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

HCMP 2795/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2795 OF 2016

(ON AN INTENDED APPEAL FROM DCMP NO. 467 OF 2013)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1.This is the 1^st defendant’s renewed application for leave to appeal against the judgment of H H Judge Andrew Li who granted judgment for the plaintiff. The Judge had refused the 1^st defendant’s application for leave to appeal.

I.   Factual background

2.1The plaintiff is the registered owner of a piece of land in Tsuen Wan (‘the Land’) on which a two-storey stone house (‘the Stone House’) was built (together known as ‘the property’).

2.2She commenced the proceedings against the defendants for trespass of the property.  Originally, the proceedings were commenced under Order 113 of The Rules of the High Court only against the persons in occupation of the property, namely, the 3^rd defendant.  But later the 1^st and 2^nd defendants were ordered to be joined as parties and the case was tried in the District Court as a writ action.

2.3The 2^nd defendant passed away in 2008.  She was at one time the live‑in maid of one Mr Cho and his family.  The 3^rd defendant had never appeared in these proceedings and judgment was entered against them in 2012.  Thereafter, the plaintiff only pursued her claim against the 1^st defendant.

2.4The plaintiff did not call evidence.  The evidence of this case came from the 1^st defendant whose case is that she had acquired title to the property by reason of adverse possession.  The Stone House has many rooms on both the ground and first floor.   In 1972, the 1^st defendant first moved into a room on the ground floor with her husband and mother‑in‑law upon the invitation of Mr Cho, as a gratuitous licencee of Mr Cho.  But in 1978, she started to pay rent to the daughter‑in-law of Mr Cho after he passed away.

2.5Throughout the years, there were different people occupying different rooms in the Stone House including the 2^nd defendant and her nephew who occupied separate rooms.  The occupiers all paid rent to the landlord’s representative.  In 1979, after the occupiers learnt that the landlord would not accept their rent, they combined their respective share of the rent for their rooms and sent them by money order to the landlord’s representative. Although between 1979 and 1985, the rent they paid in the form of money order was not cashed by the landlord’s representative, they continued to pay rent by replacing the uncashed money order with a new one.

2.6Two significant events occurred in the history of the occupation by the occupiers.  First, in late 1985, the occupiers of the Stone House other than the 2^nd defendant came together and agreed that all of them would stop paying rent to the landlord and would occupy the Stone House and the Land jointly and they would jointly exclude the whole world from entering the Land, and that if one of the occupiers left, his or her portion of occupation would only be occupied by other surviving members of this coalition of occupiers (‘the 1985 Agreement’).

2.7By 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 ground floor while one Madam Chan (together with her family) had possession of the first floor of the Stone House.  The 1^st defendant claimed that they jointly possessed and used the common parts of the Stone House and the Land.  The 1^st defendant claimed that since 1991, the 2^nd defendant became her licensee for a fee in respect of her room and by 2004, the 1^st defendant waived the 2^nd defendant’s fee for her occupation.

2.8The second significant event is that in that year i.e. 1993, after Madam Chan (and all members of her family then residing on the first floor) moved away, the 1^st defendant replaced the old low-rise wooden door on the stairs with a metal gate to prevent the then tenant (i.e. the 2^nd defendant) and her visitors from going up to the first floor without the 1^st defendant’s permission.  The 1^st defendant claimed that she had been solely responsible for paying the utility bills such as electricity and water 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 there was leakage and to maintain the property when there was landslide or sand flow.

II.  The Decision

3.1The Judge dismissed the 1^st defendant’s claim for adverse possession of the property.  The Judge held that :

1)  Factual exclusive possession can be held jointly but not severally by several persons at the same time.  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 having possession over a particular part of the property severally and independently from the other squatters. 

2) 　Between 1985 and 1993, the respective possession of the room or rooms of the occupiers of the Stone House was several and independent of each other; none of the occupiers was in effective control of the Stone House and none of them was in factual exclusive possession thereof.  The occupiers were in several possession but not single joint possession.

3)  The 1^st defendant failed to prove that the 2^nd defendant was merely her tenant or licensee and that the 1^st defendant had sole exclusive possession to the property since 1993.

4)  The 1^st defendant has never had the requisite intention to possess in relation to the 1985 and 1993 adverse possession.

5)  This is what the Judge held on the lack of exclusive possession and the requisite intention :

‘ 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.

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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.’

