LOK YAU LOI v. TANG CHEONG FAT AND OTHERS

HCMP864/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.864 OF 1997

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J U D G M E N T

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Judgment

1. The parties live at a village in the Pat Heung area of the New Territories, known as Wan Toi San Sun Tsuen. It is the ancestral home of both their families. The plaintiff, Mr Lok Yau Loi, is claiming title by adverse possession to an area of land adjacent to his own land, on a lot of which the defendants are the owners. The action was commenced on 20 March 1997, so in order to establish title the plaintiff must prove continuous adverse possession for 20 years, i.e. since 20 March 1977. The defendants deny adverse possession and aver that if there was possession, it was subject to a licence or series of licences granted by them or some of them and their predecessors in title.

The suit land

2. In the village, there is a line of building plots running from north to south. The houses on them are built as a terrace, with the front doors facing west. The southernmost plots, nos. 101 and 100 used to belong to the plaintiff's uncles who died in the 1940s. There are now no houses on them. The first house in the terrace, counting from the southern end is on Lot No. 99RP and belongs to the plaintiff. The next one is on Lot No. 99A and belongs to his brother Lok Sun Choi. At the front of these two houses is a concrete yard bounded by low parapet walls and a mesh fence with an iron gate. There is no fence on the line between the two houses and the gate serves both of them.

3. Running parallel to the terrace of houses, a few yards from the line of the fence, there is a north-south concrete path. This forms a right-angle with another concrete path running east to west along the southern boundary of Lot No. 101.

4. The defendants all have an interest in Lot No. 2474. Its eastern boundary runs along the front, or western, line of lots nos. 99 - 101 and the parallel lots to the north. On the south side, its boundary runs along the building line of some houses which are to the south of the east-west path mentioned above. One of these belongs to Tang Koon Shing. Both the north-south and east-west paths are within Lot No. 2474.

5. The plaintiff is claiming title by adverse possession of the land in front of his lot and his deceased uncles' lots. The suit land is bounded on the north by a line extended westwards from the northern boundary of Lot No. 99RP and on the south by a line extended westwards from the southern boundary of Lot No. 101, i.e. along the east-west concrete path, as far as the north-south concrete path. It includes the yard in front of his house. The yard is shown coloured yellow, and the rest of the land coloured orange, on the plaintiff's agreed survey plan. In the yard, there is a kind of low tin shed which is said to be a kitchen. On the northern side of the orange area is a concrete path from the iron gate to the north-south path. In the middle of the orange area there is a guava tree, and in the south-western corner some dilapidated hen houses, an oven and a low concrete tank which is said to have been used as a pool for rattan work.

The titles

6. The plaintiff's title goes back to his great-grandfather Lok Tsz Mau in whose name Lot No. 99 was registered in 1905. He and his brother inherited the lot from their father who died in 1962. They built their two houses on it in 1968. They partitioned it into Lot No. 99A and Lot No. 99RP in 1990.

7. The defendants' title to Lot No. 2474 goes back to Tang Tat Kwong in whose name it was registered in 1906. In 1970, the Tang Tak Kwong Tso assigned the lot no. to Tang Tak Po, Tang Tak Huen and Tang Tak Kui. By a succession memorial dated 16 August 1979, Tang Tak Po's share passed to the 1st defendant. Tang Tak Huen himself is the 2nd defendant. Tang Tak Hui died in 1995 and his personal representatives are the 3rd defendant.

The issues

8. There are two issues, the first being whether the plaintiff can prove adverse possession and the second being whether the defendants can prove the contractual licence. There is no dispute that the plaintiff and his family have been in some sort of occupation of the suit land for many years. There is a dispute as to whether his occupation has the necessary ingredients of adverse possession. However, if he had a contractual licence to occupy the land there could in any event be no adverse possession. Indeed, if the present plaintiff had even a bare licence from the present owners he would not be able to establish adverse possession. There is no dispute on the law, but it is perhaps as well to reproduce what Slade LJ said on the matter in Buckinghamshire C.C. v. Moran [1990] 1 Ch 623, C.A., at p.636:

"Possession is never "adverse" ........... if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in "adverse possession" as against the owner with the paper title."

I will, therefore, deal first with the issue of the licence.

The licence

9. The defendants' averments on the licence have changed over time. In the beginning, they pleaded a bare licence granted prior to 1962 by Tang Tai Tin, the then manager of Tang Tso, to the plaintiff's predecessor, Lok Kung Po. This was met by the plaintiff's reply which pleaded that if there was a bare licence it died with the licensor and/or the licensee. The defendants then averred a contractual licence, the consideration for which was the clansmanship and brotherhood-like relationship between licensor and licensee. This was met by averments by the plaintiff denying good consideration and averring that, in any event, such a licence would not bind the successor in title of the licensor. Finally, the defendants averred a re-grant or re-affirmation of the licence by the successors-in-title to the lot.

10. The 2nd defendant is the main witness. He is aged 70. He has always lived in the village. His evidence is that when he succeeded to the title in 1970 his father told him of the licence. He and his brothers and father all expressly assured the plaintiff, his brother and other clansmen that the licence would carry on as before. His father had also told the Lok brothers this, after their father died in 1962. He managed things for his brother Tang Tak Po's family after his brother's death in 1970. He himself later gave Tang Koon Shing a licence to build a kitchen on the part of Lot No. 2474 adjacent to his house, between it and the east-west path; this was formalised in writing in 1997 when Tang Koon Shing got permission from the Government to build a septic tank where the kitchen used to be. In about 1975, he himself gave a similar licence to Lok Sun Choi and the plaintiff to permit them to use the parts of the adjacent to their lots. It was agreed that if the Tangs wanted to build on the land, the Loks had to give it back to them, but the Tangs would leave a lane for access to the Loks' premises.

11. Under cross-examination, Mr Tang said that he talked about the licence with the plaintiff and his brother about ten times, from 1976 onwards. These conversations were repeated yearly or half-yearly. It seems they mostly took place when Mr Tang and the brothers Lok were having tea together; but Mr Tang's evidence on this is rather vague and a little self-contradictory; at an earlier stage, he had said that he used to have tea with the brother rather than with the plaintiff himself.

12. He also said that he had been intermittently paying crown rent on Lot No. 2474. He produced some receipts but what they refer to is not entirely clear.

13. There was also some evidence from Tang Wing Fat and Tang Tai Hei. They, of course, were only boys in the 1970s. They say that they had been told about the licence by their grandfather and by the 2nd defendant and their own fathers. They just let the same arrangement continue when they took over their titles to the lot.

14. Mr Lok's evidence about the licence is quite simply that so far as he knew, his family had always used the land. His own memory goes back to when he was about eight years old; that would be 1942. He knew nothing of any licence. He did not know who was the registered owner of the suit land. In his statement, he had said that he did not know any of the defendants, but in oral evidence he said that he knew them as fellow villagers though he had no particular intercourse with any of them. He had never been given any permission to use the land by Tang Tai Tin and his three sons.

15. Mr Lok's son, Lok Tin Fuk, also gave evidence. He was born in 1966. He was mainly concerned to deal with the use which his family had made of the suit land. He also said that he had never heard anything about any licence. He said in his written statement that he did not know any of the defendants but was constrained to admit in cross-examination he knew some of those listed as the 1st defendant and had a nodding acquaintance with those listed as the 3rd defendant. He explained the discrepancy by saying that he had misunderstood what was in his statement.

16. It is, I think, most unlikely that there would never have been any licence given to the Lok family by the Tang family to use the suit land. These people were all clansmen, and all living in the same village for generations. There is no evidence that anyone from either family went away from the village apart from Lok Sun Choi and he returned. Mr Lok accepts that both families would have had a "chi tong" or ancestral hall and that family land would pass between the generations by approval of the manager of the chi tong. Even in the distant past, land in the New Territories, though it might not have had the potential value that it has today, had some value. All the Tang witnesses say that there had been such a licence and they all knew about it from their elders. Of course, that is hearsay evidence but nevertheless there is an inherent probability that such a licence existed.

17. What the defendants have to prove is that such licence was affirmed to the plaintiff by them, or by one of them on their behalf. No issue was taken on whether, if Mr Tang did give such affirmation, he did not have the authority of the other owners to give it. So the question is whether Mr Tang ever approved the licence to the plaintiff.

18. Mr Tang's evidence is open to criticism on two grounds, the first being that no one ever seems to have thought of any licence given by him in the first place, until the final re-re-amendment of the defence; and the second being that while he has given evidence of repeated meetings with the plaintiff when he reminded him of the licence, that evidence is vague and self-contradictory and not covered by his witness statements. The latter point is particularly unfortunate because the plaintiff himself could not give any specific evidence to contradict it.

19. The evidence of the other defence witnesses was of little assistance on the matter of the licence. They were concerned mainly with the question of exclusivity of possession. There was also some evidence about the licence given to Tang Koon Shing, but I do not see that his has any real relevance to the issues between the plaintiff and the defendants.

20. Nevertheless, overall, having seen and heard Mr Tang, I found him a forthright and generally credible witness. He is not a young man, and perhaps not well; he seemed fit enough but must have had his larynx removed at some time because he uses an electronic buzzer to help him speak. It is not surprising that he cannot be specific about when he met Mr Lok and his brother many years ago, or, what he said to him or them.

21. Turning to the evidence of the Loks, it is significant that both of them tried at the outset to give the impression that they did not know the Tangs at all. That collapsed pretty quickly under cross-examination as indeed it would have to.

22. Another significant matter is the absence of the brother Lok Sun Choi from these proceedings. In the nature of things, if there was a licence given it would have been given to their father and grandfather before they ever took over and partitioned Lot No. 99. It would have been given to the Loks as a family. It is very strange that brother is not supporting brother in this matter.

23. At the end of the day, on the question of the licence, I have to decide between the evidence of the 2nd defendant and the plaintiff. Overall it seems to me more probable than not that there was a licence granted by the Tang family to the Lok family, for many years, to occupy the suit land, on their agreement to return it when the Tangs wanted it; that such licence was specifically reiterated by Tang Tai Tin to Lok Kung Po, and was further affirmed or re-granted by the 2nd defendant to the plaintiff some time in the middle 1970s and before the commencement of the limitation period. It follows that the suit land could not have been adversely possessed by the plaintiff for the duration of the limitation period.

Adverse possession

24. It is not necessary for me to go on to consider whether the plaintiff has established factual possession and the animus possidendi, in other words, whether or not he would have established adverse possession if there were no licence.

Result

25. The plaintiff's claim is dismissed with costs (nisi) to the defendants, to be taxed if not agreed.