Cheung Lai Mui, The Executrix of the Estate of Cheung Ping Kau and The Administratrix of the Estate of Cheung Ping Fuk (Alias Cheung Bing Fuk) v. Cheung Wai Shing and Others
Read the full judgment text of HCA 1652/2012 on BabelCite. This High Court CFI judgment was delivered on 10 April 2017.
1. The main dispute in this action concerns Lot No 1101 in Demarcation District 221 (the “ Disputed Land ”), lying in the vicinity of the Sha Kok Mei Village, Sai Kung (the “ Village ”).
Cited by 2 cases · Cites 11 cases
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HCA 1652/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1652 OF 2012 ______________________ BETWEEN
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______________________ J U D G M E N T ______________________ A. BACKGROUND 1.The main dispute in this action concerns Lot No 1101 in Demarcation District 221 (the “Disputed Land”), lying in the vicinity of the Sha Kok Mei Village, Sai Kung (the “Village”). A1. The Parties 2.The Disputed Land was owned by the late Mr Cheung Tak Ming (“Great Grandfather”). He passed away in 1934. 3.The Great Grandfather was survived by 3 sons, namely Mr Cheung Ping Wan (“Wan”), Mr Cheung Ping Kau (“Kau”) and Mr Cheung Ping Fuk (“Fuk”). Upon the death of the Great Grandfather, the 3 sons became the registered co-owners of the Disputed Land in equal shares (each holding 1/3 share). 4.All the 3 sons passed away in the 1990s:
5.Having said that the 3 sons have passed away already, as of today: –
6.As will be further elaborated below, it is the defendants’ case that there was all along a family consensus/agreement/understanding (the “Common Understanding”) that the 3rd defendant (being the sole male descendant of the family) could use and own the Disputed Land as his home, and he could build a small house there when he became an adult. A2. The Claims, Defences & Counterclaim at a Glance 7.The plaintiff, as a co-owner of the Disputed Land, seeks an injunction to restrain the erection of a 25 feet high building (“Structure A”) and a single-storey building (“Structure B”) on the Disputed Land and also to compel their demolition, on the basis that they are: –
8.It is salient to note that initially the plaintiff only sued the 1st and 2nd defendants, and she only brought claims against the 3rd defendant when she amended her Statement of Claim in March 2013 (ie 6 months after she had started this action). 9.In the prayers for relief in her Re-Amended Statement of Claim, the plaintiff seeks the following relief against the 1st, 2nd and 3rd defendants: –
10.The defendants’ defence, in gist, is that: –
11.Further, the 1st and 2nd defendants raised a counterclaim against the plaintiff for accounts and enquiry of the rent received by the plaintiff and for 1/3 of the rental income of a house erected on Lot 774 (“House 774”) which is also known as “No 16 of Lane 9”. The 1st and 2nd defendants together hold a 1/3 undivided share of House 774. The plaintiff grew up in House 774 which was occupied by her grandparents and parents. She continued to live there after the death of her father (Kau) in 1997 and is now living with her daughter and granddaughter on the Ground Floor. She leased out the other two floors to derive rental income. The plaintiff raised adverse possession as her defence to the 1st and 2nd defendants’ said counterclaim. B. RELEVANT LEGAL PRINCIPLES B1. Common Intention Constructive Trust 12.A constructive trust will arise in connection with the legal title to property wherever one party has so conducted himself that it would be inequitable to allow him to deny to the other party a beneficial interest in the property acquired. This be so where: (1) there was a common intention that both parties should have a beneficial interest or where one party should have the sole beneficial interest; and (2) the claimant has acted to his detriment or significantly altered his position in reliance upon that common intention: Halsbury’s Laws of England: Trusts and Powers(5th Ed) at paragraph 117; see also Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985, at paragraphs 5.17, 6.11 and 6.12. 13.The common intention can be express or implied. It can be deduced or inferred objectively from the parties’ conduct: Mo Ying (Ibid) at paragraph 5.17; Stack v Dowden [2007] 2 AC 432 at paragraphs 126, 128; Halsbury’s Laws of England (Supra) at paragraph 117. B2. Proprietary Estoppel 14.As for proprietary estoppel, the requirements are: –
B3. Promissory Estoppel 15.Similarly, promissory estoppel arises where: –
B4. Estoppel by Standing By 16.The principles in relation to the doctrine of estoppel by standing by, silence, inaction, or acquiescence has been succinctly summarised by Cheung JA in Mo Ying (Supra) at paragraph 8.2: –
