U Po Chu (Otherwise Known As Yu Man Ki or Yu Man Kit) v. Tsang Pui Ling and Others

DCMP 467/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 467 OF 2013

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JUDGMENT

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INTRODUCTION

1.This is the plaintiff’s claim for possession of a piece of land known as No 61 Kau Wa Keng San Tsuen, at Section A of Lot No 3324 in SD 4; Section B of Lot No 3324 in SD 4; Section C of Lot No 3324 in SD 4, the Remaining Portion of Lot No 3324 in SD 4, Kwai Chung, Tsuen Wan, New Territories (“the Land”).

BACKGROUND

The plaintiff’s case

2.The plaintiff alleges that she was and is the registered owner of the Land under the name of ‘Yu Man Ki’ or ‘Yu Man Kit’.  A 2-storey stone house was built by the plaintiff and her contractors in or about late 1953 on the Land (“the Stone House”). 

3.The plaintiff has been a non-executive director of Lai Sun Garment Company Limited (renamed in 1988 as ‘Lai Sun Development Company Limited’) (“Lai Sun”) and is the second wife of its founder, the late Mr Lim Por Yen (「林百欣」).  Allegedly, in exchange for Lai Sun’s agreement that it would assist the plaintiff in managing the affairs in relation to the Stone House, the plaintiff agreed to let the Stone House to Lai Sun’s employees and their family members for residential purpose.  After the employees pass away, their family members would continue to live in upon payment of rent until they die.

4.Under the above arrangement, the plaintiff had orally agreed to let the Stone House and the Land to one Mr Cho Joi Cheung (“Cho”), who was an employee of Lai Sun, on condition that:-

(a) Lai Sun (and its employees and representatives) would take care of the Stone House and the Land for and on behalf of the plaintiff, including payment of the rates and the Government rent in respect of the Stone House and the Land for and on behalf of the plaintiff; and

(b) Cho could not sub-let or permit others to occupy the Stone House

(“the Tenancy”).

5.The Tenancy has allegedly been terminated on or about 30January 2015 by the plaintiff when the plaintiff, through her solicitors, served a notice to quit (“NTQ”) to: (i) the occupants of the Stone House and/or the Land; and (ii) the Official Administrator of the Probate Registry.

6.It is alleged that sometime after the plaintiff has become the registered owner of the Land, the defendants trespassed onto the Land by entering into and occupying the Stone House without the consent and/or authority of the plaintiff.  The plaintiff says that the defendants were therefore liable for trespass.

7.Since the commencement of the present proceedings, the 2^nd defendant Madam Wong Pat Mui (「黃八妹」) (“the 2^nd defendant”) has passed away in 2008.  The 3^rd defendant had never appeared during the course of the entire proceedings.  Hence, this action is now against the 1^st defendant only.

The 1^st defendant’s case

8.The defence of the 1^st defendant Madam Tsang Pui Ling (“the 1^st defendant”) essentially rests on a case of adverse possession.

9.It has been admitted that sometime prior to the early 1970s, the Stone House and the walls and fences enclosing the Land had already existed.  It is also admitted that Cho and his family members were occupying the G/F of the Stone House pursuant to a tenancy with his landlord.  The 2^nd defendant, who was the live-in maid of Cho, was also living on the G/F.  One Madam Chan Nam Sze (「陳南施」) (“Madam Chan”) and her family were occupying the 1/F of the Stone House also pursuant to a tenancy.

10.Besides the kitchen, the bathroom and the garden, the G/F of the Stone House consisted of a room at the front (“the front room”), a room in the middle (“the middle room”), a room at the rear (“the rear room”), a servant quarter (“the servant quarter”) and a living room which was later partitioned off as a separate room (“the partitioned room”).   

11.In relation to the alleged adverse possession of the 1^st defendant, it has been pleaded that:-

(a) Since or about 1972, the 1^st defendant and her family had used and occupied a room on the G/F of the Stone House with a gratuitous licence granted by Cho;

(b) After the death of Cho in or about 1978, the 1^st defendant started paying rent to the daughter-in-law of Cho (“Mrs Cho”);

(c) In or around July 1978, a Mr Lau (“Lau”), a relative of Mrs Cho, took possession of the G/F of the Stone House and continued to pay rent to the landlord;

(d) The 1^st defendant, the 2^nd defendant and other occupants of the G/F of the Stone House started to pay rent to Lau for the possession of their respective rooms;

(e) It is alleged that since around March 1979 the landlord has refused to accept rent.  Despite of that, it is alleged that Lau and Madam Chan continued to pay rent to the landlord until about 1985;

(f) At or about the same time, the 1^st defendant stopped paying rent to Lau;

(g) In or about 1991, the 1^st defendant allegedly took over the exclusive possession and control of the G/F of the Stone House from the daughter of Lau.  She has occupied all rooms on the G/F except a room being occupied by the 2^nd defendant, allegedly in her capacity as the 1^st defendant’s licensee in consideration of a monthly fee;

(h) In or about 1993, the 1^st defendant further took over the possession of the 1/F of the Stone House from Madam Chan and changed the locks on the doors installed in the staircase leading to the 1/F and the roof.  Since then, the 1^st defendant has been in exclusive possession of the Land; and

(i) Since or about 2004, the 1^st defendant has waived her entitlement to licence fee payable by the 2^nd defendant and allowed the 2^nd defendant to continue to use and occupy a room on the G/F until she passed away in 2008.

The issues in dispute

12.The main issues in dispute in this case can be summarized as follows:-

(a) Whether the plaintiff is the registered owner of the Land (“the registration issue”);

(b) If the answer to (a) is yes:-

(i) whether the 1^st defendant has been in adverse possession of the Land jointly with others, namely, Lau and Madam Chan, against the plaintiff since 1985 (“the 1985 joint adverse possession issue”); and  

(ii) whether the 1^st defendant has been in adverse possession on the Land against the plaintiff since 1993 (“the 1993 single adverse possession issue”);

(c) If the answer to (b) is yes, whether the 1^st defendant merely dispossessed the plaintiff’s tenant pursuant to the Tenancy instead of the plaintiff (“the tenancy issue”).

DISCUSSSION

(I) Complete lack of oral evidence on the part of the plaintiff

13.Before I discuss the above 3 main issues in this case, I would like to point out a very important but critical aspect of the plaintiff’s case, namely, a complete lack of oral evidence in support of her case.

14.Despite having firstly initiated the present proceedings (first by way of originating summons in October 2006 and later a statement of claim in September 2016, specifying in details her claims against the 2 defendants), then filing a detailed witness statement setting out her claims against both defendants in July 2013 and finally filing a supplemental witness statements in reply of the 1^st defendant’s allegations in February 2015, by the time when it comes to trial, the plaintiff has failed to provide any oral evidence in support of her case altogether.

15.In my view, this is most unsatisfactory and creates a complete lacuna in the plaintiff’s case insofar as rebutting the claims of the 1^st defendant in relation to the occupation of the Stone House / the Land is concerned. 

