MAN CHAN WING also known as CHAN WING MAN AND OTHERS v. CHEUNG HING WO AND ANOTHER

HCMP 1129/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1129 OF 2013

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JUDGMENT
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1.  This is an action for recovery of possession of a piece of land in San Tin, Yuen Long, New Territories, known as Lot Nos 630, 631, 632 and 634 in Demarcation District No 105, Yuen Long (“Land”). It has a total area of about 7,800 sq ft.

Background

2.  The facts stated in this section are not disputed unless indicated otherwise.  The plaintiffs are brothers and the registered co-owners of the Land.  Their late parents were Man Kam Cheong and Man Hing Mui.

3.  The plaintiffs’ father was a native villager of San Tin, Yuen Long.  On or about 20 May 1981, the plaintiffs’ father succeeded from one Man Chiu San with Man Lam Shi as trustee various pieces of family land in San Tin and became the sole registered owner of the following properties :

(a) San Tin House Lot No 320;

(b) Lot Nos 369 and 399 in DD 98;

(c) Lot Nos 158, 320, 578, 586, 590, 723, 730, 933, 934, 2324,

2394, 2781, 2798, 2804, 3006 and 3281 in DD 102; and

(d) The Land.

4.  On 25 September 1986, the plaintiffs’ father executed an Assignment by way of Gift by which the following family properties were given to the plaintiffs, who then became the joint registered owners of the same :

(a) Lot Nos 369 & 399 in DD 98;

(b) Lot Nos 158, 578, 586, 590, 723, 730, 933, 934, 2394, 2686RP, 2781RP and 2798RP in DD 102; and

(c) The Land.

5.  For many years, the family land (including the Land) had been let by the plaintiffs’ father to various tenants at different rents.  There is an argument as to when the tenancy in respect of the Land had come to an end. 

6.  According to undisputed written records (“Records”), which were found amongst the belongings of the plaintiffs’ father, the Land was referred to as “Woo Bai Sha” and it was let to a person by the name of Cheung (“Cheung”).  Some of the Records referred to Cheung as “Cheung Shan” (張生).  It is not entirely clear whether that was the name of Cheung or shorthand for “Mr Cheung”.  The Records show that the rent for the Land varied over time (the documents are not dated) as follows :

(a) HK$800;

(b) HK$800 plus 2 chicken;

(c) HK$1,000 plus 2 chicken; and

(d) HK$1,500.

7.  The plaintiffs’ father passed away in about July 2001.  Thereafter, their mother, who was also known as “Auntie Cheong”, took over the responsibility of handling the tenancies of the family land.

8.  After the plaintiffs’ mother passed away in about July 2012, the 3^rd plaintiff (“Ying”) took over and started to manage the tenancies of the family land. 

9.  When he took over the responsibilities for the family land, Ying had little, if any, personal knowledge of the land or the tenants thereon.  Therefore, he visited every piece of land belonging to his family and looked for the tenants so as to confirm their identities and collect rents from them.

10.  Ying visited the Land twice in November 2012. It was evidently occupied but no one admitted to be the tenant thereof.  During the first visit to the Land, Ying, accompanied by two persons, met an old lady who came out from one of the structures built on the Land.  The old lady said that she knew nothing and did not want to be bothered.  She demanded that Ying should to leave the Land at once.  The parties do not agree entirely on what took place during this visit, but the details are unimportant. 

11.  On or about 22 November 2012, Ying alone visited the Land with the intention to deliver a rental demand to the tenant.  During that visit, a young man gave him a telephone number (6671 xxxx) to contact the tenant.  With the number he was given, Ying was able to speak to a man on 2 occasions.  However, the man was evasive and did not acknowledge knowing anything about the tenancy over the Land. 

12.  On 7 March 2013, the plaintiffs through their solicitors issued a letter addressed to the tenant and all occupants of the Land terminating the tenancy and demanded vacant possession of the Land.

13.  On 20 May 2013, the plaintiffs commenced the present proceedings by issuing an Originating Summons claiming vacant possession of the Land against all occupants thereof.

14.  On 2 August 2013, the 1^st defendant (“Wo”) appeared in these proceedings and claims that he has been in adverse possession of the Land since about 1994.

15.  Pursuant to an Order of the court, the Originating Summons was converted to a Writ by which the plaintiffs claim against Wo and unknown persons occupying the Land (as 2^nd defendant) for, inter alia, vacant possession thereof and damages for trespass.  This action is only defended by Wo. 

Plaintiffs’ pleaded case

16.  The plaintiffs’ case is as follows :

(a) Since an unknown date no later than 1980 and until about 7 March 2013, the Land was let to Cheung and/or his family members at various rents under a yearly tenancy (although it is not pleaded, that tenancy must be an oral one);

(b) Cheung and his family members were given exclusive possession of the Land under the said tenancy;

(c) Upon termination of the said tenancy on 7 March 2013, the plaintiffs, being the registered owners of the Land are entitled to recover vacant possession of the Land from all occupiers thereof.

Wo’s pleaded case

17.  Wo’s late father was called “Cheung Shan”.  However, he made no admission of the existence of a tenancy between Cheung and the plaintiffs’ father or their mother.  Wo alleges the following :

(a) His late grandfather and father, Cheng Oi Kam and Cheung Shan, came to Hong Kong from the Mainland in the 1960’s. 

(b) They entered into an oral yearly tenancy agreement with one Man Sang Ip in respect of the Land.

(c) His grandfather and father carried out farming activities on the Land, including raising chicken, as well as living on it.

(d) Man Sang Ip used to visit the Land to collect rent every year.  Since about 1989, Man Sang Ip had not appeared to collect the rent, nor had anyone demanded any rent for the Land.

(e) In about 1994, Wo’s grandfather and father ceased farming on the Land and retired.  He then took over the Land and started to treat it as his own without paying any rent.

(f) All along and until now, Wo and his family members, made up of his mother, mother-in-law, wife, daughter and 2 sons, have been residing on the Land.

(g) Wo and his family members have been in continuous adverse possession of the Land since about 1994 (over 12 years before the commencement of these proceedings). 

(h) Wo makes a counterclaim against the plaintiffs for, inter alia, a declaration of possessory title to the Land.

The Main Issue

18.  Mr Koo, who appeared for the plaintiffs, submitted that this case concerns one crucial factual dispute, ie, whether the Land was at all material times let to Cheung (as claimed by the plaintiffs) or it was let to Wo’s grandfather and father by Man Sang Ip (as alleged by Wo).

19.  If it is found that the Land was let to Cheung, Wo’s case is doomed to fail, said Mr Koo.

Applicable law

20.  The general legal principles on adverse possession are well-settled.  There is no argument between the parties on the same.  I have endeavoured to summarise those principles recently in Gotland Enterprises Ltd v Kwok Chi Yau & Ors, unrep, HCMP 4550/03 (25 November 2014), at paras 39 to 44.  I hope I can be forgiven for not repeating them here.

Plaintiffs’ evidence

21.  Three witnesses gave evidence for the plaintiffs.  Ying himself, his sister-in-law (wife of the 1^st plaintiff), Ms Pang Ngan Mui (“Ms Pang”) and his girlfriend, Ms Lai Shuk Yee (“Ms Lai”). 

22.  As noted above, Ying has little personal knowledge about the tenancy over the Land.  Indeed, the plaintiffs’ case is largely based on the Records.  However, Ying was straight forward in the witness box.  There is no material inconsistency in his evidence, and I find him to be a credible witness. 

23.  Ying’s evidence is that his family emigrated to the UK in 1965.  He was born and brought up there.  However, in 1993 Ying returned to live and work in Hong Kong, and he resided with his parents in a village house in San Tin. 

24.  Ying’s mother did not keep any written record for the rents she received.  Nevertheless, she could remember all the tenants, the rents receivable and whether they had been paid.  Ying had never heard from his mother that any of the tenants had failed to pay the rent, save that in about 2009 his mother once told him that a tenant called “Kei Chai” had failed to pay rent and asked him to contact the tenant by telephone.

25.  When Ying visited the tenants after taking over the responsibilities from his mother (see para 9 above), all of them (with the exception of those occupying the Land) were cooperative, admitted their status as tenants of the respective pieces of land and agreed to pay the rents to him.

26.  Ms Pang’s evidence concerns an event which took place in one afternoon on about 20 January 1990.  It was a few days before the Chinese New Year and Ms Pang was in Hong Kong with her son (they lived in the UK) to visit her in-laws.  She was at her in-laws’ place when she heard a man looking for her father-in-law.  She then saw her mother-in-law having a brief conversation with a middle-aged man who referred to the former as “Auntie Cheong”.  Later, she saw her mother-in-law carrying a bamboo basket which contained 2 chicken, and she was told that they were part of the rent for “Woo Bai Sha”. 

27.  Ms Pang was able to identify the man she saw during the above incident from a photograph of Wo’s family.  It was apparently Wo’s father. 

28.  Ms Pang was taxed in cross-examination on the reliability of her identification of Wo’s father.  Although I am impressed by Ms Pang as a quiet, confident and firm witness, I am reluctant to accept the identification evidence due to the fact that she only saw the man in question for 1 or 2 minutes and the event took place over 25 years ago.  Ms Pang had not seen this man again after the incident, and this man had no distinctive feature in his appearance. 

29.  Ms Lai’s evidence concerns an incident which took place on about 20 December 2010.  She was staying at house of the plaintiffs’ mother when she was away with Ying on visit to the UK.  There was a visit in the afternoon by two persons, an elderly lady and a man, looking for Auntie Cheong.  Ms Lai was able to identify the lady as Wo’s mother from a family photograph produced by him. 

30.  When Ms Lai told the visitors that Auntie Cheong was not there and asked why they were looking for her, she was told by Wo’s mother that they were there to pay rent to Auntie Cheong.  Wo’s mother said that the rent was previously paid by her husband, but since he had passed away she took along her son to pay the rent. 

31.  Before the visitors left, Ms Lai was given 2 telephone numbers by the man.  Subsequently, she managed to speak to a person who confirmed his name to be Cheung Hing Wo by dialing 1 of the numbers.  The number she dialed was the same as the one given to Ying (see para 11 above). 

32.  It is convenient here to deal with Wo’s evidence on this matter.  He admitted that he and his mother had visited the house of the plaintiffs’ mother.  However, he denied that they went there with the intention to pay rent for the Land. 

33.  Wo’s father in fact passed away in January 2011.  Wo’s evidence is that when his father was seriously ill, he found a tenancy agreement dated 2004 in his father’s name in relation to another piece of land, Lot 624.  One Man Fung Wing had signed on that agreement on behalf of the landlord.  Concerned that no one had come to collect the rent under the agreement for many years, in late 2010 or early 2011, Wo and his mother went around looking for this Man Fung Wing. 

34.  It was in the course of looking for Man Fung Wing that Wo and his mother went to the house of the plaintiffs’ mother.  Wo asked a woman in the house whether Man Fung Wing was there, and whether she was Mrs Man.  In reply, he was told that Mr Man was not in Hong Kong, and he was given a piece of paper to put down his contact number. 

35.  Apart from the fact that I find Wo to be an unreliable witness (see below), I do not accept his version of the visit.  It is an unusual story (in particular, why Wo and his mother would look for Man Fung Wing at the place of the plaintiffs’ mother?) lacking in support from his mother, who was not called to give evidence.  I believe that the story was concocted to explain the encounter with Ms Lai and why Wo had left his number with her.  See also para 41 below.

36.  I find Ms Lai to be a credible witness.  She was straight forward in the witness box, and the telephone number given to her lends support to her evidence.  There is a wrinkle in Ms Lai’s evidence in that Wo’s father was still alive in December 2010.  However, it is probably a matter of faulty recollection.   In light of Wo’s evidence, it is likely that Ms Lai was told that Wo’s father was ill.

37.  I agree with Mr Koo that Ms Lai’s evidence strongly militates against Wo’s case on animus possidendi.

Wo’s evidence

38.  Wo was the only witness for the defence.  His evidence is as follows :

(a) At all material times since about 1994, he and his family have been in exclusive possession of the Land.

(b) In about 1992, Wo got married.  In October 1993, his wife gave birth to their daughter.  In 1996 and 1999, his 2 sons were born.  All along, Wo’s family members, namely, his mother, mother-in-law, wife, daughter and 2 sons, and himself have been residing on the Land and enjoying exclusive possession of the same;

(c) Wo used to help his grandfather and his father in their farming activities, including raising chicken, on the Land.  In about 1994, his grandfather and father had retired from farming.  At the same time, Wo began to work in the logistics/transportation industry as a driver;

(d) As Wo treated the Land as his own, he had arranged and caused many vehicles to be parked on the Land.  For his own convenience, Wo had also kept a lot of goods or carton boxes on the Land.

(e) Trees were planted by Wo around the house-like structure where his family has been living.  The entire parameters of the Land had been enclosed with wire mesh fences and/or metal sheets, and there are two metal gates with locks for accessing the Land.  Most of the wire mesh fences, together with the metal gates, are covered with canvas.  There are also structures built for storage and workshop purposes.

(f) Wo maintained that no strangers are allowed onto the Land without his or his family’s permission.

(g) Wo said that since his grandfather and father had stopped raising chicken in 1994, it cannot be true that they continued to pay rent with chicken each year.

(h) His father’s name was “張深” and not “張生”.

(i) In support of the allegation that the Land was rented from Man Sang Ip (see para 17 (b) above), some rental receipts signed by a person of that name have been produced by Wo.

(j) Photographs taken in 1996, 1997 and 2000 have been produced by Wo showing the structures built on the Land, the fences and other features.  There are also some photographs of Wo and his family taken on the Land, eg, his wedding photos.  Finally, there are 2 reference letters from Wo’s former employers confirming that he was working as a driver in 1993 to 1994.

39.  I am not impressed by Wo as a witness.  He was evasive to the extent that he refused to acknowledge knowing the word “this” despite having been educated in Hong Kong up to form 4 level.  In light of Ms Lai’s evidence linking Wo with the telephone number 6671 xxxx (see para 31 above), the man who spoke to Ying in about November 2012 (see para 11 above) was probable Wo.  His evasive behaviour was inconsistent with that of a person who had been in adverse possession of the Land for many years.

40.  Despite Wo’s denial, I have no doubt that “Cheung Shan”, the tenant recorded in the Records, was his father.  The reason is that the Records contained a telephone number of Cheung and the same number can be found in 1 of the reference letters (see para 38(j) above) as Wo’s number.  In cross-examination, whilst acknowledging that it was his telephone number, Wo was unable to explain why the same number was attributed to Cheung. 

41.  Having lived on the Land with his father (and grandfather) for so many years, it is very difficult to believe that Wo does not know the identity of the owner of the Land.  By the time when his father was ill (at the latest), he must have been concerned about securing the tenancy over the Land because it is the home of his family.  Hence, it is inherently probable that he and his mother paid a visit to the landlord with the aim of securing the tenancy. 

42.  As regards the rental receipts signed by Man Sang Ip, they can be easily explained.  The area used by Wo’s family actually extends beyond the Land into the adjacent lots.  On the available evidence, it is probable that the receipts were for renting 1 or more of those adjacent lots.  I should add that Man Sang Ip might not be the owner of those Lots.  He could have been acting as the agent of the owner(s). 

43.  In respect of the payment of rent with chicken after 1994 (see para 38(g) above), I see nothing in the point because chicken could easily be purchased in Yuen Long. 

