Fung Wan Ming v. Ng Pik Kwan Karen

DCCJ 758 / 2017

[2018] HKDC 365

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 758 OF 2017

_________

_________

Before: Deputy District Judge Kenneth K Y Lam in Court

Date of Trial: 6 March 2018

Date of Judgment: 6 March 2018

Date of Handing Down Reasons for Judgment: 6 April 2018

_______________________________

REASONS FOR JUDGMENT

_______________________________

Introduction

1.By a Notice of Trial issued on 30 October 2017, this Court notified the parties this action would be tried on 6 March 2018.  The Notice of Trial was sent to, inter alia, the two last known addresses of the Defendant (one in Kwun Tong, the other one in San Francisco).

2.On 6 March 2018, the Plaintiff appeared by Counsel, whereas the Defendant was absent.  Having considered the oral submissions of Mr Ivan Lee, Counsel for the Plaintiff, I exercised my discretion under Order 35 rule 1(2) of the RDC to proceed with the trial in the absence of the Defendant.

3.The Plaintiff gave oral evidence. Having considered his evidence, I dismissed this action with costs against him (“the Judgment”) and indicated I would be handing down my full reasons for the Judgment in writing, which I hereby do.

Reliefs Sought

4.The Plaintiff filed a 3-page Statement of Claim (“the SoC”) with a coloured plan annexed to it (“the Plan”). He alleged in the SoC and the Plan that he had been in adverse possession of a piece of land inside Lot No 959 in Demarcation District No 7, Wai Tau Tsuen, Tai Po (“the Land”) since around 1987.  He alleged he never paid rent to the Defendant, who was the registered owner of the Land.

5.On the basis of the above, the Plaintiff sought a declaration to the effect that the Defendant’s interests in the Land had been extinguished by the operation of Sections 7 & 17 of the Limitation Ordinance (Cap 347), as well as a declaration to the effect that the Plaintiff had acquired a possessory title to the Land.

6.The SoC was silent on the intention of the Plaintiff.  There was no averment that the Plaintiff intended to exclude the Defendant from the Land, or that the Plaintiff would refuse to pay rent to the Defendant if asked.  The word “intention” or variations thereof did not appear in the SoC or the Plan at all.

Evidence

7.Only one witness gave evidence.  He was the Plaintiff.  He adopted his witness statement dated 14 August 2015 (“P’s WS”), the contents of which I had fully considered, as his evidence in chief.

8.P’s WS was also completely silent on the intention of the Plaintiff.  There was no suggestion in P’s WS that he intended to exclude the Defendant from the Land or would refuse to pay rent if asked.

9.I asked the Plaintiff whether he would pay rent to the Defendant if the Defendant asked him to.  The Plaintiff spontaneously and honestly said yes, he would.

10.I accepted that last answer of the Plaintiff as true.

Discussion

11.The law of adverse possession in Hong Kong is trite.  The leading case is the judgment of the Court of Final Appeal (“CFA”) in Wong Tak Yue v Kung Kwok Wai & Anor (No. 2) (1997-1998) 1 HKCFAR 55, where at 68-E to 69-G the following was said by Li CJ: -

“… A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess… it is the intention of the squatter that is essential... The requisite intention to possess has been referred in various authorities under its Latin tag “animus possidendi”... As Slade J observed in Powell v McFarlane (1979) 38 P & CR 452 at pp.471-472, the intention to possess requisite for adverse possession:

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

The question of intention to possess, as with any other question of intention, is one of fact.  Whether it can be established depends on an assessment of all the circumstances in a particular case.

Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve.

Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.

Here, as was accepted by Mr Erik Shum appearing for the fourteenth defendant and as the Court would in any event have held, his affirmation and that of his daughter established as a matter of fact that since the expiry of the 7 year tenancy in April 1964, his intention had been that he was willing to pay rent to the owners if they had requested payment and that he was ready and able to do so.  The statements on affirmation were against interest and the Court would give them considerable weight.  In my judgment, such an intention is plainly and completely inconsistent with the intention to possess which is requisite for establishing adverse possession and the fourteenth defendant has therefore failed to show an arguable case on this essential ingredient.  That being so, he has no arguable case on limitation.

