Hun Jay Nam Jhonson v. Hun Tai Sun and Another

DCMP921/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGSNO.921 OF 2014

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JUDGMENT

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1.The two defendants are respectively the father and mother of plaintiff. They are the registered owner of the propertyby way of joint tenants. On 10 Apr 2014, plaintiff commenced these proceedings by way of originating summons (“OS”) seeking declaration that their title to the property has been extinguished by his adverse possession for the prescribed period under the Limitation Ordinance, Cap.347 (“LO”).

2.On the day of hearing before me, the parents did not turn up. Having been satisfied that the OS and the notice of hearing have been served on them by way of substituted service, I proceeded to hear plaintiff’s claim in their absence.

3.Plaintiff is the only witness called before me. He adopted as his evidence-in-chief the 4 affirmations he filed. He was allowed to amplify his evidence orally. Afterwards, this court posed some questions to him, after which he was re-examined by his own counsel, Mr Adrian Leung (“Mr Leung”).

Plaintiff’s evidence

4.His parents were married in Hong Kong in 1961. They purchased the property in 1962. The two later went to work in Malaysia and plaintiff was born there in 1963. Shortly after his birth, his father deserted them and the couple was subsequently divorced.

5.In around 1964/1965, his mother took him back to Hong Kong to reside at the property. While he was a child, he heard from his mother that his father had also returned to Hong Kong. But he has never seen his father at the property or otherwise. Whenever he enquired his mother about his father’s whereabouts, he was scolded and told to treat as if his father had passed away.

6.In late 1970’s, plaintiff fell into bad company and earned his living by stealing and reselling motor vehicles. He was convicted of theft and other offences, and sentenced to correctional institutions for 3 times in around 1979, 1981 and mid-1980s. His mother felt very disappointed of him and their relationship deteriorated.

7.On his mother’s 2^nd, and last, visit to the plaintiff at correctional institution while he was serving his 3^rd sentence, she made it clear to him that she gave up on him completely and would sever all her relationship with him. She said she would re-marry and leave the property in short time.

8.After finishing hissentence, plaintiff returned to the property to find that his mother had disappeared with all her belongings. Hebelieved that she had left for good for her re-marriage. And he has never met her again.

9.In around 1990s, plaintiff allowed his grandmother to come from Shanghai to stay at the property. While she so stayed, he enquired of her if her mother did re-marry and she confirmed.

10.In around 1999, plaintiff intended to apply for loan from Building Department (“BD”) under Building Safety Improvement Loan Scheme (“the scheme”) to carry out repair to the property which had fallen into disrepair. But the application form had to be counter-signed by the owner of the property. Plaintiff managed to persuade his grandmother to send the form to his mother and it was returned to him counter-signed by his mother.

11.In late 2000 or early 2001, plaintiff’s grandmother left the property for the Mainland, saying she would spend the rest of her life there. She has never returned since.

12.In around mid-Feb 2002, plaintiff received a phone call from his aunt (younger sister of his mother) whom he had visited in Shanghai. His aunt said that his mother had passed away and the funeral had already been arranged. Subsequent to that, he was no longer contacted by any of his relatives, whether his grandmother, his aunt or otherwise.

13.In 2001, plaintiff was married to a Filipino lady in the Philippines. His wife came to Hong Kong on a dependent visa and resided with him at the property. Save for such periods he was away doing his business in Thailand and left his wife behind in Hong Kong to take care of matters like utilities etc of the property, plaintiff has resided at the property ever since. 

14.In 2014, plaintiff closed down his business in Thailand and he returned to Hong Kong in Oct 2014. He found that his wife had left the territory for failure in her application for permanent residency and he had lost contact of her ever since.

15.In early March 2002, Plaintiff said he felt apprehensive that his mother’s new family members after her re-marriage would come and lay a claim on the property. He felt it unjust as he had been residing at the property for decades and as he was about to finish repaying BD the loan of the scheme. He therefore changed the lock of the only entrance to the property to prevent access thereto by anybody (including his parents) except for himself and his wife. Afterwards, he had on several other occasions changed such lock(s) and left the keys with only himself and his wife and no others.

