LEE MA KWAI v. CHU KAM AND ANOTHER

HCMP 3916/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3916 OF 1998

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J U D G M E N T

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Introduction

1. The plaintiff commenced the present proceedings on 10th August 1998 under Order 113, Rules of the High Court, Cap. 4 to recover possession of part of the land occupied by a structure ("the structure") known as 52-A2, Siu Hang San Tsuen, Lung Yeuk Tau, Fanling, New Territories, Hong Kong in Demarcation District No.83, Siu Hang. On 27th October, he obtained an order for possession from a master. The order was, however, set aside on appeal by Cheung, J on 8th June 1999. His Lordship also directed that the matter be tried before a master. The trial eventually came before me on 28th June 2000. The plaintiff did not seek to pursue the matter against 1st defendant's who had already died in 1992. After trial, I gave judgment to the plaintiff with costs. These are the reasons of my decision.

The plaintiff's case

2. The plaintiff have been the permitee of a Government Land Permit No. T07099 since 1st September 1963. Under the permit, he is entitled to possession of the land covered by the permit for cultivation purposes. For the present purposes, the land is referred to as the plaintiff's land.

3. By a licence dated 1st November 1988, the plaintiff allowed the 1st defendant to use the plaintiff's land free of charge for raising chicken for a period of 10 years from 6th June 1988 to June 1998 ("the licence"). At a date unknown to the plaintiff and without his permission or consent, the 1st defendant transferred her right under the licence to the 2nd defendant. The licence was not extended or renewed after its expiry. Notice to quit was served on the defendants on 5th May 1998.

The 2nd defendant's case

4. The 2nd defendant does not dispute the plaintiff's right and entitlement under his permit. In essence he raises two points of defence. First, he disputes the boundary of the plaintiff's land. He alleges that the structure does not fall within the plaintiff's land but fall within the land adjacent to it and covered by the Crown Permit T07099. Secondly, he alleges that the 1st defendant, who was his step-mother, had been in possession of the structure since 1962. He continued to be in possession since her death in 1992.

5. The evidence on the boundary is overwhelming. All the surveyor's reports, including the one adduced by 2nd defendant himself, confirm that part of the structure do stand in the plaintiff's land. This defence must therefore fail.

6. On the possible defence of adverse possession, the 2nd defendant under cross-examination conceded that he did not know how the 1st defendant had obtained occupation of the structure. After the death of the 1st defendant, he stayed in the house occasionally. The 2nd defendant calls one witness, Mr. Liu Yick Tong. Mr. Liu lived in Siu Hang San Tsuen for about 1 year in 1997. His house was close to the structure. He had certain dispute with the plaintiff on whether he could lock a certain metal gate in front of his own house. Mr. Liu's evidence is of no value at all.

7. The defence of adverse possession must also fail. Assuming that the 1st defendant had occupied the structure since 1962, the 2nd defendant simply fails to prove that she had the necessary animus possidendi, that is, an intention to possess the land to the exclusion of all other persons including the owner: Halsbury's Laws of England, Vol 28, para 979. Further, any claim of adverse possession by the 1st defendant is flatly contradicted by the licence. The 2nd defendant can hardly challenge its authenticity or validity. Lastly, his own occupation of the structure, started in 1992, is not sufficient to ground a defence of adverse possession.

8. For the above reasons, I gave judgment for the plaintiff.