WONG FU YING v. YUEN KING HAY AND OTHERS

HCA 2612/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2612 OF 2014

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DECISION
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Introduction

1.  This is an application of the plaintiff by her summons dated 8 January 2015 (“the Summons”) for injunctions to enjoin the defendants from interfering with his use and exclusive possession of certain lots of land in the New Territories to which she claims to have acquired possessory title.

2.  The properties in question are known as Lot Nos. 312, 313 and 314 in Demarcation District No. 89 (collectively “the Land”). The 1^st defendant is the registered owner of Lot Nos. 312 and 313 (“the Lots”) whereas the 2^nd and 3^rd defendants are the registered owners of Lot No.314. The plaintiff alleges that the 4^th defendant is the agent of the 1^st defendant in respect of the Lots.

3.  The plaintiff brought this action on 29 December 2014. Only the 1^st and 4^th defendants have filed their respective Acknowledgements of Service. They are jointly represented by Mr Ko.

Relevant legal principles

4.  There is no dispute about the applicable general principles. Mr Cheung refers to the well-known American Cyanamid principles. To start with, this court has to be satisfied that there is a serious question to be tried. If there is, this court should proceed to consider the adequacy of damages as a remedy and where the balance of convenience lies.  

Plaintiff’s case

5.  The plaintiff’s case of adverse possession and the alleged misconduct of the defendants can be outlined below.

6.  In the 1960s, the late father (“the Father”) and the late uncle (“the Uncle”) of the plaintiff entered the Land and built certain structures thereon including 11 houses and storage houses thereon for the purpose of their chicken farming activities.

7.  In or about 1975, the plaintiff, her 2^nd brother, the Father and the Uncle resided on the Land and took part in chicken farming together. The Uncle withdrew from the business in 1976. He passed away in 1979 and so did the plaintiff’s mother. 

8.  Thereafter, the plaintiff’s eldest brother and youngest sister started residing on the Land.

9.  In 1984, the plaintiff moved out from the Land and had her matrimonial home elsewhere. The chicken farm on the Land remained in existence and the Father was in charge of the same.

10.  In late 1980s, both the sister and the eldest brother of the plaintiff left the Land. In 1990, the Father also ceased chicken farming due to the outbreak of avian flu. He however continued to occupy the Land and grow a variety of fruit trees thereon.

11.  The Father in or around 1996 asked the plaintiff to take care of the Land after a row with the plaintiffs’ 2^nd brother. The Father remained in possession of the Land until he passed away in 2009.

12.  In 2008, the plaintiff separated from her husband and resumed residence on the Land until now. She also takes care of the fruit trees there with the assistance of her sister every now and then.

13.  Throughout their exclusive possession of the Land, the Land have been enclosed first by the Uncle and later by the plaintiff and her family with wooden and bamboo poles and wire fence. There is also a metal gate erected by the Father.

14.  The plaintiff’s claim of adverse possession is supported by the following documents in which the Land was referred to as the material residential address:

(1) A purchase order dated 28 April 1986 issued to the Father in respect of funeral matters relating to his late mother.;

(2) The records kept by the Commissioner of Registration dated 3 June 1980 in respect of a wooden house on the Land showing that the plaintiff, her elder brother and her sister were its occupants;

(3) The marriage certificate of the plaintiff dated 10 July 1984 showing her then residential address on the Land. There, the occupation of the Father was stated to be a farm owner;

(4) The marriage certificates of the plaintiff’s eldest and 2^nd brothers issued in the 1980s showed similar information; 

(5) The birth certificate of the daughter of the plaintiff’s eldest brother dated 1 December 1986 showing the residential address of the plaintiff’s eldest brother;

(6) A letter issued by the Water Supplies Department dated 15 March 2005 to the Father;

(7) Four demand notes for rates and/or government rent all issued in 2009; and

(8) A letter issued by the CLP Power Hong Kong Limited dated 16 January 2014 to the plaintiff’s sister certifying that the Father was the registered account owner for the electricity supply in respect of the Land from 16 November 2003 to 27 July 2012.

15.  One independent witness’s evidence lends support to the plaintiff’s case. He is Mr Ng who is a 70-year-old villager residing at the village of Lo Wu Liu Pok San Tsuen (“the Village”). The Village includes the Land. He claims to know all the 10 odd families in the Village.

16.  According to Mr Ng, the Uncle had operated the chicken farm on the Land before he settled down in the Village in 1974. Shortly afterwards, the Father and the plaintiff also moved to the Land for dwelling too.

17.  Since 2014, the 1^st defendant together with some other persons also surnamed Yuen have made offers to lease Mr Ng their land on condition that he purchases from them the Lots. He has refused persistently knowing that they have long been occupied by the plaintiff.

18.  The plaintiff’s complaints about the wrongdoings of the 1^st and 4^th defendants consist of the following:

(1) A person named Yuen Wai Tin (“Yuen”) claiming to be acting for the landowner came to the Land with three other persons holding pipe ducts. They demanded the plaintiff and her sister to vacate the Land with threat of physical violence. The plaintiff summonsed the police.