16.At the pre-trial review (“PTR”) of this case before me on 22 September 2015, counsel representing the plaintiff had positively told the court that the plaintiff would be coming to court to give evidence despite of her advanced age.  Indeed, there was no indication from the plaintiff or her solicitors that this might not be the case until just one week before the commencement of the trial.  On 13 November 2015, the solicitors representing the plaintiff wrote to the court stating, inter alia, the following[1]:-

“We are instructed that our client is elderly and 90 years of age. She is highly-strung, easily nervous and very anxious recently and she worries that her physical condition may render her unsuitable to be a witness. Hence, she would like to seek the Court’s indulgence to be excused from attending the Court as witness.”

17.As to the only other material witness to the plaintiff’s case, namely Mr Leung Kwai Kei (「梁桂褀」) (“KK Leung”), who had also filed a witness statement in the present proceedings, the plaintiff has failed to call him to give evidence at trial as well.  The excuse given on behalf of the plaintiff is as follows[2]:-

“We have been trying to contact Mr. Leung for several months but of no avail. Since, Mr. Leung is no longer an employee of Lai Sun Group since or about after filing his witness statement in August 2013 and we do not have the personal contact details of Mr. Leung, therefore, we are unable to notify Mr. Leung to attend the Court as witness.”

18.Hence, the only witness called by the plaintiff at trial is a clerk of a solicitors firm who testified on the service of the NTQ on the Land and the Stone House only.  As his evidence was uncontroversial, it did not advance the plaintiff’s case in any material way.

19.Following Ma J’s (as the Chief Justice then was) decision in Kao Lee & Yip v Koo Hoi Yan & Others [2003] 3 HKLRD 296 at 310 §34, in situation where a material witness fails to give evidence on behalf of one of the parties, adverse inferences may be easily drawn against that party and correspondingly, any inferences favourable to the other side can more confidently be draw as well: see also Polaroid Far East Ltd v Bel Trade Co Ltd & Others [1990] 2 HKLR 447, at p 454; Jones v Dunkel (1958-1959) 101 CLR 298 cited.  This is of course, as the Chief Justice said, providing the rest of the evidence allows such inferences to be drawn and that such evidence is credible in the first place.

20.Under our adversarial system, in a civil claim, he who asserts must prove.  Generally speaking, the burden of proof lies with the person who makes the allegation.  In this case, the plaintiff who makes the allegation that the 1^st defendant has trespassed on the Land must provide oral as well as documentary evidence, to prove, on a balance of probabilities, that the 1^st defendant was occupying the Stone House and the Land wrongfully as alleged.  Further, the plaintiff who alleges there was a tenancy between her and Cho must provide credible evidence to establish her case.  She cannot hide behind the veil of old age and alleged ill health for not coming to court to give evidence.  In this regard, I note that no medical evidence has been produced to the court to show that the plaintiff was “highly-strung, easily nervous and very anxious” and hence “render her unsuitable to be a witness” as claimed.

21.In my judgment, just because the plaintiff is “elderly and 90 years of age” is not a good enough reason for her to be excused from attending court to give evidence.  With respect, the court regularly hears evidence from elderly persons of similar age, if not above, particularly in cases involving with claims of adverse possession.  It poses no problem for most of these witnesses.  In the case of infirmity, provided that credible medical evidence is produced to the court in good time, alternative arrangements can be made and sometime indulgence can be given.  However, in this case, no notice was given of the prospect of not calling the plaintiff until one week prior to the commencement of the trial and no medical evidence has been produced to support the plaintiff’s alleged poor physical condition which would render her not suitable to be a witness.

22.The law knows no two set of rules: one for the rich and one for the poor.  All persons are equal before the law.  Just because a litigant may be rich or famous does not mean that he or she has any special privileges and can be excused from coming to court to prove his or her case. 

23.In my judgment, the plaintiff’s failure to produce the 2 material witnesses in this case, namely herself and KK Leung, has severely undermined the veracity of her claims.  Based on what has been stated in Kao Lee & Yip, supra, I shall accordingly draw adverse inferences against the plaintiff’s case and conversely draw favourable inferences to the 1^st defendant’s case, whenever such inferences can be drawn.  

24.Further, due to the failure of calling the plaintiff and KK Leung to give evidence at trial, I must also expunge the entire contents of their witness statements and treat as if no such statements had ever been filed.

25.The plaintiff’s primary case is that there was possession severally by different people on different parts of the Stone House at different time.  As admitted by the plaintiff’s counsel, albeit belatedly, the plaintiff could have no positive case against the 1^st defendant on this due to a complete lacuna of evidence on her part.  All she could rely on is what the 1^st defendant and her witnesses have stated in evidence and the documents produced by them.

26.Lastly, despite the complete lack of any positive evidence on her part, I note that the plaintiff still insisted on pursuing the tenancy issue at trial, an issue which she bears the burden of proof.

(II) Assessing the 1^st defendant’s evidence

27.When it comes to establishing adverse possession, of course the burden lies squarely with the 1^st defendant in this case.  By the nature of such claims, usually there is not much the owner of a piece of land or property could say about what might have happened during the alleged period(s) of occupation. In this case, the best that the plaintiff can do is to challenge the 1^st defendant’s case and try to demonstrate that the 1^st defendant has not been able to establish the 1985 joint adverse possession issue and the 1993 single adverse possession issue in her favour, whether it is as a matter of law or as a matter of evidence.

28.In a case such as our present one, I particularly reminded myself of the danger of relying too much on the self-serving statements made by a person claiming adverse possession.  As Slade J has famously stated in Powell v McFarlane (1979) 38 P & CR 452 at p 476:-

“I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.” (emphasis added)

29.I also reminded myself of the well established principles in the following 2 local cases in relation to the approach in assessing a witness’ credibility.

30.In Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd (unreported) HCA 1975/2005; 28 July 2011, Poon J (as he then was) explained those principles in the following terms at §§21, 24-25:-

“21. ... a good dose of common sense is required when the court evaluates the evidence in determining the probability or otherwise of the conflicting versions of events.

......

24. In assessing credibility, the court takes into account, among other things, the inherent probabilities or improbabilities of one’s testimony, the contemporaneous documents or any evidence, which is undisputed or indisputable, tending to support or contradict one account or the other and the overall impression of the characters and motivations of the witnesses: see In re B (Children), supra, per Baroness Hale at para 31 at p 24, applied by this court in Standard Chartered Bank v Li Wai Ping & others, HCA 10587/2000 & HCA 2575/2003, 17 February 2011, unreported, at para 19. Where there exists a wealth of contemporaneous documents, credibility is to be tested by reference most particularly to them: see Esquire (Electronics) Ltd v Hong Kong ＆ Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, per Stock JA (as he then was) at para 158 at p 494.

25. Further, some of the witnesses had given evidence for more than one action. The best example is Mr Lee, who is in fact a key witness for all the four actions. I must not take a blinkered approach when considering the testimony of such witnesses. I must assess their overall credibility on all the matters that they have testified to. If one’s evidence is found to be unreliable in one action, it will most likely affect his credibility in another.” (emphasis added)

31.In Hui Cheung Fai v Daiwa Development Ltd (unreported) HCA 1734/2009; 8 April 2014, DHCJ Eugene Fung SC held:-

“76. In making my findings of act in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in questions emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). It is right to point out, however, that some of the documents in this case are alleged by the Son to be shams and those documents obviously cannot be used to assess the credibility of the parties.

