IO WAI (the trustee of YU HENG LONG also known as ALEX YU) v. LEUNG TAK FAT AND OTHERS

DCMP 1864/2015

[2024] HKDC 283

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1864 OF 2015

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This case has a long history, which involves the estate of Yu Shan Ho (“Deceased”), who passed away on 22 January 1997.

2.  On 16 July 2015, the plaintiff (“Mother”) commenced the present proceedings as the trustee of her son, Yu Heng Long (“Son”) as well as the trustee and the registered owner of the property known as Unit 1, 7^th Floor, President Commercial Centre, 608 Nathan Road, Kowloon, Hong Kong (“Property”) pursuant to a court order.

3.  In the present proceedings, the Mother’s claim against the 2^nd defendant and the 4^th defendant (“Loi”) have been discontinued. What are left to be determined at trial are her claims for vacant possession of the Property and mesne profits against the 1^st defendant (“Leung”) as well as her claim against the 3^rd defendant (“Mui”) for damages allegedly arising from breach of duties as the executrix under the last will (“Will”) of the Deceased. Leung defends and counterclaims for adverse possession of the Property since 11 December 1996.

BACKGROUND

4.  The Deceased became the registered owner of the Property in 1978. Mui and Loi (collectively, “Siblings”) are respectively the daughter and the son of the Deceased and the Deceased’s lawful wife, Madam Ho Lin (“Wife”).

5.  The Son was born to the Mother and the Deceased out of wedlock on 24 January 1989.

6.  By the Will executed by the Deceased on 19 December 1996, the Deceased appointed the Siblings as the executors and trustees of the Will. Clause 5(3) of the Will provides that:

“5. I DIRECT my Trustees to give effect to the following specific legacies all free of estate duty ....

……

(3) To my son YU HENG LONG (于慶龍) also known as ALEX YU who was born in Macau on 24^th January, 1989 of [address stated] with the said YU HING LOI (于慶來) and NG MAN (吳敏) [Hong Kong Identity Card Number and address stated] as joint trustees to vest upon the said YU HENG LONG (于慶龍) attaining the age of 30 years the landed property known as Room 701, Presidential Commercial Centre, 608 Nathan Road, Kowloon, Hong Kong.”

7.  The Son was aged 8 when the Deceased passed away on 22 January 1997.

8.  Mui was not a beneficiary under the Will. She got married with Leung (collectively, “Couple”) on 24 July 2013. The Wife passed away on 15 October 2013.

PROCEDURAL HISTORY

9.  Immediately after the death of the Deceased, the attempts made by the Mother and her former solicitors, Messrs Kwan and Kwan (“K&K”), to locate the Siblings and Ng Man as well as to ask the Siblings for the disclosure of the Will through the Siblings’ former solicitors, Messrs Wong Hui & Co (“WHC”), were in vain.

10.  In 1997, the Mother commenced High Court Action HCCA 452/1997 (“HCCA Action”) against the Siblings (acting by WHC) and obtained an order by consent on 20 March 1998 (“HCCA Order”), in that the Siblings were ordered to deposit the Will with the Probate Registry.

11.  In November 2009, the Son commenced High Court Action HCMP 2390/2009 (“HCMP Action”) against the Siblings and obtained an order from the Honorable Mr Justice To on 10 July 2012 (“HCMP Order”), which ordered, inter alia, that :

(1) the Siblings to provide an account of the dealings of the Siblings or either of them or any other person with the Property and an account as to what income the Property has derived; and

(2) the Mother to be appointed as the trustee of the Property and that an assent be given and conveyance of the legal title to the Property be made and given in the Mother’s favour under and subject to the terms of sections 66 and 70 of the Probate and Administration Ordinance, Cap. 10.

12.  Pursuant to the HCMP Order, the Mother was appointed as the trustee of the Property. She became the registered owner of the Property by virtue of the assent dated 14 October 2014 (“Assent”).

13.  On 16 July 2015, the Mother commenced the present proceedings against the 2^nd defendant for vacant possession of the Property and menses profit by issuing the present Originating Summons under Order 113, the Rules of the District Court, Cap 336H.

14.  Subsequently, Leung applied and was granted leave to join as a defendant to these proceedings. The application was made on the ground of his adverse possession of the Property since January 1997 as detailed in his affirmation dated 17 September 2015 (“Leung’s First Affirmation”). On 14 March 2016, Leung filed his Defence and counterclaim asking for declaratory relief basing on his adverse possession of the Property since 11 December 1996.

15.  On 30 November 2018, the Mother joined the Siblings as co-defendants and claimed against them for various reliefs due to their breach of their executors’ duties under the Will. Her claim against Loi and the 2^nd defendant were discontinued afterwards.

16.  By the Order dated 16 November 2021, the mesne profits of the Property under the Mother’s claim in the present proceedings was agreed at a monthly sum of HK$17,706 from 6 years before the issuance of the present Originating Summons.

JURISDICTIONAL ISSUES

17.  At the trial, this Court raised some concerns over some jurisdictional issues. The Parties confirmed that they took no issue on the Mother’s capacity to sue as trustee for the Son and that the Son was not required to be joined as a party to these proceedings.

18.  The Mother further confirmed that:-

(a) she would discontinue her claim against the 2^nd defendant;

(b) she would confine her claim against Mui to Mui’s breach of duty as an executrix and trustee of the Will in letting Leung occupy and/or trespass to the Property without payment of rent and enabling him to purportedly claim adverse possession. The damages sought are nevertheless limited to a nominal sum of HK$100;

(c) her other claims against Mui, including a prayer for an account for enquiries and income or any matters which connected with the administration of the estate of the Deceased (“Estate”) under paragraph 18(3) of the Re-re-Amended Statement of Claim, were abandoned.

19.  Leung abandoned the relief sought for an order that his name be entered in the register of the Land Registry as the registered owner of the Property in substitution for the name of the Mother.

20.  This court was informed that there had been no grant of probate. Nor had there been any other legal actions in progress for administration of the Estate. The HCMP Action and the HCCA Action (collectively, the “Two Actions”) were concluded respectively upon the grant of the HCMP Order and the HCCA Order (collectively, the “Two Orders”).

MOTHER’S CASE

21.  The Mother’s case can be summarized as follows:-

(i) The Deceased had rented the Property to International Accounting Company Limited (“IACL”) since March 1992. By a written tenancy agreement, which was stamp-dutied on 10 January 1996 (“IACL Tenancy Agreement”), the Deceased renewed his tenancy with IACL at a monthly rent of HK$13,000 for a term of further 2 years, from 11 March 1996 to 10 March 1998.

(ii) From late 1996 to early January 1997, the Deceased visited IACL together with the Mother and the Son twice. In those visits, the Deceased told IACL to pay the monthly rentals to the Mother for the benefit of the Son from then on.

(iii) After the death of the Deceased, the Mother’s attempts in locating the Siblings as well as seeking disclosure of the Will from them were fruitless, ending up with the prosecution of the Two Actions, and hence, the Two Orders.

(iv) The Mother denies Leung’s claim of adverse possession since 11 December 1996. She stresses that he could not have come into possession of the Property under a tenancy agreement allegedly to have been entered into with the Deceased (“Leung’s Alleged Agreement”) for the same tenancy period of the IACL Tenancy Agreement as the Property had all along been occupied by IACL up to 11 April 1997. She challenges the authenticity of the Leung’s Alleged Agreement.

(v) She contends that Leung only subsequently took possession of the Property due to the failure of Mui in properly discharging her duties as executrix, who even facilitated Leung’s possession of the Property. She therefore claims against Mui for damages arising from her breach of duties as executrix of the Will by enabling Leung to take possession of the Property against the interest of the Son and claims against Leung for vacant possession of the Property and mesne profits.

LEUNG’S CASE

22.  Leung’s case can be succinctly stated as follows:-

(i) Through the introduction of a friend, Leung rented the Property, which was vacant by then, from the Deceased. They entered into the Leung’s Alleged Agreement for a term of 2 years from 11 March 1996 to 10 March 1998 at a monthly rent of HK$13,000. The said agreement was dated 8 March 1996 and stamp-dutied on 11 March 1996. Since then, Leung had run a movie video rental and export business thereat.

