FONG KAI SING v. CHAN CHI WAI ALEX AND OTHERS

DCCJ 5128/2015

[2018] HKDC 1331

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5128 OF 2015

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JUDGMENT

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INTRODUCTION

1.  This action concerns part (“the Occupied Area”) of the land known as the 6^th Portion of the Remaining Portion of Pokfulam Lot No 13 (“the Land”) upon which a house with the address known as No 85B, Pok Fu Lam Village has been erected thereon (“the House”).  The Occupied Area is coloured yellow on a plan prepared by the single joint expert, a copy of which is annexed to this Decision as “Annex A”.

2.  The defendants have been the registered owners of the Land in equal share since 24 January 2008.

3.  Upon clarification with the plaintiff’s counsel, Ms Tjia, as to what the defined term “the Land” as pleaded in the Statement of Claim actually encompassed, it is now clear that the subject matter of the claim is the Occupied Area only as opposed to the entire area of the Land.

4.  The plaintiff’s primary claim in this action is a declaratory relief that he has acquired a possessory title over the Occupied Area by reason of adverse possession.  Alternatively, the plaintiff claims that by a deed of gift dated on or about 25 October1948 (“the Deed”), he has also acquired title over the Occupied Area.  At the start of the trial, Ms Tjia informed this court that the plaintiff is no longer pursuing this alternative case.

5.  There is no counterclaim for vacant possession of the Occupied Area.  It is common ground that the annual rateable value of the Occupied Area does not exceed HK$240,000. Hence, the plaintiff’s claim is one which concerns “pure” title and falls within the jurisdiction of this court under section 36 of the District Court Ordinance Cap 336: Ng Cho Chu Judy v Chan Wing Hung.[1]

THE PARTIES’ RESPECTIVE CASE

6.  The plaintiff’s case can be briefly summarized as follows:-

(1) By a Chinese tenancy agreement (“the Lease”) made on or about 24 January 1948, a Chan Chiu Hei (陳照喜) (“Chan”) leased the Occupied Area to the plaintiff’s late father, Fong Kiu (方嬌) (“Fong”) for the purpose of building a house.  The lease was for a period of 7 years at annual rental of HK$50.

(2) On or about 25 October 1948, the Deed was executed by Chan and his three sons, Chan Man Foo (陳文寬), Chan Man Kwong (陳文江) and Chan Man Fok (陳文福) which gifted the Occupied Area to the plaintiff for the purpose of building a house.  As it turns out and it is common ground that neither Chan nor any of his three sons was the registered owner of the Occupied Area or the Land at the time.

(3) In or about 1949, the plaintiff and his late father, Fong, built the House.  Since then, the plaintiff had exclusive control and possession of the Occupied Area without the consent of the registered owner thereof.  The plaintiff claims that the defendants’ respective titles to the Occupied Area have been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance Cap 347.

7.  The defendants do not dispute that the plaintiff and his family members have been residing at the House throughout the years and that the Deed was executed by Chan and his 3 sons.  Their case is that the Deed was not intended to be an absolute gift but instead created an irrevocable licence or a tenancy with life interest in favour of the plaintiff.

8.  In the circumstances, the defendants contend that the plaintiff has been occupying the Occupied Area as mere licensee or tenant and Chan and/or his sons were and are in adverse possession thereof through the plaintiff.

THE ISSUES

9.  The parties agreed the key issues are:-

(1) What is the nature and legal effect of the Deed, in particular, whether it intended to:

(a) assign any title or interest of the Occupied Area to the plaintiff;

(b) create a licence (by Chan and/or Chan’s Sons) in favour of the plaintiff and the plaintiff’s family members; or

(c) create a lease giving the plaintiff a life tenancy of the Occupied Area (“Issue 1”).

(2) Subject to the above, whether the plaintiff has established that he has the requisite factual possession and animus possidendi at all material times and acquired possessory title of the Occupied Area by way of adverse possession (“Issue 2”).

10.  As the plaintiff has abandoned his alternative case, he only needs to satisfy this court that Issue 2 is answered in the affirmative.  The Deed is relevant in that, if upon construction, I come to the view that Chan and/or his three sons wrongfully or mistakenly held out as the owner(s) of the Occupied Area and granted a licence or tenancy in favour of the plaintiff, the possession from 1949 would be regarded as having been in Chan and/or his three sons: Sze To Chun Keung v Kung Kwok Wai David [2] & Cheung Yat Fuk v Tang Tak Hong & Ors[3]. 

