CHAN FOOK YUE v. LAI HANG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The proceedings in this matter were commenced by the plaintiff by way of an Originating Summons under O.113 to recover possession of "all that land being situate at the Remaining Portion of Lot No.1049 in Demarcation District No.217, Sai Kung, New Territories, on the ground that the plaintiff is entitled to possession of the same and that the persons in occupation are in occupation with licence or consent".

2. In para.4 of the affirmation in support, the plaintiff said:

"4. Subsequent to my purchase of the said land and on dates unknown to me, the Defendant has without the licence and/or consent of me entered into and still remains unlawfully in occupation of the said land."

3. The Originating Summons was served by a clerk of the solicitors acting for the plaintiff on 3rd May 1988 by post and by affixing the relevant documents at the main entrance of the premises in question.

4. The defendant did not appear on the return date, 17th May, 1988 and an order in terms of the Originating Summons was made.

5. On 20th October, 1988, the court set aside that order by consent of the parties, and ordered that the proceedings be continued on the basis that the affirmations filed by the parties be taken as statement of claim, and defence and counter-claim respectively, subject to the following admission:

"3. Pursuant to Order 25, rule 4, it is recorded that the defendant admits that the wooden hut, the property over which he claims adverse possession, stands on part of Lot No.1049 R.P. Demarcation District No.217."

6. In his affirmation dated the 10th August, 1988, the defendant claimed that he had erected the wooden hut on the said land in the summer of 1960 (para.4), and para.5 states:

"5. Further or in the alternative, in 1960 during summer the said wooden hut was dispossessed of by me and since then I have been continuously and still am in exclusive possession of the same. In other words, the said land together with the said wooden hut has been dispossessed of by me for over 20 years."

7. In para.6 the defendant says that his possession has been without the licence and/or consent of the plaintiff to whom he had never paid any rent or consideration in respect of his occupation of the hut.

8. The conveyance of sale dated 22nd February 1960 (registered by Memorial No.70134), by virtue of which the plaintiff became the registered owner, was for three lots: No.1047, 1048R.P. and 1049R.P. in Sai Kung Demarcation District No.217. The location of lots 1047 and 1049R.P. can be seen of the Division Plan at p.8 of the agreed bundle. According to the plaintiff, lot 1048 (the position of which he marked on the plan in pencil) was subsequently taken over by the Hiram's Highway.

9. It is not disputed that standing on lot 1047 was, and still is, a house. It has been described in evidence as the "big old house" or the "old house", and was at the time known as No.1, Pak Sha Wan. Later, probably in 1973, this 'old house' was renumbered as No.137 and is now situated within the Kau Sai San Tsuen. According to the plaintiff there still is a house No.1, Pak Sha Wan but it is now in the Yue Man San Tsuen (Fisherman's New Village) about which the defendant seems to have no knowledge.

10. It is not disputed that after the plaintiff bought these various pieces of land, one Ho Kong (D.W.3), whom the plaintiff had known for many years from Ho Chung, was allowed to move into the old house together with his family. D.W.3 did not know exactly when he moved to Pak Sha Wan but the plaintiff gave the time as the last part of 1960. The defendant, who also knows D.W.3 and used to stay in Ho Chung, said that it was at the time when a typhoon, which he named as Wandar, demolished their houses that he and Ho Kong moved out to Pak Sha Wan.

11. The defendant maintained that he erected a wooden hut in 1960, for his residence and keeping pigeons, without finding out to whom the land belonged, and moved into it immediately. He said that originally the structure was of 800 sq.ft., and it took him several months to build without the assistance of anybody else. He said that he moved into the hut with the intention to stay in it until the day he dies. During construction period, he stayed in the old house with Ho Kong, who at the time used to work in a rice shop in Wanchai, and returned to the old house occasionally. Speaking of the time the defendant stayed at the old house, D.W.3 said in cross-examination that he stayed there for "some months" and slept in the cockloft, thus contradicting the defendant who said that he slept in the sitting room only when he was out of work.

12. However, D.W.3 said that the old house is a few yards behind the wooden hut. The plaintiff said it was 80-90 feet from the old house. It is not disputed, as I have said earlier, that it is located on the plaintiff's lot No.1049 R.P. While the defendant disagreed that it is at the site marked on the Division Plan with a small square at the top of right side of the lot, the plaintiff said the square represented the location of the wooden hut, which Mr. Poulter (for the defendant) did not much dispute.

