YU KIT CHIU AND OTHERS v. CHAN SHEK WOO (陳錫湖) t/a “陳潮昌士多”

CACV 137/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 137 OF 200

(ON APPEAL FROM DCCJ No. 5488 OF 2003)

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BETWEEN

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J U D G M E N T

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Hon Cheung JA :

1.  The plaintiffs are the executors of Yu Ki Cheung (‘the deceased’) who was the registered owner of the property known as Lot 994 RP and Lot 995 RP in DD 115, Yuen Long. The property was originally known as Lot 994 and Lot 995 in DD 115 but because of the resumption by the Government of part of the land in these two lots, the property is now known by its present description.

2.  The plaintiffs on 19 September 2003 commenced proceedings against Chan Shek Woo (陳錫湖) (‘Mr. Chan’) claiming that he had entered Lot 994 RP (‘the site’) on 1 July 1997 without the consent of the plaintiffs and had taken possession of it.  The plaintiff sought an order for possession and damages for trespass against Mr. Chan.

3.  On 3 August 2007, the plaintiffs amended their statement of claim and claimed that Wong Pui was the agent of the deceased and he had granted a licence to Mr. Chan to occupy the site.  The plaintiffs were not aware of the exact date of the licence but it was granted on a date prior to 28 October 1978.  Upon death of the deceased on 18 June 1980 a new licence was granted by the plaintiffs to Mr. Chan.  On 4 July 2002 the new licence was determined by a notice issued by the plaintiffs’ solicitors demanding recovery of the site from Mr. Chan.

4.  Mr. Chan who is now represented by his guardian ad litem (guardian for the legal proceedings) claimed that he has been in possession of various parts of Lot 994 RP well before 1962 and that the right of the plaintiffs to recover possession thereof at the time of the issue of the writ has been time-barred by the operation of the Limitation Ordinance (Cap. 347).  Mr. Chan sought, among other things, in his counterclaim, a declaration that he has been in adverse possession of the site for more than 20 years before the commencement of the action.

5.  The case was tried by H H Judge Mimmie Chan who found for the plaintiffs.  The defendant appeals.

Finding by the Judge

6.  The Judge identified the issues for determination as follows :

(1) whether Mr. Chan has been in possession of the site for more than 20 years next before September 2003 i.e. commencement of the present action;

(2) whether Mr. Chan had been in possession of the site under licence by or with the consent of the registered owner;

(3) whether Mr. Chan has the intention to possess the site to the exclusion of the world at large, including the registered owner;

(4) the amount of damages payable by Mr. Chan for his occupation of the site, if adverse possession is not established.

Finding by the Judge

How long has Mr. Chan been in possession?

7.  It is not disputed that Mr. Chan and his family have occupied the site and had erected structures on it for use as a residence, for raising chickens and pigs initially and later for the operation of a grocery store.  Mr. Chan claimed that he first built a wooden hut on the site in 1962.

8.  The Judge found that by the end of 1965, Mr. Chan would have built a wooden hut at the site with the intention of providing accommodation for his family.  The site was in the exclusive possession and occupation by Mr. Chan and his family by May 1967, which is more than 20 years before September 2003.

Was Mr. Chan in possession with the consent of the owner?

9.  The Judge disagreed with the plaintiffs’ contention that Wong Pui had granted a licence to Mr. Chan to occupy the site in 1962.  She, however, found that Mr. Chan did not have the intention to possess the site by reason of his acknowledgment in 1970 that the owner of the site was the deceased.

10.  In any event the Judge found that Mr. Chan’s use and occupation of the site after 1985 and 1986 was with the consent and permission of the plaintiffs.

Did Mr. Chan have the intention to possess the site to the exclusion of the owner?

11.  The Judge found that Mr. Chan has not discharged his burden of proving that he has the requisite intention to dispossess the owner.

Damages payable by Mr. Chan

12.  The Judge found that the plaintiffs were entitled to recover mesne profits from Mr. Chan in the sum of $593,911 commencing from 4 July 2002 when they first demanded recovery of the site up to 24 February 2010 (last date of trial) and thereafter at $6,900 per month until delivery of vacant possession of the site.

