Yu Kit Chiu and Others v. Lam Ming Kwong and Another
Read the full judgment text of DCMP 2706/2011 on BabelCite. This District Court judgment was delivered on 13 July 2017.
1. This is the plaintiffs’ claim for possession of land against the defendants. The 1 st defendant counterclaims that he has acquired possessory title by uninterrupted adverse possession.
Cites 7 cases
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DCMP 2706/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO 2706 OF 2011 ----------------------
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---------------------- Before: Deputy District Judge Eliza Chang in Court Dates of Hearing: 6, 7 and 12 December 2016 Date of Judgment: 13 July 2017 ---------------------- JUDGMENT ---------------------- INTRODUCTION 1.This is the plaintiffs’ claim for possession of land against the defendants. The 1st defendant counterclaims that he has acquired possessory title by uninterrupted adverse possession. 2.The plaintiffs are the executors of the estate of Yu Sui Tong, deceased (“the Deceased”), and they bring the action for and on behalf of the estate of the Deceased. The Deceased had since 1937 been the registered owner of a piece of land known as Lot 242 RP in DD 116, Yuen Long, New Territories (“the Land Lot”) and upon his death on 18 June 1980, the plaintiffs have become and still are the registered owners of the same. 3.This action started by way of an Originating Summons dated 1 November 2011 when the plaintiffs applied for an order for possession of the Land Lot under Order 113, rule 1 of the Rules of the District Court. It was originally a claim against all and every person in occupation of the Land Lot. 4.On 13 December 2011, Registrar C Lee granted an Order for Possession of the Land Lot to the Plaintiffs. 5.On 23 January 2013, the 1st defendant filed a Summons to set aside the Order for Possession on the ground that he and his predecessors-in-title had been in adverse possession of the Land Lot since 1998 for a continuous period of not less than 12 years. 6.On 24 October 2013, Master D Ho set aside the Order for Possession dated 13 December 2011 and allowed the 1st defendant to be joined in this case and the original defendant, i.e. “all and every person in occupation of the Land Lot”, was ordered to becoming the 2nd defendant. Master D Ho further ordered that these proceedings be continued as if the same had been begun by Writ, with directions as to filing of pleadings by the parties. 7.In the 1st defendant’s Defence & Counterclaim, the 1st defendant asserted that he and his predecessors-in-title had been in adverse possession of the Land Lot (which he maintained up to 6 April 2016) and, on that basis, the 1st defendant counterclaimed for a squatter’s title to the whole part of the Land Lot. This assertion was supported by the witness statements of both the 1st defendant and his father filed in the proceedings. 8.During an interlocutory hearing before Master Yip on 20 January 2016 when the 1st defendant applied for leave to serve supplemental witness statement and, upon invitation of the plaintiffs, Master Yip ordered a supplemental expert report to be made to ascertain the area of the Land Lot and the area of the temple claimed by the 1st defendant to be in adverse possession. 9.It was upon obtaining the supplemental joint expert report compiled by Mr Joseph Y C Wong of Land Marker (1980) HK Co Limited on 18 March 2016 (“Mr Joseph Wong’s JR2”) showing that the area in occupation by the 1st defendant has always been (since 1970) 130.5 square meters (out of a total area of 331.8 square meters) of the Land Lot whilst the rest of the area was unoccupied. Upon the availability of Mr Joseph Wong’s JR2, the 1st defendant applied to amend his Amended Defence & Counterclaim on 6 April 2016 reducing the area of his alleged occupation and adverse possession by about 2/3. 10.The 1st defendant also made amendment to plead that the subject land in dispute which was adversely possessed was a temple known as 慈航臺 inclusive of certain structures on a portion of the Land Lot which is referred as “the Temple” (“the Temple”). This clarified that the subject land purported to be adversely possessed by the 1st defendant was only the Temple not the whole part of the Land Lot. 11.In order to understand the parties’ arguments, it is important to identify the locality and boundary of the Land Lot and the Temple. I append to this judgment the Survey Sheet dated 17 February 2016 extracted from Mr Joseph Wong’s JR2 in which the Land Lot was demarcated in black and the Temple was demarcated in red. This Survey Sheet is exhibited as page 570 under the Trial Bundle. This Survey Sheet shows a clear demarcation of the Land Lot and the Temple. Only the title of the Temple is in dispute in the present trial insofar as the 1st defendant’s position is concerned. 12.As regards the plaintiffs’ claim against the 2nd defendant, the plaintiffs applied for an Order for Possession of the remaining part of the Land Lot (“the Remaining Part of the Land Lot”), i.e. the whole of Lot 242RP with the Temple being calved out. Apart from the 1st defendant, there were other persons claimed to be in actual occupations, some of them have made unsuccessful attempts to join in as co-defendants. Wong Hon Wang and Wong Lek being two of them who had acted through legal representatives, namely Messrs T K Tsui & Co, asserting that they had been in adverse possession of Land Lot for not less than 12 years but their applications for joinder had been dismissed subsequently. 13.As such the 2nd defendant has never filed any defence. The 2nd defendant was not represented and did not appear in the trial. The parties’ case 14.It is not in dispute that on a day not later than 29 August 1969, Yu Senior granted a licence (“the said licence”) to one Wong Sau Kam (“Madam Wong”) for her to use and occupy the Land Lot for agricultural and residential use. 15.Pursuant to the said licence, Madam Wong applied to the Government for modification of the lease of the Land Lot for her to erect and build various structures on the Land Lot, resulting in (a) a Modification of Tenancy No 14447 dated 29 August 1969 and (b) a Letter of Approval No 14447 dated 29 August 1969 (collectively referred to as “the MOT”). 16.The 1st defendant contended that:-
17.The gist of the plaintiffs’ case is that:-
Relevant Legal Principles Requirement to establish adverse possession 18.The starting position to examine whether a piece of land has been adversely possessed is by looking at the provisions under the LO.