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability sole or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarized by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:-

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities.  It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.” (emphasis added)

32.Hence, in this case, I have warned myself against relying too much on the self-serving evidence given by the 1^st defendant and her witnesses in the witness box.  I also checked whether the evidence given in court are consistent with the contemporaneous written documents which came into existence before the proceedings commenced (not many in this case); the inherent likelihood or unlikelihood of an event according to common sense; the consistency of the witnesses’ evidence with the undisputed evidence and the internal consistency of the witnesses’ own evidence.  In the context of this case, in particular, I have considered whether the oral evidence are consistent with the contents of the pleadings and the witness statements / affirmations filed by the 1^st defendant and her witnesses, which was before she instructed lawyers to represent her.

(III)   Issue 1 – Was the plaintiff the registered owner of the Land?

33.On the registration issue, first and foremost, the plaintiff has to establish that she is the registered owner of the Land under the name ‘Yu Man Ki’ (for Section A, Section C and the remaining portion) and ‘Yu Man Kit’ (for Section B). 

34.Mr Ernest Ng, the 1^st defendant’s counsel, has fairly indicated to the court at the opening stage that the 1^st defendant no longer disputes the fact that the plaintiff was and is the registered owner of the Land.  Thus, this matter is no longer in issue.

35.However, for the sake of completeness, I find that the plaintiff has put forward satisfactory documentary evidence in support of the fact that ‘Yu Man Ki’ and ‘Yu Man Kit’ refer to the plaintiff herself.  They include:-

(a) First, from the Certificate of Registered Particulars issued by the Immigration Department, the plaintiff was issued with an ID card number 873xxx in May 1951 in the name of 「余文姬」(although the English name was stated as ‘Yue Man Kay’).  This is perfectly understandable given the lack of a consistent English translation for many Chinese characters back then.  She subsequently changed her name on 25 April 1962 to the present name of「余寶珠」(‘U Po Chu’);

(b) Second, from the Crown Land Permit issued by the District Commissioner, New Territories with number W00282, it has been shown that the land permit was granted to ‘Yu Man Ki’ who bears a close resemblance to the photo of the plaintiff shown on the Certificate of Registered Particulars;

(c) Third, from all the memorials of sales and purchase registered with the Land Registry, the purchaser of all sections of the Land was named;

(d) Fourth, the plaintiff has in her possession all the invoices issued by South East Construction Co for the construction of the Stone House and the enclosing wall on the Land in 1953.  All these documents were issued to either 「余文姬」 or 「林太太」, which correspond to the plaintiff’s identity as the second wife of the founder of Lai Sun, the late Mr Lim Por Yen (「林百欣」).

36.In my judgment, all the above documents verify the fact that the plaintiff was once named 「余文姬」 (translated either as ‘Yu Man Ki’or ‘Yu Man Kit’) and was the purchaser of all the sections of the Land.  She was also the person who had applied for the Crown Land Permit and paid for the construction of the Stone House and the enclosing wall on the Land.

37.Although the Land Search records show the English names spelt differently from the plaintiff’s English name on the Certificate of Registered Particulars, in my judgment, this is understandable given the fact that the English names of the Chinese population back in the 1950s and 1960s were often mistranslated and there was a lack of consistent spellings for most of the translated English names for Chinese people.

38.Further, the fact that the plaintiff has in her possession all the documents issued by both government departments and construction company gives rise to a strong inference that she is the same「余文姬」 (‘Yu Man Ki’ or ‘Yu Man Kit’) mentioned in the documents.  A fortioro, it is likely that she is the same 「余文姬」(‘Yu Man Ki’) named as the purchaser in the memorial of sales and purchase of all the sections of the Land.

39.Hence, on a balance of probabilities, I would have found that, by the documents produced at trial (which have not been disputed by the 1^st defendant), the plaintiff has successfully proved that she is the registered owner of the Land under the name of ‘Yu Man Ki’ and ‘Yu Man Kit’.

(IV) Issue 2 – the 1985 and 1993 adverse possession issues

(a) The law in relation to requisite intention to possess/dispossess and factual possession

40.The basic general principles in relation to adverse possession relevant to this action are not in dispute and have been summarized by this court in a similar case in Li Wong Fat v Chan Kam Hei, DCMP 1350 of 2012 (unreported, 11 December 2014) at §§48-69. I do not need to repeat them here.

41.In short, a person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai David & Anor [1998] 1 HKC 1, per Li CJ at p 12E. In other words, the burden of showing factual possession and intention to possess lies squarely with the person making the claim, in this case the 1^st defendant.

(b) Joint but in possession severally with others?

42.In this case, there is a very important legal dispute which warrants some further discussion.  The dispute is in relation to whether the 1^st defendant was in single factual possession of the Stone House / the Land she was in possession severally with others.

43.In Powell v McFarlane, supra at 470-471, Slade J stated the following:-

“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.” (emphasis added)

44.In this regard, I find the passage cited by Mr Ryan Law, counsel for the plaintiff, from Stephen Jourdan QC and Oliver Radley-Gardner on Adverse Possession (2^nd edition) at §§7-44 to 7-45 helpful:-

“Possession must be single: it can be held jointly but not severally

7-44.  So if a number of persons are given separate rights to use and occupy land, but none of them are given exclusive rights to do so, separately or together, there can be no tenancy: AG Securities v Vaughan.  And where a number of squatters make use of land at the same time, but the use each makes is independent of the others, and none of them is in effective control of the land, none will be in possession: Marsden v Miller.  It follows from this that no claim to possession can be made by a fluctuating body of persons such as the inhabitants of a parish: Norwich Corpn v Brown, where Chitty J said: “To gain an adverse title under the Statute of Limitations the possession must not be in one man one day, and in another another.”

7-45.  In Bigden v London Borough of Lambeth, a number of squatters occupied flats in a block. The door to the street was locked, and each of the squatters had keys. The trial judge held that the squatters were not in possession of the common parts of the block of flats. The Court of Appeal, per Mummery LJ, indicated that in any event, he agreed with the trial judge on the issue as to possession of the common parts. He described the contention that the squatters were collectively in possession as ‘novel and far reaching’ and rejected it, saying:

“The argument rests almost entirely on the fact that throughout the relevant period only the occupiers had the key to the street door to their block. Even assuming that this amounted to dispossession of the Council in respect of each block with a locked street door preventing the Council from gaining access, it does not follow that the defendants and their predecessors, who went into occupation of the property at different times, were collectively or jointly in adverse possession of the entire block, including its common parts, throughout the limitation period of 12 years... The judge was entitled to find as facts that there was no consensual arrangement affecting the basis of occupation of the individual flats within the blocks (the allocation arrangements being scant or non-existent); that there was no exercise of effective joint or communal control over the individual flats themselves; and that there was no physical occupation or joint adverse possession of the common parts ie the hall ways and staircases about which he heard evidence. The judge heard no evidence of joint occupation of other common parts of the blocks, such as the outer walls, foundations and the roof, which would also be relevant to the acquisition of a freehold title to a block of flats by adverse possession.” (emphasis added)

45.Hence, from the above, what is clear is that, as a matter of law, factual exclusive possession can be held jointly but not severally by several persons at the same time. 

