AU LING MAN STEVE v. THE OCCUPANT(S) of Lot No 1703(A C) In D.D.106, Yuen Long, New Territories, Hong Kong

HCMP 2365/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2365 OF 2012

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R U L I N G

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1.  This is my ruling on the application by the applicant by summons dated 11 July 2013 to set aside an order for possession obtained by the plaintiff under Order 113 of the Rules of the High Court in respect of certain land situated in Yuen Long in the New Territories and for leave that the applicant be joined as a defendant in the proceedings.

Background facts

2.  The plaintiff is the registered owner of Lot No. 1703, sections A, B and C ("the land") following an order for possession made by Master Hui on 23 November 2012.

3.  The writ of possession was issued on 21 December 2012 and the notice to occupier to quit is dated 8 February 2013. The applicant first became aware of the order when a copy of the notice was posted up at the main entrance gate to Lot No1706 where she lives and which adjoins section A.

4.  At the time of the 2012 proceedings, the land was an unfenced open space, being a single parcel of land with no obvious physical boundaries delineating the division of the land into the three sections designated in the Lot Index Plan as sections A, B and C.

5.  The applicant took out the summons in these proceedings to set aside the order on the basis that the order was obtained irregularly and further or alternatively that the applicant should be joined as a defendant on the merits of her case.

Service of the originating summons

6.  It is common ground that at the time court documents had to be served, the land "was an open space without fencing and without any door" as described in the supplemental affirmation of the process server Lam Ka-Hing ("Mr Lam") and that “the premises” had no letterbox.

7.  Mr Lam's evidence is to the effect that the only structures he found erected on the unfenced open space (i.e. the land) were illegal structures consisting of "one big shelter and two cargo containers". The doors to the containers were locked and he effected service by inserting the requisite documents into the containers through the door gap of each container. He considered the doors to the containers to be the "most conspicuous place" at which "to post up copies of the documents" which he did on the same day.

8.  The containers were located on section B of the land.

9.  Order 113 rule 4 (in pertinent part) provides as follows:

“Service of originating summons (O.113, r.4)

4.— (1) Where any person in occupation of the land is named in the originating summons …

(2) The summons shall, in addition to being served on the named defendants (if any) in accordance with paragraph (1), be served, unless the Court otherwise directs, by—

(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises and,

(b) if practicable, inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to “the occupiers”.

…”

10.  The applicant's case is that valid service pursuant to Order 113 rule 4 required that the court documents be served on those portions of the land affected by the applicant’s intended claim in adverse possession. In this connection it is necessary to consider the applicant's case as to the area of land affected by her intended claim.

11.  Mr Shum, counsel for the applicant, contended that the applicant’s claim was confined to Lot No. 1703A and a small portion of Lot No. 1703B only and, to satisfy the requirements of Order 113, valid service of the court documents required that service of the same be effected on both section A and the relevant portion of section B.

12.  As to the area of the land affected by the intended adverse possession claim, the founding affidavit for the application is the affidavit dated 10 July 2013 of the applicant’s son Tang Kit Man filed on her behalf. Mr Tang’s affidavit is unambiguous and there is no doubt that the adverse possession claim related to the whole of sections A and B of Lot No. 1703 which for identification purposes was shown coloured yellow on the Lot Index Plan exhibited as TKM-1. It is evident from the plan exhibited that sections A and B together constitute a parcel of land that is trapezium shaped.

13.  Mr Tang's affidavit asserted that while there was no fencing along the boundaries of sections A and B, those sections of the land had been "exclusively used by the applicant for cultivation and growing of trees". That is reinforced by the summons taken out by the plaintiff which seeks to set aside the possession order "so far as it relates to Lot Nos. 1703 (A-B)".

14.  Further, § 11 of Mr Tang's affidavit states that the reason why the applicant had no notice of the documents was because the two containers referred to in Mr Lam's affirmation "were all located in Lot No. 1703 (C)" and what the applicant adversely possessed was Lot No. 1703 (A-B).

15.  What is now being contended is that the area of the intended claim consists of the whole of section A and part only of section B of Lot No. 1703. This emerges from the applicant's own affidavit dated 9 September 2013 where, after confirming and verifying all the contents stated and the exhibits produced in Mr Tang's affidavit, she states in § 3:

“I have exclusively occupied and cultivated on Section A and part of Section B of Lot No. 1703 ("the Land") since 1989 up to the present moment. The Land that I have occupied is the green/dark patch on the whole of Section A and the Northern part of Section B as shown in Appendix 2 (for the year 1990) and Appendix 18 (for the year 2012) attached to the Surveyor’s Report of the Plaintiff exhibited in Mr Au’s 2nd affirmation.”

16.  Mr Shum sought to explain away the obvious discrepancy by characterising the applicant's statement as 'clarification' of Mr Tang's evidence. I do not except that explanation. First, the applicant did not state that she was seeking to clarify the evidence given by Mr Tang on her behalf because it was incorrect or could lead to some misunderstanding. Second, the applicant's affidavit was made after the plaintiff’s 2nd affirmation exhibiting a land survey report had been filed. That affirmation, inter alia, exhibited aerial photographs of the land taken during the period from 1990 through 2012. Indeed, the applicant makes specific reference to 2 of the appendices attached to the surveyor’s report.

17.  Rather, I agree with Mr Ma, counsel for the plaintiff, that the applicant changed her case regarding the extent of the land of her intended adverse possession claim upon reading the surveyor’s report when it was appreciated that contrary to Mr Tang's assertion, the two containers were not situate on section C but section B.

