Lai Suk Yi v. Hau Tso Hee Alias Hau Cho Hee Stanley

HCA 215/2014

[2018] HKCFI 1149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 215 OF 2014

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(By Original Action)

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(By Counterclaim)

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J U D G M E N T

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INTRODUCTION

1.These proceedings are concerned with two lots of land in the New Territories, ie Lot Nos 2241 and 2248 in DD 91 (“Lots 2241 and 2248”).

2.No party has prepared a Dramatis Personae.

3.(1) The hearing bundles comprise Bundle A (pp 1 – 298); Bundles B1, B2 and B3 (pp 1 – 724); Bundle C (pp 725 – 762) and a Core Bundle (pp 1 – 219).

(2) No party has introduced or explained the hearing bundles or their contents.

Only a small fraction of the documents in the hearing bundles has been referred to or mentioned.

4.The background facts, as I find them, are set out in §§5 – 18 below.

5.Lai Suk Yi (黎淑儀) is the plaintiff in the original action and the 1^st defendant in the counterclaim (“Lai Suk Yi (黎淑儀)”).  She was born on 2 October 1964 and claims to be in adverse possession of Lot 2248 and part of Lot 2241 (collectively “Disputed Land”).

6.Lai Chi Chuen (黎智全) (“Lai Chi Chuen (黎智全)”) is the father of Lai Suk Yi (黎淑儀) and he passed away on 18 February 1987.

7.Yeung Chat Mui (楊七妹) (“Yeung Chat Mui (楊七妹)”) is the mother of Lai Suk Yi (黎淑儀) and the mother passed away on 12 November 2001.

8.Lai Tai Ming, also known as Lai Ming (黎明), is the 2^nd defendant in the counterclaim (“Lai Tai Ming (黎明)”).  He is the elder brother of Lai Suk Yi (黎淑儀).  

9.Hau Tso Hee alias Hau Cho Hee Stanley (侯灶喜) is the defendant in the Original Action and the plaintiff in the Counterclaim (“Hau Tso Hee (侯灶喜)”).  He was born on 14 November 1952 and has been the paper owner of Lots 2241 and 2248 since about 23 September 1976.  He lived in the United Kingdom from 1972 to 1995.  He claims to have let Lots 2241 and 2248 to Lai Suk Yi (黎淑儀) and Lai Tai Ming (黎明) “under a verbal yearly periodic tenancy commencing (sic) from year to year for cultivation” [1] “in or about mid or late February 2002” [2].  By §25 of the Amended Defence and Counterclaim, Hau Tso Hee (侯灶喜) “hereby forfeits” the tenancy.

10.Hau Tsan Pui (侯燦培) (“Hau Tsan Pui (侯燦培)”) is the father of Hau Tso Hee (侯灶喜) and the father was the paper owner of Lots 2241 and 2248 from 28 April 1931 until his death in about 1971.

11.Fung Yuk (馮玉) (“Fung Yuk (馮玉)”) is the mother of Hau Tso Hee (侯灶喜) and she passed away in November 2001.

12.Hau Lai Fun (“Hau Lai Fun”) is a sister of Hau Tso Hee (侯灶喜).

THE FOUR PLANS ATTACHED TO THIS JUDGMENT

Plan JA

13.(1) A plan is attached to the “Joint Statement of Mr Eric S K Tang of Eric Tang & Associates Limited (for the Plaintiff) & Mr J C Ng of T H & Associates Limited (for the Defendant)” dated 20 August 2016. This plan is referred to in §5 of the “Joint Statement” as follows:

“ 5. Tang and Ng both agreed and adopted the boundary definition over Survey Record Plan no. SRP/DN/047/5386/D1 which were [sic] prepared by Tang in 2013 for their study and report purposes. A plan no ETA-MI-T357-05 (Appendix A) wasenclosed in this report in order to assist the court to understand the relationship between ground occupation and the lot boundary as well as the encroached area.”

(2)   Appendix A is a document dated “Nov 2013” with “ETA-MI-T357-05” as “Drawing No”.  Plan JA attached to this Judgment is a copy of that Appendix A (“Plan JA”).

(3)   In my judgment, neither Tang nor Ng can or does have any personal or expert knowledge of whether any area was or is “encroached”. I attach no weight to any assertion of “encroachment” by Tang or Ng. 

