FUN KAI LOI v. FUNG TAI YIU AND OTHERS

1981 No. MP1350

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. After the sensational and robust applications made on the pleadings, the evidence and the concluding speeches seem, by comparison, to be somewhat uneventful, but I am in a happy position to be able to deliver oral judgment at the conclusion of submissions by both Counsel. I would, in due course, reduce it into writing if only to have matters more systematically and elegantly put.

2. The background of these proceedings is not altogether too complex. Hearsay notices have been served by both sides and evidence relating to the past is sought to be adduced through what had been told to the living witnesses by their ancestors. On behalf of the defendants, the Court was told that some time in about 1918 Fung Chi-ting purchased the property now under consideration. I shall simply call it "the land". According to DW2, Mr Fung Sheung-man, now the eldest member of one of the fongs of the Fung Shing Chak Tong, from the information of his late father, his grandfather for his own personal and family purposes had this particular land acquired. Purchase is not a matter in dispute. It is also not in dispute that in about 1920, a group of persons from Wang Lak, Wai Chau, had made their way to Hong Kong. This group comprised Fung Chun Kwai, Fung Kwok Hei, Fung Kwok Leung and Fung Kwok Cheung. Fung Kwok Cheung is the late father of the plaintiff. I need not revert to the past litigation history except to say that the plaintiff's action has been dismissed by consent. I am now confined to the Counterclaim of the defendants, which the plaintiff defends.

3. The group of persons from Wang Lak, Wai Chau, were introduced to the grandfather by Fung Mau-to, an employee of the grandfather of the defendants in Cheung Chau. The group were accommodated in the land situated in Demarcation District 126. They were also suitably assisted. From DW2, Mr Fung Sheung-man, his late father had related to him that the land was "granted" to Fung , Kwok-hei for picking laichees, the trees of which had been planted by the group from Wang Lak, Wai Chau. There is no evidence as to when the grant was made, what its terms were, and how these terms were implemented by the grantee. The grandfather, according to Mr Fung Sheung-man, passed away in 1922 soon after he was born.

4. In 1922,a family agreement was signed , regulating the profits from the fields and the laichee trees, Exh. D3. Managers of the Tong, the Fung Shing Chak Tong, were finally appointed. The Tong itself became registed owner in 1929 replacing the previous registered owners, Fung Chor-yau, Fung Sheung-wing and Fung Lai-pow.

5. Mr Fung Sheung-man recalled that in 1942, on the instruction of his father, he visited d the land and was entertained, if that is a right word, by Fung Kwok-hei for an evening. He was sent by his late father on a special mission to collect fees or rental from Fung Kwok-hei. Some of the evidence given by Mr Fung Sheung-man and DW3, Mr Fung Tai-yiu may not be precisely covered by the hearsay notice, but I do not rely on the portion or portions of those evidence as evidence of truth rather than as evidence explaining the actions said to have taken by the respective witnesses or evidence of their motive.

6. Mr Fung Sheung-man subsequently returned empty-handed. His explanation was that time was not peaceful and the surplus bad been spent by Fung Kwok-hei in the acquisition of a firearms which he was permitted to try. He recalled another occasion in 1938, being aware that money and laichees would be given to the Tong by the grantee, on which he was handed $30 by Mr Fung Kwok-leung. He understood the payment to be money from the grantee of the land. He also described the times of his consumming some of the laichees from the land. His late father further told him that there was a formal grant in writing made to Fung Kwok-hei in 1956. Mr Fung Sheung-man himself did not see the written grant; nor has the written grant or any copy thereof been produced in these proceedings. The grant, according to Fung Sheung-man, was, as stated by his late father, for an annual fee of $500.

7. Fung Chor-yau, the late father of Mr Fung Sheung-man died in 1972. Mr Fung Kwok-hei, the grantee, passed away between 1960/1962, at one time said to be in 1961. No sooner had he died, Mr Fung Sheung-man and his late father personally approached the group from Wang Lak, Wai Chau, who resided just at the fringe of the land, an area otherwise known as the Fung Kar Wai. The purpose of the visit to the land and Fung Kar Wai was to have a face-to-face negotiations and another agreement with the descendants of Fung Kwok-hei.

8. Fung Sun-kai, the clan brother of the plaintiff, was the surviving eldest son of Fung Kwok-hei. He was approached, and an agreement was struck and another grant given. During the negotiation when Mr Fung Sheung-man left the negotiation parties for a time, he was approached by the plaintiff with an enquiry as to whether a grant could be made to him. He plaintiff himself, according to Mr Fung Sheung-man, was granted a licence to pick laichees on the land in 1966 under a document, D4, the terms of which were anything but precise. There were provisions for re-negotiation of the annual rate. Notice of the proposed grant to the plaintiff was, as usual, posted in Fung Kar Wai, which is D5.

