WONG YUEN, MAISIE v. YUE LEUNG PUI

HCA 11140/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11140 OF 1999

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D E C I S I O N

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Background

1.  This is the Plaintiff’s appeal against the order of Master Hui made on 16 January 2007 partially setting aside the Writ of Possession against the Defendant dated 14 April 2005 upon the application by the Defendant’s son (the “Applicant”), who is not a party to the action.

2.  The Plaintiff is the registered owner of a piece of agricultural land in Wo Liu Hang Village registered in the Shatin New Territories Land Registry as Lot Nos 16 and 17 in Demarcation District 176.  She purchased the land in 1984 subject to a yearly tenancy granted to the Defendant by the Plaintiff’s predecessor-in-title.  At the time there was a structure identified as Hut No. 46A (the “Old Hut No. 46A”) on the land occupied by the Defendant.  On 10 July 1999, the Plaintiff issued a Writ of Summons with a Statement of Claim against the Defendant seeking possession of the land, described as “the property situate at and known as Wo Liu Hang Village No. 46A, Shatin, New Territories and registered in the Shatin New Territories Land Registry as Lot Nos. 16 and 17 in Demarcation District 176”.  On 29 July 1999, the Defendant filed an Acknowledgement of Service of the Writ of Summons indicating his intention to defend the Plaintiff’s claim, but no Defence was filed.  On 11 December 1999, the Plaintiff obtained default judgment against the Defendant.  The action went dormant for a number of years until January 2004.  On 20 January 2004, the Defendant applied to set aside the default judgment out of time but his application was dismissed by Master Levy on 10 May 2004.  The Defendant’s appeal against the order of Master Levy was also dismissed by Suffiad J on 26 July 2004.

3.  In the meantime, a fire broke out on the land on 22 November 2002 and the Defendant’s Old Hut No. 46A was burnt down.  On 11 March 2003, the Defendant obtained a licence from the Lands Department to build a temporary structure in the adjacent government land.  The Defendant named this new structure as “Wo Liu Hang Village No. 46A” (the “New Hut No. 46A”).  However, a canopy of the New Hut No. 46A encroached on the Plaintiff’s land.

4.  On 12 January 2004, the Plaintiff’s solicitors, Messrs Lau Wong & Chan (“LWC”), issued a notice to the Defendant demanding the Defendant and his occupiers to vacate the premises known as Wo Liu Hang Village No. 46A by 11 February 2004.  The notice was served on the Defendant at the New Hut No. 46A.

5.  On 14 April 2005, the Plaintiff obtained a Writ of Possession against the Defendant in respect of “the premises known as Wo Liu Hang Village No. 46A, Shatin, New Territories and registered in the Shatin New Territories Land Registry as Lot Nos. 16 and 17 in Demarcation District 176”.  It should be noted that the word “premises” has been used in substitution of the word “property” in the description of the land in the Statement of Claim.  But by that time, the Old Hut No. 46A was no longer in existence, whereas the New Hut No. 46A is standing on government land adjacent to the Plaintiff’s land.

6.  On 4 May 2005, the Defendant received a notice from the Bailiff requiring the occupiers of Wo Liu Hang Village No. 46A to deliver up possession of the premises to the Plaintiff before 10 May 2005.  This notice was served on the occupiers of and at the New Hut No. 46A.  On 19 May 2005, the Applicant issued a Summons to have the Writ of Possession set aside. 

7.  To cut a long story short, the Applicant’s Summons was heard before Master Hui on 16 January 2007 who ordered:

(1) the Writ of Possession dated 14^th April 2005 be set aside as to so much of the possession order therein by deleting the words “known as Wo Liu Hang Village No. 46A, Shatin, New Territories”;

(2) the Plaintiff do pay the costs of this application incurred by the Applicant from the date of the Surveyor Report of Mr. Helicon Y. K. Ma of 28^th September 2006 including the costs of the report, such costs are to be taxed if not agreed;

(3) there be certificate for counsel; and

(4) the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

The Plaintiff now appeals against items (1) and (2) of the order.

8.  Mr Wong, counsel for the Plaintiff, concedes that the Plaintiff has no objection to item (1) of the order as a matter of practicality but maintains that the order is wrong in principle and hence the master should have dismissed the Applicant’s Summons with costs to the Plaintiff.  Thus, the whole purpose of this appeal is to determine the question of costs.  Two issues are raised in this appeal.  Firstly, was the master right in partially setting aside the Writ of Possession and secondly, what is the proper costs order in view of my answer to the first issue.