19.The previous 20 years threshold in Section 7(2) has been changed to 12 years by the Limitation (Amendment) Ordinance 1991. 20.The following legal principles applicable to a claim for adverse possession are well settled[1]:
21.In relation to ‘intention to possess’, the adverse possessor must show that he had a ‘…plain and unequivocal intention to exclude the world at large…’. Bolton Metropolitan Borough Council v Musa Ali Qasmi (1999) 77 P & CR 36, the judgment of Peter Gibson LJ at p 37 22.In Civic Limited v 余綺妙and Ors (HCA225/2011, unreported, 28 March 2014), Deputy High Court Judge Marlene Ng J (as she then was) elaborated that (1) “although the occupier must intend to exercise exclusive control for his own benefit, he need not have a conscious intention to exclude the true owner”; (2) “an intention to own the land or even an intention to acquire ownership is not required for establishing animus possidendi”; (3) “the animus possidendi can be established even if the occupier mistakenly believes himself to be the owner of the land.” 23.These observations do not impose a higher burden of proof on the squatter but indeed require more stringent and compelling evidence from the squatter to prove animus possidendi, and, in most cases, the oral evidence would be closely examined against independent and contemporaneous evidence as is available. 24.Accordingly, the burden is on the 1st defendant in the present case, who pleads and asserts the claim of adverse possession, to prove each and every element thereof, including:-
DISCUSSION Issues in Dispute 25.The issue of whether the 1st defendant couldresist the plaintiffs’ claim for possession depends upon whether the 1st defendant could establish that he has continued a ‘chain of exclusive and successive possession’ of the Temple for not less than 20/12 years immediately before commencement of the legal proceedings on 1 November 2011. The 1st defendant bears the burden of proving (a) possession and (b) animus possidendi of Madam Lam, Chan, the 1st defendant’s father as well of his own since late 2012 to the extent that evidence in support both criteria must be ‘compelling’. 26.As transpired from the pleadings and the parties’ submissions, the triable issues for resolution by this Court are as follows:-
The Expert Evidence 27.There are 3 single joint expert reports before the Court:-
28.The disputed land in the present trial is the Temple purportedly used and occupied by the 1st defendant and the previous occupiers and hence Mr Joseph Wong’s JR2 shall be focused on. 29.Mr Joseph Wong opined in paragraph 8.3 of Mr Joseph Wong’s JR2 that “Aerial photos are the most reliable and conclusive evidence of the existence of the object(s)/structure(s) shown in the photos. Therefore Aerial photos would be taken as primary evidence for investigation on the occupation history.” 30.In paragraph 5 of Mr Joseph Wong’s JR2, Mr Joseph Wong made the following findings in respect of the aerial photos featuring the Temple from 1972 to 2011:-
31.Mr Joseph Wong made the following opinions in paragraph 8 of Mr Joseph Wong’s JR2: -
The evidence called by the parties On behalf of the plaintiffs 32.Insofar as the affirmation of Tsang Wai Man, Edwin (Senior Land Executive, South of District Lands Office, Yuen Long) is concerned, the affirmation evidence was obtained from an action for discovery from the records of the District Lands Office (“DLO”) and, as a result:-
33.Given the Order of the Deputy Judge Chung made on 9 April 2016, the affirmation of Tsang Wai Man, Edwin has been admitted as part of the evidence without the necessity of Mr Tsang to be cross-examined. 34.Mr Yu Kit Chiu (“YKC”) of the plaintiffs and Mr Tang Kam Chai (“Tang”) gave evidence and adopted their witness statements and the affirmation of YKC as evidence-in-chief. 35.The gist of YKC’s evidence is as follows:-
36.The gist of Tang’s evidence is as follows:-
On behalf of the 1st defendant 37.The 1st defendant’s father did not attend court to give evidence. The 1st defendant’s counsel explained that the health of the 1st defendant’s father was in an unsatisfactory state and he did not come to Court to give evidence. No medical evidence or any other supporting document was adduced before the Court to prove that the health of the 1st defendant’s father was in an unsatisfactory state. 38.Only the 1st defendant gave evidence and adopted his witness statement and supplemental witness statement as evidence-in-chief. I would only make some highlights regarding his extra oral evidence given in Court:-
The Oral Evidence and Assessment 39.The aforesaid issues involve serious dispute of facts. 40.The principles in relation to assessment of credibility of witnesses have been helpfully summed up by Recorder Eugene Fung SCin the case of Hui Cheung Fai and another v Daiwa Development Limited HCA 1735/2009 (unrep, 8 April 2014) at §§76-83. I shall bear those principles in mind when assessing the credibility of the witnesses in this case. 41.Generally speaking, I am impressed with the evidence given by the plaintiffs’ witnesses. They were able to give their evidence in a clear, cogent and straightforward manner. Further, they are internally consistent with the witnesses’ own evidence and compatible with the objective facts and overall circumstances. 42.I am afraid that I cannot say the same regarding the 1st defendant. The 1st defendant has been discredited on various matters and in light of his motive for not giving truthful testimony which I shall explain in greater details below, I consider that the 1st defendant as a witness is unreliable and incredible. Apart from the issue of the 1st defendant’s credibility, it is also necessary to consider the factual assertions of the 1st defendant in support of his claim of the possession of Madam Lam, Chan and the 1st defendant’s father, all such assertions of facts are hearsay and multiple hearsay. This Court needs to consider what weightshould be given to the 1st defendant’s evidence. The 1st defendant failed to call his father to give evidence. Apart from the bare assertion that ‘this is my land’ and ‘there is no need’, no answer has been given by the 1st defendant as to the reason for not calling a believer/member to support the 1st defendant’s claim as there must be more than 100. The 1st defendant also did not call Mr Wong who is purported to be the servant of his father who assisted in opening and locking the gates. 43.Applying the objective test of evaluation of the 1st defendant’s viva voiceevidence, I consider that the 1st defendant is not a crediblewitness. Some of his evidence are just inherently improbable and internally inconsistent. They also contradict some of the objective facts and documents and do not fit in with the overall circumstances. The following examples are incidents demonstrating that he is not credible:-
