WU YEE PAK v. UN FONG LEUNG & OTHERS

HCMP 3773/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3773 OF 1998

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J U D G M E N T

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The Background

1. This dispute relates to a property in Tak Yuet Lau village in the New Territories known as Lots Nos. 17 R.P., 16 R.P. and T213 R.P. in DD No. 93, Tak Yuet Lau, Lowu, N.T. (hereinafter referred to as "the said lots").

2. D1 is the registered owner of Lot No. 17 R.P. and D2 is the registered owner of Lot No. 16 R,P.

3. D3, Tang Tok Lun and Tang Chan Lam (Nam) are the registered owners of Lot No. T213 (Lot No. T213). They inherited it from their great grandfather Tang Yui Shan in 1952.

4. The plaintiff Wu Yee Pak had been occupying the said lots since 1934 until they were resumed by the Government in 1997. Initially he lived there with his late parents Wu Dun and Madam Fung Ngan. Wu Dun died in 1949 and Madam Fung Ngan died in 1980. Since 1948, the plaintiff has been living at the said lots with his wife and together they had raised 7 children.

The Plaintiff's case

5. It is the plaintiff's case that his continuous adverse occupation of the said lots as a trespasser since 1934 had defeated whatever entitlement the defendants may have over the said lots by virtue of the Limitation Ordinance Cap. 347. He claims for a declaration that he had acquired a possessory title over the said lots and that the defendants' title had been extinguished. He also claims to be entitled to be registered as owner of the said lots and the compensation deriving from the resumption of the said lots or any part thereof by the Government.

6. The plaintiff's claim against D1 and D2 will be separately pursued and to that extent the present dispute concerns the plaintiff and D3 only.

D3's case

7. D3 deny the plaintiff's claim. It is suggested that the plaintiff's mother Madam Fung Ngan was the servant of Tang Yui Shan. At the request of Madam Fung Ngan, Tang Yui Shan allowed her to occupy Lot No. T213 with her family since 1934. After D3 succeeded Lot No. T213 in 1952, the plaintiff again asked their mother Wong Shi who was the trustee of D3 to be allowed to remain in Lot No. T213. There is the suggestion that small sums of money had been paid as rent and there were occasions when Madam Fung Ngan or the plaintiff's wife, Madam Li Chiu Ha would take gifts to Wong Shi or Madam Tang Leung Siu Ha, the wife of the 1st named D3.

8. D3 contend that the plaintiff occupies Lot No. T213 as a tenant or licensee. In particular, it is suggested that in or about 1973, Tang Chan Lam asked the plaintiff to move out of Lot No. T213 and it was out of sympathy to the plaintiff that D3 allowed him to stay on upon his undertaking to move out once his financial condition improved.

The Evidence

9. The plaintiff suffered a stroke in 2000. At the time of the trial he was still recovering from his illness and was unable to give coherent evidence.

10. The plaintiff however called quite a number of witnesses, including his wife, his sister, the village representative of Tak Yuet Lau as well as two of his neighbours to give evidence.

11. His witnesses all confirmed that the plaintiff had been occupying and farming the said lots since the 1930s. His also built and modified houses on the said lots in addition to putting up fences.

12. The plaintiff and his wife denied knowing anything about D3 and the Tang family. They denied having at any time met Madam Tang Leung Siu Ha. The plaintiff denied knowledge of the resumption of part of Lot No. T213 in 1962 and 1995 when compensation was paid to D3 and their predecessor. He said the land resumed by the Government was not land belonging to him and compensation was paid to him because of the felling of the trees only.

13. The defence was however adamant that the plaintiff's wife had on many occasions since the beginning of the 1950s visited D3's mother twice a year with gifts such as lychee, chickens and other farm produce and small sums of money in return for being allowed to occupy Lot No. T213. The defence's witnesses were unable to account for how the plaintiff and his family started to occupy Lot No. T213 and what happened in the 1930s and 1940s, as they were then very young.

14. The wife of the 1st named D3, Madam Tang Leung Siu Ha was able to say that after she married into D3's family in 1962, the plaintiff's wife would visit D3's mother to pay rent twice a year with farm produce or cash. She also said she visited the plaintiff's family once in 1974 when a Mr. Liu indicated his interest to purchase Lot No. T213. On that occasion, she had indicated to the plaintiff's family that they would have to move out. It was only after D3 and Mr. Liu failed to agree on the price that the transaction fell through and the plaintiff's family was able to continue occupying Lot No. T213.

15. Madam Tang also said between 1962 and 1970, there were three occasions when the plaintiff requested D3 to write letters to the District Office so that modification to the houses on Lot No. T213 could be made to avoid the impact of flooding in the area.

16. Madam Tang also said the plaintiff only stopped paying rent in 1991 after the death of D3's mother and that the last time she received $200 as rent from the plaintiff's wife was towards the end of 1991 when she came across her on the platform of Lowu railway station where the plaintiff's wife worked as a hawker. She did however send her son who was a police officer to try to locate the plaintiff's family but without success.

17. D3's sister also said she had met the plaintiff's wife on more than 10 occasions when she brought farm produce to visit her mother starting from the early 1950s.

18. The evidence of the witnesses from both sides were not entirely satisfactory as they were testifying to events that occurred many years ago and there was no written document to support what they said. They were also partial witnesses in that they clearly had their own interests to serve.

19. What was not in dispute, however is that D3 had been paying the Government Rent in respect of pieces of land under their names including Lot No. T213 up to 30 June 1997. What was also not in dispute was that the Government had twice resumed part of Lot No.T213, namely in 1962 and in 1995. In respect of the resumption in 1962 a small amount was paid as compensation. In 1995, over $1.2 million was paid to D3 under the then Crown Lands Resumption Ordinance.

20. On neither occasion of resumption, did the plaintiff raise objection. On neither occasion, did the plaintiff claim to be entitled to the compensation.

The assessment of the evidence

21. The plaintiff and his wife claimed not to be aware of such land resumption. I am sceptical about such suggestion. In normal course of event, being the occupier of the land affected, the plaintiff must be aware of such resumption.

22. I am also sceptical about their evidence that they had not met Madam. Tang Leung Siu Ha. Both the plaintiff and his wife appeared to be determined not to make any concession on this aspect. But their demeanour, particularly that of the plaintiff's wife indicated that they were not truthful.

23. Why did they lie on this aspect? The only possible reason was because they wanted to distant themselves from the allegation that the plaintiff's wife had been visiting D3's mother twice a year before she died to present her with small sums of money and other farm produce. Such visits were clear acknowledgement of D3's entitlement over Lot No. T213.

24. D3 and their witnesses frankly admitted that they had hardly visited Lot No. T213. Madam Tang Leung Siu Ha said she had only visited it once in 1974 when a potential buyer brought her there. D3's sister also said she only visited the place once in the 1940s. This was perhaps not surprising as Lot No. T213 lies in the restricted area and permit was required for anyone who wanted to visit the place.

25. But I am persuaded that the plaintiff's wife had before the death of D3's mother visited her and such visits were acknowledgement of D3's entitlement over Lot No. T213.

The Law

26. The law on adverse possession is well established. One perhaps needs only to refer to the often cited case of Powell v McFarlane and another (1977) 38 P & CR 452 when Slade J said at page 476;

"In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. The status of possession, after all, confers on the possessor valuable privileges vis-à-vis not only the world at large, but also the owner of the land concerned. It entitles him to maintain an action in trespass against anyone who enters the land without his consent, save only against a person having a better title to possession than himself. Furthermore it gives him on valuable element of protection even against the owner himself. Until the possession of land has actually passed to the trespasser, the owner may exercise the remedy of self-help against him. Once possession has passed to the trespasser, this remedy is not available to the owner, so that the intruder's position becomes that much more secure; if he will not then leave voluntarily, the owner will find himself obliged to bring proceedings for possession and for this purpose to prove his title.

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I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute. For the same reasons, even contemporary declarations made by a person to the effect that he was intending to assert a claim to the land are of little evidential value for the purpose of supporting a claim that he had possession of the land at the relevant date unless they were specifically brought to the attention of the true owner. As Sach L.J. said in Tecbild Ltd. v. Chamberlain (1969) 20 P. & C.R. 633 at page 643 'In General, intent has to be inferred from the acts themselves.'"

27. The burden is on whoever claims to be a trespasser to establish his intention to exclude the whole world and the court is not easily persuaded that the trespasser has the necessary animus possidendi.

".....it is not in the least surprising that over may years in cases such as....., the courts have been reluctant to infer the necessary animus possidendi on the part of the squatter, even where the acts relied on could have sufficed to constitute factual possession." (per Slade J in Powell (supra) at page 476)

"...if the plaintiff .......had done nothing for twenty years... it might have been possible to argue that there had been a discontinuance of possession. But, after all, it is a question of fact, and the smallest act would be sufficient to shew that there was no discontinuance." (Per Bramwell L.J. in Leigh v. Jack (1879) 5 Ex D 264 at page 272)

28. In Wong Tak Yue v. Kung Kwok Wai David and another [1998] 1 HKC 1, Litton P.J. said at page 14,

"The law is clear. The owner of the land with the paper title is deemed in possession of the land. If the law is to attribute possession to a person who can establish no paper title to possession, and claims to be a mere trespasser, the burden is upon him to establish his intention to exclude the whole world: including the owner of the land. Only in this way can he establish 'adverse possession' in terms of s 13(1) of the Limitation Ordinance (Cap 347)"

29. I have considered the facts of the case and counsel's submission carefully. It is true that the plaintiff had been in occupation of Lot No. T213 since 1934. For the 63 years until the land was resumed by the Government in 1997, the plaintiff farmed the land, erected fencings and built or modified houses on the land for his family, including his parents, sister and children. But in recognition of D3's entitlement, the plaintiff's wife had regularly visited D3's mother until she passed away in 1991 with money and farm produce in return for being allowed to occupy Lot No. T213. The plaintiff raised no objection when the Government paid compensation to D3 upon resumption of part of the land in 1962 and 1995. D3 paid the Government Rent in respect of Lot No. T213 up to 1997.

30. The evidence as found by the court is inconsistent with the suggestion that the plaintiff's possession of Lot No. T213 was adverse. His occupation was blessed with the permission of D3 and their predecessor-in-title. D3 and their predecessor-in-title had not been dispossessed, nor had they discontinued possession. Their title over Lot No T213 had not been taken away.

31. Much sympathy I may have for the plaintiff and his family, his claim for adverse possession had not been made out.

Conclusion

32. The plaintiff's claim is dismissed with costs to be taxed if not agreed.

33. The order on costs is an order nisi to be made absolute 14 days after the handing down of this judgment.