Setting aside of the Writ of Possession

9.  The Applicant’s grounds for setting aside the Writ of Possession is simply that the New Hut No. 46A is situated on government land rather than on the Plaintiff’s land and the Plaintiff was seeking to dispossess him from the New Hut No. 46A.  It was on that basis, Master Hui partially set aside the Writ of Possession by deleting the words “known as Wo Liu Hang Village No. 46A, Shatin, New Territories” from the Writ of Possession.

10.  Mr Wong attacks the decision of the master on four grounds: (1) lack of jurisdictional basis for setting aside the Writ of Possession; (2) the Writ of Possession clearly refers to the Plaintiff’s land; (3) the words deleted did not refer to the New Hut No. 46A; and (4) as a matter of fact, the New Hut No. 46A encroached upon the Plaintiff’s land.

The first ground:  jurisdictional basis of the application

11.  Mr Wong argues that the Applicant has failed to state in the Summons and supporting affirmations the capacity in which he alleged he would be entitled to take out the application.  His argument is based on the fact that the Applicant is neither a party to the proceedings nor has he applied to be joined as a party at any time, the Writ of Possession was directed to the Defendant and not the Applicant and the Applicant being an occupier of the New Hut No. 46A as an invitee of his father who is only a licensee of the Government, has no interest in the land to make the application.  Hence, Mr Wong submits the Applicant has no locus standi to take out the application.

12.  Mr Wong’s submission appears to be a very formidable challenge to the Applicant’s locus standi in making the application.  But in my view, it has no application to the facts of the present case.  LWC served a notice on the Defendant and occupiers of the New Hut No. 46A to surrender possession of the hut.  On the instruction of the Plaintiff, the Bailiff also demanded the occupiers of the New Hut No. 46A to deliver up possession.  The New Hut No. 46A is situated on government land on which the Defendant had a licence from the Government to use and occupy.  What LWC and the Bailiff threatened to do on behalf of the Plaintiff would be an act of trespass, if the act was carried out.  The Plaintiff had no right to trespass on the land on which the New Hut No. 46A is situated.  The Defendant has lawful authority from the Government to use and occupy the land.  Even assuming that the Applicant is not a licensee of the Government but an invitee of the Defendant, he has de facto possession.  A trite principle of law is that as against a trespasser, possession is good title.  A person who has no title in land but has adverse possession has sufficient interest to evict a trespasser who attempts to dispossess him of the land.  Thus, despite that the Applicant is only an invitee of a licensee, he has sufficient interest in the land by reason of his possession to resist any attempted trespass or threat of trespass on the land in his possession.  I find that the Applicant has sufficient interest to take out the application.  I would have agreed with Mr Wong if the Applicant were suing the Plaintiff in nuisance or if the New Hut No. 46A were situated on the Plaintiff’s land.  In those situations, the acts of LWC and the Bailiff were not attempted trespass or threats of trespass.  I think counsel was so deeply engaged in his argument about the Applicant’s interest in land that he has overlooked that he was treading on the Defendant’s soil.

The second ground:  The Writ refers to the land and not the hut

13.  Mr Wong argues that a common sense reading of the Writ of Possession leads to the clear conclusion that it refers to the parcel of land and not the New Hut No. 46A.  He argues that the Writ of Possession must be read and understood in its proper context.  In the Statement of Claim, the Plaintiff sought possession of “the property situate at and known as Wo Liu Hang Village No. 46A, Shatin, New Territories and registered in the Shatin New Territories Land Registry as Lot Nos 16 and 17 in Demarcation District 176”.  He argues that the Writ of Possession is for possession of the land and could not be understood as meaning or including the New Hut No. 46A.  Mr Wong further argues that the words in the Writ of Possession “the premises known as Wo Liu Hang Village No. 46A, Shatin, New Territories and registered in the Shatin New Territories Land Registry as Lot Nos 16 and 17 in Demarcation District 176” are a description of the land.  It is the same as those used in the Statement of Claim and the Judgement of Suffiad J.  Hence, he submits it is abundantly clear to all parties and the Court that the Plaintiff was seeking possession of the land identified throughout the entire course of the relevant proceedings and the Applicant’s suggestion that there was any confusion merely by inclusion of the word “premises” in the Writ of Possession is a red herring and does not accord with a common sense reading of the documents.

