YEUNG SHUK CHING v. The Personal Representative(s) of YONG MUNG also known as YEUNG MUN, Deceased

HCMP 2224/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2224 OF 2016

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REASONS FOR JUDGMENT

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Order made at hearing

1.  On 24 August 2017, I dismissed the Originating Summons issued by the plaintiff on 26 August 2016.  The plaintiff’s case of adverse possession was thoroughly unmeritorious.  The only reason why I did not make a costs order was that there was no evidence of the “defendant” having incurred any costs.  I now give my reasons for dismissing the Originating Summons.

The Paper Owner

2.  “The Personal Representative(s) of Yong Mung (楊滿) also known as Yeung Mun (楊滿), Deceased” was named as the defendant (the “defendant”).  Yong Mung (楊滿), also known as Yeung Mun (楊滿), shall be referred to as the “Paper Owner”.

3.  The plaintiff states on the face of the Originating Summons that the address of the defendant “is not known to the Plaintiff”.

Plaintiff applied ex parte for judgment

4.  The plaintiff and her legal advisers felt proper to apply ex parte by an Affirmation of the plaintiff affirmed on 24 August 2016 to:

“… grant the declarations that the legal and beneficial interest of the Deceased in the Land have been extinguished and that [the plaintiff has] acquired a good possessory title to the Land by adverse possession pursuant to[1] the Originating Summons.”

5.  This ex parte application came before L Chan J who directed on 6 September 2016 that:

“The Originating Summons should be dealt with inter partes.”

Service of the Originating Summons on the Official Solicitor

6.  The plaintiff and the Official Solicitor made a joint application by a consent summons issued on 7 October 2016 and obtained a consent order made by Master Hui on 25 November 2016 that:

“… the Official Solicitor be appointed to represent the Personal Representative(s) of Yong Mung (楊滿) also known as (楊滿), deceased limited to accepting service of the Originating Summons in this action.”

7.  Service of the Originating Summons was effected on the Official Solicitor who became functus officio under the consent order dated 25 November 2016.

Requirements and the order for substituted service

8.  The Originating Summons was listed before a judge on 11 May 2017 who ordered that the Originating Summons be set down for substantive hearing on a date to be fixed with 1 hour reserved. 

9.  The plaintiff applied for a substituted service order.  The learned Judge ordered that:

“There be substituted service of this Order and the Notice of Hearing on the Defendant by way of advertisement in a Chinese language local newspaper.”

10.  Order 65, rule 4 of the Rules of the High Court, Cap 4A, provides for substituted service in these terms:

“ (1) If, in the case of any document which by virtue of any provision of these rules is required to be served personally or in the case of a document to which Order 10, rule 1, applies, it appears to the Court that it is impracticable for any reason to serve that document in the manner prescribed on that person, the Court may make an order for substituted service of that document.

(2) An application for an order for substituted service may be made by an affidavit stating the facts on which the application is founded.

(3) Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.”

11.  The purpose of the court’s direction under sub‑rule (3) is “to bring the document to the notice of the person to be served.”

12.  In Chan Yeuk Mui v Ng Shu Chi[1999] 2 HKLRD 376, Rogers JA stated the general rule that:

“… in considering the exercise of the discretion to permit substituted service, the court must consider whether the form of service proposed would be effective.…

…

The court in granting an order for substituted service must then take into consideration the requirement of bringing the particular document to the notice of the person being served.  It is, after all, not an order that service be dispensed with.” 

13.  There is no allegation and no evidence of any evasion of service by the “defendant”.

14.  The plaintiff contended that the Paper Owner had died.  Be that as it may, it is plain and obvious to me that the plaintiff has no knowledge as to, and in any event, there is no allegation and no evidence of:‌

(1) whether any executor had been appointed by will or any administrator had been appointed by letters of administration and was still living at the time the plaintiff’s application;

(2) the identity and number of the personal representative(s) (if any);

(3) the address of the personal representative(s) (if any) of the Paper Owner;

(4) whether the personal representative(s), if any, was/were literate; and

(5) whether the personal representative(s), if any, read “a Chinese language local newspaper” or any newspaper at all.    