44.I agree with the plaintiffs’ submission that the aforesaid issues are central to the dispute of facts and giving untruthful evidence or refusing to answer questions central to the issues reflect the credit or want of it of the 1st defendant in dealing with these matters. I find that the 1st defendant had embellished his evidence in the witness box in order to bolster up his case against the plaintiffs. I also bear in mind the strong motives for the 1st defendant in either lying or at least not telling the court the whole truth in order to claim possessory title to the Temple. 45.Therefore, where there are discrepancies between the evidence given by the parties’ witnesses, I have no hesitation in accepting the evidence given by the plaintiffs’ witnesses and reject those given by the 1st defendant. Adverse Inference 46.The 1st defendant’s father did not attend court to give evidence. The 1st defendant’s explanation was that his father was too old as he was 91 (as at 7 December 2016) and he was suffering from ill health. Insofar as his father’s age is concerned, the 1st defendant’s evidence must be incorrect as, the 1st defendant’s case is that his father was born in 1928 and, as at 7 December 2016, he would only be 88but not 91. Insofar as his father’s health is concerned, no medicalevidence was produced to show his health conditions. Neither has the 1st defendant suggested that his father does not have a clear mind. 47.The first time when the plaintiffs and this Court were informed of the unavailability of the 1st defendant’s father testifying was on 7 December 2016 (the 2nd day of trial). The age and conditions of the 1st defendant’s father were not new to the 1st defendant, given the importance of his evidence, it was difficult to see any reason why for a period of not less than 5 years (between 2011 and 2016), no attempt was made to perpetuate his evidence by the process of taking deposition and, not only the 1st defendant but the plaintiffs were also entitled to apply for taking of the deposition of the 1st defendant’s father in circumstances suggesting that his evidence would have an important bearing to the case and that his health conditions might render him unable to testify in the trial. The 1st defendant’s father is a very material witness who may support the 1st defendant’s case. 48.I disagree with the 1st defendant’s submission that there was no circumstances in the present case which warranted the Court to draw adverse inference against the 1st defendant for failing to call the 1st defendant’s father as witness. 49.I agree with the plaintiffs’ submission that by that time when the plaintiffs and this Court knew about the unavailability of the 1st defendant’s father testifying at the trial, it would be too late for the plaintiffs to apply to compel the 1st defendant’s father to testify by the process of taking deposition. This is a matter that would curtail the weight to be attached to the 1st defendant’s hearsay (and multiple hearsay) evidence relating to the purported occupation of, inter alia, the 1st defendant’s father. Further, no disclosure has been made by the 1st defendant as to:-
50.The Court’s attitude has always been consistent when dealing with an issue for not calling a witness when available. Fuad JA, in adopting the well-established maxim omnia praesumunter contra spoliatorem, approved the judgment in Tullett & Tokyo International Securities Ltd v APC Secutiries Co Ltd [2001] 2 HKC 713, in his following judgment:-
51.The Court would be particularly critical of the attitude of a party not calling a material witness in the trial when, throughout, he had represented to the Court and his opponent that such a witness would be called. The reason for the Court’s stance being that the representation made by that party would have prevented his opponent from taking steps to compel the witnesses’ attendance (e.g. under Order 38 rule 1 RDC) or otherwise making other preparation to deal with issue that would be dealt with by that witness. 52.The plaintiffs relied on Fastway (HK) Investment Ltd v Wing Bo Motor Col DCCJ 3507/2008, judgment delivered by Alfred HH Chan on 22 March 2013, a case in which the plaintiff sued the defendant for recovery of possession of land when the defendant counterclaimed for adverse possession but an important witness for the defence was not called to testify despite him having given a witness statement. Decision not to call such witness was only revealed on the first day of trial. The trial judge, applying Telings International Hong Kong Ltd (supra), drew adverse inference to the defence. 53.In this present case, it is apparent that the 1st defendant lacked personal knowledge in relation to the use and occupation of the Temple. The 1st defendant was unable to read the mind of his previous occupiers’ (Madam Lam, Chan and the 1st defendant’s father) regarding their purported intention to possess. The 1st defendant failed to produce any contemporaneous documents regarding the old photos of the squatters at the Temple, utility bills under the name of 1st defendant’s father or the 1st defendant, receipt or proof of expenses for renovation/repair of the Temple from the 1st defendant or his father or similar documents to show that he and/or his father were in fact the squatter in occupation. Although 1st defendant in his witness statement alleged that his father has been the one responsible for all the outgoing expenses of the Temple since 1997 and despite the plaintiffs disputed over the allegation of the 1st defendant’s and his father’s possession, the 1st defendant failed to produce any contemporaneous documents proving that he and his father have been responsible for all the outgoing expenses of the Temple since 1997. This was unsatisfactory. The 1st defendant alleged that “the electricity meter was registered under my father’s name” (電錶是由我父親的名字作登記的) and that “since 1998 and in relation to [the temple’s] expenses and those my father paid out of his own pocket, my father made records of the same from time to time” (由1998年開始，就相關的開支及由他自費的金錢，他是有定時作記錄的。) 54.The 1st defendant’s father was the key witness of the present proceedings. The witness statements made by the 1st defendant are extremely self-serving. I agree with the plaintiffs’ submission that adverse inference should be drawn against the 1st defendant for his father’s failure to come to court to give oral evidence or produce any contemporaneous documents proving that he and his father have been responsible for all the outgoing expenses of the Temple since 1997. I thus would handle the defence evidence with circumspection and would draw adverse influences against the 1st defendant wherever it appears to be reasonable to do so. Findings on the Main Issues I. It is the 1st defendant’s case that, since late 2012, he continued with the exclusive possession of his earlier occupiers. Since the plaintiffs have already commenced legal proceedings to recover the Land Lot on 1 November 2011, whether the 1st defendant could still, after 1 November 2011, continue with earlier occupation for the purpose of satisfying the statutory period of 20/12 years and for the purpose of defending or counterclaiming? 55.The 1st defendant contended that there was the passing of ‘possession’ of the Temple from Madam Lam, Chan and the 1st defendant’s father and thus there was uninterrupted adverse possession of the Temple until the present proceedings without any action by the plaintiffs or their predecessors-in-title for recovery. The 1st defendant claimed that in late 2012, the possession of the Temple and/or possessory title of the Temple, was passed from the 1st defendant’s father to him. Hence, it is the 1st defendant’s case that, since late 2012, he continued with the exclusive possession of his earlier occupiers. The 1st defendant was joined as a co-defendant upon his application in the action herein on 24 October 2013. 56.The plaintiffs however contended that it would not be possible for the 1st defendant to continue with his father’s adverse possession after 1 November 2011 for the purpose of defending or counterclaim for the following reasons:-
