TANG KAI TUNG, the Manager of TANG YUK CHO TSO v. TANG WAI LUN

HCA 2411/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2411 OF 2012

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J U D G M E N T

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1.  This dispute over certain plots of land has a litigation history which needs to be stated shortly as part of the background, even though the main relevant history goes back to the earlier part of the 20^th century.

The original action of 1998

2.  The father of the defendant to this action commenced proceedings in the High Court on 5 February 1998 against the plaintiff in this action, seeking an order that the manager of the Tso assign the Tso’s interest in the lots to the plaintiff and claiming adverse possession of the land in question — lots 915, 961, 1109, 1144, 137 and 168 in Kam Tin Pak Lin, Demarcation District 109 in Yuen Long.  The father died on 24 April 2001 and his son succeeded him as plaintiff to continue the action by order dated 5 September 2001.

3.  The father alleged he was the owner of the six lots relying upon two alleged conveyances of sale dated 28 December 1936 and 26 January 1937 to Tang Shu Fun, his father.  The purported vendor of the said lots, Tang Chong Ming, did not, it is agreed, register the “change” of ownership, accordingly the registered owner continued to be the manager on behalf of the Tang Yuk Cho Tso, then the purported vendor, Tang Chong Ming. 

4.  When Tang Shu Fun died in 1939, the father contended that the family members had enjoyed continuous possession and occupation adverse to the registered title or interest of the Tso, since 1937.  It is alleged that the family members occupied the house on lot 137 and used the other houses on the lots as pig‑sties or for storage, used lot 168 as a paddy‑field and leased out lots 961, 1109 and 1144. 

5.  In June 1997 the solicitors for the family wrote asking the defendant in that action (the plaintiff in this action) to execute an assignment confirmatory of the title to the lots claimed by the family, relying upon the two “conveyances” of 1936 and 1937 respectively.

6.  This then was the basis of the family’s claim in that 1998 action with an alternative claim in adverse possession since 1937 relying upon the Limitation Ordinance (sections 7, 8 and 9) and 20 years adverse possession.

7.  The Defence in that action, filed on behalf of the Tang Yuk Cho Tso (the plaintiff in this action), stated that it was unaware of the existence of the two alleged conveyances and in effect denied their validity.  It alleged that the signatures of the purported vendor in the conveyances (Tang Chong Ming) were forged.  There follow the Tso’s contentions in relation to each lot.

8.  Lot 137 was leased to one Luk, by Madam Lau Yung as representative of the Tso who also collected the rent — $100 monthly in 1993.

9.  Lot 168 was vacant land until the plaintiff family erected a house in 1994 or 1995 in face of objections from the Tso. 

10.  Lots 915 and 961 were vacant and unoccupied.

11.  Lot 1109 was occupied by a tenant who, from April 1997 paid $500 rent for that year and then vacated the lot since which time it has remained vacant.

12.  Lot 1144 was vacant and unoccupied prior to 1995 but, in April 1998 (the time of the filing of the defence) was occupied and cultivated by an unknown person.

13.  Adverse possession was denied.  This 1998 action was not progressed and was dismissed for want of prosecution on 11 March 2010 by Master Kwang.  Some inconsequential activity had taken place in 2010.  There was an appeal against Master Kwang’s decision which was heard by Yam J on 29 June 2011 who dismissed it.

14.  There matters rested until the manager of the Tso commenced this action in December 2012.

The present action: 2012

15.  In short, the plaintiff Tso, through its manager, claims possession of the lots on the basis that the defendant is a trespasser and entered into possession of the land on his father’s death in April 2001.  He has trespassed ever since and refused to give vacant possession despite various demands and requests including a letter of 18 October 2012 from the plaintiff’s solicitors.

16.  The defence to the plaintiff’s claim is in effect a repetition of the claim in the earlier 1998 action brought by the defendant as succeeding plaintiff which was dismissed for want of prosecution in 2010.  It is effectively a reversal of roles.  For some unexplained reason, the defendant in paragraph 2 of his pleading denies this earlier action and its outcome.

17.  He places reliance upon the two alleged “conveyances” of 1936 and 1937 and claims as beneficial owner of the lots.  He also relies upon sections 7 and 17 of the Limitation Ordinance (Cap 347) as establishing a time‑bar against the plaintiff’s claim.  Apart from relying on the documents as establishing beneficial ownership and admitting failure to register them so as to constitute a change of title, he pleads adverse possession from 1957 continuing through 2001 to date as his father’s successor.  The Defence then goes on to set out a considerable amount of evidence in respect of the lots upon which he places reliance as constituting adverse possession.

18.  The plaintiff’s Reply puts all the fundamental content of the Defence in issue and specifically avers that the alleged “conveyances” are not authentic and the signatures of the purported vendor are forged.  Its ‘fall‑back’ position is that the vendor had no authority to convey title to the lots.  Finally the succession of beneficiaries of the Tso prevents the defendant from relying upon adverse possession and therefore there is no time bar operating against the plaintiff.