The fourteenth defendant’s intention to pay rent if the owners had requested payment demonstrated that he was not intending to exclude the owner with the paper title but showed that he was treating himself as enjoying possession under a lawful title from the owners.  His intention to possess was not “as of wrong” but was “as of right”.  Such intention is similar to the occupier’s offer to pay rent in R v Secretary of State for the Environment, ex p Davies (1990) 61 P & CR 487 which was held to be inconsistent with the intention to claim possession for the purposes of adverse possession.”

12.Mr Lee, Counsel for the Plaintiff, did not cite the passage above.  I was, however, aware of it.  I drew Mr Lee’s attention to it and granted him an adjournment to enable him to conduct some research and consider his position.  After the adjournment, Mr Lee fairly conceded that the passage above was part of the ratio decidendi of the CFA and had never been overruled so that it was binding on me.  The only issue was whether this action could be distinguished on the evidence given by the Plaintiff.

13.In his attempt to persuade me to distinguish this action from what the CFA had said in the passage above, Mr Lee invited me to look at the totality of the evidence given by the Plaintiff instead of just the last answer.  I accepted without reservation that on the authority of Wong Tak Yue, I must decide what the intention of the Plaintiff was at the material time based on “an assessment of all the circumstances”, but on the same authority I must also assign different weight to different kinds of evidence.

14.As the CFA said in Wong Tak Yue, in any trial of an allegation of adverse possession, self-serving statements made by the occupier as to what his intention was must be approached “with some scepticism”.  Conversely, where the occupier made statements as to what his intention was and they were against his interests, those statements should usually be given “considerable weight”.

15.Here, in our present case, the Plaintiff had never said, in the SoC or in P’s WS, that he intended to exclude the Defendant from the Land.  When specifically asked, the Plaintiff (just like the fourteenth defendant in Wong Tak Yue) said he would be willing to pay rent to the Defendant if the Defendant had asked for it.  This showed beyond all doubt the Plaintiff did not intend to act in a way adverse to or inconsistent with the Defendant’s title to or interests over the Land.  In my judgment, the Plaintiff only intended to occupy the Land “as of right”, but not “as of wrong”, and the nature of the Plaintiff’s occupation of the Land was also “as of right”, instead of “as of wrong”.

16.Looking at all the circumstances of the present case, it was crystal clear the Plaintiff did not have the requisite intention to possess the Land for the purposes of the law of adverse possession and I so found.  The Plaintiff’s allegation of adverse possession was simply false.  There was nothing adverse about the Plaintiff’s occupation of the Land.

17.The above being my finding of fact after having received the oral evidence of the Plaintiff, and the law of Hong Kong being as set out by the CFA in Wong Tak Yue, the Plaintiff was plainly not entitled to the reliefs sought by him in the SoC.  For that reason, I must dismiss this action, which I did.

Costs

18.In my judgment, this action should never have been commenced. The costs of this action, including all costs previously reserved, should be paid by the Plaintiff to the Defendant, to be taxed if not agreed, with Certificate for Counsel, and I so ordered.

19.I noted this action was initially commenced in the High Court, and that leave to transfer this action to this Court was granted by Master Leong by an order dated 13 February 2017, in which Master Leong reserved scale of costs issues to this Court.

20.In my judgment, for the period when this action was in the High Court, costs should be taxed on the High Court scale, and for the period when this action was in the District Court, costs should be taxed on the District Court scale.  I so ordered.

Final Remark

21.I thank Mr Lee, Counsel for the Plaintiff, for the sensible way in which he conducted his closing submissions.

Mr Ivan Lee, instructed by Leung Kin & Co Solicitors, for the Plaintiff

The Defendant, acting in person, was absent