46.In Marsden v Miller and Others (1992) 64 P & CR 239, at 243, the following has been said:-

“... In a case such as this, in which the object land is being used by others, and in which their continued use of the land would be inconsistent with the possession desired to be obtained, the would-be possessor, not being a person entitled in law to possession, cannot obtain de facto possession that the law will recognise unless the acts relied on as constitution the taking of possession are effective to exclude from the land those others.”

47.I agree with Mr Law’s submission that the concept of “joint possession” in adverse possession is closely related to the concept of “unity of possession” as one of the elements of joint tenancy.  In Adverse Possession, op. cit. , the learned authors of the work at §20-68 stated the following:-

“Where more than one squatter has possession simultaneously, the title acquired is held by the squatters as joint tenants, in the absence of evidence of a contrary intention, but one alone of the joint squatters cannot claim title alone.” (emphasis added)

48.In Megarry & Wade, The Law of Real Property, 8^th Edition, §13-005, ‘unity of possession’ has been defined as follows:-

“(a) Unity of possession. Unity of possession is common to all forms of co-ownership. At common law, each co-owner is as much entitled to possession of any part of the land as the others. He cannot point to any part of the land as his own to the exclusion of the others; if he could, there would be separate ownership and not co-ownership.” (emphasis added)

49.Based on the above, I agree with the following propositions put forward by Mr Law, namely, to be able to adversely possess a property through joint possession by several squatters, it must be shown that all the squatters have unity of possession jointly over the whole property, rather than merely have possession over a particular part of the property severally and independently from the other squatters.  Otherwise, there would be no exercise of effective control over the individual parts of the property (as in Lambeth London Borough v Beigden (2001) 33 HLR 43) and none of them is in effective control of the land (as in Marsden v Miller & Others, supra).

50.The plaintiff’s case is that Lau, Madam Chan, 1^st defendant and 2^nd defendant had been severally and independently in possession of the Stone House at different points of time.  The plaintiff submits that this mere fact negates the alleged factual possession of the 1^st defendant, either jointly from 1985 or solely from 1993, and at least until 2008 when the 2^nd defendant passed away.

51.The 1^st defendant’s submission of law on this issue can be summarized as follows.

52.Mr Ng, on behalf of the 1^st defendant, submits that the starting point is the famous quote from Powell v McFarlane, supra where it has been said that “there can be a single possession exercised by or on behalf of several persons jointly”: at §(3) p 470. (emphasis supplied by Mr Ng)

53.He submits that the above statement has been confirmed by Lord Brown-Wilkinson in J A Pye (Oxford) Ltd v Graham & another [2003] 1 AC 419 at 436 §41.  However, as the learned judge has also said in §38 of the same case, “in the case of joint possessors, possession is single and exclusive.” (emphasis supplied by Mr Ng)

54.In J A Pye, Lord Hope at §70 stated the following:-

“70. The general rule, which English law has derived from the Roman law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of property simultaneously. As between themselves they have separate rights, but as against everyone else they are in the position of a single owner. Once possession has begun, as in the case of the owner of land with a paper title who has entered into occupation of it, his possession is presumed to continue. But it can be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else. The acquisition of possession requires both an intention to take or occupy the land (“animus”) and some act of the body (‘corpus”) *446 which gives effect to that intention. Occupation of the land alone is not enough, nor is an intention to occupy which is not put into effect by action. Both aspects must be examined, and each is bound up with the other. But acts of the mind can be, and sometimes can only be, demonstrated by acts of the body. In practice, the best evidence of intention is frequently found in the acts which have taken place.” (emphasis added by Mr Ng)

55.The 1^st defendant submits that the above passages in Powell and J A Pye, when taken together, established the following principles:-

(a) First, it is legally permissible to have adverse possession by more than one person, that is joint possession;

(b) Second, it is not necessary in joint possession cases for the possession to be “single and exclusive”.  In this sense, as between the possessors, there can be separate rights inter se (ie in these cases “exclusive” would not be as important as such between the parties).  As against the world, the possession must still be single and exclusive; and

(c) Third, when one of the possessors ceases possession, the possession (in abeyance in theory) can be acquired by someone else. (emphasis supplied by Mr Ng)

56.The 1^st defendant further submits that the case law in the UK, through a trilogy of cases has further developed on the ascertainment of joint possession and the ways in which joint possession, (which is often accompanied by the assumption of the whole by one of the initial joint possessors), may be proved.  The said trilogy comprised of: Ellis v Lambeth LBC (1999) 32 HLR 596 (“Ellis”), Lambeth London Borough Council v Bigden (2000) 33 HLR 478 (“Bigden”) and Allen v Matthews (2007) unreported, [2007] EWCA 216 (“Allen”).

57.Mr Ng also submits that Powell and J A Pye, together with the above trilogy of cases, firmly established that whilst joint possession remains ultimately a question of fact, the court, in determining whether joint possession is established on facts, ought to take into account of the following factors:-

“(a) Whether there has been a “consensual agreement” between the joint possessors at the time of the possession and in this connection, it is not necessary for there to be a precise delineation as to how the joint possessors divide the property as between themselves (the “Agreement Factor”, based on Ellis/Bigden/Allen);

(b) Whether as a whole, one of or all of the joint possessors were in a sufficient degree of possession (with the requisite intention) and dealt with the property as an occupying owner might have been expected to deal with it. This is in accordance with the usual cases of adverse possession (the “Possession Factor”, based on adverse possession law generally and in Ellis/Bigden/Allen);

(c) Whether there has been joint or communal control over the property and physical occupation or joint adverse possession of common parts (the “Control Factor”, based on Bigden); and

(d) The way in which the interest held by each possessor was transmitted to the eventual sole or remaining possessor(s) (the “Transmission Factor”, based on Ellis/Allen).” (emphasis supplied by Mr Ng)

58.I am not sure if I could agree with the above propositions made by Mr Ng.  I shall deal with the above submissions below when deciding on the 1985 and 1993 adverse possession issues respectively. 

(c)  Evidence given by the 1^st defendant

59.The following evidence was given by the 1^st defendant at trial:-

(a) The 1^st defendant first entered into the Land with her husband and mother-in-law upon the invitation of Cho, in or about 1972 as a gratuitous licencee of Cho.

(b) Prior to moving into the Stone House, she understood Cho was a teacher or tutor. (I note that there is no evidence produced by the plaintiff to show that Cho was at any time an employee of Lai Sun and I would so draw the adverse inference against the plaintiff that he was).

(c) At one stage, a landlord’s representative by the name of Lee Wai Woon (「李偉垣」) (“Lee”) had collected rent on behalf of the owner of the Land from Cho[3].

