Cheung Jack Hui-fung v. Shum Yee Mee

DCCJ 795/2009

CIVIL ACTION NO 795 OF 2009

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JUDGMENT

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1.This is an action by the plaintiff (“Jack”) to claim, inter alia, for possession of the property known as Flat F on 14^th Floor (Block B) Union Mansion, Nos 33-35 Chatham Road South, Kowloon (“Property”). The defendant (“Shum”) counterclaims, inter alia, for a declaration that she is the sole and beneficial owner of the Property.

Background

2.On 13 October 1950, Madam Angela Tang (“Madam Tang”) and Mr Chang Ka Lien (“Mr Chang”) got married.  Four sons (“Sons”) were born during the marriage of Madam Tang and Mr Chang, namely, Cheung Peter Siu Lam (“Peter”), Cheung William Hui Wan (“William”) and Chang Frank Hui Kong (“Frank”) and Jack.

3.On 31 October 1966, Madam Tang and Mr Chang purchased the Property and became joint-tenants of the Property.

4.In the early 1970’s, Peter, William and Jack went to study in the USA and stayed there after graduation.  In July 1974, Madam Tang and Frank also moved to the USA.

5.Shum met Mr Chang in or about 1975 and soon developed an intimate relationship. They first cohabited at the Property before moving to a property held under Shum’s name in Whampoa Estate in 1977.

6.Since the late 1970’s, the Property had been leased out to various tenants.  

7.Madam Tang subsequently learnt about the affair between Mr Chang and Shum.  On 27 November 1978, the marriage between Madam Tang and Mr Chang was dissolved by a US court order.  Since the divorce, Madam Tang lived with the Sons in Los Angeles, USA until the Sons got married one after the other. 

8.On 19 March 1980, Mr Chang married Shum.  On 31 May 1995, Mr Chang passed away in Hong Kong.    

9.On 16 February 2008, Madam Tang died intestate in California, USA.  On 14 May 2008, Letters of Administration of Madam Tang’s estate were granted to Jack and were registered with the Land Registry on 31 December 2008.  Jack has since become the registered owner of the Property.

10.On 7January 2009, Jack via his solicitors gave notice to Shum and all persons in actual occupation of the Property for vacant possession of the Property.  Shum having failed to deliver vacant possession of the Property, Jack commenced the present proceedings to recover possession of the Property on 18 February 2009.

Jack’s case

11.Upon Mr Chang’s demise on 31 May 1995, the joint tenancy came to an end and Madam Tanghas since became the sole legal and beneficial owner of the Property by way of survivorship.

12.Since early 1981, Madam Tang had suffered from depression, mental delusions and mental illness and was unable to properly manage her own affairs, including the Property. Alternatively, since 1986 or 1989-91, Madam Tang started to suffer from delusional disorder, which lasted until her death in February 2008.  At all material times up until her death, Madam Tangwas therefore suffering from a disability within the meaning of s 22(1) of the Limitation Ordinance, Cap 347 and time did not and could not start to run against her for enforcement of her right or interest in the Property against Shum.

Shum’s case

13.Of the various alternative cases pleaded on Shum’s behalf, only the following were pursued at trial:

(1) Madam Tang had abandoned all her rights in the Property since she left Mr Chang by about mid-1970’s.

(2) Alternatively, Madam Tang was dispossessed by Shum and/or had discontinued possession of the Property since the death of Mr Chang on 31 May 1995.  Shum has been in continuous and exclusive possession for over 12 or 20 years and any rights of Jack in the Property have been barred and/or extinguished by the Limitation Ordinance.

(3) Each of Madam Tang and Jack was liable for laches and/or had otherwise acquiesced in the rights of Shum.

Issues in dispute

14.The following issues therefore fall for determination:

(1) whether Madam Tang had abandoned her rights in the Property, and if so, since when;

(2) whether Madam Tang had been dispossessed by Shum, and if so, since when;

(3) whether Madam Tang was suffering from a disability within the meaning of s 22(1) of the Limitation Ordinance at all material times;

(4) whether Madam Tang or Jack was liable for laches and/or had otherwise acquiesced in the rights of Shum, if any, in the Property; and

(5) whether Shum has extinguished Madam Tang/Jack’s title and obtained a possessory title to the Property by operation of the Limitation Ordinance.