THE MATERIAL FACTUAL BACKGROUND

11.  The plaintiff’s occupation of the Occupied Area is to be understood against the following background which is not seriously disputed.

12.  By a crown lease dated 1 January1893, Chan Kun Sau (陳觀壽) had been the registered owner of Pokfulam Lot No 13 (“Lot No 13”).  Chan Kun Sau had two sons, namely, Chan Chiu Sing (陳照勝) and Chan.  The defendants are in turn the great grandchildren of Chan Chiu Sing.  A family tree of Chan Kun Sau’s family is annexed to this Decision as “Annex B”.

13.  In 1917, Chan Kun Sau died intestate but letters of administration of his estate was only granted to Chan Tam Po (陳譚保) ie the 1^st defendant’s father, on 17 September 1999.

14.  Before Chan Tam Po acted as administrator of Chan Kun Sau’s estate, Lot No 13 was managed by Chan Chiu Sing and Chan.  Upon their death, the management of Lot No 13 was handed over to their children or other descendants.

15.  Against this context, Chan and Fong executed the Lease on or about 24 January 1948.  The Lease reads as follows:-

「立據人陳照喜願將屋地壹副租與　方嬌君蓋塔屋宇之用預期揭取港銀弍佰元正，訂明由戊子年正月起至壬辰年拾弍月止（共七年）（另支叁拾元正）期滿後每年應繳上期租金伍拾元正如日後須繳物業或其他稅項概由承租人付責并不得在租金內扣除　為此特聲明如右立字為凴
立據人陳照喜的筆
民國叁拾柒年丁亥拾弍月拾肆日」

16.  On or about 25 October 1948, the Deed was executed and it reads as follows:-

「立送建屋基地契人陳照喜茲因友誼關係願將本人名下所有坐落薄扶林村胡忠新屋後面之建屋基地壹幅送與方繼成為建屋居住之用自經送與之後任由方繼成建屋居住陳照喜本人及其子孫後人永遠不得干涉如有陳照喜及其親屬後人出而勒索騷擾應由陳照喜出首理妥概与方繼成無涉並議定由方繼成一次過交給港幣捌佰大元与陳照喜父子接收作為永遠代納政府稅項之用

此是三面言明酌無翻梅亦無勉強情事恐口無憑特立此

送契壹紙交与方繼成收執存據

收（貼上香港15仙 士担）

見證人何曉園

中華民國農曆九月廿三日

立送建屋基地契人 陳照喜

    陳文寬

子 陳文江

    陳文福」

17.  In or about 1949, the plaintiff and Fong built the House.  Since then, the plaintiff and his family members have been residing at the House.  In or about November 1965 and May 1966 respectively, Fong applied to the Hong Kong Water Authority and Hong Kong Electric Company Limited for water and electricity supply to the House.

18.  After Fong passed away on 27 February1973, the plaintiff continued to reside at the House with his mother, his wife and children.  As of now, the plaintiff is still residing at the House with his wife, their younger son, Fong Tze Kin and his wife.  The demand notes for water and sewage charges as well as electricity charges continued to be addressed to “Fong Kiu” ie the plaintiff’s late father.  However, since 1 April 1973, the plaintiff has become the registered payer of the Rates Account in respect of the House.  The plaintiff also claims that he has been paying such rates as demanded from the Rates and Valuation Department since his father passed away.

19.  Initially, the House had no sewage and drainage system.  It was only until the mid-80s that a toilet was included in the House.  In or about September to October 2004, the plaintiff also spent a sum of HK$230,000 to renovate the House.  From 2006 to 2007, the plaintiff also repaired the roof to rectify some water seepage problems.

20.  In 2008, Chan Tam Po wanted to pass the management of Lot No 13 to the younger generation.  Further, it was agreed amongst family members of the two family branches of Chan Kun Sau’s sons (ie Chan Chiu Shing’s branch and Chan Chiu Hei’s branch) that Lot No 13 should be divided.  Pursuant to a family agreement in writing dated 24 January 2008, it was agreed that:-

 (1) Lot No 13 should be divided into two portions, namely Section A and Remaining Portion of Lot No 13 (“Lot No 13 RP”). 

