Ho Lung Thomas Ignatius the Administrator of the Estate of Yau Chun Wing , Deceased v. All Occupiers of All That and Another

DCMP 1493/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1493 OF 2016

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DECISION

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INTRODUCTION

1.The plaintiff filed an originating summons for recovery of land pursuant to Order 113 of the Rules of District Court, Cap 336H (“the RDC”). The 2^nd defendant defended on the ground of adverse possession. The 2^nd defendant applied, pursuant to Order 28 rule 8(1) of for an order that the originating summons be continued as if the cause or matter had been begun by writ.  The plaintiff opposed.

Background

2.The disputed piece of land was located at Lot 622 in DD 77, New Territories (“the Land”).  The plaintiff filed an originating summons on 19May 2016 for possession of the Land against the 1^st defendant.

3.On 4 October 2016, the 2^nd defendant took out a summons for an order to be joined as a party and be continued as if the cause or matter had been begun by writ. On 31 October 2016, Master S P Yip ordered the 2^nd defendant be joined as a party to the proceedings.  Both the originating summons and the 2^nd defendant’s application were adjourned for argument today.

4.The 2^nd defendant claimed she has been in adverse possession of the Land since 1976 or alternatively in 2002 (through herself or her predecessor in title, family members or agent).  The plaintiff’s right and interest to the Land has been distinguished.

5.The plaintiff maintained his claim shall be proceeded by way of originating summons and had opposed to the 2^nd defendant’s application.

General principles of Order 113 proceedings

6.The approach of an Order 113 application has been considered in Direk Mahadumrongkul v Lau Chun Keung & Ors (CACV 133 of 1998, unrep 16 October 1998).    Nazareth VP decided, adopting Vipac Engineers & Scientists Ltd v Karpovich & anor [1989] 2 HKC 358 at 359H,

“I have to say that this goes further than the judgments themselves and somewhat overstates the matter. If the case is a clear one, it cannot matter that the defendant has contested it. The right test, in my view, is whether the issue between the parties is one which the defendant is entitled to have sent to a trial — whether it be an issue of fact or of law. If the issue is seen on analysis to be capable of determination in only one way, in favour of the plaintiff, then, as it seems to me, it is proper to the court to exercise the power conferred on it by O113 and determine the matter, however vigorous the contest may have been.”

7.In a recent case Leung Siu Wai Winnie v All Occupier(s) of portion of Lot Nos 1190 & 1191 both in DD No. 96, Yuen Long, New Territories, DCMP 2039 of 2014, unrep, 3^rd March 2015), Deputy Judge Lawrence Ng succinctly summarized the appropriate scenario for Order 113 procedure vis-à-vis a defence of adverse possession,

“8.  Under Order 113, rule 1 of the Rules of District Court, where a person claims possession of land which he alleges is occupied solely by person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in possession without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions thereof.

9.  However, it is only when the plaintiff’s case is so clear on the facts and the law that the defendant must be regarded as being in wrongful occupation of the land that an order for possession under Order 113 should be made: Mutual Luck Investment Ltd v Chiu Yim Man [1993] 3 HKC 309 at 403A-B per Keith J (as he then was). If the defendant can demonstrate, albeit by a narrow margin, a substantial issue that warrants a proper trial, an order for possession under Order 113 should not be made: Goldmen Electronic Co Ltd v Shum Wai Man [2002] 2 HKC 324 at para 17 per Deputy High Court Judge Poon (as he then was).

10.  It has also been said that the Order 113 procedure will not usually be an appropriate vehicle for the recovery of land which has been occupied by many families for many years. Such cases will invariably raise issues of both fact and law which cannot be properly investigated without proper pleadings and following a trial at which the rules of evidence are adhered to: Mutual Luck at 403C. It should also be borne in mind that the originating summons procedure is not and is never intended to be a short-cut to resolve disputes which can only be properly dealt with in a writ action. Where there are substantial factual issues which cannot be resolved by affidavit, the originating summons procedure is inappropriate: Shum Wah Ming v The Estate of Chen King Ngo, deceased & Anor, CACV 21/1996, unrep, 10 July 1996 at para 25 perCheung J (as he then was).” (emphasis added)

Legal principles of adverse possession

8.It is well established that a person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention. (See: Wong Tak Yue v Kung Kwok Wai & Another (1997-98) HKCFAR 55).

9.The classic case Powell v McFarlane (1977) 38 P & CR 452, at 470-471 Slade J decided the following with regard to the factual possession and the requisite intention,

“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 ......Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.

...... the animus possidendi “...... involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.”

