CHAN KAN MUN v. SANYEAR INVESTMENTS LTD

DCCJ 520/2014 &
DCCJ 3328/2014
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NOS 520 OF 2014 and 3328 OF 2014

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JUDGMENT

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Introduction

1.  This trial only concerns a piece of land, known as Lot 1128 in Demarcation District 100, North, New Territories (“the disputed land”) which the plaintiff claims that he has obtained the possessory title.

Procedural history

2.  Initially, the plaintiff instituted HCA1038/2013 in the Court of First Instance claiming the possessory title of the disputed land.  It was subsequently transferred to the District Court by consent and became DCCJ520/2014.

3.  By DCCJ3328/2014, the defendant instituted action against the plaintiff for possession of Lot 1103 in Demarcation District 100, North, New Territories (“Lot 1103”).

4.  Both actions were consolidated by order of Master CH Li dated 15 June 2015.

5.  The dispute in respect of Lot 1103 was settled between the parties.  Hence, this trial concerns only the disputed land.

The Plaintiff’s case

6.  The late Mr Chan On (“Chan On”) was the uncle of the plaintiff.  It is the plaintiff’s case that the defendant’s predecessor-in-title of the disputed land, namely, Sung Yi Wo Tong alias Sung I Wo Tong (“the Tong”), had discontinued possession or alternatively had been dispossessed of the disputed land since around 1964.  Chan On and the plaintiff have been continuously in exclusive possession of the disputed land together with another piece of adjacent land in Tong Kung Leng since early 1960s.  In about 1996, the plaintiff moved in and lived with Chan On and helped him to carry out full-scale farming and cultivation of the 2 pieces of land.  The plaintiff and Chan On remained in exclusive possession of the disputed land until 1998 when Chan On left Hong Kong due to a terminal disease.  Thereafter, the plaintiff continued to exclusively possess the 2 pieces of land.

The defendant’s case

7.  The defendant became the registered owner of the disputed land since 28 October 1993.  Chan On occupied the disputed land as a licensee and/or with the consent of the Tong as a result of the Government issued Modification of Tenancy Permit including one under Permit No 37801 (“the MOT”).  The MOT was cancelled by the District Lands Officer on 29 August 2012.  The defendant demanded vacant possession of the disputed land by a letter dated 1 November 2012.

Issues

8.  Both parties have helpfully identified the following issues which are to be determined by this trial:-

(1) whether the plaintiff and Chan On have been in continuous possession of the disputed land as successive adverse possessors for a period of 20 years or more since around 1964:

(a) whether the plaintiff is entitled to rely on or succeed to any period of exclusive possession (if any) by or possessory title (if any) of Chan On in respect of the disputed land;

(b) whether the period of exclusive possession by the plaintiff and/or Chan (if any) was continuous;

(c) whether the plaintiff and/or Chan On have established the sufficient degree of physical control of the disputed land during their possession;

(d) whether the plaintiff and/or Chan’s occupation (if any) of the disputed land were wrongful and without the permission of the paper owner, ie the defendant and the Tong;

(e) whether the plaintiff and/or Chan On have the requisite intention to possess the disputed land;

(f) whether the possession of the disputed land by the plaintiff and/or Chan On (if any) during the subsistence of the MOT from 1971 to 29 August 2012 was done with the requisite intention to possess or constituted adverse possession of the disputed land;

(g) whether any limitation period could ever begin to run against the Tong prior to 28 October 1993 in respect of adverse possession (if any) of the disputed land;

(2) whether the plaintiff has been in continuous possession of the disputed land for a period of 12 years since around 1996 or 1998, or in any event has acquired the possessory title as adverse    possessor of the disputed land:

(a) whether the plaintiff has established the sufficient degree of physical control of the disputed land during his possession;

(b) whether the plaintiff’s occupation of the disputed was wrongful and without the permission of the paper owner, ie the defendant and the Tong; and

(3) whether the defendant is entitled to damages for trespass or   mesne profits, and if so, how much.

Legal principles on adverse possession

9.  To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E.

10.  Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person …”

11.  Section 8(1) of LO provides:-

“(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

12.  Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33.

13.  Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

14.  Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control.  It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly.  Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.  The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.  In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion.  “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce.  It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole.  Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think 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 has done so.”

