LAM MAN LAU AND ANOTHER v. SECRETARY FOR JUSTICE

HCMP 2521/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2521 OF 2016

(On intended Appeal from DCCJ No. 1682 of 2012)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

Introduction

1. By a judgment dated 25 July 2016, Deputy District Judge Alfred Cheng dismissed the plaintiffs’ claim in respect of the Land (as defined in his judgment) based on adverse possession and entered judgment in favour of the defendant for delivery up of vacant possession of the Land and the payment of mense profits.

2. By a decision dated 7 September 2016, the Deputy Judge refused the plaintiffs’ application for leave to appeal against his judgment.  The plaintiffs then renewed their leave application before this Court.

3. The background leading to the proceedings below had been fully set out by the Deputy Judge in his judgment, which we will respectfully adopt.  We will adopt the same abbreviations used by the Deputy Judge.

Discussion

4. The draft notice of appeal raised a total of 14 grounds of appeal.  We will deal with them in turn.  In so doing, we bear in mind that the plaintiffs must demonstrate that there is a reasonable prospect of success in their intended appeal.

5. Grounds 1 to 4 and 14 can be conveniently dealt with together.  In essence, they complain that the Deputy Judge erred in his evaluation of the evidence when he made various findings of fact against the plaintiffs.  The principal submission of Mr Ko, counsel for the plaintiffs, is that those findings were inferences drawn from undisputed primary facts and documents which did not involve the witnesses’ credibility.  As such, the “plainly wrong” test which the Court of Appeal adopts in interfering with findings of fact made by a trial court is not applicable.  He cited Pan Ketian Sally v Tam Yuk Hung Annie, CACV 147/2013, unreported, 25 April 2014, per CJHC Cheung at [31] in support.  The Court of Appeal is thus in as good a position as the Deputy Judge to draw the inferences.  In any event, Mr Ko submitted, the Deputy Judge had made palpable errors which warrant the intervention by the Court of Appeal.  With respect, we are unable to accept Mr Ko’s submissions.

6. The findings made by the Deputy Judge plainly involved assessment of the witnesses’ credibility against the overall factual matrix of the case and other available documentary evidence.  They are not the kind of inferences that the learned Chief Judge referred to in Pan Ketian Sally v Tam Yuk Hung Annie.  Recently, in DBS Bank (Hong Kong) Limited v Sit Pan Jit [2016] 5 HKC 104, this Court (Cheung, Chu and Poon JJA) at [111]-[116] reinstated the principle that the “plainly wrong” test applies to inferences drawn from primary findings of fact as it does to primary findings of fact.  Applying the “plainly wrong” test, we are not persuaded by Mr Ko that the Judge had made any palpable error which would warrant the intervention by the Court of Appeal.

7. Grounds 5 to 7 concern the Judge’s findings on the planting of vegetation on the Land : see [56]-[69] of his judgment. Ground 10 deals with the the Judges’ findings on the Tam House : see [98]-[101] of his judgment.  They can be disposed of shortly together.  Mr Ko harked back to his submission that the “plainly wrong” test does not apply.  For the reasons which we give above, this must be wrong.  Again, applying the “plainly wrong” test, we are not persuaded that the Deputy Judge had made any error which entitles the Court of Appeal to interfere.

8. Ground 8 concerns the Deputy Judge’s finding on the wall : see [70]-[85] of his judgment.  It is common ground that as a matter of law, factual possession of the land over which adverse possession is claimed is established if 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 has done so : Powell v McFarland (1979) 38 P&CR 452.  Mr Ko complained that the Deputy Judge applied the test wrongly to the facts of the case.  Ms Wu, for the defendant, submitted that Mr Ko’s submission is in effect a challenge of the findings of fact made by the Deputy Judge at [81]-[82] of his judgment.  In reply, Mr Ko made his position clear : he did not seek to challenge those findings.  He however maintained that the Deputy Judge’s application of the test to the facts was wrong.

9. The Judge said at [78]-[83] :

“ 78. On this, I am prepared to accept Lam Chau Shing’s evidence that the wall was indeed built in around 1950, when he was 11-12 years old. Even though he agreed with Ms Wu that this was long time ago, and his memory must have faded somewhat, the construction of the wall was not a one-off event. The time taken for the construction, and the fact that Lam Chau Shing was by then already 11 years old, lead me to find that he must still have a fairly good memory about it. The survey sheets also do not provide any contrary evidence.

79. The plaintiffs accept, however, the wall did not completely encircle the Land, at least on those sides not facing Lot No 313. One thus still needs to assess whether Lam Kwong Tat and the Tso had possession of the Land to the exclusion of the whole world by building the wall.

80. Mr Ko argues that there was no need to completely enclose the Land, because the adjoining plots belonged to the Tso. With respect, I do not think his argument is supported by the evidence.

81. First, the evidence does not show that the Land (or Lot No 313, for that matter) was completely surrounded by the Tso’s land. For example, no evidence has ever been put forward to show the details of land ownership for the plots to the north of the Land. As such, I do not think it can simply be concluded that the Land must only be accessible from the Tso’s land. Insofar as the 1^st plaintiff and Lam Chau Shing asserted that was the case, I reject their evidence.

82. Indeed, Lam Chau Shing’s evidence did not actually support the plaintiffs’ case. Under cross examination, he readily agreed that, despite the wall being built by 1950, villagers could still walk onto the Land. When re-examined by Mr Ko, he admitted that there were a lot of small paths to allow people to walk onto the Land from the east side, because there were a lot of land or houses left vacant. As referred to earlier, villagers of Shek Po Tsuen were not all members of the Tso. I find this to mean that people other than members of the Tso were able to walk freely onto the Land as they were not physically obstructed, nor were they strictly prohibited from doing so. This is an admission, in my view, which due weight ought to be given.

83.   In my judgment, the plaintiffs’ evidence came nowhere near to prove factual possession and the requisite animus possidendi with respect to the wall.”

10. The Deputy Judge’s findings at [81] and [82] are crucial.  They clearly show that the plaintiffs had been unable to prove factual possession of the Land and the requisite animus possidendi.  As Mr Ko did not challenge those findings, there is simply no basis to assert, as he did, that the Judge had applied the test wrongly.  There is no reasonable prospect of success in Ground 8.

11. Ground 9 concerns the communal lavatory : see [86]-[97] of his judgment.  The Deputy Judge said at [95] :

“ 95. Further, for Lam Chau Shing, even though he should have also been an eyewitness to the building of the lavatory, it is interesting that he never said so in his witness statement, different from what he said with respect to the building of the wall. He also did not say he witnessed the building of the lavatory in his oral evidence. In my judgment, I do not think the same weight can be given to his evidence on this point as compared to the building of the wall.”

Mr Ko complained that the Deputy Judge made a mistake because Lam Chau Shing did in fact said at [18] of his witness statement that he eye-witnessed the building of the lavatory.

12. Mr Ko is right in his complaint.  But in our view it does not take the plaintiffs’ intended appeal any further.  Taking the plaintiffs’ case on this complaint to the highest, it means that the plaintiffs would be able to establish by virtue of Lam’s evidence that the lavatory was in fact built in 1950.  But the lavatory is but one of the several facets concerning factual possession of the Land.  In light of the unchallenged findings of the Judge at [81] and [82] of his judgment, the stark fact is that anybody could assess the Land freely.  That being the case, the communal lavatory which could be used by anybody who happened to be on the Land does not detract from the Deputy Judge’s finding that in the overall context of the case, the plaintiffs’ evidence came nowhere near to prove factual possession of the Land and the requisite animus possidendi.  The oversight on the part of the Deputy Judge concerning what Lam said in his witness statement does not give rise to a reasonable prospect of success in the plaintiffs’ intended appeal.

Disposition

13. For the above reasons, we refuse to grant the plaintiffs leave to appeal and dismiss their summons.

14. The parties agreed that cost should follow event and that costs should be summarily assessed on paper.  The defendant has provided us with a statement of costs.  The defendant claims a total sum of HK$126,738.00.  We find the costs incurred by the defendant proper and reasonable and will allow his claim of costs in full.