17.In Lee Bing Cheung v Secretary for Justice, HCA 1092/2010 (judgment of DHCJ Marlene Ng dated 21 February 2013), it was emphasised at paragraphs 43 and 45 that “…The essence of the relief is to avoid an unconscionable result” and that “…such is the nature of the equity under the doctrine of proprietary estoppel that the true test is whether it will be unconscionable for the defendant to deny that which he has allowed or encouraged the plaintiff to assume to his detriment rather than ‘whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.’ ” (emphasis added) B5. Adverse Possession 18.It is trite law that a claimant has to establish factual possession and the requisite intention to possess (animus possidendi). 19.Factual possession means sufficient degree of physical custody and control: Lee Bing Cheung (Ibid)at paragraph 33. 20.Animus possidendi means 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, so far as is reasonably practicable and so far as the process of the law will allow: Lee Bing Cheung (Ibid) at paragraph 34. It was held in Powell v McFarlane and Another (1979) 38 P. & C.R. 452 at pages 477-478 that “[t]here are a few acts which by their very nature are so drastic as topoint unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned. The ploughing up and cultivation of agricultural land is one such act” and “so too is the locking or blocking of the only means of access.” 21.Having made a comprehensive review on ample relevant authorities finding adverse possession in cases of the squatter locking gates and controlling access to the disputed land, the learned author concluded that “[i]f the squatter controls the entrance to the disputed land, by keeping the door or gate to it locked and holding the key, that is strong evidence that he has the animus possidendi”: (Jourdan QC, “Adverse Possession” (2nd Ed.) at paragraphs 13-23 to 13-29. 22.An intention to own the land is unnecessary for the purpose of establishing animus possidendi: Adverse Possession (Ibid) at paragraph 9.25. However, a squatter who does believe, erroneously, that he owns the property clearly constitutes the necessary animus possidendi: Adverse Possession (Ibid) at paragraphs 9-38 to 9-41. 23.The grant of licence is an act of ownership which is adverse to the title of the registered owner of a property: Cheung Yat Fuk v Tang Tak Hong & Others (2004) 7 HKCFAR 70 at paragraphs 8, 16-17 per Bokhary PJ. C. CREDIBILITY OF THE PROTAGONISTS C1. The Plaintiff 24.Having carefully observed the plaintiff’s performance in the witness box, I am of the view that she is not a credible or reliable witness. It is clear that a lot of the allegations stated in her Witness Statements (“WS”) are false, and contradicted by her own admission/oral evidence. Many aspects of the plaintiff’s testimony were also contradicted by the objective circumstances of this case. When the plaintiff could not offer an explanation, she would: –
C1(a) No Licenses/Permission 25.In her WS, the plaintiff alleged that in 2004, the 3rd defendant sought her permission to build a temporary garden structure on the Disputed Land for testing durability, and she was kind enough to agree. 26.This allegation was withdrawn during her oral evidence. During cross-examination, the plaintiff admitted that the 3rd defendant did not seek her permission or authorisation before constructing the garden features (including the wooden pavilion, the bridge, the fish pond), the two-Storey Structure A, and Structure B etc on the Disputed Land. She even made a blanket admission that the 3rd defendant never asked for her permission before he built anything on the Disputed Land. C1(b) Alleged Conspiracy to Commit Perjury by Making False Affirmation 27.The plaintiff twice admitted on oath in previous affirmations that Wan, Kau and Fuk were “natural brothers”. However, during cross-examination, for the first time, the plaintiff alleged that the 1st and 3rd defendants “taught” her to make false affirmations, and the purpose of the false testimony was to facilitate future transfer of title. 28.Thus, even on her own case, the plaintiff is someone who is readily prepared to commit perjury, and her morality is low. I agree that this court should bear this in mind in assessing her credibility. 29.What is perhaps more ironic is that the plaintiff’s allegation about colluding with the 1st/3rd defendants to lie on oath itself is also a lie. The plaintiff is simply desperate to “disown” the admissions in the two affirmations. I agree that (i) there was no reason why the plaintiff’ sallegation was not mentioned anywhere in her 4 WS; and (ii) it is inherently unlikely that the staff of a solicitors’ firm, ie Mr Leung Yip Hong (“阿東”) (“Mr Leung”), would conspire with lay clients to commit perjury (which is of course a serious crime): Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387,at paragraphs 181 to 184; Re H & Others (Minors) Sexual Abuse: Standard of Proof [1996] AC 563, at pages 586-587. 