LAU YIU KWAN v. HIEW NYEN FATT

DCCJ 2324/2020

[2024] HKDC 442

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2324 OF 2020

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BETWEEN

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REASONS FOR JUDGMENT

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1.  It was a trial for adverse possession.

2.  The plaintiff is the occupier of a plot of land (“the Property”), which is a portion of Section C of Lot No 2038 in the Demarcation District No 111, Yuen Long, New Territories, with a village-type house built thereon known as No 48F, Wang Toi Shan San Tsuen (橫台山新村), Pat Heung, Yuen Long (“the House”).

3.  The size of the Property is approximately 118.6 square meters. The House is an L-shaped single-storey detached house occupying about one-third of the area.

4.  At the beginning of the trial, Mr Leung Kin, the solicitor advocate for the plaintiff, asked and was granted leave to amend the Statement of Claim. The amendment was made to define the disputed area better and move the boundary of the Property inward for about 1-2 meters from the original fence at its northern part. The amendment sought to reduce the claimed area in size. This change would not cause any prejudice to the defendant. The disputed area (ie the Property), which is the area encroached by the plaintiff, is now more particularly delineated, described, and coloured Pink in the Appendix attached hereto and to the Amended Statement of Claim.

5.  The defendant was not present during the trial. According to the plaintiff’s affirmations of service, the defendant had been absent since the case management conference and the pre-trial review. Additionally, all the documents that were sent to the defendant by post were not returned through the Hongkong Post’s dead letter services. The defendant had previously been represented by solicitors and had filed his Defence and Counterclaim. However, after the exchange of witness statements, the defendant chose to act in person and has not participated in the proceedings since then.

6.  The court ordered during the pre-trial review that the defendant’s Counterclaim be provisionally struck out under O 25 r 4(2) of the Rules of the District Court. The defendant did not apply for restoration of the same.

7.  I allowed the trial to proceed in the absence of the defendant. I heard the plaintiff prove his case. At the end of the trial, I entered judgment in favour of the plaintiff and dismissed the defendant’s Counterclaim. The following are the reasons for my Judgment.

8.  The law of adverse possession requires the plaintiff to have exercised dominion control over the land as if they were the true owner for a minimum of 12 years (or 20 years, as per the old law before July 1991) without the owner’s consent.

The plaintiff’s evidence

9.  The plaintiff is the son of Lau Kwai Yiu (劉貴堯) and the grandson of Lau Ching Put (劉鉦鉢) (the grandfather). The grandfather had four sons, with Lau Kwai Yiu being the second and Lau Kwai Hung (劉貴洪) being the third. Therefore, the plaintiff is the nephew of Lau Kwai Hung.

10.  In or about 1949, the grandfather migrated to Hong Kong from Boluo County, Guangdong Province, Mainland China. He initially settled in Sham Shui Po.

11.  In 1962, the grandfather began working as a farmer at Kadoorie Farm (“Kadoorie”). He lived in the quarters provided by Kadoorie. I accepted that the grandfather was employed at Kadoorie, as evidenced by an employment letter issued on 30 December 1987, which expressed gratitude to the grandfather for his dedicated work as a supervisor at the farm from 1962 to 1982.

12.  In 1971, Lau Kwai Hung also came to Hong Kong to stay with the grandfather.

13.  In or about 1972, the grandfather received HK$10,000 in financial assistance from Kadoorie to purchase building materials for constructing a house.

14.  In or about 1973, the grandfather purchased a wooden house on a portion of Lot 2038C from one Law Yan (羅恩) for HK$1,500.

15.  Lau Kwai Hung helped the grandfather hire builders to demolish the wooden house and replace it with a stone house (made of bricks with cement or concrete, I think), the House. This was made possible with the financial support provided by Kadoorie. The construction of the House was completed around 1973, and ever since then, the grandfather and Lau Kwai Hung had resided in it.

16.  Shortly after the House was built, Lau Kwai Hung installed iron fences and a gate surrounding the Property’s boundary. They kept the key to the lock on the gate.