Issue (1): Whether Madam Tang had abandoned her rights in the Property, and if so, since when

15.In support of Shum’s case that Madam Tang had abandoned her rights in the Property since she left Mr Chang in mid-1970’s, Ms Hung, counsel for Shum, invites this court to infer abandonment on Madam Tang’s part from the fact that Madam Tang had taken no action to assert her possession of the Property in that she had never visited the Property after her departure from Hong Kong or protested about the occupation of the Property by Mr Chang or anyone claiming under him to her exclusion or claimed/received any rental income from the Property. 

16.Ms Hung goes on to argue that by February 1977 the latest, Shum had assumed exclusive factual possession of the Property and time should begin to run against the paper owner from then on.   Ms Hung highlights as evidence of Shum’s animus possidendi and actual possession since 1977 the fact that the Property was leased out in Shum’s own name and that Shum received all rental income for both her own benefit and maintenance of the Property and made payment of all outgoings in relation to the Property.

17.On the following grounds, Mr Yim, counsel for Jack, submits that Shum’s case is unsustainable:

(1) As one of thepaper owners of the Property, Madam Tang had the right to possess the Property and would readily be assumed to have the requisite intention to possess, unless the contrary is clearly proved.  The slightest act done by or on behalf of an owner in possession will be found to negative discontinuance of possession: Powell v McFarlene (1977) 38 P & CR 452 at 472 per Slade J;

(2) Absence of possession by Madam Tang per se is neither here nor there.  It is up to Shum to prove acts on her part amounting to actual possession: Kynoch v Rowlands [1912] 1 Ch 527 at 539 per Farwell LJ;

(3) As Madam Tang did not severe the joint tenancy nor assign her share of interest to Mr Chang, Mr Chang could not have become the sole legal and beneficial owner of the Property unless he had ousted Madam Tang; and

(4) Mr Chang had never ousted Madam Tang (Shum has not advanced a case of ouster anyway).  Even if Mr Chang had done so, upon his demise, all the interest in the Property would not automatically pass to Shum by reason of s 4(3) Intestates’ Estates Ordinance, Cap 73. 

18.Highlighting, inter alia, the following facts, Mr Yim further submits that Madam Tang had never abandoned her rights in the Property:

(1) Jack’s evidence is that Madam Tang did not move to the USA because she intended to abandon her rights in the Property.  When she moved to the USA in 1974, she had planned for Mr Chang to join the whole family in the USA at a later date.  But the plan fell apart because of Mr Chang’s infidelity.  And Madam Tang did not obtain a ‘Green Card’ until 1986.

(2) In or about September 1980, Madam Tang wrote to Messrs CY Kwan (“CY Kwan”), a firm of solicitors in Hong Kong, wishing to instruct them to deal with her interest in the Property. There Madam Tang referred to the fact of the purchase of the Property jointly with Mr Chang back in 1966 and her knowledge of Mr Chang having rented out the Property a few years back and expressed her wish to get her share in the proceeds of sale or rental income of the Property.  However,  CYKwan declined the engagementon grounds of difficulty in obtaining instructions from Madam Tang who was residing in the USA.

19.Ms Hung has no dispute with Mr Yim’s exposition of the legal position.  I would only add that, in my view, as discontinuance of possession depends on the intention of the legal owners, the court should be slow to infer intention to discontinue possession on the part of a legal owner if there is evidence of any act or conduct on his part pointing to the contrary even if unbeknown to the trespasser.  See the speech of Fletcher Moulton LJ in Kynoch, supra at 538-539.

20.As to facts, I see no reason to disbelieve Jack’s evidence about Madam Tang’s original plan regarding migration of her family including Mr Chang to the USA.  In any event, it is not inconsistent with Shum’s evidence that Mr Chang disliked the idea of migrating to the USA.

21.Regarding Madam Tang’s attempt to engage CY Kwan to deal with her interest in the Property in September 1980, this was in fact revealed by Madam Tang’s letter sent to the same solicitors firm in July 1982 in which Madam Tang referred to her earlier letter to the latter in 1980.  Such acts on Madam Tang’s part clearly show Madam Tang had not abandoned her rights in the Property. 

22.There is no evidence that Madam Tang had changed her intention with the Property after 1982 and before the onset of her mental problems either in 1986 or 1989-91 as discussed under Issue (3) below.   Upon the onset of her mental problems and until her death, I find it more likely than not that Madam Tang simply lacked the capacity to assert her rights in the Property as she did in 1980 to 1982.

23.In short, I am in favour of Mr Yim’s argument on Jack’s behalf and rule against Shum on this issue.

