Lai Tso Pui and Another v. The Occupants and Another

HCMP 410/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 410 OF 2012

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(Converted into a writ action by Order of
Master Levy of the High Court dated 5^th July 2013)

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J U D G M E N T

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Introduction

1.The plaintiffs are the registered owners of a land lot in Tai Po (“the suit property”).  They commenced this action in March 2012 suing the defendants for trespassing the suit property, and seeking relief including an order for the possession of the suit property.

2.The 2^nd and 3^rd defendants (“the defendants”) deny the claim (the 1^st defendant never responded) and contend that they have occupied the suit property for long enough to have “dispossessed” the plaintiffs.  They counterclaim that the plaintiffs’ title to the suit property has been extinguished, and that they now have possessory title over the same.

Background

3.The plaintiffs are siblings.  Their aunt transferred the suit property’s title to them, and they became the owners thereof, in 1973.  The plaintiffs used to reside in the UK, and returned to Hong Kong to reside here much later (one plaintiff in 2004 and the other in 2007).

4.The suit property was earlier let to one Mr CL Sit (“the earlier tenant”) but no written tenancy was executed.  The suit property was handed over by the earlier tenant to a Mr Ho (“Ho”) (in the 1970s according to the defence and in 1982 or 1983 according to the plaintiffs).  The 3^rd defendant (“Mdm Mung”), Ho’s wife, joined Ho at the suit property when she came to Hong Kong from the Mainland in the late 1990’s.  A traffic accident resulted in Ho’s death in 1998.

5.Mdm Mung moved out from the suit property (since 1999, one year after Ho’s death).  Mdm Mung and her daughter now reside in a unit in a public housing estate in Tuen Mun (since 2005).  She claims to have still kept a room (and other chattels) in the suit property for her own use.

6.Since a date which is disputed (about late 1970s (or 1980) according to the defence and not earlier than about 2003 according to the plaintiffs), the 2^nd defendant (“Chow”) began to occupy the suit property and he is still occupying it at the time of trial.

The Main Issues

7.The main issue is whether the defendants have, without the owners’ consent or permission, uninterruptedly possessed the suit property for a period long enough for them to rely on the Limitation Ordinance (Cap 347).

8.In relation to Chow, the plaintiffs contend that, while he is admittedly still in occupation of the suit property, Chow has not done so for the period prescribed by Cap 347.

9.In relation to Mdm Mung, the plaintiffs contend that she has ceased occupying the suit property since 1999 at the latest.  Alternatively, they contend that, even if Mdm Mung should still retain any chattels on the suit property after 1999, such is insufficient to amount to acts of dispossession to constitute adverse possession.

10.Both of the plaintiffs’ above contentions are denied by the defendants.

Relevant Legal Principles

11.The relevant legal principles are trite and do not appear to be disputed (or at least substantially disputed):

(a)  to succeed in establishing adverse possession, the squatter needs to show both exclusive, continuous and open possession of the property concerned, together with an intention to exclude the world at large, including the true owner: Wu Yee Pak v Un Fong Leung & Others (2004) 7 HKCFAR 498, para 5;

(b)  the squatter bears the burden of proof of the above, which is a heavy one and requires clear evidence of the same: Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd CACV 79/2008 (18 February 2009), para 88 to 89, citing Powell v McFarlane (1979) 38 P & CR 452, 472.

Witnesses’ Testimony and Findings of Fact

12.The following witnesses testified for the plaintiffs:

(1)  the 2^nd plaintiff (“KS Lai”);

(2)  the 1^st plaintiff (“TP Lai”);

(3)  Mr PK Sit (“PK Sit”), a former village representative of the indigenous village in which the suit property is situated (“the Village”);

(4)  Mdm Wong, an elderly villager of the Village.

13.The following witnesses testified for the defence:

(a)  Chow;

(b)  Mdm Mung.

14.The approach I would adopt for assessing their credibility has been set out in my earlier decisions.  The relevant passages are repeated below to facilitate comprehension:

“The assessment of a witness’s credibility and/or reliability is a task frequently undertaken by the court in litigation (in fact, very often an essential task). I consider the following to be the appropriate test to adopt:-

‘There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified:-

(a)  whether that part of his testimony is inherently plausible or implausible;

(b)  whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest’.”

(See, for example, the decisions in Chiu Chi Tong v. Lau Chong Sai & Another, HCA 765/2002 (para. 28), Yu Ming Investment Ltd. v. Peng Ru Chuan, Richard, HCA 814/2002 (para. 13)).

(Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd and Others, HCA 3523/2002 (13 August 2005), para 12)  (See also林傳龍對謝巧玩 HCA 1443/2011 (19 December 2014), para 15)  The same approach will be adopted in this action.

15.I have also borne in mind the approach disapproved by the decision in The Popi M [1985] 1 WLR 948 (see also Ide v ATB Sales Ltd [2008] EWCA Civ 424 (28 April 2008), para 1 to 6; Datec Electronic Holdings Ltd and Others v UPS Ltd [2007] 1 WLR 1325, para 46 to 50).  The impermissible approach was described in the ATB Sales judgment as follows:

“ ... a trial judge was not compelled to choose between two theories, where the evidence was unsatisfactory ... it was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause ... the concept of proof on a balance of probabilities had to be applied with common sense ... ” (para 3 thereof).

16.This judgment contains headings and sub-headings below only because of the need for easy comprehension.  That the witnesses’ overall credibility has to be assessed from a wider perspective has not been overlooked.

17.Generally speaking, I find the plaintiffs’ witnesses to be more credible and reliable than the defence witnesses.

18.Chow’s testimony has been discredited over more than a few important matters:

(1)  Chow claims that he has been living in the Village for a long time (since the 1970’s).  This claim is however thrown in doubt by his own document: a letter dated 19 September 2012, the Registration and Electoral Office states that Chow applied to be registered as an elector in February 2003.  When cross examined, Chow asserted that he had applied for registration much earlier (in 1997), and the authority’s record was wrong.  I do not find this assertion to be credible;

(2)  a joint expert was appointed to ascertain the date of the structures on the suit property.  In its letter dated 18 March 2016, the joint expert referred to two squatter occupancy surveys of the Lands Department (respectively in 1976 and 1984/5), and recommended defence solicitors to enquire with the authority about the identity of the occupants at the time of the said surveys.  I agree with the plaintiffs that Chow’s failure to make such inquiry is suspicious.  His failure when cross examined to give a satisfactory reason for not doing so gives rise to an adverse finding against his credibility;

(3)  Chow cannot provide any document earlier than the said letter of 19 September 2012 to show his occupation of the suit property prior to 2003.  This is inherently implausible if he had in fact been in occupation for decades (allegedly since the 1970’s, or at least 1980);

(4)  Chow has changed his case as to how Ho obtained possession of the suit property: (i) in the defence pleading, it is alleged that he and Ho had paid $60,000 to the earlier tenant to acquire the suit property; (ii) in Chow’s witness statement, Chow said that the suit property was used by the earlier tenant to offset a gambling debt of $60,000 (there was no actual payment); (iii) when Chow was cross examined, he said $60,000 also included other personal loans advanced to the earlier tenant.

19.Mdm Mung’s testimony has also been shown to be unsatisfactory:

(a)  as stated above, Mdm Mung left the suit property in 1999, but she asserts that she continues to occupy the same (i) together with Chow, and (ii) through her occupation of one of the rooms in the structure built thereon;

(b)  the frequency of Mdm Mung’s visits to the suit property does not sit comfortably with her case of continued occupation: although she claims to return to the suit property about 4 times in a month (and sometimes stayed overnight), her admission that her last visit before the trial was about 4 months earlier militates against the claim as being truthful;

(c)  the chattels she keeps at the suit property are also inconsistent with an intention to occupy the suit property: her testimony only specifically mentioned a memorial tablet (or, altar card) (神主牌) and an incense burner (香爐) kept in the living room.  Such an act is similar to what was done in Gotland Enterprises Ltd v Kwok Chi Yau and Others CACV 260/2014 (19 January 2016) (fish farming and duck rearing) (see also para 36 of the decision).  In such circumstance, I do not regard Mdm Mung’s act as constituting an act of adverse possession of the suit property (whether in her own right or together with Chow);

(d)  in view of the above sub-paragraphs, I find Mdm Mung’s claim that she had kept a room to her own use to be inherently implausible.