(ii) On 11 December 1996, the Deceased ceased to attend the Property for collection of rent. Leung then decided to take adverse possession of the Property and changed the door locks of it. He continued to operate the video business thereat until 1999.

(iii) Since 2001, Leung had rented the Property out for rent from time to time:

(a) to a Mr Lee at a monthly rental of HK$8,200 from 15 December 2001 to 14 June 2014;

(b) to a Mr Cheuk at a monthly rental of HK$13,000 since 1 April 2015 for a term of 4 years, which was further renewed thereafter.

(iv) Leung had been making payments for the management fees, government rates and rents, electricity bills as well as some non-recurring expenses as required by the relevant authorities (as building improvement funds and safety construction works) relating to the Property since December 1996.

23.  On such basis, Leung contends that the Mother’s right to recover the Property for the Son was time-barred and he had acquired possessory title of the Property by way of adverse possession since 11 December 1996 pursuant to sections 7(2), 8(1) and 17 of the Limitation Ordinance, Cap 347. He therefore counterclaims for declaratory relief to such effect.

MUI’S CASE

24.  Mui denies all allegations of her breach of duty because of her refusal to accept the executorship under the Will and her express renouncement of executorship in May 1999. She says that she had migrated to Canada in 1986. Since then, she had only come back to Hong Kong in a few occasions. One of which was in 1996, when she accompanied the Deceased to collect rent from Leung at the Property. She then did not get to know Leung personally. She continued to live in Canada even after her divorce, until she returned to Hong Kong in 2005. Since then, she has been living in Hong Kong until now.

25.  In 1997, Mui only learned about her executorship under the Will when she returned to Canada after the Deceased’s funeral. She told the Wife that she was unwilling to take up the executorship and was assured that the Wife would take care of the matter. On 6 May 1999, she renounced her executorship under the Will in writing, which was communicated to the Mother by two letters respectively dated 6 May 1999 and 28 September 2011 (“28 September Letter”).

26.  It is the Couple’s common case that they encountered each other at a monastery in Hong Kong in 2005. It was by then that they recalled their first encounter in 1996, when Mui accompanied the Deceased to collect rent from Leung at the Property. Subsequently, they developed a romantic relationship and eventually got married in 2013.

THE LIMITATION ORDINANCE

27.  The following provisions of the Limitation Ordinance are relevant to the present case:

(a) Section 7: Limitation of actions to recover land

“(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

(b) Section 8: Accrual of right of action in case of present interests in land

“(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

(c) Section 9: Accrual of right of action in case of future interests

“(2) If the person entitled to the preceding estate or interest, not being a term of years absolute, was not in possession of the land on the date of the determination thereof, no action shall be brought by the person entitled to the succeeding estate or interest after the expiration of 12 years from the date on which the right of action accrued to the person entitled to the preceding estate or interest, or 6 years from the date on which the right of action accrued to the person entitled to the succeeding estate or interest, whichever period last expires……”

(d) Section 9: Accrual of right of action in case of future interests

“(3) No person shall bring an action to recover any estate or interest in land under an assurance taking effect after the right of action to recover the land had accrued to the person by whom the assurance was made or some person through whom he claimed or some person entitled to a preceding estate or interest, unless the action is brought within the period during which the person by whom the assurance was made could have brought such an action.”

(e) Section 10: Provisions in case of land held on trust

“(2) Where any land is held upon trust, including a trust for sale, and the period prescribed by this Ordinance has expired for the bringing of an action to recover the land by the trustees, the estate of the trustees shall not be extinguished if and so long as the right of action to recover the land of any person entitled to a beneficial interest in the land or in the proceeds of sale either has not accrued or has not been barred by this Ordinance, but if and when every such right of action has been so barred, the estate of the trustee shall be extinguished.”

(f) Section 12: Accrual of right of action in case of certain tenancies

“(2) A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Ordinance, be deemed to be determined at the expiration of the first year or other period, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of such determination: Provided that, where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent.”

(g) Section 13: Right of action not to accrue or continue unless there is adverse possession

“(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

(h) Section 17: Extinction of title after expiration of period

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

LEGAL PRINCIPLES ON ADVERSE POSSESSION

28.  The legal principles relating to adverse possession is set out in Powell v McFarlane and Another (1977) 38 P&CR 452, at 470-471:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.”

“the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.”

29.  Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight: Wong Tak Yue v Kung Kwok Wai David & Anor [1998] 1 HKLRD 241

OFFICE OF AN EXECUTOR

30.  Section 29 of Probate and Administration Ordinance, Cap 10 provides any person who is or may become entitled to representation may expressly renounce his right to such representation. Such renunciation may be made orally on the hearing of any petition or probate action by the person renouncing or by counsel on his behalf, or in writing signed by the person so renouncing and attested by a solicitor or by any person before whom an affidavit may be sworn.

31.  According to Williams, Mortimer and Sunnucks on Executors, Administrators and Probate 31^st Ed.:

(a) The person nominated as executor is free to decide whether or not to accept the office of executor, so long as he has not intermeddled: §6-32

(b) Though an executor can elect whether to accept or refuse the executorship, he ceases to be entitled to elect if he carries out acts which amount to an administration: §6-34

CREDIBILITY OF WITNESSES

32.  The test for assessing the credibility of witnesses has been succinctly set out in Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §53. In gist, the Court should take into considerations the following matters:

(1) Whether the party’s case is inherently plausible or implausible.

(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.

(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.

(4) The demeanour of the witnesses.

33.  Factors relevant to the evaluation of a witness’s evidence also include evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleading, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence and selective disclosure: New Century Credit Services Co Ltd v Yeung Hung [2020] HKCFI 2651 at §52.

ADVERSE POSSESSION

34.  For Leung to succeed his claim for adverse possession of the Property, he bears the burden of proof of his pleaded case that he had adversely possessed the Property since 11 December 1996. He relies on the Leung’s Alleged Agreement to contend that he had taken possession of the Property since 11 March 1996. He determined to take adverse possession of it upon the Deceased’s cessation of collecting rent from him on 11 December 1996. He contends that his adverse possession started to run against the Deceased during the Deceased’s lifetime since then.

35.  He argues that despite the Will was executed on 19 December 1996, it would not take effect until the death of the Deceased. As such, the subsequent creation of the trust interest of the Property for the Son under the Will, that took effect only upon the death of the Deceased on 22 January 1997, would not stop the limitation time to run from 11 December 1996. Therefore, the right of action to recover the Property should have been barred 12 years thereafter.

36.  Leung seeks support from the well-established rule that once the statutory time begins to run, it continues to run unless the true owner commences an action to recover the disputed land or takes possession physically: Adverse Possession, 2^nd Edition, Stephen Jourdan QC & Oliver Radley-Gardner §15-03.

SECTIONS 12(2) AND SECTION 9(3) LIMITATION ORDINANCE

37.  At the start of the trial, much reliance has been placed on sections 12(2) and 9(3) of the Limitation Ordinance to argue for Leung that:-

(a) by operation of section 12(2), Leung’s Alleged Agreement, being a periodic tenancy without a lease in writing, had been terminated by non-payment of rent on 11 December 1996, and accordingly, the right of action should be deemed to have accrued on the date of the determination on 11 December 1996.

(b) under section 9(3), once time has started to run, no subsequent conveyance, lease or other assurances of the land by the true owner will stop time from running. Hence, as the statutory time started to run on 11 December 1996, the Will, which only took effect upon the death of the Deceased on 22 January 1997, could not stop the time from running.

(c) It is for the squatter to prove that the adverse possession started before the settlement: Jourdan’s Adverse Possession §30-13.

38.  During trial, Ms Leung, Counsel for the Couple, sensibly conceded that sections 12(2) and 9(3) do not apply to the present case and the two arguments aforesaid would not be further pursued. That said, some attempts in her written closing submissions have unexpectedly been made to retract the concessions, which, understandably, attracted immediate objection by Mr Ng, Counsel for the Mother.

39.  I share the view with Mr Ng that both sections do not apply to this case. Section 12(2) only applies to a periodic tenancy without a lease in writing, and Ms Leung’s argument that the Leung’s Alleged Agreement was a periodic tenancy without lease in writing is bound to fail for the following reasons:-

(1) The Leung’s Alleged Agreement was pleaded as a duly executed written 2-year fixed term tenancy agreement in the defence. Leung is not entitled to run an unpleaded case at closing.

