Read the full judgment text of HCA 122/2012 on BabelCite. This Court of First Instance judgment was delivered on 3 January 2017 before David Lok.
Land law – adverse possession – limitation – animus possidendi – Modification of Tenancy (MOT) permit – t'ong/tso – New Territories land – Chinese customary law – temple as juristic entity – change of sovereignty 1997 – Block Crown Lease (Cheung Chau) Ordinance Cap 488 – Limitation Ordinance Cap 347 ss 7, 10, 22, 23 – New Territories Ordinance Cap 97 s 15 – Hong Kong Reunification Ordinance Cap 2601 s 30(1) – Basic Law Article 120. The Plaintiff claimed adverse possession of a metal-sheet hut of about 510 square feet on a small piece of land in Cheung Chau partly in Lot 322 (registered to the Wong Wai Tsak Tong, a t'ong) and partly in Lot 307 (registered in the name of Fuk Tak Temple/Registrar General/SHAI). The Plaintiff's father obtained a Modification of Tenancy (MOT) permit in 1957 and the family had occupied the Hut ever since. Held, dismissing the claim: (1) The test for animus possidendi is both subjective and objective, following Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55; the subjective element is not satisfied where the squatter would pay rent if asked. (2) The Plaintiff's claim against the Tong must fail because, following Leung Kuen Fai v Tang Kwong Yu [2002] 2 HKLRD 705 (as affirmed in Tsang Kwong Kuen v Hau Wai Keung Gaius [2014] 5 HKLRD 622), members of a t'ong are the living male descendants from time to time, and a new equitable interest arises on each new birth; the s.22 extension for infants means the limitation period has not expired against all living Tong members, and the Plaintiff so conceded. (3) The MOT permit obtained in 1957 negated any animus possidendi, as the Father acknowledged the Tong as the registered owner; the Plaintiff's continued payment of annual fees and expression of willingness to pay rent also negated animus possidendi (Lam Ngok Ching v Tsang Yuk Ming; Yu Kit Chiu v Chan Shek Woo followed). (4) The true owner of Lot 307 is the Government: under Secretary for Justice v To Kan Chi (2000) 3 HKCFAR 481, a Chinese temple is not a juristic entity and could never have received the 1905 Block Crown Lease grant; no instrument ever transferred title to the Registrar General or SHAI, and the 1991-1992 Land Registry notation could not create title. (5) The 60-year limitation period for Government land under s.7(1) LO has not expired against Lot 307 (time could only run from 1957 at the earliest). (6) The Plaintiff further lacked animus possidendi over Lot 307 because the MOT application, acceptance of the Squatter Policy regime, and willingness to pay Government rent and rates all demonstrated recognition of Government ownership. (7) Estoppel by convention does not apply to preclude the Government from denying the Temple's legal capacity (Unruh v Seeberger (2007) 10 HKCFAR 31 applied). (8) Obiter: the 1997 change of sovereignty does not cause the limitation period to run afresh; under s.30(1) Reunification Ordinance and Article 120 Basic Law, the HKSAR Government steps into the shoes of the British Crown as owner, following G Lam J in Li Kwok Ching v Secretary for Justice. The 3rd Defendant succeeds on its counterclaim for possession of the occupied parts of Lot 307; the 2nd Defendant's counterclaim is dismissed; costs nisi to the Defendants.
Legal issues: Test for determining animus possidendi - objective or subjective · Whether adverse possession can be established against a t'ong with continuously born beneficiaries · Effect of MOT permit on adverse possession claim against the Tong · True ownership of Lot 307 · Adverse possession of Lot 307 against the Government · Effect of 1997 change of sovereignty on limitation period for adverse possession
Outcome: Plaintiff's claim for adverse possession dismissed against all Defendants. The 3rd Defendant (Secretary for Justice) succeeds on its counterclaim for possession of the occupied parts of Lot 307. The 2nd Defendant's counterclaim is dismissed.
Cited by 21 cases · Cites 11 cases