CHAN KING TONG v. HENRY FRANCIS LUE AND OTHERS

HCA 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 828 OF 1997

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J U D G M E N T

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Introduction

In 1964, Mr Vincent Lue and his wife, Madam Lue Chin Shee, bought 2/F and G/F of No. 50 Tung Choi Street, Kowloon (respectively "the 2nd floor premises" and the "ground floor premises" and collectively "the Properties") and had since held them as joint tenants. The 2nd floor premises had always been used for residence. The ground floor premises had been partitioned into three shops: the main shop occupying most of the floor area, the side shop at the side entrance of the building and the staircase shop at the common staircase of Nos. 48 & 50 Tung Choi Street. (For present purposes, the parties agree that the shops all fall within the boundary of the ground floor premises.)

1. The Lues resided in Jamaica. In July 1978, Mr Lue died. One year later, Madam Lue also passed away. In the event, the Properties became vested in her estate. Their sons were appointed executors of their estates. Probate in respect of Madam Lue's estate was obtained in Jamaica in April 1997. They are the defendants in this action.

2. The plaintiff is Madam Lue's youngest brother. He claims title in the Properties by virtue adverse possession pursuant to the provisions of the Limitation Ordinance. The defendants deny his claim and contend that the plaintiff had intermeddled with the Properties, being trust property of Madam Lue's estate. They counterclaim for, inter alia, an order of vacant possession of the part of the Properties occupied by the plaintiff and his wife and an account of profits.

3. At the trial before me, counsel for the parties agreed that as the case would essentially turn on the witnesses' credibility, their witness statements should not stand as evidence in chief. I agreed and so ordered. Accordingly, I would approach them as mere statements previously made by the witnesses concerned.

4. Pursuant to the order dated 16 January 1998, the plaintiff has paid into court the monthly rental in respect of the main shop since January 1998 up to April 2001.

Documents

5. The parties have also agreed on most of the documents, which are contained in the trial bundles. Some of them have a significant bearing on the case. They include:

(1) Two powers of attorney dated 12 and 24 September 1974 executed by Mr Lue and Madam Lue respectively appointing the plaintiff's second son, Mr Chan Chung Wah ("Chung Wah"), as their attorney to, among other things, manage the Properties including renting them out and collecting rent from the tenants.

(2) Several agreements in connection with the main shop executed by Chung Wah in the capacity of the Lues' attorney: (a) a tenancy agreement dated 24 September 1974 signed by a Mr. Tsang Ming Yim of Chung Ah Athletic Wares Fty. ("Mr. Tsang") for a period of 5 years between 1 October 1974 and 30 September 1979; (b) a surrender of tenancy dated 8 September 1976 executed by Mr. Tsang; and (c) a tenancy agreement also dated 8 September 1976 signed by Mr. Tsang for a period of 7 years from 1 October 1976 to 30 September 1983.

(3) Correspondence between Mr. Tsang and Madam Lue's son, Peter ("Peter"), and her daughter, Selma ("Selma") between 2 June 1982 and 5 August 1986. They mainly dealt with the payment of rent, the payment of property tax by Mr. Tsang on behalf of the landlord, the corresponding deduction in rent, and Mr. Tsang's proposal to buy the main shop. According to Mr Tsang's letter dated 2 June 1982, he had paid the rent to Chung Wah monthly. In 1981, Chung Wah requested the payment of rent in advance for two years, which Mr Tsang did accordingly. I will come back to the correspondence later.

(4) Four tenancy agreements signed by the plaintiff with Mr. Tsang in connection with the main shop which, according to their terms, covered the periods between 1 January 1987 and 31 December 1991; 1 July 1988 and 30 June 1994; 1 July 1994 and 31 December 1994; and 1 January 1995 and 30 June 1997 respectively ("the main shop tenancy agreements"). Apart from the first one, the plaintiff purported to sign the agreements as an agent for the landlord.

(5) A tenancy agreement in connection with the side shop for the period between 1 May 1992 and 30 April 1997 ("the side shop tenancy agreement"). Again, the plaintiff purported to sign the agreement as an agent for the landlord.

(6) A tenancy agreement in connection with the staircase shop for the period between 1 March 1993 and 1 February 1995. The plaintiff also purported to sign it as an agent for the landlord ("the staircase shop tenancy agreement"). His current wife, Madam Chu Siu Ming ("Madam Chu") also signed on it as a witness.

(7) Various demand notices issued by the Inland Revenue Department for property tax in connection with the ground floor premises dated between 29 January 1991 and 7 June 1994. They were all addressed to the plaintiff as the personal representative of the Lues' estate.

(8) Various rental receipts for the three shops. Some dated back to 1974. They were all issued and signed by the plaintiff.

