CHU KWOK WAI v. TANG WING TUNG ANTHONY

DCCJ 3267/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3267 OF 2011

-----------------------------------

-----------------------------------

-----------------------------------

JUDGMENT

-----------------------------------

Introduction

1. This is an adverse possession claim by the plaintiff against the defendant. The dispute concerns a piece of land in Yuen Long, being Section B of Lot No 604 in Demarcation District 109, Yuen Long, New Territories, Hong Kong (“the Property”).  The defendant is the registered owner of the Property.  The plaintiff claims, inter alia, the following relief against the defendant:-

(1)   a declaration that the defendant’s title to the Property has been extinguished;

(2)   a declaration that the plaintiff has acquired a possessory title to the Property; and

(3)   an order that the plaintiff be registered as the owner of the Property.

2. The defendant challenges the plaintiff’s claim of possessory title and refutes the allegation that the defendant’s legal title to the Property has been extinguished. The defendant also counterclaims for an injunction to restrain the plaintiff from entering the Property and for damages.  The defendant’s claim for damages was, however, formally abandoned during closing submissions at the hearing on 11 March 2013. 

3. The Property is a piece of agricultural land.  It has an area of about 1.12 acres or 4,532 square metres or 48,782 square feet.  There is a river running from the south, along the southwest, making a turn at the west and then running along the northwest of the Property.  There is an alluvial plain (government land of about 4,000 square feet) at the west/northwest and a pathway at the northwest of the Property.  The pathway runs through the main entrance of the Property at the northwest and then into the Property.  The Property is known to the defendant and his family (“the Tang Family”) as the “Lychee Garden”.

4. The defendant is the son of one Madam Chan Lin Chi (“Madam Chan”) whose late husband is Mr Tang Man Sit (“Mr Tang Senior”). 

5. On 28 October 1970, Madam Chan purchased the Property for HK$30,000.  By an Assignment dated 8 January 1996 (“the Assignment”), Madam Chan assigned the Property to the defendant at the sum of HK$500,000.  Since then, the defendant has become the registered owner of the Property. 

6. In 1962, the plaintiff came to Hong Kong from the mainland China.  In around April 1975, the plaintiff, through the introduction of his clansman, Mr Chu Kuen, became acquainted with Mr Tang Senior.  It was Mr Tang Senior who introduced the plaintiff to the Property for the plaintiff to reside there.  At the beginning, the plaintiff occupied the Property as tenant and later as a bare licencee of Madam Chan.  It is the plaintiff’s case that since the mid-80s, the plaintiff has had the intention to possess the Property.  It is further the plaintiff’s case that by virtue of the Assignment, his bare licence to occupy the Property was automatically determined and he started to occupy the Property as a squatter on 8 January 1996 (being the date of the Assignment) and that the limitation period of 12 years started to run against the defendant on 8 January 1996. 

7. The defendant defends the plaintiff’s claim by, in the main, contending that since 8 January 1996, the plaintiff has been occupying and using the Property under an oral licence granted by the defendant via Madam Chan or an implied licence granted by the defendant.  Further, the defendant contends that the defendant has exercised his right as the owner of the Property since 8 January 1996 so that the plaintiff was never in factual possession of the Property.  By a letter dated 10 August 2011 to the plaintiff’s solicitors, all licence and/or permission granted to the plaintiff to use and occupy the Property were revoked forthwith and the plaintiff was asked to vacate the Property, but the plaintiff still stayed on as trespasser. 

AGREED ISSUES

8. The following are the agreed issues in dispute submitted and filed in court by the parties.

(1)   Did the plaintiff have factual possession of the Property or any part thereof latest since 1996, in particular did the plaintiff enclose the Property? (“the 1^st issue”)

(2)   When did the plaintiff cease to pay rent/licence fee to Madam Chan, in particular, was it about 1984 (as the plaintiff alleges), or about 1995 (as the defendant alleges)? (“the 2^nd issue”)

(3)   Did Madam Chan continue to permit the plaintiff to use and occupy the Property after the Assignment? (“the 3^rd issue”)

(4)   If the answer to (3) is in the affirmative, whether Madam Chan was acting as agent for or on behalf of the defendant, and whether that was to the knowledge of the plaintiff? (“the 4^th issue”)

(5)   Did the defendant and the Tang Family use and enjoy the Property as and when they pleased after 1996, in particular by reference to the various acts referred to in paragraph 18 of the Amended Defence and Counterclaim, or whether those which the plaintiff had knowledge were with the consent of the plaintiff? (“the 5^th issue”)

(6)   In any event, what was the effect, if any, of those acts in particular whether any of them prevented the plaintiff from being in possession of all or any part of the property insofar as (a) they were known to the plaintiff, and (b) they were unknown to the plaintiff? (“the 6^th issue”)

(7)   Did the plaintiff have the necessary animus possidendi?  If so, for which period? (“the 7^th issue”)

RELEVANT LEGAL PRINCIPLES

9.  The burden of proof is on the plaintiff to establish on a balance of probabilities that the evidence is sufficient to establish both factual possession and an intention to possess (animus possidendi). 