9. In 1967, the Tong granted a licence to pick laichees on the land to Fung Seng (or Sun), Fung Chun-kwai and Fung Lin. Usual notice was posted. That 1967 grant led to the 1969 litigation in the District Court, in which the plaintiff in this case, Mr Fung Kar-loi, relied on Documents D4 &D5. A settlement was reached, whereby a sum of money was paid to the plaintiff.

10. As to what precisely transpired thereafter is not very clear. There was another licence granted in 1979 to Fung Siu-tang, and a further licence granted to a gentleman by the name of 'Tang' in 1981. In between those two licences, the Tong had decided to sell the land in 1979. The plaintiff wrote twice to the authority raising objection to the proposed sale, once with fellow villagers of Fung Kar Wai and once by himself. There is no evidence of any objection to the 1979 and 1981 grants to Mr Fung and Mr Tang, nor when the tong granted yet another licence to Mr Wong and Mr Lin in 1983.

11. DW3, Mr Fung Tai-yiu is the eldest son of Fung Chor-kwong, or shall I say a descendant of Fung Chor-kwong, a fong of the same Tong. He came forward to tell the Court of his 1948 visit to the land. He also described another visit in late 50's and early 60's. On that visit, he claimed to have been led to the plaintiff by the plaintiff's daughter; he saw in the plaintiff's house, a man who suffered from immobility.

12. The plaintiff's eldest daughter would be about 2/3 even in 1960. She was born in 1957. She would be 10 by 1967. In the year 1967, the plaintiff's brother unfortunately suffered a stroke and his movement was impaired. Miss Eu suggested that the recollection of Mr Fung Tai-yeu as to the time of his visit could very well be faulty; it could have been in 1967. It is not the time which is of utmost importance, but the very fact that he claimed to have visited the plaintiff on an occasion. As a matter of fact, Mr Fung Tai-yiu visited the land and Fung Kar Wai on about seven occasions. On most of the occasions, the visits were made casually but after a certain time because his became concerned as an appointed manager of the Tong. Most of these visits made by Mr Fung Tai-yiu, he found fairly acceptable except for the last in 1983, where he sustained a head injury. It is understandable, on his evidence, why Mr Fung Tai-yeu has made no further visit. Except for the time of an encounter with the plaintiff's daughter, I accept what he said in box. He does not appear to be very intelligent and he never pretended to be otherwise. He stood up well in cross-examination.

13. The plaintiff himself explained that his father was given the land to grow vegetables and laichees. Counsel for the plaintiff did forego all claims, on the word coming out in the translation as "given", to any possible gift of the land.

14. The plaintiff himself elaborated that what he meant by "given the land" was “since his father was a good friend of the grandfather of Mr Fung Sheung-man and paid Crown rent to government". His father entered the land in 1920 and therefore the plaintiff's late father Fung Kwok-cheung and Fung Kwok-hei cultivated the land and set up Fung Kar Wai. According to the plaintiff, the structures identified on Exh. P1 and circled in ink were erected by himself.

15. Fung Kwok-hei and the late father of the plaintiff, Fung Kwok-cheung, were both living in Fung Kar Wai where the ancestral hall of these families was erected

16. Fung Kwok-cheung died in 1941 when the plaintiff was 15. prior to the death of his late father, the plaintiff had helped him in cultivation for at least 2 years since 1939. At the time of death of the plaintiff's late father, Fung Kwk-cheung, in 1941, he was survived also by the plaintiff's eldest brother, Fung Lan-ming, who is 8 years his senior.  In 1941, at the time of death of the plaintiff's late father, Fung Kwok-hei also survived him. The plaintiff denied that Fung Kwok-hei Was in charge, but he agreed under cross-examination that Fung Kwok-hei gave instructions because he was more familiar with the land. However, the plaintiff added that they, Fung Kwok-hei and himself, worked together.

17. At the time of death of his late father, the plaintiff's eldest brother was 23. He was himself onl y 15. Yet he claimed that he himself, at his young age took over from his late father and worked the land together with Fung Kwok-hei and after his death with his son, Fung Sun-kai. Fung Kwok-hei died between 1960/1962 and his son Fung Sun-kai allegedly worked together with the plaintiff until he died in the 60's. Then the family of Fung Sun-kai/Fung Kwok-hei altogether moved out of the land and from Fung Kar Wai.