The “conveyances” of 1936/1937

19.  It is convenient to start with an examination of these Chinese documents although historically they are not the first documents in time, whatever the actual date of their creation may be.

20.  The first, Exh D1, bearing a written date of 28 December 1936 (25^th year of the Republic of China) has an adhesive 10 cents stamp duty stamp and an impressed stamp duty seal (or stamp) dated 30 January 1937.  Nothing raises the eyebrows so far. 

21.  The content in Chinese characters refers to an agreement for the sale of lots 915, 961, 1109 and 1144 “plus two other houses of lot 168 and 137” of Demarcation District 109, to Tang Shu Fun, the seller being Tang Chong Ming.  It also states that: “half of the south[ern] side of lot 137 is possessed by Tang Shu Fun”.  There is a signature of a witness after the characters translated as “witnessed by”.  There is no signature of the purported purchaser Tang Shu Fun.  The name of the purported vendor, Tang Chong Ming appears twice in the body of the document as, I find, part of the narrative of the alleged transaction.  I am not satisfied, on the balance of probabilities, that the document bear the signature of Tang Chong Ming.  Therefore the only signature is that of the alleged witness.

22.  The second document, Exh D2, bearing a written date of 26 January 1937 has an adhesive 10 cents stamp duty stamp and an impressed stamp duty seal (or stamp) dated 18 January 1937.

23.  If the seal or stamp is a genuine one, it is impressed upon a document which could not have been created on 26 January 1937 — ie eight days later than the impressed seal or stamp.  There is no explanation for this.

24.  The content in Chinese characters refers to a contract for the sale of the “green‑brick house (the side wing) of the south[ern] side of lot 137 to Tang Shu Fun” , the seller being Tang Chong Ming.  The first point of note is that, as confirmed by the plaintiff’s evidence (and diagram Exh P2) it refers to the same house as the previous document.  The second is that, unlike the previous document it does not bear the provision “witnessed by” or a signature of a witness.

25.  The body of the narrative content refers to Tang Chong Ming as vendor and Tang Shu Fun as purchaser, but there is no signature for either of them as I so find.

26.  The first mention of these two “conveyances” is in the letter of 10 June 1997 from the defendant’s solicitors, enclosing copies of them and asking for the consent of Mr Tang Kai Tung as manager of the Tso, to the registration of the documents by a confirmatory assignment so that the defendant could replace the Tso as possessing title to the same lots.

27.  Not surprisingly the manager, the plaintiff in this action, declined to do so.  The defendant’s father then set in train his abortive 1998 action as the plaintiff seeking, inter alia, a declaration that he had the title to the lots.

28.  It is clear that at no earlier stage had the defendant sought to register the documents as supporting his claim to title.  At least, there is no evidence that any such attempt had been made.

29.  The defendant gave evidence that his father, Tang Ping Kwan, had received the documents from his mother (the defendant’s grandmother) and then passed them on to him.  His father died in 2001.  He said that he first saw them when he was a teenager in the early 1970’s.

30.  It is of some interest that in June 1975 the defendant’s father wrote to the members of the Kam Tin Rural Committee.  The letter was in fact written on his instructions but in the first person as if he wrote it himself.  It referred to the alleged transactions between Tang Chong Ming as manager of the Tso and Tang Shu Fun, his own father, by which the latter bought the lots in question, “The title deed of the house was delivered and taken over.”

31.  The date of Tang Chong Ming’s death was stated to be in 1938.  The date of Tang Chong Ming’s “selling the ancestral property to my late father is November 1937 with the contract note of that year as evidence”.  A copy of the contract note was stated as attached to the letter.

32.  Neither the original nor a copy of the contract note has been produced to this court.  Even more strangely the alleged “conveyances” were not specifically referred to nor were copies of them attached to the letter sent.  Accordingly there remains only a reference to a contract note dated November 1937.  Without seeing the document referred to as a “contract note”, it is impossible to say whether or not it deserves that label.  Its alleged dating of November 1937 is entirely inconsistent with the alleged “conveyances” which bear dates December 1936 and January 1937 respectively, some 11 and 10 months earlier.  It is safe to assume that these “conveyances” did not then in 1974/75 exist.

33.  There was also some concern with the date of Tang Chong Ming’s death variously referred to as March 1935 and 1938.  In fact he died in September 1937.  Ordinarily such variations would not excite interest or suspicion.  However the defendant has challenged the death certificate produced relating to Mr Tang Chong Ming because the name of the deceased upon it is Tang Cheung Ming with the date of his death recorded as 2 September 1937.  No certificate has been produced to challenge the applicability of this certificate over the 40 years since the letter of June 1975 stating his death to be in 1938 and that this “can be checked and verified at the Births and Deaths Registry”.  The defendant has not produced any statement which challenges this.

34.  I do not propose to consider this certificate at length.  I am satisfied that it is the proper death certificate for Mr Tang Chong Ming.

The rent receipts

35.  A number of these original receipts has been produced by the defendant dating from 24 February 1946, being no doubt the first after the relief of Hong Kong from Japanese occupation in 1945.