III.  Grounds of Appeal

4.The 1^st defendant relies on three grounds of appeal in support of her application for leave :

‘ 1) As a matter of law and fact the Judge erred in holding that joint tenancy and/or unity of possession is/are necessary element(s) of joint possession in the context of a claim of adverse possession;

2) The Judge erred in finding that, between 1985 and 1993, the persons who were residing in the Stone House (including the 1^st defendant) were independently and severally in possession of various parts of the Stone House where the Court ought to have found, on available evidence, that the allocation of rooms between those persons was mere exercise of separate rights under JA Pye (Oxford) Ltd & Another v Graham & Another [2003] 1 AC 419; and

3) The Judge erred in failing to consider whether the 1^st defendant was entitled to a possessory title to a part or parts of the land being the ‘Middle Room’ and the ‘Servant Quarter’ on the basis of the Court’s factual findings.’

IV.  Principles on leave to appeal

5.Under section 63A(2) of the District Court Ordinance (‘Cap. 336’), leave to appeal shall not be granted unless the Court is satisfied that the intended appeal has a reasonable prospect of success; or there is some other reason in the interests of justice that the matter should be heard by the appellate court.

V.  Our view

Ground 1

6.1The 1^st defendant argues that the gravamen of this ground is that the Judge erred in imposing joint tenancy and unity of possession as legal requirements for joint adverse possessors.  Joint tenancy and unity of possession are incidences of a grant or conveyance and not prerequisites for joint possession.  As a start, none of the classic and binding authorities impose such a requirement.  Conceptually, joint tenancy arises out of a conveyance or other form of grant by way of human act but not by way of operation of law.  In contrast, the extinguishment and acquisition of title under the Limitation Ordinance is of a sui generis nature asserted by the trespasser and does not involve any ‘grant’.

6.2In our view, it is important to bear in mind what the Judge actually decided in this case.  Stripped of all the trimmings, he held that the 1^stdefendant failed to prove, first, that she exclusively possesses the whole of the property and second, her intention to exclusively possess it. This is because, by reference to the facts of this case, at most, the 1^st defendant has exclusive possession of the parts occupied by her but not the whole of the property.  Without a challenge to this factual finding, the first ground relied upon by her, interesting though it may be, is ultimately an academic exercise and has no impact on the decision of the Judge dismissing her case on adverse possession.  In other words, this ground is not reasonably arguable in the context of this case. 

6.3We also disagree that that there has been ‘an implied finding by the Judge of the 1985 Agreement, constituting strong evidence of factual possession and intention of joint possession’.  Although the Judge had not expressly rejected the 1^st defendant’s evidence that there was the 1985 Agreement, reading the judgment as a whole, he must have rejected it.  The Judge stated that ‘I do not find her evidence convincing nor do I find it consistent with her own pleadings, previous statements and the evidence of other witnesses.’  The 1^st defendant’s original defence and the Amended Defence drafted by lawyers did not mention there was any 1985 Agreement at all.  The allegation of the 1985 Agreement only appeared in the Re-Amended Defence.  In support of his argument, Mr Ng for the 1^st defendant also referred to parts of the judgment concerning the positon of the 1^st and 2^nd defendants.  In our view he has plainly misconstrued these parts of the judgment.

6.4Accordingly, we will not grant leave on this ground.

Ground 2

6.5This ground proceeds on the basis that, on the facts as found by the Judge, he could come to the view that there is joint possession.  We disagree.  On the facts as found by the Judge, this is not a reasonably arguable ground and we will not grant leave on this ground.

Ground 3

6.6Although the 1^st defendant had also in the prayer of her counterclaim claimed adverse possession for part of the property, this point was never argued or addressed by the 1^st defendant’s counsel during trial.  Had this point been raised below, evidence and arguments on the precise area occupied by the 1^st defendant might well be needed.  It is now too late for this point to be raised.

6.7We will not grant leave on this ground.

VI.  Conclusion

7.1For the above reasons, the intended appeal does not have any reasonable prospect of success.  Nor is there any other reason why in the interests of justice the appeal should be heard.  Accordingly, the application is refused. 

7.2The 1^st defendant is to pay the costs of this application to the plaintiff.  The plaintiff has submitted a statement of costs for summary assessment in the total sum of $114,242 which includes counsel’s fee for perusal of document and settling paper of $20,000.  As the grounds of appeal are the same as those argued before the Judge, the solicitor’s fee for time spent in communicating with client and counsel as well as considering the skeleton submissions and authorities are excessive.  With the engagement of counsel, the Court would not allow costs of two solicitors attending on the same work.  We summarily assess the plaintiff’s costs at $45,000.

Mr Ryan TH Law, instructed by Nixon Peabody CWL, for the plaintiff

Mr Ernest CY Ng, instructed by Wong & Co., for the 1^st defendant