14.  I agree entirely with Mr Wong’s submission.  But that never was the Plaintiff’s position until 13 October 2006 after service on LWC of the survey report of Helicon Ma Surveying Ltd.  It should be recalled that on 12 January 2004 and 4 May 2005 LWC and the Bailiff respectively were demanding the Defendant and the occupiers of the New Hut No. 46A to surrender possession of the hut.  In the affirmations filed by the Plaintiff, the Plaintiff claimed that the New Hut No. 46A was on the Plaintiff’s land.  That necessitated the Applicant’s application by Summons dated 19 May 2005 to have the Writ of Possession set aside.  The Applicant has every reason to take out the application.  It just lies ill in the Plaintiff’s mouth to say now that a common sense reading of the Writ of Possession is that it does not cover the New Hut No. 46A.  The Plaintiff never read it that way until 13 October 2006 after receiving the report of Mr Helicon Ma dated 28 September 2006.  I cannot help feeling uneasy about the Plaintiff’s motive in using the word “premises” in the Writ of Possession instead of the word “property” as was originally used in the Statement of Claim. 

The third ground: the Writ did not refer to the hut

15.  Mr Wong argues that the description does not refer to the New Hut No. 46A, but rather is simply used to identify the parcel of land in question.  That is just a repetition of the argument in the second ground.   Mr Wong further argues that the description was correct at the time of the issue of the Statement of Claim and at the time of the judgment of Suffiad J.  It was only after the fire that the confusion was created and the confusion was caused by the Defendant’s conscious decision to use the old number for his new hut.  He argues that the Applicant would have been fully aware of the distinction between the land previously identified in the Writ of Possession and the New Hut No. 46A which he is occupying.  He therefore submits that there is no basis in the Applicant’s suggestion that the land in question was not properly identified in the Writ of Summons.

16.  I also agree with Mr Wong’s submission.  Indeed the Applicant has no misunderstanding that the Writ of Possession does not apply to the New Hut No. 46A.  But the problem with Mr Wong’s submission is that his client was seeking to enforce the Writ of Possession against the Defendant and the Applicant.  His submission is not consistent with the Plaintiff’s conduct.  The Plaintiff was, until 13 October 2006, seeking to dispossess the Defendant and the Applicant from their New Hut No. 46A situated on government land.  There was nothing the Applicant could do but to take out the application to the High Court as suggested by the Bailiff’s notice dated 4 May 2005. 

17.  Mr Wong refers to the 6^th edition of the New Territories Lot/Address Cross Reference Table (April 2005) which continues to identify the Plaintiff’s land as “46A, Wo Liu Hang Tsuen” and cross referenced it to “DD 176L 17”.  Be that as it may, that does not assist the Plaintiff insofar as the Applicant’s right to take out the summons is concerned.  That publication is not up to date.  It is no evidence that the description of the land in the Writ of Possession is proper and correct.

18.  I should also add this.  Though the description of the Plaintiff’s land was correct at the time of the issue of the Statement of Claim, it was no longer so at the time of the judgment of Suffiad J.  The Plaintiff ought to know about this.  She ought to have known that a fire had occurred in November 2002 and that the New Hut No. 46A was built in March 2003 on a different location.  She had started proceedings for repossession of the land against the Defendant at that time.  If the Defendant was trespassing on a new part of her land, she should have started another action or applied for an injunction.  I understand it is difficult for laymen to realise the exact boundary of his or her land, especially in the New Territories.  But she must have some drawings identifying the location of her Lots 16 and 17 or could have access to the drawings in the Lands Department.  She should have, at least, some rough idea the extent of her two lots and that beyond her two lots was government land and beyond which was the stream as shown in the drawings.  She must have realised that her lots do not extend to the stream and that the New Hut No. 46A is by the stream.  She must have realised that there was a real likelihood that the New Hut No. 46A is situated on government land, especially in view of what the Applicant claimed.  At the very least, she must have known that the Old Hut No. 46A had been destroyed by the fire in November 2002 and no longer existed at the time the Writ of Possession was applied for.  She must have known in view of all those events that the description of the parcel of land in the Statement of Claim was no longer correct.  She should have taken care to ensure that the Writ of Possession properly describes the parcel of land she seeks to repossess.  If in doubt, she should have sought advice from a qualified surveyor, rather than blindly assuming or asserting that the New Hut No. 46A is situated on Lots 16 and 17.  She should also have informed her solicitors about the above circumstances so that they could provide a proper description of the land to be repossessed in the Writ of Possession.  Not only had she failed in those duties, she even tried to capitalise on the situation by attempting to enforce the Writ of Possession against the Defendant and the Applicant.  It just lies ill in her mouth to say that the Writ of Possession contains a proper description of her parcel of land and that no amendment is needed.  If the Plaintiff herself was not misled by the description of the land in the Writ of Possession, she was trying to practise a fraud on the Court and a deception on the Defendant and the Applicant.

