NG BING LIN v. CHEUNG SAU CHU AND ANOTHER

DCCJ 4397/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4397 OF 2012

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BETWEEN

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JUDGMENT

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1.  The present dispute is about some pieces of land among the estate of Ng Yuk Ching (吳郁清), who passed away in 1949.

Background

2.  Ng Yuk Ching had 3 wives and 10 children. Some of them were as follows :-

(1)The surname of his first wife was Chung (鍾氏) (“Chung”).  She had 2 sons, namely Ng Hok Luen (吳學聯) and Ng Kin Lin (吳建連). One of Ng Hok Luen’s sons was Ng Chi Chun (吳志春).

(2)His second wife was Tsui Tung Leung (徐東娘). She and Ng Yuk Ching had 3 children, including Ng Chung Wo (吳宗和) and Ng Kuk Lin (吳菊連). One of Ng Chung Wo’s sons was Ng Chi Wing (吳志榮).

(3)His third wife was Tsang Lin Wa (曾蓮華). She and Ng Yuk Ching had 5 children, including Ng Ping Lin (吳炳連), the plaintiff in this case.

3.  According to Ng Yuk Ching’s will (“the Will”), Tsang Lin Wa, Ng Ping Lin and Ng Kuk Lin were named as executrix and executors and trustees to administer the estate.

4.  Ng Yuk Ching was the founder of Ng’s village (吳家村). His estate (“the Estate”) included various pieces of land in Kowloon and in Ng’s village.   Hastings was the solicitors firm handling matters of the Will at that time. Pursuant to clause 3 of the Will, all his sons were entitled to a share of the Estate. Ng Hok Luen and Ng Kin Lin were not the natural sons of Ng Yuk Ching and each of them got 1 equal 40^th share of the Estate. Each of the natural sons got 4 equal 40^th share of the Estate.

5.  Because Ng Hok Luen predeceased Ng Yuk Ching, Ng Hok Luen’s wife, Tse Chiu Fook (謝招福), was also entitled to a share of the Estate at the time of Ng Yuk Ching’s death pursuant to clause 4 of the Will. Tse Chiu Fook passed away in 1967. Ng Chi Chun was also entitled to a share of the Estate.

6.  On 22 February 1952, Tsang Lin Wa was granted the probate. She sold some pieces of land among the Estate, particularly those in Kowloon, during her lifetime.  However, when she passed away in 1978, the administration of the Estate had not yet completed.  Some pieces of land among the Estate were still unsold. In her will, she appointed Ng Ping Lin and others as executors.

7.  Probate to Tsang Lin Wa’s estate was granted to Ng Ping Lin in 1982.  He started to handle matters about the Estate.  Until today, some pieces of land among the Estate are still unsold.  These unsold lands include some pieces of land in Ng’s village.  The present case is about adverse possession of 11 properties among the Estate located inside Ng’s village.

8.  Ng Ping Lin is the executor and one of the beneficiaries of the Will.  He is the paper owner of the Estate.

9.  Cheung Sau Chu (張秀珠), the 1^st defendant, was not a stranger to the Ng’s family.  In 1965, she married Ng Chi Chun.  In other words, she became the granddaughter-in-law of Ng Yuk Ching upon marriage. As another name of Ng Chi Chun was Ng Wang Chun (吳宏春), Cheung Sau Chu was also known as “Wang Chun’s wife” (宏春嫂). Upon marriage, Ng Chi Chun and Cheung Sau Chu moved in a room on the ground floor inside a property known as Yuk Ching Villa (郁清別墅), located inside Ng’s village. 

10.  Cheung Sau Chu and Ng Chi Chun resided in Ng’s village since marriage.  They had 5 children.  In about 1984, Ng Chi Chun left Cheung Sau Chu.  Cheung Sau Chu and her 5 children then continued to reside in Ng’s village.  In 2005, Ng Chi Chun passed away and their 5 children were entitled to a share of the Estate pursuant to Ng Chi Chun’s will.

11.  Cheung Sau Chu is now claiming adverse possession of 11 properties in Ng’s village among the Estate. Their exact locations had been identified in a Survey Report and a Supplemental Survey Report[1]. I shall refer to these 11 properties as Property 1 to Property 11 respectively.

12.  The 2^nd defendant was absent throughout the proceedings.

Plaintiff’s case

13.  The plaintiff commenced these proceedings in 2012 against Cheung Sau Chu and the 2^nd defendant for trespass against Property 1 to Property 11 and for account of mesne profits collected by Cheung Sau Chu by way of rent.

14.  The plaintiff’s case is that since 1959, Tse Chiu Fook, the wife of Ng Hok Luen, and Tse Man Chun (謝文珍), the wife of Ng Kin Lin, were entrusted to manage and collect rents of those lands among the Estate in Ng’s village. An original authorization letter was produced and marked as Exhibit P1 in support of the plaintiff’s contention.