24.In any event, a finding in Shum’s favour on this issue would not have assisted Shum if she is unable to prove adverse possession against Madam Tang, which is the next issue to be canvassed.

Issue (2): Whether Madam Tang had been dispossessed by Shum, and if so, since when

25.The parties have no dispute on the relevant legal principles on adverse possession.  See the helpful summary by the Court of Appeal in Shine Empire Ltd v Incorporated Owners of San Po Kong Mansion & Others [2006] 4 HKLRD 1 at §28.

26.As Ms Hung puts it in her opening submission, Shum’s case as it now stands is that: if the Court is not satisfied that Madam Tang had discontinued possession of the Property since 1977, Madam Tang was nonetheless dispossessed since the death of Mr Chang on 31 May 1995 by Shum who has since been in continuous and exclusive possession of the Property.

27.In this connection, Ms Hung accepts that if Madam Tang was not dispossessed by either Mr Chang or Shum prior to Mr Chang’s death in 1995, Madam Tang became the sole legal and beneficial owner of the Property by way of survivorship upon the death of Mr Chang.

28.Ms Hung further accepts that the onus is on Shum to prove to a civil standard that she had both physical possession of the Property and the requisite intention to possess: Powell v Mcfarlane, supra, at p 476.  At the material time, the applicable limitation period was 12 years.

29.Shum herself is the only factual witness for the defence.  It is her evidence that as early as 1977, she has been leasing out the Property in her own name and has since been treating the Property as her own.  The documentary evidence adduced by her only show the leasing out of the Property from 1991 to 2006 with herself being named as the landlord though.

30.It is not in serious dispute that at all material times or at least as from 31 May 1995, Shum has been enjoying a sufficient degree of factual possession of the Property in terms of physical control. 

31.The difficulty of Shum’s case, however, is with the necessary intention to possess both before and after Mr Chang’s demise in 1995. 

32.As said, Shum asserts that since 1977 she has all along been treating the Property as her own.  This is the only affirmative evidence on her part regarding her animus possidendi.  There is clear authority as to how the court should treat self-serving statements of an occupier.  In Wong Tak Yue v Kung Kwok Wai (1997-1998) 1 HKCFAR 55 at 69C, the Court of Final Appeal has this to say:

“ 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 scepticism. The courts would scrutinise 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.”

33.Apart from the simple assertion as aforesaid, however, Shum’s oral evidence clearly points to the fact that, since moving out of the Property, Mr Chang had merely entrusted with Shum all matters relating to the Property including leasing matters and repair/maintenance.  For one thing, it is Shum’s own evidence that Mr Chang asked her to lease out the Property on his behalf and passed the title deeds to her for safekeeping. This is a clear indication that when leasing out the Property Shum was only acting as Mr Chang’s agent rather than in her own right.

34.During cross-examination, Shum further admitted that Mr Chang had never expressly gifted the Property to her other than letting her handle all matters relating to the Property as Mr Chang was busy with his accounting work and had no interest in dealing with such matters anyway.  Nor had Shum ever asked Mr Chang to transfer the Property to her.  As she said, she was in love with Mr Chang and the latter need not give her the Property before she would handle the Property on his behalf, a deed she described as a matter of course. 

35.From Shum’s own evidence, it is therefore clear that in handling matters relating to the Property as she did, Shum had been acting as Mr Chang’s agent before the latter’s demise even though she would present herself to tenants as an owner of the Property for convenience sake. 

36.Shum revealed during cross-examination that Mr Chang had visited Madam Tang in the USA in or around 1990 with a view to resolving issues relating to the Property but without success.  Shum must have come to know about the true ownership of the Property by then, if not before. 

37.Shum admitted that after Mr Chang passed away, she had mentioned the Property to the solicitors engaged by her in 1995 to deal with probate matters but was told there was no way to deal with the Property without Madam Tang’s return to Hong Kong.  Shum was clearly reluctant to divulge any further advice she obtained from the same solicitors but it would not be unreasonable for one to surmise that Shum was advised of the legal effect of a joint tenancy and the right of survivorship. This may well explain why Shum has since, in her own admission, left the matter aside until being sued by Jack (other than continuing with the management of the Property as before).  Indeed, when asked what if Jack or Madam Tang had asked her to return the Property to them, her only answer was that she had never given any thought to this eventuality.

