SIU SHU CHING AND OTHERS v. SIU KWOK CHEUNG AND ANOTHER

HCA 1641/2013

[2022] HKCFI 594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1641 OF 2013

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JUDGMENT

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INTRODUCTION

1.  In the present case, the 1^st Plaintiff is the registered owner of the premises known as Section A of Lot No.453 and Section C of Lot No.453 both in Demarcation District No.130 (“Lot No.453A and Lot No.453C”).

2.  The 2^nd to the 4^th Plaintiffs are the registered owners of the premises known as Section B of Lot No.453 and Lot 454A in Demarcation District No.130 (“Lot No.453B and Lot No.545A”). A single-storey stone or brick house was built prior to the 1980s and was and is still known as House 40, Sun Hing Village (“House 40”)

3.  The 1^st and 2^nd Defendants are the registered owners of Section E of Lot No.453 in Demarcation District No.130 (“Lot No.453E”) on which another single-storey stone or brick house was built prior to the 1980s and was and is still known as House 39, Sun Hing Village (“House 39”).

4.  Although the Defendants justifiably complained that the Plaintiffs’ Re-Amended Statement of Claim is defective in a number of ways and inconsistent with the factual allegations as set out in their witness statements (an issue to be addressed below), the gist of the Plaintiffs’ case is that they and their predecessors-in-title had, as a gesture of good will, granted a gratuitous licence to the 1^st Defendant’s late father and stepmother to use the Plaintiffs’ lots of land until their demise.  On 11 December 2006, the 1^st Defendant’s late father passed away and on 13 July 2011, the 1^st Defendant’s stepmother delivered vacant possession of Lot 453B and House 40 to the 2^nd to the 4^th Plaintiffs.

5.  It is common ground that the Plaintiffs did not grant any licence to the Defendants to occupy and use their lots of land, namely, Lot Nos.453A, 453C, 453B and 454A (“the Disputed Land Lots”). Mr Chong for the Plaintiffs sought to rely on an implied licence vis-à-vis the Defendants. However, I agree with Mr Li for the Defendants that this has never been the Plaintiffs’ pleaded case. In my view, it boils down to whether, if an express gratuitous licence were granted to the 1^st Defendant’s late father and stepmother to occupy the Disputed Land Lots, the Defendants nevertheless had had the animus possidendi and physical possession of the Disputed Land Lots so as to exclude the Plaintiffs as the legal and registered owners of the Disputed Land Lots. 

BACKGROUND FACTS

6.  The 1^st and the 2^nd Plaintiffs are natural brothers, being the male descendants of Siu Kam Lun. The 1^st Plaintiff was born in 1943 and the 2^nd Plaintiff was born in 1948.

7.  The 3^rd Plaintiff and the 4^th Plaintiffs are natural brothers, being male descendants of Siu Kam Ying, who is the natural brother of Siu Kam Lun. The 3^rd Plaintiff was born in 1943 and the 4^th Plaintiff was born in 1952.

8.  The 1^st Defendant was born on 27 November 1955. The 1^st and 2^nd Defendants are husband and wife. They got married in April 1982.

9.  The 1^st Defendant is the natural son of Siu Chi Hung (“the 1^st Defendant’s late father”). His natural mother was separated from the 1^st Defendant’s late father. The 1^st Defendant’s late father married Tsang Wong Mei (the 1^st Defendant’s stepmother) in 1977 in Mainland China. The 1^st Defendant’s stepmother only came to Hong Kong in 1982.

10.  The 1^st Defendant’s late father passed away on 11 December 2006 and the 1^st Defendant’s stepmother passed away on 26 February 2014.

11.  The 1^st Defendant’s late father was adopted by Siu Fuk Yin as her younger brother in 1952. The 1^st Defendant is thus the adopted nephew of Siu Fuk Yin (“the 1^st Defendant’s aunt). The natural and lawful father of the 1^st Defendant’s aunt was Siu Chiu Hing (being the 1^st Defendant’s grandfather). Her grandfather was Siu Fu Tak (being the 1^st Defendant’s great grandfather).

12.  The 1^st Defendant’s aunt passed away in 1998.

13.  The 1^st to 4^th Plaintiffs and Siu Chi Hung were:

(1)  the male descendants of Siu Ying Chau;

(2)  members of the Siu Clan; and

(3)  residents of the San Hing Village, an established village of the Siu Clan in the New Territories as at 1898 when New Territories were leased by the Ching Empire to the United Kingdom.

The Disputed Land Lots

14.  The 1^st Plaintiff became the registered owner of Lot No.453A and Lot No.453C on 23 June 1992 and the 2^nd to the 4^th Plaintiffs became the registered owners of Lot No.453B and Lot No.454A in March 1989. The conveyancing history shows:

(1)  By an approval letter of succession of the estate of Siu Kam Ying dated 18 March 1989 (M/N TM374119), the 3^rd and 4^th Plaintiffs became the registered owners, as tenants in common in equal shares, of Siu Kam Ying’s shares over Lots Nos.453B and 454A.

(2)  By an approval letter of succession of the estate of Siu Kam Lun dated 20 March 1989 (M/N TM374118), the 2^nd Plaintiff became the registered owner of Siu Kam Lun’s shares over Lots Nos.453B and 454A.

(3)  By a deed of gift dated 23 June 1993 (M/N TM553153), the 1^st Plaintiff became the registered owner of Lots Nos.453A and 453C.

15.  The above lots of land is adjoined to Lot No.453E and the Remaining Portion of Lot 453F (“Lot No.453F RP”), both in D.D. 130. The 1^st Defendant became the registered owner of Lot Nos.453E and Lot 453F RP in 1983 and the 2^nd Defendant became a co-owner of the two lots in 1996. The conveyancing history shows:

(1)  By a transfer dated 18 September 1946 (M/N TM114682), the 1^st Defendant’s aunt became the registered owner of Lot No.453E.

