TANG CHING v. WU WAN YAU AND ANOTHER

HCA 795/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 795 OF 2010

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J U D G M E N T

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1. By these proceedings the plaintiff seeks an order that he be declared the rightful owner of a plot of land known as Lot No. 1251 in DD113 (“the land”) in Tai Wo Village, Pat Heung, New Territories. The defendants are the registered owners of the land and the plaintiff further seeks a declaration that they have lost all their rights over the land. The principle upon which the plaintiff relies to establish his ownership of the land is the principle of adverse possession.

2. There is no dispute about the applicable law.  The plaintiff must prove on the balance of probabilities that he has been in exclusive and continuous possession of the land for 20 years (since 1976) and during that period he had an animus possidendi, an intention to dispossess the defendants.  By an amendment to the Limitation Ordinance (Cap 347) at section 38A the limitation period was reduced from 20 years to 12 years, in 1991.  In the present case the applicable period remains at 20 years because the date of commencement of the alleged adverse possession is 1976.  Thus if the plaintiff succeeds in discharging the burden of proof on him and proves that he had continuous and exclusive possession of the land, coupled with the necessary intent, from 1976 to 1996, he may be declared the lawful owner.

The plaintiff’s case

3. The plaintiff is described as an indigenous inhabitant of Tai Wo Village.  He is now 82 years old.  His case starts in 1967 when he commenced an oral tenancy of the land.  The land was owned by the defendants’ father Wu Hung To (“Wu”).  Initially the plaintiff grew rice on the land and paid rent in kind, by catties of grain.  Later he changed to growing vegetables.  After that, flowers and finally, in the 1980s, he changed again to fruit trees.  From an unspecified date in the late 1960s or early 1970s the payment of rent changed to an annual sum of money, initially $300.  There is no tenancy agreement, no rent receipts, no documents of any kind concerning those arrangements.  They were all verbal.

4. The key events upon which the plaintiff’s case depends occurred in 1975 and 1976.  The plaintiff claims that in 1975 Wu wanted to terminate his tenancy but he refused to give up the land which provided his livelihood.  Wu eventually agreed to waive the rent for one year but after that he told the plaintiff that he must leave.  The following year, 1976, Wu tried to evict the plaintiff but the plaintiff would not go.  Thereafter he remained in possession of the land and never paid rent again.  He was not asked at trial if he would have paid rent if asked to do so during that period. 

5. When asked why he remembered that it was 1976 that this occurred he replied that his wife had died in 1974 and he was worried about bringing up his young family.  Thereafter his case is that he simply continued to grow things on the land without interference and without paying rent for the next 20 years and more.

6. There are a number of issues of fact between the parties but they mainly relate to more recent times (1989-2009).  I shall refer to them below under the heading of the defendants’ case.  Bearing in mind that the period of possession relied on is 1976-1996 their relevance is primarily confined to the question of credibility.  In other words, do the court’s findings in relation to more recent events assist in the task of deciding whether the plaintiff’s claim is more likely than not?

7. Before turning to the defendants’ case and for the sake of completeness I shall refer briefly to the evidence from the three witnesses called on behalf of the plaintiff.  The plaintiff’s eldest daughter, Mdme Tang Zhi Wan agreed with her father’s evidence.  She left the village when she got married in about 1981.  She said she remembered that her father was upset soon after her mother had died because “the landlord was reclaiming our farm land”. She would have been a teenager at the time.

8. Mr Choi Chan Bui had farmed an adjacent plot of land until the early 1980s.  He had seen fruit trees on the land but had seldom visited the land.  His main responses to questions put in cross-examination were ‘I don’t remember’ or ‘I don’t know’.

9. Finally Mdme Tsui Hing Lan had been a fellow villager from 1958 to 1979 when she left to get married.  Since then she had visited her father at the village from time to time between 1979 and 2000.  She had little of value to add to the evidence.

10. It emerged from the evidence that the plaintiff’s youngest son had always lived in the village and still lived with his father.  He had neither made a witness statement nor gave evidence.

The defendants’ case

11. The defence called two witnesses, Mr Wu Wan Yau (D1) and Mdme Chiu Wai Ching (D4’s wife).  Mr Wu was in his late 70s.  He had lived in an adjacent village (about 15 minutes away by foot, according to his evidence) until 1996 when he went to Canada.  Since then however he had returned to his village in Hong Kong each year for several months to avoid the Canadian winter.