30.The plaintiff obviously realised that Mr Leung’s involvement (who was said to be a co-conspirator of hers) may prejudice the credibility of her case. She was smart enough to try to distance himself from Mr Leung. To this end, during re-examination, the plaintiff said that Mr Leung is no longer involved in the present proceedings. This is yet another piece of untruth. As admitted by the plaintiff’s handling solicitor, Mr Leung has been actively involved in these proceedings. For instance,Mr Leung visited various witnesses during 2012 to 2015 to gather evidence. C1(c) Kau’s Indigenous Right 31.While the 1st defendant had mentioned twice that Kau had sold his “indigenous right”, the plaintiff did not make any response in her witness statements. 32.Surprisingly, she mentioned for the first time in cross-examination that Kau never sold his “indigenous right”, and he wanted to build a small house on the Disputed Land. Whilst the plaintiff cannot explain why these important points were not mentioned in her WS, the plaintiff went on to allege that Kau had in fact applied to build a small house. However, she was unable to produce any supporting evidence. She could not even say when Kau’s application was made and why it failed. 33.Realising the glaring absence of documents to support her story, the plaintiff eventually (again) shifted the blame to her solicitors, saying that there must be some documentary evidence kept by her solicitors. C1(d) Family Photo Taken in 1978 34.When asked why she was absent in the family photograph taken during Chinese New Year, the plaintiff gave a rather “extreme” explanation, again for the first time: she said the 1st defendant pushed her out a few seconds before the photo was taken. 35.I agree that this is most unbelievable. When asked if she complained on the spot, she said no. When asked if anyone else, such as her Grandmother Yu, asked that another photo be taken again, she said no. C1(e) Relationship with Wan and his family 36.In her witness statements, the plaintiff very much seized every opportunity to demonize Wan and his family. She said Kau was in bad relationship with Wan and his family, and there was a high degree of animosity. The plaintiff also said that the 1st and 2nd defendants were both nasty to her, and the 1st defendant would even attempt to kick her out of her home or push her out of the family photo. 37.If the relationship was as poor as described by the plaintiff, one asks rhetorically why would the 1st defendant pay for Kau’s funeral expenses? Knowing that she was unable to contradict the documentary evidence adduced by the defendants, at cross-examination the plaintiff was forced to admit that the 1st defendant had immense respect for Kau, and hence the 1st defendant volunteered to handle the funeral. Eventually, the plaintiff conceded that Wan and Kau treated each other as brothers. 38.With a view to convincing the court that the 1st defendant would counsel her to make false affirmations (paragraphs 27 to 30 above), in her re-examination the plaintiff also said that she trusted the 1st defendant a lot. This belated yet disingenuous suggestion is plainly inconsistent with the allegations in her WS that the 1st defendant was mean and nasty to her. 39.I agree that these examples further demonstrate that the plaintiff has kept “tailor-making” evidence that suits her agenda. C1(f) Right of Way / License Granted to Developer 40.The plaintiff’s evidence concerning the dealings with the developer/Tsang Yuk May is convoluted and self-contradictory: –
41.Anyhow, I agree it is unbelievable that the plaintiff would share HK$5,000 with the 3rd defendant. The plaintiff’s explanation was that the 3rd defendant referred the developer to her, and he was her nephew. This made no sense. The developer could simply do a land search to find out the registered ownership. There was no reason why the plaintiff (who was in financial difficult) would share HK$5,000 with the 3rd defendant. 42.Moreover, the plaintiff is unable to produce a shred of documentary evidence in support of her oral evidence. The 3rd defendant, on the other hand, produced the “Protection Agreement” dated 15 December 2003, on which the plaintiff signed as a witness. 43.Finally, the plaintiff changed the date of the grant of licence incident from 2007 to 2003 following the change made by the defendants. This shows that the plaintiff has no personal knowledge whatsoever of the incident and simply rode along the defendants’ case: –