(2)  By a voluntary conveyance dated 18 December 1983 (M/N, TM235061), Lot 453E as from the 1^st Defendant’s aunt and Lot 453F RP as from the 1^st Defendant’s great grandfather came to be devolved onto the 1^st Defendant.

(3)  By an assignment dated 19 December 1995 (M/N TM704493), the Defendants became the registered owners, as joint tenants, of Lot Nos.453E and 453F RP.

16.  Two houses were erected on Lot No.453E and are known as House No.38 and No.39 of San Hing Village (“House 38” and “House 39”).

17.  In respect of Lot No.453E on which House 38 and House 39 were erected:

(1)  The 1^st Defendant’s great grandfather came to and settled in San Hing Village in the 18^th century, living in House 39 as situated on Lot No.453E.

(2)  The 1^st Defendant’s late father was adopted into the Siu family. The Siu family lived in House 38 situated at Lot No.453E, adjacent to House 39. The 1^st Defendant’s aunt was the eldest of the family and she took charge of the whole family and was the family head or matriarch. It is the Defendant’s case that the 1^st Defendant and his sister both lived in House 38 and House 39 since birth and House 40 was then used by the 1^st Defendant’s family as a cow shed and a storage space for foodstuff. It was suggested by the 1^st Defendant that it was in the late 1980s that the Defendants came to take charge of the household in place of the 1^st Defendant’s aunt.

(3)  In 1973, the 1^st Defendant’s late father and the 1^st Defendant’s aunt made alteration to House 38 and House 39 to turn them into 2-storey houses. House 40 was also changed to be a habitable house. There was also an extension of the structures as erected on the southeastern side which were used for storage, pigsty and poultry which were there before 1973. It is the Defendants’ case that the southeastern side land covers Lot Nos.453A, Lot 453C, 453F and 454A. The 1^st Defendant’s family (the 1^st Defendant’s late father, the 1^st Defendant’s aunt, the 1^st Defendant and his sister) continued to live in House 38 and House 39 and had let out House 40 to others.

(4)  In 1982, the 1^st Defendant’s stepmother came to Hong Kong and lived on the 1^st floor of House 39.

(5)  In April 1982, the Defendants got married, and they lived in House 38 and House 39 which were renovated to become interconnected.

(6)  In about 1986, the 1^st Defendant’s late father and the 1^st Defendant’s stepmother moved to live in House 40.

(7)  In mid-1995, after damage by typhoon, House 38 and House 39 were reconstructed as a 4-storey house and House 40 was changed to become a 2-storey house.

(8)  The 1^st Defendant’s late father and stepmother lived in House 40 until the 1^st Defendant’s late father passed away on 11 December 2006.

18.  In respect of House 40, it is the Defendants’ case that it was partly situated on Lot No.453B and partly on Lot No.453F and was used by the 1^st Defendant’s family. In the mid-1970s to 1980s, the 1^st Defendant’s aunt let out House 40 to a Mr Ko and a Mr Li and his family.

19.  However, on 8 July 1996, the 2^nd to the 4^th Plaintiffs sent a draft agreement to the 1^st Defendant’s late father by fax (“the 1996 Fax”) wherein it was stated that Lot No.453B had been occupied by the 1^st Defendant’s late father and stepmother under the permission of the 2^nd to the 4^th Plaintiffs and that the parties had agreed that the 1^st Defendant’s late father and stepmother could continue to stay there by paying HK$1 annually. The draft agreement was not signed by the 1^st Defendant’s late father.

20.  On 11 July 2011, the Defendants instructed their law firm, Messrs. Yeung Law & Co (“YL”) to issue a notice to terminate the 1^st Defendant’s stepmother license to occupy House 40 (“the Notice of Termination”). The Defendant’s case is that the Notice of Termination was posted on the door of House 40 and given to the 3^rd Plaintiff to be forwarded to the 1^st Defendant’s stepmother as the 3^rd Plaintiff was in contact with her.

21.  Following the issuance of the Notice of Termination, there were correspondence between Messrs. Liu Chan & Lam, solicitors for the 2^nd to the 4^th Plaintiffs and YL on the Defendants’ claim of ownership of House 40.

22.  On 13 July 2011, the 1^st Defendant’s stepmother signed an agreement to return the ownership of House 40 to the 2^nd to the 4^th Plaintiffs.

23.  After 13 July 2011, the Plaintiffs demanded the Defendants to deliver up vacation possession of the said lot of land but the Defendants refused. Hence, the Plaintiffs claim for vacant possession of the said lot of land and damages. 

24.  In respect of Lot Nos.453A, Lot 453C and Lot 454A, it is the Defendants’ case that:

(1)  Before 1973, there were structures at the southeastern side including the pigsty used by the 1^st Defendant’s family.

(2)  In 1973, the 1^st Defendant’s aunt and the 1^st Defendant’s late father altered the structures on the said land to be temporary residential houses. Subsequently, they were extended and used for rearing pigs and other poultry as well as other farming purposes.

(3)  From the end of the 1970s, having ceased to rear pigs:-

(a)  The 1^st Defendant’s aunt let some of the structures to a Mr Lam Bong;

(b)  The 1^st Defendant’s aunt altered the pigsty and let it out to a car company;

(c)  The garage was subsequently altered and let to a metal and toy company;

(d)  It was subsequently let out to the 2^nd Defendant’s sister, Leung Yuk Or;

(e)  In 1993 and 1994, the Defendants demolished the remaining pigsty and placed some containers there as warehouse and the Defendants called the area the “Upper Area”.