13. The defendant said that he first kept 20 pairs of pigeons in some pigeon "houses" which were in front of the hut, but attached to it, with some wire netting to stop them flying away. D.W.3 said in cross-examination that the pigeons were actually kept inside the hut. Some pigeon cases were seen outside by Fan Luk Kan (D.W.2) who claimed to have seen the defendant build the hut in 1960 and had visited him at the hut only once since.

14. The plaintiff said that after he purchased those lots he visited the property two to four times a year. From his present address in Austin Road, Pak Sha Wan is about 10 miles away. He said that during the winter of 1964 or 1965, when he returned to these lots, it "seemed" to him that some pigeon houses were being built on the right hand side as he walked to the old house. It Was one block with three layers of holes. He said that he did not know that it was on his land as he did not know its boundaries. He also saw Mrs. Ho Kong feeding the pigeons, which D.W.3 confirmed in his testimony adding that this was at the defendant's request. He said that at the time of the Ching Ming Festival 1966, this pigeon house was still there but it was not in 1975, when instead he saw a rectangular hoarding over an area bigger than the pigeon house. Before Christmas 1976, he saw a wooden hut, at the same site. Under cross-examination he said that in 1976 the hut which is depicted in the top photograph at p.26, was "being changed from the pigeon house", which he explained by saying that from 1964 to 1976 he only saw the pigeon house which later became a hut in 1976.

15. The plaintiff's witness, P.W.2, is his wife's cousin and was allowed by the plaintiff to stay in the old house in June 1974. D.W.2 said that about a month after he had moved in he saw a pigeon house, which did not look like the hut in the photograph. He too claimed to have seen Mrs. Ho Kong feed the pigeons. D.W.2 said that at the end of 1974, a wooden hoarding was erected around the pigeon house, subsequent to which Mrs. Ho Kong used the place for keeping chickens instead of pigeons about which there is no other direct evidence. He maintained that by the end of 1975, the hoarding became a hut similar to the one in the photograph, when a roof was put on top of the hoarding.

16. The pigeons and the pigeon houses form a common denominator between the parties. The defendant and his witnesses maintain that the hut and the pigeon houses were erected simultaneously but the plaintiff's case obviously is that initially in 1964 or 1965 there was only a pigeon house on the site of the hut, followed by a hoarding which finally became a hut in 1976 according to the plaintiff, and 1975 according to D.W.2.

17. I should perhaps say at this juncture that the defendant and his witnesses were quite unsure of the years. The defendant, who is 61, said repeatedly that he could not recollect clearly as all this happened so long ago. D.W.2 gave his age as 77 and, when he was asked why he remembered the year 1960, he said quite frankly that he could not explain why, adding that his brain was not good and "sometimes I remember one thing, the second time I cannot remember the second thing". Ho Kong is 69 and did not remember when he moved to Pak Sha Wan and identified it with the time when the plaintiff bought the old house. He did not remember when the hut was erected hut said it was in existence prior to the riots of 1967. In cross-examination, D.W.3 could not tell how long after he moved into the old house the hut was erected. He said he could not even tell how old his children were!

18. In considering the evidence I keep in mind that these three witnesses, the defendant, D.W.2 and D.W.3, are unsophisticated village folk. Regrettably they are not endowed with such retentive memories as to be precise with dates and years, which by no means is a rare occurrence. Like the defendant Ho Kong was able to identify the time with particular events of importance; for example, the defendant remembered the typhoon Wandar when he and D.W.3 moved from Ho Chung to Pak Sha Wan, as well as a couple of other typhoons which were not identified by name. Both remembered the year of the notorious riots, 1967.

19. It is important I think to bear in mind that the original hut was a wooden structure with an inflammable tar coated sheet as its roof. Whereas the defendant maintained that the pigeon cases were outside the hut, his witness Ho Kong said in chief that some pigeon cases were there and "also a wire netting outside the hut to prevent the pigeons flying away". He explained this under cross-examination by saying that the pigeon cases were "attached to the inside of the hut. It could not be attached to the outside of the hut, otherwise pigeons would die when there was heavy rain". Later, he said that the pigeon cases were inside the hut and agreed that one would have to go inside the hut to be able to see the pigeons. With regard to the wire fence to prevent the birds flying away, he said that it was on the left side of the hut in the photograph where some sort of a shelf can be seen against the wall.

