NG CHOR HANG v. CHAN KIU FUNG AND OTHERS

DCCJ 1992/2015

[2022] HKDC 245

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1992 OF 2015

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BETWEEN

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JUDGMENT

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1.  This is an action for vacant possession by the plaintiff against the defendants in respect of Shek O Village Lots Nos. 218, 219, 220 and 221 (the “Lots”).

2.  It is not in dispute that the plaintiff is the sole surviving joint tenant and registered owner of the Lots.

3.  There are two properties which occupy the Lots, namely No. 360 Big Wave Bay Village, Shek O, Hong Kong (“House 360”) and No. 361 Big Wave Bay Village, Shek O, Hong Kong (“House 361”).

4.  The claim against the 2^nd defendant regarding House 360 has been settled so the action against the 2^nd defendant has been discontinued. The current action only concerns with House 361.

5.  The 1^st defendant’s claim (as clarified by amendments to his Amended Defence on the first day of the trial), is that he has been in full occupation use and enjoyment of House 361 (including the actual building structure and the land surrounded by the fence or wall around the building structure) part of which occupied a portion of the Lots (the “Portion of the Lots”) since around 1982.

6.  House 361 also occupied other pieces of land which is not the subject of this action.

7.  The 1^st defendant’s counterclaim is for a declaration that he is the legal and beneficial owner of the Portion of the Lots and alternatively, an order for adverse possession of the Portion of the Lots.

Legal principle

8.  The legal principle is trite and there is no need to repeat it in details. To put it simply, in order to establish possessory title based on adverse possession, the squatter must show factual possession and the requisite intention to possess (animus possidendi) for the whole of the relevant period, which, in this case, is 20 years (given the 1^st defendant’s case is that he has occupied House 361 since around 1982).

9.  Further, the burden of proof on both factual possession and animus possidendi is on the claimant. The standard of proof is still on balance of probability but the evidence must be compelling.

Expert evidence

10.  There is no dispute between the parties’ experts in the Joint Expert report (Trial Bundle page 390-392).

11.  In summary, the Portion of the Lots was cultivated farmland until 1981 when House 361 along with a boundary feature (wall or fence) enclosing the area to the rear of the building was observed from an aerial photo dated 18 May 1981. There was no significant change up to 2003. There were modification works enlarging House 361 in 2004, 2005, 2007 and 2009.

The plaintiff’s case

12.  In short, it was clear that the plaintiff and his father (“the Father”, who was one of the joint tenants of the Lots before he passed away in 2008) had done little to seek vacant possession of the Portion of the Lots until around October 2012 when the plaintiff engaged Dudley Surveyors Limited (“Dudley”) to commence inspection of the Lots and to attempt to contact the occupiers.

13.  Prior to this, on 19 December 1989, the Father had written to the District Survey Office to seek to verify the locations of various lots in Shek O Village including the Lots (Trial Bundle page 223). The District Survey Office replied on 2 January 1990 that it could not provide such information (Trial Bundle page 226). It appeared that the Father did not take further steps to seek such verifications.

14.  The plaintiff alleged in his witness statement (paragraphs 20 to 24, Trial Bundle page 196-197) that there were some attempts to contacts the occupiers of the Lots:

“Upon discovering the occupation of (the Lots) and the erection of the authorised structures…my father and I had had made various attempts in contacting the defendants with the purpose of claiming possession…”

“I can recall that my father and I would visit (the Lots) every year when we visited the area for praying worships to our ancestors’ graves.”

“I also recall that my father and I would visit and inspect (the Lots) every year when we received the Government Rent Demand Note for (the Lots)”

“The purpose of our visiting and inspecting (the Lots) were to try to take possession of (the Lots) and discuss with the defendants directly.”

“However, despite my various attempts, the defendants either refused to answer the door or refused to meet with us.”

15.  Under cross-examination, the plaintiff claimed that he first visited the Lots in the 80’s when his grandmother took him there for ancestor worship and was told that the Lots belonged to the family. He also claimed that he noticed that the Lots were occupied in around 1990.