25.  It is the Plaintiffs’ case that Messrs. Pang Kung & Co (“PK”) issued letters dated 29 March 1996 and 2 April 1996 to the Defendants demanding delivery of vacant possession of Lots Nos.453A, 453C and 454A. The Defendants’ case is that they had not received those letters. Instead, the Defendants received a letter dated 4 May 1996 from PK addressed to the 1^st Defendant demanding delivery of possession of Lot Nos.453A, 453C and 454A.

26.  By a letter dated 30 May 1996 issued by the 1^st Defendant’s then solicitors, Messrs. George YC Mok & Co, the 1^st Defendant raised adverse possession by his ancestor and subsequently by him of the land in issue.

27.  It is against such background that the 1996 Fax was sent to the 1^st Defendant’s late father. It is the Plaintiffs’ testimony that they resorted to resolve the matter with the 1^st Defendant’s late father and stepmother. It was under certain circumstances that a gratuitous licence was granted to the 1^st Defendant’s late father and stepmother to use and occupy the said lots of land until their demise. The 1^st Defendant denied that his late father had told him that such gratuitous license was granted by the Plaintiffs. His evidence is that if such gratuitous license had been granted, his late father would have told him but he did not.

THE KEY ISSUES

28.  The Defendants do not dispute that the Plaintiffs are the registered owners of the Disputed Land Lots. The Defendants’ case is that they and the 1^st Defendants’ parents had been in occupation of the said lots of lands consecutively for more than 20 years without the consent of the Plaintiffs and/or their predecessors-in-title. Thus, by reason of the continuous and exclusive use and occupation of the said lots of lands, they have adversely possessed the same.

29.  The Plaintiffs’ case is that the 1^st Defendant’s late father, being a cousin and a member of the Siu Clan, and his stepmother, were allowed to occupy and use the Disputed Land Lots pursuant to an express gratuitous license from them and their predecessors-in-title and as such the Defendants cannot be said to be in adverse possession of the same. The Plaintiffs claim that the express gratuitous licences had been terminated and the Defendants are still in occupation of the Disputed Land Lots and thus have committed the tort of trespass against them.

30.  Although the parties raised a number of issues, technical or otherwise, I am of the view that the central and determinative issue is whether the Defendants and the 1^st Defendant’s late father and stepmother at all material times occupied the Plaintiffs’ land lots pursuant to the latter’s and their predecessors-in-title’s express gratuitous consent or not. If it is, then it is hard for the Defendants to maintain that they have had adversely possessed the Plaintiffs’ land lots. If it is not, then it is quite clear that the Defendants have had been in possession of the said land lots for the relevant period to maintain their counterclaim of adverse possession. This is essentially a factual issue.

31.  There is also a secondary factual issue, namely, whether the Defendants’ occupation of the Disputed Land Lots was pursuant to the consent of the 1^st Defendant’s aunt or not. If so, the Defendants submitted that the Plaintiffs’ consent to the 1^st Defendant’s late father and stepmother is irrelevant. 

32.  In the circumstances, this case depends heavily on the credibility of the parties’ testimony and evidence.

APPROACH TO ASSESSING ORAL TESTIMONY

33.  In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513, Deputy High Court Judge Au (as he then was) at p 524 helpfully set out the well-established approach on assessment of witnesses as follows:

(1)   whether the party’s case is inherently plausible or implausible;

(2)   whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)   where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests.  This is relevant to the assessment of his overall credibility; and

(4)   the demeanour of the witnesses.

34.  Lord Bingham in his book The Business of Judging at pp 5 – 6 insightfully said:

“Let me then turn to the central questions. Faced with a conflict of evidence on an issue substantially effecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties’ lives or fortune, how can and should the judge set about his task of resolving it? How is he to resolve which witness is honest and which dishonest, which reliable and which unreliable? How, as between competing experts in a field not his own, is a judge to determine where the truth lies? Is our existing way of resolving expert conflicts the best way? I shall begin by considering the resolution of issues of primary fact, the choice between first-hand eye-witnesses. Then I shall turn to expert evidence.

The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified, but often do not) such facts as shown to be incontrovertible. In many cases, letter or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time ….

The most compendious statement known to me of the judicial process involved in assessing the credibility of an oral witness is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis. In this he touches on so many of the matters which I wish to mention that I may perhaps be forgiven for citing the relevant passage in full:

‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problem. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection even subsequently altered by unconscious bias or wishful thinking or by over-much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.

Every judge is familiar with cases in which the conflict between the accounts of different witnesses is so gross as to be inexplicable save on the basis that one or some of the witnesses are deliberately giving evidence which they know to be untrue. There are, no doubt, witnesses who follow the guidance of the Good Soldier Sveyk that ‘The main thing is always to say in court what isn’t true,’ as a matter of principle, but more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:

(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness’s evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) the demeanour of the witness.

The first three of these tests may in general be regarded as giving a useful pointer to where the truth lies. If a witness’s evidence conflicts with what is clearly shown to have occurred, or is internally self-contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may only be unreliable, and not dishonest, but the nature of the case may effectively rule out that possibility.” (Emphasis added).

35.  I find the above guidelines helpful and will apply the same in assessing the credibility of the Plaintiffs’ and the Defendants’ respective cases.

36.  The Court starts with an analysis of the contemporaneous documentary evidence.  I agree that in the twenty-first century where electronic communications via emails and phone messages are prevalent, “most agreements or discussions which are of legal significance, even if not embodied in writing, would leave some form of electronic footprint” (see Blue v Ashley [2017] EWHC 1928 (Comm) at §65 per Leggatt J.)

