YOUNG IVY SHUI HEUNG v. YAU KOON SUM AND OTHERS

DCCJ 3807/2015

[2018] HKDC 1346

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3807 OF 2015

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D E C I S I O N

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1.  This is the defendants’ application for leave to appeal and stay of execution pending the determination of the appeal.

2.  The grounds of appeal are dealt with herein below.

Ground 1

3.  The Judge erred in law by only citing and considering the principles submitted by the plaintiff at paragraph 15 of the Judgment and ignoring the principles cited by the defendants in their written closing.

4.  Mr Sunny Chan, counsel for the defendants, submitted that according to the principles laid down in JA Pye (Oxford) Ltd v. Graham [2003] 1 AC 419 that if a squatter’s acts are open to more than one interpretation and she has not made it perfectly plain to the world at large by her actions or words that she has intended to exclude the owner as best she can, the courts will treat her as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.

5.  Mr Sunny Chan submitted that the plaintiff’s action is open to many interpretations:

“	i.	The plaintiff moved to the US in early 1970s and did not reside at House No 5. This shows a lack of intention to possess Lot 580 as her own;
	ii.	Since the plaintiff’s mother passed away in 1975, the plaintiff still did not occupy Lot 580 until much later, it therefore cannot be the case that she intended to possess Lot 580 from 1967;
	iii.	The plaintiff allowed a third party to dispossess her alleged occupation of Lot 580. It therefore cannot be said that she unequivocally intended to adversely possess Lot 580.”

6.  I do not accept that the plaintiff’s acts as stated in 5(i) and (ii) are open to many interpretations. As stated in paragraph 2 of the Judgment, House No 5 is situated at section B of Lot 568, section A of Lot 578 and Lot 580 in D.D. 253. The plaintiff is the registered owner of the section B of Lot 568 and section A of lot 578. Her move to the US and her not residing at House No 5 after the death of her mother could not be interpreted as evidence of her abandoning Lot 580 or House No 5. The kitchen of House No 5 is situated in Lot 580. There is no evidence at all that she abandoned House No 5. Her evidence was that she allowed Chan Bing Hong to live in House No 5 at the material time. Such acts are not inconsistent with her case.

7.  The plaintiff never allowed a third party to dispossess Lot 580. She granted a license to the third party. 

8.  Ground 1 has no merits. The principle was not referred to as it has no application to the present case. The plaintiff’s allowing House No 5 to be occupied by Chan Bing Hong is not an equivocal act at all.  It is consistent with her case that she was the owner of Lot 580.

Ground 2

9.  Mr Sunny Chan submitted the inference that the plaintiff and her family was in continuous and uninterrupted adverse possession of Lot 580 since 1967 is not supported by evidence.

10.  He submitted that:

“	i.	There is no or insufficient evidence which allows the Judge to conclude that the plaintiff’s mother was in adverse possession:
	ii.	There was no or insufficient evidence to show that the plaintiff intended to adversely possess Lot 580 after the plaintiff’s mother passed away;
	iii.	That the plaintiff allowed a third party, Chan Bing Hong, to dispossess the plaintiff since 1994; and
	iv.	That the Judge failed to consider the plaintiff’s evidence to be self –serving and not credible.”

11.  Mr Sunny Chan’s submission is in fact a challenge on the finding of facts. There is no merits on this ground, in particular, the challenge that the plaintiff’s evidence was not credible. As stated in paragraph 34 of the Judgment, this is a case of factual dispute. If the court accepts the evidence of the plaintiff and rejects the evidence of the defendants, the plaintiff’s claim will be successful. The plaintiff’s evidence was accepted. It goes without saying that her case of mistaken belief of ownership was accepted and it is one of the primary facts found. The reasoning has been stated in paragraph 19 of the Judgment.

12.  The plaintiff’s evidence supported her case could not be a ground of appeal and again the plaintiff never allowed a third party to dispossess her. It is held that license was granted to Chan Bing Hong.

Ground 3

13.  The Judge erred in finding that the defendant’s version about his family granting a license is more probable.

Ground 4

14.  The judge failed to consider adequately or at all the overall credibility of the plaintiff when assessing the plausibility of the plaintiff’s assertion that she and/or her family had been in adverse possession of Lot 580.

15.  Grounds 3 and 4 are challenges on the finding of credibility of witnesses. I agree with Mr P K Chan, counsel for the plaintiff, that the plaintiff’s pleaded case and her oral evidence are not inconsistent. Mr Sunny Chan’s arguments have no substance. Even if Chan Bing Hong had the intention to occupy House No 5 himself, it did not contradict the plaintiff’s case that only a license was granted. Chan Bing Hong’s wife subsequently returned the House to the plaintiff.

16.  There is no reasonable prospect of success in the appeal, and there is no other reason in the interests of justice that the appeal should be heard. The defendants’ application for leave to appeal is dismissed.

17.  The is no reason to order stay of execution. In fact, the Order has already been registered in the Land Registry. The application for stay of execution is dismissed.

18.  Costs should follow event. The defendants do pay costs of this application, with certificate for counsel, to be taxed if not agreed. The plaintiff’s own costs to be taxed in accordance with legal aid regulations.

19.  I thank counsel for their assistance.