(d) After the death of Cho in or about 1978, the 1^st defendant started paying rent to the daughter-in-law of Cho, ie Mrs Cho at HK$100 per month.

(e) In or around July 1978, Lau, the relative of Mrs Cho, took possession of parts of the G/F of the Stone House, ie the front room and the living room.

(f) The 2^nd defendant no longer worked for Cho by this time and worked for another family outside.  However, she still lived in the servant’s quarter at the Stone House during her holidays.  In the meantime, the 2^nd defendant introduced a lady by the name of Sau Ku (「秀姑」) to live in the Stone House.  Both of them started to pay rent in the sum of “less than HK$100 per month” to Mrs Cho.

(g) In or around 1979, Mrs Cho emigrated and moved out of the village.  Before she left, she asked the 1^st and 2^nddefendants to pay rent to Lau instead.

(h) From around 1979, the 1^st defendant and the 2^nd defendant and other occupants of the G/F of the Stone House started to pay rent to Lau as instructed.

(i) In the same year, Lau told the 1^st defendant that the landlord was not receiving the rent and the way the rent to be paid to the landlord would have to be changed.

(j) At first the occupants were at a loss and did not know what to do. After some discussions allegedly amongst Lau, the 1^st defendant and Madam Chan (without the 2^nd defendant), they decided that, instead of paying rent directly to the landlord’s representative, ie Lee, they would mail the rent to him by way of “money order” (「滙票」).  Allegedly, the 1^st defendant and Lau (again allegedly without the 2^nd defendant’s involvement) would combine and apportion the rent amongst themselves in respect of the G/F and Madam Chan would pay for upstairs.

(k) In 1980, 9 months after sending the initial rent to Lee, they received notice from the Post Office that the money order was not cashed.  From that point onwards, they would “recycle” the money in order to pay rent to the landlord.

(l) Under this “recycling” of rental arrangement (which allegedly last from 1979 to around 1985), one of them (the 1^st defendant, 2^nd defendant or Lau) would collect the rent from the different occupants of the Stone House, go to the Post Office to purchase the money order and to post it, depending on who was free on the day.  That person’s name would then be put on the record of the Post Office as the sender and purchaser of the money order.

(m) After receiving notice from the Post Office that the money order had not been cashed, the 1^st defendant or others would go to the Post Office to collect the “un-cashed” money order, purchase a new money order and post it to the landlord’s representative again.

(n) Around this time, Lau moved out of the front room and moved into the living room which he had earlier partitioned off to form the partitioned room. Meanwhile, the 1^st defendant and Lau rented the front room to the mother of one Madam Cheung (“Madam Cheung”) instead.

(o) In or around 1984, Sau Ku (and her sister) returned to their hometown and a nephew of the 2^nd defendant called Yue Tak (「裕德」) came to Hong Kong to live with her.  Allegedly, the 1^st defendant agreed to let the 2^nd defendant to have the use of the rear room on condition that she would vacate the servant quarter for the 1^st defendant’s use.

(p) In 1985, after the mother of Madam Cheung (who was then occupying the front room) had moved out, the 2^nd defendant wanted to rent the front room for herself and her nephews Yue Tak and Tung Tak (「同德」).  Lau suggested and the 1^st defendant agreed that both the front room and the rear room would be let to the 1^st defendant for HK$100 per month, which would be collected once every 2 months.  This rent was allegedly paid by the 2^nd defendant until the year of 2004.

(q) In late 1985, the occupants of the Stone House came together (allegedly without the 2^nd defendant again) and agreed that they would stop paying rent to the landlord altogether and would occupy the Stone House and the Land jointly (「聯合佔用」) and they would jointly exclude the whole world from entering the Land (「不讓該地給其他人擅進」) and that if one of the occupiers left, his/her portion of occupation would only be occupied by other surviving members of the “coalition” (「佔用聯盟」) (“the 1985 Agreement”);   

(r) Prior to Madam Chan’s departure in 1993, the 1^st defendant (together with her family) and the 2^nd defendant (together with her nephews) had possession of the whole of the G/F and Madam Chan (together with her family) had possession of the 1/F of the Stone House, and they jointly possessed and used the common parts of the Stone House / the Land;

(s) In the year of 1993, Madam Chan (and all members of her family then residing on 1/F) moved away and allegedly passed the keys and the occupation of the 1/F to the 1^st defendant;

(t) After Madam Chan left in 1993, allegedly the 1^st defendant replaced the old low-rise wooden door (which was of around 3’ tall and intended to prevent children from going up and down the stair) with a metal gate of 4’ tall with padlock to prevent the then tenant (ie the 2^nd defendant) and her visitors from going up to the 1/F without the 1^st defendant’s permission;

(u) The 1^st defendant had allegedly been solely responsible for paying the utilities bills such as electricity and water charges after 1993.  The 2^nd defendant allegedly did not pay. Further, the 1^st defendant alleged that she had the power and liberty to cut off the water meter when she found out that there was leakage and to maintain the property when there were landslide/ sand flow.

(d) Plaintiff’s challenge on the 2^nd defendant’s status

60.The plaintiff has never challenged the fact that the 1^st defendant was in possession of the Stone House / the Land but only challenged the point that her possession was not exclusive.

(V) The 1985 joint adverse possession issue

61.Despite what the 1^st defendant has repeatedly stated in the witness box that there was factual exclusive possession jointly held by her, Lau and Madam Chan (but not the 2^nd defendant) between 1985 and 1993, I do not find her evidence convincing nor do I find it consistent with her own pleadings, previous statements and the evidence of others witnesses.

62.First, I agree with Mr Law that there had been a very clear allocation of rooms between the different occupants of the Stone House as early as in 1972.  From 1985 onwards, Lau, Madam Chan, the 1^st defendant and the 2^nd defendant had been independently and severally in possession of the following parts of the Stone House:-

(a) Lau (and his family) was in possession of the partitioned room;

(b) Madam Chan (and her family) was in possession of the whole of the 1/F of the Stone House from 1985 to 1993;

(c) The 1^st defendant (and her family) was in possession of the middle room and the servant quarter; and

(d) The 2^nd defendant (and her nephews) was in possession of the front room and the rear room.

63.Not only the partitioned room, the 1/F and the middle room each had its own respective electricity meter, each of the occupants had exclusive use of the rooms occupied by his or her own family.  For example, Lau had exclusive possession of the partitioned room and no other occupants could enter or use that room unless with the permission of Lau.  Similarly, Madam Chan and her family had exclusive and uninterrupted occupation of the whole of the 1/F and that use was independent of all others in the house.  Save and except when the 1^st defendant needed to get to the roof top, no other occupants would be allowed to get into the 1/F area.  In the case of the 2^nd defendant and her nephews, the situation was the same.  Their possession of the front and rear rooms were exclusive and others, including the 1^st defendant and her family, were not allowed to use those rooms while they were being occupied by the 2^nd defendant and her nephews.