44.  Finally, I reject Wo’s allegation that he took over the Land in 1994.  The suggestion is at best nebulous.  There is simply no proper evidential support for it.  His father was alive, and no reason has been provided for taking over the Land from his father.

45.  In the premises, subject to 1 further argument of Mr Ma who appeared for the defendant (see below), I find that at all material times there was a tenancy between the plaintiffs’ father and Wo’s father (Cheung)[1]. The act of termination of that tenancy by the plaintiffs (see para 12 above) is not disputed.

Alleged non-payment of rent

46.  Mr Ma accepted that if this court finds that there was at all material times a tenancy in existence, then Wo would not be in a position to establish adverse possession of the Land.

47.  However, Mr Ma argued that there was no tenancy due to non-payment of rent over many years, and consequently the periodic tenancy had expired[2].  This argument is based on 2 factual arguments (1 of which has 2 limbs) :

(a) The plaintiffs’ family had emigrated to the UK in 1965 and therefore the plaintiffs’ father could not have collected any rent for the Land;

(b) (i)  Wo’s evidence that no rent had been paid for many years     is not disputed;

 (ii) There is no direct evidence on rental payment from the plaintiffs.

48.  Mr Koo strongly protested that the defendant is taking the plaintiffs by surprise in running this argument which is neither pleaded nor formed part of the Agreed List of Issues filed pursuant to the directions of the court.  Further, Ying was not cross-examined in respect of the factual bases of the argument, and it is unfair to advance the same without giving an opportunity to the plaintiffs to answer those matters.

49.  I agree with Mr Koo.  I disagree with Mr Ma that the point in question requires no pleading.  It was perfectly open to Wo to plead an alternative case to assert that even if there were a tenancy agreement between the plaintiffs’ father and Cheung (which is denied), it had expired long time ago due to non-payment of rent. 

50.  The matter is aggravated by the lack of any indication in the Agreed List of Issues.  The parties must be bound by their agreement of the issues.  In my view, Wo has indeed tried to ambush the plaintiffs. 

51.  To make matter worse, there was no cross-examination of Ying on whether, and if so when, his parents had returned to live in Hong Kong.  The evidence clearly suggests that at some stage they had returned to live in Hong Kong (see, eg, para 23 above).

52.  On the rental payment, although there is some cross-examination by Mr Ma of Ying, Mr Koo did not cross-examine Wo to properly explore his allegation in this regard.  Such omission was no doubt attributable to the fact that he was not aware of the point now taken. 

53.  In light of the unfairness, I have no hesitation in disallowing this argument.

54.  In any case, I see no substance in the argument.  Despite the general nature of Ying’s evidence on the payment of rent, I see no reason not to accept it.  Such evidence is inherently probable. Why would his parents not collect the rent for the Land?  Also, the rent was very modest, and why would Cheung not paid his rent? 

55.  The burden is squarely on Wo to persuade the court with proper evidence that no rent was paid under the tenancy in question. I do not accept that there is such evidence.

56.  Further, I agree with Mr Koo that the evidence of Ms Lai suggests that rent was indeed paid by Cheung until he became ill.

Conclusions

57.  For these reasons, I uphold the plaintiffs’ case and reject that of Wo.  Judgment should be given to plaintiffs.  I make an order for vacant possession of the Land and award damages for trespass in the sum of HK$1,500 per annum (the quantum is agreed by the parties) payable from 7 March 2013 until vacant possession.  The counterclaim is dismissed.  I make an order nisi that the costs of this action and the counterclaim be to the plaintiffs, to be taxed if not agreed.  Wo’s own costs be taxed in accordance with Legal Aid Regulations.

58.  Wo and his family will have 3 months from the date hereof for the delivery of vacant possession (agreed by Mr Koo).  In addition, I will grant an order for the removal of the personal properties of Wo and his family.  The plaintiffs should produce an appropriately drafted judgment for the approval of the court.

59.  Lastly, I thank counsel for their assistance.