17.  In this regard, I carefully examined the aerial photographs and survey sheets provided by the plaintiff’s expert, Mr Tang Sze Kin Eric (of Eric Tang & Associates Ltd), and concluded that the House and fences were constructed between August 1974 and December 1975. I accepted the plaintiff’s expert report and their evidence. I found no significant discrepancy between the plaintiff’s evidence and the expert’s regarding the construction year of the House, whether it was built in 1973 or 1975.

18.  Lau Kwai Hung’s testimony in court also corroborated the plaintiff’s evidence regarding the aforementioned events, which I accepted.

19.  In 1982, the grandfather retired as a farmer and continued living in the House (until his death in 1994).

20.  Regarding the grandfather residing at the Property, I found the photos submitted by the plaintiff to be of great significance. These pictures were taken in 1981 when the plaintiff’s uncle, Lau Kwai Hung, visited the grandfather at the Property. Additionally, some photos were taken in 1986 when the grandfather, the uncle, the plaintiff’s father (who was visiting Hong Kong), and Mr Chung Hau (the plaintiff’s neighbour, who testified in support of the plaintiff) were present and enjoying the garden in front of the House.

21.  On 30 December 1987, the grandfather made a Statutory Declaration to support the plaintiff’s application for a one-way permit to come to Hong Kong from Mainland China to take care of the grandfather, who fell ill. A medical certificate dated 29 December 1987 showed that the grandfather was suffering from chronic lung disease and heart problems.

22.  In fact, in my view, the Statutory Declaration was an important contemporaneous document supporting the plaintiff’s case. It was made in 1987 by the grandfather, who stated that the House had been built in 1972 with the assistance of Kadoorie. Although there was a small discrepancy in the year when the House was built, it did not affect my finding in favour of the plaintiff’s case.

23.  On 1 March 1989, the Chinese Authorities granted the plaintiff a one-way permit to leave Mainland China permanently to settle in Hong Kong. Since then, the plaintiff (at the age of 18) came to Hong Kong to take care of the grandfather and stayed in the House. The one-way permit was produced and exhibited.

24.  From 1989 to 1999, the plaintiff worked for his uncle Lau Kwai Hung in his garment factory in Hong Kong. Following that, the plaintiff established his own garment wholesale business in Sham Shui Po.

25.  According to the family arrangement, as the plaintiff had been taking care of the grandfather, it was the grandfather’s wish to transfer his right to the Property, including the House, to the plaintiff after his death. Lau Kwai Hung respected the grandfather’s wish and accepted this arrangement.

26.  In 1994, after the grandfather passed away, the plaintiff continued occupying the Property.

27.  In 1998, the plaintiff moved out of the Property after getting married. However, he continued to use the House as a storage space for old furniture and as accommodation for his visiting relatives from Mainland China.

28.  After starting his own garment business in 1999, the plaintiff used the House to store the garments he received from Mainland China before having them dispatched to his wholesale store located in Cheung Sha Wan. The plaintiff found the House, which had vehicular access and sufficient open parking space, a convenient place to keep the garments.

29.  The plaintiff produced several electricity bills dating from 1995 to 2010 as evidence of the use of the Property, which I accepted.

30.  When asked why the encroached area claimed is about 1 to 2 meters inward than the fence, Mr Leung pointed out, as confirmed by the plaintiff’s expert, that the excluded area was government land.

31.  I accepted all the plaintiff’s evidence, which was consistent and corroborated by contemporaneous documents.

32.  By reason of the aforesaid, I made the following findings that, at all material times, the grandfather, the uncle Lau Kwai Hung, and the plaintiff had or have control over the Property successively. They had or have occupied and used the Property as if they were the true owners.

The defendant’s case

33.  The defendant claimed that Lot 2038 was part of the estate of his grandfather Yau Wa Yiu. Through the devolution of titles and the Assignment dated 17 December 2012, the defendant has become the sole registered and beneficial owner of Lot 2038C.

34.  The defendant pleaded that he had no knowledge of the plaintiff’s occupation. He said that the entire Lot 2038 (including the Property) was rented to Law Yan from 1964 to 2002, and thereafter, it was rented to one Mr Tang for use as a vehicle repair workshop from 2006 to 2017.

35.  The defendant put the plaintiff to strict proof and counterclaimed for vacant possession and damages for trespass.

36.  I disregarded the defendant’s witness statement as he failed to appear at the trial.

37.  The court also considered whether the tenant named Law Yan was the same person who sold the wooden house to the grandfather in 1972. If so, the amount of HK$1,500 paid for the purchase could have been only a licence fee, or Law Yan might not have had the authority to transfer the title of the land to the grandfather under the nemo dat rule. However, neither of these situations would affect the plaintiff’s claim, as the alleged tenancy claimed by the defendant had expired in 2002 and the occupation of the grandfather or the plaintiff remained without the consent of the owner of the paper title.

38.  There were also some recent events that I would like to mention briefly. Firstly, the Lands Department posted a notice in January 2018 that the defendant was trying to build a 3-storey small house on the Property. The plaintiff had objected to this through solicitors Messrs Leung Kin & Co, citing adverse possession of the Property. However, there was no response from either the Lands Department or the defendant. Based on the plaintiff’s evidence, it seemed that this was the first time the defendant, or anyone else, had interfered with their occupation of the Property.

39.  In January 2019, after the first incident mentioned above (and after the fences and the gate were completely destroyed by Typhoon Mangkhut in September 2018), the defendant parked two cars in the area of the Property. One of the cars was parked only an inch away from the main door of the House, and the other car blocked the access way in the front yard of the Property. The defendant admitted in the Defence that he caused the parked cars to block the plaintiff’s usage of the Property. The plaintiff reported the incident to the police, and the defendant eventually removed the two cars. As a result of the removal of the vehicles, the plaintiff withdrew, which I permitted, his claim for injunction and damages caused by the blockage.

40.  In any event, none of these events would affect the plaintiff's claim since the plaintiff’s possessory title had long been established.

The neighbour’s evidence

41.  Mr Chung Hau (鐘孝) is currently 93 years old. He lives at House 48E and is the plaintiff’s neighbour. He and the plaintiff’s grandfather used to work together at Kardoorie, and they were friends. The plaintiff respectfully addresses him as “Uncle Chung Hau” (鐘孝叔).

42.  Uncle Chung Hau gave testimony in court to support the plaintiff’s case. He informed the court that he lived with the grandfather in the quarters provided by Kardoorie between 1962 and 1963. Later, in 1963, he purchased Lot 2051RP and built a stone house on it, which is now known as House 48E. After that, he moved to live there. It was Uncle Chung Hau who introduced the grandfather to purchase the wooden house at Lot 2038C when he noticed that the owner wanted to sell it in 1972.

43.  He witnessed Lau Kwai Hung assisting the grandfather in constructing the House and putting up the fences. He also witnessed the grandfather, the uncle Lau Kwai Hung, and the plaintiff occupying and using the Property over the years.

44.  What impressed me was that Uncle Chung Hau mentioned that he and the grandfather used to play the banjo (五弦琴) (a musical instrument commonly used for playing country music, but they played Chinese scales on it) together at the Property. It was their shared hobby.

45.  I accepted Uncle Chung Hau’s testimony. The pictures he took with the grandfather in 1986, sitting on the grass in front of the House, confirmed his account.

Conclusion

46.  Overall, I found that the plaintiff, the uncle Lau Kwai Hung, and Uncle Chung Hau are all credible and honest witnesses. I accepted all their evidence.

47.  After considering all the evidence, I concluded that the plaintiff had established adverse possession of the Property for over 30 years since 1989, or over 50 years if adding the period of the grandfather’s occupation.

Disposition

48.  I granted the plaintiff the declarations sought (as amended) with costs and dismissed the defendant’s Counterclaim with costs. The plaintiff’s own costs were to be taxed in accordance with the Legal Aid Regulations.

49.  May this court thank Mr Leung and Mr Yeoh for their helpful assistance.

APPENDIX