20. Now, this evidence contradicts the defendant's version. I have considered Ho Kong's description carefully. What it shows is that the pigeons were kept inside the structure with some wire netting to its left on the outside, which indicates quite obviously that an opening was left in that wall for the pigeons to come out of the hut and stay in the pigeon cases within the space covered by the wire netting, the area of which according to the defendant being about 400 sq.ft., the same as the rest of the structure.

21. The fact that at some time thereafter the defendant stopped keeping the pigeons does not matter. Even if I were to find as a fact that he kept the pigeons for a period of 7 months as he claimed, or for a period of one to two years as Ho Kong said, what is significant is that the structure, i.e. the four wooden sides with a roof which was, as I see it, of a flimsy type - a tar coated sheet - remained in that state for the next few years until after 1976, when the fourth renovation took place. During those years three other such renovations had intervened in which damage caused by the typhoons was repaired and the damaged wooden boards replaced. During that period of earlier renovations the rear door disappeared, and the other door was repositioned to where it now is, and the wire netting had been blown away by a typhoon.

22. The most important, drastic one may call it, change that occurred after 1976 at the time of the fourth renovation was the change of roof: the tar coated sheet made way to a zinc sheet roof as it is now. That occurred, according to the defendant, some 10 years ago, which would make it 1979 or thereabouts.

23. Until the roof was replaced with more durable materials, the structure remained more or less as it originally was. The defendant maintained that he had erected it for residential purposes and for keeping pigeons. Initially he had a padlock on one door and two padlocks on the wire fencing. It was argued by Mr. Poulter that this amounted to sufficient evidence not only of the factual possession but of the requisite animus possidendi. I have no difficulty in finding factual possession in the defendant. On the issue of the animus possidendi, I have to consider the effect of what he said in evidence to be his declared intention both when he put up the structure and now: "I am going to stay until I die". In Powell v. McFarlane & Another (1977) 39 P. & G.R. 452, an authority on which both sides rely, Slade, J. said at p.476:

"I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute. For the same reasons, even contemporary declarations made by a person to the effect that he was intending to assert a claim to the land are of little evidential value for the purpose of supporting a claim that he had possession of the land at the relevant date unless they are specifically brought to the attention of the true owner. As Sachs, L.J. said in Techild Ltd. v. Chamberlain, (1969) 20 P. & C.R. 633, `In general, intent has to be inferred from the acts themselves'"

24. I respectfully agree. So, if the declared intention of the defendant is of little evidential value, what is left is for me to revert to the facts. This hut is on a piece of land which is, according to the plaintiff, farming land for which the plaintiff had no use until July 1987 when he subdivided the lot, 1049 R.P., with a view to building a house on the sub-plot, 1049 S.C.. The defendant has stayed in the wooden structure before the change of the roof on occasions when he was jobless. He said that during that period of time he stayed at his place of work, sometimes 2 to 3 months, and returned to the hut for a few days. Sometimes he stayed at the old house with his friend. It was also during that period of time that he worked and stayed, intermittently, according to his account, at the Tai Sha Wan island home of his great friend, the late Chan Tin Chu, and his surviving son Chan Ho Chan, doing some gardening and farming. It was the island address that he gave to the plaintiff's solicitors as his contact address but he explained that it was just as convenient to contact him at the hut notwithstanding that he left it very early in the morning and returned late at night. There is no water supply to the hut nor electricity, nor the usual bathroom facilities. He maintained that he has had a bed inside the hut ever since he erected the structure. He contradicted himself under cross-examination when he said that a teak double bed has been there for 20 odd years. Fan Luk Kan (D.W.2) said that during his only visit to the defendant more than 10 years ago, he had seen a "simple" bed inside the hut. In cross-examination he said that his visit occurred about a year after the hut was completed and besides the cooking utensils, the only other item he saw was the bed which comprised of "two bedboards supported by two stools", which could also be used as a bench. D.W.2 may not be so clear about the year, and I keep in mind his lament about his brain, but be did not appear to be in any doubt about what he saw inside the hut. The description he gave of the bed does not fit a teak double bed. I find that such a double bed was not in the hut in the earlier stages, and that what was seen by the defendant's friend inside the hut was in no way such as to indicate occupation of some permanent nature.