38.Mr Yim submits that Shum’s animus possidendi, if any, was clearly not that of a squatter who treated herself as and dealt with the Property as if she were the true owner.  Shum’s management of the Property after Mr Chang’s demise appears to be a mere continuation of what she had been doing before 1995 with no change as to her intention as someone merely responsible for taking care of the Property.  That she has received all rental income is neither here nor there for the present purpose. 

39.I find force in Mr Yim’s argument.  Indeed, having heard Shum’s evidence, I am left with nothing but an impression that Shum’s intention to possess, if any, is at best equivocal in the sense that her continued management of the Property was not necessarily referable to an intention to dispossess the owner and to occupy the Property as her own property.  It might well be that she simply had never given any thought to the idea of excluding from the Property Madam Tang as the surviving joint tenant of the Property other than adopting a wait and see approach ever since Mr Chang’s failed attempt in 1990 to resolve issues relating to the Property with Madam Tang or since obtaining legal advice from the probate lawyer in 1995. 

40.I therefore find Shum to have failed to prove on balance of probabilities her animus possidendi regarding the Property and rule against her on this issue.

Issue (3): Whether Madam Tang was suffering from a disability within the meaning of s 22(1) of the Limitation Ordinance at all material times

41.It is Jack’s case that even if Shum manages to prove adverse possession of the Property, s 22 of the Limitation Ordinance applies to extend the limitation period due to Madam Tang’s disability.

42.Section 22(1) of the Limitation Ordinanceprovides that:

“ (1) If on the date when any right of action accrued for which a period of limitation is prescribed by this Ordinance, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation had expired:

Provided that-

…no action to recover land or money charged on land shall be brought by virtue of this section by any person after the expiration of 30 years from the date on which the right of action accrued to that person or some person through whom he claims…”

43.Section 22(3) of the Limitation Ordinance provides that:

“(3) For the purposes of this section and section 22A, a person shall be deemed to be under a disability while he is an infant or of unsound mind...”

44.Counsel are in agreement that a liberal approach should be taken and a person of unsound mind should not be confined to a mental health patient only but should cover cases where a person cannot manage his own affairs.  See Shek Chi Wai v Chai Jennifer (HCA 6295/1993) unreported, Yam J, 28 June 1994at §18; Yeung Shea Chun v Director of Legal Aid (HCA 8439/1996) unreported, Waung J, 28 July 2000at §20 and H v Lau Ka Yee Michael & Anor[2006] 4 HKC 524 at §§81-83.

45.In this connection,I find it instructive to refer to the following speech of Lord Denning MR in Kirby v Leather [1965] 2 QB 367 (at 383E-384E) where the English Court of Appeal discussed the meaning of “unsoundness of mind” under the Limitation Act 1939:

“So the question comes down to this. Was David Kirby, at and after 8.5 p.m. on May 15, 1959, of unsound mind? The words ‘unsound mind’ are not defined in this statute. Nor are they in many statutes. It seems to me that the words ‘unsound mind’ in a statute must be construed in relation to the subject-matter with which the statute is dealing. …here it seems to me in this statute a person is ‘of unsound mind’ when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do…

…After a time [David Kirby] was to some extent able to appreciate (from being told by others) something of what had happened to him, and indeed to his scooter.  But he could not concentrate on it for any length of time: not long enough to be able to appreciate the nature and extent of any claim that he might have.  In particular he had no insight at all into his own mental state.  He was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement.”

(Emphasis added)

46.Mr Yim also prays in aid s 19 of the Interpretation and General Clauses Ordinance, Cap 1 which provides that:

“ An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

47.In light of the authorities cited above, I agree with Mr Yim’s submission that the object of s 22 of the Limitation Ordinance must be to protect those who lack the capacity to appreciate the nature and extent of his claim and the ability to exercise reasonable judgment in relation to his claim, so that time does not start to run against them until the disability ceases and the meaning of the term “disability” should be construed accordingly.

48.Mr Yim submits that when the right of action to recover the Property allegedly accrued on 31 May 1995, Madam Tang was already under a disability.  In support of this contention, Jack himself and Peter gave evidence on Madam Tang’s eccentric behaviours since 1980.  Jackfurther adduces in evidence an expert report of Dr Peter W T Yu (“Dr Yu”) dated 17 April 2010.  Pursuant to an earlier direction of the court, Dr Yu’s expert report was adduced in evidence without Dr Yu himself being called.

49.Dr Yu’s expert report consists of two parts.  The first part is an account of the salient information gleaned from Madam Tang’s medical records from 2000 to 2004 and a letter of 2009 from the mental health institute Madam Tang had attended.  The second part contains Dr Yu’s own opinion as to the nature and severity of Madam Tang’s symptoms formed on the basis of those documents and his conclusion.

50.Shum has adduced no factual evidence to challenge Jack’s evidence on Madam Shum’s mental problems or expert evidence in rebuttal of Dr Yu’s evidence.  Nor does Ms Hung challenge Dr Yu’s expertise or the admissibility of his expert report or otherwise dispute Mr Yim’s submission on what constitutes “unsound mind”.  

51.What Ms Hung contends is that Dr Yu’s report is hearsay evidence and the opinion he formed is based on hearsay evidence and involves a degree of speculation.  She further contends that the court in the present case lacks the benefit of any direct evidence regarding Madam Tang’s mental condition. 

52.I take such contentions as a reminder that the court should carefully consider any weight to be attached to such expert evidence in accordance with s 49 of the Evidence Ordinance, Cap 8, there being no dispute that the documents and medical records studied by Dr Yu are hearsay evidence.

53.In this connection, it is pertinent to note what is said in Hodgkinson & James,Expert Evidence: Law and Practice, 4^th ed, (2015) at §10-031:

“ It will frequently be necessary for expert witnesses to rely upon a report or other material prepared by an expert, who will probably not be a witness, and this they may do in order to demonstrate the information upon which they base their opinion. This will not, however, have the effect of proving the facts relied upon by the first expert.”

54.By way of general observation, I agree with Mr Yim that Jack does not have to rely on Dr Yu’s expert report in establishing the primary facts stated in the medical records which are themselves admissible as evidence.  I also accept that the nature of expert opinion evidence inevitably involves the drawing of inferences from hearsay evidence.  As is said in Phipson on Evidence, 18^th ed (2013) at §33-09:

“ Where the opinion of experts is based on report of facts, those facts, unless within the experts’ own knowledge, must be proved independently. An expert’s evidence is necessarily founded on his training and experience, both of which involve the acceptance of hearsay information. It is, however, permissible for him to give an opinion on the basis of such hearsay, provided that it relates to specific matters of which he does have personal knowledge, or of which admissible evidence will be given by other witness. He cannot give evidence of any particular transaction if he has no personal knowledge of it, though that does not mean that he cannot refer to such transactions as the basis of his opinion. Thus a doctor can give evidence of what he was told by a patient about his condition for the purpose of evaluating his diagnosis; though his testimony is inadmissible to show what symptoms were actually being experienced by the patient...”

55.With these principles in mind, I proceed to consider Dr Yu’s expert evidence.

56.I first observe that the medical records Dr Yu had studied were contemporaneous records prepared by Thomas Chen, Psy. D. (“Dr Chen”) and Dr Gene Yen (“Dr Yen”) of a mental health institute in the USA who attended to Madam Tang between 2000 and 2004.  Dr Chen had reportedly left the agency back in 2002.  Given the lapse of time, I agree with Mr Yim that it may not be reasonable or practicable to call either Dr Chen or Dr Yen as witnesses in these proceedings while one can think of no reason why any medical officers would have any motive to misrepresent Madam Tang’s condition in records documenting Madam Tang’s condition and psychiatric history. In any event, since Madam Tang has already passed away, the medical records are the best objective medical evidence available.  Due weight should therefore be given to such medical records.

57.From the medical records, Dr Yu discerned the following information which shows that Madam Tang was suffering from delusional disorder:

(1) Madam Tang had had paranoid delusions, which involve extreme suspiciousness as well as irrational fear of persecution.

(2) She only first contacted a mental health service in 2000 after having been ill for ten-plus years.  The onset was in 1986 or 1988-1989.

(3) She was said to have ‘strong paranoid belief’ and had apparently remained fully and firmly convinced of her false ideas despite repeated counseling by her psychologist and psychiatrist.

(4) She had broad and complex delusions as she believed almost, if not all, persons and events she encountered were part of the conspiracy targeting her.

(5) She had suffered severe distress and was angry with the police of the LAPD believing the police had the ability to read her thoughts.  She would also attribute malevolent meaning into benign events and gestures.

(6) Apart from basic self-care, including living on her own, she suffered impairment in various areas of functioning.  Her concentration and attention span were impaired.  Her judgment was poor or moderately impaired.  She had problems in using public transportation, interacting with others, sustaining focus and following direction, making rational decision and keeping schedules.

(7) Her psychiatrist believed she could manage her own funds but was uncertain about this.