(4)   The most that Tang or Ng can do is to draw or delineate the boundary of any area as alleged by Lai Suk Yi (黎淑儀) to be encroached.

(5)   According to the Block Crown Lease, the respective areas of the two Lots are as follows:

Lot No	Site area in acres	Site area in square feet
2241	0.45	19,602.00
2248	0.20	8,712.00
Total:	0.65	28,314.00

Plan JB

14.(1)   §23, §24 and the prayer in the Statement of claim refer to an attached plan in relation to the adverse possession claim of:

“ Lot 2248 and the part of Lot 2241, together identified as coloured yellow in the attached Plan”.

(2)   Plan JB attached to this Judgment is a copy of that Plan which is dated “Nov 2013”.

(3)   That plan is the only plan referred to in and attached to the Statement of Claim.

(4)   There is no allegation whether in the Statement or Claim or elsewhere of the exact area or the precise boundary of the partin Lot 2241 said to be adversely possessed.  Although the plan attached to the Statement of Claim contains a “scale”, it is subject to an express note that “This plan is for identification”. 

Plan JC

15.Page 1 in Bundle B1 is a document of Lai Suk Yi (黎淑儀); is dated “Nov 2013” and is headed “Encroachment Plan on Lot Nos. 2241 and 2248 in D.D. 91” but described in the index to Bundle B1 as “A plan with the Green Zone, the Pink Zone and the Orange Zone”.  This plan is not referred to in or attached to the Statement of Claim.  Although the Statement of Claim mentions a “Green Zone” and a “Pink Zone”, there is nomention of any “Orange Zone” in the Statement of Claim.  There is a strip of land marked “footpath” which is not coloured green, pink or orange.

16.Plan JC is a copy of that document.

Plan JD

17.(1)   Page 2 of Bundle B1 is a document of Lai Suk Yi (黎淑儀).   The document is not completely legible and is dated “12 May 06”.  It is headed “Lot Index Plan” but is described in the index to Bundle B1 as “A plan showing the position of the Structure [sic] Nos 1 to 5”.  Documents which are not completely legible are not helpful to the Court.  Further, there is no evidence on or explanation of the manuscript notes.

(2)   This plan is not referred to in or attached to the Statement of Claim.

18.Plan JD is a copy of that document.

WITNESS STATEMENTS AS EVIDENCE-IN-CHIEF

19.On 7 February 2018, Mr Andy Hung applied to me for an order that §§23 – 27 and §§29 – 30 of the witness statement and §§13 – 24 of the supplemental witness statement of Hau Tso Hee (侯灶喜) should not stand as evidence-in-chief.  He said:

“ We submit the only parts of the witness statements, of the statement of Mr Hau, the defendant, are highly controversial and they go to the heart of the dispute.” (emphasis added)

20.He cited So Amy & others v Au Leslie [1995] 2 HKC 113 as authority in support of his application.

21.To require only one party to give oral evidence-in-chief while his opponents adopt their witness statements as evidence-in-chief calls for justification for the difference in treatment.  Mr Andy Hung did not offer any.  In my judgment, no basis or justification has been shown for the discriminatory treatment.

22.I do not know whether Mr Any Hung accepted that the other parts of the witness statements of Hau Tso Hee (侯灶喜) were not “highly controversial”.

23.I rejected his application.

24.Instead, I ordered that none of the witness statements filed should stand as evidence-in-chief.

25.Lai Suk Yi (黎淑儀)’s case is one of adverse possession while Hau Tso Hee (侯灶喜)’s case is one of forfeiture of tenancy.  There is a direct conflict.

26.Further, Hau Tso Hee (侯灶喜) relies on a “租單” dated 16 January 2001, the authenticity of which is challenged. 

27.Thus, the evidence of the witnesses is likely to be controversial and the witnesses’ credibility is likely to be in issue.

28.In Mercer v The Chief Constable of the Lancashire Constabulary [1991] 1 WLR 367 at p 371, Lord Donaldson MR said:

“ But perhaps the most important factor of all will be the extent to which the evidence of a particular witness is likely to be controversial and his credibility in issue. If so, the way in which he responds to oral examination in chief may be of great importance.”

