DCMP 1288/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 1288 OF 2011
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BETWEEN
TO HIN CHEUNG
Plaintiffs
and
All occupier(s) of a portion of Lot No 240 in Demarcation District No 128, Yuen Long, New Territories Hong Kong
1st Defendant
CHAN WAI KEUNG
2nd Defendant
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Before : His Honour Judge Wilson Chan in Court
Dates of Hearing : 13-15 March 2013
Date of Judgment : 16 April 2013
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JUDGMENT
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Introduction
1. The plaintiffs are and were at all material times the registered owners of the property known as Lot No 240 in Demarcation District No 128, Yuen Long, New Territories, Hong Kong (“the Property ”).
2. The plaintiffs claim against the 2nd defendant for the delivery of vacant possession of a portion of the Property. The portion of the Property in dispute in these proceedings (“the Subject Portion ”) is identified by the plaintiffs as the area coloured green on the plan annexed to the Statement of Claim (page 9 of the trial bundle).
3. The 2nd defendant’s defence to the plaintiffs’ claim is adverse possession. The 2nd defendant also counterclaims against the plaintiffs for:-
(1) a declaration that the 2nd defendant has been in adverse possession of the Subject Portion for a period in excess of 12 years next before the commencement of these proceedings (ie, 26 May 2011);
(2) a declaration that the plaintiffs’ title to the Subject Portion was prior to the commencement of these proceedings extinguished; and
(3) a declaration that the 2nd defendant has acquired an indefeasible possessory title to the Subject Portion.
4. The plaintiffs have abandoned their claim for mesne profits at the Pre-trial Review, the only remaining issue is whether there has been adverse possession of the Subject Portion as alleged by the 2nd defendant.
The plaintiffs’ pleaded case
5. The plaintiffs’ pleaded case is as follows:-
(1) the Subject Portion had at all material times prior to October 1999 been let to a tenant;
(2) the plaintiffs recovered possession of the Subject Portion in or about early October 1999 following the termination of the aforesaid tenancy; and
(3) in 2011, it came to the plaintiffs’ attention that the Subject Portion was illegally occupied by trespassers.
The 2nd defendant’s pleaded case
6. The 2nd defendant’s pleaded case is as follows:-
(1) the 2nd defendant has been in continuous occupation of the Subject Portion since mid-1997 without the consent of the plaintiffs;
(2) the 2nd defendant and his then business partner, Mr Lee Siu Bun (“Mr Lee ”) started occupying the Subject Portion as a result of a written agreement between Mr Lee and one Madam Tsim Yuk Lan in June 1997;
(3) broken wires surrounding the Subject Portion were subsequently replaced by metal sheets; and
(4) the Subject Portion was used by Mr Lee and the 2nd defendant as a kennel for breeding dogs. In or about July 2001, Mr Lee quitted. Since then, the Subject Portion has been occupied, and the kennel operated, by the 2nd defendant and his girlfriend Ms Hui.
Relevant legal principles
7. The burden of proof is on the 2nd defendant to establish on a balance of probabilities that the evidence is sufficient to establish both factual possession and an intention to possess (animus possidendi) .
8. Factual possession signifies an appropriate degree of physical control. Everything must depend on the particular circumstances, but broadly, what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else had done so [see: Powell v McFarlane (1979) 38 P&CR 452 at 470-471 per Slade J].
9. An intention to possess is an intention to exercise such custody and control 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 [see: Powell v McFarlane , Supra , at 471-472; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at paragraph 43; Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55 at 68 E-J].
10. The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in the particular case [see: Wong Tak Yue v Kung Kwok Wai (No 2) , Supra ,at 69A].
11. The onus of proof on the 2nd defendant is a heavy one. Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the court should approach them with some scepticism. The court would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the court would usually accord to them considerable weight [see: Wong Tak Yue v Kung Kwok Wai (No. 2) , Supra , at 69AB-C].
12. The heavy onus on the 2nd defendant has been described by Slade J in Powell v McFarlane , Supra , at page 472 as follows:-
“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.”
The benefit of any doubt should be given to the owner.
Analysis of evidence
13. Bearing in mind the guidance given by the Court of Final Appeal in the Wong Tak Yue ’s case that I should approach his case with “some scepticism”, I am far from being satisfied that the 2nd defendant’s evidence is sufficiently cogent or reliable to discharge the burden of proof on him.
14. As part of his case, the 2nd defendant produced at page 133 of the trial bundle an electricity bill dated 4 April 2002 addressed to Mr Lee regarding the Subject Portion. Very significantly, that electricity bill showed zero consumption of electricity at the Subject Portion during the period from April 2000 to August/September 2001. Most importantly, the 2nd defendant could not explain why if dog breeding had been carried out continuously in the Subject Portion, and air-conditioners were used by him and for the dogs, and there were other electrical appliances around, there was no electricity consumption for the said period of some 17 months. This has undoubtedly put a big dent on the 2nd defendant’s credibility as a witness. His evidence that he has been living in the Subject Portion everyday from 1997 onwards simply cannot be relied upon as being true. I agree with the plaintiffs’ counsel that the 2nd defendant’s evidence is by no means “clear and affirmative”.
15. Furthermore, there is a serious lack of contemporaneous documentary evidence to support the 2nd defendant’s case. On being asked why he could not produce more documents such as earlier electricity bills, and dog licences than 2002 as evidence, the 2nd defendant said they were destroyed by flood and water leakage to his hut, but he could not recall when. When asked why the flooding did not affect the delivery notes in 1997, the 2nd defendant could not provide an answer. When challenged as to the inconsistency with his own Witness Statement in which he said more of those documents were available for inspection (paragraph 17 at page 77 of the trial bundle), the 2nd defendant tried to evade the question by saying that it referred to rather recent documents which he thought were not useful to submit. I agree with the plaintiffs’ counsel’s submission that it is very unusual for a party to put something which is not going to help his case in his Witness Statement. This again shows that the 2nd defendant is not a reliable witness.
16. At paragraph 20 of his Witness Statement, the 2nd defendant said villagers of the Sha Kong Tsuen knew about his occupation of the Subject Portion, and at paragraph 27, a Mr Chan Shing and a Madam Cheng Shui Kuen were actually named. The 2nd defendant also testified that Ms Hui, his girlfriend, was aware of his business prior to and after the formation of the dog breeding business in 1997, and she assisted him at the Subject Portion since 2001. Yet, none of these persons were called as witnesses to speak on his alleged continuous possession of the Subject Portion. The net result is that the 2nd defendant’s case remains uncorroborated by evidence from other witnesses and depends largely on his own credibility as a witness. For the reasons stated above, I do not find the 2nd defendant to be a reliable witness.
Conclusion
17. I am not at all satisfied that the defence of adverse possession has been made out by the 2nd defendant. The plaintiffs’ claim for possession of the Subject Portion should succeed and the 2nd defendant’s counterclaim be dismissed.
Order
18. I give judgment in favour of the plaintiffs against the 2nd defendant for the following order:-
(1) That the 2nd defendant do deliver to the plaintiffs vacant possession of the Subject Portion; and
(2) that the 2nd defendant’s counterclaim herein be dismissed.
19. The plaintiffs shall have the costs of these proceedings and the counterclaim against the 2nd defendant, including any costs reserved (if any). Such costs shall be taxed, if not agreed, with certificate for counsel. The 2nd defendant’s own costs be taxed in accordance with the Legal Aid Regulations.
20. The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.
21. Lastly, I thank counsel on both sides for their helpful assistance in this matter.
( Wilson Chan )
District Judge
Mr Wilfred Tsui, instructed by Kelvin Cheung & Co, for the plaintiffs
The 1st defendant did not appear
Mr Lawrence Ngai, instructed by SH Chou & Co, for the 2nd defendant
Please refer to HCMP1692/2013 for the relevant appeal(s) to the Court of Appeal.