THE INCORPORATED OWNERS OF NO. 202 PORTLAND STREE v. 黃愈惜 AND ANOTHER

DCMP 3097/2019

[2021] HKDC 774

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3097 OF 2019

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BETWEEN

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REASONS FOR DECISION

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1.  At the conclusion of the hearing I dismissed this appeal with costs, with reasons to be given later.  These are my reasons.

2.  By an Originating Summons for Possession issued on 12 September 2019 under Order 113 of the Rules of the District Court by the plaintiff, the Incorporated Owners of No. 202 Portland Street (“the OS”, “the IO” and “the Building”), the IO sought to recover possession of the roof of the Building (“the Roof”).  The Roof has been a common part of the Building as provided by Clause 2 of the Deed of Mutual Covenant of the Building dated 16 October 1958.

3.  On 27 November 2019, leave was granted to the 1^st defendant (“Wong”) to be joined as a party.

4.  After rounds of affirmations were filed, Master Jacqueline Lee heard the matter substantively on 26 March 2021.  The Master granted an order for possession against the defendants and order Wong to pay the IO’s costs (“the Order”).

5.  By a Notice of Appeal dated 8 April 2021 filed by Wong pursuant to Order 58, she appealed against the Order.  This is the hearing of the appeal.

6.  It is trite that this appeal would be conducted by way of a re-hearing.  In other words, I would hear and decide this matter as if I am hearing it for the first time.

7.  Wong’s stance is that she has proffered sufficient evidence to raise a case of adverse possession such that the Order should be set aside and the OS should be converted into a Writ action to try Wong’s claim for possessory title based on adverse possession.

The legal principles

8.  The starting point is that the jurisdiction conferred by Order 113 should only be exercised in clear cases.  The test is whether the issue between the parties, be it one of fact or law, is one which the defendant is entitled to have sent to a trial (§113/8/10 Hong Kong Civil Procedure 2021).

9.  The test and approach have been considered by K Yeung J in Karupayee Ammal v Moorthy Selvaraj (HCMP 1341/2019, unrep, 24 January 2020).  The learned judge alluded to them (at §§27-30) thus:

“27. When considering an application under Order 113, the applicable approach is not to be significantly different from the approach under Order 14 — see Direk Mahadumrongkul v Lau Chun Keung & Others, CACV 133/1998 (unrep, 16 Oct 1998, per Nazareth VP at pp 7, having cited Vipac with approval).

28. In Re Safe Rich Industries Limited, CACV 81/1994 (unrep, 3 November 1994), Bokhary JA observed at §13 that the test at the summary stage is as simple as whether the defendant’s assertions are believable. No mini-trial on affidavit evidence should be attempted.

29. Mr Chan refers me to Mutual Luck Investment Ltd v Chiu Yim Man [1999] 3 HKC 399, wherein Keith J referred to an earlier decision of his Lordship and observed that:

“ …As was said in Kung Wong Sau Hin v. Sze To Chun Keung (HCMP 1614/90), the Ord. 113 procedure will not

‘usually be an appropriate vehicle for the recovery of land which has been occupied by many families for very many years.  Such cases will invariably raise issues of both fact and law which cannot properly be investigated without proper pleadings and following a trial at which the rules of evidence are adhered to.’ ”

I do not read the learned Judge as meaning to lay down any invariable rule that any particular type of claims is not appropriate for the Order 113 procedure.  The facts of each application will have to be looked at and considered separately.  But the learned Judge is obviously correct in observing that where cases raise issues of both fact and law which cannot properly be investigated without proper pleadings and following a trial, the Order 113 procedure will be inappropriate.

30. As in an Order 14 application, the onus to show that there is a triable issue is on the Defendant.”

These principles in the present context

10.  Bearing in mind those principles and in considering whether Wong has raised a claim of adverse possession that she is entitled to send to trial, I am of the view that it is appropriate to apply the following trite principles regarding an application for summary judgment under O 14, namely

(a) Mere assertion in an affirmation would not ipso facto be suffice, since Wong need to satisfy the Court that she has a fair or reasonable probability of showing a bona fide claim for adverse possession.

(b) Wong’s affirmations therefore need to condescend into particulars regarding factual matters in support of her claim for adverse possession.

(c) While refrain from embarking on a mini-trial, I will evaluate whether the factual matters Wong asserted are believable, recognizing that whether her assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as is either undisputed or beyond reasonable dispute.

Legal principles on adverse possession

11.  As Wong’s claim is for adverse possession, I will need to analyse whether she has shown her claim believable in respect of each of the elements that a squatter need to establish.  The general principles regarding adverse possession are well settled, namely, that Wong must establish by compelling evidence

(a) Factual possession in the form of a sufficient degree of exclusive physical control of the subject land;

(b) The necessary animus possidendi, in other words an intention to possess the subject land to the exclusion of all other persons including the paper owner the best she can; and clear and affirmative evidence is required to show that such intention has been made sufficiently clear to the world; and

(c) That she and the preceding squatters had such factual possession and animus possidendi for the whole of the requisite time period.