58.Dr Yu is of the view that Madam Tang had a severe delusional disorder and believes the illness had probably lasted up to her death as it did not respond to treatment.  He also takes the view that Madam Tang was incapable of managing her property and affairs. As Dr Yu says:

“Ms Tang probably could manage very basic money transactions like shopping for food or other necessities, paying utilities bills, or depositing into or drawing out of a bank account. However, I think she was wholly incapable of conducting any slightly complicated money transactions in managing and administering her property and affairs. Such transactions would involve dealing at a more complex level with other people such as financial institutions, their staff, and legal professionals. She would not be able to trust these people in order to carry out these transactions or to consider their advice and make rational decisions based on such advice.”

59.While Dr Yu did not have the benefit of seeing Madam Tang in person and had to rely on her past medical records in forming an expert opinion, I am impressed by his well-structured account of his study of Madam Tang’s medical records.  I further find his own opinion well-grounded and referable to Madam Tang’s mental records.  If Dr Yu’s opinion does involve some degree of speculation, I do not find the same to be such as to devalue his expert opinion.  At any rate, Shum has adduced no expert evidence to enable this court to say otherwise.

60.It is of note that Dr Yu was not provided with the evidence of Jack or Peter on their late mother’s eccentric behaviours over the years.  There is therefore no question of his expert opinions having been coloured by such evidence.

61.According to Jack and Peter, whom I find to be honest and reliable witnesses whose evidence remained unshaken during cross-examination, Madam Tang had since 1980 displayed, inter alia, the following behaviours:

(a) suspicious of her belongings having been stolen without basis;

(b) mistrustful of her neighbours;

(c) writing cursing words on personal objects and on paper chits hidden under her mattress;

(d) always in fear of being spied on;

(e) making irrational decisions such as renting a mailbox 20 minutes’ drive away from her residence (rather than using a post office nearby) for fear of being spied on and continuing to pay a mechanics even after her car had been confiscated by the authority so that the latter would not do bad things to her;

(f) avoiding use of the common laundry facility at her residence because she always felt someone was shadowing her;

(g) displaying irrational hostility towards the police;

(h) displaying hostility against black people and hispanics without reasons;

(i) suspicious of someone having entered her residence while she was out;

(j) hiding her important papers in picture frames;

(k) allowing her apartment to look run down, dusty and dirty until her death; and

(l) refusing without reason to apply for government welfare and state medical insurance which was basically free money from the government.

62.Each of Jack and Peter had also been told by Madam Tang’s neighbours, before 1995 at least in Peter’s case and in front of Madam Tang, that their mother was crazy.  Apparently Madam Tang remained unmoved by such embarrassing act on her neighbours’ part.

63.Mr Yim submits that these behaviours of Madam Tang were consistent with the subsequent findings of her doctors in 2000-2004 and that as a matter of common sense mental illness does not come and go like influenza before inviting me to draw inference that Madam Tang’s mental problems had been present long before she was made to receive treatment and, in particular, no later than 31 May 1995 when Mr Chang died and the right to recover the Property against Shum allegedly accrued. 

64.I pause here to note that Mr Yim accepts that for s 22 of the Limitation Ordinance to apply, disability must exist at the time when the right of action accrued.  See Jourdan and Radley-Gardner, Adverse Possession (2^nd ed) 359 at §17-11.

65.On the other hand, Ms Hung makes the following observations from the evidence of Jack and Peter and submits that Madam Tang was capable of managing her own affairs without difficulty:

(1) She had lived alone for some 30 years and would reach out to her sons for assistance when she needed;

(2) She was able to drive by herself to manage her day-to-day errands until her car was impounded in 2000;

(3) She was capable of writing letters to a solicitor making enquiries as aforesaid in 1980-1982.

(4) She did not need her son’s help with managing her leases or payment of rent and utility bills;

(5) She would seek Peter’s advice on reasonableness of rent increase;

(6) She did not need her son’s help with traffic tickets or payment of fines;

(7) She did not need help in getting to and opening a mail box at a post office 20 minutes driving distance from her apartment;

(8) Her sons had never taken her to see a doctor despite finding her behaviour odd;

(9) Her fear for Hispanic and African American people could be related to an incident in or around 2000 when she was attacked by a Mexican. On that occasion, she managed to seek help from a stranger who then contacted Peter for her;

(10) She managed to deal with the inconvenience of not having a car in the USA after her car was impounded in 2000;

(11) She was said to have damaged the hallway walls of her apartment in 2007 but the documents produced by Peter show her to have acknowledged by herself a “Notice to Cure Violation(s) or Move Out” issued to her by the landlord and have apparently settled the repair costs subsequently demanded of her;

(12) She was convinced by Peter’s reasons in or around 2002 to apply for government medical insurance cards and was apparently able to provide the necessary information to the agent engaged by Peter for a successful application; and

(13) While in the convalescence home, she managed to give specific instructions to Peter regarding her tin boxes with money inside and photo frames with important documents concealed therein.