16.  I would question whether the plaintiff’s grandmother knew exactly where the Lots were located. If she had known, the Father would not need to write to the District Survey Office in 1989.

17.  Further, in that letter, the Father stated that there were 17 lots that he had inherited. I seriously doubt that the grandmother would be taking the plaintiff round Shek O and Dai Long Wan (or Big Wave Bay in English) pointing out the boundaries and locations of each of those 17 lots to him.

18.  If neither the plaintiff nor the Father were aware of the locations of the 17 lots (including the Lots), I doubt that the plaintiff would be aware that the Lots were occupied at that stage.

19.  Further, the plaintiff claimed that when he performed these inspections of the Lots during the annual ancestor worship trip, he would knock on the door of House 361, but he also admitted that he never got an answer nor managed to meet any occupier.

20.  If the plaintiff had really been trying “to take possession” of his own land which he knew was continuously being trespassed upon by unknown occupiers, one wonders why he would persist in performing the same annual “knocking-on-the-door ritual” despite having failed each time to even contact the occupier, let alone taking possession. And notwithstanding such persistent failure, he would continue the same ritual year after year without thinking of any other ways of contacting the occupiers, like for example: asking around the village, leaving a note, coming back in other times, writing a letter etc.

21.  This makes no sense at all.

22.  On balance, I think the plaintiff (and the Father before him) could not have performed this annual “knock-on-the-door ritual” on House 361. More likely, they did not know the exact locations of the Lots and, as such, were unaware that it was occupied until Dudley was engaged in October 2012. Dudley then performed a site inspection and posted a demand notice on House 361 dated 20 October 2012.

23.  In any case, even if the plaintiff was vaguely aware of the locations of the Lots and thought that the Lots might be occupied, he did not do anything to investigate this properly nor claim possession until this time.

24.  However, even if the plaintiff and other owners have done little until October 2012, as stated above, the burden of claiming adverse possession is still on the 1^st defendant to show factual possession and animus possidendi for at least 20 years since 1982. If he could do so, he would have acquired a possessory title by way of adverse possession by 2002 and it would be too late for the plaintiff to claim possession by October 2012.

The 1^st defendant’s case

25.  The 1^st defendant pleaded case (paragraphs 2 and 9 of the Amended Defence, Trial Bundle page 72) was that:

“…the 1^st defendant has been the owner of (House 361) and in actual and physical possession…without interference from anyone since or about 1982…”

“…House 361 was first erected by the relative of the 1^st defendant in or about 1982. Since 2003, the House 361 has been occupied by the 1^st defendant and his relative for his sole and own use after substantial renovation and improvements works done by the 1^st defendant.”

26.  The 1^st defendant also stated in his witness statement (paragraph 1, Trial Bundle page 184) how a Mr. Ng Choi (whom he alleged to be ancestor of the plaintiff), had sold his land in Dai Long Wan to various people around 1944. He exhibited (Trial Bundle page 205) a hand-written document which appeared to document the sale of a piece of farm land in Dai Long Wan from a Mr. Ng Choi (as I translate) to a Mr. Kwan Dan Ga and then to Mr. Chan Chun Hang (the 1^st defendant’s father) in 1951 (the “Sale of Farmland Document”).

27.  As for the history of his own family, the 1^st defendant claimed that his father (i.e. Mr. Chan Chun Hang) and his relatives returned to Hong Kong after World War 2 in 1946 and bought several pieces of land in Dai Long Wan (in Shek O) to farm and to build a temporary hut (paragraph 4, Trial Bundle page 185)

28.  However, during the trial under cross-examination, the 1^st defendant went much further.

The Sale of Farmland Document

29.  During the trial, the 1^st defendant claimed that the Sale of Farmland Document actually referred to the Lots (or the Portion of the Lots).

30.  He claimed that the seller, Mr. Kwan Dan Ga, had pointed out the Lots (or the Portion of the Lots) to his father. He also claimed that his father gave him two such sale documents (and that his other brothers also inherited such documents from his father). When asked as to how he knew which piece of land was which, he then claimed that his father had shown him the land.