(9) A Chinese letter dated 3 May 1992 written by Madam Chu and signed by the plaintiff ("the Chinese letter"). It was addressed to a Ms Lam Shuk Ping ("Ms Lam"), a solicitor formerly working for the defendants' solicitors. According to its contents, Madam Lue had repeatedly told her children that the rental income generated by the Properties was for the plaintiff's use; that the plaintiff was allowed to live at the 2nd floor premises for live; and that the plaintiff would not ask for ownership. The plaintiff further admitted that Madam's children were entitled to inherit the Properties but he asked Ms Lam to convey to them his wish to continue to stay at the 2nd floor premises and to be paid a lump sum for his future living. This letter is subject to serious contention. I will deal with it in greater detail when the occasion arises. Its original has been produced and marked "D1".

(10) A copy photo in which the plaintiff's former wife, Madam Fong, and their two sons, Chan Chung Yan ("Chung Yan"), who was the eldest, and Chung Wah appeared ("the photograph"). The photograph must have been taken many years ago as the sons were then teenagers. There are other persons as well but their identity is subject to dispute.

6. I now turn to the plaintiff's case.

The plaintiff's evidence

7. The plaintiff gave evidence to substantiate his claim. His evidence may be summarised as follows.

8. He first described how he came into occupation of the 2nd floor premises. In 1962, he came to Hong Kong from the Mainland. Two years later, he met a fellow villager, Mr Liu Tong ("Mr Liu"). Mr Liu was then taking care of the 2nd floor premises for the Lues. Although they were siblings, the plaintiff had not met Madam Lue before. He was then in great financial difficulty and had no accommodation. He asked Mr Liu if he and his family could live at the 2nd floor premises. Mr Liu said permission had to be sought from the owners first. Subsequently, the plaintiff made several similar requests. At last, he told Mr Liu that he had to live there whether Mr Liu consented to it or not. Mr Liu then took him to the 2nd floor premises. The flat was unfurnished. The plaintiff said he would stay. Mr Liu disagreed but the plaintiff refused to leave. Mr Liu then left. The plaintiff and his family began to live here. One or two days later, the plaintiff changed the lock. About one week later, Mr Liu came back but the plaintiff refused his entrance. That happened several times. Eventually, Mr Liu told the plaintiff to just live there and he would ask the landlord to reason with him.

9. After moving in, the plaintiff asked his nephew to partition the 2nd floor premises into 4 or 5 rooms. He and his family occupied two of them. The others were rented out to different tenants. In those days, there were no written tenancy agreements. Although there were rental receipts, he had not kept them.

10. The plaintiff then described how he began to collect rent from the tenants of the shops on the ground floor premises. It is not entirely clear exactly when he began doing so. It appears to be sometime after he had moved into the 2nd floor premises. At that time, the main shop was rented out to one Lai Wah Clothing. Mr Liu was the one who collected rent from Lai Wah. The plaintiff partitioned part of the ground floor premises into the staircase shop and the side shop and then rented them out. Seeing this, Mr Liu quarrelled with the plaintiff but to no avail. Eventually, Mr Liu did not object to it. By the end of 1964 or in early 1965, Lai Wah closed down because of poor business. Liu did not come any more. Mr Tsang was then the tenant of the staircase shop. He asked the plaintiff if he could rent the main shop. The plaintiff told him that he had to ask Mr Liu. About 3 months later, Mr Liu came and was told of Mr Tsang's intention. Mr Liu then told the plaintiff that the tenancy agreement was to be signed by the plaintiff while he would continue to collect the rent. The plaintiff agreed. Mr Tsang then moved to the main shop. Mr Liu collected the rent for the first four months. Then he did not come to collect the rent because of illness. When he did come two months later, Mr Tsang had already paid the rent to the plaintiff. Mr Liu reasoned with the plaintiff. The plaintiff paid him half of the rent collected. The plaintiff then told Mr Liu not to collect the rent any more as he was in need of money to support his family. Mr Liu objected to it. One month later, Mr Liu came and tried to collect rent from Mr Tsang. By then, the plaintiff had already told Mr Tsang to pay the rent to him. Mr Liu was therefore unable to collect rent from Mr Tsang. He quarrelled with the plaintiff but again to no avail.

11. Since 1967 up to now, the plaintiff had been signing tenancy agreements for the shops on the ground floor premises and collecting rent from the tenants. He had used all the rent for his own benefit, including buying a property in Shenzhen.

12. To bolster his case, the plaintiff relied on the tenancy agreements he had signed and the rental receipts he issued. He also referred to the property tax demand notices to show that he had paid the property tax. There are also various rates demand notices. The plaintiff said he had paid them as well.

13. The plaintiff said he was not aware of Chung Wah's appointment as the Lues' attorney or the tenancy agreements he had signed in that capacity. In any event, it was he himself, and not Chung Wah, who had been signing tenancy agreements and collecting rent over the years.

14. The plaintiff then explained how he had purported to sign three of the main shop tenancy agreements, the side shop and the staircase tenancy agreements as agent. He met Madam Chu in 1986 or early 1987. Madam Chu asked that her name to be added in the tenancy agreements. The plaintiff did not feel comfortable. He therefore purported to sign the agreements as an agent for the landlord so as to deceive her into believing that he was not the owner but only an agent. They were married in 1990 or 1991. For the staircase tenancy agreement (dated 1 March 1993), the plaintiff agreed to add Madam Chu's name in order to comfort her. And the rent was relatively small. Madam Chu now occupies the staircase shop, presumably with the plaintiff's consent, and runs a small business there.

