24C) of Ha Wo Che Village.

28. During the 1980's, the government began to re-number all the houses in the Village. The defendant's house was re-numbered from No.24 (or No.24C) to No.79 and hers from No.18 to No.53. Despite the change in the house number, Madam Poon confirms that House No.79 is the same as the former House No.24 (also known as House No.24C).

29. Other than Madam Poon's evidence, the defendant also seeks to rely on the witness statements of Ms Tsang Ping Sin and So Chueng Kwai and one declaration of Mr Chan Koon Sang adduced under the old hearsay rule. They were all his former neighbours. Their evidence is in substance similar to that of Madam Poon. I do not propose to set them out here.

(5) Other documentary evidence

30. In addition to oral testimony, there is a wealth of unchallenged documentary evidence, admitted under the old hearsay regime, supporting the defendant's case. It is sufficient, I believe, to just mention some of them.

31. First, the birth certificates of the defendant's children (except those born before 1960) all show that their address at the material time was No.24 Ha Wo Che Village, Shatin. The earliest one was dated 25 May 1960. Second, the bundle of Frozen Confection Permits issued between 1 August 1968 and 2001, and the bundle of Business Registration Certificates issued between 8 June 1965 and 2000 clearly show that the Store was all along situated at No.24 (or No.24C), Ha Wo Che Village, Shatin and that the numbers were interchangable as the defendant had used both addresses for the Store. Third, the various deposit receipts issued by the China Light and Power Company Limited from 3 November 1961 to 1997 support the evidence of the defendant and Mr Leung about electricity supply to the House.

Conclusion

32. In the absence of any evidence to the contrary, the defendant's case is indeed overwhelming. I accept all the evidence adduced by him and on his behalf. The evidence clearly shows that the defendant has since 1959 been in continuous possession of Section D and Section E (except the Unoccupied Portion) with the necessary animus possidendi. He erected the House on the land. As can be seen from Exh. D2, the House occupied quite a significant portion of Section D and Section E. His family has all along been residing there. The remaining portion of the land is also occupied by the defendant in that he had turned in into a garden where he also stored some miscellaneous items. It is clear from the user of the land that the defendant must have intended to exclude the world at large, including the owners of the paper title.

33. Accordingly, I dismissed the plaintiffs' claims and entered judgment for the defendant for the declaration sought in respect of Section D and Section E (with the exception of the Unoccupied Portion) and costs. The defendant is legally aided, his own costs are to be taxed in accordance with legal aid regulations.