29.In Hanwa Kozai (HK) Co Ltd v Hangyiu Ltd & another HCA 5258/1994, 10 March 1995, Keith J (as he then was) said:

“ Instead, he based his resistance to the witness statement standing as the witness’ evidence-in-chief on the fact that the case turned so much on the credibility and reliability as witnesses of Mr. Lee and Miss Wat relating to their discussions in September and October 1993.

I agree with that argument for two reasons. First, I know from my own experience at the Bar how frequently witnesses fail to come up to proof even in evidence-in-chief. It does not follow that their witness statements necessarily reflect at the date of trial their recollection of the events to which the statements relate. When witness statements reveal a significant conflict of evidence between two or more witnesses, it would be unwise to assume thatthe witness statements represent the witness’ last word on the topic. If a witness gives evidence-in-chief orally, the risk that the witness’statement may not truly represent the witness’ recollection at the time of trial can more easily be eliminated.

Secondly, I think that the judge is likely to be assisted in resolving the conflict in the evidence which the witness statementsreveal if he hears the witnesses give their evidence-in-chief orally. He would be better able to assess for himself the reliability and credibility of the witness than if the witness’ oral evidence was limited to cross-examination and re-examination.  As Donaldson MR said in Mercer v. The Chief Constable of the Lancashire Constabulary [1991] 1 W.L.R. 367 at p.371G, where ‘the evidence of a particular witness is likely to be controversial and his credibility is in issue … the way in which he responds to oral examination in chief may be of great importance’.” 

30.Applying Mercer and Hanwa, I ordered that none of the witness statements filed should stand as evidence-in-chief.

ADVERSE POSSESSION CLAIM

Limitation Ordinance, Cap 347

31.The following provisions in the Limitation Ordinance, Cap 347, are relevant to these proceedings.

32.Section 7(2):

“ (2) No action shall be brought by any other person to recover any land after the expiration of [20] years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:

Provided that, if the right of action first accrued to the Crown through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown, or of [20] years from the date on which the right of action accrued to some person other than the Crown, whichever period first expires.  (Amended 31 of 1991 s. 5)”

The period of 20 years was reduced to 12 years in 1991.

33.Section 8(1):

“ (1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

34.Section 12(1) and (2):

“ (1) A tenancy at will shall, for the purposes of this Ordinance, be deemed to be determined at the expiration of a period of 1 year from the commencement thereof, unless it has previously been determined, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued on the date of such determination.

(2) A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Ordinance, be deemed to be determined at the expiration of the first year or other period, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of such determination:

Provided that, where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent.”

35.Section 13(1) and (2):

“ (1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

(2)   Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken in adverse possession.”

36.Section 17:

“ Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

The applicable principles

37.The principles are well settled.  They were stated by Li CJ in Wong Tak Yue v Kung Kwok Wai & another (1997–98) 1 HKCFAR 55 at pp 68 – 69 as follows:

“ As Nourse LJ pointed out in Buckinghamshire County Council v Moran [1990] Ch 623 at p.644, adverse possession can be described as ‘possession as of wrong’ and with limitation it is the intention of the squatter that is essential.”

“ … A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment, ex p Davies (1990) 61 P&CR 487, Buckinghamshire County Council v Moran [1990] Ch 623 which treated as authoritative and applied the principles enunciated by Slade J in Powell v McFarlane (1979) 38 P&CR 452.”

“ The requisite intention to possess has been referred in various authorities under its Latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane (1979) 38 P&CR 452 at 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 orwhen challenged in legal proceedings, the courts should approach them with some scepticism.  The courts would scrutinise 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.”

38.In Incorporated Owners of San Po Kong Mansion v Shine Empire Limited (2007) 10 HKCFAR 588, at pp 592 – 593, Nazareth NPJ stated the principles in §7 as follows:

“ The principles for the application of ss.7(2), 17 and the associated provisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v McFarlane (1979) 38 P&CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and adopted by this Court in Wong Tak Yue v Kung Kwok Wai (1997–98) 1 HKCFAR 55. Their application has not been disputed in these proceedings, and they have been relied upon by both parties. The authorities mentioned, not only approve those principles, but provide explanation of them and guidance in their application. Of particular relevance to dispossession are the following passages in Slade J’s judgment in Powell v McFarlane:

…

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(3) Factual possession signifies an appropriate degree of physicalcontrol. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical controlmust depend on the circumstances…acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts ofpossession done on parts of an area establish title to the wholearea must, however, be a matter of degree…is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.

