THE PERSONAL REPRESENTATIVE OF CHEUNG HUNG FOON, Deceased v. THE PERSONAL REPRESENTATIVE OF CHAN KUP YAU, Deceased AND ANOTHER

HCA 2576/2015

[2020] HKCFI 1042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2576 OF 2015

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JUDGMENT

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Background

1.  On 4 November 2015, Mr Cheung Hung Foon (“Cheung”) commenced these proceedings, claiming the he had acquired a possessory title to part of Remaining Portion of Pokfulam Village Lot No 35 (“the Land”).  The location of the Land is shown on the plan annexed to the statement of claim.  Subsequently, Cheung obtained orders from the court appointing the Official Solicitor as to represent the 1^st defendant and the 2^nd defendant for the limited purpose of accepting service of the amended writ of summons.  The amended writ of summons has been duly served on the Official Solicitor pursuant to the said court orders.  Thereafter, Cheung obtained a court order allowing him to proceed with these proceedings in the absence of any person representing the 1^st and the 2^nd defendants.

2.  Cheung passed away on 4 November 2019.  In the pre-trial review held on 19 May 2020, Cheung’s wife, Madam Lin Jiangying (“Lin”), applied for an order allowing her to represent the estate of Cheung to carry on these proceedings.  All the beneficiaries of Cheung’s estate are in support of this application.  I allowed the application.

3.  In the pre-trial review, I explained to Lin (accompanied by her 2 sons in that hearing) that the evidence filed by the plaintiff in support of the claim in these proceedings is a witness statement made by Cheung (“the witness statement”) and an expert report.  In other words, the only factual witness was Cheung.  Since Cheung had passed away, if Lin wanted to have some time to find some other factual witness(es) to give evidence in support of the plaintiff’s case, I would give some time to Lin to do so and to prepare some new witness statements.  The trial scheduled to take place on 10 June 2020 (with 1 day reserved) would be adjourned to a date to be re-fixed. After explaining these matters to Lin, I took a break to allow Lin to have some time to discuss the matters with her sons.  After the break, Lin told the court that she would rely on an affirmation made by Cheung on 10 September 2019 (“the affirmation”) in support of the plaintiff’s claim and would not file any new witness statement.  She wanted to have the trial on 10 June 2020 as scheduled.

4.  After hearing Lin’s submissions, I told Lin that, subject to her agreement, I would determine this case without an oral hearing.  Since there would be no factual witness giving live evidence in the trial, there would be no point to have a trial on 10 June 2020.  I would consider all the papers in this case, including the witness statement, the affirmation, and the expert report, to make a determination.  I would also allow Lin to put in written submissions.  Lin agreed to this approach.  Hence, this case is determined on the papers without an oral hearing.  I have considered all the papers in this case, including the written submissions submitted by Lin to the court.

The adverse possession claim

5.  The adverse possession claim as pleaded in the amended statement of claim dated 18 September 2018 is as follows:

“16. In 1979, one Yuen Hoi Tong (袁海棠) who did not have any interest in [the Land] purported orally, to sell [the Land], which was cultivated land together with a tin house erected and constructed thereon, to [Cheung] at a price of $3,500.

17. Ever since 1979 and until now, [Cheung] and his family members have been in actual and exclusive occupation and possession of [the Land] in the capacity as trespassers, for the purpose of farming, and adverse to the said Chan Kup Yau (陳甲友), deceased and/or his predecessors-in-title or alternatively adverse to the said Chan Man Fat (陳萬發) alias Chan Tam Shing (陳譚勝), deceased and/or his predecessors-in-title.

18. Since 2005 and until now, [Cheung] and his family members have been in actual and exclusive occupation and possession of [the Land] in the capacity as trespassers, for the purpose as their residence as well as for farming, and adverse to the said Chan Kup Yau (陳甲友), deceased and/or his predecessors-in-title or alternatively adverse to the said Chan Man Fat (陳萬發) alias Chan Tam Shing (陳譚勝), deceased and/or his predecessors-in-title.

19. [Cheung] has been in actual and exclusive occupation and possession of [the Land] in the capacity as trespassers, for a continuous period not less than 12 years immediately prior to the commencement of the present action and proceedings herein, adverse to the said Chan Kup Yau (陳甲友), decease and/or his predecessors-in-title or alternatively adverse to the said Chan Man Fat (陳萬發) alias Chan Tam Shing (陳譚勝), deceased and/or his predecessors-in-title.

20.    For reason of the matters pleaded hereinabove, as at the date of the commencement of the present action and proceedings herein, the title of the said Chan Kup Yau (陳甲友), deceased and/or his predecessors-in-title or alternatively the title of the said Chan Man Fat (陳萬發) alias Chan Tam Shing (陳譚勝), deceased and/or his predecessors-in-title of and in [the Land] has been extinguished under section 17 of the Limitation Ordinance, Cap 347 and that [Cheung] has acquired a squatter’s title thereof.”

6.  The plaintiff bears the burden to adduce evidence to prove this claim.

Analysis

7.  The principles concerning adverse possession have been summarized by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527, in which Harris J (Cheung JA and Yuen JA concurring) said: -

“22. Before explaining the Judge’s reasons for rejecting the 1^st defendant’s case it will be helpful to summarise the basic principles of adverse possession: -

(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.” (Emphasis added)

8.  The expert report dated 3 July 2019 is prepared by Mr Chan Hon Kwan Henry, who is a chartered surveyor.  At §10.3 of the report, the expert concluded:

“In conclusion, the Occupied Land in the Subject Lot underwent various activities over the years. From 1979 to 1986, the Occupied Land appeared under cultivation. From 1979 to 2004, a structure S1 was observed at the northeastern corner of the Occupied Land. From 1987 to 2005 the Occupied Land was generally covered by vegetation and appeared divided into portions by internal paths likely from frequent access and passage. Since year 2006, more activities on Occupied Land were observed, thus the cultivation land, ponds, fences, net with poles, structures including S2, the Tin House, the Canopy, the Hut, and the gate came to existence, which still existed in 2015. Throughout 1979 to 2015, the footpath FP1 existed along the western and northern sides of the Occupied Land connecting either the structures S1, S2 and Tin House. Throughout 1979 to 2015, a stream existed immediately to the west of the Occupied Land.”

9.  The expert report can only show that there were some activities on the Land from 1979 to 2015.  However, the expert report cannot show whether Cheung had any connection with these activities.

10.  The factual evidence in support of the adverse possession claim is from the witness statement and the affirmation.  However, Cheung could not give evidence in the court and the evidence in the witness statement and in the affirmation has not been tested by any question from the court.  In these circumstances, the evidence in the witness statement and in the affirmation cannot carry much weight, and certainly cannot be regarded as compelling evidence in support of the adverse possession claim.

11.  I have considered Lin’s written submissions received by the court on 1 June 2020.  With respect, the factual matters stated therein cannot be evidence in support of the plaintiff’s case, for Lin has not confirmed those matters under oath and has not been subject to any questions concerning those matters.  In any event, Lin only came to Hong Kong from the Mainland and began to live with Cheung on the Land in 2005.  Even if what has been said by Lin in the written submissions is taken into account, there is still no evidence proving the adverse possession claimed by the plaintiff for a period of not less than 12 years before the commencement of these proceedings.

12.  In my judgment, there is no compelling evidence in support of the adverse possession claimed.

13.  Further, throughout the amended statement of claim, it is repeatedly emphasized that Cheung had been in actual and exclusive occupation and possession of the Land since 1979.  However, at nowhere in the amended statement of claim, the requisite intention to possess has been properly pleaded.  That being the case, the plaintiff would not be able to make out an adverse possession claim concerning the Land.

14.  For these reasons, the plaintiff’s claim must be dismissed.

Disposition

15.  I dismiss the plaintiff’s claim.

16.  Since the defendants have never participated in these proceedings, there be no order as to costs.  The plaintiff was on legal aid for a period of time in these proceedings.  There be an order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.