18.  It is indisputable that the applicant has put forward inconsistent cases. The altered case has the trappings of being tailored to get round that factual difficulty and to enable the applicant to put forward an explanation as to why she did not have notice of the court documents served, namely, that area on which the containers are situate falls outside the area over which she claims to exercise exclusive possession and as the containers do not belong to her she had no reason to go there.

19.  As regards Mr Shum's contention that service pursuant to Order 113 required the court documents to be served on section A as well as "the relevant portion" of section B, I do not consider that, properly understood, that is what Order 113 requires.

20.  The rule refers to “the land” as well as “the premises”. As a matter of construction, the natural reading of the provision suggests that the expression “the premises” in the context is referable to the physical structure(s) erected on the land rather than as a synonym for “the land”. In any event, whether service was regularly effected is a fact-sensitive issue which cannot be decided in the abstract. The fact that for title purposes the land has been notionally divided into subsections is not determinative where there are no visible physical boundaries delineating the different subsections on the ground.     

21.  On Mr Lam's evidence relating to service which cannot and is not disputed, the only physical structures apparent on the land consisted of "one big shelter and two cargo containers". The shelter was an open shelter whereas the containers had doors which were locked. It is apparent from the aerial photographs that the southern part of the land (comprising section C and over half of section B) is paved and the structures are to be found on the paved area. Effectively, the applicant's ‘new’ claim is restricted to the remaining unpaved part of the land (“the claimed land”).

22.  When one looks carefully at the aerial photographs from Appendix 2 through to Appendix 18, it will be seen that contrary to what is asserted in the passage from the applicant's affidavit quoted above, what is visible of the claimed land changed over the period 1990-2012. While in 1990 virtually all of the claimed land appeared to be covered with heavy vegetation/trees, changes are clearly visible in 1999, 2002, 2004, 2008, 2010 and 2012 in that different and/or larger areas of the claimed land are shown to be without such vegetation/trees.

23.  When the aerial photograph taken in 2012 is juxtaposed to the surveyor’s photographs numbered 2, 3, 12 and 13, one can derive a clearer picture and feel for the condition and physical appearance of the claimed land when service had to be effected. Sizable open areas with an abandoned look, without vegetation and strewn with rocks can be seen. I do not accept Mr Shum’s description that all the claimed land was covered with thick vegetation and/or trees.

24.  On the facts of the present case, I consider that service of the documents was regular and in accordance with the requirements of Order 113 rule 4. I therefore reject the contention that the order for possession was irregular.

The merits of the applicant's claim

25.  It appears to be common ground that where (as in the present case) service was properly effected and the order for possession was regular, while the court retains a discretion to order that a party be joined in the proceedings, that discretion should only be exercised if the applicant can demonstrate that she has real prospects of success.

26.  As the applicant claims to have been in adverse possession since 1989, the applicable limitation period remains at 20 years. Her case is that the land adversely possessed was used exclusively for cultivation, growing trees, for storing chattels and the tools for cultivation.

27.  Mr Tang's evidence is that after the applicant retired in about 1990, she "started growing vegetables such as sweet potato and lettuce and fruit trees such as guava and papaya". It was said that what was grown was for family consumption as sections A and B constitute a small area. Considerable importance was attached to a black-and-white photograph of the applicant said to be taken in 1989 on the claimed land.

28.  He also asserted that a hut of around 200 feet was built on section A in about 1998 for storing chattels and the tools for cultivation and that it was demolished by the plaintiff’s contractor after the date of the judgment. Two government rent demands covering the period from July 1989 to 1997 were exhibited in support of the assertion that the applicant had been paying government rent for  Lot No. 1703(A-C).

29.  Mr Shum submitted that for present purposes the applicant's evidence should be accepted. While I agree that findings of fact must be left for trial, the court has to form of view as to the applicant's prospects of success on the evidence adduced. A number of difficulties arise.

30.  First, the aerial photographs cast serious doubts as to the assertion of cultivation. When one looks at Appendices 14 and 15 which were taken in 2008 and 2010 respectively, it will be seen that a plot of comparable size to sections A and B situated to the right of section A was clearly being “cultivated”. The same cannot be said of the claimed land. Even if the cultivation undertaken by the applicant was on a smaller scale, one would expect something that would look like the neighbouring plot.

31.  Second, the aerial photographs render unsustainable the assertion regarding the existence of a hut from about 1998 until at least late 2012. The first indication of any structure on section A is to be found in the photograph taken in 2002. However, it appears to have gone by 2004.

32.  Third, the assertion that the applicant had been paying government rent was somewhat disingenuous and has every appearance of being self-serving since the demands were only issued in March 2012. I note that while this point featured in Mr Shum's written skeleton, it was not a matter that he pursued in his oral submissions.

33.  Fourth, it appears to be the applicant's case that the claimed land was unfenced throughout the period of her alleged possession. That is contradicted in part by the surveyor's report. In the section headed "Interpretation of Aerial Photos" the surveyor set out his interpretation of the aerial photographs and concluded that in 1996 sections A, B and C of Lot No. 1703 "were enclosed by fence". The fence disappeared in 1999. In 2002 the northern boundary of section A was fenced and in 2004 a fence was seen along the southern side of section B. See §§ 7, 11, 13 and 14 of the report.

34.  Fifth, one cannot disregard the fact that the applicant has put forward inconsistent cases. It is a factor to be taken into account when considering the applicant's prospects of success.

35.  Having regard to all these matters, I do not consider that the applicant has real prospects of success and it would be wrong to set aside the order which was regularly obtained and to join the applicant as a defendant in these proceedings. It is to be noted that it remains open to the applicant to commence an action for possession if she still considers that she has a good claim.

36.  Accordingly, the summons is dismissed with an order nisi that the costs of and incidental to the summons be to the plaintiff.