 (2) Section A of Lot No 13 would be distributed to Chan Tak Wah (陳德華) and Chan Kit Lai(陳潔麗) ie the children of Chan Man Foo.  This is because some of Chan’s descendants have been residing at a house known as No 21A Pokfulam Village which is within Section A of Lot No 13.

 (3) Lot No 13 RP would be distributed to the defendants in equal share.

21.  Lot No 13 RP is comprised of 9 portions including the 6^th Portion and the Occupied Area is part and parcel to the 6^th Portion.

THE EVIDENCE

22.  There is little factual dispute in this trial.  This is reflected in the brevity of the cross-examination of the witnesses of both sides.  It should be said that (1) the witnesses can say very little regarding the circumstances of the execution of the Deed which are matters outside their knowledge and (2) the defendants are not in the position to contradict much of the plaintiff’s evidence concerning the occupation of the Occupied Area as those matters are also outside their knowledge.

The expert evidence

23.  Pursuant to Master D To’s order dated 20 November 2017, a surveying report prepared by the single joint expert, Mr Leung Shou Chun (the “Report”), was adduced without the need of calling Mr Leung.  The Report has confirmed that:-

(1) The House consists of a duck-shape 2 storey house and 2 courtyards which are enclosed by walls.

(2) The House plus the 2 courtyards as a whole equal to the Occupied Area.

(3) The Survey Sheets and the Aerial Photographs show that the House in the Occupied Area should be existing in 1958 if not earlier.  In 1968, the House was updated in details and the House in the Occupied Area with 2 enclosed courtyards was shown.

(4) Nonetheless, the limit of the Occupied Area remains unchanged since 1958 or earlier.

The evidence of the plaintiff and Fong Tze Kin

24.  In respect of the plaintiff’s case, only the plaintiff himself and his younger son, Fong Tze Kin, aged 38, gave evidence and were cross-examined.  Whilst the plaintiff’s wife and his elder son also prepared a witness statement, they were not called to give evidence at the trial.  I have disregarded the contents of their witness statements.

25.  The plaintiff is an elderly man of almost 85 years old.  He has hearing impairment and has not been able to remember certain details.  This is understandable given his advanced age and that the material events took place more than half a century ago.  It is also suggested that he is suffering from a gradual decline in short-term memory and he was admitted to the hospital for 2 days in April 2018 because of a fall.  On the first day of trial, the plaintiff’s solicitors produced two reports from two medical practitioners specialising in psychiatry who had examined the plaintiff on 7 September 2018.  The two reports confirm that whilst the plaintiff is having mild cognitive impairment, he is considered mentally fit to instruct a lawyer and to follow the legal proceedings.  Mr Ho, the defendants’ counsel also confirmed that there is no challenge to the plaintiff’s mental capacity.

26.  Despite the fact that the plaintiff has not been able to remember certain details, I am of the view that his evidence is generally reliable and I accept the same.  His answers regarding the essential part of his case were clear and consistent.  He is adamant that a friend of his late father gave him the land for building a house (“送畀我哋起屋”) and that there was no need to return it (“唔使還”).  He also gave firm answers that his father told him all his sons and issues (“子孫”) and siblings could live in the House.  When asked why the phrase “代代相傳” was used in his witness statement but he confirmed that it was never mentioned by his father, the plaintiff said he could not recall but he and his wife have always treated the House as his.  He is of the view that his father gave him the Deed for safekeeping purpose so as to prevent other people to occupy (“佔有”) the land.  The Deed had all along been kept at home by his father.  He therefore also let his younger son Fong Tze Kin to keep the Deed for him as he is getting old and he may lose it.  He also intends to give the House to his issues after his demise.  Finally, he also confirmed that no one ever interferes with his occupation of the House or collects any fees or payments from him for so doing.

27.  Fong Tze Kin’s evidence essentially confirmed that the plaintiff has been telling stories of his life including the history of the land and the House since he was young.  He confirmed what he included in his witness statement was based on what his father ie the plaintiff told him.  He recalls that the plaintiff showed him the Deed and told him and his elder brother that the land belongs to him and he would pass it on to his issues after his demise.  The plaintiff also told him (1) to keep the Deed and the Lease as well as the first deposit slip for water and electricity charge of the House; and (2) the House would be left to him and his elder brother for their disposal, whether to live in it or sell it (“住又得，賣左佢又得”).