15. The plaintiff also explained how the Chinese letter came about. It was obtained as a result of threat made by Ms Lam. In 1992, he received calls from Ms Lam. He and Madam Chu then attended Ms Lam's office. Ms Lam threatened them. She told them that what he had done was wrong; and that he would be sued by his nephews and put in jail. The plaintiff was very scared. Ms Lam said the only way out was to write a letter stating that Madam Lue had entrusted him to take care of the Properties, then his nephews would not sue him. And if he wrote such a letter, Ms Lam could ask his nephews to give him several hundreds of thousands for his future living. The plaintiff agreed to her suggestion. Ms Lam then dictated the contents to Madam Chu. Afterwards, he signed it. The plaintiff complained that Ms Lam had not told him to seek independent legal advice.

16. A number of points arose out of his cross-examination which, in my view, have shed considerable light on the plaintiff's credibility.

17. The plaintiff said he could not produce the tenancy agreements in connection with the main shop for the period covered by those signed by Chung Wah, viz., between September 1974 and September 1983 because he had lost them over the years. He lost them as he had moved from place to place.

18. He had no idea why Mr Tsang would have stated in his correspondence with Peter and Selma that he had paid the rent to Chung Wah. He admitted that he was just a rent collector. Thus, Mr Tsang needed to discuss with Peter about the sale of the main shop.

19. As noted above, Madam Chu's name and signature appeared on the staircase shop tenancy agreement. When asked about the necessity to refer to himself as an agent therein, the plaintiff said he was representing himself and it was up to him to sign the agreement in such a way.

20. On the property tax demand notices which referred to him as the personal representative of the Lues' estate, the plaintiff said that after he had received the tax return, he asked somebody to fill it in and had it returned to the Inland Revenue Department. When the demand notices came, he simply paid the tax. He failed to give a clear explanation why he was stated to be Lues' personal representative.

21. His complaint on how Ms Lam had dictated the contents of the Chinese letter to Madam Chu was raised for the first time when he gave evidence in the box. In his witness statement dated 30 April 1998, he said in paragraph 59:

"As suggested by Miss Lam Suk Ping, I asked my wife Chu Siu Ming to write a letter addressing to Miss Lam Suk Ping. The version of the events stated in that letter was not true and was merely used to satisfy Miss Lam Suk Ping so that she would not take action against me. In order to show that I did not commit offence by taking the rent and occupying the Premises, I again wrote down in the letter that I was signing on behalf of the Landlord."

There was no suggestion of dictation by Ms Lam. When this was pointed out, the plaintiff just repeated his earlier evidence.

22. The plaintiff was questioned about the photograph. He recognised Madam Fong, their sons, the woman sitting in the middle to be his mother-in-law and the male sitting next to her to be Mr Liu. He denied the suggestion that he was the male standing next to Madam Fong. He had no idea why his family would have taken the photograph which appeared to be a family photograph with Mr Liu.

23. The plaintiff did not seriously dispute that he divorced Madam Fong and married again before coming to Hong Kong and that Madam Fong came to Hong Kong with the sons before he did. He admitted that after he had come to Hong Kong, he asked Madam Lue for financial assistance. Madam Lue remitted money to him and with the assistance, he opened a grocery shop in the Western district. He also admitted that Madam Lue had asked him to take care of Madam Fong and the sons. But he denied the suggestion that Madam Lue allowed him to live at the 2nd floor premises on the condition that he should take care of the family. He said he had told Madam Lue that he had no accommodation but she just ignored it. She did not tell him that she owned the Properties.

24. He agreed that Madam Lue came to Hong Kong in 1974 but said he did not know she came to appoint Chung Wah as the attorney. He agreed that Madam Lue was generous and kind to him. And he treated her well during her stay in Hong Kong. She knew he and his family were living at the 2nd floor premises. She objected to it and asked to have the property back but was flatly refused by the plaintiff. They even had a heated argument.

25. The plaintiff denied that when the family moved into the 2nd premises, Mr Liu and his grandsons were already living there or that part of the 2nd floor premises were rented out by Mr Liu who also collected the rent.

26. The plaintiff also denied the suggestion that he had moved out of the 2nd floor premises at any time. He agreed that Selma had come to Hong Kong in about 1979 or 1980. He showed her around. He could not remember if she had asked about the matters concerning the rent of the main shop. He agreed that Selma came again in about 1993 or 1994. On this occasion, he took her to China and Selma stayed in his flat in Shenzhen. The plaintiff denied the suggestion that he asked Selma if he could move back to the 2nd floor premises. In the Chinese letter, which was dated 3 May 1992, the plaintiff gave Chung Ah's address at the main shop as his address. The plaintiff explained it was because he did not have a telephone at the 2nd floor premises. It did not mean he was not living at the 2nd floor premises. He further said his address in Shenzhen was also given.