57.I do not accept the plaintiffs’ submission on the points set out in the preceding paragraph and its sub-paragraphs. The central issue rests on whether the 1st defendant’s father had obtained a possessory title (if proved) to the Temple through the purported successive adverse possession from Madam Lam to Chan to 1st defendant’s father, or alternatively from Chan to 1st defendant’s father, or alternatively by 1st defendant alone before the commencement of the present proceedings being the cut-off date, and, if affirmative, whether the possessory title can be in law transferred to 1st defendant after the cut-off date. The next question is whether such possessory title, as acquired by adverse possession, is transferrable and can be transferred by what means. 58.There is no dispute that the general rule is that time continues to run until the paper owner commences an action to recover the disputed land, or takes possession physically (Adverse Possession, 2nd Ed, Stephen Jourdan QC, para 15-03). Hence the time of counting the period of adverse possession stopped running on 1 November 2011 (“the cut-off date”) and the 1st defendant’s part of possession, which is after the cut-off date does not count for the 12 years prescribed period. 59.There is no direct authority provided by the plaintiffs stating that the possessory title cannot be transferred after the cut-off date. 60.I agree with the 1st defendant’s submission that the concept of “possessory title” is unique in the context of adverse possession. It is described as a title acquired by a person who holds adverse possession of unregistered land (Adverse Possession (ibid), para 20-15). In fact, it has general application to all lands (See Tower Hamlets London Borough Council v Barrett [2006] 1 P. & C.R.9, 132. The land concerned is a government land.) 61.It is further stated that:-
62.I agree with the 1st defendant’s submission that possessory title is a “product” acquired by adverse possession which materializes at the time the paper owner’s title is extinguished under the LO, i.e. 12 years of adverse possession. The possessory title will only become a legal title only by the operation of law, ie a declaration by the Court through legal process. 63.As regards the next question whether such possessory title, as acquired by adverse possession, is transferrable and can be transferred by what means. I also agree with the 1st defendant’s submission that a possessory title is transferrable by conveyance, or will, or on intestacy, or simply by previous squatter allowing the subsequent squatter into possession:-
64.I accept the 1st defendant’s submission that the commencement of legal action for recovery of land would not (1) “destroy” the possessory title, as a product of acquired by adverse possession; or (2) affect the transferability of possessory title, save and except that the period of possession after the cut-off date would not be counted for the purpose of extinguishing the paper owner’s title under the LO. Any argument to the contrary is not supported by law and there is no authority provided by the plaintiffs to support their contentions. 65.Going back again to Sections 7 and 17 of the LO, it is specifically stated that no action shall be brought to recover land and the paper owner’s title is extinguished at the expiration of the prescribed period, i.e. 12 years, before the cut-off date according to the 1st defendant’s case. The effect of Section 7 clearly refers to the extinguishment of the paper owner’s title but not “destroying” the possessory title. 66.The plaintiffs sought to argue that the transfer of possessory title from the 1st defendant’s father to the 1st defendant is subject to Section 4 of CPO and hence can only be done under a deed. I do not accept that there is a need of deed for transfer of possessory title under the CPO. 67.Section 4(1) of CPO states that “A legal estate in land may be created, extinguished or disposed of only by deed.” The exception, amongst others, in Section 4(2) of CPO states that “This section does not apply to (h) a creation, extinguishment or disposal of a legal estate in land by operation of law.” 68.I agree with the 1st defendant’s submission that a possessory title is not a legal estate in land caught by Section 4(1) of CPO as, explained above, it only becomes a legal title by the operation of law, i.e. the LO and legal process. 69.The possessory title would only become a legal estate in land at the time of (indirect) operation of the LO(operation of law) and when it is declared by Court. In an adverse possession case, the making of declaration that a plaintiff is entitled to recover possession of land is a declaration of legal title in land by operation of law which is specifically endorsed by Section 4 of CPO. (U Po Chu v Tsang Pui Ling and others, DCMP 467/2013 unreported, at paras 15-17). Hence, the transfer of possessory title is not subject to Section 4(1) of CPO. It falls within the exception in Section 4(2)(h). 70.If, as argued by the plaintiffs, a possessory title is a legal estate in land for the purpose of Section 4(1) of CPO, every transfer of possessory title, no matter before or after the commencement of proceedings, must then be made under deed under Section 4(1) of CPO. This will of course contradict the authority that a possessory title can be transferred by intestacy, without formal conveyance, or simply by allowing the subsequent squatter to possess. 71.In the premises, the position is that if in the event the 1st defendant’s father could successfully prove to the Court that he has acquired a possessory title in the Temple, the passing of possession and possessory title from his father to 1st defendant is plausible. Subject to proof, the 1st defendant could still, after 1 November 2011, continue with earlier occupation for the purpose of satisfying the statutory period of 20/12 years and for the purpose of defending or counterclaiming. II. Whether the 1st defendant and the previous occupiers (i.e. Madam Wong prior to 1972, Madam Lam in 1972, Chan in 1973, the 1st defendant’s father in 1998 and the 1st defendant in 2012) have had possession of the Temple for 20 years or more since about 1972 or whether 1st defendant’s father and/or 1st defendant have had possession of the Temple for 12 years or more before the commencement of this action (“the Factual Possession Issue”) 72.The following evidence was provided by the 1st defendant in respect of the factual occupation of the Temple:-
73.The 1st defendant relied on the contemporaneous donation records. The Temple was renovated in about 1989 by using donations from followers. The photographs of the donation records, i.e. the plate hanging on a wall inside the Temple, were produced by the 1st defendant. “己已年” was the Lunar corresponding year of 1989. 74.The Temple was renovated again in about 2003 by using donations from followers. The photographs of the donation records, i.e. the plate hanging on a wall inside the Temple, were produced by the 1st Defendant. “癸未年” was the Lunar corresponding year of 2003. 75.The Temple was renovated again in about 2007 (adding a cover to the open area) by using donations from followers. The photographs of the donation records, i.e. the red sheet posting on a wall inside the Temple, were produced by the 1st defendant. 76.The 1st defendant also relied on the findings and conclusions made in Mr Joseph Wong’s JR2 which he contended were directly supportive to his case. The 1st defendant submitted that the 1st defendant’s Defence and Counterclaim (before amendments) and the 1st defendant’s and the 1st defendant’s father’s witness statements were filed before Mr Joseph Wong’s JR1 and Mr Joseph Wong’s JR2. 77.It is not in dispute that Mr Joseph Wong made the opinions in paragraph 8 of Mr Joseph Wong’s JR2that the Temple was already being occupied by temporary structures since year 1972. The temporary structures had undergone a few renovations but the extent of their occupations within the Temple remained similar throughout the years from 1972 to 2011. Mr Joseph Wong concluded that the Temple has been occupying the Land Lot for 39 years from 1972 to 2011. On this front, it is clear that the Temple had been in possession of the Land Lot since 1972 to 2011. 78.However, it is important to note that the fact of possession is not, by itself sufficient for the 1st defendant to succeed in a claim of this nature. The 1st defendant must prove that the possession by the relevant predecessors was open, visible and notorious, and not equivocal in nature. It is clear that evidence in support of the 1st defendant’s counterclaim being the 1st defendant’s evidence, both in chief as well as during cross-examination that, apart from paying visits during the 1st and 15th day of the lunar calendar and 4 important religious events annually, he himself had never been in exclusivepossession of the Temple prior to late 2012. To sustain his Defence & Counterclaim, the 1st defendant needs to rely upon prioroccupation which he allegedly has continued. 79.Since it is the 1st defendant’s case that he had never seen Madam Lam (neither has the 1st defendant’s father), I rule that no weight could be attached to the 1st defendant’s evidence as to what Madam Lam had acted or done between 1972 and 1975. 80.Insofar as the occupations by Chan (1975 – 1997) and the 1st defendant’s father (1998 – late 2012) are concerned, evidence of the 1st defendant of their occupations has the following common features:-
81.The difficulty of the 1st defendant’s case lies in the fact that only himself gave evidence and that he had no personal knowledge of the exclusive and unequivocal occupations of Madam Lam, Chan and the 1st defendant’s father apart from hearsay. The quality of his hearsay evidence is in doubt as has been pointed above. 82.I agree with the plaintiffs’ submission that the fact that, since 1975, the Land Lot had been occupied by a ‘Guan Yim Temple (觀音廟)’, which as a matter of Chinese tradition, being a place ofpublic worship coupled with the fact that there existed a list of donors (over 100) demonstrates that ‘believers/donors’ would, as a matter of habit, access to the Temple, from time to time, to worship and this very fact would impose a heavy burden upon the 1st defendant to discharge the claim of exclusive possession of a place of public(or private) worship by Madam Lam, Chan and the 1st defendant. It is necessary to bear in mind that, the evidence necessary to show exclusive possession must be ‘compelling’. 83.The 1st defendant submitted that the 1st defendant and the previous owners or their agents (the 1st defendant’s father for Chan; Mr Wong for the 1st defendant’s father) possessed the keys of the pad locks while the followers (even have made donations) did not have. They could only enter the Temple with the permission of the 1st defendant and the previous owners, in respective periods of time of possession, and when they opened the gates of the Temple. The followers did not enter and worship as of right. 84.As I explained above that the 1st defendant had no personal knowledge of the exclusive and unequivocal occupations of Madam Lam, Chan and the 1st defendant’s father apart from hearsay and there was no cogent evidence to show that the previous owners or their agents had actually possessed the keys of the pad locks while the followers did not have. As such, I could not accept 1st defendant’s argument that 1st defendant and the previous occupiers had exclusive possession of the Temple whereas the other followers who donated to the building/renovation of the Temple would not have the right to enter or use the facilities. III. Whether the factual possession was coupled with an intent to possession (“the Animus Possidendi Issue”) 85.It is necessary to assess whether the occupations of Madam Lam (1972 - 1975), Chan (1973 - 1998) and the 1st defendant’s father (1998 - 2012) had the necessary animus i.e. for himself/herself and with the intention to exclude the world at large inclusive of the landowner. 86.The 1st defendant relied on several matters to explain that Chan and the 1st defendant’s father had the intention to possess because of the following features and the Court’s attention was drawn to the following evidence of the 1st defendant, namely:-
87.I have already set out the relevant law concerning the Animus Possidendi Issue above. I agree with the plaintiffs’ submission that this Court should disregard the self-serving evidence of the 1st defendant’s father and the 1st defendant as to their evidence of the intention of Madam Wong, Madam Lam, Chan, the 1st defendant’s father in their alleged occupation of the Temple. Instead, this Court should look into the actions and all circumstances, if any, of Madam Lam, Chan and the 1st defendant’s father on the issue of occupation. 88.No evidence has been given by the 1st defendant as to the mental element of Madam Lam. Insofar as that of Chan and the 1st defendant’s father are concerned, the 1st defendant, in his witness statements, asserted that they ‘owned (擁有)’ the Temple which is not evidence of fact but the 1st defendant’s own conclusion and bare assertion. 89.Upon cross-examination, the 1st defendant asserted that his conclusion was drawn from the following facts:-
90.In the absence of evidence that the occupations of Madam Lam, Chan and the 1st defendant’s father being exclusive, presence of fence and gate with lock etc. would not support the 1st defendant’s case. In the case of the Temple with believers/members over 100 in number who would regularly attend for public or private worship, it is really difficult to see how each of Madam Lam, Chan and the 1st defendant’s father could have intention to exclude the world at large inclusive of all ‘believers/members’ when they had made handsome donations for the renovation of the Temple presumably to enable them (or their relatives and friends) to worship from time to time. 91.Presence of fence and locked gate would be of significance when they were used to secure a residential structure and to exclude non-residents. Their presence would be neutralwhen the structure is a place established for public or privateworship. I find that the existence of fences and gates in the Temple is not to exclude the world at large but to provide security only. 92.The 1st defendant’s reliance of fence and (locked) gates as evidence of animus possidendi to exclude the world at large is therefore speculative and unwarranted in the circumstance of the case. 93.It is also noteworthy from the following pleaded case in the Amended Defence & Counterclaim of the 1st defendant concerning his father’s animus in the occupation of the Temple:-
94.The pleaded animus of the 1st defendant’s father can be summarized as follows:-
95.The plaintiffs have dealt with issue (a) on the ground that it was the 1st defendant’s evidence, during cross-examination, that he could not read the minds of others (inclusive of the 1st defendant’s father) and he relied upon the existence of the fence and locked gate. Insofar as issue (b) is concerned, there was no evidence (whether by the 1st defendant or otherwise) as to whether ‘followers’ had been ‘permitted’ to enter and, if so, on what terms without mentioning that the terms of their entry would be ‘revocable’. 96.I agree with the plaintiffs’ submission that the pleaded case of 1st defendant under paragraphs 9 and 10 of his Re Amended Defence & Counterclaim is simply unsupported by evidence. 97.In adopting earlier authorities on the issue as to the requirement of exclusive possession, Wells J said:-
98.The objective fact being that, between 1975 and 2012, the Temple has been a place of public or private worship with a large number of believers/donors. Hence, given this factual background, it is extremely doubtful whether Madam Lam, Chan and the 1st defendant’s father could have the intention to possess the Land Lot or the Temple for themselves (in sequence) and to exclude all persons in the world. I consider that, given the fact that the Temple was, and still is, a place for worship with a large number of worshippers, whether the occupation of Madam Lam, Chan and the 1st defendant’s father being exclusive would be equivocal, no case of factual possession would have been established. 99.Lastly, it is important to discuss about the offer of HK$1,000,000.00 in 2012. The background of such offer has been discussed in paragraph 43(c) above. 100.I note that when the 1st defendant was questioned if he had discussed with his father before making an offer of $1 million to the landowner, the 1st defendant’s answer was a straightforward yes. I consider that the monetary offer made by the 1st defendant, as pointed out above, was for the purpose of purchasing the land from the rightful paper title owner. It has been well established and confirmed in Wong Tak Yue (supra) at 250D-F:-
