GRAND WAYFAIR INVESTMENT COMPANY LTD v. CHAN YUNG KAN t/a LUK YAU YAU ORGANIC VEGETABLE AND OTHERS

CACV 238/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 238 OF 2013

(ON APPEAL FROM HCA NO. 558 OF 2007)

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Hon Lam VP (giving the Judgment of the Court):

1.  On 18 October 2013, after a trial which lasted for 4 days, Deputy High Court Judge Seagroatt dismissed the Plaintiff’s claim as registered owner for possession of the land known as Lot 78 in Demarcation District 133 [“the Land”]. The learned judge further granted a declaration in favour of the 2^nd Defendant in respect of “its title as adverse possessor”. This is the Plaintiff’s appeal against that judgment.

2.  In his judgment, based on the evidence of the 2^nd Defendant (which the judge accepted), the court found that from about 1960 the parents of the 2^nd Defendant carried on cultivation at the Land and other land in the vicinity.  From about 1964 to 1973, another person Wong Kin Min (the 3^rd Defendant) [“Wong”] and his family also worked there alongside the parents of the 2^nd Defendant.  In about 1971, the father of the 2^nd Defendant installed an irrigation system on the Land.  The agricultural produce grown on the Land included vegetables, peppers, yams and cassava.  Fruit trees were also planted from time to time.  The cultivation by Wong ceased in about 1973.

3.  There was not much evidence from the Plaintiff to contradict that part of the defence case.  Subject to the argument based on a default judgment obtained in 1993 (which we shall address below) and the implications flowing from the cultivation by Wong, Mr Kenneth Chan (appearing together with Mr Billy Ma for the Plaintiff in this appeal but not below) did not have much to say about the use and occupation of the land prior to 1993.

4.  The Plaintiff acquired the Land from its predecessor in title on 22 April 1980 and the assignment was registered on 7 January 1983.  The Plaintiff had no immediate use for the Land and therefore nothing was done about its occupation by other persons at that stage.

5.  In early 1993, a surveyor was instructed by the Plaintiff to post notices on the Land to give warning against trespass.  However, there was very scant evidence about that survey.  There were a few photos taken, a statement made by the surveyor (Lai Tak Nin) on 1 May 1993,  a copy of a notice issued by a solicitor firm dated 20 April 1993, and what appeared to be a record bearing a date of 16 February 1993.  The surveyor said in the statement that there was no sign of human occupation when he inspected the Land on 20 April 1993.  The surveyor was not called to give evidence at the trial.

6.  In any case, it would appear that notwithstanding what was said on the surveyor’s statement, the Land was indeed occupied.  Thus, the Plaintiff issued Order 113 proceedings in HCMP 1942 of 1993 to recover possession against the unnamed occupiers of the Land.  On 25 October 1993, the Plaintiff obtained a default judgment from Master Woolley.  Though there was a subsequent attempt to set aside the judgment by the father of the 2^nd Defendant, it was unsuccessful because of the then perceived state of law as to the effect of the New Territories (Renewable Crown Leases) Ordinance on adverse possession in the New Territories.  Mayo J dismissed that application on 31 January 1994.  Mayo J did not decide on the question whether the father of the 2^nd Defendant not been in possession since 1960.

7.  That view of the law was held to be erroneous, first in respect of those who started their adverse possession prior to 30 June 1953 by the Court of Appeal on 19 August 1994 in Yeung Kong v Fu Mei Ling Mary [1994] 2 HKC 1, then in respect of all adverse possession cases by the Privy Council on 8 July 1996 in Chung Ping Kwan v Lam Island [1996] 2 HKLR 315.  We do not know whether the previous perception on the relevant law has anything do to with the lack of enforcement action on the part of Plaintiff in respect of the 1993 judgment.  What we do know is that as a matter of fact the Plaintiff had not taken any step to enforce that judgment.  There had not been any application for leave to issue a writ of possession pursuant to that judgment.  The explanation of the Plaintiff at the court below, based on the evidence of its witness Mr Lau, was that the Ng family had vacated the Land after the judgment.  That explanation was rejected by the judge.  The judge found that the Ng family remained in possession.