Limitation Ordinance

13.  When a person invokes adverse possession to defeat the title of the paper owner he does so by invoking the provisions of the Limitation Ordinance :

‘ Section 7(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:

Section 8(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

Section 13(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

Section 17 Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.’

14.  While the period of limitation under the current legislation is 12 years which is reduced from the previous 20 years, the case has been contested on the basis of a 20 years’ requirement.

Principles

15.  A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess animus possidendi.  This requirement has been authoritatively affirmed by the Court of Final Appeal in Wong Tak Yue v. Kung Kwok Wai & Another (No. 2) (1997-1998) 1 HKCFAR 55 which approved the principles enunciated by Slade J in Powell v. McFarlane (1979) 38 P & CR 452 and adopted in the subsequent line of cases such as R v. Secretary of State for the Environment ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v. Moran [1990] Ch. 623.

16.  The intention to possess involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of law will allow (per Slade J in Powell at pp 471-472).  The question of intention to possess is one of facts.

17.  In The Incorporated Owners of San Po Kong Mansion v. Shine Empire Limited (2007) 10 HKCFAR 588 the Court of Final Appeal, per Nazareth NPJ, stated that

‘ 7. The principles for the application of ss. 7(2), s.17 and the associated provisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v. McFarlane [1977] 38 P & CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and adopted by this Court in Wong Tak Yue v. Kung Kwok Wai (1997-98) 1 HKCFAR 55.’

House of Lords’ decision

18.  In J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419, the House of Lords affirmed the principles stated by Slade J in Powell.  Lord Browne-Wilkinson at paragraphs 32 to 38 referred to the history of the English Limitation Act (upon which the Hong Kong Limitation Ordinance is based) and discussed the confusion in this area of the law.  He held the problem was caused by the concept of ‘non-adverse possession’ engrafted by the common law and equity onto the early limitation statutes.  He held at paragraph 36, that

‘ 36 Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner. It is said that he has to “oust” the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; that the squatter’s use of the land has to be inconsistent with any present or future use by the true owner. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.’

19.  He continued to state at paragraph 37 that

‘ The taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act.’

and

‘there will be a “dispossession” of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have “dispossessed” the true owner for the purposes of [our section 8(1)] [paragraph 38].’

20.  Referring to paragraph 8(1) of Schedule 1 of 1980 Limitation Act [our section 13(1)], Lord Browne-Wilkinson held that the reference to adverse possession in that paragraph is directed not to the nature of the possession but to the capacity of the squatter [paragraph 35].

21.  The only matter that Lord Browne-Wilkinson said Slade J had erred was his reference in pages 476 and 478 to the necessary intention as being an ‘intention to own’.  Lord Brown-Wilkinson held that

‘ Once it is accepted that in the Limitation Acts, the word “possession” has its ordinary meaning (being the same as in the law of trespass or conversion) it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess: if a stranger enters on to land occupied by a squatter, the entry is a trespass against the possession of the squatter whether or not the squatter has any long term intention to acquire a title. [paragraph 42].

22.  Other than that, Lord Browne-Wilkinson expressly affirmed as correct Slade J’s formulation of the ‘intention to possess’ stated earlier at paragraph 15 of this judgment.

This correct approach

23.  Wong Tak Yue and The Incorporated Owners of San Po Kwong Mansion are binding on this Court.  However there is a difference in approach between Wong Tak Yue and JA (Pye).  In Wong Tak Yue it was held that a statement of the squatter that he was willing to pay rent to the owners if they had requested payment and that he was ready and willing to do so was inconsistent with the intention to possess which was different from the House of Lords’ determination of a similar issue.  Lord Browne-Wilkinson at paragraph 46 held that

‘ Once it is accepted that the necessary intent is an intent to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible, there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime.’

24.  The difference, however, is not germane to the present appeal.  It is not necessary for us to address this specific point.