APPLICABL LEGAL PRINCIPLES

37.  In the present case there is no dispute that the Defendants, as squatters, in order to establish adverse possession, carry the burden of showing (a) the fact of possession for the relevant period and (b) the relevant animus possidendi and the burden is a heavy one. In Sun Hoi Tat v Profectus Investment Group Ltd HCA 1366 of 2013, unreported, 4 August 2016, Chung J. at §25 said:

“25. The relevant legal principles are undisputed, and can be summarised as follows:

(a) to establish adverse possession, the party in possession has to show both exclusive, continuous and open possession, as well as an intention to exclude the world at large, including the true owner: Wu Yee Pak v. Un Fong Leung & Others (2004) 7 HKCFAR 498 at para.5;

(b)   the burden of proof which rests with the party in possession is a heavy one and requires clear evidence: Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd CACV 79/2008 (18 February 2009), para.88 to 89 citing Powell v McFarlane (1979) 38 P & CR 452 at 472.”

38.  In Powell v McFarlane (1979) 38 P & CR 452 at 472, Slade J said:

“The question of animus possidendi is, in my judgment, one of the crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisition to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved…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, in my judgment, 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 word. 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.

A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass.”

ANALYSIS OF EVIDENCE

Express Licence

39.  Having heard all the witnesses’ oral testimony and considered the contemporaneous documents, on balance, I am of the view that the Plaintiffs’ case is credible and the Defendants’ occupation and use of the Plaintiffs’ lots of land was pursuant to the express gratuitous licence granted by the Plaintiffs and their predecessors-in-title.

40.  First, in relation to Lot 453A and 453C, I note that there is undisputable contemporaneous documentary evidence that on 21 April 1992, District Officer of Tuen Mun approved a succession of the said land lots to the 1^st Plaintiff. In the Appendix to the Letter of Approval dated 4 November 1991, the 1^st Defendant’s late father, Siu Chi Hing, served and signed as a witness. This, in my view, shows that the 1^st Defendant’s late father knew and acknowledged that the 1^st Plaintiff is the legal owner of the said lots and this is an anti-thesis to any suggested intention to exclude their rightful and lawful owner, namely, the 1^st Plaintiff. There could not be any animus possidendi by the 1^st Defendant’s late father in 1991 or 1992.

41.  Mr Li for the Defendants submitted that there was no evidence as to the circumstances under which the 1^st Defendant’s late father signed the Appendix to the Letter of Approval as a witness and in particular as to whether he knew which lots were to be succeeded. It is correct that there is no direct evidence on that. However, on balance, it is more probable that for the 1^st Defendant’s late father to stand as a witness, he would have been told which lots of land the succession related to. The competing version will be that the 1^st Defendant’s late father signed the same without knowing its content and purpose. I am of the view that the latter is less likely.

42.  I accept that the document the 1^st Defendant’s late father witnessed was entitled “Appendix to Letter of Approval” and given that he served as a witness to the section 17 New Territories Ordinance succession, it is more likely that he vouched for the relationship between Siu Kam Lun as the deceased trustee and the subject matter of the succession, including, inter alia, Lot Nos.453A and 453C.

43.  Secondly, on 26 November 1997, the 1^st Plaintiff, qua registered owner of Lot Nos.453A and 453C, applied to the Lands Department, Tuen Mun for reconstruction of the old house erected therein. It is the Defendants’ evidence that the 1^st Defendant’s family had been using the structures erected on Lot Nos.453A and 453C. Although the application was withdrawn in 1999, there is no conceivable reason for the 1^st Plaintiff to make such an application had the Defendants’ family, including the 1^st Defendant’s late father, stepmother and aunt, had been wrongly occupying the said land lots without his consent. I accept that, on balance, it is more probable that the 1^st Plaintiff’s application was made at the request of the 1^st Defendant’s late father. It is hardly imaginable that the 1^st Plaintiff would have made the application on his own volition when he himself was not using or occupying the said land lots. It is more likely that the 1^st Defendant’s late father made certain structural changes to the structures erected in Lot Nos.453A and 453C and thereafter requested the 1^st Plaintiff to make an application to the Lands Department, Tuen Mun to rectify the same. The 1^st Plaintiff’s evidence is that his application was made pursuant to the request of the 1^st Defendant’s late parents. I accept. This tends to show that the 1^st Defendant’s parents’ continued use and occupation of the land lots was the result of a gratuitous licence granted by the 1^st Plaintiff. I accept the Plaintiffs’ evidence that it was natural and normal for them to give consent to their relative, namely, the 1^st Defendant’s late father to use and occupy the said land lots. Their request to the 1^st Plaintiff to make the application is anything but a clear intention to exclude the owner as best he can.

44.  The 1^st Defendant’s evidence is that he was not aware of this fact. However, given his evidence that it was in the late 1980s that the Defendants came to take charge of the household in place of the 1^st Defendant’s aunt, I find it hard to believe that the 1^st Defendant’s late father would not have communicated such an important request to the Defendants. Given that the Defendants also knew of the consent from the 1^st Plaintiff, it is hard to find that they have the requisite intention to adversely possess the Disputed Land Lots. This also affects the Court’s overall assessment of the credibility of the Defendants.

45.  Thirdly, I also accept that as a result of the 1996 Fax, there was a discussion between the parties precipitating in the 1^st Plaintiff granting the 1^st Defendant’s late father and stepmother a gratuitous licence to the latter for the use of Lot Nos.453A, 453C and 454A for their joint lives. I note from the solicitors’ correspondence that the dispute covers Lot No.454A. In essence, it was about the extended warehouse constructed by the 1^st Defendant. Although the draft tenancy agreement as set out in the 1996 Fax was not signed by the 1^st Defendant’s late father or the 1^st Defendant, the 1^st Defendant’s evidence is that he passed the 1996 Fax to his late father and later his late father told him that the dispute had been handled. Thereafter, the 1^st Defendant did not make further enquiry as to how it was handled.