15.  Cheung Sau Chu, upon marriage, was regarded as a member of the Ng’s family and was permitted to reside in Yuk Ching Villa. As Ng Chi Chun and Cheung Sau Chu were financially in need, they were permitted to make use of the lands among the Estate in Ng’s village to earn a living without payment of rent.  In other words, Cheung Sau Chu was under a licence. So, she was never in adverse possession of any of the 11 Properties.

1^st Defendant’s case

16.  Cheung Sau Chu contested these proceedings by way of adverse possession.  She claimed that she had adversely possessed the 11 Properties.

17.  Upon marriage with Ng Chi Chun in 1965, she started to move in Property 1 under the instruction of Tse Chiu Fook.  Thereafter, she gradually occupied and took exclusive possession of Properties 2 to 11 on her own initiative without the permission and/or consent by anybody.

18.  She disputed the authenticity of Exhibit P1 and stated that she and her children had no knowledge of the authorization given to Tse Chiu Fook in managing and collecting rents of the lands in Ng’s village. She denied any licence had been granted to her. She also stated that she did not know the contents of the Will before 2001. She and her children were only given a copy of the Will in 2001 and started to realize its contents.

Preliminarymatters

19.  Before I embark on a discussion on adverse possession, I shall deal with a few matters that had been raised in the course of the trial but were not pursued at the end.

(a) Capacity to sue

20.  At the outset, Mr Ng (with him, Miss Fong), counsel for the 1^st defendant, queried the plaintiff’s right to sue.  In this case, Ng Ping Lin did not obtain probate of the Will but only the probate of Tsang Lin Wa. Mr Ng submitted that an executor cannot maintain actions before probate except those founded on his own possession. Mr Ng further submitted that Ng Ping Lin could not rely on the chain of executorships because Tsang Lin Wa was not the sole or last surviving executor of the Estate[2].

21.  In reply, Mr Chan, counsel for the plaintiff, referred to the decision of Yeung Yuk Yin, the executrix of the Au Kin Sun, the deceased v Chiu Tat Si and Chiu Kin Hung trading as Yau Hing, Marine Store & Old Metal Dealer, HCA 4556/2003. In that case, DHCJ Louis Chan (as he then was) cited with approval paragraph 25.12 of The Law of Succession by Mellows (5^th edn.) as follows :-

“The first of the two situations in which the executor needs a grant is to sue to judgment. Any executor before grant can begin any action, and he can continue any action commenced by the deceased, provided it does not lapse on death. He must obtain probate before judgment, if the action depends on his title as executor, but probate is not needed in any other case. If, therefore, it is necessary only to show possession and not title, as in the case of an action for trespass, the action can be completed without a grant.” (paragraph 12)

22.  Mr Ng had also been referred to the requirement of pleadings pursuant to Hong Kong Civil Procedure 2015, Vol. 1, paragraph 18/8/19 :-

“If either party wishes to deny the right of any other party to a claim as executor …… he must deny the same specifically, otherwise such representative capacity will be admitted.”

23.  At last, Mr Ng said that he was not persuaded by Yeung Yuk Yin but in any event decided that he would not take any issue on the plaintiff’s right to sue and made no further submission. Effectively, he abandoned this point.

(b) Section 10(2) Limitation Ordinance

24.  Clause 3 of the Will provided that part of the Estate was to be held on trust for the purpose of perpetuating the periodical ceremonies of worship conducted in memorial of Ng Yuk Ching and others. Therefore, it was once raised by Mr Chan that Cheung Sau Chu could not have adversely possessed the 11 Properties by reason of Section 10(2) of the Limitation Ordinance.  He submitted that limitation did not start to run as new beneficiary to the Estate was born as late as 2007.

25.  Mr Ng submitted that no charitable trust could be established by the Will as it was not an inter vivos disposition. In Re Lau Wai Chau [2000] 1 HKLRD 924, Bokhary PJ said at p.931 B-E :-

“It has never been doubted that ancestral worship trusts exist under Chinese law and custom as an institution of that legal system…….

Such endowments are to be made either by steps taken by someone in his lifetime to carry out his own wishes or by steps taken by heirs in their lifetime to carry out the wishes of a deceased ancestor…...Thus by the very nature of ancestral worship trusts, the only kind of disposition that can create an ancestral worship trust is an inter vivos disposition.”

26.  However, it is academic in this case to decide if a valid trust had been established under the Will. There was no evidence to substantiate if there was any new beneficiary born in 2007 or at any time that could trigger Section 10(2) Limitation Ordinance. In final submission, Mr Chan abandoned this point and confirmed that he would not rely on Section 10(2) Limitation Ordinance in this case.