8.  In its pleadings and evidence, the Plaintiff made no reference to the 1993 proceedings.  It was the 2^nd Defendant who brought this up shortly before the trial.  In his judgment, the judge went through at some length how the 1993 proceedings surfaced at the trial. Actually, as mentioned by the judge at para 23 of the judgment, the Plaintiff had objected to reference being made to the 1993 proceedings at the trial.  That objection did not succeed and the judge managed to retrieve the court file for HCMP 1942 of 1993.  As a result, the judge arranged for copies of the file to be made available to the parties and they were given full opportunity to address the court regarding its contents.  The Plaintiff was permitted to re-open its evidence and counsel for the Plaintiff recalled a witness.

9.  After the evidence of the recalled witness, counsel for the Plaintiff (not Mr Chan or Mr Ma) advanced the following submissions about the 1993 proceedings:

(a) There was no evidence the 2^nd Defendant or his parents remained in occupation after the judgment;

(b) The Plaintiff were not aware of its right to enforce the 1993 judgment for possession; and

(c) The 1993 judgment “broke the chain of adverse possession” and the 2^nd Defendant had to start afresh to build up the requisite period of adverse possession.

10.  On the other hand, counsel for the 2^nd Defendant submitted that there was evidence that the 2^nd Defendant remained in occupation after the 1993 judgment.  

11.  As mentioned, the judge found in favour of the 2^nd Defendant in terms of the occupation of the Land, and his continued occupation after the 1993 judgment.  The judge also found that the 2^nd Defendant had possession up to the commencement of this action.  The father of the 2^nd Defendant ceased to work on the Land in 1993 or 1994 (when he had a stroke) and he passed away in 2001.  Since 1994, helpers were engaged to assist the mother of the 2^nd Defendant in cultivating the Land.  She also passed away in 2004.  The 2^nd Defendant engaged a Mr Chan to manage the Land for him. 

12.  The present action was commenced on 19 March 2007.  That was more than 12 years after the default judgment of 25 October 1993.

13.  In this appeal, Mr Chan advanced the following grounds to challenge the judge’s judgment:

(a) Estoppel and other matters related to the 1993 judgment;

(b) The implications flowing from Wong’s cultivation of the Land; and

(c) The judge’s rejection of the joint expert evidence.

The 1993 judgment

14.  In the Amended Notice of Appeal, Mr Chan took a number of points based on the 1993 judgment.  He said that the judgment was binding on the 2^nd Defendant and had the effect of breaking the continuity of the possession of the Land.  He also said that by reason of the 1993 judgment and the dismissal of the application to set aside the default judgment, the judge should not find that the 2^nd Defendant was in possession since 1960 as that would have the effect of overturning the judgment of Mayo J.  As a result, he said that the court could only accept a case of adverse possession by enquiring how the 2^nd Defendant came into possession after 1993.  But that course was not open, he said, because the 2^nd Defendant had not pleaded (nor did he adduce any factual evidence to support) an alternative case based on possession starting from 1993.

15.  Before we consider these submissions, it has to be emphasised that the 2^nd Defendant’s case has always been that the possession of the Land by his family (including that of his parents) had been continuous since 1960 and that they had not lost possession of the Land notwithstanding the 1993 judgment or the dismissal of the application to set aside the judgment by Mayo J in January 1994.  It is not disputed that the Plaintiff had not taken any step to enforce that judgment.

16.  The judge found as a fact that the 2^nd Defendant remained in possession in 1993.  Though Mr Chan tried to challenge that finding as inconsistent with the expert evidence (which we will discuss below), he has failed to persuade us that the finding was susceptible to this court’s interference on the well-settled principles as stated in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  If one proceeds from this finding, there was already more than 12 years’ adverse possession after 1993 when the Plaintiff commenced the present action in 2007.  The 2^nd Defendant did not have to rely on possession from 1960 to 1993 in order to defeat the Plaintiff’s claim.

17.  Mr Chan submitted that the 2^nd Defendant cannot do that because he did not plead or advance a case of possession starting to run from 1993.  We do not accept this submission.  The 2^nd Defendant’s case on the facts remains the same as that pleaded and testified to: his family was in continuous possession from 1960 to 2007.  It is inherent in such a case that the 2^nd Defendant had been in possession from 1993 to 2007.  The 2^nd Defendant did not at any time run a case that he only came into possession after 1993.  Because the Plaintiff did not file any Reply (and also did not make any reference to the 1993 judgment in its pleadings or witness statements), it had not put the 2^nd Defendant on notice that it would challenge the right of the 2^nd Defendant to rely on pre-1993 possession by reference to the 1993 judgment.  Under such circumstances, it would be unfair to entertain Mr Chan’s objection based on lack of alternative plea.  We also find it unreal for Mr Chan to suggest that the 2^nd Defendant should plead a case of him entering into possession after 1993 when this is plainly not his case.

18.  In his oral submission, Mr Chan contended that his client was somehow prejudiced as the Plaintiff did not call evidence to explain the lack of enforcement of the 1993 judgment due to the lack of such alternative plea.  We must say that this is a rather unmeritorious argument. It is quite plain from the judgment of the judge and the transcript that the judge had been asking for explanation from the Plaintiff as to the lack of enforcement of the 1993 judgment.  He had also given ample opportunity to the Plaintiff to put forward evidence to support such case by allowing the trial to be re-opened.

19.  Further, we fail to see how the lack of an alternative plea by the 2^nd Defendant could have any bearing on the Plaintiff’s decision to not refer to the 1993 judgment in its own case.  If the Plaintiff did intend to rely on the 1993 judgment to contend that no reliance could be placed by the 2^nd Defendant on pre-1993 possession, this should be pleaded in a reply.  Then it may be up to the 2^nd Defendant to consider whether he would plead a case of continuity of possession due to the lack of actual enforcement of the 1993 judgment by way of rejoinder.  But as we said, the Plaintiff did not plead anything by way of reply and it cannot put the blame on the 2^nd Defendant for the lack of plea of no enforcement of the 1993 judgment.

20.  Moreover, at the re-opened trial, the Plaintiff recalled Mr Lau to give evidence about the 1993 judgment.  He said he was ignorant of the 1993 judgment.  That was rather surprising bearing in mind his own evidence that he had been working in the lands development department of the company which supervised the Plaintiff since 1993 and referred to the Plaintiff’s instruction to a surveyor to inspect the Land in 1993.  The judge had given due consideration to his evidence and explained in his judgment why he could not accept Mr Lau’s evidence.  Apart from him, the Plaintiff chose not to place any other evidence before the judge to account for the lack of enforcement action based on the 1993 judgment.  It was clearly a tactical move on the part of the Plaintiff because counsel for the Plaintiff was trying to persuade the judge that there was no need to take steps to enforce the 1993 judgment because the Land was not occupied.

21.  With respect, the pleading point of Mr Chan is utterly devoid of merit.  We must also say that it is most unsatisfactory that the Plaintiff are now running arguments involving material facts which it should have pleaded in a reply and yet it did not even file one.  The implied joinder of issue, in the absence of a reply to a defence of adverse possession, is not sufficient to raise issues like break of continuity of possession by the 1993 judgment, the lack of exclusive possession due to the joint occupation by Wong, the abandonment of possession of some parts of the Land due to the changes in cultivation pattern over the years.  None of these has been pleaded.

22.  In our judgment, it is open to the 2^nd Defendant to rely on possession from 1993 to 2007 to defeat the Plaintiff’s claim.  Once this is established, it is not strictly necessary to consider Mr Chan’s other points arising from the 1993 judgment.  But we will deal with them for the sake of completeness.

23.  We can be brief on the contention that allowing the 2^nd Defendant to rely on pre-1993 possession would be tantamount to a challenge to the judgment of Mayo J in 1994.  This argument, in substance, is a plea of issue estoppel. Mr Chan accepted that this point is not pleaded in the Plaintiff’s pleadings (and it was not a point advanced below) and as such it is not open to the Plaintiff in this appeal.  He however tried to latch onto the application by the 2^nd Defendant to amend his Defence (to advance a counterclaim seeking declaratory relief) and contended that the Plaintiff should be permitted to file a Defence to the Counterclaim, in which case the Plaintiff could advance a plea of estoppel.  That submission was made before we decided on the application for amendment by the 2^nd Defendant.  In light of that submission, Ms Gwilt (appearing for the 2^nd Defendant together with Mr Lui) withdrew her application for amendment.  Thus Mr Chan quite properly accepted that he could not take this point anymore.