27. The plaintiff has called three witnesses. They are Chung Wah, Mr Wong Tak Choi and Mr Tam Kwok Keung. I will summarise their evidence below.

Chung Wah's evidence

28. Chung Wah was initially the defendants' witness. He had previously filed a witness statement contradicting the plaintiff's case. He has now abandoned his original stance and gives evidence in support of his father.

29. He agreed that pursuant to two powers of attorney, he was appointed by the Lues as their attorney to manage the properties and collect rent. In that capacity, he had signed the agreements in connection with the main shop with Mr Tsang. He knew that he had to collect rent from Tsang but he did not do so because his father had all along been doing that. He denies he had collected rent from Mr Tsang as stated in the letter from Mr Tsang to Selma dated 2 June 1982. He also denies that the plaintiff had absented from the 2nd floor premises for a long time.

30. Under cross-examination, he was first shown the photograph. He said he could only recognise his mother, his elder brother and him himself. He denies the man standing next to his mother was the plaintiff. He says he did not know him or indeed anybody other than those he had identified. He thought they were relatives.

31. He says his mother was industrious and supported the family. The plaintiff, however, always gambled and fooled around. He did not look after the children at all but he did give financial support to them. He agreed that the plaintiff did not look after his mother properly and because of that, he disliked his father. In 1974, Madam Lue came to Hong Kong to appoint him as attorney to manage the properties because she did not trust the plaintiff and his elder brother was not in Hong Kong. He already knew that it was not possible for him to collect rent because his father had done so and had even collected rent in excess. However, he accepted the appointment simply to appease Madam Lue. When pressed further why he had failed to told her aunt that he could not collect rent so that she might make alternative arrangement, he said his aunt would let it be even if it was the plaintiff who collected the rent as he was her younger brother.

Mr Wong's evidence

32. Mr Wong was born in 1958. Since his childhood, he had been living at the rear portion of the 2nd floor premises until he moved out about 10 years ago. He saw the plaintiff very often. According to Mr Wong, the plaintiff lived at the front portion of the 2nd floor premises. Mr Wong's father ran a bookstore at the side shop. He remembered seeing the plaintiff collecting rent from his father in 1970s. Mr Wong considers the plaintiff the owner of the side shop. He is currently running the bookstore himself.

Mr Tam's evidence

33. Mr Tam first met the plaintiff in 1982 in the Mongkok area. In 1986, he moved to 6/F, No. 48 Tung Choi Street and moved out in about 1998. Between 1986 and 1998, he always saw the plaintiff around. Mr Tam was the chairman of the mutual aid committee of the building for many years. According to him, the plaintiff was the treasurer of the committee for 1997 and 1999. In 1996, he was a committee member. Before 1996, the plaintiff was not involved in the committee work.

34. Both Mr Wong and Mr Tam were not cross-examined.

35. That concludes the evidence adduced by the plaintiff.

36. I now turn to the defendants'. They have called 5 witnesses, Peter, Selma, Chung Yan, Ms Lam and one Ms Ngo Ching Yee ("Ms Ngo"), a solicitor working for the defendant's solicitors in 1994. Their evidence are summarised below.

Peter's evidence

37. Peter was born in 1942. He first came to know about the Properties when in 1964 his parents told him that they had bought them for investment purposes and as accommodation should they ever come back to Hong Kong. He knew that her mother had appointed Chung Wah as attorney when in 1974 she told him so.

38. Peter confirmed that he had paid the rate for the second floor premises to the Hong Kong Government in the sum of about $600 sometime in June 1981. He also confirmed that he had received the letters from Tsang and he responded accordingly. After 1986, he had not heard from Mr Tsang again.

39. In 1991, Peter and his brother came to Hong Kong to administer the estate. They went to the Properties but did not see anybody there. They then went to see the lawyers. Peter came again in 1992. This was the first time he met Chung Wah. Chung Wah told him that he was not collecting the rent but the plaintiff was and had spent all the rent so collected. Peter asked the plaintiff about the matter. The plaintiff apologised and said he had spent all the rent. Peter then instructed the lawyers to write to the tenants asking them to pay the rent to the lawyers.

40. In 1993, Selma visited Hong Kong. When she returned, she told Peter that Mr Tsang was interested in buying the main shop. Then in 1994, Peter came. He met Mr Tsang who expressed an interest to buy the property. Peter also met the plaintiff. He found out that the plaintiff had collected rent three years in advance up to 1997. The plaintiff again apologised and said he had used the rent to buy a property in Shenzhen. He asked Peter to consider selling the main shop to Mr Tsang.

Chung Yan's evidence

41. Chung Yan was born in 1949. He recognised all the people in the photo. He and Chung Wah were the two boys on the left. The woman standing next to him himself was the daughter of Madam Lue. The man standing next to his mother was the plaintiff. The man sitting in the middle was Mr Liu. The older woman sitting next to Mr Liu was his maternal grandmother. The other boys were Mr Liu's grandsons. He said the photograph was taken in or about 1963 or 1964 in Sheung Shui, New Territories.

