CHAN KING TONG v. HENRY FRANCIS LUE AND OTHERS

CACV 942/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 942 OF 2001

(ON APPEAL FROM HCA NO. 828 OF 1997)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This is an appeal from a judgment of Deputy High Court Judge Poon given on 11 May 2001. In the action the plaintiff sought declarations that the registered owners and their personal representatives of the ground floor and second floor of 50 Tung Choi Street, Kowloon had lost their right to bring any action to recover any part of those premises and their rights in respect of those premises had been extinguished by the plaintiff's adverse possession. The plaintiff also sought orders that the premises should be vested in him and that his name should be entered as the owner of those premises in the Land Registry. By counterclaim the defendants claimed an order for possession of that part of the second floor premises which the plaintiff occupied, an account of all rental monies which the plaintiff had received in respect of the ground floor premises and mesne profits in respect of his occupation of the second floor of the premises from 19 July 1994 until the date of delivery of vacant possession.

2. The judge below dismissed the plaintiff's claims, ordered delivery up of vacant possession of that part of the premises occupied by the plaintiff and ordered an account of rentals and the payment of mesne profits as prayed for by the defendants.

3. On this appeal the plaintiff appeared in person. Apart from the fact that the plaintiff considered that he had been unfairly treated by the trial judge his appeal was in respect of the judge's findings of fact. At the conclusion of the hearing, this court dismissed this appeal with costs and indicated that it would give its reasons in writing which we now do.

4. In a detailed and careful judgment the judge reviewed the evidence before him and had no hesitation in rejecting the plaintiff's evidence that he had obtained possession of the premises by excluding from possession a Mr Liu Tong and refusing to allow him or anybody else to have possession of premises. According to the plaintiff that occurred in approximately 1964.

5. Quite apart from the oral testimony given on behalf of the defendants to refute the plaintiff's claim there was a wealth of documentary evidence which was only explicable on the basis that the plaintiff had not exercised adverse possession.

6. The registered owners of the premises were a Mr Lue and a Madam Lue. Madam Lue was the plaintiff's sister. In 1964, the Lues had purchased the premises although they resided in Jamaica. In 1974 they executed powers of attorney in favour of the plaintiff's second son Mr Chan Chung Wah, amongst other things, to enable him to manage the properties including renting them out and collecting rents from the tenants.

7. There were a number of tenancy agreements signed with one of the tenants by Mr Chan Chung Wah in his capacity as the attorney. There were also tenancy agreements which was signed in respect of the main shop, the side shop and what was referred to as the staircase shop where the plaintiff had purported to sign as agent for the landlords.

8. There was also a letter dated 3 May 1992 signed by the plaintiff addressed to a solicitor formerly working for the defendants' solicitors in which it was stated that Madam Lue had repeatedly told her children that the rental income generated by the properties was for the plaintiff's use, that the plaintiff was allowed to live at the second floor premises for life and that the plaintiff would not ask for ownership.

9. After carefully reviewing the evidence the judge below made clear findings of fact that the plaintiff and his family had moved into the second floor premises because the plaintiff's sister Madam Lue had permitted them to live there rent free and that they were there as mere licensees. The judge further found that up until 1970 a Mr Lui had been living in part of the second floor premises and that from 1971 to 1992 the plaintiff's first wife from whom he was divorced and who was the mother of the plaintiff's sons, had collected any rent which arose from the second floor premises. Furthermore for some time prior to 1994 the plaintiff had not lived the second floor premises and in that year when one of Madam Lue's daughters had visited Hong Kong the plaintiff had asked her for permission to live there. The daughter, Selma, had agreed and the plaintiff had moved back into the second floor premises where he continued to live rent free as a mere licensee. The judge concluded that insofar as the plaintiff had purported to act as the agent for the landlords he had intermeddled in the affairs of Madam Lue's estate into which the premises had become vested. The judge further held that the letter which the plaintiff had signed addressed to the solicitor had been written of his own free will.

10. In the circumstances, the judge came to the conclusion that neither had the plaintiff exercised adverse possession of the premises nor had he intended to do so.

11. I consider that there is no basis for challenging the judgment. In those circumstances, this court had no hesitation in dismissing this appeal.

Hon Le Pichon JA:

12. I agree.

Hon Burrell J:

13. I agree.