31.  I found this unconvincing.

32.  Firstly, this is all new evidence. The original context under which the Sale of Farmland Document was exhibited was to show how Mr. Ng Choi had sold his lands to various other people in 1944 (as stated in paragraph 1 of the 1^st defendant’s witness statement).

33.  There was no mention that this document referred to the exact piece of land that House 361 was built on. If this was the 1^st defendant’s case, this evidence would most likely be put forward in the first instance given that it would at once support a continuous factual possession as well as the intention to possess of the Lots (or the Portion of the Lots) since 1951.

34.  Of course, the Sale of Farmland Document only referred to a piece of farmland in Dai Long Wan. There was no map or any reference to the location of this land. If the 1^st defendant ever really believed that this document was concerned with the sale of the Lots (or the Portion of the Lots) to his father, one would reasonably expect him to disclose this belief in his witness statement along with all the evidence, details and circumstances regarding how he came to that belief and knowledge.

35.  Instead, it was only after being asked about it during the trial that the 1^st defendant explained: “My father had showed me that piece of land.”

36.  The 1^st defendant was also very evasive when asked about the other sale document (and the piece of land it was connected with) he claimed to have inherited from his father.

37.  He firstly stated that the document was not relevant to this case so he did not disclose it. Then he claimed that he might have lost it or that he could not find it.

38.  As to the piece of land this other sale document was connected with, he first said that land was “gone”. He then explained that he had taken another job and abandoned the farmland which turned wild quickly. As to what happened to that land now, the 1^st defendant said that it was built on. On further questioning, he said he did not sell that land but someone asked him for it so he simply gave it to that person.

39.  As such, this has nothing to do with the abandoning of the farmland which turned wild, so one wonders why the 1^st defendant would not simply answer, “I gave it away!” at the first instance.

40.  On balance, I do not think that there is convincing evidence that the Sale of Farmland Document is concerned with the Lots. I think that, just like the other sale document he claimed to have inherited, the 1^st defendant actually has no idea of the location of the piece of land the document is referring to. He has originally only wanted to exhibit it as an example that Mr. Ng Choi had sold lands to many others, and that at least one piece was bought eventually by his father.

41.  As such, I will place no weight on this document as evidence to show factual possession and intention to possess the Lots (or the Portion of the Lots).

The Ration Card

42.  The 1^st defendant also exhibited a ration card dated December 1953 under the name of his father which showed the names of his family including the name of the 1^st defendant. The address was simply stated as “Dai Long Wan”.

43.  There is no further detail of the address of the family.

44.  I am of the view that this would, at best, indicate that the 1^st defendant and his family were living in Dai Long Wan in December 1953. This was not compelling evidence to show that they were occupying the Lots (or Portion of the Lots) as farmland or otherwise.

Farming on the Lots (or Portion of the Lots)

45.  The 1^st defendant alleged in his witness statement that his father used to run a grocery shop in neighbouring Shek O village but this was damaged during the war, so his father changed career and became a farmer. As such, the family (the father, later the 1^st defendant and his brothers, and even later the 1^st defendant’s wife) were farming on various pieces of farmland in Dai Long Wan.

46.  However, the 1^st defendant also claimed for the first time during the trial that he had use the Lots (or Portion of the Lots) for farming vegetables from the time he returned to Hong Kong in 1951 to 1981 (when House 361 was built).

47.  He later also claimed he was working in his father’s grocery store in Shek O in the ‘60s.

48.  I am not convinced. There was no mention in the 1^st defendant’s witness statement that he (or his family) was on the Lots (or Portion of the Lots) at all. If they had occupied this land since 1951, one would, again, expect that this would be something the 1^st defendant would disclose first thing.

Who had been living in House 361?

49.  The 1^st defendant’s claim was that the Lots (or Portion of the Lots) were occupied by his father and other relatives.

50.  He explained in court that some of these family members were his two 表叔 and their families. His father built a hut next to the Lots (but not on it) but farmed on the Lots. Then the 1^st defendants and his brothers and sisters came back to Hong Kong to live in the hut and farmed on the Lots and other farmlands.