10. Factual possession signifies an appropriate degree of physical control. Everything must depend on the particular circumstances, but broadly, what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else had done so [see: Powell v McFarlane (1979) 38 P&CR 452 at 470-471 per Slade J].

11. An intention to possess is an intention to exercise such custody and control 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 processes of the law will allow [see: Powell v McFarlane, Supra, at 471-472; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at paragraph 43; Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55 at 68 E-J).

12. The question of intention to possess, as with any other question of intention, is one of fact.  Whether it can be established depends on an assessment of all the circumstances in a particular case [see: Wong Tak Yue v Kung Kwok Wai (No 2), Supra,at 69A].

13. The onus of proof on the plaintiff is a heavy one.  Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the court should approach them with some scepticism.  The court would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve.  Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the court would usually accord to them considerable weight [see: Wong Tak Yue v Kung Kwok Wai (No. 2), Supra, at 69AB-C].

14. The heavy onus on the plaintiff has been described by Slade J in Powell v McFarlane, Supra, at page 472 as follows:-

“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”

The benefit of any doubt should be given to the owner. 

DISCUSSION

CREDIBILITY OF THE PLAINTIFF AS A WITNESS

15. Obviously, the plaintiff’s case depends heavily on the credibility of the plaintiff as a witness.  I have had the opportunity to closely observe the demeanor of the plaintiff as a witness giving evidence at trial.  In my view, the plaintiff is not a reliable witness.  His answer to many of the questions during cross-examination had been evasive.  At times when he could not answer the questions, he would rely on his age and forgetfulness.  There are many instances of such occurrence.  I shall only list out some of the more significant examples by way of illustration. 

16. On the issue of intention to possess, the evidence given by the plaintiff was itself inconsistent and was also inconsistent with the plaintiff’s pleaded case.  The plaintiff in his oral evidence emphasized that  he had manifested his intention to possess the Property without paying rent in about 1984 to 1985 and he repeatedly spoke of the flooding incident at around that time.  However, under further cross-examination, the plaintiff in no uncertain terms confirmed that he had made rental payment to Mr Tang Senior in about 1990, and since Mr Tang Senior died in 1991, he had paid Madam Chan instead in about 1991.  Despite the effort by counsel for the plaintiff to expunge this in re-examination, it was clear that the plaintiff had again made use of his old age as a shield to defend that he was wrong in recollecting his memory. 

17. In addition, the plaintiff’s evidence was also inconsistent with the pleaded case in that the Statement of Claim clearly stated that there was a bare licence between the plaintiff and Madam Chan between 1984 and 1996.  Although the plaintiff had signed a Statement of Truth for the Statement of Claim, in his oral evidence he blamed his own lawyer and insisted that he was not under any type of “permission” from Madam Chan because he had not seen her since 1984/1985. 

18. The plaintiff maintained this position by challenging the authenticity of the date stamped on a photograph when it was shown to him (Exhibit D3).  The plaintiff nevertheless admitted that the photograph bearing a date stamp of 23 June 1988 displays an image of Mr Tang Senior, Madam Chan, their daughter and Mr Tang Senior’s “second wife” with the plaintiff standing on a ladder underneath a tree during a “lychee gathering” of the Tang Family.  The contemporaneous evidence of Exhibit D3 precisely illustrates the plaintiff’s role as a guard/caretaker of the Property and the lychee trees, and flatly contradicted the plaintiff’s case that he had not seen Madam Chan after 1984/1985. 

19. The plaintiff made an effort to establish that he had not made payment to either Mr Tang Senior or Madam Chan since 1984/1985.  The plaintiff asserted that there was one occasion in around 1984/1985 when he intended to pay rent to Madam Chan at a restaurant in Yuen Long. 

20. The plaintiff’s account of this incident is clearly illogical and hard to accept in that the plaintiff admitted that he had enough money at the time to pay the rent and logically payment would require one action and one action only: ie, to take out the money from his pocket and put it in the hands of Madam Chan.  The plaintiff, however, defended his story by insisting that he did not pay Madam Chan because she would not sit down to have tea with him.  I find the plaintiff’s account quite incredible. 