18. The past history as related by the plaintiff leaves some questions to be answered. Even on general knowledge one should have about a Chinese village family, if the uncle survived the father, why did the land come to be managed by the plaintiff? Why was the management of the land assumed by a young boy at the age of 15? Why was it not taken over by a senior man, the uncle, Fung Kwok-hei, who admittedly was more familiar with the land or his own elder brother at 23, Fung Lan-ming? Why was it that the uncle allegedly not in charge before, was taken in after by a boy of 15? Why was it that after the death of the uncle, his eldest off-spring, Fung Sun-kai, did not take a more prominent role? Why did it have to be left to the plaintiff every time as far as the control of the affairs of the land was concerned? The alleged working together as described by the plaintiff is vague. It must be borne in mind that answer's to these questions may not be inherently inimical to the case of the plaintiff, but they would be matters to be taken into consideration in judging the probabilities of the case of the plaintiff and his veracity.

19. There are certain subsequent events which cannot be said to be consistent with the version as given by the plaintiff. The plaintiff relied on documents D4 & D5 in the Distirct Court proceedings in 1969. D4 is a copy letter written by the late e father Mr Fung Sheung-man to the plaintiff. He refered to an earlier letter from the plaintiff "of the 17th and (I) learn that you are most anxious in obtaining the lease". The letter proposed certain steps to be taken so as "not to arouse Sun Kai's suspicious and everything would be alright if we succeed in so doing". Exh D5 is a notice to be posted up for the proposed grant of the land to the plaintiff. A subtle distinction was sought to be drawn by Counsel for the plaintiff as to the grant of the right to pick laichees and the grant of the right to enjoy the land. I can see no distinction in the circumstances of this case. In fact, the plaintiff himself has never sought to make any such fine distinction. In cross-examination, the plaintiff maintained that he was not concerned about this copy letter. When pressed by Counsel, he conceded that he based on both D4 & D5 for the 1969 District Court proceedings. On the 29th Feburary 1968, p. 17 of the plaintiff's document bundle, the plaintiff wrote to the District Office on the basis that the Fung Shing Chak Tong was the owner and he himself the lessee. He referred to a grant and his obligation to pay $300 rent a year. Also, he used those two documents D4 & D5 in the 1969 District Court proceedings. There is no evidence that he raised any objection when the Tong made a grant in 1979, 1981 and 1983.

20. In a short period of time between the 5th and the 17th November 1979, he wrote to the authority in terms of pages 105 & 108 of the defendant's Document Bundle. In one letter, he jointly wrote together with other villagers of Fung Kar Wai. He and his fellow villagers left the authority in no doubt by those two letters of objection to the Tong's proposed sale of the land that the Tong was the registered owner and he should receive compensation from the Tong. The use of the very word "compensation" would shut out all claims to an adverse possessary title.

21. There is not evidence of the plaintiff's involvement with the land after the District Court action.

22. Obviously, the Courts lean against disruption of registered title. Authorities drawn to my attention have served to remind me of the basic legal principles. Suffice it for me to refer to Powell v. McFarlane and Another, [1977] P. & C. R. 452. I opt for the observation of Slade J for its ring of rhetoric. The learned judge said at p. 470, the following :

 

"In the absence of evidence to the contrary, the owner of land with the paper title is deemed, to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without relunctance, ascribe possession either to the paper owner or to person who can establish a title as claiming through the paper owner. "

At p. 472, the judge reminded us of the importance, in a trespasser's claim to possession, of making a clear assertion of his animus possidendi, the requisite intention to possess : "In  . . . . .  a situation (where the question is whether a trespasser has acquired possession) 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 make such intention clear to the world". (Emphasis added).

23. I have endeavoured to highlight the various matters, faced with which, one would inevitably be tempted to seek further answers for explaining the plaintiff's conduct. I have referred to D4, D5, steps taken in the District Court action, letter written to the District Office before the 29th February 1968, objections raised in response to the Tong's proposed sale, absence of evidence of objection to Mr Fung Shiu-tang's grant in 1979, to Mr Tang's grant in 1981 and to another proposed grant of the licence of the land in 1983.

24. In my view, the proper inference to be drawn from these documents and conduct of the plaintiff is that there was no or no expressed intention of any adverse possession on his part or on the part of other villagers of the Fung Kar Wai to the title of the Fung Shing Chak Tong.

25. Evidently, many other possibilities could could exist. I could name a few. I certainly would not like to be taken as having given an exhaustive list of these possibilities : a remote possibility could be that adverse possession had created in the plaintiff, as alleged, an adverse possessary title and that, these documents and subsequent conduct of the plaintiff were no more than later acknowledgement of the title and right of the Tong, which would not serve to revive the extinguished title of the Tong to the land. That possibilty is remote. The plaintiff gave no indication n in his evidence that any such possibility existed or could be real Another possibility could be that there was a prior Licence granted to the plaintiff and the licence so granted, though in continuance, was wholly disregarded by the plaintiff who, acted contrary to his right as grantee/licencee in his acknowledgement of the title of the Tong. These documents and steps subsequently taken by the plaintiff could constitute later acknowledgement, but would that be probable in the circumstances? The plaintiff also gave no indication that that was the case; nor could one deduce this remote possibility from anything that he had said in his evidence.

26. A further possibility would be that the plaintiff operated in utter ignorance. He had no idea at all that he was keeping the Tong or any of the defendants out of the land nor did he have any animus possidendi. This possibility, if existed, certainly would not advance his case. It could also be said that the plaintiff had earlier obtained a licence and he applied by the letter referred to in document D4, dated the 17th for a licence extension or a further one. But again this possibility would take the plaintiff's allegations no further Another possibility would be that the plaintiff was seeking a fresh licence, for the first time from the Tong by his letter of the 17th. This again would be of no comfort to the plaintiff.

27. Wherever the truth lies, from these documents and the subsequent conduct of the plaintiff, the proper inference, as I have said, is that at no time had the plaintiff harboured any animus possidendi adverse to the Tong 's title of and claim to the land. He certainly never before proclaimed such as his intention.

28. The plaintiff no longer relies on any alleged adverse possessary title in his late father or his clan brother. Those are no longer live issues. Mr Chain made a gallant attempt at the conclusion of his submissions, on the question of such prior or concurrent licences, that he would like to make it crystal clear that that point had not been abandoned. It is no part of the plaintiff's own case that he was granted any licence although the documents and part of` his subseqent conduct could be materials, in other circumstances, in support of the creation of a licence in his favour. But whatever licence that could possibly be found in favour of the plaintiff, the Court has been given no evidence of any claim to or possession of the land after 1963. The plaintiff has for a very long time since raised no licence interest or the subsistence of it.

29. The document on which the plaintiff had scored considerable success in the 1969 District Court proceedings was only for a term of 5 years with equivocal provisions for re-negotiation. That document was given in 1966. We are now well into 1988. It cannot be said that the plaintiff could now have even the pretence of a licencee's right. For all these reasons, the plaintiff simply can have no valid defence to the claim of the defendants.

30. I certainly prefer the evidence of Fung Sheung-man.

31. On the Counterclaim, it has been intimated that no more than nominal damages would be asked. If only for the fact that special damages had not been particularized nor sought to be established at the trial, damages for slander of title is not a question that was being actively pursued by the defendants. What is being claimed in substance is possession of the land, a claim in ejectment for possession against the plaintiff, and I find every, justification for acceding to that prayer. I grant possession to the defendants on the Counterclaim against the plaintiff. Subject to what Counsel have to say, I propose to order costs against the plaintiff on a common fund basis as matters which have been raised by the plaintiff in this proceedings have, in my view, no merit.

32. The other matter outstanding is costs, I believe, for the application for summary judgment. I have said earlier that the intimation to Godfrey J. was far from being unobscure. If matters had been expressed in clear terms, the application for summary judgment would not have been prosecuted. But the defendants were unsuccessful and I think the fair order for costs is, as far as the application for summary judgement is concerned, that there be no order as to costs.

(Submissions on costs made)

33. As for costs, the documents in this case and the subsequent conduct could only lead to one reasonable inference. Any other inference sought, to be drawn would, in my view, be perverse. I can find no valid criticisms capable of being levelled at the proposed stringent order for costs. Therefore I grant possession of the land to the defendants on the Counterclaim against the plaintiff with costs against him on a common fund basis.

34. As to the proposed order of no order as to costs for the application for summary judgment, I have heard submissions by Counsel for the plaintiff as well as for the defendants. The application should not have been made because of the reasons in my determination. The plaintiff was not entirely free from blame because of what was expressed on affidavits and presumably to the learned judge which was lacking in exactitude . A fair order, threfore, should be that I would make no order as to costs. As to the time occupied in the application for summary judgment and the opposition raised by the plaintiff, that is a matter, I hope, accurately recorded in my notes and by the time recorded by my clerk.

35. As for other possible costs reserved, my attention has not been drawn to any of them. It would be difficult, if not unfair, to make a sweeping order for costs against the plaintiff in favour of the defendants. If there should be any outstanding matter of costs to be dealt with, I would grant the defendants liberty to apply. I grant a dollar damages against the plaintiff in favour of the defendants.

36. The order I make is as follows: