YU YUK YING v. THE HONG KONG TIN TAK SHING KAU CHUNG WOO CHING SAI ASSOCIATION LTD

HCA3021/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3021 OF 2000

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J U D G M E N T

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Introduction

1. The plaintiff, who is aged 30, is the youngest child of the late Mr Yu Hoi Chuen ("the deceased") who died on 28 August 1998. She claims title, by virtue of adverse possession going back to 1971, to a plot of land near Tai Po, New Territories, upon which the deceased had built a house from corrugated metal and brick for himself and his family to live in. The defendants, who are the registered owners of the land, are a Taoist charitable organization.

2. As is common in actions of this sort, I have been required to take evidence about matters that are said to have taken place very many years ago with all the risks of hearing from witnesses with defective memories blurred by the passage of time. More so in this case where two of the defendant's witnesses are ladies in their 80's who have spoken of events which took place over 30 years ago.

3. The plaintiff's case is that the deceased, who was a loyal member of the defendant's organization, entered into occupation of the land and built a house on it for his and his family's use, which he did in 1971 until his death in 1998, and since then up to the present time it continues to be the home of his widow, the plaintiff, her elder brother and an elder sister. The defendants say that this land was offered to him on a licence which has always been determinable, in which circumstances there can be no question of title having become vested in the deceased and now since his death in the plaintiff by adverse possession or by any other means.

Background

4. Perhaps not surprisingly, this action has engendered a degree of bitterness and resentment on the part of the defendants who feel betrayed by the deceased's family. If they are right, they had allowed the deceased to occupy the land as an act of charity, because he was poor at the time, so that it might provide a home for him and his young family. During his lifetime, he was a devoted follower of the defendants' Taoist practices, attending their religious gatherings on a regular basis. Now, following his death, his family led by his youngest daughter has turned on her late father's religious organization and is seeking to deprive it of its land which it had allowed the deceased to use out of kindness in his time of need.

5. Whilst much of the evidence is in dispute a number of basic facts, which I propose to set out first, are beyond doubt. The land in question is described as Lot No.443 in Demarcation District 24, Tai Po which I will refer to as "the land". The defendants, as an organization was set up in Hong Kong in the 1930's. It had been established by a man called Siu Cheung Ming in Huang Shan in China in the early 19th century. The elder of the two ladies who have given evidence, Mrs Cheung King Chi, who is aged 86, has told me that her late father Cheung Huen Chuan had been one of Siu's disciples. In 1927, he established the defendants in the city of Canton (Guangzhou) and in 1937 he arrived at Hong Kong with his wife and family to establish the defendant's organization here which he did by taking premises at 88, Queen's Road West. He had brought with him a number of other followers of the organization in Guangzhou who assisted him in its management. Mrs Cheung also became active in the affairs of the defendant which began to secure something of a following. On 25 April 1939, a Mr Siu Chung Woo, acting as a trustee of the organization, became the registered owner of the land as well as some other adjoining plots of land. In February 1967, the defendant organization was incorporated into a company limited by guarantee to take over the assets and the running of the organization's affairs. An order was made by Zimmern J in the High Court on 28 November 1979 vesting the land in the defendant company. The leading lights, if I may so describe them, of the religious organization became directors and shareholders in the company. In the 1940s, it acquired a temple near Tuen Mun where religious services were conducted for the organization's followers.

6. Much of the establishment of the defendants in Hong Kong and its acquisition of the land and the adjoining land in the Tai Po area is clear from the documents that have been put in evidence and from the statement of Mrs Cheung starting at page 58 of the bundle of Witness Statements, as well as the evidence of Mrs Law Luk which begins at page 10 of the same bundle. Although these two ladies are of considerable age, on these matters their evidence is amply confirmed by the contemporaneous documents and so I have no difficulty in accepting their "historical" narrative.

The contentious evidence

7. The lead-up to what is disputed between the parties starts from 1961, which is when the organization decided to build four single-storey houses on plots of land this it owned adjoining the disputed land. One of the properties was to be a place of worship and the other three were to provide dormitory facilities for the membership. The deceased, by then a follower of the organization's religious practices, was selected to be one of the two building contractors to carry out this building work. This evidence has largely come from Mrs Cheung which may be partly anecdotal in its detail but a similar account has also come from the plaintiff, no doubt handed down to her as part of family history, which serves to give a ring of authenticity to this part of the narrative. At this time, the deceased was living with his wife and those of his children who had been born then in very cramped circumstances in Kowloon City. Initially, to save him the rigours of what in 1961 must have been a difficult commute from Kowloon City to the building site, the deceased erected a tent close by where he lived during the working week and then he "upgraded" that to a hut and moved his family in with him. The plaintiff says the building work took until 1969, Mrs Cheung says it only lasted one or two years. Whichever it was does not matter but the deceased continued to live in the hut.

8. Next one comes to the vital period in the time scale which is 1971 when the deceased had meetings with the senior members of the defendant's organization which resulted in him being allowed to occupy the land and build a house on it. Both sides' evidence has unsatisfactory aspects about it. The plaintiff was not even born then so she has purported to tell me what according to her has been handed down to her by her late father and to an extent by her mother during family discussions. She has chosen not to call her mother, who being closer to the subject matter, may have provided at least a second hand account of what her late husband had told her about his meetings and dealings with the defendant's senior members as to the terms under which he occupied the land and was allowed to build a house, but she has not done so. The plaintiff has told me that it has been agreed by her family that she should take charge of this litigation on their behalf and deal with all matters including the evidence to be called at the trial. On the defendant's behalf, the old ladies, and I mean no disrespect in describing them in this way, have said that both of them had attended the crucial meeting, which one might have expected would have put them well ahead in the evidential contest, but they have not shown the best of recollections, as one might expect, having regard to their ages and the passage of time. Mrs Cheung, who is 86, has been subjected to two long and tiring sessions in the witness box. On the first "instalment" of her evidence, I had to adjourn early to allow her to rest overnight as she had become unwell and when she returned she also tired quickly. I must summarise what she had said in a moment but I am bound to say that I would not feel comfortable in deciding the outcome of a matter such this unless her evidence was to be corroborated by other independent evidence which I am prepared to accept. Similarly, Mrs Law Luk, who is 79, and who I am bound to say appears to be in far better health and a stronger witness was effectively cross-examined by Mr Wan for the plaintiff who was able to draw some inconsistencies in what she said as to matters of detail, so that I also prefer to look for corroboration of what she has had to say. Whilst the effect of what she says corroborates Mrs Cheung, given her shortcomings I have decided that I should not use the evidence of one of lady to corroborate the other. Lastly, Mr Lau was also called for the defendants. He is a perfectly healthy middle-aged gentleman with good recollection of matters that he has direct knowledge of, but he was not around in 1971 and so he cannot speak of these meetings. I must be aware of these shortcomings when I come to address the overall effect of the defendants' evidence, but in making these general observations, I would not wish to exaggerate those apparent weaknesses where I am absolute satisfied that all three of the defendants' witnesses have impressed me as decent and honest individuals who have done their best to give as accurate an account as they have been able to.

9. I have made these general comments about the defendant's evidence first because in terms of chronology they are able to give direct evidence going right back to even before the period that matters for the resolution of this action. I also propose to now set out this evidence first because it will be more easy to follow the narrative in terms of direct evidence by recounting what those witnesses have had to say before I come to the plaintiff's evidence. In doing it in this way I have not forgotten that it is the plaintiff who bears the ultimate persuasive burden of proving her case.

10. Both Mrs Cheung and Mrs Law Luk have said that it was the deceased who approached the then chairman of the defendants, a Mr Fung, to allow him to use the land by borrowing it so that he might build a home for himself and for his family which he would do with his own cost by making use of the leftover building materials from the construction of the buildings that he had put up for the defendants on the adjoining land. A meeting was then arranged between the board of directors and the deceased at which he would be expected to plead his case. Both Mrs Cheung and Mrs Law Luk say that they were present. There has been much cross-examination of the ladies as to the detail and the final outcome of this meeting and it is here, that whilst I am absolutely confident in the bona fides of these ladies, I feel a degree of anxiety given the difficulties that I have already drawn attention to as to whether I should accept their evidence without independent corroboration, to which I will return presently. Mrs Cheung in particular has said that the deceased explained to the meeting that he had fallen on hard times and that he did not have enough to keep his family. He asked to build on the land and promised that he would return the land and the building once his financial position had improved. According to Mrs Cheung the meeting looked upon his request sympathetically. The deceased was after all a loyal follower of Taoism and of the organization and so according to both ladies, permission was given to him to do as he had asked but only on condition that he would return the land and house that he had built on it. It was absolutely clear that, in legal language, this was a licence which was determinable at will on the part of the defendants. This, the deceased gratefully accepted and he got on with things, built his home, fenced the area off and lived his life there with his family until his death in 1998.

11. Unfortunately none of this was committed to writing by the defendants whose records are, in any event, rather patchy. What has been produced are many pages of records relating to other members of the organization where those members have been allowed to occupy dormitory accommodation on payment of a modest fee which record their acknowledgement that the right of occupation will determine on their passing away. There are also minutes of the board of directors which record such arrangements. The way these documents are advanced on behalf of the defendants is by seeking to demonstrate a pattern of practice by them to allow deserving members to occupy buildings of theirs or at least parts of accommodation on clear terms that these arrangements would determine on death. The rhetorical comment is then made : would the deceased be given this land outright when the practice shows that even modest rights to occupy dormitory space was clearly limited and conditional. Mr Lau in particular has referred to these arrangements in his capacity as "curator" of the defendant's properties.

12. The plaintiff herself, who is a very bright university-educated young woman, has given an account of how her father without any question of having had permission or licence from the defendants occupied the land, built his home on it, fenced it off and no one ever questioned his right to live there. All these 27 years before his death he lived there undisturbed by the defendants and after his death his family have continued to live there. She has spoken of a dispute in 1993 when the defendants destroyed some fencing and plants on part of the land immediately adjoining land built on by the defendants which was said to also belong to them. The problem was resolved by the deceased allowing this limited part to go into the defendants' possession but he then fenced off up to that area and nobody ever bothered the family again.

13. All of this evidence by the plaintiff appeared to develop perfectly sensibly until she volunteered that she also lived in a public housing flat in Kwai Chung. She told me that she lived there during the week but returned home to the family house in Tai Po at the weekends. She was then cross-examined about the circumstances by which she came to get the tenancy of such property. None of this had emerged before she came to the witness box when on starting her evidence she had given the land as her address as she had in her witness statements. It is now absolutely plain that her main residence is in fact the public housing unit in Kwai Chung. This has given rise to an application for discovery by Miss Hui, for the defendants, for all of the application forms and other documents relating to the public housing flat to be produced. Although initially resisting the application Mr Wan then sensibly accepted that this documentation was discoverable because it could show what was being said by the plaintiff and her family as to the terms of their occupation of the land at Tai Po. Despite being allowed very little time the Housing Authority has been able to produce everything that is relevant. There were two applications for public housing, both made during the deceased's lifetime. The first was unsuccessful but the second succeeded. The entire bundle of documentation from the Housing Authority has gone in. At page 14 of the bundle there is a declaration dated 20 September 1995 three years before the plaintiff's father died. This page is signed by the plaintiff's sister and it says this :

" DECLARATION 聲明

To Housing Department,	Ref. No. G819724-5
致房屋署：	申請書編號

In connection with my application, No.__________ for allocation of public housing. I declare that:

有關本人的輪候公共房屋登記冊申請編號__________，本人謹此聲明：

本人一家現在居住的地方是自己搭建的石屋，每月不用繳交租金及差餉。土地業權屬於天德聖教道堂，容許我們在該處居住，沒有收取地租。

The whole of my family reside in a stone house built by ourselves. Neither monthly rental nor rate is required. The title of the land belongs to Tin Tak Shing Kau Taoist Tong which allows us to live there without collecting the land rent. (emphasis added)

I understand that under section 26(1) of the Housing Ordinance (Chapter 283), any person who knowingly makes any false statement in respect of an application for public housing shall be guilty of an offence and shall be liable on conviction to a fine of twenty thousand dollars and to imprisonment for six months and, irrespective whether he or she is convicted of the offence. The Housing Authority has the power to terminate his/her tenancy which is found to be obtained by his/her having made false statement to respect of his/her application for public housing.

本人明白根據香港法例二八三章房屋條例第二十六條第一款之規定，任何人士於申請公共房屋時，倘故意作出任何虛偽陳述，即屬違法，經定罪可罰款二萬元及入獄六個月。同時，根據房屋委員會的現行政策，對那些經虛假陳述而獲 配公共房屋的租戶，無論他（她）被定罪與否，房屋委員會亦有權終止其租住單位的租約。

Interpreted to the Applicant Yu Mei-lan

by me and signed by his/her in my presence. Applicant's

Signature :_______ 聲明人簽署

上文經由本人向申請人___________	Date:20 SEP 1995
解述並由彼在本人面前簽	日期

Miss LI Fong-yuk (H.O./Investigation (App) Interviewing Officer 會見職員"

14. Once these documents were disclosed the plaintiff had to be recalled to give further evidence about them. This declaration amounts to the clearest admission of the defendant's case by the plaintiff's family as to the true basis of their occupation of the land. They could not get public housing if they had a property of their own here was the family's admission that they did not own the place where they were living. Once confronted with this evidence the plaintiff has sought to indulge in some unattractive wriggling about the status of this form of declaration and as to the educational level of her sister who had signed it.

The result

15. I am entirely satisfied that this is a true declaration. It serves to corroborate in a most eloquent way the evidence of the old ladies that the land was merely lent to the deceased on licence. With this evidence I have absolutely no doubt whatsoever that everything that Mrs Cheung and Mrs Law Luk have told me about the meeting with the deceased in 1971 was true. He had approached the defendants for an act of kindness, which I am sure he was grateful for. This was a licence determinable at will. There is no question of any adverse possession running against the defendants who were clearly willing to be accommodating to the deceased and his family. This has been a most unworthy attempt by the plaintiff to take advantage of the situation. I have a strong suspicion that she has seen an opportunity here to perhaps make some money out of this state of affairs but, fortunately, she has been undone by her own documents which of course should have been disclosed when discovery was ordered. Had they been I am confident that the Legal Aid Department would not have granted her a certificate.

16. On this evidence the plaintiff's case must be dismissed. There must be judgment to the defendants on the claim and also judgment on the counterclaim. The bringing of the counterclaim in these circumstances has had the effect of determining the licence. The plaintiff and her family must now give vacant possession to the defendants within three months of the date of this judgment which I would have thought would be sufficient in all the circumstances. I will also order the payment of mesne profits by the plaintiff to the defendants from the date of the counterclaim until vacant possession is given. I will adjourn the assessment to chambers to be heard by a master. I will leave it to the defendants to decide whether they wish to pursue this assessment, they may decide not to but that is a matter entirely for them.

17. It must follow from the terms of this judgment that the plaintiff must pay the costs of this action on the party-and-party basis, to be taxed if not agreed. There will also be legal aid taxation of the plaintiff's costs. As this judgment is being handed down the order for costs will be an order nisi in the usual way.

18. Before I leave this matter I should mention that Miss Hui had been prepared to advance other grounds as to why the plaintiff could not maintain the action as a matter of law but where I have found for the defendants on the clearest evidence it has not been necessary for me to consider these additional grounds which, in any event, in closing her case Miss Hui had not sought to argue further.