21. In paragraph 20 of his Witness Statement, the plaintiff referred to a telephone call from one of Madam Chan’s daughter to the plaintiff in 2004.  At the time, the plaintiff and his wife were visiting their daughter in the United Kingdom.  The alleged telephone call was made to the plaintiff’s daughter’s home in the United Kingdom.

22. The plaintiff was asked why the Tang Family would have record of his daughter’s telephone number in the United Kingdom.  The plaintiff’s first response was that he could not remember.  However, upon further cross-examination, the plaintiff suddenly recalled that his daughter might have given her telephone number to Mr Tang Senior during one tea gathering when they met up co-incidentally.  The plaintiff then said the gathering took place 20 years ago, but in fact, Mr Tang Senior died some 22 years ago in 1991.  The plaintiff again used his old age as excuse for his faded memory. 

23. All in all, from my observation of the plaintiff’s performance in the witness box, he gave a distinct impression that he only memorized the version he was supposed to give in court, but when faced with questions which challenged his logic, the plaintiff would become extremely evasive and, from time to time, even gave responses that were against his own interests. 

24. Bearing in mind the warning given by the Court of Final Appeal in the Wong Tak Yue’s case (see: paragraph 13 above) that I should approach his evidence with “some scepticism”, I have no hesitation in rejecting, on a balance of probabilities, the plaintiff’s evidence insofar as the same is inconsistent with or contradict the evidence of Madam Chan. 

THE 1^st ISSUE: DID THE PLAINTIFF HAVE EXCLUSIVE POSSESSION OF THE PROPERTY SINCE 1996?

25. This is a rather unusual claim of adverse possession where the plaintiff alleges to have factual possession of the Property yet the use of the Property has undoubtedly been shared between the plaintiff and the Tang Family, notwithstanding some factual disputes of the particulars of the events in question.  Various incidents from 1996 onwards proved that the defendant as owner of the Property freely enjoys the use of the Property at his discretion, and other members of the Tang Family also used the Property under the permission of the defendant. 

Lychee gatherings of the Tang Family

26. I accept that since around 1974/1975 until around 1997/1998, various lychee gatherings had been held at the Property by the Tang Family although denied by the plaintiff.  Oral testimonies from the defendant, Madam Chan, Woo Sai Cheong 胡世昌 (a brother–in–law of the defendant), Cheng King Hang 鄭景恒 (brother-in-law of the defendant), Tse Wing Kin 謝永堅 (another brother-in-law of the defendant) (“DW5”), and Tang Wing Hong 鄧永康 (a brother of the defendant) all supported that the lychee gatherings of the Tang Family had been held until 1997/1998 (although the exact timing of such gatherings were not certain).  They could all enter the Property freely without any interference from the plaintiff. 

27. Of particular importance is Exhibit D3 already alluded to above.  This photograph clearly shows one of the Tang Family lychee gatherings and also shows the presence of Mr Tang Senior, Madam Chan, one of the defendant’s sisters, Mr Tang Senior’s second wife as well as the plaintiff himself.  During his oral evidence, the plaintiff admitted that the person depicted in the photograph is himself though he claimed that the date on the photograph was faked.  This photograph obviously contradicts the plaintiff’s position in a very material regard.

Storage of bamboo poles in the Property by DW5 since 1997

28. It is the plaintiff’s case that he gave the key to the Property to DW5 in 2004 for the storage of bamboo poles.  However, during his evidence, DW5 was able to point out various structures in the aerial photographs which he put up since 1997.  I agree that all these structures support the fact that DW5 has been storing bamboo poles in the Property from 1997 onwards. 

29. DW5’s version is corroborated by the evidence given by Tsang Bing Yin 曾炳賢 (“DW2”) who is the supplier of plastic straps for the bamboo poles for DW5.  DW2 testified that he had kept computer records of delivery details since the early days of his business in 1997/1998, and he could not therefore be mistaken on details of the delivery location.  I have no difficulty in accepting DW2’s evidence as being truthful and reliable. 

30. In the premises, I reject the plaintiff’s evidence that the key to the Property was only handed over to DW5 in 2004.

Storage of Mercedes hard top cover by the defendant in the Property

31. I accept that such act was not done by the permission of the plaintiff, but rather the defendant was using the Property at the material times as owner of the Property.

The placing of the pair of stone lion statues in the Property

32. I accept the evidence of Woo Sai Cheong and Tang Wing Hong that it was they who decided the location for placing the stone lion statues as relatives of the owner (the defendant) rather than the plaintiff.

Visit of the Property by Lam Hei Sing林希聖 (“DW7”)

33. I have no difficulty in accepting the evidence of DW7, an independent witness, that he was led by Madam Chan to the Property in 2004 to see if the Property would be a suitable location for setting up an anti-drugs center.  During the visit, they walked freely throughout the Property with the plaintiff standing-by on the side. 

Viewing of Chinese religious ceremony in 2005 by the defendant and Cheng King Hang (“DW4”)

34. DW4 testified that in November 2005, the defendant and his family went to the Property to watch the Chinese religious ceremony held near the Property. There is a ring of truth to his evidence when DW4 said that he was certain of the timing as the Chinese religious ceremony in question is held only once every ten years.  Regarding this event, the defendant also testified that they both parked their cars inside the Property gaining access using his own key to the Property. 

Organic farming activities of Lo Kin Keung (former teacher of the nephew of the defendant, Lam Ka Wang)

35. I accept that in 2010, Lo Kin Keung and Lam Ka Wang conducted on the Property trial organic farming with the permission of the defendant and without being stopped by the plaintiff who, together with his wife, provided assistance to Lo Kin Keung and Lam Ka Wang. 

36. From the matters set out in paragraphs 26 to 35 above, there was simply too much continuous use of the Property by the defendant and the Tang Family that makes the plaintiff’s allegation of factual possession of the Property highly unconvincing.  I have no hesitation in rejecting the same. 

37. In Cheung Chung Yan v Chan Man Kwong, CACV 268/2003 (Judgment of the Court of Appeal dated 12.02.04), at paragraph 18(1), Ma CJHC (as he then was) had this to say:-

“…… where the true owner of the Land regularly (at least occasionally) visited it (and indeed used it by growing vegetables and mowing the grass), not to mention the constant affirmations of ownership, not much significance is to be placed on the fact that the defendants enclosed the Land. Such enclosure was consistent with the exclusion of the world at large except the true owner”.

38. In the circumstances, not much significance should be placed on the alleged enclosure of the Property by the plaintiff due to the frequent visits to the Property by the defendant and/or his relatives, siblings and other visitors.

THE 2^nd ISSUE: DID THE PLAINTIFF CEASE TO PAY RENT/LICENCE FEE IN ABOUT 1984 OR ABOUT 1995?

39. In this regard, the plaintiff has given self-contradictory and unreliable evidence during trial (see: paragraphs 16 to 20 above). 

40. The fact that the plaintiff had been paying rent to Madam Chan at least up to the period around 1993/1994 is also substantiated by the rental records tendered by Madam Chan as Exhibit D5, which I accept as a contemporaneous and truthful record. 

THE 3^rd and 4^th ISSUES: DID MADAM CHAN CONTINUE TO PERMIT THE PLAINTIFF TO OCCUPY THE PROPERTY AFTER 1996 AS AN AGENT OF THE DEFENDANT?

41. In paragraph 16 of her Witness Statement, Madam Chan stated that sometime during 1996, the plaintiff and Madam Chan discussed the issue of the payment of licence fee by the plaintiff.  The plaintiff informed Madam Chan that because of his old age, he was not able to make sufficient money by raising poultry and making joss sticks.  He requested Madam Chan to allow him to stay at the Property for free and promised in return to guard the Property. After consulting with the defendant, Madam Chan allowed the plaintiff to use and occupy the Property for free, and the plaintiff also promised that he would leave the Property unconditionally and without compensation upon the request of Madam Chan. 

42. I accept the evidence of Madam Chan and reject the evidence of the plaintiff insofar as his evidence is inconsistent with the evidence of Madam Chan. 

43. Further, I accept that Madam Chan was acting as an agent for and on behalf of the defendant after the Assignment.  Madam Chan, in her oral testimony, clearly maintained that the Property was transferred to the defendant as the new owner and that she assisted the defendant in maintaining the Property thereafter.  For instance, when she issued a notice to the plaintiff requesting him to leave and vacate the Property in June 2006, she admitted that she had not discussed the contents with the defendant as she was entrusted to take care of the Property on behalf of the defendant.  This is corroborated by the defendant who testified that it was Madam Chan who looked after the Property after the Assignment and that was the reason why the key to the Property was not immediately handed over to him by Madam Chan after the Assignment.

44. Furthermore, in my view, it makes no difference even if the transfer of ownership by Madam Chan to the defendant was not disclosed to the plaintiff. It is trite that an undisclosed principal (in this case, the defendant) may sue or be sued on a contract (in this case, the licence) made on his behalf by his agent (in this case, Madam Chan) acting within the scope of her actual authority [see: eg, Bowstead & Reynolds On Agency, 19^th ed at paragraph 8-070 on page 403]. 

