CHEUNG CHUN YAN v. CHAN MAN KWONG AND OTHERS

DCCJ19667/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 19667 OF 2001

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JUDGMENT

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Relationship of the Parties

1. The Plaintiff is the brother of the 2nd named Defendant Cheung Chok Ying (D2) and the brother-in-law of the 1st named Defendant (D1).

2. The Plaintiff is the registered owner of Lot No. 747 in DD 453. That piece of land is adjacent to Lot No. 1259 in DD 453 which is jointly owned by the 3 Defendants.

The Plaintiff's Claim

3. The Plaintiff claims that:-

(i) in 1973 the Defendants built a house in Lot No. 1259 he allowed the Defendants to erect a balcony from their house which protruded to the space of Lot No. 747 subject to an undertaking to demolish it if demanded by the Plaintiff;

(ii) in 1985 the Plaintiff allowed the Defendants to build a concrete wall around the frontal yard in his land shaded pink in the survey plan annex to the Statement of Claim;

(iii) in 1988 the Plaintiff allowed the Defendants to build a small canopy in the portion shaded yellow in the survey plan;

(iv) in 1996 the Plaintiff allowed the Defendants to extend the canopy in the portion shaded blue;

(v) the Plaintiff discovered the field patch shaded green in the surveyor plan had been used by the Defendants since the commencement of this action.

The Plaintiff therefore claims for possession of all the shaded areas and for damages.

The Defence and Claim

4. The Defendants' claim that they had been using all the shaded areas since 1949. They did not know who was the owner and that they had not been given any licence by anyone for its use. Hence they had been in occupation of Lot 747 for over 20 years and the Plaintiff is barred from claiming possession of the said Lot by virtue of S. 7 (2) of the limitation ordinance Cap. 347. The Defendants therefore seek a declaration that the Plaintiff's title had been extinguished.

Evidence

5. Wife of the Plaintiff Cheung Loo Sioe Yin gave evidence for the Plaintiff. She is the wife of the Plaintiff. She was brought up in Taiwan and came to Hong Kong in 1961 when she married the Plaintiff. They had since been living at Lo Wai Village where Lot 1259 and Lot 747 are situated. She assisted the Plaintiff to manage his property. She adopted the Plaintiff's witness statement as evidence.

6. They lived near the Defendants. They had very good relationship and were in good terms.

7. In 1973 the Defendants built a house in Lot 1259 immediately next to the pink portion of Lot 747. The Plaintiff helped the Defendants to apply for permission to build the house. Due to building regulations the balcony protruding to Lot 747 was demolished. After the building regulation was modified the Plaintiff allowed the Defendants to rebuild in balcony protruding to Lot 747 upon the Defendants agreeing to demolish the same if demanded by the Plaintiff.

8. Between 1973 and 1985 the Plaintiff's servants grew vegetables and mould grass on that piece of land.

9. In 1985 the Plaintiff intended to migrate and visited the Defendants, she and the Plaintiff saw a fence surrounding the pink portion. She asked D2 why it was fenced off. D2 was embarrassed and said "Ah Ying there was a lot of stray dogs."

10. She and the Plaintiff migrated to Canada and returned in 1988. She visited the Defendants and saw a canopy erected on the portion shaded yellow. She asked if D2 built it and D2 told her if she wanted to use the land D2 would demolish it.

11. During their visits to the Defendants the Plaintiff always told the Defendants that for the time being he had no development plan but if he needed to use it the Defendants had to return it. Every time when this was mentioned D2 would tell the Defendant that if he wanted to use it she would return it to the Plaintiff.

12. In 1995 she saw an extension of the canopy to the portion shaded blue. The Plaintiff said the Defendants had almost used up his land. He intends to take the land back and talked to D2 but she ignored the Plaintiff.

13. In 1999 the Plaintiff talked to D1 and said "Kwong Kor (D1) you have to give me back my farm land". D1 said "if you want you will get the land back". So the Plaintiff waited and waited until 2001 when he instructed Leo Lok & Co. to issue a letter to the Defendants to claim back the land.

14. Chan Yuk Kwan (D3) gave evidence for the Defendants. She filed an additional witness statement and exhibited 3 photographs which she alleged were taken in 1980 and 1992 in the pink portion. She was born in 1960. She is the daughter of the D1 and D2. When she was very young she helped her parents to grow vegetables in Lot 747. She did not know the plot belonged to the Plaintiff. The whole plot of land was fenced off by wire mesh. When her maternal grandfather (i.e. Plaintiff's father) died no one told them to stop working on the plot nor did the Plaintiff tell them he owned that plot of land.