28.  Mr Ho made various criticisms regarding Fong Tze Kin’s evidence.  First, his witness statement and the plaintiff’s witness statement are almost identical.  Second, he has orally provided more details as compared to his witness statement.  There is a suggestion that he kept changing his testimony and making up stories as he clearly has an interest as the plaintiff intends to pass the House to him.

29.  As Deputy High Court Judge To said in Chan Chung Yee v Chan Wai Cho, Joe & Anor.[4], “in a civil case, witness statements are prepared by solicitors on the instruction of the client and on the basis of what they were told by the witnesses.  A witness is asked to prepare a witness statement because the evidence he is going to give is likely to be corroborative of the party’s evidence.  The assertions are expected to be similar.  The court may not know which of the two is the original work and which is the copy product.  The court’s function is not to penalize.  It would be abdicating its fact finding function by giving both statements no weight and would not be doing justice to the party or witnesses concerned.  If a witness’s evidence has been tested by cross-examination, the court should do its best to assess credibility”.

30.  In this case, Fong Tze Kin has no direct knowledge of the material events leading to the occupation of the House but he only learns the same from the plaintiff.  It is not surprising that he would produce a witness statement which contained identical parts as that of the plaintiff’s witness statement.  As Ms Tjia rightly pointed out, all the witness statements of the defendants are likewise almost identical.  I do not see any reason or need to expunge or give no weight to the identical parts of the witness statements of the plaintiff and Fong Tze Kin.

31.  It is also not fair to suggest simply because Fong Tze Kin has provided more details during cross-examination, he is necessarily making up stories.  From my observation, he is not a very articulated or sophisticated witness.  At times, he appeared nervous and not being able to clearly express himself.  However, his oral evidence is by and large consistent with the plaintiff’s own evidence albeit with more details as to what the plaintiff has personally related to him and some minor inconsistencies with his witness statement.  The inconsistencies do not go to the heart of the dispute and have no bearing on the determination of the two issues before this Court.  For example, Fong Tze Kin confirmed that he has overlooked a mistake in his witness statement when it is stated that he only saw the Deed for the first time in 2013.  I do not accept the suggestion that he is a dishonest witness because he initially answered Mr Ho that he did not accompany the plaintiff to see the psychiatrists on 7 September 2018 but after a short break, he came back and said actually he and his wife accompanied the plaintiff.  The suggestion that he changed his evidence because he had a chance to read the psychiatrists’ reports stating that he was also interviewed on that day is not a fair one.  There is no evidence to suggest that he had a chance to read the psychiatrists’ reports before he gave evidence.  There is also no good reason why he would even need to lie about this.

32.  In any event, Fong Tze Kin’s evidence does not appear to have added much to the plaintiff’s case.  Even if I were to give no weight to his evidence, this will not affect or undermine the plaintiff’s case in any way.

33.  Mr Ho also invited me to draw adverse inference against the plaintiff’s case as he has failed to call his elder son, Fong Tze Man to give evidence.  Again, I do not see any basis or reason to draw any adverse inference.  It is common ground that Fong Tze Man also has no direct knowledge as to the material events which go to the heart of the present dispute and his evidence would not have added much to the plaintiff’s case.

The evidence of the 1^st and 2^nd defendants

34.  In respect of the defendants’ case, only the 1^st and 2^nd defendants gave evidence at the trial.  I have also disregarded the 3^rd defendant’s witness statement.

35.  Neither the 1^st defendant not the 2^nd defendant has any personal knowledge regarding the Deed or the dealings between Chan and Fong or the plaintiff’s occupation and/or possession of the Occupied Area.  Both of them confirmed that they cannot exclude the possibility that Chan, who was managing the land including the Occupied Area at the time, did gift the Occupied Area to the plaintiff or they cannot say much to that (“講唔到”).  This is because Chan Man Fok already passed away and Chan Man Foo as well as Chan Man Kwong are suffering from dementia or Alzheimer’s disease.  They also tried to verify this with Chan Man Foo’s children but to no avail as they also did not know. 

36.  Neither the 1^st defendant nor the 2^nd defendant had inspected the Occupied Area.  Their evidence is that prior to the commencement of the present proceedings in 2015, they did not even know what was built on the Occupied Area or who was using the same.