36.  The first, and the next in sequence (7 October 1948) bears the name of Tang Chong Ming against the printed “Name” on the Crown Rent slip.  The name of the Tso is however written over the name of the manager in red.  When and by whom that is written is not known.  Each clearly bears the sign of having been a perforated detachable slip from a book of Crown Rent receipts and each bears, in handwritten Chinese characters, the name of the Tso amongst the printed Chinese characters.

37.  After the one dated 7 October 1948 the name of the Tso manager is replaced by the name of the Tso itself.  The manager Tang Chong Ming had died in September 1937.

38.  There are gaps in the periods covered by these receipts.  For example, there are none between October 1949 and October 1955.  When we come to 14 October 1958 an interesting situation is disclosed.  There are two receipts of the same date: one in the name of the Tso and the other in the name of Tang Shu Fan (or Fun) who, I understand, to be the grandfather of the present defendant and he, I was informed, died in 1939.  The receipts are sequential — 13760 and 13761.  The one in the name of the defendant’s deceased grandfather clearly relates to different lots of land, with a different Crown Rent paid – HK$5.48 as against HK$3.30.  There is also a different account page in the ledger. This underlines that whoever was paying Crown Rents was aware of the distinction between the ownership of the land for which a rent of HK$3.30, was being paid, and that for which a rent of HK$5.48 was being paid.  These receipts were in the possession of the defendant, no doubt handed down to him by his forbears.

39.  The regularity of payments changes from more or less on an annual basis, after 1974, to longer periods — three years from 1975 to 1978, and then a gap of five years, and 1983 to 1988.  It may be that receipts have been lost.  There is one other receipt in the bundle of documents.  It is a photocopy of a receipt for Crown Rent paid on behalf of the Tso to cover the period July 1993 to June 1997.  The original has not been produced but its source is the defendant.  These last available receipts are also in the name of the Tso as owner.  The letter dated June 1975 from the defendant’s father (written at his dictation on his behalf) to the Chairman of the Kam Tin Rural Committee stated that he paid the annual Crown Rent and kept the receipts.

40.  The only conclusion to be drawn from the position disclosed by these receipts is that throughout the period concerned, and beyond if more receipts exist, the defendant’s forbears were acknowledging the Tso’s ownership of the lots of land and paying the Crown Rent on its behalf.  There is no attempt by the defendant or his forbears to establish ownership of the land in place of the Tso.  This, therefore is entirely inconsistent with claimed ownership by virtue of a conveyance on sale and, as I will deal with in more detail later, adverse possession.

The certificate of 1919

41.  This aged document “dated 1^st day of December 1919” has been misleadingly described as a licence.  It emanates from the District Lands Office, Tai Po, and is now held together as one piece (its original state) by sellotape.  There are numerous writings on it subsequent to its creation.

42.  The ‘A’ Rent Roll Bk No 71 is printed at the top and this appears also on the earlier Crown Rent receipts. I repeat the wording as best I can decipher, given its deteriorating state:

“This is to certify that Yuk Cho Tso (bracketed with another name which may or may not be crossed through –– Chong Ming’s name is added below a definite striking through of a name) –– registered in the Land Office as owner of the undermentioned Lot in the New Territories.”

The date referred to follows and the signature of the then Assistant Lands Officer.

43.  There then follow in ink writing a list of lots including those that are the subject of this action.  Alongside some of them is the word “Sold” or some other clear indication of sale.  There is no such indication alongside any of the subject plots.  Those that have been sold are struck through with with a line.

44.  Also, in the body of the certificate is the following printed sentence:

“N.B. This certificate is given for the sole purpose of enabling land holder to identify lands in the Land Office registers and gives no title whatever to them [or the lands] nor can this certificate be transferred or dealt with in any way whatever.”

45.  There is in red ink writing in the top right hand corner of the front of the document the following:

“No transaction to be allowed on this property without the consent of D.O. (or D. Office) see L.O. (Lands Ordinance) 134/31(?)”

There is no evidence that the defendant or his forbears ever tried to obtain such consent.

46.  Finally of any significance, is written a reference to what must be the Crown Rent Ledger and relevant page –– 20/267.  The total rent due on the remaining unsold Lots –– “3.30” –– is written in pencil in the bottom right of the page.  These figures are the same as appear on most of the Rent receipts.

47.  This document was also produced by the defendants.  One point is worth making at this stage.  If Tang Chong Ming had indeed conveyed any of the lots to the defendant’s grandfather in 1937, one would have expected him as the manager of the Tso to have noted the sales on the certificate as all the other sales had been recorded.  This document therefore is itself inconsistent with the alleged “conveyances”.

The succession to the management of Tso and the defendant family dispute

48.  The death of Tang Chong Ming in 1937 seems to have left a vacancy or void in the management until the matter came up for consideration in 1974.  At that time one Tang Kai To applied to be the manager and this was opposed by the defendant’s father.  That opposition which effectively caused the position to remain vacant until 1995 –– 20 years –– is not without significance in this case.  It was this opposition to the appointment of Tang Kai To which precipitated the letter to which I referred earlier from Tang Ping Kwan in June 1975.  As the defendant made clear in answer to a question from me, his father wanted the position of manager, as did he himself in 1995 when the plaintiff was finally appointed.