46.  I accept Mr Chong’s submission that, in relation to Lot Nos. 453A. 453C and 454A, the 1^st Defendant’s evidence on this issue supports the existence of the oral express gratuitous licence granted to the 1^st Defendant’s parents. There was a dispute in 1996 and it was handled, to use the Defendants’ term, without litigation. Between the acceptance of an adverse possession by the Defendants’ family and a license to the 1^st Defendant’s parents to use and occupy the said lots of land until their demise, I am of the view that, on balance, the latter is inherently more probable.

47.  I also find that the fact that the 1^st Defendant’s late father was in occupation of the extended warehouse erected on Lot Nos.453A, 453C and 454A is supported by the utilities bills in the name of the 1^st Defendant’s late father.

48.  Fourthly, it is pertinent that on 13 July 2011, the 1^st Defendant’s stepmother signed a return of land agreement (“Return of Land Agreement”) in Chinese with the 2^nd to the 4^th Plaintiffs and witnessed by one Mr Kong Keung. In the Return of Land Agreement, it is provided that:

(1)  The 1^st Defendant’s stepmother agreed to unconditionally return House 40 which was resided by her and her late husband to the 2^nd to the 4^th Plaintiffs;

(2)  She knew that the owners of the land are the 2^nd to the 4^th Plaintiffs.

49.  She also, through Mr Kong Leung, returned the keys of House 40 to the 2^nd to the 4^th Plaintiffs. The 2^nd to the 4^th Plaintiffs did open the house and inspect the contents of House 40 subsequently as can be seen from some of the photos taken by the 2^nd to the 4^th Plaintiffs.

50.  I am of the view that the Return of Land Agreement tends to prove that to the knowledge of the 1^st Defendant’s stepmother, the relevant land lot belongs to the 2^nd to the 4^th Plaintiffs.  As such, she was willing and found it right to return the same to the Plaintiffs. This also proves that her occupation of House 40 and Lot 453B was pursuant to the gratuitous license granted to her and her late husband. Otherwise, it is inexplicable as to why she would have done so. This also does not sit well with the Defendants’ case that his late father and stepmother’s occupation of House 40 and Lot 453B was pursuant to their consent or licence. I reject the Defendants’ evidence on this issue.

51.  I also note that as a matter of fact the Defendants were not in occupation of Lot No.435B and House 40 between 1986 to 2011. An acknowledgment by the remaining occupier, namely, the 1^st Defendant’s stepmother of the 2^nd to the 4^th Plaintiffs’ ownership of Lot No.453B and House 40, in my view, carries weight. This is also consistent with the gratuitous licence in relation to Lot Nos.453A, 453C and 454A.

52.  On 13 July 2011 and 16 September 2011, the 2^nd to the 4^th Plaintiffs took actual physical possession of Lot No.453B, though the Defendants retook physical possession of the same thereafter.

53.  Fifthly, I also note that when the disputes arose in 2011. In the pre-action correspondence, in a letter dated 8 September 2011 from the Defendants’ solicitors, YL, to the Plaintiffs’ solicitors, Messrs. Liu, Chan & Lam, it was, inter alia, stated that:

“Please let us know, apart from perusing the public land search record (and probably also the Lot Index Plan) of Lot 453B in DD130, any other prudent measures have you taken to ascertain the boundary of the aforesaid lot so as to convince yourself that the Property situates on your clients’ land as you asserted before you made your unreasonable and unwarranted demand to use on behalf of your clients, given the fact that you are not legally qualify in determination of land boundary.” (Emphasis added.)

54.  Hence, it is clear that as at September 2011, the Defendants were not under any impression that they had trespassed the Plaintiffs’ land. On their case then, the Defendants were not aware of the fact that they had had occupied the Plaintiffs’ Lot 453B. Hence, it cannot be right that the Defendants could have ever thought that they were the rightful owners of Lot No.453B.

55.  Sixthly, I agree that the Plaintiffs and the Defendants and the 1^st Defendant’s late father, late aunt and stepmother, at all material times, lived in close proximity to each other. The village is relative small with about 100 members of the Siu Clan. It is virtually impossible for the Plaintiffs not to be aware of the Defendants’ use and occupation of the Disputed Land Lots. There was no complaint at all, save in 1996, from the Plaintiffs. I am of the view that, on balance, it is more probable that the absence of complaint was due to the presence of consent and/or licence.

56.  Seventhly, on credibility of the witnesses, my overall assessment is that the Plaintiffs’ evidence is more credible in comparison to the Defendants’.

57.  The 1^st Plaintiff’s evidence is unhelpful as he could not recall many material facts even though the same were stated in his own witness statement. He could not either deny or confirm the same. It is quite clear to the Court that he struggled in order to give an answer. This could be due to his senior age or the pressure that he faced in order to give evidence in court.

58.  On the other hand, I find the 2^nd to the 4^th Plaintiffs’ evidence, in particular, the 4^th Plaintiff’s evidence very credible. The 4^th Plaintiff was subject to extensive cross-examination but his evidence remained firm and intact. He was direct and straightforward. He acknowledges that he was not conversant with English and hence had to rely on his lawyers. When inconsistencies between the statements in his witness statement and the Plaintiffs’ pleadings were pointed out to him, he fairly admitted that he did not know why there were such discrepancies but he did tell what he considered to be the truth to the Court. I accept his evidence. In particular, I am of the view that the 4^th Plaintiff was telling the truth when he orally testified that:

(1)  The Plaintiffs and the 1^st Defendant’s late father belonged to the same generation and they frequently talked to each other.

(2)  If a member of the Siu Clan would like to use or occupy lots of land which belong to other members, it was only normal that, as a matter of courtesy, he or she would ask for permission first.

(3)  The 1^st Defendant’s late father was at one time the head of the village and it was only natural that when being asked permission would be given.

(4)  When being asked on why in the writ issued in 2013, Lot No.454A was not mentioned, his direct answer was that he had definitely told his solicitors but may be due to his negligence, the mistake was not spotted. This was subsequently remedied. I accept that this is very plausible as all the Plaintiffs are not highly educated and it is only natural that they relied on their lawyers. The same goes with the inconsistencies in his pleadings and his witness statement. But I believe that he did tell the Court the truth.

(5)  In relation to the mistake that in his pleadings, he stated that he gave consent to the 1^st Defendant’s late father in the 1980s but in his witness statement, he stated that it was his own late father who gave the consent. Whilst I fully appreciate Mr Li’s submission that the 4^th Plaintiff’s case is not consistent with his pleaded case, I do accept the 4^th Plaintiff’s evidence that this was a slip on his part. In fact, the Plaintiffs’ legal team accepted the responsibility of not spotting the mistake. At the end of the day, the role of the Court is to find out the truth, using its best ability and to do justice to the parties. I accept that in the 1980s, the 4^th Plaintiff had not become the registered owner of the Lot No.454A, hence, it was his late father who gave the consent.

(6)  He also truly said that the consents were only given to the 1^st Defendant’s late father and stepmother. When he was asked on whether the Defendants could use and occupy the relevant lots of land, his answer was that it was up to the 1^st Defendant’s late father and stepmother. He would have no objection to the same as the 1^st Defendant is the son of Siu Chi Hung and the 2^nd Defendant is the wife of the 1^st Defendant.

(7)  As to Lot No.453B, on 13 July 2011, the 1^st Defendant’s stepmother left the village and went back to Mainland China. But she signed the Return of Land Agreement and returned Lot No.453B and House 40 to the 2^nd to the 4^th Plaintiffs. This shows that the relevant consent was indeed given.

(8)  I also find the 4^th Plaintiff’s account of the meeting during the Spring Festival meal believable.

59.  On the contrary, I find the Defendants’ evidence less believable.

(1)  The picture portrayed by the 1^st Defendant is that his late father was never in charge of his family’s affairs.  It was his late aunt and later himself who were and are presently the head of the family. I am not persuaded that this is the whole truth. Whilst it is plausible that the 1^st Defendant’s aunt might be in charge of the household, it is unlikely that the 1^st Defendant’s late father would have no say on whether and how the landed properties of the family were to be used. Indeed, all the utilities were registered under the name of the 1^st Defendant’s late father.

(2)  Further, given that the 1^st Defendant’s late father was at one time the head of the village, I find it hard to believe that he would not have discussed with the Plaintiffs and their fathers on the use of the Plaintiffs’ lots of land. I accept the Plaintiffs’ evidence that they and the 1^st Defendant’s late father belong to the same generation and as such it was seldom that they would discuss anything of substance with the 1^st Defendant. This also accords with the 1^st Defendant’s evidence that he rarely spoke to any of the Plaintiffs.

(3)  I also find the Defendant’s case that it was pursuant to their consent or licence that the 1^st Defendant’s late father and stepmother moved to live in House 40 hard to believe. I accept that in a traditional village it is difficult to fathom why the 1^st Defendant’s late father would need to seek permission from his own son and daughter-in-law to occupy a house not owned by them.

(4)  I also note that the 1^st Defendant’s late father and stepmother moved to live in House 40 due to the breakdown of relation between the 1^st Defendant’s stepmother and his late aunt. The objective fact is that House 40 was, between 1986 and 2006, not in the occupation of the Defendants.

(5)  I also reject the 1^st Defendant’s evidence that his late aunt told him that Lot Nos.454A, 453B and 453C, at all times, belonged to his late aunt and that the land title documents had somehow been wrongly obtained by the 3^rd and 4^th Plaintiffs’ father. I find the 1^st Defendant’s evidence on this incredible because the conveyancing history shows clearly that the 3^rd and 4^th Plaintiffs’ father’s title to the relevant land lots derived from succession.

(6)  I also find the Defendants’ that they, at all material times, genuinely believed that the relevant land lots’ legal or legitimate owners were his aunt and subsequently the Defendants difficult to believe. The 1^st Defendant also deposed that it was only in 1996 when he received the solicitors’ letters from the Plaintiff that they discovered that the legal title of the relevant legal lots had been transferred to the Plaintiffs. I am also not entirely sure that is correct. First, the 1^st Defendant became the legal and registered owner of Lot Nos.435E and 435F, RP in 1983. In December 1995, the Defendants became the registered owners, as joint tenants, of Lot Nos.453E and 453F RP. Formal procedures had to be carried out for them to be registered as legal owners of the relevant land lots. It must be clear to them that they have never been registered as the legal owner of the land lots that are the subject of disputes in the present proceedings. Hence, there is no basis that they could have genuinely believed that they and their late aunt were the legal or legitimate owners of the Disputed Land Lots. Secondly, if they really believed that they were the legal or legitimate owners and in 1996 they were told that the land titles had in fact been transferred to the Plaintiffs, it is hard to believe that the Defendants would have sit there and done nothing.

(7)  I also note that as a matter of fact the 1^st Defendant’s late aunt obtained titles to Lot Nos.453E and Lot 453F RP not from succession but from a mortgagee execising power of sale of subsection E and F.

60.  In the circumstances, I find as a matter of fact that:

(1)  As for Lot No.454A,

(a)  In the 1980s, the 4^th Plaintiff’s late father allowed the use of part of Lot No.454A to the 1^st Defendant’s late father for agricultural use.

(b)  The 1^st Defendant’s late father later built and erected a pigsty on that part of Lot No.454A for the purpose of raising pigs.

(c)  Sometime in the 1990s, the said pigsty was demolished and turned into a temporary structure used as a warehouse.