(2) Yuen repeated his demand in the subsequent years. In early 2011, notices were posed on the front gate of the Land with the contacts of two persons including Yuen. The notices bore the name of 羅湖袁氏（土地）物業管理有限公司.

(3) In mid 2011, Yuen and other persons armed with wooden logs arrived at the Land and demanded demolition of the front gate of the Land. Again, the police was called.

(4) In early 2012, Yuen and his assistants made the demand again to the plaintiff at the Land. The plaintiff did not accede to their demand. A few days later, some of the dogs of the plaintiff died under suspicious circumstances.

(5) In December 2013, the CCTV camera installed at the front gate and the other CCTV camera installed at the dwelling house on the Land were damaged and the memory cards inside them went missing.

(6) Since early 2014, trespass against the Land has got rampant. The front gate was repeatedly criminally damaged by red paint and ultimately unlawfully removed in May.

(7) Notices were again posted on the Land in May and June 2014. They were purportedly issued by 香港羅湖袁氏（袓堂）物業管理有限公司.  Yuen is its assistant director and the 1^st defendant is its shareholder and director.

(8) In September 2014, two lychee trees planted inside the Land were chopped down and the wallpaper of the door of the plaintiff’s residence was damaged.

(9) In November 2014, heaps of rubbish and an abandoned sampan were found on the Land.

(10) In December 2014, the 1^st defendant and two other men armed with bamboo poles arrived at the Land and admitted to the plaintiff that he had committed other persons to damage the house of the plaintiff erected on the Land.

19.  羅湖袁氏（土地）物業管理有限公司 has turned out to be an unregistered company. The common shareholders and directors of 香港羅湖袁氏（袓堂）物業管理有限公司 and the 4^th defendant are Yuen Kwok Keung and Yuen Kit Chor.

1^st and 4^th defendants’ case

20.  The 1^st defendant himself filed an affirmation for both himself and the 4^th defendant. He tells a wholly different story about the use of the Land.

21.  In summary, the 1^st defendant claims to be an indigenous resident of the Village. The Land was located within the restricted area close to the border of the Mainland and Hong Kong and special permit was required for entry of the restricted area before 2012. He was the holder of such a permit.

22.  He claims that the Land used to be his family’s land and his great grandfather Mr Yun was the registered owner. He managed the Land and rented the Land to one Mr Yuen Yan Ki (“YK Yuen”) from the 1970s to 1991 or 1992 and YK Yuen erected a temporary structure on the Land.

23.  The 1^st defendant understands that YK Yuen sublet Lot No.314 to a family surnamed Wong for their chicken farming activities thereon.  He did not explain how this understanding came about nonetheless.

24.  YK Yuen returned the Land to the 1^st defendant in 1991 or 1992 after having received compensation from the Hong Kong Government. After he returned the Land to the 1^st defendant, 羅湖袁氏宗親會 (“the Association”) continues to collect rent from the Wong family until recently. Only a temporary structure on the Land was then found.

25.  The 1^st defendant stresses that throughout the years until now he has no difficulties in gaining access to the Land. He denies the existence of any fence.

26.  He further produces a letter issued in 2002 by the Rating and Valuation Department. It was in reply to his application for payment of the Government rent in respect of some lots of land in DD89 including the lots.

27.  As regards the alleged molestation, harassment and trespass taking place in the Land, the 1^st defendant simply makes a bare denial. He explains that he knows that the Association has recently asked the Wong family to pay rent in arrears.

28.  The reply affirmation of the plaintiff and the affirmation of Mr Ng have caused some quarrels. Mr Ko complains about the existence of some new allegations contained therein and asks this court to expunge such allegations. Mr Cheung insists that they are mere replies.

29.  Brushing aside the debate, it should suffice to take note of the plaintiff’s denial of any occupation/possession of the Land by YK Yuen and/or his tenants. The plaintiff further denies any rental demands a made by YK Yuen and/or the Association.   

30.  The plaintiff further exhibited some search records of the 4^th defendant, 羅湖袁氏（土地）物業管理有限公司, 羅湖袁氏（土地）物業管理有限公司. The 1^st and 4^th defendants’ evidence did not cover this information at all. Arguably they are public documents and not controversial in nature. They should cause the 1^st and 4^th defendants little prejudice. I cannot see how the 1^st and 4^th defendants object to any reference to these public documents.

Discussion

Serious question to be tried?

31.  I have to decide whether the plaintiff’s claim of adverse possession and her allegations of molestation, harassment and trespasses pose serious questions to be tried. I have little hesitation in concluding that there are.

32.  In the present application, I am not in a position to make any factual findings out of the conflicting affirmation evidence adduced by the parties. I should also take into account the fact that the present action is still in its infancy and there is every possibility that the parties’ respective cases are subject to further development and/or modification. That said, the burden of proof still rests on the plaintiff.

33.  As regards the plaintiff’s claim of adverse possession, the evidence of the plaintiff shows, to say the least, that it is arguable that she has acquired the possessory title of the Land by the factual possession by her family including the Uncle and the Father since the 1970s with the requisite animus possendi.