49.  The letter therefore bears some study in this context.  It asserted the sale of the subject lots to Tang Ping Kwan’s father and gave vent to an accusation that the proposed manager intended to acquire the property formerly managed by Tang Chong Ming and sold to Tang Shu Fun.  He asserted, probably correctly, that he had paid the annual government’s rent and had receipts as evidence.

50.  There was some concern with the actual date of death, with which I have already dealt.  He then went on to say that he had sought the advice of village elders “and knew that the date of Tang Chong Ming’s selling the ancestral property to my late father is November 1937 with the contract note of that year as evidence … (photocopy of the contract note … attached herewith)”.  I have already pointed out that no such contact note has come to light. Tang Chong Ming had died two months earlier in September 1937.

51.  More importantly the alleged “conveyances” (which were not referred to in the letter and certainly copies were not attached to it) are dated December 1936 and January 1937, almost one year earlier than the contract date alleged.  I am satisfied that he was not in possession of those documents at that time.  Otherwise he would have got the date right, would have referred to them and, moreover, attached copies of them.  If in existence and genuine they made the contract note irrelevant as well as being out of date.

52.  The final part of the letter, of any importance, contains a request to the village elders to act impartially on his behalf and provide proof to the District Office, so that he can take over his late father’s estate, to include the lots that he claimed.

53.  Tang Kai To was not appointed, no doubt as a result of the opposition from the defendant’s father.  Nor until 1993, or so it appears, was the question of the appointment to the vacant managership raised again. Then the defendant’s father supported Tang Kai To despite his strong opposition 20 years earlier.

54.  In due course the District Office notified the defendant (by letter of 31 May 1995) that the plaintiff was likely to be appointed as manager of the Tso and that in effect, the defendant’s opposition to this appointment based upon the land dispute was rejected.  He was advised that his argument or claim in respect of the land should be resolved if not by agreement, then by the court proceedings.

55.  Not for another two years did the defendant resort to instructing solicitors to make a claim.  It was then that the alleged “conveyances” first saw the light of day as far as the Tso and its manager was concerned.

56.  The position thus far was that the defendant and his forbears had paid Crown Rent on behalf of the Tso in respect of the subject lots, had probably acted as the manager of the Tso but had done nothing to formalise its alleged title.

The proceedings begun in February 1998 (by the defendant’s father as plaintiff)

57.  To emphasize the time scale, these were commenced almost 24 years after the defendant’s father raised the matter with the Kam Tin elders in the context of his opposition to Tang Kai‑To being appointed manager of the Tso.  In that meantime, the defendant’s father and possibly the defendant himself continued to pay the Crown Rent in the name of the Tso.

58.  The defendant’s action was based on a claim of title by virtue of conveyances on sale and of “continuous and exclusive possession and occupation of the lots” thereby, setting up a claim of adverse possession.  It was averred that the Tso’s title to the lots was extinguished in or about 1957.

59.  The Defence on behalf of the Tso was filed on 2 April 1998.  In relation to the two alleged conveyances it was pleaded that the purported signatures of Tang Chong Ming were forged.  The documents had not then been produced other than by way of photostat copies accompanying the defendant’s solicitors’ letter of 10 June 1997.

60.  It then set out the Tso’s position regarding the various lots which I repeat here although I will deal with the conflicting contentions with regard to the lots later.

61.  Lot 137 was occupied by a Mr Luk under a lease granted on behalf of the Tso by the manager’s mother Madam Lau Yung.

62.  Lot 168 had a house erected on it by the defendant or his father in 1994 or 1995 in the face of objection by the manager.  The land had been unoccupied hitherto. 

63.  Lots 915 and 961 were unoccupied at all material times.

64.  Lot 1109 had been occupied by a tenant for sometime.  He paid an annual rent of $500 for the year ending 1997 but left that year.  The land had been vacant since.

65.  Lot 1144 had been unoccupied prior to 1995 but at the date of these proceedings it was being cultivated by someone unknown. 

66.  The action had been started by the defendant’s father but after his death the defendant was substituted (as the plaintiff in that action) in September 2001.  The father (the original plaintiff) had died in April 2001.  Nothing of consequence had taken place in the intervening three years.  The defendant had not served a Reply.

67.  Then nothing happened for nine years when a Notice of Intention to Proceed was served in March 2010 which then precipitated this plaintiff’s application to strike the action out for want of prosecution.  That was successful and the appeal against the master’s decision was dismissed the following year.

68.  There is an obvious inference to be drawn from the fact that for nearly 13 years the defendant’s father and the defendant himself failed to pursue their claim, and that is that they had no evidence to support their claim and/or the existing material contradicted their assertions.  The master’s order included as a ground, apart from prolonged or inordinate and inexcusable delay to the prejudice of the defendant, a finding that the plaintiff had no intention of bringing the proceedings to a conclusion in abuse of the court’s process.