(d)  Lot No.454A is also a subject matter of the express oral licence in 1996 by the 2^nd to the 4^th Plaintiffs.

(2)  As for Lot Nos.453A and 453C,

(a)  In 1991, the 1^st Defendant’s late father acknowledged that the 1^st Plaintiff was the legal owner of the said lots and did not evince any intention to exclude the 1^st Plaintiff as the legal and registered owner.

(b)  In 1996, it was discovered that the 1^st Defendant had extended the warehouse into Lot No. 453A and 453C. Two solicitors’ letters were issued to the 1^st Defendant. After the issuance of the said two letters, the 1^st Defendant’s late father and stepmother came to visit the Plaintiffs. They sought permission to continue to use the said warehouse as extended during the joint lives of the 1^st Defendant’s late father and stepmother.

(c)  After discussion, the Plaintiffs agreed to continue to allow the 1^st Defendant’s late father and stepmother to use the said warehouse as extended for their joint lives rent free.

(d)  In 1997, the 1^st Defendant’s late father and stepmother requested the 1^st Plaintiff to help them in their attempt to renovate the said warehouse as extended by making an application, in his capacity as the owner of Lots No.453A and Lots No.453C. The 1^st Plaintiff acceded to their request and, on 26 November 1997, he made a written application to the District Officer, Tuen Mun for such purpose.

(e)  The said application was withdrawn in 1999 as the 1^st Plaintiff was informed that before obtaining the consent of the District Officer, Tuen Mun, they had started the renovation works and no measurement or survey were permitted.

(3)  As for Lot No.453B (House 40)

(a)  The 2^nd to the 4^th Plaintiffs allowed the 1^st Defendant’s late father and stepmother to use the same as their residence.

(b)  On 11 December 2006, the 1^st Defendant’s late father passed away and since then, House 40 which stands on Lot No.453B has been occupied by the 1^st Defendant’s stepmother until 13 July 2011.

(c)  On 13 July 2011, the 1^st Defendant’s stepmother signed the Return of Land Agreement and delivered the keys of House 40 to the 2^nd to 4^th Plaintiffs. 

(4)  The termination of the express license is set out, at the latest, in the pre-action letters in November and December of 2011.

(5)  In relation to Lot No.454A, Mr Li for the Defendants submitted that even if a licence was granted by the 4^th Plaintiff’s late father, the same would have been terminated at the time of his death in 1987. However, in 1996, there was an oral express licence granted by, inter alia, the 4^th Plaintiff. As such, I am of the view that the Defendants cannot make out a case of adverse possession of Lot No.454A vis-à-vis the 4^th Plaintiff.

Licence granted by the Defendants to the 1^st Defendant’s late father and stepmother

61.  As a result of my findings above, I find it incredible that the 1^st Defendant as son and the 2^nd Defendant as daughter-in-law did grant permission to the 1^st Defendant’s late father and stepmother to occupy and use the disputed land lots given the finding of this Court that the 1^st Defendant’s late father and stepmother obtained their consent from the Plaintiffs and their predecessors-in-title. Mr Li submitted that the Defendants are entitled to rely on admitted facts by the Plaintiffs. That must be correct. However, even if this Court is bound by the Plaintiffs’ admission on this point, in my view, it does not negate or affect this Court’s finding, on the facts and evidence, that the Defendants’ family including the 1^st Defendant’s late father and stepmother’s occupation and use of the Disputed Land Lots was pursuant to the Plaintiffs’ and their predecessors-in-title’s express licence and consent. In any event, this is not, by itself, determinative.  

62.  What is material is that as the 1^st Defendant’s late father and stepmother were the licensees of the Plaintiffs who at all material times occupied the Disputed Land Lots, I am of the view that the Defendants cannot be said to be in possession of the Disputed Land Lots to the exclusion of the licensees of the legal owners.

63.  Further, given that occupation and use of the disputed land lots by the 1^st Defendant’s late father and stepmother was possible pursuant to a gratuitous licence granted by the Plaintiffs and I am of the view that, in all probabilities, they would have conveyed the said consent to the Defendants and it was upon such basis that they also continue to occupy and use the disputed land lots, it cannot be said that they at all material times possessed the relevant animus possidendi vis-à-vis the Disputed Land Lots.

64.  Hence, even if the Defendants genuinely believed that they had given consent to the 1^st Defendant’s late father and stepmother, it is not clear that at the time of giving their consent, namely, 1986, the Defendants had acquitted any title, possessory or otherwise, to the Disputed Land Lots. On the Defendants’ own case, the 1^st Defendant only returned to Hong Kong in the early 1980s. It is entirely plausible that valid consents were given by the Plaintiffs and their predecessors-in-title and the 1^st Defendant’s late father and stepmother and I so find.

65.  Mr Li for the Defendants submitted that the Plaintiffs must be bound by their own pleadings and he, rightly in my view, pointed out that there are a number of defectives in the Plaintiffs’ pleadings. I also take into consideration that the Plaintiffs’ legal team has ample opportunities to put the Plaintiffs’ pleadings in order. However, inexplicably, that was not done. Having said that, the Court must remind itself that the disputed material fact is whether express licence was granted to the 1^st Defendant’s late father and stepmother to occupy and use the Disputed Land Lots. Express licence is pleaded. As said earlier, there are inconsistencies and the Plaintiffs’ pleadings, for example, the consent in the 1980s could only have been given by the 4^th Plaintiff’s late father. However, I am of the view that overall it does not prevent the Court from deciding on the issue of whether express licence were indeed granted or not, on a fair basis.

