HAU YIN MING v. HAU SUN CHIU

HCMP 1609/2009

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS no. 1609 of 2009

(on an intended appeal from dcmp NO. 1449 of 2007)

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D E C I S I O N

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Hon Rogers VP:

1.  This is an application for leave to appeal a judgment of Her Honour Judge Mimmie Chan given on 9 June 2009.  The matter before the judge was a claim for possession of what was referred to as the dispossessed part of the plaintiff’s land.  The judge dismissed the plaintiff’s claim and made a declaration that the defendant was the owner and had acquired good possessory title of the dispossessed part.  In my view the judge came to the correct conclusion and there is no reasonable prospect of success on any appeal.

2.  There is no dispute that the plaintiff is the owner of the paper title to the land in question.  As the judge said in the judgment the sole issue in dispute in the case was whether the defendant had had the necessary intention to possess the dispossessed part to the exclusion of the plaintiff.  It is important at the outset to appreciate the basis of the plaintiff’s claim.  That was set out in the statement of claim as follows:

“3.        Since about 1980, without the Plaintiff’s consent or the consent of the then owners of the Plaintiff’s Land, the Defendant has wrongfully occupied part of the Plaintiff’s Land.

4.         At all material times, the Defendant alleged that the family of the Plaintiff had wrongfully built a kitchen upon part of the Defendant’s Land and denied that he had trespassed on or wrongfully occupied the Plaintiff’s Land or any part thereof.

5.         At all material times, there were disputes between the Defendant, Mr. Hau Kam Keung who was then the owner of the Plaintiff’s Land and is the elder brother of the Plaintiff herein, and Mr. Hau He, who was and is the occupier and/or Government licensee of Taxlord Lot No. 1402 in Demarcation District No. 95 (referred to as “Lot No. 1402”), as to the exact boundaries of the Plaintiff’s Land, the Defendant’s Land and Lot No. 1402.

6.         Around about 1982, the Defendant, Mr. Hau Kam Keung and Mr. Hau He made a joint application to the District Lands Office (North) for ascertaining or setting out the boundaries of the Plaintiff’s Land, the Defendant’s Land and Lot No. 1402.

7.         In making the above-mentioned application, it was orally agreed among the Defendant, Mr. Hau Kam Keung and Mr. Hau He that in the event that there was indeed a trespass by any one of them on the other’s land upon the setting out of the land bounderies of the Plaintiff’s Land, the Defendant’s Land and Lot No. 1402, the trespasser shall unconditionally deliver up such part of land wrongfully occupied by him to the true owner thereof.

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14.       On or about 12^th December 2006 and 16^th May 2007 respectively, the Plaintiff instructed his solicitors to write to the Defendant demanding him to, inter alia, surrender possession of such part of the Plaintiff’s Land wrongfully occupied by him.  Despite the said two letters, the Defendant failed to and still fails to surrender to the Plaintiff the dispossessed part or any part thereof.

15.       At all material times, the Plaintiff has never authorized or given consent to the Defendant and/or his agents to enter upon and/or take possession of and or use any part of the Plaintiff’s Land.

16.       In the premises, the Defendant has at all material times without the consent or approval of the Plaintiff wrongfully entered upon, occupied and/or used the dispossessed part of the Plaintiff’s Land.

17.       The Plaintiff says that the above-mentioned acts and/or conduct of the Defendant amounted to a trespass by the Defendant on the Plaintiff’s Land and the trespass is continuing.”

3.  The judge heard evidence not only from the defendant but importantly from Mr Hau Kam Keung and she accepted the evidence of the latter.  In paragraph 22 of the judgment she said:

“On a balance of probabilities, I consider it more likely than not that Keung, He and Chiu had agreed some time after receipt of the Undated DLO Letter that they would settle the disputes in the manner claimed by Keung and Ming.  Whether or not the Oral Agreement is enforceable in law is another matter.  As Keung testified, they did not consider the legal niceties at all, nor whether the Oral Agreement was too uncertain in terms to be enforced.”

4.  In paragraphs 23- 24 of the judgment the judge referred to the defendant’s evidence and the fact that he had built what was referred to as the Main House in 1982.  She continued:

“23.      Despite my finding on a balance of probabilities that there was an Oral Agreement made between Keung, Chiu and He, I do not accept on the evidence that Chiu occupied the Dispossessed Part pursuant to the Oral Agreement, or that he did not intend, by virtue of the Oral Agreement, to possess the Dispossessed Part to the exclusion of Keung, or members of Keung’s family, or the true owner of the Dispossessed Part.

24.       According to Chiu’s evidence, he had commenced construction of the Main House in 1982, and the concrete platform was built to provide access to the Main House.  The concrete platform extended from the Main House on the Defendant’s Land into the Dispossessed Part of the Plaintiff’s Land.  According to Chiu, the Main House was completed a few months before the house-warming banquet held on Chiu’s birthday according to the lunar calendar on 2 October 1982, as evidenced by a copy of the invitation sent by Chiu for the banquet.  I accept Chiu’s evidence that he had all along treated the Dispossessed Part as falling within the boundaries of the Defendant’s Land and accordingly as his own property, as evidenced by his construction on and use of the Dispossessed Part and by his building of a fence around the Defendant’s Land including the Dispossessed Part.  He claims that he relies on the fact that on his purchase of the Property, he had been told that the entire area including the Dispossessed Part and the area at which the kitchen used by Keung, Ming and their family was later constructed belonged to him.  Even on Ming’s evidence, when he approached Chiu to surrender the Dispossessed Part to Ming, Chiu had insisted that the entire area including the Dispossessed Part belonged to him.”

5.  In paragraph 25 the judge summarised her conclusion that the oral agreement which had been entered into in 1982 did not necessarily mean that the defendant had occupied the dispossessed part with the consent of Keung or the plaintiff.  She continued:

“On the evidence before me, Chiu had entered into the Oral Agreement on the one hand asserting and genuinely believing himself to be the true owner of the Dispossessed Part, but at the same time agreeing to deliver up to the true owner any part of the property then occupied by him (be it the Dispossessed Part in its entirety, or a portion of the Dispossessed Part, or any other portion of the occupied property), in the event that a surveyor should be able later to establish that he had trespassed on to the property of Ming and/or He.  He may have considered the event of his being found to be trespassing to be unlikely, and hence agreed to it in the belief or hope that the surveyor may establish instead that Keung and Ming had in fact wrongfully occupied the Defendant’s Land.  In any event, and apart from any unnecessary speculation, the evidence is clear that from 1982 if not before, Chiu had all along displayed and did not cease to display the intention to possess the Dispossessed Part to the exclusion of everyone else, Keung and Ming included.  This is supported by Keung’s own evidence that even after 1982, he had never entered the Dispossessed Part as he was not able to by virtue of the fact that Chiu claimed that the Dispossessed Part was his property.”

6.  In my view, in the light of the findings of fact, the judge was correct.  It is quite clear that the basis of the plaintiff’s claim was that the defendant was a trespasser.  It was not alleged that the defendant occupied the land with the consent of the plaintiff.  The agreement that was reached between all the parties was simply, as the judge had analysed it.  It was an agreement by the defendant that if in the future his assertion was proved wrong he would go quietly.  For the next 24 years he continued to occupy the land, as the plaintiff pleaded, and as Mr Hau Kam Keung said in evidence, in a way which prevented the owner of the paper title using the land: he occupied it as the owner, he treated himself as the owner although in truth he was a trespasser.

7.  In the circumstances, I would refuse this application for leave to appeal and make an order under Order 59 rule 2A(8) that since this application is totally without merit, no party may request the determination to be reconsidered at an oral hearing inter partes.  I would make an order nisi that the costs of this application be to the defendant.

Hon Le Pichon JA:

8.  I agree.

Hon Rogers VP:

9.  There will be an order in terms of paragraph 7 above.