24.  In any event, the point has no merit.  As explained above, Mayo J did not rule on the factual issue of possession between 1960 and 1993.  Now that Mayo J’s decision is seen to be wrong in law, Mr Chan had not explained why it would be an abuse of process for the 2^nd Defendant to seek to establish the fact of pre-1993 possession in the present action bearing in mind that up to the end of the trial the Plaintiff did not rely on the 1993 judgment to exclude the question of pre-1993 possession from the court’s consideration. This belated attempt is only made after the judge made factual findings against the Plaintiff in his judgment.

25.  Actually, as we shall see below in the context of the discussion on Wong’s cultivation, Mr Chan is also referring to the situation prior to 1993 for the purpose of this appeal.

26.  On the contention that the 1993 judgment, even without any execution or actual eviction of the 2^nd Defendant from the Land, has the legal effect of breaking the continuity in possession by the latter, Mr Chan was not able to cite any authority to support such a proposition.  Analysing it as a matter of principle with the limited assistance we have from counsel, we cannot agree, as presently advised, that the mere entry of judgment has such an effect as a matter of law.  As highlighted by the Chief Justice in Wong Tak-yue v Kung Kwok Wai (1997-98) 1 HKCFAR at p 68, a person claiming to be in adverse possession has to establish two elements, (a) possession; and (b) requisite intention to possess.  See also the discussions in Powell v McFarlane (1977) 38 P&CR 452 and Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd (No 5) [2007] 5 HKC 122 at paras 60 to 92.  For a squatter who remains in occupation after a judgment has been entered against him, the quality of his factual possession and his intention to possess would not change.  No doubt, his possession (and thus his possessory title to the land) is precarious and he could be evicted if the plaintiff seeks to enforce the judgment by a writ of possession.  But in terms of the quality of possession, there is no material difference from his possession before the judgment, which is equally defeasible by the superior title of the registered owner.  Neither can we see any difference in terms of the intention to possess on the part of the squatter stemming from the entry of the judgment.

27.  The question of continuity of possession should not be confused with the question of enforceability of a judgment of possession.  For the latter purpose, normally time stops to run after the writ has been issued.  Thus, a plaintiff needs not worry about the accumulation of time after he has issued a writ.  And that must equally be applicable to a plaintiff who has obtained a judgment for possession.  The time limit for enforcement of that judgment is 12 years, see s 4(4) of the Limitation Ordinance, Lougher v Donovan [1948] 2 All ER 11 and Re Li Man Hoo [2013] 4 HKLRD 247.

28.  But this does not mean that there is a break of continuity of possession by the defendant in the absence of any actual effective enforcement of the judgment.  First, in respect of people other than the plaintiff who has issued the writ (and a plaintiff who has sought to enforce a judgment obtained pursuant to that writ), the defendant is entitled to rely on his possessory title as much as before.  Thus, in a case where there is a third person who (for some reason having a superior title to the plaintiff) did not sue for possession at the same time as the plaintiff, he cannot rely on the judgment obtained by the plaintiff to break the continuity of possession by the defendant in a future claim for possession.

29.  Second, if for some reason the plaintiff could not enforce the judgment, like the present instance where there has been a lapse of more than 12 years since the date of judgment, the defendant is entitled to the accumulated period of possession in a fresh action by the same plaintiff notwithstanding the entry of the earlier judgment which has since become ineffective.  To hold otherwise would be inconsistent with the limitation on enforcement of judgment under s 4(4)[1].

30.  Thus, the 1993 judgment is of no avail to the Plaintiff in the present appeal.

Cultivation by Wong

31.  Mr Chan’s complaint in this respect is the cultivation of the Land by Wong demonstrated that the 2^nd Defendant and his parents did not have exclusive possession of the Land.  He also submitted that the judge failed to assess the question of animus possidendi in light of them allowing Wong to cultivate the Land.  The requisite intent has to be an intention to exclude the world at large.  As mentioned above, it is not a point raised by the Plaintiff in its pleadings.  In any event, for reasons given below, this argument is of no avail to the Plaintiff.