ISSUE 1: NATURE AND EFFECT OF THE DEED

37.  The vivo voce evidence of the witnesses are not particularly material in resolving the two issues before me, especially pertaining to Issue 1.  None of the witnesses have direct knowledge regarding the execution of the Deed at the material time.

38.  The plaintiff himself was only 14 at the time when the Deed was executed and his evidence is that he cannot remember when was the first time he read the Deed.  He also did not know initially the land upon which the House was built was leased to his father and whether his father had paid any money for the same.  He only remembers when his father gave him the Deed, he was told that a friend of his father gave him the land for building a house (“送畀我哋起屋”) and that the friend (陳照喜) and his family also lived in Pokfulam Village.  He further recalls that a Mr Ho (何曉園) ie the witness of the Deed was the one who wrote the Deed and it was his father who told him the same.

39.  Construction of a document or a deed is “an attempt to discover what a reasonable person would have understood the parties to mean.  And this involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve”: Jumbo King Ltd v Faithful properties Ltd.[5]

40.  Applying the ordinary principle of construction of contract, Chan obviously intended to gift the Occupied Area to the plaintiff pursuant to the Deed as opposed to creating a licence or a life tenancy as contended by the defendants.

41.  First, reading the Deed as a whole, it was clearly intended to gift the land being the Occupied Area to the plaintiff for the purpose of building a house.  Clear and unambiguous words like “送” have been repeatedly used in the Deed.  This is to be contrasted with the words “租” and “租金” used in the Lease.  As the ordinary meaning of the words makes sense in relation to the rest of the Deed, I will give effect to that language: Jumbo King Ltd v Faithful properties Ltd[6].  Indeed, the “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that the court does not easily accept that people have made linguistic mistakes, particularly in formal documents: Investors Compensation Scheme Ltd v West Bromwich Building Society[7]. 

42.  Second, I do not accept Mr Ho’s submissions that because the Deed provided that “立送建屋基地契人陳照喜茲因友誼關係願將本人名下所有坐落薄扶林村胡忠新屋後面之建屋基地壹幅送與方繼成為建屋居住之用”, there was a restriction imposed on the plaintiff. I also do not accept that Chan had intended to retain certain title, rights or interests in the Occupied Area.  Quite clearly, these words were included with the meaning that the land was a gift for the purpose of building a house.

43.  Third, I do not understand Mr Ho’s argument that if it was a gift, Chan did not have to do anything to stop any potential blackmailing or harassment.  In my view, the words “自經送與之後任由方繼成建屋居住陳照喜本人及其子孫後人永遠不得干涉如有陳照喜及其親屬後人出而勒索騷擾應由陳照喜出首理妥概与方繼成無涉” consistently point to an intention of gifting the Occupied Area to the plaintiff with the assurance that Chan’s relatives or descendants could never interfere with the plaintiff’s interest or possession thereof.

44.  The fact that the Deed did not additionally contain words with the effect that the plaintiff could pass on the Occupied Area to his issues or descendants is neither here nor there.  It is nothing surprising that a deed of gift would not necessarily iron out the obvious that the donee could freely pass on the gift to others.  In particular, the plaintiff was only 14 at the time when the Deed was executed.  Quite the contrary, it is telling that the Deed did not contain restriction that the plaintiff could not pass on the Occupied Area to his issues or descendants.  The Deed also did not provide that the Occupied Area would have to be returned after the demise of the plaintiff.  The Deed also contained no restriction for the plaintiff to sell the Occupied Area or the House.  The plaintiff’s subjective belief or intention as to whether he could or should do so is irrelevant and in fact inadmissible for the purpose of construing the Deed: Investors Compensation Scheme Ltd v West Bromwich Building Society[8].

45.  Fourth, I am unable to read the words “並議定由方繼成一次過交給港幣捌佰大元与陳照喜父子接收作為永遠代納政府稅項之用” in the way as suggested by Mr Ho.  It simply stated that the parties intended that the HK$800 would be used to pay government rents and tax.  There is no suggestion that Chan intended to retain titles or interest over the Occupied Area.

46.  Fifth, effect is to be given to every word, so far as possible, in the order in which the appear in the clause in question.  Words which are there should not be changed, taken out or moved from the place in the clause where they have been put by the parties: Multi-Link Leisure v North Lanarkshire[9].

47.  I have to give effect to the words “送” and “永遠不得干涉”. I am unable to re-write the Deed and (1) to limit the word “永遠” as pertaining to the plaintiff’s lifetime only and/or (2) to construe the HK$800 as a premium or periodical payment to Chan for a life tenancy created only in favour of the plaintiff.

ISSUE 2: WHETHER THE PLAINTIFF HAD ACQUIRED POSSESSORY TITLE OF THE OCCUPIED AREA BY WAY OF ADVERSE POSSESSION

Relevant legal principles

48.  A relevant summary of the principles concerning adverse possession can be found in The Incorporated Owners of San Po Kong Mansion v Shine Empire Limited[10]:-

“The principles for the application of ss. 7(2), s.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 [1977] 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… Of particular relevance to dispossession are the following passages in Slade J’s judgment in Powell:

(1) …

(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 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)”

49.  The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention.  Although the standard of proof is still normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling: Wu Yee Pak v Un Fong Leung[11].  It cannot be lightly assumed that the paper title holder has foregone his interest in land: Tsang Foo Keung v Chu Jim Mi Jimmy[12].

50.  Section 7(1) of the Limitation Ordinance, Cap 347, provides for a limitation period of 12 years in an action to recover land.  Under the transitional provision ie section 38A, a limitation period of 20 years applied to cause of actions which accrued before 1 July 1991: Tsang Wing Kit Eric & Anor v Occupiers & Ors[13].

51.  For the purpose of deciding whether a defendant’s title has been defeated by limitation, the Court does not need to decide the precise point of time when a plaintiff entered the property so long as it is satisfied that the plaintiff has proved that he has been there for the requisite period (20 years for cause of action accrued before 1 July 1991 or 12 years as the case may be) with the necessary intention to possess: Yu Siu Cheuk v Realray Investment Ltd[14].

Factual possession

52.  There is no difficulty on the part of the plaintiff in establishing physical possession of the Occupied Area and the defendants do not dispute the same.  As I have ruled that the Deed intended to gift or otherwise assign interest of the Occupied Area to the plaintiff, I accept the plaintiff’s case that he has been occupying the House built upon the Occupied Area without any interference or interruption since 1949 ie after the execution of the Deed.  In any event, the Report also confirms that the House should be in existence since 1958.

53.  I am satisfied that the plaintiff has been in exclusive physical occupation of the Occupied Area without the consent of the true registered owner(s) for the requisite period of more than 20 years before the writ herein was issued.

Animus Possidendi

54.  I am also satisfied that the plaintiff has succeeded in establishing the required animus possidendi.  The use of the Occupied Area ie by building and residing at the House in a way as if the plaintiff was the true owner, unequivocally demonstrates an intention to occupy and use the Occupied Area as his own.

55.  First, a mistaken belief on the part of the squatter that he was the true owner of the land can be sufficient to constitute the necessary animus possidendi: JA Pye (Oxford) Ltd v Graham.[15] See also: Cheung Kwong Yuen v Sun Hui Fang.[16]

56.  Second, the plaintiff has obviously been using the Occupied Area as if he was the true owner and in fact he thought he was the real owner.  The plaintiff and his family had exclusive use and possession of the House as family residence without any disturbance or interference throughout the years.  The 2 courtyards are also enclosed by walls.  Enclosure is clear evidence of dispossession of the owner as well as the intention of the occupier to possess: Hong Kong Kam Lan Koon Ltd v Realray Investments Ltd[17].

57.  Since 1 April 1973, the plaintiff has become the registered payer of the Rates Account in respect of the House.  There is no challenge to his evidence that he has been paying such rates as demanded from the Rates and Valuation Department since Fong passed away.  During cross-examination, the 2^nd defendant suggested that she had been paying for government rent and rates in respect of the Occupied Area.  However, the same was not mentioned in her witness statement. The 1^st defendant’s witness statement also did not mention the same.  More importantly, not a single document or receipt has been produced to verify the 2^nd defendant’s belated suggestion or to counter the plaintiff’s case that he has been paying rates since 1973.  Insofar as the 2^nd defendant’s evidence seeks to contradict that of the plaintiff in this respect, I have no hesitation to reject the same.  Very properly, Mr Ho did not seek to maintain this belated suggestion of the 2^nd defendant and only suggested that it could well be her honest but mistaken belief.