(Powell v McFarlane[1], JA Pye (Oxford) Ltd v Graham[2] and Wong Tak Yue v Kung Kwok Wai[3])

12.  I would also consider if the evidence proffered by Wong is compelling.

The plaintiff’s evidence

13.  Succinctly, the plaintiff’s affirmations disclosed the following.  I would specifically mention that the matters summarized in paragraphs 15 to 17 below were deposed to in the 3^rd affirmation of Mr Ho Wing Hang (“Ho”) filed on 13 March 2020[4], which was more than 6 months prior to Wong filing her last round of affirmations.

14.  The IO was only incorporated on 26 July 2019. Ho was a representative of Nice Step Investment Limited, which owned the ground floor and mezzanine floor of the Building since 2003.  Ho was authorized by the IO to act on its behalf.

15.  On around 14 March 2019, Ho discovered there were some building materials placed on the Roof and there was also a notice in Chinese issued by the Buildings Department[5] (“the Notice”) affixed at a conspicuous spot on the Roof.  The Notice said :

“通告

九龍砵蘭街202號

天台上加建搭建物

根據本署視察所得，上址正在進行建築工程，而有關建築工程並未有事先取得建築事務監督的批准及同意或又未有按照「小型工程監管制度」的簡化手續已進行，違反建築物條例的條文規定，故屬非法。

就上述的情況，我現在籲請你立即停止上述非法建築工程。…

另外此處所已被封閉（封閉命令編號：COTF/00021/15），任何人士如非正在執行職務的公職人員，在任何時間均不應進入，以免發生危險。

….”

16.  On the same day, Ho then contacted the Buildings Department and reported the matter by a report made online.  Three photographs were enclosed with the online report[6] which depicted the building materials and a half-finished platform-like structure on the floor of part of the Roof.

17.  In April 2019, he found that a structure was erected on the Roof (“the Structure”).  He took 2 photographs[7].

18.  On 3 May 2019, the Buildings Department issued an order under section 24(1) of the Buildings Ordinance Cap 123 ordering the owners of the Building to demolish the Structure[8] (“the BD Order”).  Annexed to the BD Order was a plan, which depicted the Structure occupying about one-eighth of the area of the Roof.  On 4 June 2019, the Buildings Department issued a warning letter for failure to comply with the BD Order.

19.  On 16 August 2019, the IO issued a solicitors’ letter posted on the Roof to notify the occupier to remove the Structure and vacate the Roof.

20.  As have mentioned, on 12 September 2019, the IO issued the OS.

The 1^st defendant’s evidence

21.  The affirmations filed by Wong and her witnesses are extremely short.  I will quote them in their entirety below.

22.  On 23 October 2019, Wong filed her 1^st affirmation in support of her application to be joined as a party.  There, Wong affirmed :

“公元2014年12月16日賣方：林運嬌 身份證：P831[xxx(x)][9]買方黃愈惜K938[xxx(x)][10]買壹拾捌萬伍仟元正作為砵蘭街202號無契天台代價（証物1）本人係一屋主身份證 (sic)”

23.  Exhibited to that affirmation was a one-page document entitled “receipt” dated 16 December 2014 written in manuscript in Chinese saying in gist that 林運嬌 received from Wong HK$185,000 as consideration for a structure situated on the Roof (“the Receipt”).  An image of the HKID card of 林運嬌 was seen depicted on the Receipt.

24.  On 22 February 2020, Messrs Siu & Co., Wong’s present solicitors filed a Notice to Act for Wong.

25.  On 29 September 2020, Wong filed 3 more affirmations, being her 2^nd affirmation (“Wong 2^nd Aff”), affirmation of 林慕雄 and affirmation of 陳定南.  These 3 affirmations however were all affirmed on and dated 4 March 2020, but were filed more than 6 months later.

26.  In Wong 2^nd Aff, Wong affirmed :

“我在19年10月23日存檔一份誓詞，現補充如下：

在2014年12月16日買有關物業時，上手業主知會我有關物業在1982年已建好，一直有人無間斷使用，我買了後亦一直無間斷使用，現呈堂 我買入文件、上手給我的之前業主的買賣文件、身份證副本為 “WYS-1” ”

27.  Exhibited to Wong 2^nd Aff were altogether 3 one-page documents all entitled “receipt” respectively dated 9 March 2011, 30 September 2011 and 16 December 2014.  They were said to be receipts relating to the sale of a structure on the Roof.  The last of these documents was apparently the same as the Receipt.  The considerations stated therein were respectively HK$70,000, HK$50,000 and HK$185,000.