12. He remembered collecting rent from the plaintiff, with his father, both when the rent was catties of grain and when it was cash.  The rent was never increased because the plaintiff and his father were fellow villagers and friends.  He said that the plaintiff continued to pay rent until 1988. There was no documentation because they were fellow villagers.

13. He said the alleged threat to reclaim the land from the plaintiff in 1976 never happened.  There was a quarrel about non-payment of rent but that was in 1988.  Mr Wu said he witnessed a quarrel in 1988. He could pinpoint the approximate date because it occurred shortly before a letter was sent to the plaintiff (in 1989) by solicitors terminating the plaintiff’s tenancy.

14. The quarrels about rent prompted the decision to terminate which also coincided with his father’s (“Wu”) decision to try and develop the land.

15. The solicitor’s letter (from Messrs K.M. Lai & Li) was produced.  It is dated 28 June 1989 and states:

“ We are instructed to give you notice according to Section 122 of the Landlord and Tenant (Consolidation) Ordinance, Chapter 7, that you are required to quit and deliver up vacant possession of the said premises to our client on the 31^st day of December 1989 or at the end of the calendar month or your tenancy which will expire next after six(6) calendar months from the service of this notice failing which legal proceedings for recovery of possession will be instituted against you without further notice.”

16. It was delivered in both English and Chinese.  It is stamped “By Hand”.  I am satisfied that it was probably sent both by mail and by hand which is likely to have been the practice with a letter stamped ‘By Hand’.  There was a conflict of evidence about whether it had been hand delivered or posted.  The plaintiff said he had no recollection of this particular letter but did remember “something being delivered which I, of course, refused to sign” (or words to that effect).  It was not clear whether this referred to the notice to quit or not.

17. The defendants’ oral evidence was that copies of the letter were delivered by hand and left at the premises.  However, the written witness statement does not refer to the particulars relating to hand delivery.  I am satisfied that it was hand delivered.  There is both oral and documentary evidence in support.  In any event, and more importantly, I am satisfied that a tenancy had continued to exist up until the delivery of this letter and Wu’s intention to develop the land.

18. It is more likely that Wu terminated the tenancy in 1989, following disagreements in 1988, at a time he wanted to investigate development potential.  It is less likely that Wu allowed the plaintiff to possess the land rent free from 1976 for no apparent reason.  It is probable that the plaintiff and his daughter do recall quarrels about rent but have taken them 12 years further back than they actually occurred.

19. In my judgment therefore, adverse possession could only have begun in 1989.  On the whole of the evidence the plaintiff has failed to prove on the balance of probabilities that he commenced being in exclusive possession of the land in 1976.  The ‘whole of the evidence’ includes those issues to which I refer below which I have taken into account when deciding whether or not the plaintiff has discharged the burden of proof on him.

Post 1989 events

(i) Proposed development

20. Between 1990 and 1995 discussions and negotiations took place between the Wu family (“Wu” himself died in 1992) and potential developers. The plaintiff’s case was that he was unaware of any such matters and simply continued to occupy the land by growing fruit trees on it.

21. Contemporaneous documentary evidence supports the defendants’ contention that positive steps were taken during this period to build small houses on the land.  Documents from three companies, Guidewin Development Ltd (1991), World Ocean Ltd (1992) and Concorde Carnival Properties Ltd (1995) were produced.  Such steps included site visits, land surveys and so on.  It is unlikely that the plaintiff would have been unaware of these matters.  They clearly happened and it thus follows it is improbable that the plaintiff simply continued growing fruit trees in ignorance of such plans.  The developers were allowed onto the land unimpeded.

22. Moreover, Wu Wan Yau gave evidence that he believed the plaintiff had been paid compensation by a developer.  He was unable to say when or how much was paid because, he said, the discussions were between the plaintiff and the developer. His source of information was the village chief, Choi Kwok Wah, who, he said, was brought in to help with the negotiations.  The plaintiff denied this suggestion.

23. Although it seems likely that, in such circumstances, there may have been discussions about compensation it is difficult to make a clear decision about it given the lack of documentation and the lack of first hand evidence.  Although the village chief had made a written witness statement, being now of advanced years his health was failing and was considered unfit to attend trial.  I therefore attached no weight to his witness statement.