66.Valid as these observations may be, however, more can be said of the matters giving rise to such observations which may undermine Ms Hung’s argument on Madam Tang’s capability.  For instance:

(1) Jack gave a valid reason for not having taken his mother to see a doctor, that is,he did not have the heart to hurt his mother by telling her she had problems. 

(2) Madam Tang’s persistent refusal to apply for free medical insurance was also a reason for inaction on the part of Peter.

(3) Jack said Madam Tang led a simple life.  This might well explain why Madam Tang could handle her daily living despite her mental problems. 

(4) As Peter understands it, the manager of Madam Tang’s residence would come to collect rent in cash from Madam Tang who should therefore have no problem with making rental payment.

(5) According to Peter, rent control was in force and what he had to do when consulted by Madam Tang was to make simple calculation to see if a particular rent increase would exceed the upper limit.

67.I also find the act of vandalism on Madam Tang’s part in 2007 vexing one’s mind.  First, while there is no evidence as to why Madam Tang had damaged the hallway walls with a club thereby making herself liable to be evicted from her long-time residence, this is surely not an act a person of sound mind would lightly commit.  Secondly, what is described as MadamTang’s acknowledgement of documents is in fact what Peter believes to be his mother’shandwritten notes.  In the first note[1], Madam Tang recorded the service of the landlord’s notice and the fact that she would be advised of a certain matter the next day. The second note[2] appears to be a reminder for herself to make payment the next day.  A reasonable question to ask would be whether these notes were equally, if not more, reflective of Madam Tang’s need to make a note to either record or remind herself of every single event of her daily life, a practice not necessarily befitting someone who could manage her own affairs without difficulty.

68.One would also find a stark contrast between what Madam Tang managed to do in 1980-1982 and what she subsequently did with regard to the Property.  From the contents of her letter of 1982 to CY Kwan, one will find a precise and concise account of the joint purchase of the Property and the subsequent history before a series of relevant and intelligent questions was asked of the recipient with a view to obtaining legal advice for dealing with the Property.  

69.After CY Kwan declined her instructions, however, there is no evidence of Madam Tang having ever followed up on the matter.  Indeed, according to Jack or Peter (and I have no reason to disbelieve either of them), Madam Tang had never told them about her interest in the Property other than casually asking Jack about the Property upon the latter’s return from his visit to Hong Kong. 

70.Shortly before her demise, Madam Tang had a mild stroke and was admitted to a convalescence home. As it turned out, Madam Tang passed away within months and Peter began to examine her belongings only to find his mother to have hidden inside a photo frame some copy documents showing Madam Tang and Mr Chang to be joint owners of the Property. 

71.At my request, Peter showed me such documents (with both parties agreeing that they need not be adduced in evidence) which include a copy of the backsheet to an Assignment (without the main body) and some old land search records, both relating to the Property.  This gesture suggests that Madam Tang had never forgotten about her interest in the Property.  However, one may ask if her attachment of importance to such copy documents and concealment thereof in the way she did was equally, if not more, reflective of her mental problems.  One would also note that Madam Tang had merely told Peter about her concealment of important documents without disclosing to her eldest son exactly what the documents were. 

72.It is hard to understand how someone of Madam Tang’s intelligence could have seen fit to act as she did during the latter part of her life, not just in terms of the way she dealt with her interest in the Property which was her only valuable asset but also the apparently low level of trust she could place with her very own sons.  A reasonable, if not the only, explanation would be that Madam Tang was of unsound mind and was unable to manage her affairs in relation to the Property as a reasonable person would do.

73.More importantly, what Ms Hung sees as indications of Madam Tang being able to handle her affairs did not escape the attention of the doctors who attended to her in 2000-2004.  Indeed, one can readily find positive comments in her medical records.  For instance, she was said to be oriented to person, place and time and her memory appeared to be grossly intact.  She was said to be able to take care of basic grooming and hygiene and was fairly independent (as she did not trust others to do things for her).  She was also able to understand simple instructions (but had difficulty following through with the direction).  And Dr Yen appeared to have thought Madam Tang was competent to manage funds on her own behalf (albeit uncertain about this). 