42. He gave a different version of how his family moved into the 2nd floor premises. Before coming to Hong Kong, his parents were divorced in the Mainland. In 1962, Madam Fong brought him and his brother to Hong Kong. They were staying with relatives in the Sheung Shui. Mr Liu came on numerous occasions asking his mother to unite with the plaintiff. She finally agreed, thinking that the sons needed someone to take care of. The plaintiff had also received assistance from Madam Lue and was able to start a small grocery shop in the Western district. About 1 year before the family moved into the 2nd floor premises, the plaintiff took him to pay a visit there. It was then not occupied yet. The plaintiff told him that his aunt had bought the Properties. When the family subsequently moved in, Mr Liu and his three grandsons were already living there. The flat had already been partitioned into about seven rooms. Chung Yan's parents occupied one of the rooms. Chung Yan and Chung Wah slept in the cockloft. They did not have to pay rent because Madam Lue was taking care of them and allowed them to live there rent-free. The other rooms were rented out and Chung Yan saw Mr Liu collecting rent from the tenants. He learnt from the conversation between his parents and Mr Liu that Mr Liu also collected rent for the ground floor premises.

43. Mr Liu and his family moved out about one year later but Mr Liu came back to collect rent until about September 1970. Chung Yan went to UK to further studies in March 1971. He was financed by Madam Lue.

44. Between 1964 and 1971, it was his mother who took care of the family. She washed dishes in restaurants. After 1971, Madam Lue also allowed her to collect rent from other tenants on the 2nd floor premises. It remained the case until 1992 when she left for UK to join him. The plaintiff had not given any financial support at all.

45. He denied the suggestion that the plaintiff was collecting rent from the tenants between 1964 and 1971. He came back to Hong Kong in 1990 and stayed at the 2nd floor premises. He did not see the plaintiff around. In 1994, he came back again and also stayed at the 2nd floor premises. He did see the plaintiff but he was not living there. The plaintiff told Chung Yan that his cousin might allow the plaintiff to come back to stay there. Chung Yan did not agree to it and Chung Wah said he would ask the plaintiff to go away.

46. Under cross-examination, he was referred to his letter addressed to Peter dated 17 April 1997. In that letter, he said:

"The current rent collection situation at the property is unacceptable to me. My father Chan King Tong is now and for the last 30 years been wrongfully collecting the rent from tenants, never sharing it with my family. The collection of rent was authorised to my brother Chan Chung Wah who found this impossible on discovering that it had been collecting by his father Chan King Tong a number of months, even years in advance and at rates much lower than agreed. My brother has confronted and challenged my father on many occasions, each time failing to change the situation."

47. It was suggested to him that it differed from what he said in the box insofar as he said the plaintiff did not collect rent between 1964 and 1971. He said he was just stating the gist of the matter and did not intend to give the details of the events.

48. Chung Yan further admitted that he did not know who collected the rent from the tenants of the 2nd floor premises after his mother left in 1992. Chung Wah had told him that the plaintiff had collected rent for his own personal expenses.

Selma's evidence

49. She is Madam Lue's daughter. She came to Hong Kong with Madam Lue in 1972 and stayed in Shamrock Hotel. She visited Madam Fong at the 2nd floor premises but did not see the plaintiff around. Madam Fong came to the hotel to see them. She asked Madam Lue to allow her to rent out part of the 2nd floor premises. She also told them that the plaintiff did not stay there. He was living with another woman somewhere else.

50. After Madam Lue died, Selma knew that Madam Fong and her children continued to stay at the 2nd floor premises. She was happy with that and did not ask them to pay rent. In 1982, she came to visit Madam Fong at the 2nd floor premises again. She met the plaintiff and Mr Tsang downstairs. She asked them about the rent. She spoke in Hakka and the plaintiff did the translation. They did not give her a clear answer. Madam Fong also visited her at the hotel.

51. In 1992 or 1993, she came again and paid another visit to the 2nd floor premises. As far as she was aware, only her cousins were staying there. The plaintiff did not. She met the plaintiff and Mr Tsang. Mr Tsang's daughter was also present. She spoke fluent English and acted as an interpreter. She told Selma to persuade her brothers to sell the main shop to Mr Tsang. The plaintiff made similar remarks. He also asked Selma if he could stay at the 2nd floor premises. Selma agreed. Chung Wah also asked Selma if that was alright. She said yes. She did not ask Chung Wah about the rent for the 2nd floor premises because her mother had allowed them to stay there. She did ask Chung Wah about the rent for the ground floor premises. Chung Wah told him that he let his father collect it. The plaintiff later took Selma to visit China and they spent two days in Shenzhen.

52. Selma learnt from her mother that Madam Fong was collecting rent for the 2nd floor premises. She admitted that she did not have personal knowledge of that.