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

…

An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved.  This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.  The position, however, is quite different from a case where the question is whether a trespasser has acquired possession.  In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, butmade such intention clear to the world.  If his acts are open tomore than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.  (pp 470–472.)”

39.In On Yip Property Development Co Ltd v Kwok Tai Kuen Alan, unreported, HCMP 3192 and 3223/2013, 15 April 2014, Cheung CJHC stated in §8 that adverse possession is a question of fact to be established bycogent and sufficient evidence, the burden being on the squatter, there being no place for any presumption, whether legal or evidential, in favour of the squatter:

“ Whether, at any material time, there was adverse possession, and whether any such adverse possession once begun continued unbroken for 20 years, are questions of fact to be established by evidence, the burden being on the squatter. He has to discharge the burden of proof by cogent and sufficient evidence. Whilst such evidence can take many forms, including direct oral evidence, documentary evidence and inferential evidence, and the parties’ cases must be considered in light of inherent probabilities and commonsense, there is no place for any presumption, whether legalor evidential, in favour of the squatter. Everything must naturally depend on the facts of each case. The situation of a squatter who has enclosed the land in question and that of one who seeks to establish a case of continuous adverse possession of open land must, by the nature of things, be rather different.”

40.In Gotland Enterprises Limited v Kwok Chi Yau & others, unreported, CACV 260/2014, 19 January 2016, the land in dispute had a total area of 759,250.80 square feet.  There were two large ponds separated by a strip of land in between. There was no physical barrier to the first pond and no segregation of the pond from the adjoining areas within the land in dispute. Lam VP, delivering the judgment of the Court of Appeal, held that“one must examine what steps were taken by the person claiming exclusive occupation to exclude others” and held that “What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above.”  Lam VP stated in §§36, 37, 39, 54 and 58 as follows:

“ 36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37.   Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so.  In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”

“ 39. At paragraph 54 of the judgment, the Judge did not examine the exclusive occupation of Pond 1 at length. He dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. With respect, this is not the correct approach. What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 whenthere was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above.”

“ 54. … The crucial question remains: what objective acts could the 5^th Defendant pinpoint as unequivocal manifestation of the intention to possess?”

“ 58. In our judgment, ultimately the crucial issue is whether theJudge was correct in holding that the acts of fish farming and duck rearing carried on at Pond 1 was equivocal. For reasons we have already given, we are of the view that the Judge had come to the correct conclusion.”

Whether Statement of claim discloses any reasonable cause of action

41.In considering whether a statement of claim discloses a reasonable cause of action, the focus is on the statement of claim itself, not the evidence which has been adduced or “slipped in”. 

42.It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial.  Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round, per Ma CJ in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at §21:

“ It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on otherissues: Wing Hang Bank Ltd v Crystal Jet International Ltd. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Ltd v Crystal Jet InternationalLtd:

(2)   In a trial, particularly where evidence is given by witnesses,it becomes extremely important that each side knows exactly what are the live issues.  Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained.  It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.”

43.The Statement of Claim was prepared by Mr Andy Hung on the instructions of Shaw & Ng.  Its significance lies in the absence of some material averments required for a reasonable cause of action.

44.To start with, it should be firmly borne in mind that Lai Suk Yi(黎淑儀) claims to be in possession of only part of Lot 2241.  Apart from colouring it yellow in Plan JB which is “for identification only”, there is no averment of the exact size or precise location of the part of Lot 2241 said to be in her possession.  The relief claimed by Lai Suk Yi (黎淑儀) is declarations.  Declarations made by the Court must be precise.  No attempt has been made in the Statement of Claim to be precise about the part of Lot 2241 said to be in Lai Suk Yi (黎淑儀)’s possession.

