CHAN SAN v. HANS LI, the person appointed to represent the estate of KAM SHUI MAN, the Deceased

HCA 840/2012

[2021] HKCFI 2838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 840 OF 2012

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J U D G M E N T

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1.  The plaintiff in this action sought declaration on adverse possession of the land in Yuen Long known as part of Lot No 1212 RP in DD 118 (“Area B”)  and the northern part of Lot No 1215 in DD 118 (“Area A”). The two areas are collectively referred to as the Land. Those areas were identified in a plan attached to the Judgment of this court dated 22 March 2019 (the “CFI Judgment”)  as Appendix 2. The 1^st defendant was appointed to represent the estate of the deceased registered owner of such land.

2.  On 22 March 2019, this court found that adverse possession was established by the plaintiff both in respect of Area B and Area A, and granted declaratory relief in his favour.  The 1^st defendant appealed against such conclusion.

3.  By the Judgment dated 19 March 2020 - [2020] HKCA 166 (the “CA Main Judgment”), the Court of Appeal (Lam VP, as he then was, Chu and Au JJA)  allowed the appeal in respect of Area B but dismissed the appeal in respect of Area A.

4.  At paragraphs 47, 49, 50, 51, 53 and 54 of the CA Main Judgment (Lam VP giving the Judgment of the Court), it was held as follows:

“47. Area B is not contiguous with Area A. As shown in the survey plan in Appendix 2 to the judgment, Lot 1213 sections A and B were situated between them. Whilst it was the Plaintiff’s claim that Lot 1213 had been in adverse possession of the Plaintiff, such claim was discontinued and the Judge did not make any finding in respect of the same.

48. …

49. The footpath leading from the south of Area A to Area B had to pass through other parts of Lot 1213 (Lot 1213 RP), Lot 1214 and Lot 1211 RP before joining the road at Area B (at Lot 1212 RP), see the survey plans in Appendix 2, Bundle C p 415, 421, 422, and 501. That footpath had been in place since at least 1986: see Bundle C p 514 and it obviously served different lots of land other than Area A.

50. Another road system apparently started to develop since 1998, with the construction or widening of the mud path at Lot 1212 RP, with a track branched off into Lot 1213 leading to Area A, see Bundle C p 522-528.

51. In light of such evidence, it is difficult to understand the basis on which the Judge reached a finding that Area B had changed from rural land to predominantly a driveway serving only Lot 1213 and Area A. Such finding fails to take account of the footpath (which had been there since at least 1986)  which is also situated at Area B and serves other land as described in [49] above. Insofar as the Judge referred to the mud path and track constructed since 1998, it does not cover the entire area of Area B. Further, apart from serving Area A occupied by the Plaintiff, it also served Lot 1213 Section B and possibly Section D and Section E.

52. ...

53. Mr Leong relied on [39] to [42] to support a finding on animus possidendi regarding Area B. But in those paragraphs, the Judge proceeded on the basis that the plaintiff can simply rely on the constructed road from Tai Shu Ha Road West leading to Area A to establish adverse possession since this road only leads to Lot 1213 and Area A and it did not serve any other land, and its enjoyment was exclusive to the plaintiff.

54. As we have seen, it is wrong to equate the mud path with the whole of Area B. Further, even if one is only referring to the mud path, the Judge failed to take account of it serving land in the vicinity other than Area A.” (Emphasis supplied)

5.  Serving “land in the vicinity other than Area A” includes Lot 1213 Sections D and E. In this regard, Mr Alwin Chan, counsel for the plaintiff, accepts at the hearing that the land claimed by the plaintiff in this action only included Lot 1213 Sections A, B and C as shown in Appendix 2 to the CFI Judgment, but not Sections D and E.

6.  In the CA Main judgement, the Court of Appeal invited parties’ submissions regarding the course to take in relation to the claim on Area B, including whether the claim should be dismissed or remitted to the court below.

7.  On 23 June 2020, the Court of Appeal handed down a further Judgment - [2020] HKCA 501 (the “CA Second Judgment”).  In the CA Second Judgment, the Court of Appeal decided to remit the plaintiff’s claim on Area B for a retrial, to be determined by this court.

8.  In coming to the decision that there should be a retrial, the Court of Appeal stated this at paragraph 14(a), (b), (d), (e)  and (f)  of the CA Second Judgment:

“14. Third, the Plaintiff’s factual assertions, if believed, are capable of establishing the requisite factual possession and animus possidendi:

(a)  There is no rule that the construction of road, coupled with other ancillary acts such as clearing the land and paving the road, can never give rise to adverse possession as matter of law.