44.All in all, I agree that the 3rd defendant’s evidence on this issue makes much more sense. Since the 3rd defendant controlled and possessed the Disputed Land, it was natural for the developer to deal with the 3rd defendant, not the plaintiff. This also explains why when the 3rd defendant was reluctant to extend the licence, he and his family were the ones who got assaulted/harassed. C1(g) The Adulterous Relationship between Wan and Yu Mei Chik (“Yu”) 45.When asked why Wan became an “adopted son” of the Cheung Family, the plaintiff made a most scandalous allegation that Wan had an adulterous relationship with Yu. According to the plaintiff, as Fuk unfortunately discovered the incident, he was sent to China. 46.This surprising yet extreme allegation is a recent concoction. I agree that if what the plaintiff said were true, Fuk/Kau would have despised and hated Wan to the extreme. The last thing that Fuk/Kau would do was to sign the Succession Conveyance dated 21 June 1978, acknowledging that Wan (who had slept with their own mother) had a 1/3 entitlement to all the ancestral lands left behind by their father. 47.What is also curious is that whilst the plaintiff made a speech on the alleged adulterous relationship, she could not give a credible reason why Wan became an “adopted son”. C1(h) Relationship with Fuk 48.In her WS, the plaintiff said that she lost contact with Fuk from 1966 to 1986. Curiously, the plaintiff also stated that the last time she saw Fuk was in 1986. Reading these together, the plaintiff only saw Fuk once from 1966 to 1986. 49.Knowing this was detrimental to he case, the plaintiff begun to concoct new evidence. Her evidence was ever-changing. At first, the plaintiff said in evidence that she saw Fuk for about three times. Subsequently, the plaintiff said that she met with Fuk for about six times. 50.Even putting the plaintiff’s case at its highest, she only met Fuk a few times in 2 decades. It was inherently implausible that Fuk would inform the plaintiff about intimate personal matters, and said to her that she would get all his assets. C1(i) No Alleged Agency 51.Under cross-examination, the plaintiff admitted that the 3rd defendant built Structures A and B for his own benefit. The plaintiff unequivocally admitted that Structures A and B were built by the 3rd defendant for his own benefit and not for the 1st and 2nd defendants (“佢自己整俾自己用”; “佢自己去搞, 佢自己去整”; “為自己起嚟做”). 52.Hence, there is no truth in the plaintiff’s case that the 3rd defendant built Structures A and B as the 1st/2nd defendants’ agent: see Re-amended Statement of Claim, paragraphs 10 to 12. There is no factual basis to allege agency. C1(j) Impossible for Plaintiff to Expect to Build a House on the Disputed Land 53.With a view to attracting sympathy and explaining why she did not pay House 774’s government rent and rates, the plaintiff emphasised several times that she was under severe financial difficulty. Indeed, the plaintiff’s impecuniosity is not in dispute. All her previous jobs were rather unstable. 54.In the circumstances, it is wholly incredible that back in 2003, the plaintiff would have told the 3rd defendant that she would build a small house on the Disputed Land, and that the 3rd defendant must demolish Structure B by then (the “Alleged 03 Conversation”). 55.Even on the plaintiff’s case, building a small house on the Disputed Land was no more than a remote possibility for the plaintiff. She admitted that building a house on the Disputed Land was “十劃都未有半撇” and that she could not at the time even afford her meals (“飯都無得開”). It is thus most unbelievable that the Alleged 03 Conversation has taken place. 56.More importantly, even assuming that the plaintiff was in a position to “buy” indigenous rights (which was unlawful) and to pay the construction costs (which was financially impossible), the plaintiff was still unable to explain how she could build a small house without seeking the 1st/2nd defendants’ consent. Without being able to give a credible answer at all, the plaintiff just said most unreasonably that “我想係邊度起就推冧佢”. This shows that the plaintiff in fact had not even thought about the matter, and it was simply impossible for her to build a small house on the Disputed Land. C1(k) Failure to Explain Why Action Not Commenced Against the 3rd Defendant at First 57.If the Alleged 03 Conversation existed, the plaintiff would have taken action against the 3rd defendant at the outset so as to hold him responsible for the express promise. 