(2) It is Leung’s own evidence that the Leung’s Alleged Agreement was a properly executed and stamp-dutied written 2-year fixed term tenancy agreement. It was in the commonly used standard printed form, which contained all the essential terms of the tenancy. It was said to be signed by Leung and endorsed by the Deceased with his name chop.

(3) Ms Leung’s argument that legal estate in land can only be created or disposed of by deed and accordingly, the Leung’s Alleged Agreement was not a lease in writing is misconceived. Such argument ignores the exception provided in section 4(2)(d) of the Conveyancing and Property Ordinance, Cap 219, which provides that a lease for a term not exceeding 3 years needs not be created by way of deed.

40.  In the premises, Ms Leung’s argument that the Leung’s Alleged Agreement was just a written document referable to the existence of a lease without passing an estate in land is unmeritorious. I am not convinced that it was a periodic tenancy without a lease in writing which had been terminated by non-payment of rent on 11 December 1996.

41.  Instead, if the Leung’s Alleged Agreement was truly consented by the Deceased, it should be regarded as a fixed term tenancy and the landlord’s right to possession only accrued when the lease ended upon its expiry on 11 March 1998. Non-payment of rent by a tenant does not ordinarily cause time to run against the landlord. The landlord’s right to possession only accrued when the lease came into an end: Jourdan’s Adverse Possession §24-17, §15-10.

42.  Viewed in this light, Ms Leung’s reliance on section 9(3) is also misplaced. The section operates only when the “assurance” takes effect after, but not before the right of action to recover the land has accrued. Given Leung’s pleaded case is that he took possession of the Property pursuant to the Leung’s Alleged Agreement, time would not run against the Deceased until the determination of the tenancy agreement upon expiry on 10 March 1998. Non-payment of rent gave no impact on this. Hence, the creation of the trust of the Property on 22 January 1997 was before Leung’s alleged adverse possession. There is no room for the operation of section 9(3).

43.  After all, Ms Leung eventually accepted that the Will is not caught by section 9(3). According to the Hong Kong Legal Dictionary, the definition of “assurance” is “a conveyance or other instrument by which an estate in land is disposed of otherwise than by will.” Thus, the Will is not an “assurance” within the meaning of section 9(3). Coupled with the fact that the phrase “the person by whom the assurance was made” appears twice in the section, which can only mean the person who made the assurance. Neither the deceased nor any person could be the person who made an assurance. Hence, section 9(3) has no role to play in the present action.

44.  Thus analyzed, neither section 9(3) nor section 12(2) applies. Time for adverse possession by Leung could not have run from 11 December 1996 or before 11 March 1998. By making the Will on 19 December 1996, which took effect upon the death of the Deceased on 22 January 1997, the Deceased put the Property into settlement long before the expiration of the Leung’s Alleged Agreement on 11 March 1998. Hence, Leung could not have adversely possessed the Property before the creation of the trust of the Property.

SECTIONS 9(2) AND 10(2) LIMITATION ORDINANCE

45.  On the other hand, by operation of section 10(2) of the Limitation Ordinance, the trustee’s estate will not be extinguished if and so long as the right of any person entitled to a beneficial interest in the land has not accrued or has not been barred by the Limitation Ordinance. It is modeled on section 7 of the Limitation Act 1939 UK, which was reinstated in section 18(3) of the Limitation Act 1980 UK. It has the effect of statutorily stopping the limitation clock running until accrual of the beneficiary interest.

46.  Section 9(2) of the Limitation Ordinance provides that time does not run against an owner of a future interest until the interest falls into possession. A beneficiary entitled to the succeeding estate by virtue of a will have 6 years from the date the right of action accrued to him to bring action.

47.  Future interests in land are “interests which confer a right to the enjoyment of the land at a future time, such as a right to land by way of remainder after the death of a person. Either any future interest may be vested or contingent and vested interest may be “vested in interest” or “vested in possession”. An interest is vested in possession when it gives the right of present enjoyment. It is not then a future interest. If it is vested in interest but not in possession, it is a “future interest”, since the right of enjoyment is postponed. By contrast with a vested interest, a contingent interest is one which will give no right at all or until some future event happens. Megarry & Wade’s The Law of Real Property 8^th Ed, §9-001.

48.  A contingent future interest is a future interest dependent on a future contingency, which is uncertain. A trust of a sum of money to pay that sum to an infant beneficiary upon his attaining the age of 18 years was regarded as a contingent interest, which would vest upon him attaining the age of 18: Shaon Lal Hiranand & Others v Palma Hari Harilela & Another HCA 2401/2004 unrep, 4 November 2005.

49.  “Where a beneficiary is entitled to a future interest under the trust created before the squatter took adverse possession, this right of action against the squatter under the Limitation Act 1980 is generally not treated as accruing while it falls into provision”: Jourdan’s Adverse Possession §30-1.

50.  In my view, Clause 5(3) of the Will provides the Son with only a contingent future interest in the Property, which would fall into possession only when he attained the age of 30. Before the age of 30, he had no present right to take possession of the Property but only the right to require the executors or the trustees to vest upon him and deliver possession of the Property to him at the age of 30. It is a contingent interest in the sense that if he unfortunately dies before the age of 30, he would have no interest in the Property.

51.  The Siblings, through the letter of WHC dated 22 June 1998, admitted the Son’s beneficial interest in the Property, in that it was stated that the Mother was the trustee for the Son, who was the beneficiary named in the Will for the Property. Such written admission constitutes a declaration against interest by Mui.

52.  In the premises, the statutory time did not start to run until the right of action of the Son had been barred or until his right had fallen into possession. The Son was only 26 years old at the time the present action was commenced on 16 July 2015. Accordingly, his right of action to recover the Property has not accrued or has not been barred. Leung’s claim for adverse possession is bound to fail. The counterclaim should be dismissed.

LEUNG’S ALLEGED AGREEMENT

53.  To complete the picture, I should also consider how Leung had come into possession of the Property.

54.  Leung’s case rests heavily on the Leung’s Alleged Agreement. It is in a commonly used standard printed form with Leung and the Deceased respectively hand-written as the tenant and the landlord. It bears some red stamps purportedly to be stamp-dutied on 11 March 1996. There is no signature of the Deceased thereon but only a chop image of his Chinese name. The Mother challenges the authenticity of such agreement.

55.  Leung’s account of the event leading to the creation of the Leung’s Alleged Agreement is riddled with contradictions. His evidence in his affirmations and witness statements (collectively, “Written Statements”) severely conflicts with his evidence in court.

56.  In the Written Statements, Leung stated that a friend, who worked as a security guard but whose name he did not know, referred the Property to him. In court, Leung said that he had tried to rent a property on 8 March 1996 and by chance, bumped into a stranger who sat at a table next to him in a café. The man was called “Ah Ming”, who was a security guard of the building where the Property located. That man referred the Property to Leung, which was vacant by then.

57.  Upon enquiry as to the discrepancy, Leung said that he just happened to remember all those details about their encounter and the name of that man a few days before the trial. Such explanations are too much of a coincidence to be realistically credible.

58.  In court, Leung gave various different versions of the circumstances under which he met the Deceased, the dealings between them leading to the creation of the Leung’s Alleged Agreement. In particular, the number of the meetups between the Deceased and Leung changed from one to two, then, to three. The date of their dealings varied from one single day on 8 March 1996 to that day and the day before. Leung also gave different versions of what actually happened during their meetups and the sequence of those events in court.

59.  When asked for his explanations for such inconsistencies, Leung again resorted to his sudden recollection of all those details a few days before the trial. Such explanations are against commonsense that he would have dramatically been able to remember so many details, which he had forgotten for 8 years.

60.  Given a tenancy agreement carries legal effect which is binding on the parties to it, Leung had no valid reason not to include all the essential terms he had bargained with the Deceased in the Leung’s Alleged Agreement, in particular, the Deceased’s receipt of Leung’s cash payments of the first month rental of HK$13,000 plus deposit of HK$26,000. Such record was important which would form the sole basis for the refund of the deposit to him upon termination of the tenancy agreement in future.