The adverse possession claim

69.  The plaintiff’s contention in respect of each lot is set out earlier at paragraphs 8 to 12 as they were in the original 1998 action brought by this defendant’s father.

70.  His evidence before me in relation to these lots was as follows:

71.  Lot 137 he said had two houses but his own knowledge can only have begun sometime after his birth in 1961.  His mother and father lived in the south house until about 1973 when his father built a new house outside the lot but his grandmother moved back into the south house until she died in 2001.

72.  The north house was used for storage.  In about 2001 the two houses were joined and one of his younger brothers has lived there since.

73.  Lot 168 had a varied history.  The original house on it was demolished and the bricks used to build another house on the family’s own lot (864). Since (approximately 1937) the lot had been used for cows, storage and a chicken farm.  This defendant’s own knowledge does not start until another brother built a house on it and from 1997 was leased to a Mr Yeung, for a monthly rent of $500, for one year.  In 2009, it was leased to a Madam Tam for $2,100 per month for two years (until May 2011) but she surrendered this after only one year.  It was then leased (May 2010) to one Flaminiano Borita until May 2012 at a monthly rent of $3,000.  Finally it is said to be currently leased to a Mr Rystom at a monthly rent of $3,500 until January 2015.

74.  There is no statement from any of these alleged tenants to support these contentions. There is a form of lease, apparently dated 6 May 2009, relating to the tenancy of Madam Tam Wing Ting (May 2009 to May 2011), and to other tenancies.

75.  Lot 915 according to the defendant was farmed by his forebears from about 1937 to 1966 and then visited from time to time by the defendant’s father to ensure that there were no occupiers.  In about 1997, it was leased to Lam Wing Yuen with the current lease expiring in December 2019 at an annual rent of $10,000.  Some documents purporting to be the leases concerned have been provided.  There is no statement from Lam Wing Yuen.

76.  Lot 961 is alleged to have been used in a similar way until about 1959 when it is said to have been leased to Chan Yu Ming and the next year (1960) for 38 years to Chan Wing Kay.  There is a number of purported leases relating to this.  The defendant says it was vacant from 1998 to 2003, which happened to be a period immediately following the plaintiff’s assertion of his right as Tso’s manager to the then tenant in 1997.  Yet the defendant says his brother leased this lot successively from 2004 to 2011 to Lee Yat Kau who sub‑leased it to Law Do Fat.  In May 2014, the defendant then appears to have taken over from his brother by leasing it to Law Do Fat for a three year term.

77.  There is no statement from the alleged tenant.

78.  Lot 1109 is said to have been cultivated by the defendant’s forbears until about 1967. Thereafter it was leased to Lam Wang Shing until 1998 when he returned it to the defendant.  In 1999, he leased it for successive periods to Chan King Lam to date, and said to be continuing to 2017.

79.  There is no statement from Chan King Lam.

80.  Finally lot 1144 was said to be cultivated by his forebears until about 1953 when it was leased to Chan Fong continuously until 1999.  However the defendant concedes that the plaintiff intervened in 1996 and 1997 and requested payment of rent to him.  But the defendant contends that Chan Fong surrendered the lease and vacated the lot in 1998.  In 1999 the defendant says he granted consecutive leases to Chan King Lam to endure until 2017.

81.  There is no statement by Chan Fong or Chan King Lam.

82.  The defendant’s direct evidence is very limited.  It is not supported by any of his brothers.  His involvement seems to have gathered pace after the appointment of the plaintiff as manager of the Tso in 1995.  It gathered pace, on the defendant’s own version, at or about the time that his solicitors wrote to the plaintiff in June 1997.

83.  At this stage before I consider the matter of the Limitation Ordinance and its application to the members of the Tso, it may be helpful to express my findings on the discrete aspect of adverse possession in the context of the law. I will then deal with my conclusions in relation to the documents examined earlier.

The law to be applied

84.  The defendant has of course to satisfy me that he has established adverse possession for the requisite period or periods.

85.  The most comprehensive survey of the approach to be adopted is that in Powell v McFarlane [1977] Property & Compensation Reports Slade, J (page 452) which has been followed and approved in a number of leading cases.

86.  The aphoristic starting point is that a person claiming possession, without having the paper title, must show that he has both factual possession and the intention to possess, the “animus possidendi”.  The question to be asked is “does he have an appropriate degree of physical control?” It is necessary to look at all the circumstances to ascertain whether or not his actions and activities constitute a sufficient degree of exclusive physical control.  Acts of possession of parts of the land in question may be evidence of possession of the whole.  Again it will be a matter of degree.  For example inactivity in relation to part of the land which is deliberately left fallow so as to regenerate fertility in order to be used productively in a later season or seasons does not terminate possession of the whole.  To argue otherwise would be to turn the agrarian revolution on its head.

87.  Slade, J (as he then was) said (at page 471) “… 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”.  This is an attractive and practical alternative exposition of his earlier more legalistic definition of “factual possession” (at page 470):

“It must be a single and exclusive possession [the original word was ‘conclusive’ but was corrected as a typographical error by Slade, J in Buckinghamshire County Council-v-Moran 1990 Ch 623 at page 641A and adopted as such in later authorities] 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.”