Factual possession

25.  In the present case no issue arises on the length of possession of Mr. Chan.  As found by the Judge, he had built a wooden hut at the site by the end of 1965 and by May 1967 he had been in exclusive possession of the site.

Intention to possess

26.  What is seriously in dispute is Mr. Chan’s intention to possess in the light of the events that took place in 1970 and 1985/1986.  This has been the focus of the appeal.

1970 Modification of Tenancy

27.  On 8 May 1970 Mr. Chan signed a Modification of Tenancy (‘MOT’), the term of which is as follows :

「	MODIFICATION OF TENANCY
	Permit No.16222	16222
	Fee $	1700 (9 mths)

Owner's name

Yu Sui Tong

      In consideration of the payment of the fee of $17ºº ($22 ºº p.a.) the Crown hereby permits the modification of the Crown Lease or purchase agreement of Lot/s No/s. 994 & 995 in D.D. 115 to the extent only that the registered owner Yu Sui Tong may for the period between 1-4-70 and 3-12-70 maintain acc [accommodation] 23’ x 18’ x 13’ por [porch] 23’ x 10’ x 10’ kit [kitchen] 8’ x 7’ x 6’ lat. [lavatory] 4’ x 4’ x 6’ as indicated in red on a map marked (14) in file no. (illegible) 6222 in the District Office, Yuen Long subject to the following general and special conditions:

1. This permit may be cancelled at any time by the District Officer Yuen Long on one month’s notice being given.

2. This permit shall not be transferred.

3. This permit shall be produced whenever required by the District Officer Yuen Long or any officer deputed by him, and shall be returned to the District Office Yuen Long on expiry.

4. The signature of the permittee on the duplicate copy of the permit shall be taken to imply his acceptance of the conditions upon which the permit is granted.

5. If in the opinion of the District Officer Yuen Long a breach of any of the conditions has occurred he may cancel the permit forthwith.

SPECIAL CONDITIONS

」

28.  Mr. Chan signed the Modification of Tenancy (‘MOT’) and beneath his signature were the following words ‘ON BEHALF OF REGISTERED LAND OWNER’.

29.  The background relating to the MOT came from the evidence of Mr. Lam, a retired Principal Land Executive of the Lands Department who had worked in the District Lands Office in Yuen Long.  Mr. Lam said that in the 1970s, erection of squatter huts and structures on government and private land was very common. The practice of the District Office was to regularize these unauthorized structures by first registering them, and then issuing Permits in respect of those registered domestic structures on private land, and Crown Land Licences in respect of those structures on government land.  The practice was to issue the Permit to the genuine occupier of the land as the permit holder, because in most cases, the consent of the registered owner could not be obtained.  Often, the owner of the land could not even be located.  Even before the 1970s, it was and had still been the policy and practice of the District Office and District Lands Office to adopt the form of the Permit (or Modification of Tenancy), when recording Government’s agreement to change or modify the terms of a Crown Lease, and to make the owner of the land a party to such document. Mr. Lam accepted that this was done by either sending a letter and the relevant document to the land owner, through the occupier or otherwise, or by ensuring that the Permit, when signed, was signed by the occupier on behalf of the land owner.  Hence, a standardized chop was imprinted on the Permit under the signature of the Permittee to whom the Permit was issued, with the words : ‘ON BEHALF OF REGISTERED LAND OWNER’ appearing beneath the signature clause.

30.  The Judge referred to the evidence that the deceased was contacted by the Lands Office in 1970 when a Modification of Tenancy was issued to another occupier in the two lots in 1970.  Although the Judge said that the probabilities remain equal as to whether a similar approach was made to the deceased in respect of Mr. Chan’s occupation, she made no express finding that the deceased was so approached in the present case. 

31.  The Judge held that although Mr. Chan maintained that he did not understand the English contents of the Permit when he signed it, he is in law bound by the document to which he had put his signature – irrespective of whether he had bothered to read it, or to have it explained to him.  By the express provisions of the Permit, Mr. Chan acknowledged that the deceased was the owner of Lot 994 and Lot 995, that the deceased was permitted to maintain the structures specified in the Permit and, by signing the Permit, Mr. Chan was taken to accept the conditions of the Permit and at the same time acknowledged that he signed and accepted the Permit on behalf of the deceased as the registered land owner.

32.  The Judge rejected the submission of Mr. Hung, counsel for the defendant, that there should be a distinction, on the one hand, between an acknowledgment by Mr. Chan of the deceased as the owner, and, on the other hand, an acknowledgement by Mr. Chan that he was in possession of the site with the owner’s consent.  The Judge held that Mr. Chan’s acknowledgment in the Permit, reasonably construed by either the registered owner himself if he should come across the Permit, or by the Lands Office (as the evidence of Mr. Lam also suggested), or by any objective informed observer reading the Permit, can only mean that Mr. Chan, the Permittee, was maintaining the structures, and hence using the site and in possession of the site, for and on behalf of the registered owner.  No one could reasonably have come to the conclusion that the named owner on whose behalf Mr. Chan was purporting to act was being excluded.

33.  The Judge held that Mr. Chan was required by the process of the law to acknowledge the deceased as the owner of the site, and he chose so to do. Having so acknowledged, he should be bound by such acknowledgment, and such an acknowledgment to the whole world is clearly inconsistent with a professed intention to exclude the acknowledged owner.

The 1985/1986 event

34.  The Judge found that it was not in dispute that by December 1985, a Short Term Waiver (‘STW’) had been proposed by the Yuen Long District Lands Office to be granted in respect of the site, whereby the site was permitted to be converted from agricultural purposes to non-agricultural building purposes, and for Mr. Chan’s use of the shop to be continued on the site.  The STW was finally issued on 18 December 1986.  The plaintiffs claimed that this was granted with their consent, as evidenced by the letters dated 23 January 1985, 20 February 1986 and 10 March 1986 from their solicitors, Foo & Li, to the District Lands Office.  Mr. Chan denied knowledge of the issue of the STW in 1986, and further denied being a party to any correspondence between the District Lands Office and the plaintiffs.

35.  Mr. Lam’s evidence on the STW is that from 1980 to 1982 the District Office changed its policy and practice, and required the occupier of land to submit the written consent of the registered land-owner when applications concerning the land are made by the land occupier.  Since 1982, the District Lands Office further changed its policy and practice when dealing with applications for change of land use, such that an offer letter would be sent directly by the District Lands Office to the registered owner, with a copy to the occupier, and the Permit or STW in question would be issued in the name of the registered owner, instead of to the occupier.

36.  The letter of 23 January 1985 from Foo & Li stated that

‘ Re : Lot 994 R.P. in D.D. 115

Lot 995 R.P. in D.D. 115

We have instructions to act for Mr. Yu Kit Chiu and Dr. Yu Hon Chiu, owners of the above named lots, and refer to a recent telephone conversation between your Mr. Lai and our Mr. Foo.

We are instructed that our clients give their consent to the tenant Mr. Chan Sik Wo (陳錫湖) in his application for a temporary building licence for erection of building or buildings on the said lots.’

37.  Without going into details, as it is not necessary for the purpose of this appeal to do so, the District Lands Office, Yuen Long by a letter dated 17 December 1985 wrote to the plaintiffs with a copy to Mr. Chan, and offered a STW in respect of Lot 994 RP for payment of $4,313 per year.  The area covered by the STW was 78.3 sq m.  Mr. Chan then on 2 January 1986 wrote to the District Lands Office stating he would not pay the fee of $4,313.  He was prepared to stop using 400 sq ft of the store and he asked for a reduction of the fee.  He claimed that the owner of Lot 994 RP had never contacted him and he asked for the permit to be issued to him instead.

38.  Foo & Li by a letter dated 10 March 1986 informed the District Lands Office that they

‘ agree with the application of the tenant Mr. CHAN Sik Woo for a waiver in respect of an area of 35.96 sq. m. in Lot No. 994 R.P. in place and stead of the whole Lot 994 R.P. having an area of 78.30 sq. m. or thereabout.’

39.  Earlier Foo & Li had by a letter of 20 February 1986 agreed to pay the fee of $4,313 in respect of DD 994 RP.

40.  By a letter dated 11 March 1986 District Lands Office, Yuen Long offered a STWto the plaintiffs in respect of 35.96 m²of Lot 994 RP for a fee of $1,438.  The letter was also copied to Mr. Chan.  Eventually a STW was granted to the plaintiffs on 18 December 1986.

41.  The Judge held that Mr. Chan’s use and occupation of the site after 1985 and 1986 was with the consent and permission given by the plaintiffs as owners of the site and communicated to the District Lands Office.  The Judge stated that she made such a finding irrespective of whether or not the issue of the STW was initiated by Mr. Chan, and even if she should accept that Mr. Chan never approached the plaintiffs for their consent nor was a party or privy to the plaintiffs’ correspondence with the District Lands Office in connection with the issue of the STW.

42.  The Judge further held that as a result of the 1985/1986 events and the signing of the STW, a licence can be inferred from the circumstances, notwithstanding that the licensee was unaware of the circumstances (London Borough of Lambeth v. Rumbelow, unrep. Ch. D. 25 January 2001, Lexis Nexis Transcripts).  It followed that as Mr. Chan occupied the site as a licensee or otherwise with the permission of the plaintiffs, he cannot be in adverse possession.

My view

The 1970 MOT

43.  The issue that calls for determination narrows down to the fine point whether by signing the MOT ‘On Behalf of Registered Land Owner’, Mr. Chan had, in the words of the authorities, the ‘intention, in his own name and on his own behalf, to exclude the world at large, including the deceased if he himself was not the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.’ 

44.  While bearing in mind the backdrop of the case which happened in rural New Territories in 1970 and Mr. Chan was a man of humble background, the law is that a man is taken to understand what he had signed.  Because of his infirmity, Mr. Chan was unable to give evidence on his understanding of the MOT he signed in 1970.  On that basis it has to be taken that he understood the contents of the MOT and that he signed it on behalf of the deceased.  In Powell, Slade J held that where the trespasser’s use of land was equivocal, the onus is on him to ‘adduce compelling evidence’ that he had the requisite intention to possess (see p. 476).  The document spelt out that in consideration of the deceased paying the requisite fee, the head lessor modified the Crown Lease by allowing him to maintain the structures on the land.  After due consideration, I agree with the Judge’s analysis of the position.  I am of the view that the signature of Mr. Chan on behalf of the deceased did not merely acknowledge the deceased’s ownership of the land but was also an acknowledgment of the deceased’s possession of the land.  The erection of four structures on the land together with their use clearly were matters concerning possession of the land and not simply ownership.  The head lessor’s permission to allow the four structures to be maintained continuously was also related to the issue of possession because they related to how the land was to be used and not merely ownership of the land.  By acknowledging that he agreed to the terms of the modification on behalf of the deceased, Mr. Chan was acknowledging that he was possessing the land on behalf of the deceased and not to his exclusion.  In my view Mr. Chan was not able to establish that he had the intention to possess the land in 1970 or thereafter when he had since 1970 paid the permit fees continuously.  He did so even up to 2005 which was even after the plaintiffs had commenced proceedings against him. 

45.  In Lam Ngok Ching and others v. Tsang Yuk Ming (HCA 1192/2004) Suffiad J reached a similar conclusion on the effect of a Modification of Tenancy.

The 1985/1986 event

46.  I do not consider that the events in 1985/1986 changed in any way the position that Mr. Chan did not have the intention to possess the land. 

47.  The correspondence between the District Lands Office and the plaintiffs was copied to Mr. Chan, he must have been aware that the plaintiffs were actively engaged in the discussion of the fees required by the STW.  Although in his letter dated 2 January 1986 to the District Lands Officer, Mr. Chan requested the permit to be issued to him on the ground that the owner did not have any contact with him, eventually the permit was not issued to Mr. Chan but to the plaintiffs.  Despite this, Mr. Chan continued to pay the fees.  The STW was again in respect of a matter concerning the possession of the land, namely, the use of a built up area of the land.  The payment of fees by Mr. Chan must be a continuing recognition of the possession of the land by the plaintiffs which is inconsistent with Mr. Chan having the intention to possess. 