15.  With all respect, I doubt if the plaintiff has placed relevant and sufficient information to satisfy the requirement of bringing the particular document(s) to the notice of the person being served.

16.  Be that as it may, as the order for substituted service has been made, I must proceed on the basis of proper service.

The Subject Lots

17.  The plaintiff claimed adverse possession of 10 lots of land in Tung Chung, i.e. Lot Nos. 144, 282, 306, 567, 568, 644, 652, 1226, 1859 and 1861 in D.D.[2] 1 Tung Chung (the “Subject Lots”),

18.  The plaintiff has not identified the location of any of the Subject Lots.  A copy of Lot Index Plan No. SK0016052017 dated 2 May 2017 on “Locality: 11/5” was said to have been exhibited but no copy was inserted in the hearing bundle.  The lame excuse put forward by the plaintiff’s legal advisers was that it was oversized. A copy was made available to me at my request.

19.  This Lot Index Plan shows hundreds of lots.  But nobody from the plaintiff’s legal team took the trouble of identifying the Subject Lots, whether by colouring or otherwise.  It is not helpful to the court at all.

20.  Significantly, the Subject Lots do not form a cluster.  This is important and it is incumbent on the plaintiff to show how the alleged adverse possessor came to be in occupation of a total of 10 isolated lots of land with irregular shapes and at unknown distances apart.

21.  The Lots were held under a Block Crown Lease.

22.  The Paper Owner has been the Crown Lessee of the Subject Lots since 18 March 1905.

The hearing

23.  Mr Chan Hei Ching appeared as counsel for the plaintiff on the instructions of Cheng & Wong.  Mr Chan Hei Ching did not call the plaintiff to give oral evidence or offer her for questioning.

24.  Order 38, rule 36(1) of the Rules of the High Court, Cap 4A, provides that:

“Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter unless the party seeking to adduce the evidence has applied to the Court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application.”

The plaintiff has not sought and has not obtained any order or direction on expert evidence.

Mr Chan Hei Ching’s applications for adjournment

25.  In the course of the short hearing on 24 August 2017, Mr Chan Hei Ching twice applied for an adjournment.

26.  The first application was for the purpose of adducing expert evidence.  This was a matter which should have been dealt long before the hearing on 24 August 2017 had the plaintiff and her legal advisers exercised due diligence in their preparation.  I refused the application for adjournment.

27.  The second application was for the purpose of adducing “better photographs”.  I saw no reason to accommodate the plaintiff’s woefully inadequate preparation and refused the application for adjournment.

Mr Chan Hei Ching’s list of authorities

28.  Mr Chan Hei Ching’s list of authorities listed the following 2 items:

“ 1. To Kan Chi v Pui Man Yau, unreported, 3 Feb 2000 (CA)

2. Sections 7(2) and 17 of the Limitation Ordinance (Cap 347)”

There is nothing in Mr Chan Hei Ching’s list of authorities or written submission on the applicable principles in relation to adverse possession.

Limitation Ordinance, Cap 347

29.  The following provisions are relevant to these proceedings.

30.  It is clear from section 7(2) that the right of action must have accrued to the paper owner before the limitation period may begin to run:

“ (2) No action shall be brought by any other person to recover any land after the expiration of [20] 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:

Provided that, if the right of action first accrued to the Crown through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown, or of [20] years from the date on which the right of action accrued to some person other than the Crown, whichever period first expires.”

31.  The period of 20 years was reduced to 12 years in 1991.

32.  Section 8(1):

“ (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.”‌

33.  Section 13(1) and (2) make it clear that accrual of cause of action to the paper owner is a requirement additional to the requirement of adverse possession by the squatter:

“ (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.

(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken in adverse possession.”

34.  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.”