45. That is a further complete answer to the plaintiff’s claim against the defendant herein.  In Cheung Chung Yan v Chan Man Kwong, Supra, at paragraph 17, Ma CJHC further held that:-

“As a matter of law, where a person occupies land as a licensee or otherwise with the permission of the true owner, he is not in adverse possession, for he enjoys his occupation under lawful title:- see Buckinghamshire County Council v Moran [1990] Ch 623, at 636.”

THE 5^th ISSUE: DID THE DEFENDANT USE THE PROPERTY AFTER 1996 WITH THE CONSENT OF THE PLAINTIFF?

46. In this regard, I repeat my findings at paragraphs 25 to 36 above.  I hold that all these activities were held with the knowledge of the plaintiff but without his consent. 

THE 6^th ISSUE: THE EFFECT OF THE ACTIVITIES INSOFAR AS THEY WERE KNOWN TO THE PLAINTIFF OR UNKNOWN TO THE PLAINTIFF?

47. The defendant as the title owner of the Property is deemed in possession of the land.  It is for the plaintiff to prove otherwise.  As held in paragraphs 41 to 45 above, the plaintiff’s use and occupation of the land after 1996 is permitted under a licence by the defendant granted by Madam Chan as his agent.  As such, whether the plaintiff was aware of the activities carried out by the defendant and the Tang Family is irrelevant and would not alter the outcome of the trial. 

THE 7^th ISSUE: DID THE PLAINTIFF HAVE THE NECESSARY ANIMUS POSSIDENDI?

48. The plaintiff maintained that the Property was fenced by him since around 1976 and not by Madam Chan.  I reject this factual assertion.  In her oral testimony, which I accept, Madam Chan recalled clearly that the Property was fenced when she purchased the same in 1970 and that there was a small iron gate at the entrance and the key to the entrance was handed over to her when the Property was assigned to her. 

49. The plaintiff also sought to establish the requisite intention to possess by claiming that he had the only key to the Property.  It is the plaintiff’s allegation that only he himself got the key to the Property until 2004, when he gave a key to DW5 via his neighbour Madam Luk Mui Lin陸妙蓮. Again, I would reject the plaintiff’s allegation at the factual level.  During cross-examination, when asked why Madam Chan herself did not keep a key for frequent visits of the Property for lychee gatherings, the plaintiff alleged that he would normally open the gate for the Tang Family as it would be convenient to do so.  However, I agree with the defendant’s counsel that with the frequent lychee gatherings of the Tang Family over the years, it is most unlikely that Madam Chan would not maintain a key herself.  This is corroborated by the oral testimony of the defendant and DW5 that the keys to the Property in their possession were handed to them by Madam Chan.

50. When the plaintiff told Lo Kin Keung and Lam Ka Wang that he had possessed the government land for 40 years and asked them not to conduct organic farming there, he was questioned by Lam Ka Wang as to what then was the area which belonged to Madam Chan.  The plaintiff told Lam Ka Wang that the land under the lychee trees belonged to Madam Chan.  This is a clear admission against the plaintiff having the requisite intention to possess. 

51. Such admission against interest should be accorded considerable weight (see: paragraph 13 above). 

52. Finally, and most importantly, from the events set out in paragraphs 25 to 36 above, the plaintiff clearly has not made his intention clear to the world that he had intended to exclude from the Property the world at large, including the owner, so far as was reasonably practicable and so far as the processes of the law would allow (see: paragraph 11 above).  In my view, the fact that the plaintiff might have let out portions of the Property to some third parties was neither here nor there. 

CONCLUSION

53. For the reasons set out above:-

(1)   The plaintiff has failed to establish that he was in factual possession of the Property, or had an intention to possess the same, from January 1996 onwards; and

(2)   even if the plaintiff were in factual possession of the Property, the plaintiff occupied the Property as a licencee or otherwise with the permission of the defendant.  As such, the plaintiff is not in adverse possession.

ORDER

54. For the foregoing reasons, I would dismiss the plaintiff’s claim against the defendant in this action and allow the defendant’s counterclaim against the plaintiff. 

55. As prayed for in the Amended Defence and Counterclaim, I grant an injunction to restrain the plaintiff whether by himself or by his servants or agents or otherwise howsoever from entering the Property. 

56. The defendant shall have the costs of this action and the counterclaim against the plaintiff, including any costs reserved (if any).  Such costs shall be taxed, if not agreed. 

57. The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same. 

58. At the hearing on 11 March 2013, both counsel agreed that a certificate for counsel is appropriate for this trial.  I so order.

59. Lastly, I thank counsel on both sides for their helpful assistance in this matter.