SHING LUEN FAT v. SHING CHI PING

HCMP 3342/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3342 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ 3789/2010)

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JUDGMENT

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Hon Cheung CJHC (giving the judgment of the court):

1.  This is the defendant’s application for leave to appeal from the judgment of H H Judge Alex Lee dated 30 September 2013 upholding the plaintiff’s claim based on adverse possession.

2.  Mr George Chu, for the defendant, complains that the judge has failed to appreciate the divergence of law on adverse possession between Hong Kong and England.  He submits that the approach of the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai (No 2) (1997‑98) 1 HKCFAR 55 is different from that of the House of Lords in the subsequent case of JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.  He contends that the judge has failed to focus on whether the plaintiff has shown an intention to exclude the whole world including the true owner.

3.  We are not with the defendant.  The divergence of law is irrelevant in this case on the facts as found by the judge.  The findings of fact made by the judge clearly established the requisite intention to possess whether under Wong Tak Yue or JA Pye (Oxford).  No question arose as to whether the plaintiff and his parents would have been prepared to pay rent to the true owner if asked, or otherwise to acknowledge his title.  There were no findings of fact that would directly or indirectly suggest that.  Rather, the clear finding of the judge was that they intended to exclude the whole world including the true owner.

4.  Mr Chu submits that the judge has failed to apply the “evidentiary test” laid down in Wong Tak Yue (at p 69A‑C) in making his findings of fact.  There is no substance in this submission.  What was said by the Court of Final Appeal was simply a description of how a trial judge should approach different types of words said by the trespasser.  It was based on commonsense and the inherent nature of this type of case.  The court was not laying down any evidential rule as such.  The judge referred to Wong Tak Yue in his judgment, although not specifically the approach to evidence relied on by Mr Chu.  The judge gave clear reasons for his findings of fact.  There is nothing to suggest that he has wrongly approached the evidence.  Question of weight is a matter for the trial judge.  Mr Siu, for the plaintiff, is right to say that Mr Chu cannot extrapolate the approach to evidence described in Wong Tak Yue to include the evidence of the witnesses called by the plaintiff.

5.  The judge’s findings of primary fact cannot be disturbed unless they are shown to be “plainly wrong”.  Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  The defendant has failed to do so.

6.  Mr Chu’s reliance on Hyde v Pearce [1982] 1 All ER 1029 is wholly misplaced. That case (and the local cases that followed that decision) were concerned with the situation where the plaintiff entered into possession of the land under lawful authority.  They were not concerned with the situation where the plaintiff entered into possession of the land under the mistaken belief that he was the true owner.  In the former case, the plaintiff’s possession was not “adverse”; in the latter he was in adverse possession.

7.  Counsel’s attack on the judge’s findings of primary fact on abandonment must fail as he has simply failed to show, on the evidence, that the judge’s findings were plainly wrong.

8.  We do not think there are any merits in the other miscellaneous points made by Mr Chu in his submissions.

9.  For these reasons, the application is entirely without merit.  It is dismissed with costs, which we summarily assess at $50,000, to the plaintiff.  We also make an order, pursuant to Order 59 rule 2A(8), that the defendant may not request our determination to be reconsidered at an oral hearing inter partes.