TSUI CHOI v. YIP CHING SHAN AND ANOTHER

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JUDGMENT

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1. In this case the plaintiff is seeking possession of a piece of Crown Land at Mount Davis Road. The plaintiff is entitled to possession of that piece of land by virtue of a Crown Land Permit granted to him in 1966. For the purpose of these proceedings, the plaintiff has, in fact, acted at all times through his wife Madam Chan. She was the principal person to give evidence on behalf of the plaintiff and in the course of her evidence produced the Crown Land Permit. There is no dispute I think that the Crown Land Permit is still subsisting. There have, of course, been two different versions of the facts of this case. Madam Chan on behalf of the plaintiff gave her version. The two defendants have given evidence on their own behalf and out their stories before the court. However, it now appears to me that it does not matter which version is the correct one.

2. Mr. Chain on behalf of the plaintiff has referred me to the unreported case of Lo Shun-cheung v. Fung Siu-kam & Ors. (Civil Appeal 51/83). That was a case where the facts were of considerable similarity to the present one. In that case the plaintiff was a Crown Land Permittee, and he purported to grant a tenancy to the defendants. As the Court of Appeal said in that case, a licensee is not allowed to let another person into exclusive occupation of the land which is the subject of the licence . Accordingly, the tenancy which the plaintiff in that case purported to grant to the defendants was an illegal one. The defendants were unable to rely upon that illegal agreement as the licensee, the plaintiff in that case, was clearly entitled to possession of the land.

3. In the present case, of course, there is no question of a tenancy. A licence, the form of which no doubt depends upon which version of the evidence I accept, was all that was granted. Nonetheless, the licence, whatever its nature may be, was clearly an illegal one. Mr. Tsui, the plaintiff, clearly had no right or authority to allow another person the exclusive occupation of the land the subject of his licence. The defendants therefore cannot rely either upon the licence granted to their father, Mr. Yip, or any licence which may by conduct have been implied in their favour. It follows, therefore, that the plaintiff is entitled to an order for possession of the land. I have, however, heard evidence from all the parties and I think in fairness I must analyse it, albeit briefly.

4. Madam Chan's evidence was straightforward. She said that with the authority of her husband, the plaintiff, she entered into an agreement with a Mr. Yip Kam in May, 1975 that agreement was embodied in writing and is Exhibit P1. It purported to give Mr. Yip the right to manage the land and to cultivate it. Clearly, it was a form of licence. Following that agreement, Mr. Yip and his two sons, who are the first and the second defendants, at various times occupied the land and cultivated it. In fact, Mr. Yip himself only in-frequently visited the land; the second defendant was principally involved, at least until the end 1981, and in 1978 he was joined by his brother, the first defendant, upon his arrival from China. The first defendant has been living and is still living on the land.

5. In February, 1984, the land was surrendered. if that is the right word by Mr. Yip to Madam Chan; that surrender was embodied in writing in a document dated 21st February, 1984, Exhibit P2. As far as Madam Chan and the plaintiff were concerned, the agreement which had been reached in 1975 had come to an end and they were entitled to exclusive use once again of the land. Despite warnings, however, the first and the second defendants have remained on the land and they are regarded as trespassers.

6. The defendants' case, as I have already said, was rather different. The second defendant, in essence, said that in 1973 an informal agreement was reached between his father. Mr. Yip, the plaintiff, and the second defendant himself. For payment of $15,000, the second defendant would be entitled to use the land and cultivate it. At that stage, the second defendant paid probably $7,500 and entered into the land. Subsequently, at the end of 1974 or the beginning of 1975, he paid the balance of the sum of $15,000 and was permitted by the plaintiff to erect a hut on the land in accordance with the permission given in the Crown Land Permit. Thereafter, he, and later his brother, lived on the land and cultivated it.

7. In 1981, the second defendant, however, ceased to reside on the land when his family moved to Shatin to look after his father. He continued, however, to help in the cultivation, he also paid the annual Crown Rent. In 1984, the plaintiff contacted the second defendant and told him his father, Mr. Yip, was to surrender the land. The second defendant was unwilling to accept this and he was unwilling to accept it even though $15,000 compensation was offered to him. Notwithstanding the surrender signed by his father, Mr. Yip, the second defendant, and of course the first defendant, remained oh the land. At this stage, there is some coincidence between the evidence of Madam Chan and that of the defendants, namely that there was a series of unpleasant incidents on the land. I do not think, however, for the purposes of this case I need to elaborate upon those incidents.

8. The first defendant also gave evidence of course but his evidence added very little to that of the second defendant. He arrived in Hong Kong long after the original arrangements had been made and knew nothing of them. That then was the evidence given by the defendants.

9. I think I must mention, however, that they sought to call officers from the Lands Department and from the squatter control unit of the Housing Department. The purposes of calling such witnesses was to show first, that the defendants are living on the land; secondly, that they have permission from the Government to live there. There is no dispute that the defendants or at least the first defendant is living or, the land. There is also no dispute I think that officers from the squatter control unit had paid visits from time to time. It will be recalled Madam Chan's evidence was that she gave the second defendant copies of the permit and Crown Rent receipts to help the second defendant in any difficulties he had with the visiting officers. It may be presumed, therefore, that the relevant government department tolerated the defendants living oh this piece of land.

10. The fact remains, however, that the plaintiff still holds the Crown Land Permit. Until that permit is revoked by the Lands Department, the plaintiff's right to occupation of the land continues. Whatever views the squatter control unit may have had about the defendants living on the land does not alter that position. I therefore declined to make an order that officers from these two departments should attend this hearing. It was my view that their evidence could add nothing to what I have already heard.

11. Madam Chan, of course, is an elderly lady; her memory is not perhaps all it might be. I am satisfied, however, that her version of events is substantially the correct one. I am unable to accept the version which I have heard from the second defendant about the very informal arrangements which were made for his occupation of the land. Notwithstanding the family relationship, it seems extraordinary to me that he should have parted with substantial sums of money yet obtained no receipt, and again if his version is the true one, it would seem extraordinary that the arrangement should later have been committed into a rather short written document, that is Exhibit P1.

12. I am satisfied and find as a fact that the only arrangement is the one described by Madam Chan. As far as she was concerned, she reached an arrangement only with Mr. Yip Kam. It was no concern of hers thereafter how Mr. Yip proceeded to manage and cultivate the piece of land. If Mr. Yip chose to have workmen or his sons to cultivate the land or even live on it, that was a matter for Mr. Yip not Madam Chan. I find as a fact, therefore, that the only licence, for licence it is, was granted to Mr. Yip. That licence, which I find to be a bare licence, subsisted until February, 1984 when for reasons which are not entirely clear Mr. Yip surrendered the land back to Madam Chan.

13. The two defendants were given clear notice that the land had been surrendered. If nothing else, there is the evidence the second defendant gave about the phone call from the plaintiff. Something over twelve months have now elapsed since the lard was surrendered. By remaining on the land, the defendants are trespassers. The plaintiff is, therefore, entitled to an order for possession. The details of that order I shall go into shortly.

14. There is one other matter, however, with which I think I must deal. In his final address to me yesterday, the second defendant said that some of the land occupied is not within the land which is the subject to the Crown Land Permit. I accept that it is often difficult to identify small pieces of land or at least the boundaries of land with precise definition. If the defendants occupy land which is outside the land to which the plaintiff is entitled, then no order that I make against them today is effective in respect of that land. That will be a matter for the Lands Department, if it sees fit, to take up with the defendants separately. But insofar as they are within the boundaries of the plaintiff's land, then they must remove. By the same token the plaintiff will not be able to interfere with any land which the defendants may be occupying outside of the land to which he is entitled.