15. In 1973 her parents built the house in Lot No. 1259 the portion shaded pink was fenced off with concrete wall.

16. In 1976 a canopy was erected on the portion shaded yellow and blue for storage and rearing chicken and the portion shaded green was left as a small field. The canopy had not been extended.

17. Her parents migrated to USA in 1992 and she was left to manage that plot of land. She migrated to USA in 1999.

18. The Plaintiff had never informed them that the plot of land was his.

19. Cheung Chok Ying (D2) also gave evidence.

20. She was born in 1927. She married D1 at the age of 22. About 2 years later she was told by her father to work on Lot 747 which was not cultivated but laid waste with wild grass. The Plaintiff was then too young to work on that piece of land. She did not know her father owned that piece of land.

21. She then fenced off that plot of land with wire mesh.

22. Some years later the Plaintiff left for Taiwan to study, she cultivated that plot of land as well as her father's other vegetable patches and sold vegetables for her father.

23. When her father died in 1964 no one told her to stop working on that plot of land. The Plaintiff did not tell her he owned that plot of land.

24. In 1973 they applied to build the house in Lot 1259. The frontal area which is shaded pink was fenced off with concrete wall.

25. In 1976 a canopy was erected in the portion shaded yellow and blue for storage and rearing chicken and the portion shaded green was left as a field patch. The canopy had not been extended.

26. She and her husband migrated to USA in about 1992 and the plot of land was left to D3 to manage. In 1999 D3 migrated and joined them in the USA. His son Chan Yuk Ming now managed that plot of land.

27. The Plaintiff had not granted her licence for occupation of the said plot nor had the Plaintiff told her the land was his until she received the letter from Messrs. Leo Lok & Co.

Evaluation of Evidence

28. I have carefully considered all the evidence and the photographs including the aerial photos. I find that all witnesses have not been telling the whole truth.

29. D2 in her witness statement said she was first allowed to work on Lot 747 by her father, but when she gave evidence she said the area shaded pink area was bought by her mother-in-law. The frontal area was under her husband's name. During cross-examination she said her mother-in-law gave the whole piece of land until now and then she continued to say that the area shaded yellow, blue and green was full of mud and her father asked her to use those portions.

30. Both D2 and D3 said that the concrete wall in the frontal area of the house was build in 1973 and that they put up the canopy in 1976 but the aerial photo taken in 11/80 showed that the fence at the frontal area of the house is different in shape from the aerial photo taken in 1991 and that it did not show there was a canopy in November 1980. That area was covered with trees. The photograph allegedly taken by D3 showed that there was building materials in the background and that the fence had not been completed. I do not think that the building materials were abandoned materials taken from other construction sites.

31. Equally Mrs. Cheung had not been telling the whole truth. Mrs. Cheung adopt the statement of the Plaintiff. The Plaintiff in his statement said "up to 1985 my wife and I had no particular plan for the development or use of the land". However she in the witness box said that between 73-85 her servants grew vegetables and mould grass in that land. Further she said that in 1985 she saw a fence surrounding the pink portion. However from the aerial photo taken in 1980 it shows that there was already some sort of fence in that area.

32. As the relationship of the Defendant and the D2 is that of brother and sister, they lived nearly and that they were having good relationship, it is unlikely that D2 did not know that the land belonged to the Plaintiff.

33. As D2 said her father allowed her to work on that piece of land she must have know that her father owned that piece of land. It is common knowledge of the New Territory villagers that son inherits the father's estate to the exclusion of female descendants in the absence of a will, I do not believe that D2 did not know that piece of land belongs to the Plaintiff.

34. On balance of probability I find that D2 knew that plot of land belonged to the Plaintiff and that in 1985 at the request of D1 and D2 the Plaintiff allowed them to use that plot of land thereby the Defendants acknowledged the title of the Plaintiff as owner of that plot of land.

35. In any event if I am wrong in finding that the Plaintiff had given consent to the Plaintiffs the D1 and D2 had migrated to USA in 1992 and D3 in 1999 joined them. By migrating to the US even if they had occupied that plot of land without the consent of the Plaintiff, they had abandoned that plot of land.

The Balcony

36. As the balcony did not actually trespass on to that portion of land, at best it can only be nuisance. Since there is no claim for abatement of nuisance, I do not propose to make any order in respect of the balcony.

Mesne Profits

37. As the Plaintiff had given consent to the Defendants to use that piece of land until 1999, the Plaintiff can only recoup mesne profits from 1999 until delivery of vacant possession. As there is no evidence about the value of that plot of land or its rental value I will adjourn assessment of damages to the Registrar.

Conclusion

38. By reasons aforesaid there be judgment for the Plaintiff for possession of that plot of land.

39. Damages to be assessed.

40. Costs to Plaintiff. Certificate for counsel.

41. Counter-claim dismissed with costs. Certificate for counsel.

Remarks: