MAN FONG HANG v. CHOY KWONG

LDPD 996/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 996 OF 2012

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JUDGMENT

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Background

1.  The applicant is the registered owner of Lot No 27 in Demarcation District 105, Sun Tin, Yuen Long, New Territories (“Lot 27”).

2.  It is the applicant’s case that the respondent had been his tenant in respect of part of Lot 27 (“the subject premises”) under a periodic tenancy at the yearly rent of $700, and the tenancy was terminated by means of a transitional termination notice (“the TTN”) served pursuant to the Landlord and Tenant (Consolidation) (Amendment) Ordinance 2004 (“the Amendment Ordinance”).  The respondent has refused to leave and the applicant therefore applies for vacant possession of the subject premises and payment of “$700 per annum from the 1^st January 2010 to date of delivery of vacant possession”.

3.  The respondent denies any tenancy between the parties and avers that, by reason of his continued occupation of the subject premises for a period of over 20 years since 1960, the applicant is debarred by operation of section 7 of the Limitation Ordinance from recovering possession.

The trial

4.  At the call-over hearing held on 3 October 2012, the respondent elected, through his solicitors, to proceed with his case based on adverse possession by way of a defence to this application as opposed to commencing a new action in an appropriate forum to claim for the appropriate relief.  The application was thereafter set down for trial.

5.  When the trial first came on in March 2013, the applicant requested an adjournment on the ground that his son had just discovered some photocopies of old rental record including records pertaining to the subject premises.  As the rental record would be relevant to the issue of whether a tenancy in fact existed, I acceded to the request and adjourned the trial.

6.  When the trial came on this time, the applicant was represented by Juliana Chow who was not the counsel representing the applicant in the aborted trial.  Ms Chow apparently took a fresh look at the applicant’s case and stood ready to concede that the TTN had not been effective in terminating the alleged tenancy.  However, the parties were unable to agree to an amendment of the pleadings and the applicant proceeded with his application as pleaded.

7.  After the close of evidence but before closing submissions, the respondent wanted to introduce into evidence a letter dated 10 April 2013 from the Lands Department and an information paper dated October 2000 prepared by the Housing Bureau for Legislative Council Panel on Housing.  The applicant asked for an adjournment to look into the matter and later came up with further documentary evidence obtained from Yuen Long District Lands Office.  By consent, all these documents have been admitted as evidence.

The applicant’s evidence

8.  The applicant testified at trial and called the following witnesses.  They elaborated on their written statements and were subjected to cross-examination by the respondent’s counsel Belinda Ma.

(a)   Madam Man Wong Tim-tai (文黃添娣), the applicant’s sister-in-law (“Madam Man”);

(b)   Man Fung-wing (文風榮), the applicant’s nephew (“the nephew”); and

(c)   Chung Yu-ching (鍾裕青), the son-in-law of one of the Man’s brothers (see below) who had worked in the District Lands Office before and had experience dealing with land matters (“Mr Chung”).

9.  In addition, an affirmation of Leon Lai (“the applicant’s solicitor”) and the witness statement of the applicant’s son Man Ka-Ho (文嘉豪) (“the son”) were adduced as evidence by consent without calling the maker.

10.  Their evidence may be summarized as follows:

(a)   The applicant is the third of four brothers in the Man’s family.  His eldest brother, Man Sz-Hing (文泗慶 also known as 文日葵) (“the eldest brother”), died in February 1992 leaving his widow (ie Madam Man) and son (ie the nephew).

(b)   The eldest brother used to manage the land properties belonging to the Man’s family including Lot 27.  He let out the properties on oral tenancies for rental income.  He kept a written record of his dealings with the tenants with reference to the land leased (“the rental record”).

(c)   Specifically, the eldest brother bought Lot 27 in 1946 for the benefit of the brothers.  In January 1992, he transferred the land to the four brothers as tenants-in-common in equal share.  Shortly before his death in February 1992, he transferred his one-fourth share in the land to Madam Man.

(d)   Subsequently, Madam Man and the three surviving brothers effected a settlement on the family properties and the applicant became the sole owner of Lot 27 in 2010.

(e)   The respondent has been letting the subject premises from the Man’s family since the 1960s. The respondent’s son (蔡信民) has also rented a piece of land nearby from the family. The eldest brother used to deal with the respondent and his son on their respective leases.  After his death, the task fell on the nephew.

(f)    In about 2004, the Man’s family asked Mr Chung to formalise the rental arrangements with their tenants.  Mr Chung visited all the land properties belonging to the family and compiled two schedules detailing the arrangements he concluded (on behalf of the Man’s family) with the tenants.  Some of the tenants were willing to enter into written tenancy agreement, but some (including the respondent and his son) refused to do so.  The respondent continued to pay an annual rent for the letting of the subject premises.

(g)   The applicant wanted to terminate the respondent’s tenancy.  A TTN was posted up at the entrance of the subject premises on 29 January 2011 which required the respondent to vacate by 31 December 2011.  The respondent has refused to leave and the applicant filed this application on 25 April 2012.

The respondent’s evidence

11.  The respondent also testified at trial and his evidence is that:

(a)   He was born in the Mainland and came to Hong Kong in about 1957.  His uncle, who lived in Mai Po Lung Tsuen (米埔隴村) in Yuen Long, took him in.

(b)   After his uncle’s death in around 1960, the respondent moved to the subject premises.  According to the respondent, the land was then uninhabited and undeveloped.  Over the years, he gradually built various structures on it for habitation and for rearing of pigs and chickens and he raised his family there.  He also farmed on a nearby land and took up part-time jobs in town to support the family. 

(c)   About 20 years ago when the Government put up new policies regarding agricultural activities, the respondent gave up farming and used the structures for domestic purposes.

(d)   The respondent has always treated the land as his own and has never paid rent to anyone.

The issues

12.  Both counsel agree that the issues to be tried are:

(1)   Whether there was any tenancy agreement between the applicant and the respondent in respect of the subject premises and, if so, what were the terms of the agreement?

(2)   If the answer to (1) is in the affirmative, has the tenancy agreement expired and/or was the TTN effective to terminate the tenancy?

(3)   If the answer to (2) is in the affirmative, whether the applicant is debarred from recovering possession of the land by reason of section 7 of the Limitation Ordinance?

13.  Given the concession made by the applicant, the importance of issue (2) falls away.  The remaining issues are fact sensitive and they necessarily intertwined. 

Discussion

14.  For obvious reasons, the eldest brother cannot testify on the rental arrangement he made with the respondent.  Instead, the applicant offers the following evidence to prove the respondent’s tenancy:

(a)   According to Madam Man:

“先夫自從購入該物業後就將該物業分成不同部份/面積租予不同的租客，有關租務及收租事宜都是由先夫自己負責直至他於1992年辭世後就由本人的兒子文風榮接手負責。因為租金是很多年以前訂定的，租金銀碼不大，那些租客們（包括該物業及附近物業的租客）大多是每年親自到我家或託人轉交租金給兒子文風榮。但在2006年至2009年期間，因租客交租金來時文風榮都不在家，所以那3年間，所有家族物業（包括該物業）的租金都是交了給我。但因為我不識字，所以從來沒有簽署租單給交租來的那人或租客。我每次收租後也有告訴我兒子文風榮，以便他作記錄及向他的叔父們交 [代] 有關帳目。以我記憶所及，2009年後我就沒有再收到包括該物業的任何家族物業的租金了。”

In her oral testimony, Madam Man confirmed that the respondent was one of the tenants.  She had accompanied her husband to collect rent from the respondent before and had known the respondent for about 30 years.  Madam Man would sometimes run into the respondent on her way to town.  About 3 years ago, Madam Man encountered the respondent on board a minibus.  When Madam Man demanded for the rent, the respondent asked her to take it easy.