16.Throughout the years, plaintiff said he and/or his wife had paid for all the outgoings, decoration and renovation of the property. None, including his parents, has come forward to demand possession of, or rental for, the property (and he would have denied access to his parents if demanded) and he has all along treated the property as his own without anyone’s permission. 

Applicable law

17.No action shall be brought to recover any land after the expiration of 12 years[1] from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person: s.7(2) of LO.

18.Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance: s.8(1) of LO.

19.No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (referred to as adverse possession) and where any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land: s.13(1) of LO.

20.At the expiration of the period prescribed by LO for any person to bring an action to recover land, the title of that person to the land shall be extinguished: s.17 of LO.

Applicable principles

21.These have been summarized in 2 cases cited by Mr Leung, namely, para 15 to 22 of the judgment of Cheung JA in Yu Kit Chiu v Chan Shek Woo, unreported, CACV 137/2010, 18 Feb 2011, where his lordship referred to, and quoted, the landmark cases of Powell v McFarlane (1979) 38 P & CR 452 and J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 as approved by the Court of Final Appeal, and also para20 to 27 of the judgment of Deputy High Court Judge Marlene Ng in Kiuwide Co Ltd v Tseung Ding Man, unreported, HCMP 1003/2013, 24 Dec 2013. The Court of Final Appeal decision in Wong Tak Yue v Kung Kwok Wai & Another (No.2) (1997-98) 1 HKCFAR 55 should, I think, also be remembered.

22.A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess.  “Possession” has its ordinary meaning as in the law of trespass or conversion. At any given moment, one asks whether the person in factual possession also has an intention to possess.

23.Factual possession signifies an appropriate degree of physical control. It must be single and exclusive. Except for joint possessors, if the squatter is in possession, the paper owner cannot be. There will be a “dispossession” of the paper owner in any case where a squatter assumes possession in the ordinary sense of the word. If the paper owner was at one stage in possession of the land, but the squatter’s subsequent occupation of it in law constitute possession, the squatter must have “dispossessed” the true owner.

24.What constitutes 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. Broadly, the squatter must be dealing with the land in question as an occupying owner might have been expected to deal with it and no one else has done so.

25.The taking or continuation of possession by a squatter with the consent of the paper owner does not constitute dispossession or possession by the squatter. One therefore asks whether the squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.

26.The intention to possess involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the paper owner if he be not himself the possessor, so far as is reasonably practicable and so far as the process of law will allow. It is a question of facts.

27.The squatter need not have a conscious intention to exclude the true owner. An intention to own the land or even an intention to acquire ownership is also not required.

28.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 skepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve.

29.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 them considerable weight.

30.The burden of proof is on the party claiming adverse possession, and the evidence he has to adduce must be compelling. However, the standard remains the balance of probabilities for him to establish both factual possession and intention to possess.

Analysis

31.I have fully and carefully considered all evidence as well as all submissions and authorities before me.

Assessment of Plaintiff’s evidence

32.I am fully aware that I do not have the benefit of cross-examination of plaintiff by defence. His evidence went unopposed. Nonetheless, I still remind myself I have to consider carefully if I should accept any material part(s) of plaintiff’s evidence or not.

33.I have considered plaintiff evidence as a whole against the rest of evidence before me. I have checked for corroboration, if any, with the contemporaneous documentary evidence before me and I note some of his evidence is so supported.

34.Overall speaking, I also look for any inherent improbabilities in his evidence (his having advanced an uncommon version of his relationship with his mother completely severed) and I do not find any at the end of the day.

35.Plaintiff, I note, did not hide his criminal history and convictions, or his alleged unfortunate family history, from the court and they found their way into his affirmations.

36.Though absent in his affirmations, on court’s questioning, plaintiff, to his credit,was frank to confirm that he had entered into provisional agreement to sell the property for more than 2 million in about 2010, the sale could not be completed for lack of title and he could get such sum if these proceedings proves to be successful. Plaintiff therefore, I remind myself, has his financial interest to serve in these proceedings.

37.On top of the above, I have also watched out to consider if any individual material piece of plaintiff’s evidence is credible or not for me to accept.

Factual possession

38.To start with, such background evidence given by plaintiff is, I note, supported by birth and marriage certificates, as well as land search record of the property, he produced.