58.However, it was not until 5 April 2012 that the plaintiff first wrote to demand that Structure A and Structure B be demolished. Moreover, this letter was issued to the 1st defendant, not the 3rd defendant. I agree that the plaintiff’s only explanation was illogical. She alleged that when she talked to the 3rd defendant, he referred her to the 1st defendant, and vice versa. If this were true, after consulting legal advice, the plaintiff would surely have issued the letter to all parties. For no explicable reason, this was never done. 59.Worse still, the plaintiff only added the 3rd defendant as a party when she amended the Statement of Claim on 7 March 2013, ie some 6 months after the plaintiff had started this Action on 11 September 2012. In fact, the Alleged 03 Conversation was only mentioned for the first time at paragraph 52 of the plaintiff’s 2nd Supplemental Witness Statement dated 5 June 2015. 60.In the circumstances, the objective circumstances show that the Alleged 03 Conversation was a recent concoction, and it could not have existed. C1(l) Failure to Mention Change of Gate in First Complaint Letter 61.The plaintiff alleges that she had free access to the Disputed Land in mid-2011. 62.If this were true, it is difficult to understand why the plaintiff did not mention anything about the gate and her inability to access the Disputed Land in her pre-action letter dated 5 April 2012. In fact, the plaintiff only took issue about access to the Disputed Land in the “post-action” letter dated 10 December 2012. This was issued 3 months after the plaintiff had commenced this Action on 11 September 2012. The plaintiff then amended her Statement of Claim on 7 March 2013 alleging that she was denied access to the Disputed Land. 63.During re-examination, the plaintiff was unable to come up with any explanation. 64.Indeed, the plaintiff’s case has been inconsistent in this regard. In her Amended Statement of Claim, she claimed that the new gate was installed in mid-2011. Whereas in the letter dated 10 December 2012, she claimed that she could not enter 1101 since a few months ago. In her oral evidence, she said that the wooden gate (the “Third Gate”) was installed as early as in 2009. However, the plaintiff said that for some inexplicable reasons, the Third Gate was kept opened. This was impossible bearing in mind that (as explained the 3rd defendant), the Third Gate was made of stainless steel and wood with an electric lock that would be triggered automatically. 65.The objective circumstances show that the plaintiff simply had no access to the Disputed Land at all, and she paid no attention to the features of the Disputed Land (including the gates). This was probably why she only took issue about access to the Disputed Land and the Third Gate months after the Action had been started. She only paid attention by then. This further demonstrates that before this Action was started, the plaintiff did not care about the Disputed Land at all, and she could not have considered herself as a co-owner. C1(m) Entered the Disputed Land for the Purpose of Visiting the 3rd defendant 66.The plaintiff’s evidence as to when and why she would enter the Disputed Land was extremely vague and evasive. She only managed to say that she would randomly wander onto the Disputed Land to check if there were any fruits to pick and pull a few weeds. 67.Whilst the aforesaid bare assertions made little sense, the plaintiff further admitted that she did not visit the Disputed Land at all from 1997 to 2003. After 2003, when she became friendly with the 3rd defendant due to the birth of his son, she would occasionally visit the 3rd defendant and stay for dinner with the 3rd defendant’s family. The plaintiff even said that if the 3rd defendant did not call her, she would not enter the Disputed Land. This shows that the plaintiff’s visit to the Disputed Land was invariably linked to the 3rd defendant. She entered the Disputed Land for paying visits to the 3rd defendant’s family as a guest, not in the capacity and belief as a co-owner. C1(n) Wan, Kau, and Fuk Treated Each Other as Brothers 68.During cross-examination, the plaintiff alleged for the first time that Kau and Fuk did suggest to her that Wan was not a natural son of the Great Grandfather. 69.There was no reason why these important matters were not mentioned anywhere in her 4 WS. 70.Anyhow, in light of the incontrovertible documentary evidence, including the Succession Conveyance dated 21 June 1978, the letter dated 25 March 1997 (to be dealt with below) and the 1st defendant’s payment of Kau’s funeral expense, the plaintiff was forced to accept that Wan, Kau, and Fuk in fact treated each other as real brothers. C2. The 3rd Defendant’s Evidence 71.Having had the opportunity to carefully consider his evidence and his demeanour, I agree that the 3rd defendant is a credible and reasonable witness. He endeavoured to answer all questions and to give details when requested. He was also fair enough to make concessions when they are warranted. C2(a) The Common Understanding 72.The 3rd defendant repeatedly emphasised that for the Disputed Land, there was a Common Understanding and it is to be distinguished from other ancestral lands. 73.The overwhelming evidence shows that the 3rd defendant has been treating the Disputed Land as his own property, and the Disputed Land is not some future entitlement: –
74.I agree that the 3rd defendant’s evidence makes sense, and is consistent with the objective circumstances. The above unshaken evidence on the special treatment of the Disputed Land is compelling and highly credible. C2(b) Works on the Disputed Land 75.The 3rd defendant gave an account of various works he did on the Disputed Land, down to details such as the handle of the footbridge in the garden and the stone used for repairing the walls. The 3rd defendant’s evidence is uncontradicted and indeed indisputable. C2(c) Interaction with Uncle Fuk and Uncle Kau 76.The 3rd defendant was able to give vivid and convincing accounts of his interactions with Fuk and Kau. For instance, the 3rd defendant would swim and hike with Fuk, and they would also chat and drink tea/beer on the Disputed Land. D. FINDINGS ON THE EXISTENCE OF THE COMMON UNDERSTANGING D1. The Objective Circumstances 77.In assessing the credibility of a party’s case, it is important to take into account inherent probabilities and the incontrovertible facts (such as contemporaneous documents): Tradepower (Holdings) Ltd v Tradepower (HK) Ltd(2009) 12 HKCFAR 417 at paragraph140 (per Litton PJ); Hua Tyan Development Ltd v Zurich Insurance Co Ltd [2012] 4 HKLRD 827 at paragraph 27 (per Chung J). 78.The present case concerns a traditional Chinese family residing in the New Territories. It is important not to lose sight of the following incontrovertible objective circumstances. I agree that they all point towards the existence of the Common Understanding. D1(a) The 3rd defendant is the only Male Descendent of the Cheung Family 79.It is now common ground that Wan, Kau and Fuk did treat each other as brothers with equal status and equal entitlement. This incontrovertible fact is borne out by:
In these contemporaneous documents, Wan, Kau and Fuk unequivocally acknowledged their brotherhood and each other’s’ equal entitlement to the ancestral land left behind by the Great Grandfather. 80.In the premises, there is simply no room for the plaintiff to dispute the kinship amongst the parties. The plaintiff cannot deny the incontrovertible fact that the 3rd defendant was the only male descendent of the Cheung Family. It was natural and understandable that senior members of the family were fond of the 3rd defendant. D1(b) The Disputed Land is Unique, and it is at a Special Location 81.It is pertinent to note that unlike other ancestral land, the Disputed Land is located in front of Lot 1099 (where the 3rd defendant’s family lived). Naturally, the 3rd defendant spent a lot of time on it since childhood. This is the place where the 3rd defendant was raised and where he grew up. It made sense for senior members of the Family to agree that the 3rd defendant should own the Disputed Land, and build a house thereon. The Common Understanding was hardly surprising. D1(c) The Incontrovertible Documents 82.The Consent Statement dated 25 March 1997 (“the 97 Consent Statement”) is a piece of very compelling documentary evidence. In it, Wan and Kau agreed that the 3rd defendant could build a house on the Disputed Land. The consent was unconditional. There was no restriction as to (i) timing; and (ii) location of the house. Fuk was unable to sign the 97 Consent Statement only because he had already passed away as of March 1997. 83.The plaintiff is not even in a position to challenge the 97 Consent Statement. She admitted that Kau would not tell her about many important matters, and she knew nothing about the 97 Consent Statement. 84.The other very compelling and incontrovertible documents are, of course, (i) the Succession Conveyance dated 21 June 1978; and (ii) the letter dated 11 October 1971 written and signed by Kau. D1(d) The Extensive Works carried out by the 3rd defendant on the Disputed Land 85.The 3rd defendant has been continuously carrying out extensive works on the Disputed Land since 1992, for example, building Structures A and B, designing/erecting various garden features, digging up the ground to install electricity. 