101.I agree with the plaintiffs’ submission that this Court shall accord considerable weight on not only the fact that the 1st defendant negotiated for the purchase of the land and a price was agreed in subsequent, but also on the fact that the 1st defendant discussed the same with his father before making such an offer. Consensus must have been reached between them before the 1st defendant made the said offer and I consider that such intention of the 1st defendant and the 1st defendant’s father is plainly and completely inconsistent with the intention to possess. On this alone, the animus possidendi of the 1st defendant and the 1st defendant’s father are said to be equivocal. 102.Based on the available evidence, I do not accept that the 1st defendant has sufficiently demonstrated that Madam Lam and/or Chan and/or 1st defendant’s father had the requisite animus possidendi. I therefore hold that the acts of the 1st defendant and his predecessors were, for these purposes, equivocal. In my judgment, the 1st defendant has not discharged the burden which lies upon him to show the necessary animus in order to make out the claim in adverse possession so as to be entitled to the order he seeks. 103.All in all, I consider that the 1st defendant relied upon various hearsayand multiple-hearsay evidence, in particular facts and matters relating to Madam Wong, Madam Lamand Chan, who were persons said to be directly involved in occupation of the Temple. Such evidence in my view, as explained above, does not constitute compelling evidence to satisfy the requirement of adverse possession. IV. Whether the possession of 1st defendant and the previous occupiers was pursuant to the said licence granted by Yu Senior to Madam Wong and, if it was, whether the said licence had been terminated upon the death of Yu Senior and, if so, whether the licence would have resuscitated and renewed upon the parties continue to perform the Modification of Tenancy at least up to 2010(“the Licence Issue”) 104.The above is enough to dispose of the 1st defendant’s defence and counterclaim in these proceedings, but in case I am wrong, and in deference to the arguments which have been presented to the Court, I think it right to express my views with regard to the other points that have been argued. 105.The plaintiffs heavily relied on the said licence granted by Yu Senior to Madam Wong before 29 August 1969 (date of the MOT) for agricultural, accommodation and raising chicken. The MOT was applied by Madam Wong with the consent of Yu Senior or on behalf of Yu Senior and hence Madam Wong acknowledged Yu Senior’s title and derived her right to use and occupy the Temple under the title of Yu Senior.The MOT and Letter of Approval were granted in consideration of a periodical fee payable for the permission to use the Temple for purposes other than agricultural purpose. 106.The plaintiffs contended that the periodical fees have been continuously paid by Madam Wong and/or for her behalf by the 1st defendant (and the 2nd defendant) up to the issue of the Originating Summons (i.e. 1 November 2011). The plaintiffs also asserted that the 1st defendant derived his title from Madam Wong and/or pursuant to the MOT in that the 1st defendant used and occupied the Land Lot purportedly under the MOT. 107.As transpired from the pleaded case and evidence of the plaintiffs, the plaintiffs (or Yu Senior) never paid attention to and knew nothing about the use and occupation of the Land Lot until they received the letter dated 3February 2010 from DLO. By a reply letter to DLO dated 17February 2010, LCC requested a copy of the MOT and the Revised Permit No 14447, and the correspondence address of the Permittee (Madam Wong). In this letter it was stated that ‘the plaintiffs had no records of the permits and had no ideas of the occupier of the Land Lot. Certain receipts of the periodical fees from 1969 to 2010 (HK$11.00 per year) obtained from the DLO are produced by the plaintiffs but there is no evidence from the plaintiffs regarding who made these payments. 108.It was not challenged that a personal licence was granted by Yu Senior to Madam Wong for the use and occupation of the Land Lot as permitted and confined by the MOT. The issue rests on whether the 1st defendant and the previous occupiers derived their rights to use and occupy the Temple, being a portion of the Land Lot, under the said licence or under the MOT as claimed by the plaintiffs. 109.In respect of the said licence granted by Yu Senior to Madam Wong before 29 August 1969 (date of the MOT), it was for agricultural, accommodation and raising chicken as evidenced by the MOT. The MOT and Letter of Approval were granted in consideration of a periodical fee (HK$11/year) payable for the permission to use the Land Lot for purposes other than agricultural purpose. 110.Since about 1973 (by Madam Lam) or 1975 (by Chan), the use of the Temple was no longer agricultural, accommodation or raising chickens. The subject portion had become the Temple which was (1) an illegal user; (2) illegal structures; (3) completely different from the legal user under the said licence and the MOT. 111.I agree with the 1st defendant’s submission that the actual use of the Land Lot as the Temple is completely different from the legal user under the said licence and the MOT since as early as 1975. This use has all along been in contravention of the legal user of the Land Lot and under the MOT. The payment of periodical fees under the MOT would not create a right to use the Land Lot and the occupiers’ use could not be derived from the MOT. By this fact alone, it can hardly be argued that the use and occupation of the 1st defendant and the previous occupiers are derived from the said licence. It can hardly be imagined that Yu Senior and the plaintiffs would have licensed the 1st defendant and the previous occupiers for any illegal use. The plaintiffs’ stance in this regard can be shown in LCC’s letter dated 27 July 2010 to all occupiers of the Temple for removal of any illegal structures. 112.Certainly, the plaintiffs cannot be suggesting that Yu Senior or the plaintiffs had ever granted any express licence to the 1st defendant and the previous occupiers to use the Land Lot as the Temple. It is YKC’s evidence that the building of the Temple was done without the consent of the plaintiffs and he would not have allowed any illegal use of the Land Lot. The plaintiffs’ first attention to the Land Lot was only in about February 2010 when they received DLO’s letter dated 3 February 2010. Termination of licence upon death of Yu Senior 113.A revocable licence is automatically terminated upon the death of the licenser and it is not necessary for the licensee to have received notice of the death. (Ho Hang-wan v Ma Ting-cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649 (CA)). 114.The revoked licence upon death of licensor cannot be renewed simply by the squatter’s continuation of occupation without objection or comment from the licensor. This would only show acquiescence but could not, as a matter of principle, give rise to an implied licence. (J Alston & Sons Ltd v COCM Pauls Ltd [2009] 1 EGLR 93 para 114 (Lexis Nexis Version)). 115.There is simply no evidence from the plaintiffs that the licence to Madam Wong was ever re-granted after Yu Senior’s demise on 18 June 1980. 116.In such case, I rule that the purported use and occupation of the Temple by Chan, since 18 June 1980, to the 1st defendant’s father, and to the 1st defendant, was not under any express licence. V. Whether the possession of the 1st defendant and the previous occupiers was pursuant to an implied licence as a matter of law (“the Implied Licence Issue”). 117.It is the plaintiffs’ case if it should be found that the 1st defendant’s father had been in occupation of the Temple since 1998 and continued by the 1st defendant in 2012, the plaintiffs contended that the possession of the 1st defendant, his father and the previous occupiers, their occupation was pursuant to a licence impliedfrom the conducts of the parties (namely Madam Wong, Madam Lam, Chan, the 1st defendant’s father and the 1st defendant) including payment of fees for the MOT for the use and occupation of the Temple when the MOT was terminated by the government. And during this period the 1st defendant and his father derived their right to occupy the Temple pursuant to the MOT in that all of the said parties paid or took benefit for payment of the waiver fees or fees for modification of the tenancy of the plaintiffs in respect of the Land Lot and that the Deceased and the plaintiffs performed and continued to perform the MOT. 118.The plaintiffs submitted the following:-