34.  Enclosure of the Land, if ultimately established should normally support a finding of the animus possendi: Cheung Chung Yan v Chan Man Kwong & Ors., unreported, CACV 268/2003, 12.2.2004.

35.  Nothing in the evidence of the 1^st and 4^th defendants can change my view that the plaintiff’s case is arguable. I should add that I do not find cogency in their evidence. Whether the Land and in particular the Lots had been occupied by the plaintiff for more than 20 years or by YL Yuen under a lease granted by the great grandfather of the 1^st defendant remains a live issue which can only be resolved at trial. 

36.  Mr Ko painstakingly takes me through the evidence of the plaintiff and submits that her evidence is not borne out by the aero-photographs. Mr Ko explains in detail his analysis of the plaintiff’s evidence at the hearing.  However, I am far from persuaded that the plaintiff does not even have an arguable case here. I do not think I can conclude that the plaintiff’s allegations of adverse possession must be rejected on the sole basis of what can and cannot be seen in the aero-photographs.

37.  On the other hand, I firmly believe that there is a prima facie case of the 1^st defendant’s molestation, harassment and trespasses. The 1^st defendant’s denial is very lame. I need to say no more than this.

38.  I raise doubt with Mr Cheung about the actual role played by the 4^th defendant. Apparently it did not issue the notices posted at the Land though its name is very similar to those two companies implicated. The only evidence of the 4^th defendant seems to be that in September 2014, its director Yuen Kit Chor (together with the 1^st defendant) went to visit Mr Ng to discuss sale of the Lots to her. Therefore, the 4^th defendant was the agent of the 1^st defendant in respect of the Lots. Yuen Kit Chor also gave him his name card.

39.  The plaintiff has made her complaints in a very precise manner. The 1^st defendant and the 4^th defendant are represented by the same firm of solicitors. The 1^st defendant filed an affirmation to make a bare denial only and he did not explain why the 4^th defendant was not involved in the dispute. He did not deny that the 4^th defendant was not his agent. The 4^th defendant itself did not find it necessary to make an affirmation to distance itself from the plaintiff’s serious allegations.

40.  In the premises, I accept Mr Cheung’s submission that there is also a serious question to be tried between the plaintiff and the 4^th defendant.

Balance of convenience

41.  The alleged conduct of the 1^st and 4^th defendants is very serious and can give rise to criminal liabilities. This court has no hesitation in calling a halt to such objectionable conduct.

42.  The plaintiff’s quiet enjoyment of the Land is now being interfered with. Her continued occupation and further use of the Land may attract physical hazards. Damages cannot be an adequate remedy.

43.  On the other hand, the alleged prejudice on the 1^st and 4^th defendants is premised only upon his inability to deal with the Land in the meantime. They can be measured in monetary terms and cannot be said to be irreparable.

44.  The 1^st and 4^th defendants have been dispossessed, for whatever reason, the Land for decades. I am persuaded that to maintain the status quo, the plaintiff and any other occupants in the Land should be afforded protection against any unlawful activities.

45.  All in all, I believe that my discretion should be exercised in favour of the injunctions sought by the plaintiff.

Delay

46.  Mr Ko complains about the delay in making this application. He points to the plaintiff’s first allegation dating back to July 2010.

47.  The tort alleged by the plaintiff indeed has continued at least until December 2014. This application was taken out in January 2015. The 1^st and 4^th defendants do not suggest any prejudice they have suffered as a result of the inaction of the plaintiff. They cannot be heard to say that they were somehow encouraged by the plaintiff’s inaction to engage in objectionable activities to evict the plaintiff from the Land.

48.  I thus come to the conclusion that there is no culpable delay on the part of the plaintiff, which would disentitle her to the interlocutory relief sought.

New allegations in the reply affirmations

49.  As mentioned above, Mr Ko complains that there were new allegations contained in the reply affirmation of the plaintiff and the affirmation of Mr Ng.

50.  Mr Cheung prepared two tables setting out his response to this accusation. I accept his submission that the large majority of the plaintiff’s evidence is merely an elaboration of the plaintiff’s case in reply to the 1^st defendant’s allegation. As noted above, the various company search records, though being new matters, are not in dispute and cause no prejudice to the 1^st and 4^th defendants.

51.  Admittedly, the evidence of Mr Ng did contain some new allegations. However, given the entirely different story that the 1^st and 4^th defendants have said about the use of the Land, Mr Ng’s evidence can cause little prejudice to them. Mr Ng’s evidence merely reinforces the plaintiff’s case. I should make it clear that without such evidence, I would also come to the same conclusion that there is a serious question to be tried.

52.  In the premises, I see no utility in embarking on the tedious exercise to go through the two affirmations and expunge those new allegations, without which I would still grant the injunctions.

Conclusion and Order

53.  For the reasons given above, I accede to the plaintiff’s application and grant all the injunctions sought in the Summons.

54.  I also make a costs order nisi that costs of and occasioned by the Summons be the plaintiff’s costs in the cause. The plaintiff’s and the 1^st defendant’s respective own costs to be taxed in accordance with the Legal Aid Regulations.

55.  Lastly, I thank Mr Cheung and Mr Ko for their helpful assistance in this matter.