86.But for the express promises and assurances by the senior members of the Cheung Family, the 3rd defendant would not have invested and incurred so much time, financial resources, efforts and energy in carrying out all these works to improve the Disputed Land throughout the years. This demonstrates that the Common Understanding exists, and pursuant to the Common Understanding the 3rd defendant has been using the Disputed Land as the sole beneficial owner. D1(e) The “Could-Not-Care-Less” Attitude of the Paper Owners 87.The attitude of the paper owners is also relevant. In contrast to the 3rd defendant’s extensive use and occupation of the Disputed Land, the paper owners (ie the 1st defendant, the 2nd defendant and the plaintiff) had almost nothing to do with the Disputed Land throughout the years. They had done nothing to protect/maintain the Disputed Land. None of them took steps to interfere with the extensive works being carried out by the 3rd defendant on the Disputed Land, and none of them occupied/used the Disputed Land. In this connection, it is pertinent to note: –
88.The above shows that the paper owners of the Disputed Land in fact had no control over the land. They had no actual interest, and they did not care. D1(f) Conclusion on the Objective Circumstances 89.In conclusion, I agree that the objective circumstances of this case do point to the existence of the Common Understanding, thus giving rise to a common intention constructive trust and proprietary estoppel in favour of the 3rd defendant over the Disputed Land. D2. Direct Evidence on the Common Understanding 90.It is, of course, also important to have regard to the direct evidence of the parties on this issue. In this regard, I have already set out in some detail my view on the respective credibility of the plaintiff and the 3rd defendant as witnesses. In fact, I find that the defendants’ witnesses as a whole are honest and reliable on this issue. Their evidence on the Common Understanding is credible and consistent. It is most unlikely that all the witnesses (many of whom are elders) would conspire together to lie in court on oath. 91.Importantly, I agree that the 2nd defendant is a most impressive and compelling witness. Since the 2nd defendant’s evidence tantamount to testimony or admission against her own interest, it should be given considerable weight: see Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55, at 69B-E (per Li CJ) and 71E (per Ching PJ). In fact, the 2nd defendant had no motive to lie at all. It was therefore hardly surprisingly that the 2nd defendant was unshaken under cross-examination. I agree that there is no reason to reject her evidence. 92.In contrast, for the reasons set out above, I have concluded that the plaintiff is not a credible or reliable witness. She is quite unable to adduce any evidence to refute the existence of the Common Understanding. 93.The plaintiff submitted that there was no record of the Common Understanding. I agree that this is quite beside the point. 94.First, the authorities suggest that “when the parties are in a personal relationship (as contrasted with parties in a commercial transaction), it would be unrealistic to expect written records of assurances…”: Chen Tek Yee v Chan Moon Shing, CACV 136/2015 (Judgment dated 29.02.2016)at paragraph 29, per Yuen JA. The observation must be correct: otherwise, the doctrine of common intention constructive trust and proprietary estoppel would not have developed at all. 95.Secondly, this case concerns a traditional Chinese family, where filial piety and mutual trust is paramount. Members of the family dealt with each other on the basis of trust, not mistrust. They could not have envisaged litigation in the future, and they would not have generated records to protect themselves out of the blue. 96.Thirdly, there is no evidence suggesting that Wan had the habit of making written records. The evidence shows that Wan would only write to pursue a specific purpose, for example, applying for building a small house on Lot 1099. 97.Fourthly,members of the Cheung Family have relatively low education level. None of them was sophisticated commercial people. They would not have created written documents to protect themselves. 98.Fifthly, in any event, the 97 Consent Statement is the best contemporaneous documentary evidence, and it is very much incontrovertible. 99.Summarising all the evidence, I accept as a fact that the Common Understanding was at least discussed/mentioned in the following occasions. Many examples were elaborated in the 2nd defendant’s oral evidence when she was asked to give details. In the present case, there was a clear express Common Understanding and/or assurance that the 3rd defendant should become the sole owner of the Disputed Land and that he could use it as his home.