(b)   The nephew confirmed his mother’s evidence and added that:

“絕大部分（或全部）有關家族物業的租約，在我接手時都是口頭租約，我父親只用一些小冊子或紙張記錄租客及租金等有關租約資料。但因年代久遠及搬遷的關係，那些小冊子及紙條已遺失。

因租金是多年前父親與租客訂立的，租金並非市值租金，數目相對是比較少（大多是數百元至一仟元不等），所以收租的方式也是很隨便，都是租客親自或 [轉託] 到我住所交租。如果是我親自接收租金的話，我會發租單給他們。附件一是我發給本案件答辯人的其中一張租單，也是我通常發出租單的模式。有時如他們來交租時我不在家，租客會交租給我母親，但在這樣的情況下就不會發出租單。

這樣的情況維持至大約2004年，那時家族各成員覺得需要將所有家族物業有關租務事宜系統化，所以我們要求鍾裕青先生幫助我們處理有關事宜。由鍾先生接觸所有租客，希望可以簽回書面租約。最後鍾先生在處理後，替我們做了附件二的記錄。至於願意簽租約的租客，他則安排我與他們會面簽署租約。”

He confirmed in his oral evidence that the photocopies that the applicant’s son had recently recovered was the rental record kept by his father which he thought had been lost.  On his part, he used rental receipts purchased from stationary stores to issue to tenants and had since lost the stubs.  However, he had not been diligent in keeping a record on the rent received.

The rental receipt at Appendix 1 to his witness statement was prepared by Mr Chung to confirm his (ie Mr Chung’s) authority to receive rent for the landlord.  The rental receipt was in these terms:

“ 租單

茲收到租客蔡武光（香港身份証：C152xxx(x)[1]持有人）交來港幣柒佰元正（HK$700.00）係2004年度租用第105約第27號地段之年租。

此據

收款人：文風榮代
業主

2004年2月28日”

Appendix 2 to his statement consists of two tables.  The first one set out the arrangements Mr Chung concluded with the tenants in DD 105 including the respondent and his son.  The second table included the arrangements made with the tenants in other lands as well.

(c)   Mr Chung said in his statement that:

“大約在2004年左右，文氏家族成員要求我協助他們處理他們家族物業的租務事宜，將所有物業租約規範化，因之前的租約都是口頭租約，如可將所有租約變成書面租約後可便於管理。我同意協助文氏家族，開始著手接觸所有租客，到最後有部份租客同意簽署租約，但也有部份租客只想以舊有的口頭租約方式繼續租用有關租約。於是我安排同意簽署租約及相約租客們與文氏家族的代表文風榮簽署有關租約，同時亦將其他不願意簽租約的租客資料整理交給文風榮。有關資料見附表。在我處理上述租務事宜的過程中，我有要求租客給我個人資料，也有看過他們的身份證。”

He gave a fuller account at trial.  He said that after he had been given the task, he obtained the original rental booklets from the nephew and made photocopies thereof.  He added his own telephone and facsimile numbers onto the photocopy (at page 105 of the trial bundle) and passed the originals and the photocopies back to the Man’s family.  He also perused the relevant lot index plans and land search records to familiarise himself with the lands concerned.  He then visited the lands and got in touch with the tenants.  He recorded the arrangements he made with the tenants in the two tables annexed to his statement.  With the consent of the Man’s family, he increased the rent a bit and pocketed all the rents he received to cover his expenses.

In particular, he said that the respondent had initially doubted his authority and so he prepared the rental receipt at Appendix 1 to the nephew’s statement to confirm his authority.  He was able to type in the respondent’s identity card number as he had inspected it to confirm the respondent’s identity.  The respondent was not willing to enter into a written tenancy agreement for 3 years (as proposed by Mr Chung) but continued to pay an annual rent.  Mr Chung decided to increase the respondent’s rent from $500 per annum (as recorded in the rental booklets) to $700 per annum (as reflected in the rental receipt).  And so, he recorded the following particulars in the tables:

Page 1

	DD105 Lot	Tenant	Yearly Rent	Remark	租單	Duration	Remark	Tenancy Start	Signed Contract	Remark
1	27部份	蔡武光	HK$700		文風榮簽發	1 yr	3 yr (Contract)	2004年1月1日	N
…	…	…	…	…	…	…	…	…	…	…

Page 2

	約份	地段號碼	租客姓名	年期	聯絡電話
…	…	…	…	…	…
21	105	27部份	蔡武光	1	24718470

He received $700 from the respondent being the rent for 2004 and gave the rental receipt to the respondent.  He also received rent from the respondent for the next year. When he approached the respondent for rent in the third year, the respondent claimed to have paid it directly to the Man’s family.  Thereafter, Mr Chung ceased to have any dealing with the respondent.

15.  In her closing submission, Ms Ma commented adversely on the applicant’s evidence and submitted that the applicant had failed to discharge the burden of proving the respondent’s tenancy.

16.  First, she says that Madam Man was selective in her memory as she could neither recall the details of her encounters with the respondent nor the particulars of the other tenants.  It is said that she contradicted herself when she said she had known the respondent for 30 years when it is the applicant’s case that the respondent has been their tenant since the 1960s.

17.  In my view, one needs to be careful when dealing with elderly witnesses such as Madam Man (who is 89 years old) and the respondent (who is 83 years old) given their age.   It is apparent from the applicant’s evidence that Madam Man did not have much dealing with the family properties but relied on other family members to do so.  At the trial, she was being asked to recall specific details of events that happened over several decades.  She is illiterate and can only rely on her unaided memory.  In those circumstances, it is not surprising that she could not elaborate clearly on her encounters with the respondent or recollect the particulars of the other tenants.  Furthermore, we do not know when she and the eldest brother got marry and when she first came to know the respondent.  So, she is not necessarily wrong about having known the respondent for 30 years.  More importantly, Madam Man’s evidence is internally coherent and is consistent with the other evidence adduced by the applicant.  I do not think Ms Ma’s criticism is sufficient to undermine Madam Man.

18.  Secondly, Ms Ma complains that the nephew’s evidence is contradictory and unbelievable.  It is true that the nephew was unsure as to who had deleted the name “莫坤” and replaced it with “莫漢全” at various parts of the rental booklets.  But we are not here concerned with the tenancy of 莫坤 or 莫漢全, and the fact that the nephew has been unable to differentiate between the handwriting of his father (ie the eldest brother) and that of his wife is neither here nor there. 

19.  Thirdly, Ms Ma has mounted an attack on the tables prepared by Mr Chung.  She observes that the second page of the tables annexed to the nephew’s statement (at page 43 of the trial bundle) and Mr Chung’s statement (at page 53 of the trial bundle) are different in that the last row concerning the respondent (ie line 21) has been missing from the nephew’s tables.

20.  The applicant’s solicitor has offered an explanation in his affirmation.  He said:

“Upon reviewing the documents for the Trial Bundle, it has come to my notice that the 2^nd page of 附件二 to the Witness Statement of 文風榮 dated 18-12-2012 was different from what I had instructed my clerk to send to him by fax in that item 21 (containing the premises concerned, the name of 蔡武光 and his contact telephone number) was missing. The said 2^nd page of 附件二 to the Witness Statement of 文風榮 is now shown to me and marked LAML-1, and the document now shown to me and marked LAML-2 is the document I sent to 文風榮 by fax for it to be annexed to his Witness Statement. Upon receipt of the Witness Statement duly signed by 文風榮, I arranged for filing of the same without checking whether the 附件 was the same as those faxed to him to be annexed to his Witness Statement as I thought that they should be the same. I never have LAML-1 in the record and file (for these proceedings) and I do not understand what had happened which has caused LAML-1, and not LAML-2, to have been annexed as the 2^nd page of 附件二 to the Witness Statement of 文風榮.”

Under cross-examination, the nephew said that the solicitor had brought over the witness statement to a canteen in the New Territories for his signature.  This has led Ms Ma to doubt in her closing submission who is telling the truth.

21.  The difficulty here is that the solicitor’s affirmation was adduced without cross-examination.  It is not known whether the solicitor and the nephew were referring to the same incident (ie, the solicitor faxing over the tables and the solicitor bringing over the statement for signature).  More importantly in my view, page 1 of the tables (at page 42 or 46 of the trial bundle) already included the arrangement Mr Chung made with the respondent (see line 1 on page 1 of the tables).  I do not accept that the evidence of the nephew is necessarily inconsistent with that of the applicant’s solicitor or that line 21 was recently added to boast the applicant’s case.