Ms Lam's evidence

53. Between 1991 and 1993, she worked as an assistant solicitor in the conveyancing department with Messrs Ho & Wong. She was dealing with the probate matters of the Lue's estate. She issued a letter dated 23 April 1992 to the tenants on the 2nd floor premises. The purpose was, among other things, asking them to contact her to disclose the particulars of their occupancy. The plaintiff then contacted her. An appointment was made. The plaintiff came with his wife and a Mr Tsang to her office. She asked them for the particulars of the occupancy. She did not make any threat or suggestion to the plaintiff as alleged.

54. Later, she received the Chinese letter. She could not recall exactly when and how she received it.

Ms Ngo's evidence

55. Ms Ngo worked as an assistant solicitor with Messrs Ho & Wong back in 1994. She was handling the probate of the Lues' estate. On 13 July 1994, she met the plaintiff and his wife. Her instruction was to gather information from them. After the meeting, she prepared a statement in English from what the plaintiff told her. Another meeting was arranged on 22nd July. The purpose was to go through the statement with the plaintiff. The plaintiff refused to sign on it. He said he wanted somebody else to translate the contents to him. He also told Ms Ngo that his nephews had offered to pay him a lump sum as maintenance. But Ms Ngo did not have instructions in this regard. So no agreement was reached.

56. She remembered seeing exhibit "D1" in the office file. Under cross-examination, she denied that she had prepared the English statement from exhibit "D1". She also denied that she had made any threat to the plaintiff at all. She agreed that she had not advised the plaintiff to seek independent legal advice. She did not think it was necessary. She was just dealing with Lues' probate and was taking instructions on the tenancy matters.

57. That concludes the evidence adduced by the defendants.

Adverse possession or intermeddling?

58. The provisions of the Limitation Ordinance which are material to this action are:

59. Section 7(2):

"No action shall be brought by any other person to recover any land after the expiration of 20 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."

60. Section 8(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."

61. Section 13(1)

"No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land."

62. Section 17

"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."

63. The relevant legal principles on adverse possession are well established. Counsel have referred to a number of cases. But I think I need only refer to Wong Tak Yue v Kung Kwok Wai David [1998] 1 HKC 1, where the Court of Final Appeal has succinctly summarised the principles thus. A person claiming to be in adverse possession must have both possession and the requisite intention to possess. The question of intention to possess, as with any other question of intention, was one of fact. Whether the intention could be established depended on an assessment of all the circumstances in a particular case. Where the occupier had made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinise the circumstances in which they were made and would give them such weight as they deserved. Conversely, where the occupier had made statements which were against his interest, the courts would usually accord to them considerable weight. The burden is on the person claiming to be in adverse possession to establish his intention to exclude the whole world including the owner of the land.

64. Mr Yam, counsel for the plaintiff, relied on Ho Hang Wan v Ma Ting Cheung [1990] 1 HKLR 649 and argued that exclusive possession is good enough. But in Wong Tak Yue v Kung Kwok Wai David, supra, the learned Chief Justice has this to say on that judgment at 13G to I:

"I would make three observations. Firstly, there is nothing in that judgment which is inconsistent with the approach I have adopted here. Intention is a question of fact and in determining it, the court has to assess all the circumstances. Secondly, the decision should be regarded as one on its own special facts. The Court presumed the requisite intention from the occupier's exclusive possession after the termination of the licence by death of the licenser although the licensee did not receive notice of death. Thirdly, there is nothing on the facts in that case equivalent to the evidence we have here of the 14th defendant's intention as regards the payment of rent."

65. I would respectfully follow the approach laid down the Court of Final Appeal.

66. Has the plaintiff discharged the burden here?

67. The plaintiff seeks to portray himself as a husband and a father very much concerned about the family and was prepared to go to the extreme in seeking accommodation for them. The main difficulties with his story are these. Before moving into the 2nd floor premises, he had already received financial support from Madam Lue so that he could run a grocery shop of his own in the Western district. He admitted the Madam Lue was generous and kind to him and indeed, according to both Chung Yan and Chung Wah, to the family as a whole. It is then difficult to imagine Madam Lue would have, as alleged, ignored his plight - he and his family was in financial difficulty and had no accommodation. Further, when the plaintiff approached Mr Liu, he knew that the Properties were owned by his sister. By then, she had already given him money to open the grocery shop. In the circumstances, the only natural thing to do, of course, was to contact her and ask if his family could be allowed to live there. Indeed, it is the plaintiff's own evidence that Mr Liu had told him that permission from the owners must be sought first before his family could move in. Why should he run the risk of agitating his caring and generous sister by kicking Mr Liu out when raising the matter with her would most probably yield a favourable result? I can see no reason at all, if his evidence is true. Lastly, he was never a caring, responsible father or husband as he attempts to portray. He divorced his wife, Madam Fong, and remarried before coming to Hong Kong. According to his sons, he gambled, kept on womanising, and spent most of the rent he collected mostly for his own benefit.

68. The plaintiff alleged that there was no written tenancy agreement for the 2nd floor premises in the older days. But from 1987 onwards, he signed tenancy agreements with the shop tenants. Why did he not also sign tenancy agreement with those on the 2nd floor premises? He said he had receipts but had lost all of them. But he was able to keep some receipts for the ground floor premises. Some even dated back to 1974. Why would he have lost all the receipts concerning the 2nd floor premises alone?

69. The plaintiff said in the beginning, Mr Liu suggested to him that he should sign the tenancy agreement with Mr Tsang while Mr Liu would continue collecting the rent. By then, the plaintiff had already gained possession of the 2nd floor premises despite his strong objection. If Mr Liu did make the suggestion as alleged, he was obviously ignoring the very real possibility that the plaintiff would exploit the situation for his own advantage. I can see no reason for that arrangement and the plaintiff has not given any possible explanation either.

70. The plaintiff denied that he knew of the appointment of Chung Wah as the Lues' attorney. This is contradicted by Chung Wah, his own witness. Further, if the plaintiff had indeed signed tenancy agreements and collected the rent continuously since 1967 as alleged, there is simply no reason why Chung Wah would have signed the agreements in connection with the main shop as Lues' attorney; why Mr Tsang would have also signed those agreements; why Mr Tsang would have corresponded with Peter concerning the tenancy matters; why Mr Tsang would have stated in his letters to Peter hat he had paid rent to Chung Wah; and why Mr Tsang would have raised the proposal of buying the main shop with Peter. The plaintiff could not advance any single reason. I doubt if he ever could. He admitted that he was just a mere rent collector. Therefore Mr Tsang had to raise the proposal with the owner. Given this admission, as least as the main shop is concerned, he is acknowledging the paper owners' title. Where is his intention to dispossess?

71. Further, the plaintiff said he had lost all the tenancy agreements that he had signed for the main shop covering the same period as those signed by Chung Wah. He lost them because he had moved from place to place over the years. This is inconsistent with his case that all along he had been living at the 2nd floor premises.

72. The plaintiff's explanation on why he signed five out of the six tenancy agreements in connection with the ground floor premises as an agent for the landlord is unsatisfactory. He sought to use Madam Chu as an excuse. But when confronted with the staircase tenancy agreement with Madam Chu's name and signature on it, he could not find any possible explanation except that he was representing nobody but only himself. The plaintiff was obviously making this up while going along with his evidence. In my view, when he signed those agreements, he did purport to act as an agent of the landlord. The only purpose was to misrepresent to the tenants that he was duly authorised by the landlord so to do when in fact he was not. Again, he must have acknowledged the title of the paper owners.

73. The plaintiff's evidence on the tax demand notices is also fatal to his case. He seeks to rely on them to show that he had paid the property tax for the ground floor premises. However, he could not explain why he was referred to as the personal representative of the Lues. It was his evidence that he caused the tax return to be filled and returned to the Inland Revenue Department. In other words, it was he who represented to the Department that he was the personal representative of the Lues in handling the ground floor premises. Leaving aside the question that he might have committed a criminal offence by making a wrong declaration to the Department, he was obviously acknowledging the title of the Lues at least as far as the ground floor premises were concerned. There is clearly no intention to dispossess.

74. The plaintiff's evidence on the Chinese letter is devoid of any merit. His allegation that the contents were dictated by Ms Lam was only raised for the first time while giving evidence. As noted, there was not a scintilla of suggestion in his witness statement that that was the case. Further, the contents touched upon some very personal history and dealings between Madam Lue and the plaintiff. They could not have come from Ms Lam, a total stranger to all these. (There is no suggestion that either Peter Selma or Chung Yan had given the details to Ms Lam.) The plaintiff alleged that it was written in Ms Lam's office. I have examined exhibit "D1". The paper is not of a kind which solicitors would normally use in their office.

75. For the foregoing reasons, I find the plaintiff a poor and untruthful witness. I have no hesitation to reject his evidence.

76. Given his change in stance, I need to approach Chung Wah's evidence with caution. I do not find him completely truthful, especially on matters relating to the ground floor premises. He readily accepted that he was appointed attorney by the Lues because they did not trust his father. But despite his appointment, he had failed to collect any rent. And he knew that because his father was collecting rent and in excess. If that is the case, what was the purpose of accepting the appointment? Given his father's wrongful act and his bad feelings against him, why didn't Chung Wah report the matter to Madam Lue, who was very kind to the family, for her to make alternative arrangement? Chung Wah could not give any explanation. Nor had he satisfactorily explained why he made a complete change in stance. Accordingly, I will not give weight to his evidence.

77. Although Mr Wong and Mr Tam were not cross-examined, their evidence do not take the plaintiff's case any further. They may well have the impression that the plaintiff did live at the 2nd floor premises for a very long time. That does not of itself prove the requisite intention to dispossess. Mr Wong may well have thought that the plaintiff was the owner of the side shop. That is neither here nor there. Accordingly, I would accord little weight to their evidence.