E. ALTERNATIVELY, ESTOPPEL BY STANDING BY 100.By now, there is no dispute that the plaintiff was fully aware of the works carried out by the 3rd defendant on the Disputed Land. The only defence is the plaintiff’s alleged granting of licence to the 3rd defendant to build a garden feature on the Disputed Land and the Alleged 03 Conversation. 101.Any defence based on license is demolished by the plaintiff’s own admission. Under cross-examination, the plaintiff admitted that the 3rd defendant did not seek her permission before constructing the garden features, the two-storey Structure A, and Structure B etc on the Disputed Land. She even made a blanket admission that the 3rd defendant had never asked for her permission before he built anything on the Disputed Land. 102.As to the Alleged 03 Conversation, it is entirely unbelievable: –
103.In the circumstances, I agree that the Alleged 03 Conversation is nothing but a concoction. The plaintiff has clearly stood by and is now estopped from complaining. F. IN THE FURTHER ALTERNATIVELY, ADVERSE POSSESSION BY THE 3rd DEFENDANT 104.The 3rd defendant has clearly (i) factual possession of the Disputed Land; and (ii) the requisite animus possidendi for over 12 years. 105.The 3rd defendant exercised control over the Disputed Land by building thereon extensively and controlling access, fencing up the Disputed Land and granting licence. 106.In this connection, the plaintiff admitted that the main entrance is the only entrance to the Disputed Land. 107.The plaintiff was only able to come up with bare assertion suggesting that the gate was never locked prior to 2011, and hence the Disputed Land was effectively “open to public”. This is plainly unbelievable and should be rejected: –
108.In any event, the question whether the gates were in fact locked is a red herring. Even if the gates were not actually locked, the 3rd defendant’s act of erecting the gates thus controlling access to the Disputed Land tantamount to “an unambiguous assertion of control” over the same: see “Adverse Possession” (2nd Ed.) paragraph 13-29. This explains why everybody (including Suen Kok Ching, Tse Chi Man and Kwok Yiu Wing) would not even attempt to enter the Disputed Land without first obtaining the 3rd defendant’s consent. This is the strongest evidence demonstrating the 3rd defendant’s factual possession and animus possidendi. 109.It is also pertinent to note that a mistaken belief of ownership over the land can constitute animus possidendi. G. 1st AND 2nd DEFENDANTS’ COUNTERCLAIM 110.The plaintiff’s defence to the 1st and 2nd defendants’ counterclaim based on adverse possession is bad in law. The starting point is that possession of one tenant in common is not adverse to the other tenant in common unless ouster is established: Tang Tak Sum v Tang Kai Fong[2015] 1 HKLRD 286 (CA) at paragraph 34. 111.Tang Tak Sum (Ibid) is a pertinent authority. At paragraph 39, Cheung JA stated that:
112.This is indeed the scenario in the present case. The plaintiff cannot establish ouster by simply showing that she has pocketed all the rental income of House 774. 113.Further, in the present case, the 1st and 2nd defendants have done more than enough to negative ouster. What they did clearly went beyond the requirement of doing the “slightest acts”: –
114.Further, I agree that on her own admission, the plaintiff has failed to establish animus possidendi. The plaintiff in her oral evidence accepts that the 1st and 2nd defendants are co-owners of Lot 774 as a piece of land, albeit not the house constructed thereon. This shows that the plaintiff actually did not consider herself as the sole owner of House 774 and the land on which it is built. H. DISPOSITION 115.For the reasons set out above, I hold that the plaintiff’s claims against the defendants must fail, and the respective counterclaims of the 3rd defendant and the 1st and 2nd defendants should succeed. 116.Accordingly, as regard the 3rd defendant, I make the following order: –
117.As regard the 1st and 2nd defendants, I make the following orders: –
118.I further order that the costs of these proceedings be paid by the plaintiff to the 1st, 2nd and 3rd defendants, such costs are to be taxed if not agreed. 119.The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same. 120.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.
Ms Dora K. H. Chan, instructed by So, Lung and Associates, for the plaintiff Mr Alan Kwong and Ms Stephanie Wong, instructed by Tung, Ng, Tse & Heung, for the 1st to 3rd defendants |
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