28.  In his affirmation, 林慕雄 affirmed:

“我在金運來地產做了32拾幾年(sic)，曾協助砵蘭街202號天台的建築物買賣轉手，這些物業已建了2拾幾年。黃愈惜的天台物業亦是經我手買賣的，之前的業主魏年香、石達仁亦由我經手。”

29.  In his affirmation, 陳定南affirmed:

“我2009年至2013年在砵蘭街202號6樓（7字）居住，在上述物業天台有幾間住宅建築物，都是我在1982年幫人建的，一直都有人使用。”

30.  The above is the totality of evidence proffered by Wong in support of her claim for adverse possession.

Discussion

31.  The main piece of evidence relied on by Wong is the Receipt.

32.  For the purpose of the present discussion, I am prepared to assume the sale to Wong in 2014 of a structure on the Roof is proven by the Receipt.

33.  However and clearly, the mere fact that Wong purchased the structure does not automatically show, not to say prove, that she has physically possessed or occupied the structure; and let alone proving that she has a sufficient degree of exclusive physical control necessary to establish adverse possession.

34.  In that regard, the only other 2 pieces of evidence she proffered were (a) her one-sentence assertion made in Wong 2^nd Aff that “我買了後亦一直無間斷使用”, and (b) 陳定南’s one-sentence assertion that “上述物業天台有幾間住宅建築物，…，一直都有人使用”.

35.  First of all, from the pictures produced by Ho and from the Notice, it is clearly shown that the Structure was being built in around April 2019.  In other words, the Structure was not there prior, and therefore even if there were a structure there earlier on, it had at some point in time been demolished.  While the affirmations filed by and on behalf of Wong talked about, and the documents exhibited by her concerned, a structure on the Roof (天台建築物), they clearly did not refer to the Structure, which was only being built in April 2019.  That notwithstanding, there is no evidence whatsoever from Wong giving any information regarding the old structure (if there was any), and when it was demolished.  This is particularly important as the Notice made reference to a Closure Order bearing reference number COTF/00021/15, which was made in 2015.  Apparently, certain enforcement actions were taken by the Buildings Department then.

36.  Next, it is well established that mere use (使用) of a piece of land does not amount to a sufficient degree of exclusive physical control for the purpose of adverse possession (see Gotland Enterprises Limited v Kwok Chi Yau CACV 260/2014, and Tsoi Lau Fu and Another V Pang Wan Fong and Others DCCJ 1051/2016).  Wong therefore needs to prove more than mere use.

37.  Yet, all she affirmed to was only “我買了後亦一直無間斷使用”.  Not an extra word was said as to any occupation of the structure.  Wong did not say how she “used” it.  She did not even say she lived there.  Moreover, had she lived in or occupied the structure continuously from 2014 to 2019, one would expect evidence could and would be proffered in the form of photographs, other documentary evidence like letters or receipts showing the Roof as her addressed, affirmation evidence from a neighbour testifying to her such occupation or use, and such.  Again, Wong did not produce any such evidence.

38.  In light of the clear fact that the Structure was only being built in April 2019, Wong’s allegation made in Wong 2^nd Aff (filed on 29 September 2020) that she had “used” a structure on the Roof continuously was literally untrue.  The matter clearly calls for an explanation from Wong.  However and as said, Wong said nothing about when and why the old structure (if there was any) was demolished and the circumstances surrounding the construction of the Structure in its place, and such.

39.  According to 陳定南, he lived on the 6^th Floor in the Building from 2009 to 2013, and that there were several structures on the Roof.  His evidence about these several structures being used by someone therefore should be related to those 4 years. In 2013, Wong has not yet purchased the structure on the Roof, which was in 2014.

40.  The short affirmations of 林慕雄 and 陳定南 thus do not contain any evidence regarding any physical possession by Wong.

41.  I reject Mr Siu’s submission that the existence of the Structure is prima facie evidence of Wong’s exclusive physical control of the land in dispute relevant to her claim for adverse possession.  Firstly, there is no evidence that Wong caused the Structure to be built.  Secondly, the Structure was only built in April 2019 and could not be probative to the situation prior.

42.  There is even scantier evidence regarding the alleged factual possession by Wong’s alleged preceding squatters.  The only two pieces of evidence were Wong’s assertion in Wong 2^nd Aff that she was told so by the seller and 陳定南’s said general assertion regarding 2009 to 2013.

43.  These bare and blank assertions made in the affirmations produced by Wong are, in my view, very far from being compelling evidence.

44.  As explained above, the evidence proffered by Wong does not even begin to show the requisite sufficient degree of exclusive physical control by her from 2014 to 2019, let alone proving it, and let alone proving it for the entire requisite period.

45.  As the requisite exclusive physical control is not shown, the question of the intention of such control does not even arise.

Conclusion

46.  In all, it is very clear in my view that there is insufficient evidence to make believable Wong’s claim for adverse possession such as for the Court to send the claim to trial.  The Master was clearly right in making the Order.  Accordingly, I dismissed this appeal with costs to the plaintiff with certificate for counsel which I then summarily assessed at HK$28,000.  I also summarily assessed the plaintiff’s costs of Wong’s unsuccessful application for a stay of execution by summons dated 8 April 2021 at HK$12,000 which another Master hearing the application ordered to be in the cause of this appeal.  For the avoidance of doubt, the said 2 sums are to be paid by Wong forthwith.