The 2^nd defendant’s case

10.Chan Ho (or Chan Tak Ho) (“Chan”), the 2^nd defendant’s husband, was a fish hawker and had become a farmer in or about 1972 - 1973.  He rented Lot 605 (the area adjoining the Land) to do farming. The scale was not small and he had employed workers to help him. At that time, the Land was unoccupied and uncultivated, Chan took over the Land and extended his farming on it. 

11.In 1976, he employed the 2^nd defendant as a worker. He  married her in the same year.  Chan and the 2^nd defendant operated the farm for a living.  They have given birth to four children from 1977 to 1982.  Since 1976, the 2^nd defendant had been in charge with the operation of the farm on the Land.

12.In or about 2000 - 2002, Chan retired. At that time, he was about 70 years old. The 2^nd defendant operated the farm solely. By the encouragement of the Agricultural Fisheries and Conservation Department, the 2^nd defendant practiced organic farming.  She started to grow new organic products.  By then, she had already taken over and had full control and management of the farm.  She named the farm by her name, “Chun Kee Farm”.  

Analysis

13.Having considered the 2^nd defendant’s affirmation, I am satisfied she has demonstrated substantial issues which warrant a proper trial. This is not an appropriate case for the above matters to be determined by way of Order 113 procedure. The following are my reasons.

14.The intention to possess.  The plaintiff submitted the 2^nd defendant has no intention to possess. The plaintiff argued the 2^nd defendant operated under a licence granted by Chan. She is never an adverse possessor. The plaintiff relied on Yeung Wai Fan v Honiton International Ltd (HCA 1051/2010, DHCJ Simon Leung, unreported, 11 September 2015).  In this case, the learned judged ruled there was insufficient evidence to demonstrate the plaintiff had continued his father’s possession of the land.  

15.The 2^nd defendant submitted, which I agree, that Yeung Wai Fan might not be of assistance.  The reason being, the evidence of the 2^nd defendant is very different from Yeung Wai Fan.  The 2^nd defendant operated the farm with her husband. It is arguable that Chan and the 2^nd defendant had jointly controlled of the farm (including the Land).  By the same token, it would be unfair to hold, at this stage, the 2^nd defendant was staying on the Land with a licence granted to her by Chan. Alternatively, when Chan retired in 2000 - 2002, there is evidence that the 2^nd defendant had practiced organic farming without consent or permission of Chan.  The intention to possess should be resolved at trial.

16.The issue of encroachment.  The plaintiff submitted the 2^nd defendant is unable to prove her intention to dispossess the Land.  Chan was the tenant of the adjoining land, only the owner of the adjoining land has locus standi to claim adverse possession against the plaintiff, not the 2^nd defendant.  The plaintiff relied on Tang Tak Hong & others v Cheung Yat Fuk (CACV 203 of 2002, 30 October 2002) Yuen JA decided, encroachment on land only benefit the landlord, not the tenant; only the landlord can claim adverse possession, not the tenant.

17.The 2^nd defendant submitted, which I also agree, Chan is unable to claim adverse possession against the plaintiff because he was a tenant of the adjoining land.  The 2^nd defendant might be capable of doing so because she is not in any form of relationship with the landlord of the adjoining land.  A trial proper is justified on this issue.

18.The issue of factual possession.  The plaintiff submitted mere farming without clear fencing to exclude others from entering is not sufficient evidence of adverse possession (See: The estate of Chan Chuen, deceased v Forestside Ltd (HCA 2055 of 2011, DHCJ Kwok SC, unreported 13 April 2016).  

19.This is certainly a matter of dispute on facts.  Fencing or enclosure are strongest possible evidence but it is not indispensable. (See: Powell v McFarlane, at p 478), it is implausible to decide on affirmation the extent of possession on the Land.

Conclusion

20.I therefore make the following orders :-

(i) The originating summons filed on 19 May 2016 be continued as if the cause of action has been begun by writ.

(ii) Leave be granted to the plaintiff to file and serve a statement of claim within 28 days from the date of this decision hereof.

(iii) Leave be granted to the 2^nd defendant to file and serve a defence (and counterclaim) within 28 days thereafter.

(iv) Leave be granted to the plaintiff to file and serve a reply and defence to counterclaim, within 28 days thereafter.

(v) The costs of the 2^nd defendant’s summons filed on 4 October 2016 be in the cause.

Mr Jerry Jim, of Jim & Co, for the plaintiff.

The 1^st defendant was not represented and did not appear.

Mr Kenneth Shum, instructed by Simon Wong & Co, for the 2^nd defendant.