CHAN TING ON v. MULTI SKILL INVESTMENTS LTD

DCCJ 2786/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2786 OF 2013

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DECISION

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Introduction

1.  By my judgment handed on 20 June 2017, I dismissed both the claim of the plaintiff and the counterclaim of the defendant.

2.  By a summons dated 13 July 2017, the plaintiff sought leave to appeal against the dismissal of the plaintiff’s claim.

Legal principles

3.  Section 63A(2) of the District Court Ordinance provides:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that…

(a) the appeal has a reasonable prospect of success;

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4.  The test of whether an appeal has a reasonable prospect of success under the new statutory provision is the same test as applied before the amendment to Cap 336, ie whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal as is laid down in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd, HCMP357/2011, 8/7/2011, unreported.

5.  Where the appeal is against the exercise of a discretion, the appellant ought to demonstrate that the decision was plainly wrong, or that the trial judge has taken irrelevant matters into consideration or has ignored relevant matters: see SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37 at 48.

The intended grounds of appeal

6.  8 grounds of appeal are put forward by Mr Erik Shum, counsel for the plaintiff.  They can be broadly divided into 2 categories and are to be dealt with in this manner.

Exclusive physical possession

7.  Mr Shum submitted that there was sufficient evidence to support exclusive occupation by the plaintiff, the exercise of considering the steps taken by the plaintiff to exclude others from the disputed land is superfluous and misguided.  Mr Shum submitted that the observation of Lam VP in Gotland Enterprises Ltd v Kwok Chi Yau and others, CACV 260/2014, 19/1/2016, unreported, about the need to see what additional steps were taken was made in the context of the case of only growing fruits on a piece of open land.  In his oral submission, Mr Shum further submitted that the legal principle that can be derived from Gotland (supra) is that if there is only one squatter, in the absence of the owner using the land, whether there is complete or partial enclosure is insignificant.  Mr Shum cited Law Yuk Fong v Man Chung Wai, HCA 2195/2015, 16/1/2017, unreported; Fan Chi Ping v The Estate of Lei Wing Long & Anor, HCA 913/2011, 31/7/2012, unreported; Lee Ah Tim v Tse Lung Yim & Anor, DCCJ 529/2013, 22/10/2015, unreported and Tsoi Ping Hung v Cheung Chow Lan [2015] HKLRD 1122 as examples of cultivation of the land without enclosure is sufficient to establish physical possession.

8.  Firstly, Gotland (supra) is not about growing fruit trees on a piece of open land.  It was the analogy drawn by the trial judge.  The land involved consisted of 2 ponds together with the bunds surrounding the ponds.  None of the squatter’s family had resided on the disputed land.  The land was only used for business activities, namely, fish farming and duck rearing.  There was no evidence of fencing on the land.  In this respect, it is very similar to the situation of the present case where the family of the plaintiff was residing at Lot 1268 and they used the disputed land for producing produce for sale only.

9.  In my view, Gotland (supra) is a classic example of how the court should apply the legal principle in relation to factual possession.  However, I am unable to say that it is the authority of the proposition propounded by Mr Shum.

10.  In considering the issue of factual possession, the court is duty bound to look into the evidence adduced by the squatter.  As possession must be exclusive, this is where the consideration of the steps taken by the squatter to exclude others from the land comes into play.  But the steps to be taken by the squatter are not confined to enclosure as it is not the absolute requirement.  However, the court must be satisfied that the steps taken by the squatter are sufficient to serve the purpose of excluding others from the land.