45.Next, I shall start with what the Statement of Claim alleges, before pointing out what it does not allege:

(1)   Sometime prior to 1968, Lai Chi Chuen (黎智全) erected and used Structure No 1 and used “part of the two Lots” [3];

(2)   Between about 1968 to 1972, Lai Chi Chuen (黎智全) erected and used Structure No 2 and Structure No 3 and constructed a footpath [4];

(3)   Sometime in about 1977, Lai Chi Chuen (黎智全) erected and used Structure No 4 [5];

(4)   Between 1984 and 1985, Lai Chi Chuen (黎智全) erected Structure No 5 for an alleged purpose [6];

(5)   Between 1973 and 1981, Lai Chi Chuen (黎智全) erected two sets of iron wire mesh fence on “the two Lots” enclosing “the Green Zone” and “the Pink Zone”, separated by the footpath [7];

(6)   Between 1980 and 1985, Lai Chi Chuen (黎智全) let out “the Green Zone” [8];

(7)   In about 1984, Lai Chi Chuen (黎智全) fenced off “Structure No 1 and the vicinity of that structure” from the rest of the Pink Zone and let out the remaining part of “the Pink Zone” which was enclosed by iron wire mesh fence, referred to as “the let out part” [9];

(8)   Since Lai Chi Chuen (黎智全)’s death in 1987, Yeung Chat Mui (楊七妹) “started taking up possession of the Green Zone and the Pink Zone without the licence or consent of any one” [10]; and

(9)   Since Yeung Chat Mui (楊七妹)’s death in 2001, Lai Suk Yi (黎淑儀) “started taking up possession of the Green Zone and the Pink Zone … [and] the Green Zone was likewise enclosed by iron wire mesh fence” [11].

(10)   Lai Suk Yi (黎淑儀) contends that:

“ By reason of the matters aforesaid:

a. the Plaintiff has since 2001 been in adverse possession of Lot 2248 and the part of Lot 2241, together identified and coloured yellow in the attached Plan.

b. alternatively, the Plaintiff’s mother had since 1987 and until she died in 2001, been in adverse possession, and since her death the Plaintiff has since 2001 been in adverse possession of lot 2248, and the part of Lot 2241, together identified and coloured yellow in the attached Plan.

c. in the premises, prior to the commence of this action, the aggregate period of adverse possession by the Plaintiff’s mother and the Plaintiff in excess of 20 years and the Plaintiff has acquired possessory title of Lot 2248, and the part of Lot 2241,together identified and coloured yellow in the attached Plan.”[12]

(11)   Lai Suk Yi (黎淑儀) claims the following declarations:

“ AND THE PLAINTIFF CLAIMS:–

1. A declaration that the Defendant’s title to Lot 2248, and the Part of 2241, together identified and coloured yellow in the attached Plan has been extinguished by virtue of Section 17 ofthe Limitation Ordinance, Cap. 347 of the Laws of Hong Kong and/or a declaration that the Defendant has lost his right to bring any action to recover 2248 and the part of Lot 2241, together identified and coloured yellow in the attached Plan, herein by virtue of Section 7(2) of the Limitation Ordinance;

2. A declaration that the Plaintiff has acquired possessory title to Lot 2248 and the part of Lot 2241, together identified and coloured yellow in the attached Plain.” [13]

46.The following allegations which are necessary to constitute a reasonable cause of action are missing:

(1)   There is no allegation about the exact size or precise location of any of Structures No 1, 2, 3, 4 or 5, the Green Zone, the Pink Zone or the let-out-part.  What is fatal against Lai Suk Yi(黎淑儀)’s pleaded claim is that there is no allegation that those Structures, Zones and let-out-part, taken together, comprise the whole of the Disputed Land. The declarations claimed covers the whole of the Disputed Land, not just one or more ofStructures, Zones or let-out-part.  Thus, the Statement of Claim discloses no reasonable cause of action for adverse possession of the Disputed Land (which, incidentally, includes a footpath which by its nature may not be said to be in the exclusive possession of the person who constructed it).

(2)   A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. There is no tenable assertion of possession:

(a)   There is no allegation of possession throughout §§1 – 12 of the Statement of claim. 

(b)   The allegations of “possession” of the Green Zone and the Pink Zone in §§15 and 19 are puzzling as both Zones are alleged to have been let out.

(c)   The contention of possession in §23 is premised on “the matters aforesaid”.  The premise is plainly bad.  No possession follows from “the matters aforesaid”.

(3)   There is no allegation of the requisite intention to possess in that there is no allegation of exclusion of the world at large, including the paper owner(s).  Not every use or occupation of land can satisfy the requirement of the exclusive character of the occupation in order to establish factual possession.  If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively.