51.  However, the 1^st defendant then contradicted himself and admitted that his 表叔 never lived in Dai Long Wan but lived in the city and working in a trading company. He further sought to clarify that after House 361 was built, his 表叔 (and presumably their families) only came to visit to swim, take showers, have BBQs or hotpots, or for short stays. He also claimed that his brothers also came for short stays but, all along, the only long term and continuous residents since 1982 were him and his wife. He then said that his youngest son used to live there for a while until he got married, and now his daughter’s son was living there.

52.  Again, these are all new evidence but more importantly, this is clearly rebutted by the Squatter Population Registration Form dated 5 May 1985 (the “Squatter Registration Form”) (Trial Bundle page 582).

53.  The Squatter Registration showed that there were two families registered at House 361: there was a person called “Anna Tou” and 4 persons surnamed “Koh” in one, and a person surnamed “Kwang” and 3 persons surnamed “Chua” in the other.

54.  None of them were surnamed “Chan” and clearly, the 1^st defendant’s name (and presumably the name of his youngest son) did not appear anywhere in the Squatter Registration Form.

55.  The 1^st defendant claimed that Koh and Chua were his 表叔.

56.  But if the two families of 表叔 only came for short stays and perhaps a swim and a BBQ, why would their names, as well as the names of members of their families (as it appears) be documented in the Squatter Registration Form? Further, if the 1^st defendant and his family were really the permanent long term residents, why were their names not registered?

57.  The 1^st defendant firstly claimed that he and his family might have, by pure chance, all gone out to work on the day the officer visited.

58.  He then changed his evidence and explained that accommodations for all three families were provided for in House 361: he and his wife was living in the biggest room in House 361 and his two 表叔 lived in the two smaller rooms, perhaps forgetting that he earlier told the court that they never lived in Dai Long Wan and only came for a swim etc.

59.  Unless one lives in a palatial mansion with rooms to spare, one would question why there would be such room arrangements for occasional visitors.

60.  Further, if that was the arrangement, why was there only two (and not three) families registered? Surely, Koh and Chua would have informed the officer that there was one more family living in the house.

61.  I think this is fatal to the 1^st defendant’s claim: his attempted explanations are fanciful, contradictory and nonsensical.

62.  I would further observe that for all the swimming, BBQ and hotpot stay-over family parties, the 1^st defendant failed to produce one single photograph of such. In fact, there was no evidence to show any connection or relationship between the 1^st defendant and the families of Koh and Chua besides the bare assertions by the 1^st defendant.

63.  I also observe the same name, “Anna Tou”, appearing on the Electricity Bill for House 361 dated 16 July 2003 (Trial Bundle page 214). If this person was the 1^st defendant’s 表嬸 who might only come for the occasional swim etc., why would she use her name to register for the electricity bill for House 361?

64.  I think it more likely, given these evidence, that these families were not related to the 1^st defendant but were the previous occupiers of House 361. The 1^st defendant clearly invented this “表叔, 表嬸 family visits” story in order to try to explain why the Squatter Registration Form in 1985 did not contain the names of him nor his family.

65.  On balance, the evidence rather suggested that the 1^st defendant only came to occupy House 361, if at all, not earlier than 2003, and certainly not from 1982.

Who built House 361?

66.  Further, despite the pleading that House 361 was built by a relative in the Amended Defence, during the trial, the 1^st defendant contradicted himself and claimed that he built it himself.

67.  However, when challenged, he went from “I built it” to “not all the money was my contribution” to “money contributed by 表叔” to “material contributed by 表叔” to “I built the house with some workers”. Of course, he has failed to disclose any documents or receipts (for example the materials, construction work, payments to workers etc.) to support this new case.

68.  Again, one wonders why his two 表叔 who did not live in the house would pay for its construction. When questioned, the 1^st defendant simply claimed that the family always “mix up their money / spending”. In other words, it just happened that he had exceptionally generous relatives.