32.  Wong’s cultivation took place between 1964 and 1973. For the reasons we gave in paras 15 and 16 above and our rejection of Mr Chan’s pleading point, the 2^nd Defendant does not need to rely on pre-1993 possession to defeat the Plaintiff’s claim. 

33.  Mr Chan also had to accept that there is no evidence to contradict the judge’s finding that Wong had left in 1973.  His attempt to run a case of Wong remaining in possession in 2007 by reference to para 3 of the original Defence is, with respect, singularly unproductive.  The same applies to the evidence quoted by him in his written submissions.  The witness statement of Chan Yung Kan of 19 April 2013 referred to the letting of the Land by the 2^nd Defendant to him. This was corroborated by the evidence of a witness called by the Plaintiff, Kwok Tak Woo, at para 11 of his witness statement.  Mr Kwok also referred to the use of the northern and southern parts of the Land by the Ng family at para 10.  He also referred to Wong abandoning his house at Lot 79.

34.  It is quite plain that the judge had taken into account the cultivation by Wong in assessing the evidence.  He specifically referred to this fact at various parts of his judgment: see paras 64, 89 and 100.  The judge had also properly directed himself as to the requirement of animus possidendi by reference to several English authorities cited in his judgment.   

35.  Mr Chan failed to persuade us that the cultivation of the Land by Wong prior to 1973 should somehow give rise to a valid ground for this court to interfere with the judge’s finding that the 2^nd Defendant’s possession of the Land from 1993 to 2007 had the requisite quality of adverse possession both as to factual possession and animus possidendi.

36.  Based on his finding that Wong had ceased cultivation at the Land in 1973, we do not see any problem with his observation at para 100 of his judgment (as set out in the Second Corrigendum) that the interlocutory judgment obtained by the Plaintiff against Wong is an empty judgment.  Whether Wong was the agent of the 2^nd Defendant during his cultivation of the Land prior to 1973 is neither here nor there. Irrespective of the position prior to 1973, it is quite plain on the evidence of the 2^nd Defendant (which the judge accepted) that he and his parents had exclusive possession of the Land after 1973.  It is a hopelessly tenuous argument to suggest because of that historical episode the 2^nd Defendant did not have the requisite animus possidendi from 1993 to 2007.

The rejection of expert evidence

37.  Before we address Mr Chan’s submissions in this respect, the relevant evidence on the crucial issue in the present case needs to be identified.  The key issue is whether the 2^nd Defendant was in possession of the Land and the most crucial period is between 1993 and 2007. We start from 1993 because there was disagreement between the parties as to whether the Ng family had vacated from the land after the 1993 judgment.  The judge had the oral evidence of various witnesses on the occupation of the Land.  He also had the evidence of the court file in the 1993 proceedings.  As far as the so-called expert evidence is concerned, apart from locating the relevant aerial photos and assisting the court in delineating the lot in the photos (and producing some blown-up versions of the photos), they also sought to interpret the photos.

38.  However, as far as the photos in the present case are concerned, once the blown-up versions with proper delineation of the Land are produced, the judge was in as good a position as the surveyors in examining the photos.  Notwithstanding Mr Chan’s reference to the general comments at para 5.8 of the report of the Plaintiff’s surveyor, we are not persuaded that this is a case where expert assistance is called for in the examining of the photos included in the trial bundles.  We have examined all the photos in the bundles ourselves and we have invited Mr Chan to pinpoint specific areas which require expert assistance in the reading of these photos. Mr Chan had not been able to refer to any specific features in the photos or any specific parts of the so-called expert evidence which are not readily observable by a layman.

39.  It must be reiterated that expert evidence is only called for in specific areas where without such assistance the court is not in a position to properly consider the evidence.  To allow opinion evidence (even if it is an opinion from an expert) to be admitted in any other cases is a misuse of expert evidence.  See Hong Kong Civil Procedure 2014 Vol 2 para J1/58/2; British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 at p.198; Chen Paul v Lord Energy Ltd [1998] 1 HKC 702; Guangzhou Green-Enhan Bio-Engineering v Green Power Health Products HCA 4651 of 2002, 16 Sept 2004.

40.  In the present case, we agree entirely with the judge’s observation at para 67 of the judgment that the surveyors are in no better position than a perceptive observer (including the judge) in commenting on what the photos indicated.

41.  Whilst there are comments in the joint statement of the surveyors about certain parts of the Land not being subject to cultivation, those comments must be considered against the following background:

(a) The aerial photos that are available only depicted situations of the Land on a particular date (and there were only one or two photos every year);

(b) The fact that there had not been any cultivation does not mean that the Land was not occupied; and

(c) There could be features of cultivation which might not be revealed by aerial photos.

42.  Hence, the comments in the joint statement are of limited assistance as far as the resolution of the crucial issues in the present case is concerned.  The judge was perfectly entitled to give whatever weight he deemed fit to such comments (even assuming that they were admissible in the present circumstances) in light of the other evidence before the court.  On the face of the judgment, that seems to be the approach adopted by the judge.  It is quite plain from the judgment that the judge carefully considered all the relevant aerial photos. He went through them at paras 68 to 78.  Then at para 79 of the judgment, he explained the extent to which he did not accept the surveyors’ evidence.  We reject Mr Chan’s submission that the judge did not give proper regard to such joint statements.

43.  On the question whether the Ng family had left the Land after the 1993 judgment, it is most unlikely that they ceased occupation whilst attempt was made to set aside the judgment.  Further, the aerial photos quite clearly showed that there were human activities on the Land from 1993 onwards.  The judge was quite entitled to conclude that they supported the 2^nd Defendant’s case instead of the suggestion of Mr Lau that he found the Land vacant.

44.  Mr Chan further contended that the judge should give separate consideration to the three different parts of the Land in the same manner as the surveyors did.  The judge was clearly aware of the different uses put to the different parts of the Land.  However, the judge was also right at para 67 when he said that the surveyors had divided the Land into 3 areas notionally for reference purposes. There was no physical boundary separating the 3 areas.  As we said above, the Plaintiff had not filed a Reply and no allegation had been made at the trial that different parts of the Land were possessed by different persons.  Counsel for the Plaintiff did not make that suggestion to the 2^nd Defendant when he cross-examined him.  The 2^nd Defendant’s evidence was that he and his family occupied the whole of the Land though the uses of different parts changed over the years.  Against such background, we cannot accept Mr Chan’s contention as a valid criticism of the judge’s assessment of the evidence.  The judge specifically dealt with the variations in the extent of cultivation in the three parts of the Land at para 80 of the judgment and in light of how this case has been fought below, we cannot find fault with this approach.

Disposition

45.  For these reasons, we reject Mr Chan’s submissions and we would not interfere with the findings by the judge.  Subject to what we shall say below in respect of the declaratory relief, we will dismiss the appeal.

46.  The 2^nd Defendant had not filed any counterclaim for declaratory relief.  However, as mentioned at the beginning of this judgment, the judge granted a declaration in his favour.  However, we have some misgivings about the declaration.  Quite apart from the lack of counterclaim for such relief, the wording of the declaration is too imprecise. 

47.  The 2^nd Defendant attempted to salvage the position by seeking in a summons of 4 September 2014 an amendment of the Defence to put in a counterclaim, seeking a declaration in the following terms which is more in line with the conventional declaratory relief for adverse possession:

“12. In the premises, the 2^nd Defendant is entitled to a declaration that the Plaintiff’s claim against the 2^nd Defendant is time-barred and the Plaintiff’s interest in the Land has been extinguished by virtue of section 7 of the Limitation Ordiance, Cap 347.”

48.  However, the summons was withdrawn by Ms Gwilt in the course of the appeal in circumstances outlined above.

49.  In light of that, we would set aside the declaration granted by the judge.  But it is a matter of little moment.  There is nothing to stop the 2^nd Defendant from registering a copy of the judgment of the judge and a copy of this judgment at the Lands Registry and such registration will probably be as good as a registration of a declaration granted by the court.

50.  Subject to our order below on the 2^nd Defendant’s summons of 4 September 2014, we order the Plaintiff to pay the costs of the 2^nd Defendant in this appeal and such costs are to be taxed if not agreed, with certificate for 2 counsel.  The 2^nd Defendant applied for the withdrawal of the summons of 4 September 2014 and he must pay the costs of the Plaintiff in respect of that summons, such costs are also to be taxed if not agreed.