(b)  On the contrary, it is well established the question of factual possession is a matter of fact to be resolved in light of all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed: Powell v McFarlene (1977)  38 P&CR 452 at 471 (Slade J). Similarly, the question of animus possidendi must turn on the facts of each case: Chapman v Godinn Properties Ltd [2005] EWCA Civ 941 at [28] (Chadwick LJ).

(c)  …

(d)  [The 1^st Defendant’s counsel] submitted that since various vehicles (none of which belonged to the Plaintiff)  had been found parked along the road, the Plaintiff did not have factual possession of Area B. However, as a matter of law the mere fact that trespassers had parked their cars on the land in question is not necessarily fatal to the squatter’s case: Gayadeen v AG of Trinidad & Tobago [2014] UKPC 16 at [24]. Again, much depends on the facts of each case.

(e)  On the facts of the present case, the actual use of the road after it was constructed can be material in determining if animus possidendi on the part of the Plaintiff is established. If the road was not exclusively used by the Plaintiff but frequently used by those in the adjoining lots without complaints by the Plaintiff, the Plaintiff would have difficulty in showing animus possidendi. Though the survey plans seem to suggest that other lots were served by the road, we do not know in reality how the road had been used over the years and how frequently had it been used by those seeking access to those other lots.

(f)  Whilst it can be said that there is thus an evidential lacuna, the defence did not plead any positive case in response to the reliance by the Plaintiff on the construction of the road as an act of possession. Now that the point has assumed greater significance than previously contemplated, it would be just to allow the Plaintiff (and the 1^st Defendant, if he so wishes)  to adduce supplementary evidence at the remitted trial in that regard.” (Emphasis supplied)

9.  And at paragraph 15(c)  of the CA Second Judgment, The Court of Appeal said this:

“15. Fourth, the judge at the remitted trial will be in a better position than us to resolve the parties’ disputes on Area B:

(c)  On the matters canvassed at [14](d)  and (e)  above, further evidence has to be adduced.” (Emphasis supplied)

10.  Somewhat surprisingly, the plaintiff, in his Opening Submissions for the retrial lodged before the court, stated that the plaintiff “shall not adduce any further evidence”.  This position was expressly confirmed by Mr Alwin Chan at the hearing.

11.  In the circumstances, there is simply no further evidence adduced to fill the “evidential lacuna” so clearly explained and identified by the Court of Appeal in the CA Second Judgment.

12.  Mr Alwin Chan submitted that at the end of the day, even if there is evidence of frequent users of the footpath or the driveway by others, that would only create a right of way or easement binding on the plaintiff.

13.  I do not agree.  As stated in paragraph 14(e)  of the CA Second Judgment, “[if] the road was not exclusively used by the Plaintiff but frequently used by those in the adjoining lots without complaints by the Plaintiff, the Plaintiff would have difficulty in showing animus possidendi.”

14.  In Chang Shun Tak v Leung Sun Fat, HCA 13809/1997 (unrep, 18/08/2010)  at [65], Andrew Cheung J (as the Chief Justice then was)  held that:

“65. The burden is on the squatter to prove factual possession and an intention to possess. Self-serving statements should be approached with scepticism, whereas statements against interest would usually be accorded considerable weight: Wong Tak Yue, at p 69A/B-C. The evidence the squatter has to adduce must be “compelling”: Wu Yee Pak v Un Fong Leung [2005] 2 HKLRD 169, para 5. However, this does not alter the standard of proof, which remains the balance of probabilities. All it means is that the evidence adduced must be of such a quality and nature that, if accepted on the balance of probabilities, it is sufficient to establish both factual possession as well as an intention to possess.” (Emphasis supplied)

15.  In the circumstances, I hold that the plaintiff has failed to discharge the burden on him to prove factual possession and an intention to possess Area B: the evidential lacuna identified by the Court of Appeal remains unfilled.

16.  For the reasons stated above, I dismiss the plaintiff’s claim on Area B.

17.  The 1^st defendant has failed to turn up at the retrial to proceed with his counterclaim.  The counterclaim by the 1^st defendant on Area B is also dismissed. 

18.  In the circumstances, I make no order as to the costs of the retrial, save that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.