119.In my view, the concept of implied licence is not any settled law in Hong Kong. The law in this regard was considered in the Yu Kit Chiu Case in the Court of Appeal level. The Rumbelow Case and the BP Properties Case were considered but the Court of Appeal refrained from expressing a view on these cases. 120.In the House of Lords level in Regina (Beresford) v Sunderland City Council [2004] 1 AC 889, Lord Walker of Gestingthorpe held that “83 In the Court of Appeal Dyson LJ considered that implied permission could defeat a claim to user as of right, as Smith J had held at first instance. I can agree with that as general proposition, provided that the permission is implied by (or inferred from) over conduct of the landowner, such as making charge for admission, or asserting his title by the occasional closure of the land to all-comers. Such actions have an impact on members of the public and demonstrate that their access to the land, when they do have access, depends on the landowner’s permission. But I cannot agree that there was any evidence of overt acts (on the part of the city council or its predecessors) justifying the conclusion of an implied licence in this case.” (emphasis added) (cited in the Yu Kit Chiu Case). 121.In the Rumbelow Case, the 2-tier test was laid down by Etherton J (cited in the Yu Kit Chiu Case). 122.In the present case, putting the plaintiffs’ submission to the highest in this regard, i.e. adopting the 2-tier test in the London Borough Case, I take the view that the plaintiffs’ argument on implied licence cannot be accepted based on the available evidence and the circumstances in the present case. 123.Firstly, as pointed out, there must have been some overt act by the land owner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given. The express licence granted by the Deceased to Madam Wong was evidenced by the MOT, i.e. agricultural, accommodation and raising chickens. The actual use and occupation from Madam Lam to the 1st defendant since about 1973 was undeniable the Temple for religious use, which was completely contrary to the express licence. The plaintiffs’ stance was that they would not allow any illegal use of the Land Lot and the Temple was built without the consent of the plaintiffs. There is simply no room for the plaintiffs to contend that there were any overt act by them from which inference can be drawn that permission was in fact given to the 1st defendant and the previous occupiers to use and occupy the portion of the Land Lot as the Temple. 124.I agree with the 1st defendant’s submission that any inference ought to reasonably be drawn must be contrary to any permission by the plaintiffs. Further, from the plaintiffs’ evidence, the behaviour of the plaintiffs and the Deceased, if any, would only amount to acquiescence but not as a matter of law giving rise to an implied licence (J Alston & Sons Ltd v COCM Pauls Ltd, ibid). 125.Secondly, in the present case, I agree with the 1st defendant’s submission that for the same reason that the actual use and occupation by the 1st defendant and the previous occupiers was simply in breach of the express licence and the MOT, no reasonable person would have appreciated that the user, as the Temple, was with the permission of the Deceased/the plaintiffs. 126.The plaintiffs’ reliance on the BP Properties Case for contention of unilateral licence is misconceived. In the BP Properties Case, the subject licence was an express licence (distinguished from the present case). The squatter there was held to know the unilateral express licence offered by the registered owner but she did not accept or refuse. This would stop time running for the purpose of adverse possession. However, in the present case, there was no express licence offered by the plaintiffs/Yu Senior to Madam Lam, Chan, the 1st defendant’s father for the use of the portion of the Land Lot as the Temple nor they knew of any licence offered by the plaintiffs/Yu Senior. 127.I therefore rule that the purported possession of the 1st defendant and the previous owners was not pursuant to any implied licence in this case. Conclusion on Liability Case against the 1st defendant 128.I rule that judgment be entered in favour of the plaintiffs for an order for possession of the Temple. Case against the 2nd defendant 129.Apart from the structures comprising the Temple, the rest of Land Lot was occupied by the presence ofother structures and this was shown in the relevant aerial photographs and revealed from Mr Joseph Wong’s JR1. In the trial, the 2nd defendant was not represented and did not appear. In the absence of any defence or any evidence to resist the plaintiffs’ claim, I rule that the plaintiffs are entitled to judgment to recover possession of the Remaining Part of the Land Lot (i.e. the whole of Lot 242RP with the Temple being calved out). VI Damages 130.Before I proceed to assess the damages in this case, it is important to set out some important findings on the following relevant issues in the joint expert reports. 131.In Mr Lau’s JR, he has provided evidence on the Unit Rates as on 28 January 2013, 28 January 2014, 28 January 2015 on 2 different basis:-
132.In page 144-145 of Mr Lau’s JR, he analyzed some comparable properties and carefully weighed against all respective advantages and disadvantages of the properties in order to arrive at a fair comparison of value. The expert gave opinion on the “Average Monthly Unit Rent.” In view of the nature of the existing use, zoning and donation/offering from the worshipers etc., an adjustment of 100% on top of the average monthly unit rate is made for the “Estimated Adopted Monthly Unit Rate”. The relevant assessment was as follows:-
133.Based on the “existing use approach”, in page 147 of Mr Lau’s JR, the expert opined that the market rent and the total rent receivable for the Land Lot based on the effective area of 1,985 sq ft or 184.48 sq m were as follows:-
134.In Mr Joseph Wong’s JR2, he made the following findings, namely:-
135.It is well-established that the court is not bound to accept the evidence of an expert even if it is not contradicted. Instead, the court must arrive at its own independent view of whether and if so to what extent to the expert evidence put before it is acceptable. Damages as against the 1st defendant (a) Damages in the form of mesne profit 136.The plaintiffs submitted that the latest time when damages should be recovered should not be later than 1 November 2011, as it was the date when the Originating Summons was issued and the 1st defendant refused to surrender possession. The plaintiffs submitted that damages should be calculated from that date as follows:-
137.In the plaintiffs’ closing submission, it was submitted that the amount of damages of the Temple would be adjusted as follows:-