48.  Although the STW only referred to a portion of the land, it did not mean that Mr. Chan’s acknowledgment is confined only to that portion.  That portion was used for the calculation of the fees but the unauthorized use of that portion would result in the head lessor re-entering the whole of the land.  I do not see how Topplan Estates Ltd v. Townley [2004] EWCA Civ 1369 cited by Mr. Hung would assist Mr. Chan.  In that case, on the facts, the area affected was defined and the resumption by the owner of possession of part of the land previously possessed by the squatter did not result in resumption of the whole part.

49.  It is sufficient to dispose of the appeal on this basis.

Implied licence

50.  The Judge went one step further and held that the possession by Mr. Chan after 1986 was with the consent and permission of the plaintiffs.  She referred to London Borough of Lambeth v. Rumbelow, a decision of Etherton J of the English High Court.  Etherton J relied on the decision of Smith J in Regina (Beresford) v. Sunderland City Council [2001] 1 WLR 1327.  The latter case was concerned with the Commons Registration Act 1965.  Section 22(1) which provided that,

‘ (I) In this Act… “town or village green” means land…on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports or pastimes as of right for not less than 20 years.’

51.  The issue there was concerned with whether a licence or permission inferred from the circumstances of the case may be sufficient to defeat a claim to user as of right.  Smith J held that

‘ 43. In a case where there has been no express permission, the decision-maker who has to consider whether user (which satisfies the requirements as to length of time etc) has been as of right should ask himself whether a reasonable person (with the knowledge which is available to him on the evidence) would have appreciated that the user was with the permission of the landowner or only with his acquiescence. In general, the history of the land and its status will be important as will be such factors as the provision of any facilities on it. In practice, if permission is to be shown, there will have been some overt act by the landowner or demonstrable circumstances from which the inference can be drawn, although it may well be that the users were unaware of these matters.’

52.  The decision was reversed by the House of Lords [2004] 1 AC 889 on the facts.  Lord Walker of Gestingthorpe held that,

‘ 83 In the Court of Appeal Dyson LJ considered that implied permission could defeat a claim to user as of right, as Smith J had held at first instance. I can agree with that as a general proposition, provided that the permission is implied by (or inferred from) overt conduct of the landowner, such as making a charge for admission, or asserting his title by the occasional closure of the land to all-comers. Such actions have an impact on members of the public and demonstrate that their access to the land, when they do have access, depends on the landowner’s permission. But I cannot agree that there was any evidence of overt acts (on the part of the city council or its predecessors) justifying the conclusion of an implied licence in this case.’

53.  Returning to Rumbelow, which was a limitation case, Etherton J held that

‘ I conclude from the judgment of Smith J that in order to establish permission in the circumstances of any case two matters must be established. Firstly, there must have been some overt act by the land owner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given. It is, however, irrelevant whether the users were aware of those matters… Secondly, a reasonable person would have appreciated that the user was with the permission of the land owner.’

54.  In BP Properties Ltd v. Buckler [1987] EWCA Civ 2 (Decision 31/7/1987), the English Court of Appeal held that a unilateral licence (i.e. one granted by the landowner to the occupier without the occupier expressly accepting it or rejecting it and without consideration) may stop the time from running.

55.  I would refrain from expressing a view on these cases as the issue of implied licence in the context of limitation claims has not been fully analyzed or argued in this case.  I would also refrain from deciding whether the consent by the plaintiffs to the grant of a STW constituted an implied licence to Mr. Chan to occupy the land.

Conclusion

56.  Accordingly the appeal is dismissed with costs to the plaintiffs.  The defendant’s own costs are to be taxed in accordance with Legal Aid Regulations.

Hon Yuen JA :

57.  I agree with the judgment of Cheung JA.

Hon Fung J :

58.  I agree.