74.Similarly, Dr Yu also takes the view that Madam Tang probably could manage very basic money transactions like shopping for food or other necessities, paying utilities bills, or depositing into or drawing out of a bank account.

75.Having taken into account both the positives and the negatives about Madam Tang, however, the doctors nonetheless came to the view that Madam Tang was “unable to interact with others appropriately due to pervasive paranoia”, “unable to make rational decision due to poor reality testing”, “is suspicious and has trouble trusting others”, “has poor insight into her illness” and“was wholly incapable of conducting any slightly complicated money transactions in managing and administering her property and affairs”. 

76.On the totality of evidence, I am satisfied that Jack has proven on balance of probabilities that Madam Tang was a person under disability for the purpose of s22 of the Limitation Ordinance as from either 1986 or 1988/1989 and not later than 31 May 1995 and that her disability continued until her death in 2008.  Even assuming that the right to recover the Property against Shum accrued on 31 May 1995 (when Mr Chang died), time did not start to run against Madam Tang until after her death on 16 February 2008.  The present action was therefore well within the 6-year limitation period when commenced on 18 February 2009 and Jack is not barred from recovering the Property.

Issue (4): Whether Madam Tang or Jack was liable for laches and/or had otherwise acquiesced in the rights of Shum, if any, in the Property

77.As Mr Yim rightly points out, the doctrine of laches is not based on the mere fact of delay.  Something more than mere delay, more even than extremely lengthy delay, is required before a party will be denied equitable rights under the doctrine of laches, as the question is whether the lapse of time has given rise to circumstances that now mean it would not be inequitable to deny relief to the party.  See Snell’s Equity, 33^rd ed, 2015 at §5-011. 

78.The only thing Ms Hung can point to in support of her argument is the length of delay of Madam Tang’s inaction (whether by herself or by persons on her behalf) having exceeded the relevant limitation period.

79.Regarding Madam Tang, delay on her part, if at all, can readily be explained by her disability as aforesaid.  As to Jack, I accept that he did not come to know about Madam Tang’s interest in the Property until after her death.  In any event, Jack simply had no locus standi to sue before being appointed as the administrator of Madam Tang’s estate.  Any argument of delay against Jack simply cannot get off the ground.

80.More pertinently, Ms Hung has no dispute with Mr Yim’s submission that where an express provision of the Limitation Ordinance applies, delay falling short of the statutory period cannot form the basis of a defence of laches and/or acquiescence.  See Snell’s Equity, 33^rd ed, 2015 at §5-011. 

81.In Incorporated Owners of So Tao Centre v Lam Kong Wan(CACV 158/2007) unreported, 7 December 2007 at §7, Le Pichon JA has this to say:

“The substantive issue raised by the plaintiff is whether laches is available as a defence at all when the claim for default interest is a claim based on express provisions in the DMC. For a document under seal which the DMC undoubtedly is, the relevant limitation period is 12 years. The law is well settled that the equitable doctrine of laches has no application where there is an express statutory provision providing a period of limitation for the plaintiff’s claim: see In re Pauling’s Settlement Trusts [1962] 1 WLR 86 115, affirmed [1964] Ch 303, 353. …”

82.I therefore rule against Shum on this issue.

Issue (5): Whether Shum has extinguished Madam Tang/Jack’s title and obtained a possessory title to the Property by operation of the Limitation Ordinance

83.In ruling against Shum on this last issue, I need say no more than that, by reason of the matters canvassed above, there can be no question of Shum having ever extinguishedMadam Tang/Jack’s title to the Property or obtained a possessory title to the Property.

Conclusion

84.Having adjudged in favour of Jack and against Shum as aforesaid and Jack having abandoned his claim against Shum for mesne profits, I order that:

(1) Shum do deliver up to Jack within 60 days from the date hereof possession of the Property together with alltitle deeds and documents relating to the Property in Shum’s possession; and

(2) Shum’s counterclaim be dismissed.

85.There be a costs order nisi that Shum do pay Jack costs of this action to be taxed if not agreed with certificate for one counsel.

86.I thank counsel for their assistance.

Mr Valentine Yim and Ms Chelsea Ma, instructed by Lo, Wong & Tsui,for the plaintiff

Ms Shirley C. Hung, instructed by S W Tai & Co for the defendant