The fourth ground: encroachment in fact

19.  Lastly, Mr Wong argues that as a matter of fact part of the New Hut No. 46A encroaches upon the Plaintiff’s land and hence the Writ of Possession should not be set aside.  There is no dispute that part of the canopy of the New Hut No. 46A was overhanging on the Plaintiff’s land.  That fact cannot turn an incorrect description of the land in the Writ of Possession into a correct one.  There is all the more need to correct a description which is substantially incorrect and which the Plaintiff had tried to capitalise on.

20.  Though on a proper interpretation of the Writ of Possession, there could be no misunderstanding that it referred to the land registered in Shatin New Territories Land Registry as Lots 16 and 17 in Demarcation District 176 and that the reference to Wo Liu Hang Village No. 46A is superfluous, that superfluous reference is nevertheless incorrect at the time of application and issue of the Writ of Possession.  That reference could be harmless if the Plaintiff acted in accordance with the proper understanding of the Writ of Possession.  The matter could have stood as it was and sleeping dogs allowed to lie.  However, the Plaintiff sought to enforce the Writ of Possession against the Defendant and the Applicant.  The affirmations filed on behalf of the Plaintiff alleged that the New Hut No. 46A is on the Plaintiff’s land.  The Plaintiff’s act amounted to an attempted trespass or threat of trespass.  The Applicant has sufficient interest to take out the application.  If a decision has to be made by the Court on the correctness of the description of the land in the Writ of Possession, the Court will put right the description of the property which to its knowledge is no longer correct or appropriate.  Had all those facts been known to Master Lung when granting the Writ of Possession, he would not have included the words now ordered to be deleted by Master Hui.  Accordingly, I find that Master Hui was correct in partially setting aside the Writ of Possession as he did.

Costs of the appeal and in the Court below

21.  Having reached the above conclusion, it would almost necessarily follow that the costs order of the master ought not be disturbed and that the Applicant is entitled to have his costs of the appeal.  As the parties proceeded to appeal solely for determining costs, I shall deal with the costs issue fully.  The conduct of the parties leading to the appeal is relevant.

22.  I now continue with the facts which I have left behind.  On 12 September 2005, Master Hui gave directions for the Applicant to file and serve supplemental affirmation and surveyor’s report.  The proceeding came to a halt with the Applicant applying for legal aid.

23.  On 12 June 2006, Messrs Henry Wan & Yeung Solicitors (“HWY”) were assigned by the Director of Legal Aid to represent the Applicant.  On 28 September 2006, Helicon Ma Surveying Ltd prepared a detailed survey report showing that the New Hut No. 46A was indeed erected on government land outside of but adjacent to the boundary of Lot 17 with a portion of its canopy encroaching onto Lot 17.  A copy of the report was sent to LWC on 12 October 2006.  Up till that moment, the Plaintiff’s stance was to enforce the Writ of Possession against the Defendant and the occupiers of the New Hut No. 46A and that the new Hut No. 46A is standing on the Plaintiff’s land.

24.  On 13 October 2006, LWC offered to HWY to settle the action if the Applicant would demolish the canopy overhanging the Plaintiff’s land and have the boundary of the Plaintiff’s land confirmed by a professional surveyor at the Applicant’s costs.  On 11 November 2006, HWY rejected the offer saying that the terms were unreasonable.  HWY did not say what they considered as unreasonable.  Obviously, HWY must have considered it unreasonable for LWC to demand the Applicant to pay the costs for settling the boundary of the Plaintiff’s lots.  I think so too.  There is no reason why the Plaintiff should demand the Applicant to pay the surveyor’s costs for settling the boundary of her land.  On 13 November 2006, HWY offered to demolish and/or remove the part of canopy overhanging the Plaintiff’s land on a without prejudice basis.  HWY maintained that the Writ of Possession was mistaken and is liable to be set aside with costs.  Thus, HWY added a further dimension in the dispute, i.e. legal costs of this application.