15.  Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“… What is really meant, in my judgment, is that the animus possidendi involves the intention, 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 … 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 … A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass … In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner … I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

(1)  Whether the plaintiff and Chan On have been in continuous possession of the disputed land as successive adverse possessors for a period of 20 years or more since around 1964:

(a)  Whether the plaintiff is entitled to rely on or succeed to any period of exclusive possession (if any) by or possessory title (if any) of Chan On in respect of the disputed land?

16.  This issue can be disposed of briefly.

17.  The Privy Council in the last appeal from Hong Kong, the case of Sze To Chun Keung v Kung Kwok Wai David [1997] HKLRD 885 at 888I-J, held that for the purpose of the LO, all that matters is that there should have been continuous adverse possession for the period of limitation.

18.  Bokhary PJ in Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70 expressed the opinion that there is no difficulty in aggregating the period of possession by the squatter and the period of possession by him through his tenant.  The legal position as stated by Brooking J in the Australian case of Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 was adopted that “where the adverse possession has been continuous, it is possible to tack the possession of one intruder on to that of another although there has been no assignment of possessory rights.”

19.  Therefore, provided that the possession by Chan On and the plaintiff was continuous, the periods of their respective possession can be added together.  It matters not that there has not been an assignment of the possessory title from Chan On to the plaintiff.  In this regard, I have to reject the submission by Mr Chan Chi Hung SC leading Mr Derek JY Chan, counsel for the defendant, that transfer of Chan On’s possessory title to the plaintiff by deed, will or intestacy is required.

(b)  Whether the period of exclusive possession by the plaintiff and/or Chan (if    any) was continuous?

20.  The plaintiff said when he came to Hong Kong in 1980, he was given a shelter by his uncle, Mr Chan Yat Ming (“Chan YM”), who was living in a public housing estate at Block 25, Shau Mau Ping Estate (“Sau Mau Ping premises”) together with his sworn brother, Mr Tsang Chun Sang (“Tsang CS”). He worked as a construction site casual worker.  From time to time, he would visit Chan On who was living alone in Tong Kung Leng Village.  He would also assist him in the farming works.

21.  Chan YM passed away in 1986.  The plaintiff continued to live in the Sau Mau Ping premises with Tsang CS.  In 1996, because Tsang CS had planned to get marry, he requested the plaintiff to move out of the Sau Mau Ping premises.  At the same time, Chan On invited the plaintiff to live with him on the disputed land so that the plaintiff could look after him and assist him in the faming.  The plaintiff therefore took over the disputed land from Chan On.  He carried on with the farming of the disputed land but still worked as a construction site casual worker whenever jobs were available.  As Chan On was getting old and sick, he only allowed him to grow vegetables on the disputed land.  At the same time, he gradually grew orange and tangerine trees, bamboo and cypress thereon.

22.  When he moved in, Chan On gave him a receipt for payment of licence fee issued by the District Office in 1973, reminding him to pay the licence fee every year.  Thereafter, he paid the licence fee of $8 each year.

23.  Since 1997, the health of Chan On deteriorated.  In 1998, the plaintiff became the registered customer of the electricity company in place of Chan On.  In the same year, Chan On moved back to Changping, Dongguan so that he could be looked after by his wife and son.  When he left, he handed over the disputed land and another piece of land to the plaintiff, reminding him to carry on farming and to use them as his residence.  He also gave the plaintiff the keys and reminded him to pay the annual licence fee of $8 every year.  Thereafter, Chan On would stay in the disputed land whenever he came to Hong Kong for follow-up treatment.

24.  After Chan On left, he only grew fruit trees on the disputed land.

25.  Around 2000, Chan On told the plaintiff that he would stay in Changping permanently.  The plaintiff therefore removed Chan On’s bed from the disputed land.  Chan On passed away in 2003.

26.  From the information volunteered by the plaintiff in his 3 witness statements, he gave the impression that since he arrived in Hong Kong in 1980, he had only 2 places of residence, namely, the Sau Mau Ping premises and the disputed land.