61.  Similarly, Leung could not justify as to why the Deceased’s commitment to repair the air-conditioning system, which Leung regarded as a pre-requisite for his taking of the tenancy necessitating his two further meetups with the Deceased for such arrangement, was not documented in the tenancy agreement or mentioned in his Written Statements.

62.  Leung emphasized that an estate agent was engaged to prepare the Leung’s Alleged Agreement, witness the endorsement of the written agreement and process the stamp-duty procedure. However, he could not tell the name of the said estate agent or the company name of the estate agency even though he said he had attended their office for more than once.

63.  Unusually, there is no trace of involvement of an estate agent in the Leung’s Alleged Agreement. Neither the name of the alleged agent nor the company name of the estate agency was mentioned in the agreement. No signature or company chop of the alleged agent or agency appeared on the agreement. Leung’s explanation that it was because the agreement was not negotiated with the assistance of the estate agent is unconvincing. It is his evidence that the estate agent was entrusted with and actually provided agent service by completing all the formalities of the tenancy agreement at a service fee paid by Leung and the Deceased.

64.  Further, the Leung’s Alleged Agreement merely bears a chop image of the Chinese name of the Deceased without his signature or initial. There is indeed no solid evidence to prove that that the said chop image was placed by the Deceased or endorsed by him other than Leung’s bare assertions. Furthermore, it is highly unlikely that the Deceased and Leung, being a complete stranger to each other, would have the tenancy agreement concluded by the landlord merely putting a name chop on it without signature or initial, and, without the agent signing thereon as witness.

65.  More significantly, Leung’s evidence on how the said chop image was placed on the agreement was self-contradictory. In his Written Statements, he indicated that the Deceased stamped the name chop onto the Leung’s Alleged Agreement before him. He however changed his evidence in court that when the Leung’s Alleged Agreement was shown to him by the estate agent, the Deceased’s name chop had already been stamped thereon.

66.  In reply to the Mother’s challenge that the name chop was not used by the Deceased or stamped by him onto the Leung’s Alleged Agreement, the Couple could not meet the challenge with valid justification or corroborative evidence. They only complained the Mother to have changed her evidence from alleging that the Deceased did not use any name chop in her witness statement to that he did not use name chop in Hong Kong but in Taiwan. I am not impressed. It is difficult to see how she has changed her evidence as she has all along said that the Deceased had not stamped the name chop on the Leung’s Alleged Agreement, as he did not use it. Her evidence in court was just to be more precise.

67.  In light of the matters set out above, the purported stamp-duty stamp image does not assist Leung’s case. The Couple adduced no other evidence for proof of the said stamp was secured from the relevant authority. Leung only said that his alleged estate agent had arranged the stamp duty procedure. He was not personally involved in the procedure. Nor could he produce any receipts for proof of his payments for the estate agent fees, deposits or rental payments to the Deceased.

68.  Solely on the matters aforesaid, it is clear to me that Leung’s evidence regarding the Leung’s Alleged Agreement is wholly untrue. I do not accept that the Deceased had ever entered into the tenancy agreement with Leung. Nor do I believe that the Deceased had ever consented to the Leung’s Alleged Agreement or endorsed it with his name chop. The alleged involvement of “Ah Ming” and the estate agent had unlikely happened. Leung failed to discharge his burden of proof. I should add that even if the Leung’s Alleged Agreement was stamp-dutied by the relevant authority, I do not believe that was arranged by the Deceased or with his consent. I am not convinced that he was a contractual party to the agreement.

LEUNG’S INTENTION TO POSSESS

Last Payment of Rent

69.  Leung’s evidence relating to the circumstances, which gave rise to his intention to possess, is also unbelievable. He gave contradictory evidence in this matter. In Leung’s First Affirmation, Leung stressed that the Deceased had failed to attend the Property to collect rent from him since January 1997, and, since then, he had decided to take adverse possession of the Property exclusively to exclude the world at large, including, the Deceased, and he had changed all the door locks of the Property.

70.  Dramatically, Leung changed to allege that his last payment of rent was made on 11 November 1996 and the Deceased failed to collect rent from him since 11 December 1996. No reasonable explanation for such drastic change of position was offered other than saying that he had thought the matter through after the filing of the Leung’s First Affirmation.

71.  In court, Leung suddenly said that he happened to remember he changed the door locks on 2 or 3 January 1997. Under cross-examination, he gave various reasons for his change of the locks. He said that he changed them because they were old and not functioned well for he had not changed them when he rented the Property. He also said that he changed them for fear that the Deceased, his men or some other persons would break in to steal his properties.

72.  In my observation, Leung’s evidence is untrue. First, he should not have made such fundamental mistake on the date of the Deceased’s cessation of collection of rent and his determination of adverse possession in his first affirmation. In particular, such affirmation was made in support of his application for joining in to claim for adverse possession and he has been legally represented throughout the proceedings.

73.  Second, Leung could not reasonably explain why his first affirmation, which was closer in time to the event in question, would be wrong; whereas his pleadings and Written Statements, which was further in time to the event in issue, would be more accurate. Given he had determined to claim adverse possession of the Property right from the very beginning, he had no reason not to keep record of such important date or evidence to support his claim, which he had contemplated at the start.

74.  Third, it is indeed an affront to commonsense that a tenant would have determined to take adverse possession of the rented property immediately upon the landlord failing to collect rent for the first time. When asked to clarify why he would have come to such determination, he could not give any sensible answer other than saying he was greedy.

75.  Fourth, when offered an opportunity to clarify what he planned to do if the Deceased later showed up for the rent, he gave evasive answer and said that he would discuss with the Deceased about the payment of rent by then, which apparently shows that he did not have actual intention to adversely possess. Such answer echoed his pleaded case in §19 of the Defence, in that Leung expressed his willingness to pay rent to the Deceased or nominees if they asked for it even after 11 December 1996.

76.  Fifth, it defies commonsense that Leung would have thought of claiming adverse possession against his landlord by changing the door locks of the rented property under a valid tenancy agreement, bearing in mind that the change of the door locks would not save him from his contractual duty to pay rents to the landlord whenever the landlord approached him for rents as well as to return the Property to the landlord upon the expiry of the tenancy.

77.  Sixth, Leung’s new evidence in court that he happened to remember that he changed the door locks on the second or third day of January 1997 is too much of a coincidence to believe. I am slow to accept that he would have better memory than the time he prepared his first affirmation 8 years ago. Besides, his evidence on his change of the door locks is devoid of logic. He elected not to change the locks after taking the Property under the Leung’s Alleged Agreement for nine months. He failed to explain why he would suddenly be afraid that the Deceased or someone would break in to steal. After all, such reasons for change of the door locks plainly do not support an intention to take adverse possession of the Property.

78.  Looking at all the matters in the round, I do not believe that he had ever rented the Property from the Deceased. The Leung’s Alleged Agreement was not executed by the Deceased or with his consent. I am not persuaded that Leung had the intention to take adverse possession of the Property on 11 December 1996 or that he had changed the door locks.

VIDEO BUSINESS

79.  It is Leung’s allegation that he occupied the Property by operating a video rental and export business thereat from March 1996 to 1999. He however failed to adduce any slightest evidence in support of his allegation other than bare assertions. No documentary evidence was produced. He could not even tell what the name of his business was. He had never registered his alleged business or filed any tax return or company record with the relevant governmental authorities notwithstanding that his alleged business involved considerable local and export transactions for several years to the extent that he had to rent the Property for its operation.

80.  Leung’s explanation for not keeping any documents relating to his alleged business was that legal proceedings were out of his contemplation. Such explanation runs counter to his alleged determination of seeking adverse possession of the Property and taking a series of acts in order to avoid the Deceased from repossession of the Property since 11 December 1996.

TENANCY AGREEMENT WITH IACL

81.  On the other hand, I accept the Mother’s case that the Deceased leased the Property to IACL, which occupied the Property from 11 March 1996 to 10 March 1998 for the following reasons.

82.  First, the Mother has produced a copy of the IACL Tenancy Agreement as proof. Despite only one-page of an incomplete copy of the agreement was produced (“Agreement Copy”), the Couple did not challenge its authenticity. It was in commonly used standard printed form with hand-written particulars of the contractual parties and the premises.