64.I further note that, unlike normal situation where members of a family may jointly possess a property together, the occupants of the Stone House were all unrelated and their relationship was not even close. For example, the 1^st defendant in her evidence mentioned occupants that the occupiers would only greet each other if they saw each other.  She did not even know the names of Madam Chan’s family nor which room did they occupy on 1/F[4]. The 1^st defendant  also confirmed under cross examination that they would all used their own rooms and would not interfere with the usage of others.

65.In the circumstances, I consider and so find that the respective possession of the room or rooms of the occupants of the Stone House was several and independent of each others.

66.In this respect, I agree with Mr Law’s submission that the occupants could point to their respective rooms of the Stone House as their own to the exclusion of others, and they were therefore not having unity of possession.  I further agree with his submission that they were at best in possession severally of their own rooms but not in joint possession of the Stone House.  As such, I agree and so find that between 1985 and 1993, none of the occupants was in effective control of the Stone House and none of them was in factual exclusive possession thereof.

67.One significant matter is that each room had its own electricity meter. In my judgment, this fact alone strongly indicates that the parties never had the intention to jointly possess the whole of the Stone House together. What is more significant is the fact that the 1^st defendant has consciously severed herself from the rest of the house by applying for a separate electricity meter with the address of 61A in 1985.  This conscious and deliberate act of the 1^st defendant was done after she realized one address could only have one electricity meter.  Hence, in order to only pay electricity for her own room without paying for others’, she made up a new address and applied for a new meter.  Similarly, she applied for her own water meter independently from other occupants[5].

68.Mr Ng tries to rely on the passage in J A Pye to argue that Lau, Madam Chan, the 1^st and 2^nd defendants could still be regarded as in single joint possession but enjoying separate rights in occupying different parts to the Stone House[6].

69.With respect, I do not think I can agree with Mr Ng’s submission. 

70.Despite the very attractive propositions eloquently put forward by Mr Ng, I think he has confused the concept between ‘the right to occupy” and the concept of “possession”.  In this regard, I accept Mr Law’s submission on this which was based on a passage in Adverse Possession, op. cit. at §§7-37 and 7-39, which is a comment directly in response to the passage cited by Mr Ng in J A Pye:-

“7-37. The requirement that possession must be single and exclusive distinguishes possession, which is the effective control of land, from mere occupation of land. In Hills (Patents) Ltd v University College Hospital Board of Governors the question there was whether the premises would be “occupied: by the board of governors of a National Health Service hospital or only by the Ministry of Health. Denning LJ distinguished between possession and occupation, saying: “Mr. Wilson says that the Minister will occupy the premises. That may be true, but I think that the board of governors will occupy them also. Possession in law is, of course, single and exclusive; but occupation may be shared with others or had on behalf of others.

7-39.  However, the difference in principle is clear.  The person in actual possession has effective control of the land.  He is in charge of it.  If anyone else uses the land, it must either be with his permission, or pursuant to a specific, limited, defined right such as an easement or profit a prendre.  A person who uses or occupies land without being in possession, however, only makes use of the land in a limited way and for limited purposes.  The difference between possession and occupation is fundamental to English land law.  It is the feature which distinguishes a lease from a licence, and an easement from a claim to possession...”

71.Further, the learned authors in Adverse Possession, op. cit., at §7-44 state the follows:-

“7-44. So if a number of persons are given separate rights to use and occupy land, but none of them are given exclusive rights to do so, separately or together, there can be no tenancy: AG Securities v Vaughan. And where a number of squatters make use of land at the same time, but the use each makes is independent of the others, and none of them is in effective control of the land, none will be in possession: Marsden v Miller.”

72.Based on the above, I accept Mr Law’s submission and hold that, as a matter of law, the concept of “separate rights to use and occupy land” held by different persons is very different from the concept of “several possession” held by different persons in such a situation.

73.I agree with the plaintiff that the J A Pye passage cited by Mr Ng would only apply if the factual matrix in the case provides that the squatters can be regarded as a single joint possession having separate rights of occupation.  However, if as in the situation in this case (based on the factual findings I made above), the occupants possessed the land or property severally and independently from each other, I do not consider the J A Rye passage will apply.  

74.In my judgment, therefore, the factual matrix in this case simply does not support the 1^st defendant contention that the parties enjoyed single joint possession having separate rights of occupation.   Hence, based on the reasons I have stated above, their possession must be regarded as “several”.   

(VI) The 1993 sole adverse possession issue

75.Mr Ng submits that this is the 1^st defendant’s primary case.

76.The 1^st defendant’s case that she has been in sole possession of the Stone House and the Land since 1993 is mainly based on the following 2 grounds:-

(a) that the 1^st defendant was merely an amah and therefore had no say in any of the occupation / possession issues; and

(b) that the 2^nd defendant had been paying her $100 rental per month in the capacity as her tenant for the front room.

(a)  The amah issue

77.The 1^st defendant during her evidence has tried very hard to distance herself from the 2^nd defendant, stating that she was merely a “Ha Yan” (“「下人」”) (which can be literally translated as a “lower class person”).  It is an old derogatory term used to describe live-in amahs or full-time servants working for a family.  As such, the 1^st defendant claims that the 2^nd defendant was not entitled to participate in the discussion of the 1985 Agreement (as in all other discussions) concerning the occupation of the Land and / or the Stone House.

78.I find such self-serving statements of the 1^st defendant, given both in court and by way of supplemental witness statement (filed only after the 1^st defendant instructed lawyers to represent her), not convincing and in any event not consistent with her own previous statements and the evidence of her other witnesses.  They are also in my view inherently improbable given the fact that the 1^st defendant was never a maid or servant of the 2^nd defendant and I do not see why the 1^st defendant would, being a former factory worker herself, consider herself “superior” or of a “higher class” than the 2^nd defendant. 

79.In my judgment, the 1^st defendant’s accounts on this issue are not believable for the following reasons:-

(a) The 2^nd defendant might be a “Ha Yan” or amah of Cho when she first lived in the Stone House, her status had clearly changed when she started to work for someone else outside upon Cho’s death.  For all intents and purposes, she treated the Stone House as her “home” where she would go out to work during the day and come back to sleep during the night and subsequently spent her entire time there during her retirement;

(b) Like the 1^st defendant when she was invited to enter to live in the Stone House with her family in 1972, the 2^nd defendant was a gratuitous licensee of Cho;

(c) Since Cho died in 1972, her status was no different from that of the 1^st defendant, ie they started to pay rent to Lau for occupying their respective rooms;

(d) The 2^nd defendant’s name would appear in the record of the Post Office as the person who had posted the money order on behalf of all occupants of the Stone House to the landlord’s representative;

(e) It appears that the 2^nd defendant contributed equally to the utilities charges when she started to pay rent to Lau after the death of her employer;

(f) In 1984, the 2^nd defendant and her nephews moved out of the servant quarter and into the rear room as well as occupying the front room (occupying 2 rooms) until she passed away in 2008;

(g) Similar to the 2^nd defendant, the 1^st defendant had also occupied 2 rooms since 1984, ie the servant quarter in addition to the middle room;

(h) Like the 1^st defendant, the 2^nd defendant ceased to pay rent to the landlord (first for the servant quarter and since 1984 for the rear room) when the rent sent to the representative of the landlord was returned to them in or around 1980;

(i) In 1985, the 2^nd defendant occupied the front room with allegedly a monthly payment of HK$100;

(j) There was never any “swapping of rooms” between the 1^st and 2^nd defendant as alleged.  As confirmed in the oral evidence of the 1^st defendant, the 1^st defendant in fact took over an extra room, namely the servant quarter, in addition to the middle room. 