88.  In JA Pye (Oxford) Ltd v Graham [2003] 1 AC page 419, Lord Hope of Craighead said:

“The general rule, which English law has derived from the Roman Law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of the property simultaneously. As between themselves they have separate rights but as against everyone else they are in the possession of a single owner.”

89.  There may be circumstances where a squatter is deemed to be in actual possession of the land providing he is the only person in effective control of it despite the fact that the true owner makes some limited use of the land, not amounting to effective control of it — see Hounslow London Borough Council v Minchinton [1997] 74 P & CR, page 221.

90.  Neuberger, LJ (as he then was) in Tower Hamlets London Borough Council v Barrett [2005] 1 P & CR page 9 said:

“Factual possession involves some sort of physical presence or at least being in physical control in some real way. It self‑evidently cannot assist the paper‑owner to show that he had the right to go on the land during the 12 years the squatter was in occupation (In a sense it is because the paper owner has that right that he is at risk of losing his title to the squatter). It is hard to see why a contingent obligation of the paper owner, performance of which would require him to go on the land in certain circumstances, which did not arise during the 12‑year period, should make any, let alone all, the difference to the issue of whether he enjoyed possession during that period.”

91.  These decisions, approved and adopted in subsequent cases in England and Hong Kong, form the rationale and framework against which vying contentions are to be tested.

The defendant’s case

92.  I found the defendant an unconvincing witness.  He is of course handicapped by the fact that he has inherited as a committed cause, the story handed down by his father and other forebears.  But he is not supported by any independent testimony.

93.  I think that he and more particularly his family before him, have sought to take advantage of the management vacuum created by the death of Tang Chong Ming.  The position was aggravated by the years of Japanese occupation which preceded the hiatus from the liberation of Hong Kong up to 1974.

94.  I have concluded that his family obstructed the appointment of a manager for the Tso in 1974/75 and that his family tried to do the same 20 years later, in their own interests.  They wanted the position of manager as the defendant himself conceded, and one of the obvious motives for this was to be in a position whereby they could establish their title to the lots in question.  They would rather there be a vacuum in the management if they could not have it themselves.  This too was in effect conceded by the defendant.

95.  That the family had the de facto management of these lots on behalf of the Tso for a number of years after the liberation of Hong Kong is difficult to dispute, but such management is not in law to be equated with the criteria for adverse possession.  How they used these lots is not known with accuracy.  They clearly paid the Crown Rent for the lots with the receipts making it clear that the Tso were the owners.  When and how the family obtained possession of the certificate is not known.  The certificate made it clear that the lots in question were unsold.  If the certificate came from Tang Chong Ming in his life time, it would have been seen simply as a certificate of land holding of the Tso.  Nothing was done on it to record any change of title.  It could never be regarded as supporting their claim.  It is likely to have been used solely to aid the recording of the Crown ground rents paid by the Tso.

96.  Between 1946 and 1974 the family took no step to establish any title to the lots they claimed.  They continued to act as the Tso’s agent.  Any rents they collected from any lettings of these lots were to be held on trust for the Tso, and they therefore were accountable.  They were not entitled to act as if they owned the lots and therefore to claim that any building on any of them was by right or with agreement.  By continuing to pay the ground rent on behalf of the Tso they were acknowledging the title and entitlement of the Tso and not asserting any claim to title on behalf of themselves.  This therefore is inconsistent with any claim of adverse possession.

97.  When they raised a claim of entitlement by virtue of an alleged contract of sale in 1974/75, they knew then that it was disputed and that it had to be resolved by agreement and legal process.

98.  It was unfortunate that the position of manager was left vacant but the defendant’s father or family had effectively prevented that vacancy being filled: they, or one of them, had hoped to acquire the position itself, which would probably have facilitated the advancement of their claim.  I am satisfied that was what they intended.

99.  Therefore for the next 20 odd years they took no steps well knowing of the opposition to their claim but continued to pay the Crown Rents and acted as agents of the Tso.  As I shall indicate I do not believe that they had in their possession, in 1974/75, the alleged “conveyances”.

100.  Another effort was made in 1995 to resist the appointment of a manager for the Tso, the plaintiff in this action.  They sought to negotiate with him the acceptance or confirmation of their claim to title.  I am satisfied that they did not produce or provide the alleged conveyances as evidence of their claimed status. They would not have been accepted as such in any event.

101.  One asks rhetorically why did the defendant and his father oppose the appointment of a manager of the Tso in 1974/75 and 1995, and seek to become the manager themselves if they had a valid claim in respect of the lots which, if theirs, did not require a manager?  The only answer is that they did not want a possible negotiated settlement, or an independent judicial decision, preferring to try and merge the roles of occupier, manager and trustee so as to legitimate their claim.