69.  Further, the photographs produced by the 1^st defendant on House 361 were taken on 12 December 2003. These showed that the house and fence in a rather dilapidated state. Such evidence appears to be consistent with the 1^st defendant only came to occupy the house, if at all, from that time onwards when renovations were done.

Utility bills

70.  For someone who claimed to have lived permanently in a house for almost 40 years, it was remarkable that the 1^st defendant could only disclose one electricity bill (as mentioned in paragraph 63 above, Trial Bundle page 214) which was dated 16 July 2003, and that was not even under his name.

71.  The 1^st defendant claimed that he settled the electricity bill of House 361 by way of Autopay since 2003 (Witness Statement of the 1^st defendant paragraph 9, Trial Bundle page 187) but has failed to produce any documents to support that. That singular electricity bill was addressed to Anna Tou and there was no bank account number on the bill to show any Autopay arrangement.

72.  During cross-examination, the 1^st defendant contradicted himself and admitted that he did not make any utility payments. He then claimed that the family arrangement was that whoever picked up the bill from the letterbox would pay it so it could be his daughter who has been paying. Later, he suggested that payment could be arranged by his daughter’s husband. Again, his explanation was simply that he happened to have generous relatives.

73.  Of course, quite why his daughter (or her husband) would be picking up and paying the utility bills from the village letterbox when there was no suggestion that she was living in House 361 (or anywhere near Dai Long Wan) was never explained.

74.  Further, there was a handwritten note on the electricity bill which stated “deposit paid on 20 March 1981”. However, the 1^st defendant admitted that this was not his handwriting and he had no knowledge of these words. Again, one wonders why he knew so little of the electricity supply when he claimed that he built the house.

The 1^st defendant’s belief that he was occupying government land

75.  This is a minor point but, suffice to say, the 1^st defendant admitted that he overheard a general comment from a government official that “all land in Hong Kong belonged to the government” but this was before House 361 was built and the official did not refer to any specific plot of land. This belief is irrelevant in any case.

Conclusion

76.  In summary, I find that the 1^st defendant’s evidence are mostly mere bare assertions or self-serving and subjective evidence (which are inconsistent and contradictory in many instances).

77.  Such evidence, when taken to the highest, may only point to the 1^st defendant having some involvement with the occupation of House 361 after 2003 but even then, the evidence of factual possession and animus possidendi is far from compelling.

78.  For example, I note that from the letter written by Ms. Chan Chow Kuen (as I translate), the daughter of the 1^st defendant to the Lands Department dated 12 October 2015 (Trial Bundle Page 209), she stated that since House 361 obtained a temporary structure registration in 1982, after 10 or more years, the elders of the family have decided to retire and passed the “license / right to use / occupy” to her. She also appeared to suggest that it was her who renovated House 361 in 2003. There was no mention of the occupation of the 1^st defendant of House 361 at all in the letter.

79.  As such, there is no compelling evidence that the 1^st defendant has factual possession and animus possidendi of House 361 since 1982. The 1^st defendant’s counterclaim must fail and I find for the plaintiff.

Order

80.  I would give the following orders:

a. The 1^st defendant’s counterclaim be dismissed.

b. The 1^st and 3^rd defendants do deliver up vacant possession of the Portion of the Lots within 180 days of this order.

c. There be an injunctive order that the 1^st and 3^rd defendants whether by themselves, their family members or agents or servants or otherwise be restrained from entering or using or occupying the Portion of the Lots.

d. There be an injunctive order that the 1^st and 3^rd defendants do remove and demolish all the structures erected on the Portion of the Lots within 180 days and should the defendants failed to demolish and / or remove the structures erected on the Portion of the Lots within the time stipulated, the plaintiff be at liberty to demolish and / or remove the said structures at the costs and expenses of the defendants to be taxed if not agreed.

e. Mesne profit be calculated from the date of the writ (7 May 2015) to the date of delivery of vacant possession at a yearly rent of HK$6,510. Interest be at half judgment rate from 7 May 2015 to the date of judgment, and thereafter at judgment rate until delivery of vacant possession.

f. Costs of the action be to the plaintiff to be taxed if not agreed, with certificate for counsel.