27.  However, this was not the entire picture.

28.  Under cross-examination, when the plaintiff was asked why there was no evidence of electricity consumption in respect of the disputed land between 2000 and 2006, he for the first time disclosed that during that period of time, he was residing at Room 409, Chak Yun House, Tin Chak Estate, Tin Shui Wai (“Tin Shui Wai premises”) during the night.  It was a public housing estate of which he was the tenant.  Apart from himself, his ex-wife, his son and the girl friend of his son were residing there.  When asked why he only moved to live on the disputed land in 2006, he said it was because his 2^nd wife had come to Hong Kong.  As the disputed land was infested with snakes, centipede and rats; the foot of the walls were broken and the water pump was not functioning, he did not want to live there.  He was divorced from his ex-wife in 2006.

29.  In my view, the plaintiff was deliberately withholding the fact that the Tin Shui Wai premises was his place of residence with his ex-wife, son and the girl friend of his son during the period between 2000 and 2006.  This fact is inconsistent with his claim that he was in continuous possession of the disputed land after Chan On left in 1998. 

30.  Bearing in mind that the plaintiff had a family of his own^[1], I do not believe that the plaintiff had in fact moved from the Sau Mau Ping premises to the disputed land in 1996.  On his own admission, he did not want to live in the disputed land due to the reasons as stated in paragraph 28 hereof.

31.  Madam Chu Yuen Kan gave evidence for the plaintiff.  She said in her witness statement that the plaintiff moved to the village around 1996.  I have doubt on the reliability of her evidence.  Although she was quite specific as to the year the plaintiff moved to the village, she was less specific as to when the plaintiff erected the fences around the disputed land.  She could only say more than 10 years (as at the time she gave her witness statement in 2015).  Common sense dictates that memory tends to fade through the passage of time.  There is no reason why her memory of an one-off incident (arrival of the plaintiff) 19 years ago can be better than the memory of seeing the plaintiff erecting fences some time later which must have lasted for a period of time.  It seems to me that her evidence is tailor-made to suit the case of the plaintiff.

32.  It is true that the plaintiff became the registered customer of electricity supply by China Light & Power Co Ltd to the disputed land in 1998.  From the electricity bills produced by the plaintiff, there is only evidence of electricity consumption from August 1998 to February 1999 (see p166 Bundle A).  Thereafter, electricity consumption only resumed from June 2006 onwards (see pp167-175 Bundle A).  The plaintiff explained that he only stayed in the disputed land during the day and returned to the Tin Shui Wai premises at night. I find this incredible.  The experts engaged by both parties are of the common opinion that since 2000 up to July 2006, the disputed land was covered by vegetation without obvious furrow lines.  The original south-eastern boundary became indistinguishable thus making the disputed land seemed to be joining with the adjoining Lot 1131 to its south-east as a continuous piece of land.  If the plaintiff did look after the disputed land as he claimed, the disputed land would not be wholly covered by vegetation so much so that the south eastern boundary had become indistinguishable.  By the same token, there should not be zero consumption of electricity for over 7 years.

33.  According to the joint statement of the experts, a rectangular platform appeared between the L-shape temporary structure and the “tree” in the aerial photograph dated 7 September 1999, which became a new temporary structure of irregular shape in the aerial photograph dated 5 November 1999.  The temporary structure became rectangular in shape in the later aerial photographs.  Comparing the aerial photograph dated 10 July 1998 with the one dated 7 September 1999, it can be seen that the site of the rectangular platform was originally occupied by a tree.  However, none of the improvement or rebuilding works that the plaintiff said he had done involved the removal of a tree or the formation of a platform. Hut 1 was formed by incorporating 2 huts built by Chan On into a single hut; Hut 2 involved the removal of a rotten bamboo structure; Hut 3 was converted from the old toilet into a small hut.  That being the case, the only inference is that the new temporary structure identified by the experts from the aerial photographs was built by someone other than the plaintiff.  It is more probable than not that the plaintiff was not the occupier of the disputed land between 1998 and 2000 during which the new temporary structure came into shape.  I do not accept that the plaintiff was in control of the disputed land during that period of time. 

34.  The experts are of the common view that since the middle of 2006 until early 2008, furrow lines were observed and the south eastern boundary of the disputed land became distinguishable again.  This coincides with the fact that the plaintiff was divorced from his wife in 2006.  I believe that after the divorce, the plaintiff moved from the Tin Shui Wai premises to the disputed land.  Since then, he removed the vegetation thereon and commenced agricultural activities.  This also explains why the consumption of electricity resumed from June 2006 onwards.