66.  Mr Li for the Defendants also relied on the admissions in the Plaintiffs’ pleadings in relation to the use and occupation of the Disputed Land Lots by the Defendants, in particular, the occasional renting out of some of the Disputed Land Lots by the 1^st Defendant’s late aunt. However, I am of the view that the occasional renting out of some of the Disputed Land Lots must be viewed against the backdrop of the Plaintiffs’ and their predecessors-in-title’s consent and the overall evidence in this case. The act of renting is one of the factual matrix that this Court has to considered but cannot by itself be a determinative factor. I also that that there is no documentary evidence showing that the 1^st Defendant’s late aunt had let out Lot No.454A to anyone.

67.  Any letting of the Disputed Land Lots by the Defendants and/or the 1^st Defendant’s late aunt between 1984 to 2013, has to be viewed against, inter alia, the acknowledgment of the 1^st Plaintiff’s legal right by the 1^st Defendant’s late father in 1991, the express licence agreed in 1996, the 1^st Plaintiff’s application in 1997 and  the delivery of vacant possession of House 40 and Lot No.453B by the 1^st Defendant’s stepmother in 2011 and the 2^nd to 4^th Plaintiffs’ taking physical possession of the same in 2011.

68.  Further, the fact that from 2011 to 2013, the Defendants initially allowed their daughter to live in House 40 and later let the same to one Mr Lau, in my view, is not relevant. The parties were then having disputes over the ownership of the Disputed Land Lots.

69.  In Wing Hang Bank Ltd v Crystal Jet International [2005] 2 HKLRD 795, at §7, Ma CJHC (as Ma CJ then was) insightfully said:

“[P]leadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly throughout, it is impossible for them to hark back to the pleadings and treat them as governing the area of contest.”

70.  In the present case, the Defendants framed the issues as (1) whether the Plaintiffs had granted licences to the 1^st Defendant’s late father and stepmother to use and occupy the Disputed Land Lots and (2) even if the answer to (1) is affirmative, would that defeat the Defendants’ claim of adverse possession of the Disputed Land Lots and entitled the Plaintiffs to recover the Disputed Land. Battle lines were drawn along these two issues. Hence, I am of the view that the admissions relied upon by the Defendants have to be analyzed according to the factual findings of the Court on the two issues.

71.  Mr Li for the Defendants also submitted that there was no mention of the express gratuitous licence in the correspondence in 1996. That is correct. But there can be various reasons as to why that issue was not raised in lawyers’ correspondence at that stage. I do not find this factor particularly important.

OTHER ISSUES

72.  Mr Chong for the Plaintiffs in both his opening submissions and closing submissions sought to rely on an implied licence granted to the Defendants. However, the cause of action based on an implied licence is not pleaded. Mr Chong submitted that a plea of an implied licence is a plea of law and as such there is no need to plead the same. So long as the material facts that the Plaintiffs seek to rely on are pleaded, that is sufficient. I do not agree. An implied term of a contract or an implied license or consent is not just a legal consequence but a material fact that had to be specifically pleaded. From the Plaintiffs’ pleadings, it is difficult to foresee that the Plaintiffs will rely on the allegation of an implied license that had been granted to the Defendants. Mr Li for the Defendants is right that the Plaintiffs have ample opportunities to put their own pleadings in order but they chose not to. This is particularly so when this trial was adjourned and re-fixed due to Covid-19. Further, at the beginning of the trial, the Court has indicated to Mr Chong that the Plaintiffs should put their own pleadings in order but no application was made to amend the Plaintiffs’ pleadings. In the circumstances, I do not find it right to allow to the Plaintiffs to run an unpleaded case.

73.  Mr Chong for the Plaintiffs also sought to rely on an alleged custom of the Siu Clan that the wealthy members of the clan will assist their fellow “less well-off” members in needy circumstances. Mr Li for the Defendants submitted that this is not a pleaded issue. Mr Li is correct. In any event, it is not entirely clear to this Court when or how long the alleged custom has been in place. There is no evidence that the Plaintiffs were wealthier than the Defendants’ family. Accordingly, I reject the Plaintiffs’ reliance on the alleged custom.

74.  Mr Chong for the Plaintiffs also relied on the doctrine of attornment. However, I agree with Mr Li for the Defendants that the Plaintiffs have not pleaded the same. Mr Chong raised this for the first time in his closing submissions. I agree that the Defendants might have some answers had this been pleaded as an issue to be determined by the Court.  

75.  For the sake of completeness, I should also mention that I do not attach any weight to the statutory declaration of Madam Siu Lin Sau as she was not called as a witness and the Plaintiffs have not got the chance to cross-examine her. In all fairness, the Plaintiffs should not be deprived of such a right.   

76.  I also note that the Plaintiffs accept that they have not adduced any evidence on the damages caused by the Defendants’ trespass and are not inviting the Court to award the Plaintiffs with any damages.

77.  Finally, I should mention that both counsel teams have filed extensive submissions and I have perused and studied the same. The fact that I did not deal with each and every argument does not mean that I have not considered the same, for example, I consider the Plaintiffs’ complaint on the 2^nd Defendant’s report to the Police ambivalent and the 2^nd Defendant has offered credible explanation. I am of the view that it is important that the Court focuses on the key and important factual disputes which this Court has done.  

DISPOSITION

78.  By reasons of all the reasons stated above, I make an order that:-

(1)  The 1^st Plaintiff is entitled to have vacant possession of Lot Nos.453A and 453C.

(2)  The 2^nd to the 4^th Plaintiffs are entitled to have vacant possession of Lot Nos. 453B and the structure erected therein and Lot No.454A.

(3)  The Defendants’ counterclaims be dismissed.

79.  I also make a cost order nisi that the Defendants are to pay the costs of and occasioned by the Plaintiffs in this action to be taxed, if not agreed, on a party-to-party basis with a certificate for two counsel. The said cost order nisi will be made absolute within 14 days hereof unless application is taken out to vary the same within the 14 days period.

80.  I also thank counsel’s assistance in this trial.