80.The 1^st defendant’s assertion that the 2^nd defendant was merely a “lower class person” (「下人」) and not a joint possessor was also inconsistent with her own previous statements and the witness statement of her son:-

(a) In her 1^st affirmation filed on 12 September 2013, she specially mentioned that “all of us gathered and agreed together that all the tenants (including G/F and 1/F) would stop paying rent together ..... the (Stone House) would only be allowed to be occupied by the surviving members of the coalition and no outsiders would be allowed to move in or to substitute (the original members): see §12 of her 1^st affirmation[7] .

(b) She further stated that “By 2006, the only persons left who were still in possession of the Land included my family and the 2^nd defendant only”: see §14 of her 1^st affirmation[8].

(c) At the time when she filed her 1^st affirmation in September 2013, she clearly considered herself and the 2^nd defendant on the same boat in so far as the status of the “coalition” is concerned: see §22 of her 1^st affirmation[9].

(d) She also confirmed what she has mentioned above in the 2^nd affirmation filed by her on 6 December 2013: see for example §§10-11 of the 2^nd affirmation[10]. It is obvious that, before she engaged lawyers to represent her in this case, the 1^st defendant had only regarded herself as the last remaining member of the “coalition” after the 2^nd defendant passed away in 2008.  That being the case, logically speaking, the 2^nd defendant must be a member of that coalition prior to her death, having the same capacity and power as that of the 1^st defendant in occupying the Stone House instead of a tenant of the 1^st defendant.     

(e) In the witness statement of DW2, the son of the 1^st defendant, he mentioned that “for years the 1^st defendant and her family had treated the 2^nd defendant as part of the family” and that she had left her keys to her rooms to the 1^st defendant for any “eventuality”. Thus, upon her death, the 1^st defendant could take over the rooms occupied by her: see §8 of DW2’s witness statement[11].

81.To me, what is most interesting is that all her allegations regarding the 2^nd defendant being a “lower class person” (「下人」) and a tenant of her since 1993 have only started to emerge after she has instructed lawyers to represent her in this case.  Prior to that, in all her pleadings, answers to F&BP and affirmations filed, there had been consistent statements made by her that the 2^nd defendant was “part of the members of the coalition” and “the last surviving member of the coalition” besides herself. It was only after lawyers have been engaged to act for her that her story has changed and the 2^nd defendant’s status has somehow been downgraded from that of a “coalition member” (enjoying equal status as that of 1^st defendant) to become a “lower class person” and a tenant.  In my judgment, it is obvious that the previous homemade statements made by her in the proceedings are more reliable and closer to what actually happened.       

82.Looking at the matter in the round and a great deal of common sense, there was practically no or very little difference between the status of the 1^st and 2^nd defendants during their respective occupation to the different rooms of the Stone House, namely (i) they were both licensees of Cho in the beginning; (ii) they started to pay rent to Lau sometime in 1978 after Cho passed away; (iii) they ceased to pay rent to Lau since 1980; (iv) they continued to occupy the same rooms until the 2^nd defendant died in 2008. 

83.I agree with Mr Law’s submission that given the fact that the 2^nd defendant knew very well from the beginning that the 1^st defendant had no interest in the Stone House but was merely a licensee (just like herself), it simply does not make sense why the 2^nd defendant would suddenly become the tenant or licensee of the 1^st defendant or was in a different capacity from that of the 1^st defendant when occupying the rear room after 1985.           

84.Based on my above factual findings, I do not see any difference between the position of the 1^st defendant and the 2^nd defendant in their respective occupation of the different rooms of the Stone House.  

(b) $100 rental payment issue

85.Another reason why the 1^st defendant claims that she was in exclusive possession of the Stone House since 1993 was based on the allegation that the 2^nd defendant was merely a tenant or licensee of her as the $100 rental was paid to her both for the front room and the rear room.

86.I do not find this claim of the 1^st defendant convincing at all for the following reasons:-

(a) The claim is not consistent with her own pleaded case: it was never pleaded in the re-amended defence and counterclaim that the $100 rental payment was for ­both the rear room and the front room: see para 14(b), 16 of the amended defence & counterclaim.

(b) In none of the court documents filed by the 1^st defendant or in her son’s witness statement, it was ever mentioned that the $100 was rental payment for both rooms;

(c) In the 1^st reply to the F&BP, it has been said that upon the arrival of her nephew, the 2^nd defendant asked to rent the front room and agreed to pay $100 per month as rental for the front room. Nothing was mentioned about paying for the other room she was staying at the time: see §3 on p 3 of the 1^st defendant’s 1^st reply to the F&BP[12];

(d) In the 2^nd reply to the F&BP, the 1^st defendant reiterated that while the 2^nd defendant lived in the rear room, she allegedly had rented the front room from her: see 1^st defendant’s 2^nd reply to F&BP;

(e) In the witness statement filed by her son (DW2), he stated that “while (the 2^nd defendant) had changed and moved into the bigger “rear room”, and later in 1985, she additionally paid $100 to rent the front room from Lau”: §3 of DW2’s witness statement[13] (emphasis added);

(f) In the 1^st affirmation of the 1^st defendant in the striking out application, the 1^st defendant stated that in 1985, she was told by Lau that there was no need to pay rent anymore: see §§9 & 10 of 1^st affirmation of the 1^st defendant;

(g) None of the court documents (including witness statements filed on behalf of the 1^st defendant) are consistent with her oral evidence that the $100 was for both the rear room and the front room;

(h) There is also no documentary evidence produced by the 1^st defendant to support the 1^st defendant’s oral evidence on this issue at all.

87.Thus, on the 1993 sole possession issue, I find that the 1^st defendant has failed to prove her case that she had sole exclusive possession to the Stone House and / or the Land. 

(VII) A side issue: the 3 letter boxes

88.It is the plaintiff’s case that the Stone House has never been in exclusive possession of the 1^st defendant as there had been at least 3 people living in the Stone House with the 1^st defendant until as late as 2006, with the following addresses:-

(a) Ms Vong Pik Kuen (「黃碧娟」) being the grandchild of Madam Chan Nam Sze, at 1/F, 61 Kau Wah New Village, Sham Shui Po;

(b) Mr Chow Kwok Kwong (「周國光」), at G/F, 61A Kau wah new Village, Sham Shui Po; and

(c) The 2^nd defendant.

89.The plaintiff pointed to the fact that the Stone House had 3 letterboxes in the front gate for the addresses.

90.The plaintiff further claims that it is undisputed that the rates and government rent have all along been paid by the plaintiff, even though that the 1^st defendant claims that she paid the electricity bills of her room in the Stone House.