11.  In the present case, the disputed land is an open piece of land with a ditch as natural barrier on its north and west sides. The remaining sides are adjoined to other land without natural barrier.  In my judgment, the planting of poles alone at the southern end was not sufficient to exclude others from the disputed land.  The presence of the poles alone without more can be meaningless to people especially those unfamiliar with the area.  To make known to the world at large that other people are excluded from the disputed land, something more has to be done.  The plaintiff had been untruthful to the landscape situation on the east side of the disputed land.  He alleged that it was blocked by vegetation and therefore nothing is needed to be done.  However, on examination of the aerial photographs, a rectangular shape which is compatible with cultivation activities being done thereon was seen on the south-western side of the adjoining Lot 1247 at least up to 1999.  That being the case, the plaintiff should do something in order to differentiate his own field from those of the others.  To this, the plaintiff had attempted to brush it away by telling an unsubstantiated lie.  Finally, the plaintiff had built a wooden bridge across the ditch to facilitate access to the disputed land.  Similarly, the presence of the wooden bridge without a gate or at least a sign making known the intent of the plaintiff is tantamount to an invitation to the whole world access to the disputed land rather than excluding the world at large. In the light of the above, I am unable to find that the plaintiff had established exclusive possession of the disputed land.

12.  Of the 3 cases Mr Shum sought to rely on as examples of cultivation of land without enclosure is sufficient to establish physical possession, Fan Chi Ping (supra) and Lee Ah Tim (supra) were decided prior to Gotland (supra).  Law Yuk Fong (supra) was decided ex-parte and Gotland (supra) was not referred to.  For reasons I set out at paragraph 64 of my judgment, Tsoi Ping Hung (supra) is clearly distinguishable.  In any event, each case is decided on its own facts. I do not regard those cases are applicable to the present case.

Animus possidendi

13.  The complaints of Mr Shum are two-fold.

Demand for rent

14.  Mr Shum submitted that I have failed to apply the principle in Szeto Chun Keung v Kung Kwok Wai David & Anor [1997] 1 WLR 1232.  If the principle is applied, before and after the incident of paying rents to To the plaintiff was squatter while during the years when rents were mistakenly paid to To, To was the adverse possessor and all the periods were in succession.  The plaintiff’s case of adverse possession is not affected by the said incident in law.

15.  Szeto Chun Keung (supra) is the authority on the effect of possession adverse to the paper owner by the Crown by mistake.  The Privy Council held that for the purpose of the Limitation Ordinance, so long that there had been continuous adverse possession for the period of limitation, the rights inter se of the successive persons (including the Crown) were irrelevant.  Hence, the principle is relevant when the issue of successive possession arises.  It must be remembered that it is the plaintiff’s case that he has been in continuous and exclusive possession of the disputed land since 1979/1980.  It is not the plaintiff’s case that he was in successive possession of the disputed land with To.  Therefore, it is difficult to see that consideration of the Szeto Chun Keung principle is necessitated.

16.  In my view, the act of paying rent to To is relevant to the issue of animus possidendi.  For that reason, it was discussed and analysed at paragraphs 67 and 68 of the judgment.

Digging of ditch

17.  Mr Shum complained that I have placed weight to the incident of ditch digging in 2007, which was outside the alleged period of adverse possession.  Further, Mr Shun submitted that I have erred in relying on the incident in 1989 of ditch digging to find that the plaintiff had no intention to possess because it only affected a very small portion at the north eastern corner of the disputed land which was beneficial to the plaintiff’s cultivation activities by enhancing drainage.  Secondly, the works only lasted for a short period of time.

18.  It is suffice for me to say that the reaction of the Tang LN to the digging of ditch by some strangers which were close to the field that she was farming in 1989 and 2007 is relevant to the mentality of the plaintiff’s family as far as animus possidendi is concerned.  With respect, I do not see any merit in Mr Shum’s submission.

19.  Lastly, Mr Shum submitted that the animus possidendi of the plaintiff in relation to the area where the digging of ditch took place did not affect the plaintiff’s animus possidendi in relation to the remainder of the disputed land.  

20.  The burden is on the plaintiff to prove that he had the intention to possess the disputed land.  There is no halfway house.  In any event, after considering the issue, I have come to the conclusion that the plaintiff had failed to discharge the burden.

Conclusion and order

21.  For the above reasons, I am not persuaded that the plaintiff has demonstrated a reasonable prospect of success, nor do I see there is any other reason in the interests of justice that the appeal should be heard.

22.  The plaintiff’s application is therefore dismissed.

Costs

23.  Costs should follow the event.  I order that the plaintiff shall pay the defendant the costs of the summons with certificate for counsel, to be taxed if not agreed.

24.  The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.