78. I have carefully considered the evidence of all the defendant's witnesses. I find them truthful and reliable. Their versions of the events are also consistent with the contemporaneous documents. And they were not shaken under cross-examination. For Chung Yan and Ms Ngo, there may exist some minor discrepancy between their oral evidence and previous statements. But I do not think it affects their credibility as a whole. I accept their evidence.

79. On the evidence that I accepted, I make these findings:

(1) In or about 1964, the plaintiff and his family moved to the 2nd floor premises in the circumstances as described by Chung Yan. They were allowed by Madam Lue to live there rent-free. As such, they were mere licensees at will.

(2) When they moved in, Mr Liu and his grandsons were already living there. They moved out about a year later. Part of the flat was rented out to other tenants. Mr Liu collected the rent until September 1970. Since about 1971 up to 1992, it was Madam Fong who collected the rent. At no time between 1964 and 1992 had the plaintiff collected any rent for the 2nd floor premises. On the evidence before me, I am unable to make any finding who collected the rent after Madam Fong had left for UK in 1992.

(3) For sometime before 1994, the plaintiff had not lived at the 2nd floor premises. That is why he did not give the 2nd floor premises as his address in the Chinese letter. That is also the reason why in 1994 during Selma's visit, he had to and did ask her for permission to go back to live there. Selma agreed and the plaintiff moved back. He continued to live there rent-free as a mere licensee at will. On the evidence before me, I am unable to make any finding as to when the plaintiff absented himself from the 2nd floor premises and for how long. But I am prepared to infer that it was not a short period of time for otherwise the plaintiff would not have to ask for permission. I do not think my finding here must necessarily be inconsistent with Mr Wong or Mr Tam's evidence. As noted, their impression that the plaintiff had lived at the 2nd floor premises was very general. It is possible that they might have failed to notice the plaintiff's absence. It is equally possible that the plaintiff might have frequented the place although not living there, thereby giving the witnesses the impression that he was living there.

(4) Chung Wah had acted in the capacity as the Lues' attorney to deal with the ground floor premises before their death. At the material times, the plaintiff had not dealt with the ground floor premises as alleged. The plaintiff might have issued some rental receipts. But that by itself is not sufficient to show that the plaintiff was dealing with the property in the manner as alleged.

(5) The plaintiff purported to act as the Lues' agent to deal with the ground floor premises sometime after their death. He had acted without the requisite authority and had thus intermeddled with it, which had in July 1979 vested in Madam Lue's estate. Mr Sham, counsel for the defendants, submitted the act of intermeddling began on 1 July 1987 when the plaintiff signed the first main shop tenancy agreement. That I accept and I make this finding accordingly. In intermeddling with the property, the plaintiff did not have the intention to dispossess. Instead, he acknowledged the paper owners' title but purported to act as an agent in order that he might receive the rental for his own advantage. He is liable to account: Mara v Browne [1896] 1 Ch 199.

(6) The contents of the Chinese letter originated from the plaintiff himself. Madam Chu wrote it out for him and thereafter he signed it. There was no threat, inducement, threat or misrepresentation by either Ms Lam or Ms Ngo as alleged.

(7) The current occupation by the plaintiff of part of the 2nd floor premises and the staircase shop through Madam Chu is wrongful.

Conclusion

80. For the foregoing reasons, I dismiss the plaintiff's claim and enter judgment for the defendants on the counterclaim as follows:

(1) An order for the delivery up of vacant possession of the part of the 2nd floor premises the plaintiff now occupies.

(2) An order for the delivery up of vacant possession of the staircase shop the plaintiff now occupies through Madam Chu.

(3) An account of rentals in respect of the ground floor premises received by the plaintiff since 1 July 1987 and payment of the same by the plaintiff of the amount so found to be due to the defendants as executors of Madam Lue's estate with interest to be determined by the master taking the account.

(4) Mense profit for wrongful occupation of that part of the 2nd floor premises by the plaintiff from 19 July 1994 (the date when the plaintiff's licensee at will was terminated in writing) up to the date of delivery of vacant possession, to be assessed.

(5) An order for payment out to the defendants of the sums paid into court by the plaintiff since January 1998 up to April 2001 being the monthly rental for the main shop with interest accrued thereon.

Costs

81. Full submissions had already been made on costs. Obviously, costs should follow the events. The remaining question is whether I should exercise my discretion to award costs on an indemnity basis. Mr Sham basically left the matter to me although he would not insist on the higher scale.

82. In my view, the plaintiff's claim is entirely unmeritorious. The evidence against his case is overwhelming. And this is apparent even from his own documents. The plaintiff is surely aware of this. He must have known that he does not have the right as alleged. Yet he prosecuted his claim to the bitter end. In the course of doing so, he told a pack of lies in court and made wild and serious allegations against two solicitors. Over the years, he had already exploited the situation for his own selfish gain. But he attempted to perpetuate his wrong knowingly by bringing this action and defending the defendants' legitimate claims. It is an abuse of process and should be sanctioned. Accordingly, I will order that the plaintiff do pay the defendants' costs of this action, including any costs reserved, on an indemnity basis, to be taxed if not agreed.