22.  Fourthly, Ms Ma criticises Mr Chung for not mentioning the fact that he had pocketed the rents in his written statement and for not being able explain in his oral testimony why there are two versions of his tables.  I do not think these glitches are sufficiently serious to discredit Mr Chung. 

23.  On the part of the respondent, he insisted in his evidence that there was no tenancy.  He said in his statement that:

“於或約於1960年左右， … 本人與本人一家開始居於涉案地段。本人與本人的妻子共育有6子1女。除1名兒子及已身故的妻子外，本人的子女及其家人均居於涉案地段 ... 本人亦確認本人已於1960年左右佔用該圖則列明涉案地段的面積及邊界。本人對此並沒有爭議。本人亦確認本人已於1960年左右佔用該圖則中列明的部份至今。涉案地段上共有4間石屋，1塊田及其他空地，均築有圍欄。除本人及本人之家眷外，其他人[士]均不能進入。”

The plan he referred to (appearing at page 11 or 145 of the trial bundle) originated from the applicant’s answer to the respondent’s request for further and better particulars on the Notice of Application:

“Request

Please state, in utmost particulars, the exact location, dimension and boundary of the portion referred to as “Part of Lot No 27 in DD 105, Sun Tin, Yuen Long, New Territories, Hong Kong”.

Answer

A plan coloured pink showing the exact location, dimension and boundary of the portion referred to as “Part of Lot No 27 in DD 105, Sun Tin, Yuen Long, New Territories, Hong Kong”, ie the suit premises, is annexed hereto as ANNEXURE I.”

The plan carries the description that the subject premises rented by the respondent are about 661 square meters in area (“蔡武光租用範圍約661平方米”).

24.  Unlike the other side, the respondent’s evidence is not supplemented by other evidence.  At one stage of the trial, the respondent sought to introduce into evidence some aerial photographs but that was eventually withdrawn upon the objection of the applicant.  So, there are just the words of the respondent. 

25.  Curiously, the respondent denied at trial the following statement from his own witness statement and insisted that no one had ever demanded rent from him:

“於或約於2004年某天晚上，有一男子（詳細姓名已忘記）到本人之家中登門造訪，要求本人交租。由於本人從來沒有向任何人 [士] 訂立租約，本人拒絕繳交。”

Given his age, I do not think much about this inconsistency.  However, his denial tends to support Mr Chung’s evidence that he (ie Mr Chung) had only spoken to the respondent at the shop at the entrance to the village where the subject premises is located.

26.  In my view, the respondent’s case is contradicted by the objective evidence in this case in two material aspects.

27.  First, the respondent claims to have come to the subject premises in 1960 as a barren land and gradually built structures on it over the years for habitation and to rear pigs and chickens. 

28.  It is apparent from the modification of tenancy dated March 1969 bearing the official seal of the Yuen Long District Office and the attached plan (at pp 155-156 of the trial bundle) that the eldest brother had obtained permission to maintain the 11 structures[2] identified on the plan upon Lot 27 and the adjourning Lot 41.  The document was signed by “莫坤” on behalf of the land owner, presumably upon receipt.

29.  There is also a letter dated 16 February 1970 from the Yuen Long District Officer to the eldest brother (at pp 153-154 of the trial bundle) stating that the only agricultural structures permitted to be maintained upon Lot 27 and Lot 41 were 1 chicken shed, 4 pigsties and 1 agricultural kitchen.  The conditions of approval stipulated inter alia that:

(a)    “The structures covered by this approval may be used only for the purpose stated and may not be used for domestic or industrial purposes nor as human habitation.”

(b)   “No structural alterations or improvements to existing structures may be carried out without the further approval of the District Officer in writing who may require plans showing the proposed alterations and improvements.”

30.  Whilst it is correct for Ms Ma to observe that the respondent’s name is nowhere to be found on these documents, they do in my view establish two important facts: (i) one required permission from the Government to build upon Lot 27 whether for human habitation or for agricultural purposes; and (ii) the owner thereof (ie the eldest brother) did obtain permission from the Government to maintain the structures mentioned in these documents.  The applicant’s solicitors had asked for “all modification of tenancy and all kinds of permits, licences and/or waivers” relating to Lot 27 and the adjourning lands and the documents mentioned above were the only documents supplied by the District Lands Office relating to Lot 27.  Given the degree of particularity of the structures mentioned in these documents (in terms of location, size and use), it is rather unlikely in my view that there were other structures (belonging to the respondent) then standing on Lot 27 that had escaped the watchful eyes of the eldest brother and the Government.  Whatever structures the respondent might have built on Lot 27 since 1960 were noted in these official documents and had the blessings of the owner (ie the eldest brother).  It does not matter that the modification of tenancy was received by the respondent but by an agent for the owner.

31.  Secondly, the respondent was adamant in his testimony that he would not disclose his identity card number to anyone.  However, Mr Chung was able to name the respondent’s identity card number on the rental receipt for 2004.  This tends to undermine the respondent’s denial and support the applicant’s case that the respondent paid rent for 2004.

32.  In my view, the photocopies of the rental booklets kept by the eldest brother (at pp 58-122 of the trial bundle) prove to be pivotal in this case because it is clear evidence of the respondent’s tenancy.  The photocopies carried the handwritten telephone and facsimile number of Mr Chung.  Furthermore, it contained not just the rental arrangement of the respondent but the arrangement with other tenants as well.  It is rather difficult for anyone to go to such length to falsify so much information relating to so many tenants.  I accept the authenticity of the photocopies and place much weight on the information contained therein concerning the respondent.

33.  The respondent was named “蔡武光” in the rental booklets, the rental receipt for 2004 and the TTN.  When this application was commenced, the respondent was called “蔡武光”.  The respondent has consistently denied having used such a name.  The applicant has since amended the respondent’s name to “Choy Kwong (蔡光) also known as蔡武光”.  The eldest brother is not able to explain how he came by the name “蔡武光”. In my view, nothing material came out of this as the respondent has never disputed having occupied part of Lot 27.

34.  This is after all a civil trial and the standard of proof is merely on the balance of probabilities.  Despite the absence of the eldest brother’s testimony and the glitches in the applicant’s evidence, I find the applicant’s case more believable.

35.  All in all, I accept the applicant’s case that:

(a)   the respondent began occupying the subject premises in the 1960s, although the precise starting date is now unknown;

(b)   the respondent paid an annual rent of $500 in respect of the subject premises for the years 1986-1988 (see p 65 of the trial bundle) and 1989, 1990 and 1992 (see p 93 of the trial bundle), and an annual rent of $700 for the years 2004 and 2005 (per Mr Chung’s evidence and the rental receipt) and 2006-2009 (per Madam Man’s evidence); and

(c)   the respondent has been a tenant (as opposed to a trespasser) in respect of the subject premises.

36.  No point is taken on certainty of terms, and I find that there is a periodic tenancy between the applicant and the respondent in respect of the subject premises by reference to the payment of the agreed rent of $700 per annum on or before the 1^st day of January each year.

37.  Given my above finding, the respondent’s claim of adverse possession of the subject premises must (subject to two further points to be discussed shortly) fail.

38.  First, Ms Ma has observed that the earliest record of rental payment by the respondent dated back to 1986 (at p 65 of the trial bundle) and there is no evidence of any rental payment over a period of more than 20 years between 1960 (the year the respondent claims to have begun occupying the subject premises) and 1986.  She submits that the respondent has already acquired a title to the subject premises by adverse possession in about 1980 and any subsequent acknowledgment of tenancy on the part of the respondents (eg by payments of rent) would not revive the owner’s title, citing Sanders v Sanders (1881) 19 Ch D 373 and Chong Yuk Por v Chan Kam Muk, unreported, DCCJ 3826/2007, 26 October 2012.

39.  In my view, Ms Ma’s latest attack is parried by the official documents obtained by the applicant from District Lands Office.  As I have said, these documents confirm that the respondent was occupying the subject premises (and build thereon) with the consent of the eldest brother.  So, the respondent could not have been a trespasser at the material time (ie in 1969 and 1970).  Despite the lack of direct evidence, I am prepared to infer from these official documents that the respondent had been a tenant over that period of time thus destroying any possibility of him claiming adverse possession over the period between 1960 and 1986.

40.  Secondly, it is not clear from the evidence which part of Lot 27 was occupied by the respondent and for how long.  It is common ground that he only occupied “part” of Lot No 27 and it is his evidence that he gradually built upon the land.  Possession being one of the essential elements of adverse possession[3], it behooves the respondent to prove that he has possessed the subject land for the requisite period of time.

41.  It is true that he has admitted the applicant’s plan and there is evidence (from the nephew and Mr Chung) that the respondent may have fenced off such land.  But it is not clear how the plan actually relate to Lot 27 and for how long he has been in possession of the land depicted in the plan. 

42.  In fact, the land depicted in the applicant’s plan looks different in shape to the land depicted in the sketch plan attached to the modification of tenancy dated March 1969 (at page 156 of the trial bundle).  This has led Ms Ma to lament in her closing submission that even a land expert might not be able to explain the discrepancies. 

43.  There is no objective evidence (eg aerial photographs) to confirm which part of Lot 27 was occupied by the respondent at any given time.  The official documents adduced by the applicant identified the structures found on Lot 27 in 1969/1970.  The letter dated 10 April 2013 from the Lands Department (adduced by the respondent) mentioned the fact that 8 structures were found on Lot 27 during the Squatter Control Survey held in 1982.  According to Mr Chung, the respondent was occupying two structures in 2004 – a smaller structure made of bricks and a larger one comprising several wooden structures (see Exhibit A2).  The respondent mentioned 4 brick houses in his evidence.  How are these brick houses related to the structures found on Lot 27 at different times?  Given the state of evidence, I would not have found for the respondent on his claim based on adverse possession in any event.

44.  Finally, I would like to touch briefly on issue (2) for completeness. 

45.  The applicant has conceded that the TTN is ineffective in terminating the respondent’s tenancy. That is because sections 5 and 6 of the Amendment Ordinance provide (insofar as they are relevant) that:

“5. Savings in respect of Part IV

…

(2) On and after the commencement date, a tenancy to which Part IV applies and which is in existence on the day before the commencement date, but in respect of which no notice or request has been given or made before the commencement date under section 119 or 119A of the principal Ordinance, may, subject to sections (4) and (5), only be terminated by a transitional termination notice as provided for by section 6.

…

(7) On and after the commencement date, a tenancy which would have terminated, but for the requirement in subsection (2) for a transitional termination notice, shall, until terminated by such a notice, but subject to section 7, continue at the same rent and upon the same covenants, conditions and other terms of the original tenancy as are appropriate to a month to month tenancy.

…

6. Transitional termination notice

(1) For the purpose of section 5(2), a “transitional termination notice” (過渡性終止通知書) means a written notice of termination of a tenancy served on or after the commencement date in accordance with this section.

(2) A transitional termination notice must be served –

(a) by a landlord, not less than 12 months;

(b) …,

before the day on which it is to take effect.

…”

46.  The insurmountable difficulty faced by the applicant is that the TTN was only served on 29 January 2011 but expressed to take effect on 31 December 2011.  There is a clear breach of section 6(2)(a) which requires not less than 12 months’ notice.  The point was taken by the respondent in the written opening prepared for the aborted trial in March.  In my view, the concession is inevitable. 

Conclusion

47.  For the above reasons, I find there is a periodic tenancy between the applicant and the respondent in respect of the subject premises by reference to payment of the agreed rent of $700 per annum.  The TTN has not been effective in terminating the tenancy and the respondent’s tenancy is still subsisting.  The respondent last paid rent in 2009 and has since been in arrears of rent.

48.  The only ground upon which the applicant asked for possession having failed, I dismiss the applicant’s claim for vacant possession of the subject premises.  On his monetary claim, however, I order the respondent to pay the applicant the sum of $2,800 being the rent due since 1 January 2010 at $700 per annum.

49.  Both parties agree that costs should follow the event with certificate for counsel.  I therefore order the respondent to pay the applicant the costs of the application to be taxed on District Court scale if not agreed and with certificate for counsel.