58.  It does not matter whether the plaintiff’s late father had told him the House could be “代代相傳”.  It is clear and I accept the plaintiff’s case that he has always treated the House as his own and he has always believed the same belonged to him.  He also intends to pass on the House to his issues or descendants after his demise.

59.  Mr Ho tried to attack the plaintiff’s case on the basis that it is the plaintiff’s oral evidence that his late father told him the Occupied Area could not be sold (“唔可以賣”).  However, when asked why he could not sell the same, the plaintiff quite clearly answered that the land was given to them, and if he sold the same, he would have nowhere to live (“賣左住邊”).  In any event, I am of the view that whether or not Fong had told the plaintiff that he could not sell the House does not in any way undermine the plaintiff’s animus possidendi.

60.  I find that the plaintiff had the requisite intention to possess the Occupied Area for the purpose of adverse possession and for the requisite period of more than 20 years before the writ herein was issued.

61.  For the sake of completeness, I will also briefly deal with the following two matters raised by the parties.

62.  First, even if the plaintiff initially took possession of the Occupied Area by virtue of the alleged licence created by the Deed, I am still satisfied that the plaintiff had acquired possession of the Occupied Area for the requisite period of more than 20 years before the writ herein was issued.  A mere licence is revocable and automatically terminated by the death of the licensor: Li Yuet Wan v Personal Representative of Wong Shiu Chui[18]. In other words, the plaintiff’s continuous possession of the Occupied Area, after the death of Chan which is estimated to be around 1970s[19], would not be regarded as that of Chan.  The plaintiff would then be in successive adverse possession of the Occupied Area without the consent of the true registered owner(s) thereof.

63.  Mr Ho argued that as Chan’s three sons also signed on the Deed, the alleged licence was granted by Chan together with his three sons.  As Chan Man Foo and Chan Man Kwong are still alive, the plaintiff’s possession of the Occupied Area should be treated as that of Chan Man Foo and Chan Man Kwong.  However, on a proper reading of the Deed, it is clear that only Chan held himself out as “立送建屋基地契人” and the land was said to be under his name “本人名下”.  Chan Man Foo, Chan Man Kwong and Chan Man Fok only signed the Deed or were only named as Chan’s sons.  Even if the Deed had the purported effect of granting the alleged licence, I am of the view that only Chan would be regarded as the purported licensor.  Since I have already ruled that the Deed had the effect and intended to create a gift, I do not need to come to a definite view as to whether Chan’s sons should also be regarded as the licensors.

64.  Second, Mr Ho also argued that there is no evidence from the plaintiff or Fong Tze Kin as to when the boundary walls were built.  Further, when asked the time which they were built, the plaintiff said he could not remember.  Mr Ho argued that even if I were to find that the plaintiff should succeed in his claim of adverse possession, the same should only confine to the House excluding the 2 courtyards.

65.  I see no merit in Mr Ho’s belated challenge which was only raised on the day of closing submissions. The Report clearly defines the Occupied Area and that the House also consists of the 2 courtyards which are enclosed by walls.  The study of Survey Sheets dated January 1968 reveals that the House with 2 enclosed courtyards was shown. When studying the Aerial Photograph dated 28 September 1979, the L-shaped wall was clearly observed.  When studying the Aerial Photograph dated 18 May 1985, the other L-shaped wall was also clearly observed.  As mentioned, the Report was adduced without the need of calling Mr Leung.  If the defendants intended to challenge this material part of the Report, the same should have been raised much earlier.

CONCLUSION

66.  For the above reasons, I make the following orders:-

(1) A declaration that the plaintiff has acquired possessory title of the Occupied Area (as defined in the Report) by reason of adverse possession;

(2) A declaration that the 1^st, 2^nd and 3^rd defendants’ respective titles to the Occupied Area (as defined in the Report) have been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance, Cap 347;

(3) There be a cost order nisi that the 1^st, 2^nd and 3^rd defendants shall pay the plaintiff’s costs of this action, including all costs reserved if any, to be taxed if not agreed with certificate for counsel.  The plaintiff’s own costs be taxed in accordance with Legal Aid regulations. The costs order nisi shall become absolute in the absence of any application to vary the same within 14 days of the handing down of this Decision.

67.  It remains for me to thank counsel for their able assistance.