35.  In court, after the plaintiff disclosed for the first time that he was living in the Tin Shui Wai premises between 2000 and 2006, he attempted to salvage the situation by saying that he did the cultivation works at the disputed land during day time and holidays.  Tin Shui Wai and Sheung Shui are 2 different districts in the New Territories.  They are far apart.  I do not believe that the plaintiff would have the diligence of commuting between the 2 districts everyday particularly when he was also working as a construction site worker at the same time.  If he did cultivate the disputed land as he claimed, the disputed land would not be covered by dense vegetation as shown in the aerial photographs.  I do not accept that he had dealt with the disputed land as he claimed between 2000 and the middle of 2006.  If he did, there cannot be no electricity consumption at all.  I am not satisfied that the plaintiff was in control of the disputed land during that period of time.

36.  In re-examination, the plaintiff said that he was the only one to keep the keys to the disputed land.  This is self-serving and can easily be said but difficult to rebut.  Knowing that Chan On had passed away leaving the disputed land unattended, the plaintiff or anyone with that knowledge could have entered into the disputed land at any time without the need of keys.  I attach no weight to this claim.

37.  The experts observed the following landscape changes on the disputed land between 2009 and 2013:-

Period	Observations
2009-2010	Since 2009, part of the furrow pattern was planted with trees in a regular pattern. The structures were extended slightly northwards.
2011	The trees grown had become bigger. The structures were further extended to the east beyond the “tree”
2011-2013	The “tree” disappeared thus exposing all the structures as a distinctive group of structures in the southern end of the disputed land.

38.  It can be seen that the growing of trees on the disputed land commenced in 2009, not in 1996 as claimed by the plaintiff.  Secondly, the structures on the disputed land had extended since 2009.

39.  In his own words, Hut 1, Hut 2 and Hut 3 are for the use and occupation of the plaintiff, his present wife Wang Yuanzhen (“Wang”) and their son (“the son”).  Hut 1 was the living room of the son; Hut 3 was the living room of himself and Wang; Hut 2 was for the storage of fruits and the common room of the family. Obviously, those improvement or rebuilding works were necessitated by the reunion with Wang and the son whom the plaintiff said came to Hong Kong in the middle of 2010.  It is more likely than not that those works were done between 2009 and 2011.  This is consistent with the observations of the experts in relation to the extension of the structures during that period of time. In this respect, I reject the claim of the plaintiff that Hut 1 was built from late 1996 to early 1997 for the obvious reason the son was not born until 1999 and was only permitted to come to Hong Kong 11 years later.

40.  The plaintiff has been equivocal as to the time he built the fences.  In his supplemental witness statement dated 19 May 2015, he said he started fencing the disputed land from 2004.  In his 2^nd supplemental witness statement dated 16 December 2015, he said it was done in 2000 to 2001.

41.  In my view, both cannot be right.

42.  According to the experts, the disputed land began to be covered by vegetation since 2000. The situation continued up to July 2006.  The vegetation was so dense that the original south-eastern boundary had become indistinguishable so much so that the disputed land seemed to have merged with the adjoining land.  Firstly, the building of fences when the land itself was not looked after makes no sense at all.  Secondly, if fences were built around the disputed land, the overgrowing of vegetation to the extent of defeating the function the fences does not sit well with logic.  Thirdly, the fact that the plaintiff was at that time living in the Tin Shui Wai premises makes it less likely that he would spend his time and effort to build the fences, particularly when he was still working as a construction site casual worker at that time.  I do not believe the plaintiff. In my judgment, the fences were built sometime after 2006.

43.  Mr Tang Ping Kuen (“Tang PK”) worked for a contractor who was engaged by the owner of Lot 1131, which is not related to the defendant, to erect fences enclosing 2/3 of the said lot.  He said when the work was done in the summer of 2010, he noticed that the disputed land, which is adjoining to Lot 1131, was not fenced. He is not an interested party and gave his evidence in a straightforward manner.  His evidence was unshaken in cross-examination.  I accept him as a credible and reliable witness.

44.  Mr Kwan Tin Shun (“Kwan TS”), the village representative of Tong Kung Leng who, with the exception of the period between 1980 and 1995 when he was in Germany, resides in the village since birth.  He came to know the plaintiff when he stood for the election of village representative in 2011.  He said the plaintiff built the fences surrounding the disputed land in that year.  He was not cross-examined on this matter.

45.  On balance, I prefer the evidence of Tang PK and Kwan TS.  I find as a fact that the fences surrounding the disputed land were built by the plaintiff in 2011.

46.  By reasons of the foregoing, I am driven to the conclusion that the plaintiff was not in continuous possession of the disputed land after Chan On discontinued possession in 1998.

47.  My finding as such is sufficient to dispose of the plaintiff’s claim.  For completeness, I shall deal with the remaining issues.

(c)  Whether the plaintiff and/or Chan On have established the sufficient degree of physical control of the disputed land during their possession?

Chan On

48.  By the MOT dated 5 October 1971, with the consent of the Tong as registered owner, Chan On was permitted by the District Commissioner, New Territories to erect a temporary structure for dwelling and a shade on the disputed land.  According to the observation of the experts on the aerial photographs, furrows indicating agricultural activities were consistently observed from 1963 onwards.  The plaintiff said according to Chan On, he was employed to farm Lot 1103 and the disputed land since 1963.  From 1971, Chan On resided in a wooden hut built on the disputed land and in the same year was permitted by the government to do so on payment of licence fees.

49.  Kwan TS confirmed that Chan On was farming the disputed land since the 1960s.  But he said Chan On rented the disputed land from a Sung family.

50.  On the above evidence, I accept that Chan On was the person farming the disputed land since the 1960s and was the one in physical control thereof.

The plaintiff

51.  I have found that the plaintiff moved into the disputed land in the middle of 2006.  I believe that since then, he removed the vegetation thereon and commenced agricultural activities.  Later, he improved or rebuilt the temporary structures thereon so as to provide accommodation for Wang and the son.  In 2011, he built fences surrounding the disputed land.  I am satisfied that the plaintiff has established physical control of the disputed land since the middle of 2006.

(d)  Whether the plaintiff and/or Chan’s occupation (if any) of the disputed land were wrongful and without the permission of the paper owner, ie the defendant and the Tong?

The plaintiff

52.  I have found that the plaintiff moved into the disputed land in the middle of 2006, which was without the agreement of the defendant. The occupation must be wrongful.

Chan On

53.  It is common ground that Chan On farmed the disputed land since the 1960s.

54.  The plaintiff said according to what Chan On told him, when he came to Hong Kong in 1957 or 1958, he was employed by a land owner to grow rice.  In the 1960s, he was owed wages for 2 years.  The land owner therefore gave 2 pieces of land to him as a gift in return, one of which is the disputed land.

55.  On the other hand, Kwan TS, who came to know Chan On in the 1970s, said as he understood, Chan On all along rented the disputed land from a Sung family to do farming for a living.

56.  Mr Chan SC submitted that the allegation of gift is not supported by formal conveyancing.  The MOT is the only objective connection linking Chan On with the disputed land.  It is more likely that the Tong gave permission to Chan On to farm the disputed land rent free since the 1960s.  If Chan On treated himself as owner since the 1960s, he would not have sought the consent of the Tong in his application for the MOT.  Therefore, Chan On treated himself as using the disputed land with the consent of the Tong.

57.  Mr Erik Shum, counsel for the plaintiff, submitted that the defendant, in raising the defence of the licence or consent being granted by the Tong, bears the burden of proving on balance of probabilities that an actual licence or consent was granted to Chan On for possession of the disputed land.  The defendant has not called anyone from the Tong to give evidence as to the circumstances under which the consent for the MOT was signed.  The pure reliance on the consent form to infer a licence or consent was granted for exclusive occupation of the disputed land is a quantum leap on the effect of the said document.  Further, the consent given in the consent form was only to support Chan On’s application to erect 2 temporary structures, it was not a consent or licence for Chan On to “possess” the said structures or even the disputed land for cultivation.  The cases of Chan Suk Yin v Harvest Good Development Ltd, HCA477/2000, 25/2/2004, unreported and Ng Lai Sim v Lam Yip Shing, CACV57/2000, 19/1/2001, unreported, are relied on.

58.  I think Chan Suk Yin (supra) and Ng Lai Sim (supra) were decided on their own facts.  In Chan Suk Yin, the defendant in seeking to prove the existence of a licence, only relied on the inspection records compiled by a property officer short of calling the surviving owner who had allegedly given a licence to the husband of the 2^nd named plaintiff to occupy.  The inspection records only covered the period after 1992 whereas the licence was allegedly granted in 1961.  The trial judge was of the view that there was no direct evidence to support the existence of a licence.  The records of inspection of the property officer took the defendant’s case no further.  In Ng Lai Sim, the Court of Appeal saw no reason to interfere with the findings of the trial judge who simply preferred the evidence of the squatter plaintiff to that of the paper owner defendant.

59.  Whether or not there existed a licence is a question of fact.  Here, Chan On’s application for the erection of the 2 temporary structures with the consent of the Tong attached is the only available evidence relating to the occupation of the disputed land by Chan On.  It must be remembered that the disputed land is a piece of farmland.  Therefore, the MOT is required for any temporary structures to be erected thereon.  If Chan On was already gifted with the disputed land by the Tong in the 1960s as claimed by the plaintiff, he needed not to support his application with the consent of the Tong as the registered owner in 1971.  In any event, there is no assignment by the Tong to substantiate the alleged gift.  Hence, the logical inference is that Chan On was at the time of the application not only occupying the structures, but also farming the disputed land with the consent of the Tong.

60.  Mr Shum commented that the agreement for sale and purchase in respect of the sale of the disputed land by the Tong to the defendant expressly provided that the sale was subject to existing occupiers and the Tong was not required to deliver vacant possession on completion or to indemnify the defendant in respect of any claim for adverse possession.  Mr Shum submitted that if there existed a licence, the Tong should have it terminated before the sale so as to get a higher price, or at least mentioned it in the agreement.  Mr Shum premised his theory on one of the many possibilities that is in favour of the plaintiff.  There can indeed be other possibilities, for example, that the Tong wanted to sell the disputed land urgently and therefore did not want to spend time to recover possession of the disputed land before sale.  There is simply no evidence to point one way or the other.  

61.  Mr Shum tried to segregate the erection of the temporary structures from possession thereof or of the disputed land for cultivation.  As the disputed land is a piece of farmland, the purpose of the temporary structures thereon must be for the dwelling of those cultivating the land on a daily basis as well as for the storage of tools and fertilizers.  Under the MOT, Chan On was permitted to erect the 2 structures for dwelling and shade.  The aerial photographs show that the disputed land was in active cultivation from 1963 onwards.  It is the plaintiff’s case that Chan On was the one who farmed the disputed land since 1963 and that he resided in the wooden hut on the disputed land since 1971.  To say that the consent was confined to the erection of the structures by Chan On, but no consent was given to him to use the structures for dwelling or to farm the land on which the structures were built is, with respect, artificial, illogical and unreal.

62.  By reasons of the above, I am of the view that the occupation by Chan On was not wrongful.

(e)  Whether the plaintiff and/or Chan On have the requisite intention to possess the disputed land?

(f)  Whether the possession of the disputed land by the plaintiff and/or Chan On (if any) during the subsistence of the MOT from 1971 to 29 August 2012 was done with the requisite intention to possess or constituted adverse possession of the disputed land?

63.  These 2 issues can be dealt with together.

The plaintiff

64.  I have found that the plaintiff moved into the disputed land in the middle of 2006.  Thereafter, he improved and rebuilt the structures thereon and eventually built fences surrounding the disputed land in 2011.  Those acts were done during the subsistence of the MOT.

65.  The test of intention is objective: see Ho Hang Wan v Ma Ting Cheung as Personal Representative of Ma Sz Tsang [1990] 1 HKLR 649.  By the acts of the plaintiff as such, I am satisfied that he has the requisite intention to possess the disputed land.

Chan On

66.  I have found that Chan On was occupying the disputed land with the consent of the Tong.  He obtained the MOT with the consent of the Tong as the registered owner.  As such, he could not have the intention to exclude the Tong from the disputed land.  I am not satisfied that he had the requisite intention to possess the disputed land.

(g)  Whether any limitation period could ever begin to run against the Tong prior to 28 October 1993 in respect of adverse possession (if any) of the disputed land?

67.  This issue emanates from the defence of the defendant.

68.  Paragraph 5.4 of the consolidated defence and counterclaim was pleaded in the following terms:-

“During the periods of alleged adverse possession (which are not admitted) by Chan On and/or the Plaintiff, such members were born from time to time so that no relevant limitation period ever started to run against Sung Yi Wo Tong, until after the birth of the last member born before the assignment of the Property by Sung Yi Wo Tong to the Defendant in 1993.”

69.  In the defendant’s voluntary supplemental answers to the plaintiff’s request for further and better particulars of the consolidated defence and counterclaim dated 1 June 2016, the defendant identified Sung Ah Wong and Sung Wong Sang with their respective dates of birth as known members of the Tong.

70.  Unlike the case of Leung Kuen Fai v Tang Kwong Yu (or U) T’ong or Tang Kwong Yu Tso [2002] 2 HKLRD 705 in which the hereditary nature of the T’ong or Tso was not in dispute, Mr Shum submitted that there is no evidence to prove that the Tong is a hereditary trust.  Mr. Shum submitted that the mere use of the word t’ong in its name does not mean that it is a Chinese family hereditary t’ong.  In addition, the defendant has failed to prove that the alleged new born members are in fact members of the Tong, citing the case of Wealth Hill International Investment Ltd v Wong Kwan Siu [2013] 3 HKLRD 300 in support.

71.  Apart from producing certain documents in relation the Tong and its lists of members, the defendant adduced no evidence to prove the nature of the Tong.

72.  No evidence is led that the 2 named members of the Tong are the direct descedants of the focal ancestor.  As pointed out by Mr Shum, the fathers of the 2 named members, namely, Sung Man Tong and Sung Koon Ching, were themselves not members of the Tong.

73.  Furthermore, no evidence is led that the 2 named members are still alive.  As members of the Tong only have a life interest in the Tong’s properties, the burden is on the defendant to prove that those members are still alive: see Tsang Wing Kit Eric v Occupiers [2009] 3 HKC 496 at 501I.

74.  Mr Chan SC made no submission in reply to Mr Shum’s complaints.

75.  In view of the inadequacy of evidence on the part of the defendant, the defendant’s defence based on hereditary trust simply cannot get off the ground.

2.   Whether the plaintiff has been in continuous possession of the disputed land for a period of 12 years since around 1996 or 1998, or in any event has acquired the possessory title as adverse possessor of the disputed land:

(a)  Whether the plaintiff has established the sufficient degree of physical control of the disputed land during his possession?

76.  I have found that the plaintiff moved into the disputed land in the middle of 2006.  I am satisfied that the plaintiff has established physical control of the disputed land since the middle of 2006.  However, his occupation was less than 12 years before the commencement of the present proceedings.

(b)  Whether the plaintiff’s occupation of the disputed was wrongful and without the permission of the paper owner, ie the defendant and the Tong?

77.  I have found that the plaintiff moved into the disputed land in the middle of 2006.  Thereafter, he improved and rebuilt the structures thereon and eventually built fences surrounding the disputed land in 2011.  Those acts were done without notifying the defendant as the paper owner.  His occupation must be wrongful.

3.   Whether the defendant is entitled to damages for trespass or mesne profits, and if so, how much?

78.  The defendant claims damages for trespass or mesne profits against the plaintiff.

79.  However, no evidence is adduced by the defendant as to the market value of the disputed land.  There is no order for a split trial.

80.  That being the case, I would only award mesne profits at the nominal rate of $1 per month from the date of the counterclaim (ie 6 August 2015) to the date of vacant possession.

Conclusion and order

81.  By reasons of the foregoing, the plaintiff’s claim is dismissed.

82.  In respect of the counterclaim, I give judgment in favour of the defendant against the plaintiff for:-

(1) delivery of vacant possession of the disputed land;

(2) mesne profits at the rate of $1 per month from 6 August 2015 to the date of delivery of vacant possession to the defendant; and

(3) an order that the lis pendens registered in the Lands Office against the disputed land by memorial no 13071900470011 be vacated.

Costs

83.  Costs should follow the event. I make an order nisi that the plaintiff shall pay the defendant costs of this action (claim and counterclaim included), to be taxed if not agreed, with certificate for 2 counsel.

84.  In the absence of any application by summons to vary the same within 14 days from the date of this judgment, the order nisi shall become absolute.

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