20.PK Sit is a witness who does not stand to gain from the success of the plaintiffs’ claim herein.  There is no suggestion by the defence (or indeed any proper evidential basis for such suggestion) that he has motive to be inaccurate in his testimony (a mere accusation that he may be inclined to unduly help fellow villagers (the plaintiffs) is not a proper basis).  The main criticisms levied by the defence regarding his testimony are:

(1)  his testimony about rent being paid by Ho to the plaintiffs’ predecessor-in-title is hearsay only.  While this may be so, there is no reason for Ho to tell PK Sit about this if it were untrue;

(2)  his testimony about his friendship with Ho is unreliable.  This is because Mdm Mung denies having known (or met) him.  The denial is not accepted by PK Sit who insists that he knew both Ho and Mdm Mung.  There is no other evidence to show that PK Sit’s testimony about this is untrue;

(3)  his testimony about when Mdm Mung’s daughter came to Hong Kong to reside is also said to be inaccurate.  Mdm Mung testified that her daughter only did so in 2000 while PK Sit testified that he saw them both at the Village as early as in 1997.  But even Mdm Mung accepts that her daughter had visited Hong Kong in 1997.  In any event, any inaccuracy of PK Sit’s testimony regarding this aspect does not affect his overall reliability concerning the main issues summarized in para 7 to 10 above.

21.Other criticisms over other (what I would regard as relatively more peripheral) matters include:

(a)  whether Mdm Mung’s daughter had also resided in the suit property from 1997 to 1999;

(b)  whether PK Sit had earlier affirmed that Chow had resided in the suit property before 2003;

(c)  PK Sit’s inability to testify to matters which took place after 2007.

I do not consider it necessary to discuss these in detail (whether PK Sit had in fact said so depends on how his witness statement and affirmation are understood in context).  Even if PK Sit had in fact said so, they are nothing more than inaccuracies arising out of the lapse of time (sub-para (a) and (c) above), or out of earlier oversight of detail facts (sub-para (b) above), some of which PK Sit corrected when he testified. Consequently, PK Sit’s overall reliability is unaffected.

22.Mdm Wong testified to the effect she saw another lady villager, who acted effectively as a rent collecting agent of the plaintiffs’ predecessor-in-title, collected rent from Ho (and, after Ho’s death, from Mdm Mung until 2007).  Similar to PK Sit, there is no proper basis for doubting the veracity of Mdm Wong’s testimony.  The defence argues that the matter happened a long time ago and Mdm Wong’s memory is sketchy.  While that may be so, she was adamant about the accuracy of her having seen the payment of rent.  I find her to be reliable at least in this regard, and is well capable of providing supportive evidence to PK Sit’s testimony where their testimony covers the same matters.

23.The defence also criticizes the contents of the plaintiffs’ affirmations filed in connection with an earlier (unsuccessful) summary application (taken out relying on RHC (Ord 113)).  It is quite possible the language used there might have been intended to put forth an exaggerated claim that the defendants unlawfully trespassed (without informing the court of the more complicated background).  However, the evidence in support of the plaintiffs’ case primarily comes from the testimony of PK Sit and Mdm Wong.  The importance of the plaintiffs’ statements given on oath lies mainly with their confirmation there has not been consent or permission given (especially by them) for the defendants’ occupation of the suit property.

24.There is also criticism about the plaintiffs’ failure to call certain individuals to testify, such as the plaintiffs’ former solicitors (which sent a letter before action), the daughter of one plaintiff (to explain the delay in commencing legal action), and a Mr Tse (who, according to PK Sit, first appeared at the Village together with Chow).  I have borne these in mind and do not consider them to be weighty enough to affect my assessment of credibility or reliability.

25.The defence also relies on a number of receipts for the payment of licence fee to the government (since 1988).  According to Mdm Mung, the ones before 1999 were given to her by Ho and those after 1999 were paid for by Chow.  These receipts can equally be consistent with the plaintiffs’ case summarized in para 8 and 9 above.  Hence, it cannot assist the defence.

Conclusion

26.Judgment will be entered in the plaintiffs’ favour for vacant possession of the suit property to be delivered up.  The plaintiffs do not seek damages against the defendants for trespass to the suit property.

27.The counterclaim is dismissed.

Other Matters

28.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs Order

29.The parties agree that costs should follow the event.  There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the defendants to the plaintiffs to be taxed if not agreed.  The defendants’ own costs are to be taxed in accordance with the Legal Aid Regulations (Cap 91A). 

Mr Wilfred Tsui, instructed by Louis K Y Pau & Co, for the plaintiffs

Mr Albert Yau, instructed by Hau, Lau, Li & Yeung, assigned by Director of Legal Aid, for the 2^nd and 3^rd defendants