25. The only other fact besides the enclosure, upon which reliance is placed is that the defendant always kept his door or doors locked when he was out. Mr. Poulter argued that this, taken together with the enclosure, totally excluded the plaintiff from this part of the land. Relying on the case of Powell supra, he submitted that the "unequivocal actions of the defendant betoken an intention on his part to claim the land as his own and exclude the world at large including the true owner." He cited also the recent case of Buckinghamshire County Council v. Moran, The Times, 2nd March 1988 on the effect of an enclosure and padlocking the gate. In the former, Slade, J. Said (at pp.477, 478):

"There are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned. The ploughing up and cultivation of agricultural land is one such act: compare Seddon v. Smith. The enclosure of land by a newly constructed fence is another. As Cockburn, C.J. said in Seddon v. Smith, 'Enclosure is the strongest possible evidence of adverse possession', though he went on to add that it was not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too is the locking or blocking of the only means of access."

26. In Buckinghamshire County Council v. Moran, the Court held that the act of padlocking the gate, which was the only means of access to the plot of land already enclosed and which the defendant incorporated into his garden, was evidence pointing unquestionably to an intention to have possession.

27. Miss Fu accepts the principle hut argues that there was in the instant case such evidence to the contrary to which Slade J. Had alluded in the passage of his judgment cited above. She referred to the defendant's evidence in cross-examination when, upon being asked whether he had taken permission from any authority to build the hut, he said that he had not at the time he had decided to build the hut but when he was in the course of erecting it, the District Officer, one Mr. Poon Bing-tong, had asked him to stop building it. There then followed the following exchange:

"O. Did you eventually get permission to erect this 400 sq.ft. structure?

A. Yes.

O. Is it in any letter or document that we can see?

A. That letter in Chinese should be with the District Office. That letter was written by the landlord Mr. Tang Cheung. It was the District Officer Mr. Poon's idea to get a consent letter from Tang Cheung."

28. And he went on to agree that without such consent of Tang Cheung, since deceased, he would not have been able to build there.

29. Mr. Poulter informed the court that a search at the District Office for such a record proved futile as it seemed there were no records going back to 1960.

30. That one called Tang Cheung was alive and well during the early nineteen-sixties is beyond doubt: the plaintiff himself met him when, in the winter of 1964, he first noticed the pigeon house. The significance of the evidence given by the defendant about him is that he appears to be the only person in these proceedings who knew about the permission; secondly, the presumption that no man would declare anything against himself unless it were ture, but that every man if he were in difficulty, or in view of one, would make declarations for himself; thirdly, it explains his intention at the time.

31. Quite clearly his evidence concerning the permission does go against his interest. Whatever the status of the deceased Tang Cheung might have been, the fact that the defendant had to, on his own evidence, seek permission to enter the land does indicate, as I see it, nothing more than that the defendant had, in the words of Hodson, L.J. in the Williams case cited in Powell (supra) at pp.473, 474, "some vague idea in his head, derived from a source which is not clear on the evidence that it was quite all right for him" to enter and stay on the land, so that when he first entered the land consequent upon such permission, it could not be said in my opinion that there was an intention in the defendant of asserting any right to the possession of that piece of land. It is in that light that I view the placing of the padlock on that structure, which at its highest was to secure the pigeons so long as they remained and his other meagre belongings. Furthermore, as the structure remained in the main the same with only minor repairs to it in the meantime, until about 1976 or, as the defendant put it, until 10 years ago, and keeping in mind that he had a bed in name only at least in those early days when he spent considerably long periods of time away from the structure, returning to it only intermittently for short stays, I find nothing during that period of about 16 years until 1976 from which a change in his intention to dispossess the plaintiff and appropriate the land for himself could be seen or inferred.

32. If at all, the change to the hut some ten years ago or since 1976 to a more permanent roof and the introduction of some furniture like a proper bed and a wardrobe is some manifestation that, in the words of Slade, J. in Powell (supra at p.470) "his intentions hardened, just as his activities". By this time, in addition to the new roof and the furniture, the defendant started to spend more time in the hut, more so since the early 1980 when his health started failing with a heart problem and he had to go on public assistance. But this does not help his case so as to be able to rely on his adverse possession since 1976 or thereabouts which falls well short of the limitation period of 20 years under s. 7(2) of the Limitation Ordinance, Cap.347.

33. For these reasons this defence is not made out. I find that the plaintiff is entitled to recover possession of the lot of land in issue and I enter judgment for the plaintiff with costs.