138.I allow damages in the form of mense profit calculated from 1 November 2011, being the date when the Originating Summons was issued and the 1st defendant refused to surrender possession, until the date of judgment. I however take the view that the plaintiffs’ approach on the calculation and the purported adjusted calculation were not entirely correct. 139.For assessing damages in the form of mense profit for this case, I agree with the 1st defendant’s submission that Unit Rates on basis (1), i.e. the permitted use, should be adopted for calculation of mesne profit in this case but not basis (2), i.e. the existing use, because it is trite law that “if the defendant makes improvements on the land, rental value should be assessed upon the unimproved value.” (McGregor on Damages, 19th Edn, para 37-045) 140.I consider that basing on the “permitted use approach” and adopting the formula used in page 147 of Mr Lau’s JR, the expert opined that the market rent and the total rent receivable for the Temple with 1,404.18 sq ft or 130.5 sq m should be as follows:-
141.Accordingly, the damages calculated from the date of issuance of the Originating Summons to the date of judgment should be as follows:-
142.In the premises, I rule that damages in the form of mesne profit should be assessed in the sum of $327,829.19 ($62,450.50 + $122,940 + $142,438.69) and be payable by the 1st defendant to the plaintiffs. I award interest on the due mesne profit at the judgment rate to run from the date of the issuance of the Originating Summons (i.e. on 1st November 2011). Damages for trespass to the Remaining Part of the Land Lot (i.e. the whole of Lot 242RP with the Temple being calved out) between 4.10.2013 and 6.12.2016 143.Judgment for possession of the Land Lot in its entirety was originally granted by Master C Lee on 13 December 2011. However, based upon the 1st defendant’s affirmation evidence that he and his predecessors-in-title had been in adverse possession of the whole part of the Land Lot, the 1st defendant applied for and was granted an Order by the Master D Ho setting aside the Order for Possession dated 13 December 2011 and the Writ of Possession dated 31 January 2012 on the ground that he had acquired a squatter’s title to the whole part of theLand Lot. 144.It was upon publishing Mr Joseph Wong’s JR2 on 18 March 2016 showing that the area in occupation by 1st defendant has always been (since 1970) 130.5 square meters (out of a total area of 331.8 square meters) of the Land Lot whilst the rest of the area was unoccupied. Upon the availability of Mr Joseph Wong’s JR2, 1st defendant applied to amend his Defence & Counterclaim reducing the area of his alleged occupation and adverse possession by about 2/3. 145.The plaintiffs contended that after cross-examination of the 1st defendant, it transpired that, despite not being aware of the boundary or extent of the Land Lot, the 1st defendant had chosen to apply to set aside the default judgment and the Order for Possession and irrespective of his intention to possess was confined to the Temple. 146.The plaintiffs contended that, whether deliberately or otherwise, the 1st defendant had, by a conscious decision and by untruthfulaffirmation evidence, deprived the plaintiffs of their right to possess the rest of Land Lot and this constituted wrongful deprivation of the plaintiffs’ right as owner. On that basis, the plaintiffs had been wrongly deprived of their right to possess 2/3 area of the Land Lot since 24 October 2013. The plaintiffs contended that the 1st defendant by a conscious act exceeding his claim of right, prevented the plaintiffs from exercising their right over the rest of the Land Lot would, as a matter of law, trespass. (Clerk & Lindsell on Torts, 21st edition, para 19-02) 147.At the time of the trial, the plaintiffs therefore invited this Court to order the 1st defendant to pay damages to the plaintiffs for the period between 24 October 2013 and 6 December 2016 calculated on the following basis:-
with costs to be paid by 1st defendant since 24 October 2013 as 1st defendant should not have defended this part of the plaintiffs’ claim at all let alone applying to set aside the Order for Possession dated 13 December 2011 and the Writ of Possession dated 31 January 2012 in its entirety. 148.I take the view that the 1st defendant is not liable to pay mesne profit nor damages since he was/is not in actual occupation/possession of the Remaining Part of the Land Lot and there was/is no trespass on the Remaining Part of the Land Lot. The claim of the plaintiffs against the 1st defendant for mesne profit or damages of the Remaining Part of the Land Lot lacks cause of action and is misconceived. 149.It is true that the 1st defendant confined his claim of adverse possession to the Temple (as opposed to the whole Land Lot) only at the time of his Re-Amended Defence and Counterclaim filed on 7 April 2016. However, this would not provide any cause of action to the plaintiffs in terms of cause of action or the plaintiffs’ pleaded case. 150.Further, the plaintiffs in the present case are seeking possession of the Land Lot. The plaintiffs bear the burden to properly prosecute and prove their own case, including ascertaining the boundary of the Land Lot and the boundary of the Temple in actual occupation by the 1st defendant. The plaintiffs were always free to recover the Remaining Part of the Land Lot and/or obtain summary judgment against the 2nd defendant after ascertaining the respective boundaries of the Land Lot and the Temple occupied by the 1st defendant. The plaintiffs are always entitled to and should have done so. 151.During the plaintiffs’ Opening Submissions, the plaintiffs’ counsel raised the argument that the 1st defendant’s conduct in these proceedings amount to “constructive possession” of the Remaining Part of the Land Lot which rendered the plaintiffs a cause of action on trespass. Certainly, this is not pleaded and cannot be relied upon. Further, there is no authority supporting that the conduct of party in proceedings can amount to “constructive possession”. 152.I therefore rule that the plaintiffs are not entitled to claim mesne profit or damages against the 1st defendant in respect of the Remaining Part of the Land Lot. OTHER MATTERS 153.The parties’ written submissions also mentioned various other points. These have not been expressly set out or dealt with above. This is so only because of the need to balance between the length of the judgment and its comprehension. It does not mean those other points are thought to be irrelevant or have been overlooked. To avoid doubt, those other points have also been duly considered. CONCLUSION 154.I order that judgment be entered in favour of the plaintiffs against the 1st defendant for the following:-
155.As regards the 2nd defendant, I order that judgment be entered in favour of the plaintiffs against the 2nd defendant for the following:-
156.As regards costs, as against the 1st defendant, the 1st defendant do pay the plaintiffs’ costs of the action, including the plaintiff’s costs in defending the 1st defendant’s counterclaim against them, such costs to be taxed if not agreed with certificate for one counsel. The 1st defendant’s own costs be taxed in accordance with the Legal Aid Regulations. 157.I rule that there is no order as to costs against the 2nd defendant. 158.The order nisi on costs will become absolute 14 days after the date of this judgment unless the parties apply to vary the same. 159.Lastly, I wish to thank counsel for their very able and helpful assistance in this case.
Mr K M Chong and Mr Alvin Chong, instructed by Liu, Choi & Chan, for the plaintiffs Mr Danny Ng Pak Kin, instructed by Tung, Ng, Tse & Heung, assigned by the Director of Legal Aid, for the 1st defendant The 2nd defendant was not represented and did not appear [1] Tsang Foo v Chu Jim Mi, Jimmy, HCA 7140/1995; see also: the authoritative statements on factual possession and intention to possess by Slade J in Powell v McFarlene (1979) 38 P & CR 452, which was approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 and endorsed by the Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at 592H-593I. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment