SIU CHIU CHOI v. TENG HUNG PING

DCCJ 2388/2017 & DCMP 4082/2004

(Heard Together)

[2023] HKDC 917

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2388 OF 2017

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4082 OF 2004

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DECISION

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1.  This is the application by Teng Hung Ping (“D7”) for leave to appeal against the Judgment of this court dated 2 February 2023 (the “Judgment”).

Legal Principle

2.  Under s. 63A(2) of the District Court Ordinance, Cap. 336, leave for appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.

3.  It is trite that “reasonable prospect of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”. (per Le Pichon JA in SMSE v KL [2009] 4 HKLRD).

Background

4.  This is an adverse possession case and the background is stated under paragraphs 2 to 5 of the Judgment and needs not to be repeated here.

5.  In summary, this court found for only two facts: firstly, that Lam Yung Tai (“Tai”) was occupying two squatter structures (usages of which were described as a “watchman shed” and a “sitting room”) in 1976 and secondly, Tai was also likely to be occupying the fishponds (as showed in aerial photographs and agreed to be man-made by the experts) in 1975 / 1976 (paragraphs 102 to 108 of the Judgment).

6.  It is not disputed that fencing around the fishponds were only put up in 2011 (paragraph 86 of the Judgment), but there is a lack of evidence to show a continuous occupation of at least 20 years by Tai and his son Lam Yau Gun (“Gun” who passed away in 2014 and whose estate was granted to D7) since 1975 (e.g. documents showing a continuous use of the fish ponds in a fish-breeding business).

7.  As such, there is simply no compelling evidence that Tai and Gun had sufficient degree of exclusive control over the disputed land (i.e. Lot 2942 and Lot 2953) (paragraphs 113 to 115 of the Judgment).

8.  The court also did not accept D7’s pleaded case that Tai and Gun attained the requisite intention to possess from 1975 when the alleged landlord failed to collect rent for unknown reasons (paragraphs 117 – 120 of the Judgment).

D7’s grounds for appeal

9.  D7 has issued a Summons to amend his proposed grounds of appeal and this was not opposed. There are 9 paragraphs in this Amended Proposed Grounds of Appeal.

10.  It would seem that D7 did not object to the finding of facts of the court, but argued that these two facts alone should be sufficient to support D7’s claim for adverse possession, especially when reference was made to the case of Gotland Enterprises Ltd. v Kwok Chi Yau and others CACV 260/2014 (the “Gotland case”) (paragraphs 1-3 of the Amended Proposed Grounds of Appeal).

11.  I cannot understand this argument: the court only found that Tai was occupying two structures and the fishponds in one moment in time, i.e. around 1975 / 1976. The court does not find any compelling evidence to support continuous occupation of such by Tai and Gun for the requisite period from that time onwards.

12.  The Gotland case is completely different: that Judge in the first instance found that:

“54. Insofar as Pond 1 is concerned, the unchallenged factual evidence is that it has been continuously used for fish farming since it fell into the possession of D1 and/or D5.

…

61. The 2^nd Area is largely made up of Pond 2. There is no serious dispute that Pond 2 had been used for fish farming by Tam Fuk Hung…from about 1981…”

(see paragraphs 9 and 11 of the judgment in the Gotland case)

13.  D7 argued that the disputed lands in the current case are all fish ponds (paragraph 4 of the Amended Proposed Grounds of Appeal) and suggested that the Judgment found otherwise (in paragraph 113 of the Judgment).

14.  I think this is misconceived: the court did not dispute that the disputed lands were fish ponds, but that factual possession of the fish ponds could be established by i) fencing; ii) “other steps taken by the occupiers to exclude others” (paragraphs 110 to 113 of the Judgment), and iii) continuous occupation of the fish ponds (and / or the structures) (paragraph 115 of the Judgment). The court found no evidence to support any of such.

15.  D7 also argued that the court made a speculation that Tai might have abandoned the lots (paragraph 115 of the Judgment) or had paid rent to anyone else after 1975 (paragraph 120 of the Judgment) (paragraphs 5-7 of the Amended Proposed Grounds of Appeal).

16.  I think both paragraphs of the Judgment were quoted out of context.

17.  Paragraph 115 of the Judgment stated that:

“…there is a lack of documental evidence to show a continuous occupation for at last 20 years by Tai (and Gun)….There is also a complete lack of any documents showing the existence of a fish-breeding business continuously during this period…Thus, there is no evidence to show whether Tai had at any point abandon the huts and/or the fish ponds (especially after the alleged contamination of the fishponds)…”

18.  When read in full, the court clearly did not make a finding (by speculation or otherwise) that Tai had indeed abandon the fish ponds. The burden is clearly on D7 to show that there was continuous occupation of the fish ponds e.g. evidence of the alleged fish breeding business for the requisite business. The court merely commented that D7 failed to provide such compelling evidence, so Tai (and Gun) could have abandoned the huts or fish ponds at any point of time.

19.  Similarly, paragraphs 117, 118 and 120 of the Judgment stated that:

“D7’s pleaded case was that Tai and Gun was paying rent to Mr. Man up until 1975, after which Mr. Man and his agent did not appear to collect rent for unknown reasons.”

“This was how D7 alleged that Tai and Gun attained the requisite intention to possess: from this point onwards, they treated the tenancy…coming to an end and they acquired the intention to use the Lands as their own…”

“…I find no consistent or convincing (let alone compelling) evidence to support D7’s pleaded case. As such, the court is not in a position to speculate whether Tai and Gun had or had not paid any rent to whoever at whichever period of time, thus there is simply no compelling evidence that at any time, if at all, Tai and Gun had acquired the requisite intention to possess.”

20.  When read in full, it is clear that there is no factual finding by this court that Tai and Gun had paid rent to anyone else since about 1975.

21.  In paragraph 8 of the Amended Proposed Grounds of Appeal, D7 similarly argued that the findings of the two facts by the court should support an intention to possess because “such were acts…making full use of the land / fish ponds as owners which carried with it an intention to possess”.

22.  This is clearly wrong: there is no finding by this court that Tai and Gun were using the lands as owners.

23.  In paragraph 9 of the Amended Proposed Grounds of Appeal, D7 argued that the plaintiff in DCCJ 2388/2017, Siu Chiu Choi (“Siu”), only issued proceedings more than 12 years after Gun made claim to Lot 2953 in his 1^st Affirmation filed in DCMP4082/2004 on 20 December 2004. Thus, the court should consider that Gun had both physical possession and the requisite intention at least some time since 2004.

24.  In other words, D7 is inviting the court to be concerned only with the 12 years counting back from the date DCCJ 2388/2017 was issued.

25.  A similar argument was raised in Tang Moon Lam v Tang Ying Yeung [2019] HKCU 3726. In the judgment, the Court of Appeal affirmed that on proper construction of ss 7, 17 and 38A of Limitation Ordinance, Cap. 347, the correct focus is on the question of when the adverse possession is said to have begun (or the right of action is said to be accrued) for the purpose of the transitional provision in s 38A.

26.  The pleaded case here is that the adverse possession began in around 1975, that is, before 1 July 1991. Therefore, the limitation period is 20 years. It is not open to D7 to plead (and he did not in any case so plead) an alternative case that if he failed to prove that adverse possession began in 1975, he would plead that it began in 2004.

27.  In any case, the fact that Gun made such allegations in his Affirmation in 2004 did not mean that the court need to accept such evidence. In fact, the court has addressed such issues and stated that it puts “very little or no weight to his evidence, which was mainly self-serving and could not be tested under cross-examination…” (paragraph 99 of the Judgment).

28.  In conclusion, I am not satisfied that the appeal has a reasonable prospect of success, and I also cannot find any reason in the interests of justice why the appeal should be heard.

Order

29.  Accordingly, I would order that D7’s application for leave to appeal against the Judgment be dismissed with costs of the application be to Siu and Luckway Properties Limited to be taxed if not agreed, with a certificate for counsel granted for each. D7’s own costs be taxed in accordance with the Legal Aid Regulations.

DCCJ 2388/2017

DCMP 4082/2004