83.  The Mother gave a logical explanation as to why she only retained an incomplete copy. She explained that by the time the Deceased (of senior age) made the Agreement Copy for her, he did not know how to operate the copying machine. As the agreement was in a size larger than A4 size, which the copying machine could print, the Deceased did not know how to adjust the copying machine and accordingly, only an incomplete copy of the agreement was printed for her. They accepted the copy as the essential particulars of the agreement were shown thereon. It shown that the Deceased had leased the Property to IACL at a monthly rent of HK$13,000 from 11 March 1996 to 10 March 1998.

84.  Second, the IACL Tenancy Agreement sits well with the public records. According to the records kept at the Company Registry and the Business Registration Office of the Inland Revenue Department, IACL was a company incorporated in Hong Kong. Its registered office and business address was recorded as the Property from April 1992 to 11 April 1997. It only changed its registered office on 12 April 1997. I have no reason not to believe such contemporaneous public records have documented the truth and the reality that IACL had run its business in the Property up to 11 April 1997.

85.  Third, Mui confessed under cross-examination that she actually knew that the Deceased had leased the Property to IACL as her mother had told her about that and she had actually accompanied her mother to collect rents from IACL.

86.  Fourth, the Mother has satisfactorily answered Leung’s challenge as to why the IACL Tenancy Agreement would have been stamp-dutied on 10 January 1996, prior to the commencement of the tenancy on 11 March 1996. Her explanation that the IACL Tenancy Agreement was just a renewal of the existing tenancy is in line with the public records that the Property was the registered office of IACL from April 1992 to 11 April 1997.

87.  Fifth, the Mother also produced a name card of IACL and a written acknowledgement of the change of rental payment arrangement dated 6 January 1997, which contained a signature under the “authorized signature stamp” of IACL, to prove that the Deceased had brought the Mother and the Son to IACL twice to ask IACL to pay rents to the Mother for the benefit of the Son from then on. As the written acknowledgement was given to the Mother to confirm IACL’s consent to such payment arrangement, it is understandable that the Deceased and the Mother would not have signed on it.

88.  Sixth, I also accept the Mother’s explanation in reply to Leung’s challenge that she had not attended the Property to demand rent from IACL after the death of the Deceased because she had left it to her solicitors to handle for her. Her allegation is evidenced by a letter of K&K to WHC dated 26 February 1997, which also mentioned the Mother had attended WHC on 29 January 1997. Given the Mother’s requests for disclosure of the Will from the Siblings failed and her engagement of solicitors to follow up the matters relating to the Estate for her, she was understandably to have entrusted the solicitors with the matter.

LEUNG’S OTHER ALLEGATIONS

89.  I do not lose sight of the fact that Leung has put up another allegation, which is opposite to his previously mentioned complaint of the Mother’s failure to attend the Property for rent. He alleged that the Mother had attended the Property to demand rental payment from him on 28 January 1997, which ended up with chaos and the summons of the police. He however was unable to produce any corroborative evidence in support of his bare assertion.

90.  Further, if the Mother did visit the Property on 28 January 1997 as alleged by Leung, she should not have silent on it in her subsequent negotiations with the Siblings through WHC, in her attendance at the office of WHC on 29 January 1997 and the subsequent exchange of correspondences through solicitors on 26 February 1997. She should have put Mui on notice of Leung’s trespass of the Property or even pressed for remedial action or legal action.

91.  Likewise, I also find Leung’s another allegation that he had rejected Loi’s demand for rent on 14 February 1997 a self-serving allegation that is unbelievable. It conflicts with §19 of the Defence, in that Leung “verily believed that unless he received a clear demand or instruction from the Deceased, the payable rent should be merely paid to and claimed by Deceased personally.”. Given Loi was the named executor of the Will, Leung should not have strictly rejected Loi’s request without further investigation or valid justification. It is noteworthy that §19 of the Defence signifies Leung’s willingness to pay rent to the Deceased or his nominees even after 11 December 1996, which disproved his intention to take adverse possession.

92.  Viewed in this light, the Mother’s allegation that Loi had attended the Property and asked Leung to deliver vacant possession of the Property to him in February 1997 is also unconvincing. She indeed had no personal involvement in the incidence. Such allegation is purely hearsay without solid evidence in support. Likewise, her allegation that IACL was forced to leave the Property by Mui is another hearsay, which could not attach much weight. I nevertheless do not find her to be a dishonest witness bearing in mind the uncooperative attitudes of the Couple. She is understandably to have investigated the matter through other third parties.

93.  Thus analyzed, I find that the Deceased had entered into the IACL Tenancy Agreement with IACL instead of the Leung’s Alleged Agreement. From 11 March 1996 to 11 April 1997, it was IACL, which took possession and occupied the Property but not Leung. Leung’s allegation that the Property was vacant and available for lease ending up with the Leung’s Alleged Agreement must be false.

TENANCY AGREEMENTS

94.  Leung produced two written tenancy agreements as proof of his control and possession of the Property through his tenants’ occupation, one dated 16 November 2001 for the tenancy period from 15 December 2001 to 14 December 2003, which was further extended to 2014, and the other dated 15 June 2014, for the tenancy period from 1 April 2015 to 31 March 2019.

PAYMENTS BY LEUNG

95.  Leung also says that he had made all the payments relating to the Property since January 1997, including, management fees, Government rates and rents, electricity bills and non-recurrent expenses as building improvement funds, fire service installation services, etc. That said, he could not produce any documentary proof of such payments before 2000. Further, he could not justify as to why since or about 2004, he started to change the correspondence address for payment arrangements relating to the Property to Letter Box 38, Long Ha Village, Pok Wai, Yuen Long (“Letter Box 38”) but without identifying himself as the owner of the Property.

96.  First, according to the Letters of Payment/ Receipt Advice of the Management Fees, the management company of the Property, Jones Lang Lasalle (“Management Company”), made a clear distinction between the “Owner” of the Property and “Mr Leung”. When the payment advices were arranged to be sent to Letter Box 38 after 1 March 2009, they were addressed to “Mr Leung” instead of “the owner” according to its standard practice.

97.  On this matter, Leung admitted under cross-examination that he had never informed the Management Company that he was the owner of the Property. Subsequently, he tried to justify his inaction by alleging that it was because the Management Company had told him that it would be inconvenient to state “the owner” as addressee on the mails sent to the Letter Box 38. His change of evidence is unjustified with valid reason.

98.  After all, a letter issued by the solicitors acting for the Management Company to the Mother’s then solicitors dated 21 April 2015 disproves Leung’s allegation. The said letter illustrates that Leung had all along been just acting as the contact person for the owner of the Property instead of representing himself as the owner. The said letter declared, “the staff of our client [the Management Company] told your client [the Mother] that the said Mr. Leung was the contact person for the owner of the Premises [Property]”. Given the Management Company, being a neutral third party to the present proceedings, which cautiously instructed the solicitors to reply to the enquiries of the Mother’s solicitors, it had no reason not to tell the truth.

99.  Besides, although the mailing address of the demand notes for rent was changed to Letter Box 38 in or around 2006, the addressee and the “rent payer” remained unchanged to be the Deceased. Likewise, the demand notes for rates (issued in 2009) were sent to Letter Box 38, but the addressee was still named as “owner/ occupier”.

100.  The fact is Leung chose not to make amendment on all such official documents throughout the years despite the Lands Department had the practice of reminding the recipients to update their particulars with the amendment procedure provided in some of the mails. Leung’s explanation that he could not change the addressee with the Lands Department due to the lack of the Deceased’s death certificate was not mentioned in his witness statements.

101.  At any rate, such explanation is unconvincing bearing in mind his wife, being the natural daughter of the Deceased and the executrix for the Estate, could easily provide him with the required documents. Further, according to Leung’s own case, he could have sought a possessory title to assert his ownership as early as in 2008. All such facts demonstrate Leung’s lack of intention to adversely possess the Property as his own property.

THE RELATIONSHIP BETWEEN LEUNG AND MUI

102.  I should now deal with the complaint about the Couple’s attempts to conceal their relationship.

FIRST ENCOUNTER

103.  It is the Couple’s case that they first met when Mui accompanied the Deceased to collect rent from Leung at the Property in 1996. It was on that occasion that Mui first learned about the Property and the Deceased’s ownership of it. The Couple had no further contact with each other since then until they met again in a monastery in 2005. By that time, Leung was a widower and Mui was a divorcee. They then recalled their initial encounter in 1996. Thereafter, they had developed a romantic relationship and eventually got married in 2013.

104.  Such allegations are entirely undermined by Mui’s confessions under cross-examination. She admitted that she actually knew the Deceased had purchased the Property when she helped the Deceased in his business, which was operated at the Property, between 1978 and 1983. Her admissions in court wholly defeated her evidence in her witness statement. She also confessed that her witness statement was untrue.

105.  Contrary to the evidence in the Couple’s respective witness statements, Mui further admitted under cross-examination, that:-

(a) she had all along been living in Hong Kong after the death of the Deceased and would only went to Canada for special occasions.

(b) she worked and lived at Mei Foo Sun Chuen continuously for at least 3 months after the death of the Deceased.

(c) she was also in Hong Kong in April 1997, at the time when the letter from K&K dated 23 February 1997 was sent to her, and when the letter issued by the Building Department in December 2000 (“BD Letter”) was sent to the Deceased at his residential address (before death) at Flat C, 12^th Floor, 40 Nassau Street, Mei Foo Sun Chun, Kowloon, Hong Kong (“Mei Foo Address”).

106.  Mui’s admissions flatly contradicted the Couple’s evidence that after the funeral of the Deceased, she returned to live in Canada and was not involved in any matters in Hong Kong. Their allegations that she only returned to Hong Kong from Canada and met Leung in 2005 is strictly untrue.

107.  Under cross-examination, Mui further confessed that she had knowledge about the correspondences between K&K and WHC since the death of the Deceased (in that the Mother asked for the disclosure of the Will and some information about the Estate). WHC acted for her and Loi in dealing with the Mother regarding the Will and the Estate by that time. She knew that she was one of the executors of the Will. The letters respectively dated 27 February 1997 and 10 April 1997 were passed to her and Loi for instructions. They nevertheless chose not to reply to them. From 26 February 1997 to the date of the HCCA Order, she did not disclose a copy of the Will to the Mother.

108.  Thus considered, I accept Mr Ng’s submission that the Couple made up false allegations with the intention to cover up their close relationship, which had developed probably at the death of the Deceased. Such evidence lends considerable weight to the Mother’s case that Leung had subsequently taken possession of the Property against the Son’s interest with the assistance or licence of Mui.

COHABITATION

109.  I also accept the Mother’s complaints that the Couple had deliberately concealed their marriage and their residential addresses in their affirmations and witness statements until being challenged. Leung has not disclosed his marriage with Mui or their marriage certificate in his 3 affirmations filed before June 2016. They did not set out their residential address in their written evidence until being challenged.

110.  When asked for an explanation for their silence on such matters, the Couple were evasive. Both of them kept repeating the questions being asked, giving tangential speeches avoiding the questions, and even argumentative answers. Their answers were self-contradictory and illogical. Mui even said that she forgot where she lived in the past.

MARRIAGE CERTIFICATE

111.  According to the parties’ documents filed in these proceedings, it is beyond dispute that it was only after the Mother disclosed the marriage certificate of the Couple on 28 March 2018, Leung then admitted that he was married to Mui in 2013. His allegation in court that he had disclosed the marriage certificate is unarguably untrue. Under cross-examination, he also changed his evidence that their cohabitation indeed commenced in 2008 instead of 2011.

THE PARENTS

112.  I share the view with Mr Ng that the Couples had deliberately chosen not to state their parents’ names in the marriage certificate. Such deliberations are apparently calculated to conceal their relationships and their whereabouts. The Couple’s explanation on this is self-contradictory.

113.  Under cross-examination, Leung admitted that the marriage certificate is an important legal document, which should contain true and accurate information. That said, Leung, in the marriage certificate, did not identify himself as a widower as he did in these proceedings. Instead, he mysteriously declared himself as a bachelor, which is directly contradicted to his another marriage certificate he produced to certify that he had lawfully got married with another woman in the mainland in or around 1997. He gave no valid reason to justify this serious mistake.

114.  Further, the Couple chose not to disclose the names of their parents therein. Leung blamed the officer of the Marriage Registry to have left the boxes for the names of their parents blank when being told that the parents had passed away. He also said that the officer had indicated that the names of deceased parents need not be stated in the marriage certificate. When pressed on, he further complained the officer to have left the boxes blank in the officer’s own way and Leung did not virtually know the reasons for it.

115.  Leung’s assertion does not fit in with the fact that the Wife was still alive by then. When challenged about this, he gave an evasive answer that he did not know what happened to Mui because he was far away from her by then. Such answer could hardly be true as they were filing the Form entitled “Information Required for Registration of Marriage” (“Form”) as required by the Immigration Department with the assistance of the officer during the registration interview. It is impossible that the officer would have filled in the Form in his own way without the instruction or consent of the Couple. The death of the parents could not be the reason for leaving the boxes blank. It is obviously the deliberate decision of the Couples to conceal the names of their parents.

TA KWU LING ADDRESS

116.  Likewise, the Couple offered no persuasive explanations as to why their marriage certificate would have contained an incomplete address, “Ta Kwu Ling, Fanling, NT” (“Ta Kwu Ling Address”). When asked for his full residential address at the time of marriage, Leung alleged for the first time in witness box that it was at “43E(1), Wo Keng Shan Tsuen, Ta Kwu Ling” (“Full Ta Kwu Ling Address”).

117.  When asked why a full address was not shown in the marriage certificate, he gave an illogical answer that the Government had resumed the land. Similarly, when pressed for his reasons for his non-disclosure of the Full Ta Kwu Ling Address in these proceedings, he equivocally answered that the house had been demolished. Undoubtedly, such answers were not valid reasons for not giving full address.

118.  Leung then said that he started living there since 1999 when he returned from Australia. His oral evidence is contradicted to his Written Statements that he returned to Hong Kong from Australia in June 1995. Further, his oral evidence that he was living there at the time of his marriage also conflicts with Mui’s evidence in court that she had reported her residential address to be the Ngau Tam Mei Village in the Form. In all, the Couple had no reason not to give true, accurate and complete address as expressly required in the Form.

NGAU TAM MEI ADDRESS AND LETTER BOX 38

119.  The Mother complains the Couple to have deliberately concealed their true residential address not only in the marriage certificate but also in these proceedings. Such complaints are supported with solid evidence. The Couple could not give any reasonable explanation but evasive and argumentative answers.

120.  The fact is Leung only disclosed his residential address in his 2^nd affirmation dated 17 November 2015 after the Mother’s complaints. In the said affirmation, Leung gave his address as “350 West District Ngau Tam Mei Village, San Tin, Yuen Long” (“Ngau Tam Mei Address”) and that he used Letter Box 38 as his correspondence address. He did not mention about the Ta Kwu Ling Address, which he stated in his marriage certificate. It is noted that by that time, the Mother had not yet disclosed the Couple’s marriage certificate in these proceedings.

121.  Under cross-examination, Leung said that he had cohabited with Mui in the Ngau Tam Mei Address since 2013. Plainly, such evidence contradicts to the residential address as stated in the marriage certificate. Apparently, for reconciling the many inconsistencies of his evidence, Leung supplemented that he had moved to Ngau Tam Mei Address in or around December 2013. As he could not receive mails thereat, he used Letter Box 38 as his correspondence address, which was close to his working place.

122.  When asked more about the Ngau Tam Mei Address, Leung gave further contradictory evidence as follows:-

(a) At first, he alleged in court that he had lived there since about December 2013 and together with Mui. His evidence is undertaken by Mui’s letter sent to the Mother’s former solicitors dated 28 September 2011 (“28/9/2011 Letter”). In that, Mui stated that she no longer lived in the Mei Foo Address and gave Letter Box 38 as her correspondence address, which indicated that Mui had already lived in the Ngau Tam Mei Address since 2011. In court, Mui further confessed that she had lived in the Ngau Tam Mei Address since 2011, which further frustrates Leung’s evidence.