24. The plaintiff did give some evidence concerning compensation discussions but they occurred later, in about 1999.  He said the village chief was involved.  He said he asked the defendants for $2 million but was only offered $200,000 which he refused.  The negotiations then failed.

25. Save that it is likely that some discussions about possible compensation for being evicted from agricultural land occurred, the evidence is too vague to make any further specific findings.

(ii) Roping off

26. The plaintiff said he roped off the land and thereby enclosed it in or around 2001 or before.  It is likely that he did.  Photographs taken in 2001 show flimsy blue roping around the edge of most, but not all, of the land.  Homemade notices were also put up saying “Private Land … etc.”  I do not think that this “roping off” exercise takes the matter any further.  It is agreed that it first occurred in about 2001 and can have no real bearing on the issue of whether or not the plaintiff ceased paying rent in 1976.  If it is said to be consistent with the necessary animus possidendi it comes significantly too late.  The necessary animus must be proved to have continuously existed from 1976 onwards.  The evidence of animus upon which the plaintiff relies does not go beyond the fact that he grew things on the land during the relevant period.

27. The 2^nd Edition of Adverse Possession states at paragraph 9‑103 that a high standard of proof is required from a squatter who takes possession without the true owner’s consent.  Such a trespasser is required to adduce ‘compelling evidence’ of the animus.

28. Slade J in Powell v McFarlane (1977) 38 P&CR at p.477 said:

“… ‘Enclosure is the strongest possible evidence of adverse possession,’ though he went on to add that it was not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too is the locking or blocking of the only means of access. The plaintiff however, did none of these things in 1956 or 1957. The acts done by him were of a far less drastic and irremediable nature. What he did, in effect, was to take various profits from the land, in the form of shooting and pasturage, hay and grass for the benefit of the family cow or cows and goat, and to effect rough repairs to the fencing, merely to the extent necessary to secure his profits by making the land stockproof. On many days of the year neither he nor the animals would have set foot on it.”

29. The plaintiff in the present case conducted himself in a similar fashion.  He relies on the fact that he grew things on the land continuously and it is true that such conduct is evidence of the necessary animus. However balanced against the fact that his claim of farming the land for 20 rent free years is a bare assertion, the fact that he roped off the land and put up notices in 2001 does little to advance his claim.

(iii) Photographs taken in 2001

30. The plaintiff produced about 20 photographs taken of the land in 2001.  The photographs also do little to advance his case.  The purpose of producing them was twofold; firstly, to show the blue roping (to which I have already referred) and secondly to show fruit trees.  The plaintiff said that his final cultivation of the land in the 1980’s was the planting of fruit trees.  It is likely that he did plant some trees.  However the state of the land as depicted by the 2001 photos is of an overgrown, neglected plot with some trees (less than the number claimed) surrounded by wild and deep grasses and vegetation.  If the land was used profitably and commercially in the 1960s, 70s and 80s the photographs do little or nothing to corroborate that assertion.

      (iv)   Fencing by the defendants

31. It is not disputed that secure fencing and proper notices were put up by the defendants in 2006.  This immediately followed renewed interest in the land by another developer.  Since then there has been an unexplained fire on the land in 2008 and the levelling of the land by soil deposits in 2009.  Evidence concerning these matters was given by Mdme Chu Wai Ching, the wife of the 4^th defendant.  She has had firsthand knowledge of the land, particularly since 2000 when she and her husband moved from Ho Man Tin back to the adjoining village, the home of the Wu family.  It was plain that the fencing was put up because of a developer’s interest and not to deny any on-going use of the land by the plaintiff.  The defendants’ evidence was that there had not been any ongoing use of the land by the plaintiff for many years.  All the evidence suggests to me that this must be correct.

32. The defendants ask the rhetorical and telling question — if the plaintiff had accrued rights by 1996 why was it only partially enclosed by blue rope in 2001 and why were proceedings only commenced 14 years later in 2010?

Decision

33. For all the above reasons the plaintiff’s claim must be dismissed with costs.  I also make an order in terms of paragraph (i) of the defendants’ counterclaim vacating the Writ dated 29 May 2010 from registration and with costs of the counterclaim to the defendants.  The costs orders are on a nisi basis to be taxed if not agreed.