TOTLAND LIMITED v. WONG SING KAU AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. Mr Wong, the facts are straightforward. I need not trouble Mr. Mok, lawyer for the plaintiff. I am sympathetic to you and your wife, the 2nd defendant. Mr Wong, the 1st defendant looks and sounds sincere. He does not dispute the acquisition of the building in question by plaintiff. The Building is No. 58 Tonkin St., Kowloon, on the roof top of which structures have been erected by defendants with the consent and blessing of the former owner.

2. That the plaintiff is entitled to the legal estate of the premises in suit is not questioned. What is being claimed by the defendants, through the 1st defendant, is that because the occupation of the structures has been undisturbed by Government and with the consent of the previous owner, some right must have accrued to them so that they may stay in occupation of the roof structures for years to come. It is this right, Mr Wong you claim you and your wife have, which defeats the plaintiff's entitlement to immediate possession.

3. Prior to the acquisition of the premises in question, you wrote to former owner in these terms :

Nephew,

 

Sing Kau

 

30.10.1979"

4. I must confess that the Chinese looks like "November" and not October 1979, but we have to abide by the certified translation.

5. You take no issue with that letter you wrote to the previous owner. But you explain that the letter could only have effect as regards the predecessor-in-title of the plaintiff. However, Mr Wong, you do not dispute the truth of any of the statements in that letter. As to the ambit of operation of the letter, you certainly cannot give evidence qualifying the contents of it. Being a written document, it is not susceptible of change by oral evidence. If what is committed to writing can readily be explained away, it would be all the more difficult for people to conduct their affairs. The statements in that letter reflect what interest you and consequently your wife hold. Your interest in, of or to the roof structures goes no further than that of a licensee.

6. A licence to use the roof structures was put an end to by Mr Chow's oral demand to vacate soon after the plaintiff's assignment. He told you to move but you refused.

7. Your licence to use and remain in the roof structures had earlier been terminated by the conveyance of the premises free from any encumbrances, which was a step taken by the former owner, inconsistent with the continuation of your licence.

8. In any case, your interest as licensees has been terminated by the commencement of these proceedings.

9. None of the defendants has any pretence of a legal right to resist the claim of the plaintiff. Sympathetic as I am, this Court is not above the law and my hands are tied. The plaintiff's claim for possession cannot he denied. I allow the plaintiff's claim for possession. The only matters outstanding are costs and stay.