25.  LWC did not seem to appreciate the unreasonableness of their demand for the Applicant to pay the surveyor’s costs for settling the boundary of the Plaintiff’s lots and failed to appreciate that the description of the property to be repossessed under the Writ of Possession was incorrect due to the change in subsequent events.  Instead of negotiating on the issue of costs, on 14 November 2006, LWC still press for confirmation from HWY that “the Applicant would instruct his professional surveyor to confirm the boundary at his own costs after the removal works”.

26.  On 21 December 2006, HWY made it amply clear that they considered it unreasonable for the Plaintiff to require the Applicant to bear the surveyor’s costs for settling the Plaintiff’s boundary and that they wanted the Plaintiff to pay the Applicant’s costs of the proceeding.  HWY also drew LWC’s attention that the subject matter of the Writ of Possession was not the canopy but the whole hut, i.e. the New Hut No. 46A now standing on government land.

27.  On 2 January 2007, LWC replied that the Plaintiff’s claim was for the Plaintiff’s land and neither the canopy nor the whole hut.  This is a change of their stance as shown in their notice dated 12 January 2004 to the Defendant and occupiers of the New Hut No. 46A when they were demanding the Defendant and the occupiers to vacate the premises.  On 4 January 2007, LWC issued the ultimatum saying:

“For the avoidance of doubt, we repeat that our client’s writ of possession, as enforcement to the Judgment dated 11^th December 1999, is the possession of land …

…

We hope that you can reconsider your client’s stance upon perusal of the said Judgment.  Unless we hear your reply to the contrary within 2 days from the date hereof, we shall proceed to prepare the index to the Bundle for the forthcoming hearing for your comments.”

The Applicant’s Summons was restored and heard before Master Hui who partially set aside the Writ of Possession. 

28.  I think LWC was only being pedantic.  Until 13 October 2006, they were seeking to enforce the Writ of Possession against the Defendant in respect of the New Hut No. 46A.  They did not even appreciate the unreasonableness of the Plaintiff’s conduct.  As I have analysed in paragraph 18 above, the Plaintiff must have known that the new Hut No. 46A is not the old Hut No. 46A which previously stood on her land.  She must have realised that there was a real likelihood that the New Hut No. 46A is situated on government land, especially in view of what the Defendant and the Applicant claimed.  The report of Helicon Ma Surveying Ltd has put that beyond doubt.  By then, the Plaintiff knew that the New Hut No. 46A is on government land.  All those arguments that the Plaintiff was only seeking possession of Lots 16 and 17 but not the New Hut No. 46A were just false excuses for justifying the threat to proceed to trial in order to extort the Applicant’s agreement to pay the surveyor’s costs for settling the boundary for the Plaintiff. 

29.  The Plaintiff and those representing her failed to acknowledge the fact that the Plaintiff was in breach of her duty to provide a proper description of the land she sought to repossess under the Writ of Possession and failed to acknowledge the fact that the Plaintiff knew or ought to have known that the description of the land in the Statement of Claim has been rendered inappropriate in view of the change in circumstances.  The Plaintiff and those representing her did not recognise that they had been wrongfully seeking to enforce the Writ of Possession against the Defendant and the Applicant.  Even assuming that they did not know that the New Hut No. 46A was on government land when they sought to enforce the Writ of Possession in January 2004 and May 2005, they must have realised by 13 October 2006 that their former actions were negligent or reckless if not fraudulent.  Yet, they have the courage to issue the ultimatum on 4 January 2007 and to restore the hearing just for the purpose claiming costs against the Applicant and now to prosecute this appeal for the same purpose.  The Plaintiff’s conduct is oppressive and wasteful of the Applicant’s costs.  If there is anything wrong in the master’s costs order, it is that he should have ordered the Plaintiff to pay all the costs and not just those since the date of the surveyor’s report.  I have no doubt that had the master directed his mind to the above, he would have so ordered.  Accordingly, I set aside the master’s costs order and substitute it with a simple costs order that the Plaintiff do pay the costs of the application.  But for the fact that part of the Defendant’s canopy indeed encroached on the Plaintiff’s land, I would have considered costs on indemnity basis.

Conclusion

30.  For the above reasons, the Plaintiff’s appeal is dismissed save that the costs order of the master be varied to the extent that the Plaintiff shall pay all the costs of the application.  The Plaintiff shall also pay the costs of the appeal with certificate for counsel, to be taxed if not agreed.  The Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.