91.Under these circumstances, the plaintiff’s position is that the 1^st defendant has never been in exclusive possession or has the requisite intention to possess/dispossess in relation to the adverse possession of the Land.

Was Vong and Chow a “co-resident”?

92.Insofar as the claim that Vong and Chow were “co-residents” during this period is concerned, I would reject the plaintiff’s contention due to the lack of any credible and / or oral evidence.  The only piece of evidence put forward by the plaintiff are the 2 photos allegedly showing that, at some point in time, Vong and Chow had been living in the Stone House.  In the photos, the address of Vong was shown as “1/F 61 Kau Wah New Village, Sham Shui Po” and the address of Chow was shown as 「九龍荔枝角九華徑新村61A地下」(which could be translated as “61A, G/F Kau Wah Keng New Village, Lau Chi Kok, Kowloon”). These photos are undated, not clear if they were taken from letters or that they were taken from the letter box of the iron gate outside the Stone House. In the absence of any oral evidence to support her case (as KK Leung who supposed to have taken the photos was not called), I would draw adverse inferences against such speculative contentions.

93.To the contrary, the 1^st defendant has provided plausible explanation in her evidence on this side issue and I accept them as truthful in the absence of any oral evidence given by the plaintiff.  I find as a fact that Vong had left the Stone House in 1993 together with Madam Chan.  However, letters and various promotional materials in her name were still being sent to that address well over 20 years after she left.  In my experience, unless a person has specifically made arrangements to re-direct the post, letters may still be posted to his or her address after they have moved out from a premises for a long time. 

94.As far as letters found in the name of Chow is concerned, I accept the 1^st defendant’s evidence that in fact the address was referring to the neighbouring village of a similar name where persons of surname Chow occupied those premises.

95.I further accept the 1^st defendant’s evidence that the 61A letterbox placed on the iron gate of the Stone House was placed there merely for the purpose of setting up an extra electricity meter within the Stone House and that no one living within the Stone House would use 61A as the corresponding address.

96.However, as is apparent from the discussions above, this side issue will not affect my findings on the main 1985 and 1993 adverse possession issues.

(VIII) Animus Possidendi of the 1985 and 1993 Adverse Possession

97.This is again a question of fact similar to the question of factual possession above.

98.It may be appropriate for me to reiterate a few undisputed legal principles in relation to factual possession here.

99.First, such intention may be, and often is, deducted from physical acts themselves.  In this regard, I find the following passage from J A Pye,supra by Lord Browne-Wilkinson at particularly helpful:-

“40 In Powell’s case 38 P & CR 470 Slade J said, at p 470:

“(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”).”

Counsel for both parties criticised this definition as being defined – possession – in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control (“factual possession”; (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). What is crucial is to understand that, without the requisite intention, in law there can be no possession.”

100.Second, what is required is “not an intention to own or even an intention to acquire ownership but an intention to possess”: see Buckinghamshire County Council v Moran [1990] 1 Ch 623 at 643E per Slade LJ.  See also Lord Browne-Wilkinson’s comments at §42 p 436 in J A Rye, supra.

Was there any intention to possess during this period?

101.Based on the findings I made above, I agree with Mr Law’s submission that the 1^st defendant has not been able to adduce compelling and unequivocal evidence to demonstrate her intention to possess and/or to exclude the world at large:-

(a) Lau, Madam Chan, the 1^st defendant and the 2^nd defendant had all, during their respective stays in the Stone House, enjoyed possession severally and independently on their own parts of the Stone House;

(b) They would not interfere the usage of the room or rooms respectively occupied by other occupants;

(c) The so called “coalition” formed in 1985 without the participation of the 2^nd defendant is artificial and not convincing;

(d) At least until 1993, the common areas like the corridor, staircase, garden and the roof top could be used by all occupants.  After 1993, the 2^nd defendant still could freely make use of the corridor, bathroom and the garden.  In this regard, I reject the 1^st defendant evidence that the 2^nd defendant needed to seek her prior approval to make use of the same as it is totally illogical and against common sense;

(e) The 2^nd defendant had the keys to the main gate which was given to her by the 1^st defendant;

(f) The 1/F was only used for storage after Madam Chan’s family left in 1993 and it was not until 2011 that the 1^st defendant decided to renovate that floor for residential purposes;

(g) The partitioned room was not reinstated to the state of a living room until 2008 when the 2^nd defendant passed away.

102.In the aforesaid premises, I find the 1^st defendant has never had the requisite intention to possess in relation to the 1985 and 1993 adverse possession.

(IX) Issue 3 – Did the 1^st defendant merely dispossess the plaintiff’s tenant  Cho pursuant to the Tenancy

103.The  plaintiff’s case on this is both the Land and the Stone House have been subject to the Tenancy since as early as the 1970 in favour of Cho and his family/relatives.  Over the years, Lai Sun took care of the affairs in relation to the Tenancy on behalf of the plaintiff including the payment of rates and government rent.  The plaintiff or Lai Sun has never terminated the Tenancy.

104.The plaintiff further averred that the Tenancy was eventually terminated on or about 30 January 2015 where the plaintiff, through her solicitors, served a notice to quit to the Stone House and the Land, and to the Official Administrator of the Probate Registry.

105.Therefore, the plaintiff argues that her right to recover the Land had not accrued until the termination of the Tenancy and the time had not started to run in favour of the 1^st defendant’s claim of adverse possession until then.  The 1^st defendant as a result has not dispossessed the plaintiff for a period more than 12 years.

106.Due to a complete lack of evidence produced by the plaintiff on this issue, I find the plaintiff has failed to prove that there was any tenancy existed between Cho or any of the occupants of the Stone House. 

107.I also would make adverse inferences against her case that there was such a Tenancy when the evidence was quite clear from the 1^st defendant there was none,

108.I therefore reject the plaintiff’s claim on the tenancy isuse in its entirety.

CONCLUSION

109.In conclusion, for the aforestated reasons, on the 3 main issues of the case, I find:-

(1) the plaintiff was and is the registered owner of the Land / Stone House;

(2) the 1^st defendant has failed to establish:-       

(a) The 1985 joint adverse possession issue; and

(b) The 1993 sole adverse possession issue;

(3) the plaintiff has failed to prove the tenancy issue.

110.Given the fact that the 1^st defendant has failed to establish her adverse possession title, it follows that the plaintiff as the registered owner of the Land must be entitled to recover possession of the same from her and any other occupants of the Land / Stone House who did not contest the present proceedings.  I so make such an order to allow the plaintiff to do so in the terms as pleaded in §(1) of the prayer in the statement of claim.

111.Costs will follow the event.  I hereby make an order nisi that the 1^st defendant do pay the plaintiff’s costs of this action, such costs to be taxed if not agreed, with certificate for counsel.  In the absence of any application to vary the same, the order will become absolute within 14 days from the date of this judgment.

112.Lastly, I wish to thank counsel on both sides for their very helpful assistance in this case. 

Mr Ryan T H Law, instructed by Nixon Peabody, for the plaintiff

Mr Ernest C Y Ng, instructed by Wong & Co, for the 1^st defendant

The 2^nd and 3^rd defendants were not represented and did not appear