The applicable principles

35.  The principles are well settled.  They were stated by Li CJ in Wong Tak Yue v Kung Kwok Wai & another (1997–1998) 1 HKCFAR 55 at pp 68 – 69 as follows:

“ As Nourse LJ pointed out in Buckinghamshire County Council v Moran at 644, adverse possession can be described as ‘possession as of wrong’ and with limitation it is the intention of the squatter that is essential.”

“A person claiming to be in adverse possession must be shown to have both[3] possession and[4] the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade J in Powell v McFarlane (1979) 38 P & CR 452.

…

The requisite intention to possess has been referred in various authorities under its Latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane at 471–472, the intention to possess requisite for adverse possession:

… 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 process of the law will allow.

The question of intention to possess, as with any other questionof intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.

Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation orwhen 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.”

36.  In Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588, Nazareth NPJ stated the principles in §7 as follows:

“ The principles for the application of ss.7(2), 17 and the associated provisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v McFarlane (1979) 38 P & CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and adopted by this Court in Wong Tak Yue v Kung Kwok Wai (1997–98) 1 HKCFAR 55. Their application has not been disputed in these proceedings, and they have been relied upon by both parties. The authorities mentioned, not only approve those principles, but provide explanation of them and guidance in their application. Of particular relevance to dispossession are the following passages in Slade J’s judgment in Powell v McFarlane:

…

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both[5] factual possession and the requisite intention to possess (animus possidendi).

(3) 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.

(4) … 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.(pp.470–472.)”

37.  Wong Tak Yue and Incorporated Owners of San Po Kong Mansion are Court of Final Appeal judgments.  They are binding on me.  They hold that a person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess.  To equate possession with the requisite intention to possess is plainly wrong.

38.  In On Yip Property Development Company Limited v Kwok Tai Kuen Alan, unreported, HCMP 3192 and 3223/2013, 15 April 2014, Cheung CJHC stated in §8 of his Judgment that adverse possession is a question of fact to be established by cogent and sufficient evidence, the burden being on the squatter, there being no place for any presumption, whether legal or evidential, in favour of the squatter:

“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.”

39.  On 19 January 2016, the Court of Appeal handed down its judgment in Gotland Enterprises Limited v Kwok Chi Yau and others, unreported, CACV 260/2014.  Gotland was a case where there were two large ponds separated by a strip of land in between.  There was no physical barrier to the first pond and no segregation of the pond from the adjoining areas within the land in dispute.  Lam VP, delivering the judgment of the Court of Appeal, held that “one must examine what steps were taken by the person claiming exclusive occupation to exclude others” and held that:

“What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above.”

Lam VP stated in §§36, 37 and 39, 54 and 59 as follows:

“ 36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so.  In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”

“ 39. At paragraph 54 of the judgment, the Judge did not examine the exclusive occupation of Pond 1 at length. He dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. With respect, this is not the correct approach. What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above.”

“ 54. … The crucial question remains: what objective acts could the 5^th Defendant pinpoint as unequivocal manifestation of the intention to possess?”

“ 59. In our judgment, ultimately the crucial issue is whether the Judge was correct in holding that the acts of fish farming and duck rearing carried on at Pond 1 was equivocal. For reasons we have already given, we are of the view that the Judge had come to the correct conclusion.”

“Not certain as to how Father had come into possession of the Land”

40.  The plaintiff deposed in §8 of her Affirmation that:

“I am not certain as to how Father had come into possession of the Land, but the year shall be no later than 1952 since the earliest original receipt in Father’s possession evidencing his payment of the Crown rent for the Land, which supported his intention to possess and be the owner of the Land, was dated 3^rd November 1952.” (emphasis added)

41.  Factual possession is a question of fact to be established by cogent and sufficient evidence, the burden being on the squatter.  Evidence must be considered in light of inherent probabilities and common sense, there being no place for any presumption, whether legal or evidential, in favour of the squatter.  Commencement of factual possession is a question of fact which must be proved by the squatter.  The burden of proof being on the squatter, (s)he does not benefit from vagueness or gaps in her/his case.  As the plaintiff has confessed on oath that she was “not certain” how possession allegedly began. There is no evidence how the plaintiff’s father came to be in possession or even occupation of the 10 Subject Lots, which are at some unknown distances apart.  The plaintiff has not overcome the initial hurdle.

