WONG CHEE SING (OR WONG CHE SING) (黃志成) (by his next friend WONG TAK KWAN LILIAN) v. HUNG WAH TRADING AS TAK HING LUNG MEDICINE CO AND ANOTHER

DCMP 1988/2018

[2021] HKDC 834

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1988 OF 2018

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BETWEEN

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DECISION

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1.  This is an application by the 1^st defendant for leave to appeal to the Court of Appeal from the Judgment of this court dated 13 November 2020.

Background

2.  This is an adverse possession case. The plaintiff is the registered owner seeking possession from the 1^st defendant, who counterclaims for adverse possession. The background of the case is stated in the Judgment and needed not be repeated here.

Legal principles for granting leave

3.  Section 63A(2)(a) of the District Court Ordinance, Cap 336 states that leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard.

The grounds for appeal

4.  The 1^st defendant advanced 3 grounds as stated in the “Revised Draft Grounds of the Proposed Appeal” annexed to the Summons dated 18 December 2020 (pages 31-34 of the hearing bundle). These are summarised as:

i) There was an err in law at paragraphs 61 and 62 of the Judgment that the 1^st defendant failed to show factual possession;

ii) There was an err in law at paragraph 63 of the judgment that the 1^st defendant lacked animus possidendi; and

iii) There was an err in law in finding or purporting to find that the 1^st defendant was a tenant or sub-tenant.

Ground 1

5.  The argument, in short, is that it was not disputed that the 1^st defendant has, amongst others, exclusively occupied the property by taking possession, secured such with a lock, and has been running a business on the property, so these are sufficient proof of factual possession.

6.  I think this is taking a narrow view of the question of factual possession.

7.  As stated in paragraph 61 of the Judgment, the court was concerned with the Slade J’s explanation of “factual possession” in Powell v McFarlane, in particular, whether the alleged possessor has been dealing with the land in question as an occupying owner might have expected to deal with it, and that no one else has done so. 

8.  Paragraph 62 of the Judgment followed on to point out that, when all the circumstances of this case was considered, it was not true that “no one else” has been dealing with the property: the plaintiff was also dealing with the land regarding various payments and maintenance works.

9.  Here, the court is making a somewhat wider interpretation of Powell v McFarlane by simply stating that the circumstances of this case is that someone else, besides the 1^st defendant, has also been dealing with the property as an owner might have expected to deal with it.

10.  The authority quoted by the 1^st defendant, Pubrick v London Borough of Hackney [2004] 1 P & CR 34, is not relevant since that concerns with an attempt to defeat adverse possession by arguing that the squatter could have done more to improve the land.

11.  In any case, even if the court’s interpretation is somehow too wide, it would not have affected the findings that there was no animus possidendi.

Ground 2

12.  Mr. Mak, the counsel for the 1^st defendant, under paragraphs 28 to 33 of his Skeleton, appears to have confused the concept of “mistake” and “dishonesty”.

13.  Mr. Mak’s submitted that an occupier who was under a mistaken belief that he was the owner could still have the requisite animus possidendi for adverse possession.

14.  That is, of course, trite law.

15.  However, when paragraphs 40 to 42 of the Judgment are read in the entire context, it is clear that the court is aware that the 1^st defendant has made a claim of mistaken belief, but it has found this claim to be dishonest.

16.  In other words, the court did not find that the 1^st defendant had mistakenly believed that he was the owner, but instead find that he was lying that he held that belief. So the court logically finds that he never believed that he was the owner.

17.  Paragraph 33 of the 1^st defendant’s Skeleton stated that “The principle is therefore that the reason the possessor was incorrect…does not by itself precludes him from acquiring title by adverse possession. It matters not whether his mistake belief was honest or not.”

18.  This is clearly nonsensical. A witness can make any claim in court that he held a certain belief (irrespective of whether that belief is correct or mistaken), but if the court finds him dishonest, then the court will find that the witness does not hold that belief. Logically, I cannot see how a court can hold a dishonest belief as a true belief.

19.  The 1^st defendant’s true belief, as found by the court, is clearly relevant to the issue of animus possidendi.

20.  The second limb of the argument under Ground 2 is raised in paragraphs 34 - 39 of the Skeleton. The argument was that “the payment of rates and government rents, as a matter of principle, by the paper owner, is not to be given weight” (paragraph 34 of the 1^st defendant’s Skeleton).

21.  Again, if the judgment is read in its entire context from paragraphs 37 to 59, it should be clear that the court’s finding was not based on the payment of rates and government rents by the plaintiff alone. In fact, the court has dealt with all the circumstances of the case including the three Orders by the Building Authority and management and maintenance of the building.

22.  As such, I cannot see how these arguments would support Ground 2 of the appeal.

Ground 3

23.  The 1^st defendant also objected to paragraph 26 of the judgement which stated “…by whatever way he came to occupy the Property in 1992, his intention at the time was simply to lie low and see how long he could get away with not paying rent…”

24.  Strangely, this paragraph obviously was dealing with animus possidendi and Ground 3 but the 1^st defendant raised this objection under Ground 1 in his Skeleton.

25.  In any case, the 1^st defendant alleged that this passage in the Judgment showed “a finding or purporting to find” some form of tenant or sub-tenant relationship in existence.

26.  However, it must be clear, when read in the entire context of the preceding passages, that the court did not accept the 1^st defendant’s claim that he had “all along believed deeply without doubt that this was his property” because, as he also claimed, that he was told by the previous occupier that “the owner had run away” and that he was taking a risk in investment regarding, amongst others, the title of the property.

27.  Thus, the context of paragraph 26 does not concern with a factual finding of any rental agreement: it was an observation that the 1^st defendant must then realise that the owner (the plaintiff) had not run away so he was lying low so as to avoid the plaintiff demanding rent from him.

Other matters

28.  After stating Ground 3, paragraph 5 of the “Revised Draft Grounds of the Proposed Appeal” appears to make a “further and alternative” case for matters that the court had failed to consider. The 1^st defendant does not specify any particular grounds for appeal or whether these matters concern an err in law or in fact.

29.  However, of the matters listed, subparagraphs (b) and (e) are rehashing of the arguments under Ground 3 which has been addressed above.

30.  The remaining subparagraphs are in fact a dispute in the factual findings of the court. I will not go into details of each but they are essentially rehashing the evidence and arguments (e.g. on the appropriate weight on various conflicting evidence before the court). These have already been considered and dealt with by the court and set out in the Judgment. The 1^st defendant would need to show that the court’s conclusion on the finding of facts was unreasonable and, in my view, the arguments advanced fell very short of that.

Conclusion

31.  As such, the court is not satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard.

32.  There is one more matter regarding costs. I note that, in view of the Covid situation at the time, I have ordered for the hearing to be dealt with by paper disposal on 24 December 2020. However, for whatever reason, the hearing on 18 May 2021 was not vacated and was attended by the plaintiff’s side including his counsel, Mr. Chan, but not by the 1^st defendant. The confusion was soon sorted but there may be an issue regarding the plaintiff’s costs of attendance on 18 May 2021. Subject to any further submissions, I would see that as a simple miscommunication given the unusual situation so I would be inclined to give no order as to costs.

33.  I would therefore dismiss this application with an order nisi that the costs of the application, except the costs of court attendance on 18 May 2021, be to the Plaintiff to be taxed if not agreed, and there be no order as to costs for the court attendance on 18 May 2021.