39.The plaintiff also managed to produce document dated as long ago as 1990 to establish his factual possession of the property long ago.  He also managed to produce a mass of bills and invoices etc ever since to prove his continuous occupation of the property fromthe 1990’s until today.

40.After careful consideration, I am satisfied that the plaintiff was indeed son of the defendants, that he grew up at the property with his mother, that he had continuously resided at the property with his mother,   later alone, with his grandmother later for some time, and later with his wife until he lost contact of her in 2014 the same way he gave evidence before me.

41.I also accept that plaintiff was deserted by his father while he was a child and that he has never seen him at the property. As such, I find that the father has discontinued possession of the property ever since mid-1960s.

42.I further find for plaintiff’s conviction and sentence as he frankly told me.

43.I accept that plaintiff’s mother had at her last meeting with him at correctional institution (“the last meeting”) told him that she gave up on him completely, severed all relationship with him, would re-marry and leave the property in short time and, on plaintiff’s return to the property, she had disappeared with all her belongings.

44.While the matters in para 41 to 43 above are not corroborated by other sources, I find them inherently probable, credible and I find forthem on the balance.

45.Accordingly, I find that, even since his mother’s disappearance in about mid-1980s, plaintiff has occupied the property and used it as his residence (oras his family residence) as any occupying owner might have been expected to deal with it and no one else has at the same time done so (his grandmother and wife were at the property with plaintiff’s consent).

46.As such, plaintiff’s mother has, I also find, discontinued her possession of the property from about mid-1980s (when she disappeared from it) and plaintiff has thereafter had hiscontinuous, exclusive and single possession of the property until commencement of these proceedings.

Consent of mother withdrawn

47.I have no doubt, and plaintiff agreed with me on questioning, that he had in his first 2 decades or so of his life resided in the property with the consent of his mother, and thus, such possession cannot count as adverse possession for purpose of LO.

48.But I agree with Mr Leung’s submissions that, considering all the circumstances at around the time ofthe last meeting, such consent given to plaintiff by his mother in the past had by then been terminated or withdrawn.

49.In simplest term, plaintiff was in the past permitted to reside at the property because he was the son of his mother. After the last meeting, his mother no longer so treated him.Plaintiff therefore had no more permission of her to stay at the property.

50.I do not think that such evidence given by plaintiff that the property was unsold with furniture left behind after he returned there serving his 3^rd sentence and that he could re-enter the same using old keys he kept as prisoner’s property alter my conclusion at para 48 above.

51.Plaintiff’s mother is only one of two joint tenants. The other was not around.As such, she might, I think, be unable to sell the whole of the property alone. In any event, she might not be able to sell this old property for a good price in a short period of time. Assuming she did recall of plaintiff keeping old keys to the property, she might, I think, also not bother to change its lock or throw away its furniture for she was going to leave it for good for her re-marriage.

52.On the other hand, my conclusion at para 48 above was, I think, reinforced by plaintiff’s evidence upon court’s questioning that he found electricity cut off on his re-entry to the property, suggesting that his mother had not prepared for his return.

53.Last but not least, plaintiff was adamant upon questioning by court that, at the last meeting, nothing was said by his mother one way or another about the property (or its keys) despite he said he would return to the property after serving his sentence.

54.During the last meeting which lasted, plaintiff emphasized, as short as only 15 minutes, I accept it more likely than not his disappointing mother spent most of her time scolding him and declaring her severance of all relationship with him and, hence, she didn’t care about the property at all.

55.Again, plaintiff’s evidence of his successful application of loan under the scheme with application form counter-signed by his mother does not, I think, alter my conclusion at para 48 either.

56.Were plaintiff’s mother minded to continue giving consent, or give consent, for him to stay at the property, one would have thought of his mother telling him so through his grandmother. But his grandmother never did. And as plaintiff explained, his mother’s signature only helped him getting fundfrom the scheme to repair the property, which loan he had to repay alone by installments.

57.Hence, I conclude that such continuous factual possession of the property by plaintiff after about mid-1980s could count as adverse possession as it was without consent of the paper owner, if coupled with the necessary intention to possess.

Intention to possess

58.I have reminded myself to approach such self-serving statements of intention given by plaintiff with caution and to focus more on such material conducts of him which could shed light on his intention at the material time. On the other hand, I could give more weight to such statements of his against his interest.

59.To start with, plaintiff informed me (and I accept) that he returned to the property after serving his sentence because he had nowhere else to go to and thus he did it out of convenience.

60.Moreover, after he found his mother to have disappeared on his return to the property, plaintiff, on his own evidence, still took steps to go to a clinic where his mother formerly worked to locate her and made enquiries of her with shopkeeper of herbal shop found there.

61.Plaintiff also asked his grandmother if his mother had really re-married on her stay in Hong Kong at the property. He also saw fit to ask his aunt in around mid-Feb 2002 about more details of alleged death of his mother which he did not believe in.

62.Judging from plaintiff’s evidence in para 60 & 61 above which I accept, I think it more likely than not that he still entertained some hope of reuniting with his mother for the 1^st decade or so after his return to the property.

63.Such evidence in para 59 to 62 above, I think, do cast doubt if the plaintiff at this stage of his life had the necessary intention to possess the property.

64.At the same time, plaintiff was, I find, likely getting more and more disillusioned. His grandmother was, on his own evidence I accept, unwilling to let him know of his mother’s whereabouts. His aunt also told him not to bother and said she rang just intending to notify him about his mother’s death and not otherwise (which message plaintiff thought to be an excuse stopping him to contact his mother) and then hung up. With more and more time passed hearing nothing from his mother, his hope of reunion became more and more remote.

65.Against the background of such number of events happening to plaintiff up to 2002 I accept above, including severance of his mother-and-son relationship, disappearance of his mother, relatives’ minimal information to him about his mother and her “death”, long passage of time hearing nothing of her, plaintiff’s residence at the property alone (or with grandmother), his supporting his own living there and, finally, the birth of his own family there upon his marriage in 2001, I find it likely and probable that plaintiff had, by March 2002, dropped all hope of his reunion with his mother such that he decided to change (and did change) the lock of the only entrance to the property and left only the keys with himself and his wife.

66.I find and accept such change of lock happening in March 2002 is no coincidence. On BD’s repayment schedules addressed to plaintiff before me, that month was his last (or 24^th) monthly installment payment month. By then, plaintiff had managed to repay BD in full the loan of $38,000 with interest under the scheme on his own and it made no surprise to me that he then feared of others related to his mother’s re- marriage coming forward to lay a claim on the property, whose repair he had paid for from his sole efforts since Dec 1999 when the loan was granted.

67.Plaintiff gave evidence he changed the lock of the property to prevent access, inter alia, of his parents. On court’s questioning, he was adamant in the witness box and insisted that he would deny access to his mother even if she were to turn up at the door of the property after March 2002. In view of plaintiff’s unusual life history, I do not find that inherently improbable and I accept it.

68.While I find plaintiff’s intention in relation to the property equivocal for his 1^st decade or so after this return to the property, considering what happened I recounted above leading to his change of lock in March 2002, his subsequent residence at the property with his wife and his continuous payment for its renovation, decoration, outgoings over the years, I am satisfied the plaintiff has established on the balance of probabilities the necessary intention to possess the property as from March 2002.

Adverse possession

69.Accordingly, I find that the plaintiff has been in adverse possession of the property for a continuous period exceeding 12 years prior to the commencement of these proceedings on 10 Apr 2014.

Disposition

70.I therefore grant declarations in favour of plaintiff in the following terms:

(1) the plaintiff has been in adverse possession of the property for a continuous period exceeding 12 years prior to the commencement of these proceedings;

(2) the title of the 1^st and 2^nd defendants to the property has, by virtue of s.17 of LO, been extinguished prior to the commencement of these proceedings; and

(3) the plaintiff has thereby acquired an indefeasible possessory title to the property.

71.I further order plaintiff’s solicitors to give notice of this judgment to the 1^st and 2^nd defendants by effecting substituted service in accordance with the order by Master M. Lam dated 12 Nov 2014 and to file an affidavit of service within 14 days thereafter.

Costs

72.I make no order as to costs for these proceedings as submitted by Mr Leung.

73.Finally, I thank Mr Leung for his assistance.

Mr Adrian LEUNG, instructed by V. Hau & Chow, for the plaintiff

The 1^st and 2^nd defendants are not represented and did not appear