102.  Eventually in 1998 they resorted to litigation and with the letter before action (in 1997) the so‑called conveyances emerged from the woodwork.  Thereafter the defendant and his father appear to have extended their activity in relation to a number of the lots, perhaps in the hope of consolidating their position, by renewing leases to third parties into the future.  They well‑knew their claim of title was challenged on behalf of the Tso and they did nothing to progress their action hoping perhaps to intimidate the Tso and/or its manager.

103.  But the action “hung fire” and for over a decade they did not pursue it.  All the efforts made by managing the lots in question availed them nothing.  One inference is that they were simply stalling for time.  Another is that they knew that their alleged conveyances would not stand up to scrutiny.  They were content to grant leases so as to benefit financially to a significant extent.  This latter conclusion is based upon the alleged leases actually having been granted to the named lessees.  Only the disclosed “leases” support that.  There is no oral evidence beyond that of the defendant, which I find unreliable.  The money received from such lettings belongs to the Tso as legal owners and is held on trust for it by the defendant.

104.  Although there is a great difference in the disputed versions of how the lots were used, I am inclined to the view that the plaintiff’s version of their use, certainly up to 1995/1996, is more credible.  The defendant’s case is a self‑serving reiteration of the family’s claim.  Yet it is obvious that however limited was the use of the lots certainly up to 1997, the defendant and his forbears were “managing” the lots for many years — to the extent of paying the Crown Rents for the Tso although those modest sums may have come out of some payments exacted by the defendant’s forbears from time to time.  Since I do not accept the defendant’s evidence, he has not established exclusive possession.  He may well have had “animus possidendi” for some time — and certainly this is demonstrated by what he tried to do after 1997 (assuming for the moment that this leasing activity has not been fabricated) but that falls short of “adverse possession”.

105.  The action by the defendant was struck out as I referred to earlier.  The period taken up by that action — 1998 to 2011 is clearly not a period upon which the defendant can rely for adverse possession, and his activities during it, whatever they may actually have been in order to try and consolidate his position, do not lend weight to the claim. The striking out of an action which the defendant failed to pursue makes it clear that, whatever the reason, he decided not to pursue his claim on any of the bases alleged.  The claim of adverse possession therefore fails.

The conclusions to be drawn from the old documents

106.  I have already expressed my initial impressions afforded by these documents.

107.  The conveyances are highly suspect and in any event, I find, are unsigned by the purported parties.  The stamp duty impressions are a curiosity which, on the face of it, suggest that the impressions were made by the Stamp Duty Office. But these documents did not emerge until 1997.  The conduct of the defendant and his forbears in relation to them raises considerable suspicion.  The so‑called contract of sale, referred to in the letter of 1975, and said to be dated November 1937 (almost one year after the dates on the alleged conveyances) has not been produced.

108.  I am satisfied that these documents do not support a transfer of title to the lots, to the defendant’s grandfather.

109.  The 1919 certificate of the Tso’s property does no more than record the lots belonging to it and the progressive disposal of lots.  It shows that, as far as that record is concerned, the disputed lots remained unsold.  It is therefore inconsistent with the defendant’s claim to title by virtue of the “conveyances”. I accept that somehow, at sometime the certificate came into the possession of the defendant’s family.  Most probably it was used to identify the record of the Tso’s property and Crown Rents payable when the defendant’s family made these payments.

110.  The Crown Rent receipts speak for themselves.  They are in the defendant’s possession simply as a consequence of the rents paid by his family on behalf of the Tso.  They are wholly inconsistent with the defendant’s claim to title.

111.  There is one other document to which I have not previously referred.  It is not one of the group of old documents.  It is the memorial in respect of the estate of Tang Shu Fan, the defendant’s grandfather.  At best for the defendant, this is a neutral document.  It shows that the defendant’s father (Tang Ping Kwan) inherited or acquired five lots in DD 109 but not one of those was any of the disputed lots to which this family laid claim, and this succession was in 1958.  It does therefore support the contention that the defendant’s family had no claim to the title to these.

112.  There is therefore no reliable documentation to support the defendant’s claim to title.  On the contrary, the actions, and inaction, in relation to the claimed lots up to 1997/1998, by the defendant’s family are consistent only with its acknowledgment that it had no such entitlement.  The conclusions to be drawn from the documentation upon which reliance can be placed, defeat their claim.

The Limitation Ordinance and the Succession within the Tso

113.  Although I have made it clear that the defendant’s claim to title on the basis of the “conveyances” fails and that the claimed periods of adverse possession fail also for the reasons set out, I should deal with the effect of the succession by virtue of births within the Tso upon any claimed periods of adverse possession.

114.  Only in 1974/75 and 1995 did the defendant’s family make a claim of right to ownership of the lots, but they did not pursue it until the proceedings in 1998.  They acted as quasi‑managers of the lots on behalf of the Tso and the land was held on trust for the Tso whose title they continued to acknowledge. This was not adverse possession upon which to base a claim.  Even if it were to be so regarded, the members of the Tso as beneficiaries, and succeeding generations were “family” within the Limitation Ordinance (Cap 347).  Government authority is required for the transfer of any property away from the Tso (see section 15 of the New Territories Ordinance (Cap 97) Land held under a Tso is to be treated as if held under a trust.