(c) Communication with witnesses outside court

27.  Mr Ng, during the 2^nd day of trial when Ng Ping Lin was giving evidence in court, informed me that a lady sitting in the public gallery had written some notes in court and then appeared to have communicated with other witnesses outside the court. That lady was later identified as Ng Ngai Yue (伍毅儒), a granddaughter of Ng Yuk Ching.

28.  Because of the alleged communication, the plaintiff’s witnesses were cross-examined in this aspect. Mr Tang Boon Yan Henry, solicitor for the defendant, made a witness statement and testified in court as well.  However, during final submission, Mr Ng confirmed that he would not take issue in this regard.

29.  Having heard all the evidence, I find that Ng Ngai Yue had simply made a general comment outside court room about the lawyer for the 1^st defendant.  She commented the 1^st defendant’s lawyer was “beat about the bush” (遊花園) and was wasting time. I do not find that she had communicated the evidence given by Ng Ping Lin with any of the plaintiff’s witnesses waiting outside the court. I do not find that any witness for the plaintiff waiting outside the court was aware of the evidence given by Ng Ping Lin in court.

Issue of trial

30.  At the end, the fundamental question was whether Cheung Sau Chu was in adverse possession of Properties 1 to 11 or any part thereof prior to the issue of the writ for the requisite stipulated period under the Limitation Ordinance so as to bar the plaintiff’s action.

31.  Mr Ng submitted that Cheung Sau Chu had already adversely possessed Properties 1 to 11 for over 20 years and pursuant to the Limitation Ordinance, no action shall be brought to recover the Properties.

32.  The burden rested on Cheung Sau Chu to prove both elements of factual possession and an intention to possess.  She did not claim herself dispossessed the 11 Properties jointly with Ng Chi Chun. 

The legal principle

33.  It is trite law that a person claiming to be in adverse possession must be shown to have both possession and the actual intention to possess and treat the land as his own, to exclude all others including the true owner (See Wong Tak Yue v Kung Kwok Wai (No. 2) (1997-1998) 1 HKCFAR 55, at 68E-J; Tang Tak Hong v Cheung Yat Fuk [2002] 3 HKLRD 743 at 745 (paragraph 6)).

34.  These requirements are question of fact (seeWong Tak Yue at 69A).

35.  As to the intention to possess a land, Slade J in the well-known case of Powell v McFarlane (1979) 38 P&CR 452 at pages 471 to 472 and 476 said:

‘ (4) …… What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.

The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.

…..

In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.’

Analysis

Authenticity of Exhibit P1

36.  In support of the contention that Tse Chiu Fook and Tse Man Chun were entrusted with the authority to manage and collect rents in Ng’s village for the Estate, the plaintiff produced a document dated 8 August 1959 as Exhibit P1. Its authenticity was challenged during trial.  During the final submission, however, Mr Ng submitted that he would not take a very strong view over its authenticity. 

37.  Under cross examination, Ng Ping Lin said that Exhibit P1 was found among the documents passed to him from Tsang Lin Wa.  Both Ng Ping Lin and Ng Siu King (吳小京), daughter of Ng Ping Lin, testified that Exhibit P1 was kept inside a folder and placed in a cabinet in the office of Ng Ping Lin. I find that they had a detailed and consistent version as to how Exhibit P1 was found and kept.  I accept their evidence. Although Or Shing Lan (柯盛蘭), wife of Ng Ping Lin, said that Exhibit P1 was found among the documents given to Ng Ping Lin by Hastings, I think her answer was not accurate because of the lapse of time and too many documents were involved in this case.

38.  Further, in Exhibit P1, the chop of Tse Chiu Fook could still be seen clearly. I have compared the chop of Tse Chiu Fook as appeared in Exhibit P1 with the chop of Tse Chiu Fook as appeared in a tenancy agreement regarding Property 11, disclosed by the 1^st defendant[3]. On the face of them, both chops appear to be the same.  It was a common practice for illiterate Chinese at that time to use a chop. On balance, I accept Exhibit P1 was a genuine document.

39.  I find that Tse Chiu Fook was entrusted with the management and collection of rents of the land among the Estate in Ng’s village and she knew that she was under permission to do so.

When did the family of Tse Chiu Fook know the contents of the Will?

40.  In view of the lapse of time, there was only flimsy evidence, if any at all, about what happened upon the death of Ng Yuk Ching.  There was no evidence to tell if Hastings had called upon the beneficiaries and told them the contents of the Will. I think it is understandable as what happened was more than 60 years ago and Hastings did not keep any record for that. Not even Ng Ping Lin could tell as he was basically resided in mainland China at that time and just came back to Hong Kong for a short duration upon the death of Ng Yuk Ching.

41.  Nobody can say in what way, if any, the offspring and daughters-in-law of Chung, including Ng Kin Lin, Ng Chi Chun, Tse Man Chun and Tse Chiu Fook, were told about the contents of the Will upon Ng Yuk Ching’s death. In fact, they all passed away.

42.  In the circumstance, I consider this question by way of commonsense at first. Based upon the amount involved in the Estate, I have no hesitation in categorizing Ng Yuk Ching as a rich man when he passed away.  The value of the Estate exceeded $440,000 in 1949.

43.  In light of such a huge sum involved, it was natural that everybody among the Ng’s family would be eager to find out if Ng Yuk Ching left any will at that time.  If they were told that there was a will, they would certainly endeavour to ascertain their share under the will.  If they were told that there was no will, they would ascertain their share to the estate pursuant to the intestate situation. Although Ng Hok Luen predeceased Ng Yuk Ching, I think Tse Chiu Fook would also be eager to know if Ng Yuk Ching left a will.

44.  Furthermore, Hastings was the solicitors firm acting for Ng Yuk Ching at that time and knew the contents of the Will.  Pursuant to the Will, Tse Chiu Fook, being the wife of Ng Hok Luen, became a beneficiary. It was inherently implausible that Hastings had done professionally unacceptable conduct in failing to inform Tse Chiu Fook, one of the beneficiaries, the contents of the Will.

45.  Another way to consider this question is to look at the documents. Cheung Sau Chu and her family members testified that they did not know the contents of the Will, at least before 2001. They said that only until 2001 they were given a copy of the Will through the assistance of Tsui Chau Lun (徐秋麟). The family of Cheung Sau Chu tried to present a scenario that because they did not know the contents of the Will, they also did not know that Ng Chi Chun had a share of the Estate prior to 2001. That scenario, however, is in direct contradiction to documentary evidence.

46.  Cheung Sau Chu and her children testified that they did not have a close relationship with Ng Ping Lin. They were not satisfied with the way how Tsang Lin Wa and Ng Ping Lin managed the Estate. Through a letter dated 25 November 2008, Ng Sheung Yee (吳相宜), the eldest daughter of Cheung Sau Chu, even wrote to Ng Ping Lin complaining a number of matters including an unfair distribution of the Estate.

47.  In the letter, Ng Sheung Yee acknowledged that since her childhood, probably in early 1970s[4], she knew from her father Ng Chi Chun that Ng Chi Chun and Cheung Sau Chu had visited Tsang Lin Wa and Ng Ping Lin asking for their entitlement derived from the sale of a property known as Wing Sang Tong (永生堂).  There is no dispute that Wing Sang Tong was among the Estate.  If Ng Chi Chun and Cheung Sau Chu were not aware of the contents of the Will prior to 2001, there was no basis for them to make such a demand.

48.  The contents of the letter clearly indicate that both Ng Chi Chun and Cheung Sau Chu knew their entitlement under the Will as early as when Ng Sheung Yee was very young. Under cross examination, Ng Sheung Yee said that when she wrote the letter, she simply confused with what she was previously told by Ng Chi Wing.  However, the wordings in the letter are unequivocal. I do not accept her explanation. I find she was making up excuse in order to strengthen her mother’s case.

49.  Taking all evidence into consideration, I find that Tse Chiu Fook was told the contents of the Will upon the death of Ng Yuk Ching.  On that basis, there was no reason for Tse Chiu Fook not to let her son and daughter-in-law knew about that. I therefore also find that Ng Chi Chun and Cheung Sau Chu knew the contents of the Will before Tse Chiu Fook passed away in 1967.

Factual Possession

(a) Property 1 to Property 3

50.  I visited Properties 1 to 11 on the 1^st day of trial. I find that Yuk Ching Villa is in fact a big house with a number of rooms.  According to the witness statement of Cheung Sau Chu, it had 10 rooms. Properties 1 to 3 are in fact rooms inside Yuk Ching Villa.

51.  Obviously, Cheung Sau Chu moved into Property 1 to live with Ng Chi Chun in 1965 under the permission of Tse Chiu Fook. In her witness statement, however, Cheung Sau Chu claimed that she started adverse possession of Property 1 in 1965. It is incredible as she was residing with her husband Ng Chi Chun together in Property 1 at that time under the permission of Tse Chiu Fook. There was no evidence that she excluded Ng Chi Chun from residing with her. She shared possession with Ng Chi Chun pursuant to Tse Chiu Fook’s permission. I do not accept that she started to have possession of Property 1 on her own since 1965.

52.  According to Cheung Sau Chu, she moved to reside at Property 2 with Ng Chi Chun in 1967. For Property 3, after a tenant moved away in about 1980, she started using it for rearing chickens. In 1986, she spent some money to renovate Property 1 to Property 3 and also built a staircase to connect Properties 1 and 3 with Property 2 for a better living environment for her and her 5 children. She resided at Properties 1 to 3 until today.