42.  The rest of §8 consists of submissions. Submissions have no place in affidavits, see Order 41, rule 5 of the Rules of the High Court, Cap 4A which provides that:

“ (1) Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.”‌

Subject to exceptions which are not applicable in this case, an affidavit may contain (a) only (b) facts (c) from the deponent’s own knowledge.

43.  The Crown rent receipts were made out in favour of the Paper Owner, not the plaintiff’s father.  Possession of such receipts does not evidence payment of Crown rent by the plaintiff’s father, not to mention “intention to possess and be the owner of the Land”.

44.  The plaintiff has not overcome the initial hurdle and her bold and bare assertion of adverse possession does not get off the ground.

45.  Possession of the original 執照 in the name of the Paper Owner is a red herring.  It does not prove the plaintiff’s father’s possession (or occupation) or intention to possess (or occupy) any of the Subject Lots. 

46.  I note there is no evidence on how the plaintiff or her father came to be in possession of the original 執照 in the name of the Paper Owner.  If it was occupation with the Paper Owner’s permission, it is not possession as of wrong.

No evidence of possession

47.  The photographs produced by the plaintiff showed only a fraction of each lot.  They do not show the users alleged by the plaintiff.  Further and in any event, proof of user does not prove occupation or possession, see Gotland on user, occupation and possession. 

48.  The plaintiff’s alleged usages of the Subject Lots are not supported by cogent or sufficient evidence.  The photographs in fact disprove any cultivation.

Delineation or demarcation of the Disputed Land

49.  The Subject Lots are irregular in shape.  There is no evidence that any area alleged to be occupied by the plaintiff’s father comprises any of the Subject Lots.  There is no delineation or demarcation of the Subject Lots on the ground.  There are no definitive reference points, on the ground or otherwise.  There is no allegation of:

(1) the use of any survey record plans;  

(2) the use of any lot index plans; or

(3) superimposition of any survey record plan or any lot index plan on any aerial photographs,

in the identification or demarcation of the areas which the plaintiff’s father allegedly occupied.  I am not satisfied that the plaintiff has begun to prove that any area or areas which her father might have allegedly occupied was any of the Subject Lots.

50.  The Lot Index Plan No. SK0016052017 dated 2 May 2017 is plainly irrelevant as it only came into existence after the commencement of these proceedings.

51.  The plaintiff’s case on possession is similar to, but far worse than, Chan Chuen’s case in The Personal Representative of the estate of Chan Chuen, DeceasedHCA 2055/2011, 13 April 2016.  For similar reasons, the plaintiff’s case on possession fails.

Unequivocal manifestation of the intention to possess

52.  Applying the approach adopted by Lam VP in §54 in Gotland, I ask the crucial question: what objective acts could the plaintiff pinpoint as unequivocal manifestation of the intention to possess? 

53.  The plaintiff has not alleged any barrier to any of the Subject Lots.  Some of the photographs show some low rise iron fencing which does not amount to barrier for the simple reason that the photographs do not show whether there was any way around the fencing.

54.  I asked Mr Chan Hei Ching about animus possidendi.  He asserted that:

“Intention to possess can be deduced from the physical acts themselves, physical act of the occupation and the various usages by the plaintiff and her parents.”

55.  Mr Chan Hei Ching made the fundamental error of equating factual possession with animus possidendi.  There is no justification, whether in law or in fact for such error, see Tierra Trading Limited and another v Land Base LimitedHCMP 3074/2014, 22 August 2017.

Conclusion

56.  For the reasons given above, I dismissed the plaintiff’s adverse possession claim.