115.  The following is the list of descendants of the Tang Yuk Cho Tso born after the plaintiff’s alleged adverse possession began:

Name	Date of Birth	Expiry of Limitation Period
Tang Kai Tung	16 July 1945	15 July 1976
Tang Kai Tao	3 October 1947	2 October 1978
Tang Kai Suen	22 September 1950	21 September 1981
Tang Chi Ying	3 November 1971	2 November 1998
Tang Chi Hung	9 March 1973	8 March 2000
Tang Chi Ho	4 February 1975	3 February 2002
Tang Yuk Lung	2 May 1976	1 May 2003
Tang Ching Lung	7 December 1978	6 December 2005
Tang Samuel	25 November 2008	24 November 2032
Tang Matthew	24 May 2010	23 May 2034

116.  It is clear from the table above that the limitation period has been renewed by the continual birth of new members to the Tso save the three‑year gap between the expiry of the limitation period against Tang Ching Lung on 6 December 2005 and the birth of Tang Samuel on 24 November 2008.

117.  At any particular point in time between 1957, the defendant’s alleged latest date of commencement of adverse possession and 6 December 2005, there was at least one member of the Tso whose right to bring an action to recover land has not expired.  I have adopted the helpful encapsulation of Deputy Judge Lam (as he then was) in Leung Kuen Fai v Tang Kwong Yu Tso [2002] 2 HKLRD 705. The list in the preceding paragraph sets out the beneficiaries with their dates of birth and the relevant date for the expiry of the limitation period.

118.  The only gap is that between 6 December 2005 and 25 November 2008.  In the Leung Kuen Fai decision, the learned judge did not have such a gap and so understandably declined to express any final conclusion.  I am similarly reluctant because I do not need to, save to say that under section 9 of the Limitation Ordinance there may be an argument that the limitation period has not expired if an unborn member of the Tso could be regarded as a future interest thereunder.  Furthermore, like the judge, I have no evidence of Chinese customary law regarding those interests.

119.  The factor upon which I rely for my determination, on this point, is that the defendant’s father commenced the 1998 action intending ostensibly to bring the issues before the court, and the gap in continuous succession of the beneficiaries occurred whilst that action was in existence and neglected (December 2005 to November 2008).  Any gap in the succession of beneficiaries was inconsequential with the 1998 action being afoot.  By the time it was struck out, two new beneficiaries had been born.  Equity does not aid the negligent, the dilatory or the vexatious.  The period occupied by that action, viz at least 12 years, cannot be used by a person claiming adverse possession, as part of the period of such claimed possession.  It is of some significance that instead of pursuing the action to crystallise whatever claims the defendant or his father thought they had legitimately, they set about constructing, if the defendant’s evidence is to be believed, a network of leases to named tenants accumulating an income of substance.  Their time and efforts would have been best served by seeking trial of that action which would have taken pace well before the gap in the succession of beneficiaries occurred.  The defendant cannot now take advantage of that effluxion of time.

Summary

120.  The defendant has failed to establish title to the lots by virtue of any purchase contract.  I am not satisfied that the alleged conveyances are genuine.  There is no signature by the alleged vendor.  There is no compliance with section 3(1) of the Conveyancing and Property Ordinance.

121.  The purported Sale and Purchase of the lots did not meet the requirements of the Lands Ordinance, section 134/31 and its succeeding legislation.

122.  The custody, provenance and even the creation of the alleged conveyances are unknown.  They were not produced by the defendant’s family until 1997.

123.  If the defendant’s forebears were in possession of the lots prior to 1946 it was as quasi –– managers of the Tso or as trustees and they acknowledged this but it is impossible to know what happened between 1937 and 1946.

124.  Any possession of the lots after 1946 by the defendant’s family was as manager and/or trustee of the Tso as evidenced by its action in paying the ground rent.  The evidence of the defendant as to the state of the lots and adverse possession prior to 1997 is unreliable and that of the plaintiff is more likely to be, in general, correct.

125.  After 1997, following the breakdown of any negotiations with the plaintiff as manager of the Tso, the defendant, and probably his late father sought to consolidate their position in relation to the lots and create a picture of control, occupation and possession by a series of leasings which themselves may or may not be genuine.  If the family has received income from such alleged lettings, it holds it as trustees for the Tso.

126.  In 1974/75 and 1995 the defendant’s family knew that there was no support for their contentions that they had purchased the lots, had received advice that their dispute could only be resolved by negotiation or legal process, and did nothing.  They opposed the appointment of someone other than themselves on two occasions, in order to try and legitimate their claim.  They had hoped and tried to be appointed as managers themselves.

127.  Finally, they failed to pursue the proceedings commenced in 1998 and cannot claim any period of adverse possession thereafter in any event.  Their claim is defeated in law by the succession of beneficiaries of the Tso against whom the limitation periods did not run.

128.  There will therefore be judgment for the plaintiff as prayed in paragraph 8(a)(b)(c) with an order for costs to be taxed if not agreed.