53.  In Cheung Sau Chu’s witness statement, she claimed that she started adverse possession of Property 2 in 1967 and Property 3 in 1980. I do not accept her version because she did not exclude Ng Chi Chun. 

54.  In fact, the plaintiff’s case is all along that Cheung Sau Chu was permitted to use the land in Ng’s village and reside in Yuk Ching Villa. For physical possession, there was no evidence from the plaintiff’s side to contradict what Cheung Sau Chu said. I also accept Cheung Sau Chu paid the utility bills for Properties 1 to 3 after Ng Chi Chun moved away in 1984. On totality of the evidence, I accept that Cheung Sau Chu started possessing Properties 1 to 3 since 1984, namely after Ng Chi Chun left her.

(b) Property 4

55.  The key to Property 4 was kept by Ng Chi Chun in 1967. Later on, Property 4 was occupied by a Mr Nip. After Ng Chi Chun went away, Cheung Sau Chu said that she started to collect rent from Mr Nip. She never took physical possession of the land by herself. Still, it is trite law that the adverse possessor needs not himself be in physical possession of the land.  If he grants a tenancy or licence, the tenant or licensee possesses on his behalf (see Cheung Yat Fuk v Tang Tak Hong, [2004] 2 HKLRD 86).

56.  I accept that since 1984, Cheung Sau Chu started possessing Property 4 through Mr Nip.

(c) Property 5

57.  Part of Property 5 was occupied by a Mr Yip until 1980 and the remaining part by a Mr Poon until 1990. After they moved away, Cheung Sau Chu started to make use of Property 5 as storeroom or rented it out to earn a living. Again, I do not accept Cheung Sau Chu solely possessed Property 5 prior to 1984. I accept that Cheung Sau Chu started possessing part of Property 5 since 1984 and the whole of it since 1990.

(d) Properties 6 & 7

58.  Property 6 was occupied by a Mr Cheung until 1970. Cheung Sau Chu said that she paid $2,000 to redeem Property 6 from Mr Cheung and then started to turn it into a pig shed.

59.  Property 7 was fenced off by Ng Chi Chun and then used to grow fruit trees since about 1960s. In 1997, Properties 6 and 7 were renovated and Ng Ching Yee (吳清宜), daughter of Cheung Sau Chu, started to reside there. According to Cheung Sau Chu, Ng Ching Yee paid about $7,000 per month to her as family expenses, which covered the rent for Properties 6 and 7.

60.  In Cheung Sau Chu’s witness statement, she claimed that she started adverse possession of Properties 6 and 7 since 1970. I do not accept. I find that prior to 1984, both Cheung Sau Chu and Ng Chi Chun were jointly using Properties 6 and 7 to earn a living. I can only accept Cheung Sau Chu started possessing Properties 6 and 7 since 1984.

(e) Property 8

61.  Since 1967, Property 8 was used by Cheung Sau Chu and Ng Chi Chun for rearing pigs. In 1970, it was used for storage. Since 1997, it was rented out.

62.  Ng Sze Yee (吳思宜), daughter of Cheung Sau Chu, kept records of the utility bills, rental receipts stubs and tenancy agreements in support of Cheung Sau Chu’s case. I accepted those records substantiate that Cheung Sau Chu had rented Property 8 out since about 1997. In Cheung Sau Chu’s witness statement, she claimed that she started adverse possessing Property 8 since 1967. Prior to 1984, however, she was only using Property 8 together with Ng Chi Chun in rearing pigs and for storage. I can only accept that since 1984, Cheung Sau Chu started possessing Property 8.

(f) Property 9

63.  Property 9 was used to be occupied by other people for rearing pigs and in about 1970, Cheung Sau Chu redeemed it and used it for rearing pigs. Later, she turned it into a storeroom and as farmland. In about 2010, she spent money to build a small storeroom at Property 9. In Cheung Sau Chu’s witness statement, she claimed that she started adverse possession of Property 9 since 1970. However, I do not believe that she ousted Ng Chi Chun before 1984 and I am satisfied that only since 1984, she started possessing Property 9.

(g) Property 10

64.  Prior to 1972, Property 10 was occupied by other people for rearing pigs and as residence. In 1972, Cheung Sau Chu said that she paid some money to those occupants and redeemed it. She then started to rear pigs and chickens there. In 1998, part of Property 10 was rented out to a Mr Wong. In about 2001, Mr Wong was harassed by Ng Ping Lin and/or somebody sent by him. Mr Wong moved away in 2002. Then, Property 10 was used for storage.

65.  There were some rental receipts stubs to support the claim that Cheung Sau Chu rented Property 10 out. In Cheung Sau Chu’s witness statement, she claimed that she started adverse possession of Property 10 since 1972. However, prior to 1984, she was using Property 10 together with Ng Chi Chun. Accordingly, I accept that she started possessing Property 10 only since 1984.

(h) Property 11

66.  Cheung Sau Chu claimed that Tsang Lin Wa had already given Property 11 to Tse Chiu Fook as a gift in 1950s.  In 1961, Tse Chiu Fook entered into a written tenancy agreement with Hui Sheung Mo (許尚武).  After Tse Chiu Fook passed away, Cheung Sau Chu collected rent from Hui Sheung Mo until 1980. Then, she demolished the original building and constructed a farmhouse to rear chickens and pigs.  In 1997, she demolished the farmhouse and built 5 self-contained units.  She rented out the 5 units and collected rents.  She was able to produce a number of rental receipts in support of her case.

67.  According to the tenancy agreement between Tse Chiu Fook and Hui Sheung Mo, the land was described as “吳郁清嘗田壹塊”. The word “嘗田” can be interpreted as “ancestral worship land” (see Tang Tak Sum v Tang Kai Fong, [2013] 4 HKLRD 16 at p.21).  Although Tse Chiu Fook was illiterate, she put her chop in that tenancy agreement.  There was no evidence to suggest that Tse Chiu Fook did not know its content. I find Tse Chiu Fook knew that this piece of land belonged to the Estate at the time when she entered into the tenancy agreement in 1961.

68.  Cheung Sau Chu testified that she was not aware of that tenancy agreement until recently. I do not believe her. She admitted that she had spent $9,500 in redeeming the land from Hui Sheung Mo. Usually, a landlord does not pay money to the tenant to move away. However, that tenancy agreement clearly stipulated that at the time when the landlord redeems possession of the land, the landlord is required to compensate Hui Sheung Mo for all the construction fees of the land. I find that was the reason why Cheung Sau Chu was willing to pay $9,500 to Hui Sheung Mo. I find that Cheung Sau Chu knew the content of the tenancy agreement. Her evidence in this aspect is unreliable.

69.  In her witness statement, she claimed that she started adverse possession of Property 11 in 1980. No matter what caused her to pay $9,500 to Hui Sheung Mo, I accept that she started using Property 11 since Hui Sheung Mo moved away. She reared pigs and chickens there. Since 1998, she rented Property 11 out. There were lots of rental receipts stubs and tenancy agreements to substantiate her case. However, I do not accept that she excluded Ng Chi Chun from rearing pigs and chickens with her after 1980. I find that only after Ng Chi Chun left her, she started possessing Property 11.

70.  In the circumstance, I find that Cheung Sau Chu started possessing part of Property 5 since 1990 and the remaining part of Property 5, Properties 1 to 4 and Properties 6 to 11 since 1984. In other words, Cheung Sau Chu had a continuous possession of Properties 1 to 11 for more than 20 years prior to the commencement of this proceedings.

Intention of adverse possession

71.  I now turn to the core issue of this trial: intention of adverse possession.

72.  Taking all the evidence into account, I do not accept that Cheung Sau Chu had any intention of adverse possession of Properties 1 to 11, at least prior to 2001.

73.  During trial, Cheung Sau Chu claimed that after Ng Chi Chun left her in 1984, she would not allow him to come back and reunion with her. She admitted that she had paid debts owed by Ng Chi Chun after he left. Mr Chan submitted that Cheung Sau Chu did not intend to separate with Ng Chi Chun after 1984, otherwise, she would not have paid for Ng Chi Chun’s debts. In this regard, I accept Cheung Sau Chu’s explanation that when she paid those debts, her primary concern was not to cause trouble to the guarantees of Ng Chi Chun’s debt. I do not take that piece of evidence into account for my consideration of whether or not Cheung Sau Chu intended to refuse Ng Chi Chun for coming back and living with her again.

74.  It is indisputable that before Ng Chi Chun passed away, he did not come back and reunion with Cheung Sau Chu. However, the fact was that she did not divorce Ng Chi Chun. She continued to reside in Yuk Ching Villa and allowed others to address her as “Wang Chun’s wife”. She did not even change the name on the utility bills of Properties 1 to 3 from Ng Chi Chun to her. When she was cross-examined why she did not change the name of the bills after 1984, she gave various explanations. She said that as far as the bills were paid, the utility companies would not bother. She also claimed that she was too lazy to do so and did not know how to make the change. I do not accept her explanation because it was too easy for her to change the name on the bills if she really wanted to. Even if she did not know how to do, she could have easily sought assistance from her 5 children and relatives. From the documentary evidence, her son Ng Tai Yin (吳泰然) was the applicant for electricity supply for Property 5 in 1996. The electricity supply of Properties 6 and 7 was and is still registered under the name of Wong Chun Tat, who was the boy friend and is now the husband of Ng Sheung Yee.

75.  In the circumstance, I do not agree that Cheung Sau Chu intended to exclude Ng Chi Chun from coming back to Ng’s village and reunioning with her.

76.  More importantly, if she had intention to adverse possess the 11 Properties, she could and should have caused all the utility bills be registered in her personal name. However, only the utility bills for Property 11 were registered in her name. For the rest, they were registered in the name of Ng Chi Chun or Ng Tai Yin or Wong Chun Tat. Water supply of Property 10 was even registered in the name of Chung Lo Sang, who was not related to Cheung Sau Chu.

77.  Also, I find that Cheung Sau Chu had a tendency to refuse to admit matters that would be prejudicial to her case. I have already decided that she knew the contents of the Will before Tse Chiu Fook passed away in 1967.

78.  Moreover, I have decided that Tse Chiu Fook was entrusted to manage and collect rents of the land in Ng’s village. It would be unreasonable for Tse Chiu Fook not to inform Ng Chi Chun and Cheung Sau Chu. I find that Cheung Sau Chu knew that Tse Chiu Fook was so entrusted.

79.  I therefore find the evidence of Cheung Sau Chu not reliable. Her children testified that Cheung Sau Chu was using and/or allowing them to reside at the Properties. In particular, Ng Sze Yee assisted Cheung Sau Chu to keep records relating to the tenancy of Properties 4, 5, 8, 10 and 11. Other witnesses for Cheung Sau Chu were tenants or neighbours. They said that Cheung Sau Chu was using, occupying or collecting rents from the Properties. Evidence of Mr Tang, solicitor of Cheung Sau Chu, had nothing to do with the case of Cheung Sau Chu. Having heard all of their evidence, none of them could further strengthen Cheung Sau Chu’s case regarding her intention of adverse possession of the 11 Properties.

80.  I accept Cheung Sau Chu had from time to time possessing, managing and occupying Properties 1 to 11. She occasionally spent her hard-earned money to improve those Properties. She paid money to the occupants for redemption of some of the Properties. She arranged mail box for tenants. She paid for the utility bills. Still, I find that what she did was consistent in managing these Properties pursuant to a licence. To make use of the Properties to earn a living and to rent the Properties out and then make use of the rental income for the benefits of the family and her children were exactly the purposes of the permission granted to her.

81.  Exhibit P1 had no time limit. After Tse Chiu Fook passed away, nobody revoked the permission granted. Therefore, with knowledge of the existence of the Will, she (as well as Ng Chi Chun) knew that Ng Chi Chun had a share of the Estate, including the land in Ng’s village. With the knowledge of the existence of Exhibit P1, she (as well as Ng Chi Chun) knew that permission had been granted to Tse Chiu Fook to manage and collect rents for the Estate. She (as well as Ng Chi Chun) was just thinking of succeeding the licence granted.

82.  On the other hand, I consider the plaintiff’s case more believable.

83.  I find Ng Ping Lin and all witnesses for the plaintiff honest and reliable, except in one matter. When Ng Ping Lin was cross-examined as to why he deposited the money belonged to the Estate into his personal bank account, he said that it was difficult to open a bank account for the Estate. He also said that it was very difficult to open 2 bank accounts. His evidence was contrary to commonsense in this regard. However, I do not think that would affect his overall credibility in this case. From the evidence, Ng Chi Wing and Ng Sheung Yee had questioned, or even criticized, Ng Ping Lin’s way of managing the Estate. When Ng Ping Lin mixed up the Estate with his personal asset, he would be subject to challenge for breach of duty as an executor. I think that is the reason he claimed that it would be difficult for him to open bank account for the Estate. His purpose was to avoid being accused for breach of duty. Save and except that, he was unshaken. In the witness box, occasionally, he would repeat his answer. He would also talk about some irrelevant matters. But it was understandable as he was 90 years old at the time of trial. Save and except his explanation as to why he mixed the Estate up with his personal asset, I accept his evidence.

84.  Further, granting a licence to Tse Chiu Fook and then Ng Chi Chun and/or Cheung Sau Chu was also reasonable, or even necessary. Both parties testified that Ng Chi Chun was an alcoholic and was not hard working. Ng Chi Chun’s family was in financial hardship. It would be contrary to commonsense and not amenable to reason in case Tsang Lin Wa and Ng Ping Lin (and all other beneficiaries of the Will) demanded Ng Chi Chun’s family to pay rent for residing in Yuk Ching Villa and for using the land in Ng’s village. It would be too mean for them to demand Ng Chi Chun and Cheung Sau Chu to account for the rents they received from the tenants in Ng’s village. All in all, they were relatives. If Ng Ping Lin was a person who did not take into account of the relationship with Ng Chi Chun’s family, he could have taken legal action in 2001 when he failed to take back Property 10 for the construction of Sze Yuen Square. I will further elaborate that incident later.

85.  There was no evidence that Ng Ping Lin (or Tsang Lin Wa) had held a conference with Cheung Sau Chu, or entered into a written agreement with her, before granting a licence. At best, he could only say that he had talked about that directly with Cheung Sau Chu in about 2005.

86.  However, Ng Ping Lin also testified that Ng Chi Chun and Cheung Sau Chu were regarded as members among the Ng’s family. It is indisputable that they were in fact the grandson and granddaughter-in-law of Ng Yuk Ching.  They had lot of children and were financially in need.  I find that they were therefore given permission to reside at Yuk Ching Villa freely and to make use of the land in Ng’s village to earn a living through rearing pigs and chicken without necessity to pay any rent. The licence granted derived from Exhibit P1. Technically, Cheung Sau Chu and Ng Chi Chun were not a party to Exhibit P1. But the importance was that Cheung Sau Chu knew that Tse Chiu Fook, her mother-in-law, was permitted to manage and use the land in Ng’s Village. With that knowledge in mind, together with particularly the fact that she was the granddaughter-in-law of Ng Yuk Ching, I do not agree that Cheung Sau Chu (as well as Ng Chi Chun) would have intention of adverse possession of the 11 Properties.

87.  Such permission was not revoked, at least before 2001. In Ng Ping Lin’s view, Cheung Sau Chu and Ng Chi Chun simply succeeded Exhibit P1. As some beneficiaries under the Will were not in Hong Kong, he would occasionally chat with them via phone call.  When talked about the fact that Cheung Sau Chu and Ng Chi Chun were using the land in Ng’s village freely, they did not object. In fact, nobody in the Ng’s family objected. I find that reasonable. I accept Tsang Lin Wa and Ng Ping Lin had allowed Ng Chi Chun and Cheung Sau Chu to use the land among the Estate in Ng’s village.

88.  Taking all evidence into account, I do not believe Cheung Sau Chu had any intention of adverse possession of any land in Ng’s village among the Estate. I find that she did not intend to adverse possess Properties 1 to 11. I find that she was under permission to use the Properties.

89.  In the case of Cheung Chung Yan v Chan Man Kwong, CACV 268 of 2003, Ma CJHC (as he then was) said at paragraph 17:-

“As a matter of law, where a person occupies land as a licensee or otherwise with the permission of the true owner, he is not in adverse possession, for he enjoys his occupation under lawful title.”

Sze Yuen Square

90.  In 2001, despite requested by Ng Ping Lin, Cheung Sau Chu refused to surrender Property 10 for the construction of a square known as Sze Yuen Square (思源廣場). I can infer upon that request, Ng Ping Lin had in effect revoked the licence to Property 10.

91.  It is not easy to say why Cheung Sau Chu refused to surrender Property 10 at that time. Probably, at about that time, she realized that the land in Ng’s village became valuable as the government started to build roads in that area.

92.  However, according to the pleaded case, Cheung Sau Chu did not claim adverse possession of the Properties since 2001. Even if it were so pleaded, the commencement of this proceedings was in December 2012, namely just less than 12 years from the date of request.  The Limitation Ordinance offers no assistance to her case.

Conclusion

93.  In the circumstance, I shall dismiss the counterclaim of the 1^st defendant and enter judgment for the plaintiff. The total mesne profits for the 11 Properties were agreed by both parties at $150,000. No one applied to join in as a party to these proceedings. Therefore, there should be an order for possession against the 2^nd defendant.

Orders

94.  In the circumstance, judgment be entered for the plaintiff as follows :-

(1)An order that the 1^st and 2^nd defendants do stop occupying and to deliver vacant possession of the 11 Properties;

(2)An injunction to restrain the 1^st and 2^nd defendants and/or their agents from trespassing on the 11 Properties; and

(3)The 1^st defendant do pay mesne profit of $150,000 to the plaintiff, with interest at judgment rate from the date of judgment until satisfaction.

95.  The 1^st defendant’s counterclaim be dismissed.

Costs

96.  Costs should follow events.  On a nisi basis, the 1^st defendant do pay costs to the plaintiff of this action, including any costs reserved, with certificate for counsel to be taxed if not agreed. There is no order as to costs against the 2^nd defendant.  This order nisi for costs becomes absolute 14 days after the date hereof unless any party applies to the court for varying the order.

[1] Bundle C p.1259 - 1302

[2] Section 34(1) of the Probate and Administration Ordinance, Cap 10

[3] Bundle C p1305

[4] Ng Sheung Yee was born in 1967