(b) When being asked about the contradiction between his evidence and Mui’s evidence, Leung alleged for the first time that he had lived together with Mui at the Ta Kwu Ling Address since 2010 and at the Ngau Tam Mei Address since December 2013. When he was shown the government’s demand notes for rates for the period between 1 October 2006 and 31 December 2006, which were sent to Letter Box 38, he illogically answered that he had occasionally lived at the Ngau Tam Mei Village Address between 1960s and 1970s’.

(c) It is also unconvincing that while living at the Ta Kwu Ling Address, they would have gone all the way to Letter Box 38, which was very far apart, to collect mails since 2006. On the contrary, Letter Box 38 was close to the Ngau Tam Mei Address. Leung’s evidence that he had lived in the Ta Kwu Ling Address but took the trouble to go for a long way to collect mails from Letter Box 38 for so many years before the marriage is illogical and unbelievable.

123.  On balance, I believe that when the Couple used Letter Box 38 as their correspondence address, they were living at the Ngau Tam Mei Address. They gave Ta Kwu Ling Address for the marriage certificate to conceal their true residential address. When pressed on, Leung dramatically changed to confess that he had in fact cohabited with Mui since 2008. Obviously, Leung is not a credible witness. He was readily fabricating new evidence to suit his needs. Their intimate relationship should have developed long before that.

MUI’S EVIDENCE

124.  Similarly, Mui was evasive when asked about her residential address in the past. She repeatedly said that she forgot where she lived in the past. When she was asked whether she lived at the Mei Foo Address before the 28/9/2011 Letter, she finally answered that she had lived there intermittently. She however refused to answer the exact period she lived there. When she was asked where she lived if not living at the Mei Foo Address, she refused to answer. When pressed on, she said she could not remember.

125.  Mui subsequently answered that she could have lived at the Ngau Tam Mei Address and a flat at Sheung Shui. She nevertheless said that she could not remember when she lived at the Ngau Tam Mei Address. She refused to answer whether she lived at the Ngau Tam Mei Address and collected mails from Letter Box 38 when the 28/9/2011 Letter was sent. She again said she could not remember. She could not give any reasonable explanation on her failure in giving all these details in her witness statements. Unexpectedly, she did not mention the Ta Kwu Ling Address at all.

NO DISCUSSION ABOUT THE PROPERTY

126.  The Couple’s evidence that they had never talked to each other about the Property and the Will until the commencement of these proceedings is wholly incredible. It is an affront of commonsense that the Couple, having reminded each other of their first encounter in the Property in 2005, living together no later than 2008, getting married in 2013, would not have known that the husband had adversely possessed his father-in-law’s property, which was bequeathed to his wife’s half-brother, to whom his wife owed a duty to distribute the Property under the Will. She had also been demanded by the Mother for distribution of the Property through solicitors and three legal proceedings.

127.  For the same reasons, Leung’s allegations that prior to these proceedings, he did not know the Property was bequeathed to the Son under the Will, Mui was the named executrix in the Will, the Mei Foo Address had been the previous address of the Deceased and Mui, exactly where Mui lived before their cohabitation (even though he was used to send her home in Mei Foo Sun Chen) were obviously packs of lie.

THE BUILDING DEPARTMENT LETTER

128.  The Mother heavily relies on the BD Letter, which was disclosed in item 3 of the List of Documents filed by Leung on 3 April 2018 as evidence that Mui had assisted and consented to Leung’s possession of the Property against the interest of the Son.

129.  The BD letter was issued by the Building Department in December 2000, which concerned the Property’s fire safety construction work triggered by the Fire Safety Improvement Direction. It was addressed to the Deceased at the Mei Foo Address. The Mother stresses that given the BD Letter was sent to the Deceased’s residential address (before death) for the attention of the Deceased. Leung had absolutely no chance to get such letter other than from Mui.

130.  In response, the Couple’s case on paper is that Mui did not receive the said letter because she was living in Canada at that time and Leung got it when it was posted up at the Property.

131.  However, the Couple’s case completely collapsed during cross-examination. In court, Mui confessed that she had all along been living in Hong Kong after the Deceased’s death and would only return to Canada for special events. In particular, she was living in Hong Kong when the BD Letter was sent to the Deceased at the Mei Foo Address in December 2000.

132.  Under cross-examination, Leung testified that he got the BD Letter because it was inserted underneath the door of the Property, as opposed to his allegation in the Written Statements that the said letter was posted up at the Property. Not only that they could not give any valid explanation for such inconsistencies, Leung’s allegation was devoid of logic. He failed to explain how a letter, which was sent to the Deceased at the Mei Foo Address, would end up being inserted underneath the door gap as he now alleges or posted up at the Property as described in his Written Statements.

133.  Besides, Leung’s allegation that he did not know about the Mei Foo Address or the then residential address of the Deceased and Mui in Mei Foo even up to this trial is flatly contradicted to the BD Letter, the 28/9/2011 Letter and the background facts and is undoubtedly untrue. It is also noteworthy that Leung had signed the reply slip of the BD Letter on 11 January 2001 by leaving the “owner/tenant” therein undeleted despite the signor was required to delete the word inapplicable.

134.  All the relevant matters considered, I have no hesitation in finding that the Couple are clearly making up stories to cover up the facts that their close relationship had developed long before the two letters and that Mui had given the BD Letter to Leung for further handling. I accept Mr Ng’s submission that Leung could not have obtained the BD Letter but for Mui. It is concrete evidence for proof of Mui assisting Leung to take possession and control of the Property. The Couple had started their close relationship no later than 2000 and Mui had all along been assisting Leung to take advantage of the Property.

135.  In my observation, both Leung and Mui are clearly not credible witnesses. They were readily fabricating new allegations to serve their purposes in their pleadings, witness statements and in the witness box. Their evidence changed significantly along their giving evidence in the witness box to suit their needs.

SCREENSHOT

136.  The Mother says that she approached one Cora Ho (“Ho”), an estate agent of Kwong Fook Property Agency Company Limited, who was familiar with the Deceased, in or around March 2016. The Mother obtained a screenshot of the record as displayed on Ho’s computer screen (“Record”) which recorded the instructions given to Ho’s estate agency relating to the Property. It demonstrates that Leung had made a clear distinction between the owner of the Property and Leung, who did not identify himself as the owner of the Property. On such basis, the Mother contends that Leung actually had no intention to take adverse possession of the Property.

137.  Leung denies he had ever engaged the service of the said estate agent or estate agency. He challenges the entries in the Records as merely hearsay, which should not attach any weight. That said, Leung admitted that the information of the Records concerning the vacancy of the Property and the leasing for rent were all correct as follows:-

(a) the entry on 8/2001 that the Property was listed for rent at HK$10,000 a month;

(b) the entry on 9/2001 that the Property had been vacant for half a year;

(c) the entry on 3/2003 that the Property had been rented out;

(d) the entry on 4/2004 that the Property was still being rented out; and

(e) the entry on 4/2005 that the Property had been rented out.

138.  Those parts of the Record which Leung denied knowledge or asserted that the information was incorrect are:-

(a) the entry on 3/2003 that “梁生話已租出了，如需要聯絡要搵Cora Ho聯絡他”;

(b) the entry on 2004 that “可連約但業主欠政府遺產稅$120萬，所以要考慮價錢”;

(c) the entry on 2005 that “梁先生仲話租緊唔清楚仲有幾耐 OFFER FOR SELL @2000” 佢話回家同家人商量”.

139.  The Mother had disclosed the Record before all the relevant information relating to the Property was made available to her. It should not be a fabrication and is likely to be true. Moreover, there was a coincidence of language between the letter from WHC dated 22 June 1998 and the Record in both of which references were made to the “estate duty” to be levied on the Property.

140.  This coincidence is telling against Leung’s contention. It tends to support that Leung had a close relationship with Mui, who passed the information about the estate duty to Leung, who then informed the estate agency of the same. The Record also supports the Mother’s allegation that there was a clear distinction between the owner of the Property and Leung when Leung gave instruction to the estate agency. In any event, I should add that even if I attach no weight to the Record, the evidence against the Couple’s case as elaborated further above is overwhelming.

EXECUTORSHIP

141.  On the evidence before me, I accept Mr Ng’s submission that despite Mui had made no application for the letter of probate and she expressly made known to the Mother that she ceased to act as the executrix under the Will through WHC on or around 6 May 1999, and further on 29 September 2011, she in fact has accepted her executorship by her following acts:

(a) Mui was found duty-bound to perform under the Will and was accordingly ordered to discharge her duties as an executrix under the Will under the Two Actions. Mui has not taken any action to set aside the Two Orders, which stand valid and are binding on her.

(b) According to a series of correspondences between WHC and K&K from 26 February 1997 to 6 May 1999, WHC stated that they acted for the Siblings, being the executors of the Deceased, and instructions were taken from the Siblings for the purpose of dealing with the Mother’s request for the disclosure of the Will as well as the information relating to the Estate.

(c) The value of the Estate was estimated by WHC and the payment for the estate duty was discussed. Negotiation ensued. WHC specifically asked if the Mother would accept the value of the Property as assessed by the Duty Estate Duty Office (with the amount stated) in light of the potential liability of estate duty. The valuation of the immovable properties forming part of the Estate had been finalized with the estimated value of the estate specified.

(d) In another High Court action HCMP 2129/2008, another beneficiary, Madam Zhao Yi E, relating to the administration of the Estate, sued the Siblings. In paragraph 10 of the Decision given by DHCJ L Chan (as His Lordship then was) on 27 February 2009, it was stated that Mui had written a letter dated 16 February 2009 to the Court saying that the Deceased had provided in the Will that the change of name of owner of the property concerned in that case should only take place in 2015. She, therefore, opposed to any change of the Deceased’s dying wish. His Lordship clearly held the Siblings responsible and ordered the Siblings “as an executor and trustee of the will, do perform and carry into execution the trust of the will.”

(e) Mui had received the BD Letter and handed it over to Leung for further handling.

142.  For the reasons aforesaid, I accept Mr Ng’s submissions that Mui had carried out solid acts, which amounted to the dealing with and administration of the Estate and thereby accepted the executorship under the Will. In any event, she had intermeddled with the effects of the Estate. Accordingly, her attempted renunciation of her executorship was invalid and of no effect.

143.  An executor ceases to be entitled to elect (whether to accept or refuse executorship) if she carries acts which amount to an administration and that if an executor, after intermeddling with the effects of the estate, attempts to renounce it, that renunciation will be treated as invalid: Williams, Mortimer and Sunnucks on Executors, Administrators and Probate 31^st Ed §6-34

DELIBERATE OBSTRUCITON

144.  All the relevant evidence considered, I am persuaded that not only Mui has been in breach of duty on her part, she deliberately delayed and avoided the administration of the Estate and further, facilitated and assisted Leung to take possession of the Property. As evidenced from the exchange of the many correspondences between the solicitors acting for the Mother and the Son and the Siblings, Mui had been tactically refused to disclose the Will and the information relating to the Property.

145.  Mui had all along been legally represented by WHC, which expressly stated that the requests were referred to the Siblings for instructions. Under cross-examination, she admitted that she was informed of the requests from the Mother and the Son but gave no valid reasons for her inaction. It was not until the HCCA Order the Will was eventually deposited to the Probate Registry. Still, she chose not to apply for probate ending up with the prosecution of the HCMP Action and the grant of the HCMP Order. She nevertheless still took no action to comply with the HCMP Order.

146.  In parallel, the Couple kept silence on Leung’s possession and the use of the Property allegedly to have started from March 1996. That being the case, the evidence before me suggests that Leung’s possession should have taken place most likely in or around 2000, in any event, that must not be earlier than April 1997.

147.  I share the view with Mr Ng that all the evidence shows that Leung could not have taken possession of the Property without the assistance of Mui. Mui was the only means and channel that Leung could have learnt about the Property, gained access to it, managed it and received all the rents and the mails relating to it, which were sent to the Deceased at the Mei Foo Address, including the BD Letter. The Couple’s concealing of their addresses and their relationship is not a coincidence but a deliberation calculated to delay and obstruct the distribution of the Property to the Son as well as the legal proceedings for performance of the Will.

148.  Taking into account all the arguments and evidence before me, it is clear to me that Mui’s obstructive acts aforesaid were carried out in parallel, when, according to Leung, he was in possession of the Property. Coupled with the series of evasive and unusual acts carried out by the Couple together for the past years, I accept Mr Ng’s submission that the only compelling inference that can be drawn is that Mui’s obstructive acts were done to and with the intention of assisting Leung’s possession of the Property against the interest of the Son. All the evidence shows that she was the only means that could facilitate Leung’s taking possession of the Property.

149.  On the other hand, Leung has failed to discharge the burden of proving his pleaded case of taking adverse possession of the Property since 11 December 1996. In my view, his possession of the Property must not be earlier than 11 April 1997, and most probably in 2000.

150.  In any event, Leung has failed to prove he had any real intention to adversely possess the Property as he now alleges. On the evidence before me, all he had done was just to lease out the Property for profits and make necessary outgoing payments for the Property in order to continue the leasing. Other than that, he actually took no action to take the Property as his own property or assert his ownership of it and to exclude the whole world, not even to the governmental departments, the Management Company, the Estate Agency or the paper owner, etc. In fact, all the evidence points to the fact that he just asserted himself as the contact person of the owner of the Property.

151.  Notwithstanding that he said he had determined to take adverse possession of the Property against the Deceased since 11 December 1996, he had taken no legal action to obtain the possessory title of it throughout the years until the Mother’s commencement of the present action for vacant possession of the Property. He clearly fails to discharge his burden of proof of his intention to take adverse possession of the Property.

THE DESCRIPTION OF THE PROPERTY

152.  It has been argued for the Couple that the property devised or bequeathed under the Will is not the Property for the subject property under clause 5(3) of the Will was described as “Room 701, Presidential Commercial Centre, 608 Nathan Road, Kowloon, Hong Kong”, which does not correspond to the description of the Property in the Assent.

153.  In my view, the word “presidential” is merely a typographical error. According to the record kept at the Land Registry, the description of the Property is “Unit No. 1 on 7/F President Commercial Centre, 608 Nathan Road, Kowloon, Hong Kong”, and its registered owner is the Deceased. Besides, the Mother also gives unchallenged evidence that there is no “Presidential Commercial Centre” in Hong Kong.

154.  In any event, the Mother has been the registered owner of the Property by virtue of the Assent pursuant to the HCMP Order. The fact that the difference between the two names of the building is limited to the word of “President” and “Presidential”. I am persuaded that it is just a minor typographic error in the Will. The intention of the Deceased is clear and the Mother should have no difficulty in seeking rectification of the Will for this minor typographic error.

CONCLUSION

155.  Having considered all the evidence and the submissions of the parties, I accept the Property is the subject property under the Will. I am not convinced that Leung had ever taken adverse possession of the Property since 11 December 1996 or anytime thereafter.

156.  The parties have agreed that in the event that Leung fails to prove his allegation of adverse possession, Leung is liable to pay the mesne profits at the agreed rate and for the agreed period and Mui is liable to pay the agreed nominal damages.

ORDER

157.  In the circumstances, I make an order that:-

(1) Leung do deliver vacant possession of the Property to the Mother forthwith.

(2) Leung do pay to the Mother mesne profits at the agreed rate of HK$17,706 per month for 6 years before the issuance of the Originating Summons dated 15 July 2015 until the date hereof.

(3) Leung do pay to the Mother mesne profit at the rate of HK$17,706 per month thereafter until delivery of vacant possession of the Property.

(4) Mui do pay nominal damages to the Mother in the agreed sum of HK$100.

(5) The counterclaim be dismissed.

(6) Leave to the Mother to discontinue her claim against the 2^nd defendant.

COSTS

158.  Taking into account all the relevant circumstances of this case, I make a costs order nisi that:-

(1) Leung do pay the Mother’s costs of these proceedings against Leung, including the main claim and the counterclaim and all costs reserved, on a party and party basis, to be taxed if not agreed. Certificate for Counsel is granted.

(2) Mui do pay the Mother’s costs of these proceedings against Mui, including all costs reserved, on a party and party basis, to be taxed if not agreed. Certificate for Counsel is granted.

(3) There be no order as to costs between the Mother and the 2^nd defendant.

(4) The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

159.  In the absence of application by Summons within 14 days to vary, the costs order nisi shall be made absolute.

160.  I thank both Counsel for their able assistance.