47.I hold that the Statement of Claim discloses no reasonable cause of action and Lai Suk Yi (黎淑儀)’s adverse possession claim falls to be dismissed.

APPLICATION TO AMEND THE STATEMENT OF CLAIM

48.On 12 February 2018, Mr Andy Hung handed up a Summons tobe heard on the same date, asking for leave to amend the Statement of Claim. 

49.Mr Andy Hung did not ask for abridgement of time for service of the Summons.

50.The Summons also asked that Hau Tso Hee (侯灶喜) be given leave “to amend” his Defence “within 2 days thereafter”.

51.The proposed Amended Statement of Claim seeks to amend §§5A, 6 and 10 of the Statement of Claim as in red as follows:

[By adding a new §5A]

“ 5A. The father of the Plaintiff is Lai Chi Chuen (黎智全) (‘the father’); sometime around 1963, the father rented the two Lots from one ‘Choi Shuk’ (財叔); since the late 1960s, the father ceased to pay rent to Choi Shuk (財叔); thereafter, the father occupied the two Lots under a tenancy at will and/or tenancy fromyear to year and/or monthly tenancy; by operation of the [sic] law,the tenancy at will and/or monthly tenancy was terminated a year, or alternatively, a month thereafter; upon the termination of the tenancy at will and/or tenancy from year to year and/or the monthly tenancy and until he died in 1987 the father continued occupying the two Lots as pleaded herein below in Paragraphs 6 to 13; the occupation during the said period was not under any tenancy or licence.”

“ 6. Sometime prior to 1968 the father erected a structure (‘Structure No. 1’) on the south-west end of the two Lots; the structure straddled on the two Lots; since then the structure had been used as the residence of the father’s family; the structure and the area surrounding it used by the father as part of the residence were enclosed by iron wire mesh fence; hereinafter the enclosed area is referred to as the ‘the Orange Zone’; the father also used part of the two Lots for growing vegetables, fruit trees and rearing poultries and pigs.”

10.   [ The following sentence is added at the end of the original §10.]

“ The Orange Zone, Green Zone and Pink Zone mentioned above are identified and coloured accordingly in the attached Encroachment Plan.”

[ A copy of the JC Plan was attached to the draft Amended Statement of Claim as the “Encroachment Plan”.]

52.The following is the full speech of what Mr Andy Hung said in support of his application:

“ My Lord, in front of my Lord is a summons. We are seekingleave to amend the statement of claim as per the draft. My Lord, can I take my Lord to the draft annexed, the amended statement of claim?

My Lord, at page 2 of the amended summons -- amended statement of claim, my Lord can see a new paragraph 5A. So basically, what we have done is transferring what we said in the reply about the father renting the place sometime around 1963 from 財叔, and in the late sixties, 財叔 no longer came to collect rent. And we say by operation of law, whatever tenancy made between the father and 財叔 -- would be terminated one year thereafter. And thereafter the father was not occupying the land under any licence or tenancy. So, basically we are transferring -- transplanting what was said in the reply.

Another amendment is at page 3 paragraph 6. My Lord may recall that my Lord correctly and rightly drew my attention to the fact that we made reference to ‘orange zone’, ‘green zone’ and ‘pink zone’, but we did not provide any schedules or plan depictingor delineating the coloured area. So paragraph 6, firstly we definedthe ‘orange zone’, which is the part used by the family. And thenparagraph -- on page 4, we inserted under paragraph 10 ‘the orange zone, green zone and pink zone mentioned above, are identified in colour accordingly in the attached encroachment plan’.

And then we used the encroachment plan prepared by Mr Tang, Eric Tang, and annexed towards the end of the document. And then my Lord can see the encroachment plan with the coloured parts as green, orange and also pink.

And we concede we have to give cost to the defendant, and of course, our amendment does not concern the second defendant of the counterclaim.”

53.I dismissed Mr Andy Hung’s application without calling on Mr Francis Yip.  I said reasons would be handed down later.  This I now do.  

54.The application for leave to amend was made on 12 February 2018, the 5^th day of trial of an action fixed for a 6-day hearing.  No reason has been given for the very late application.  On 9 February 2018, Mr Andy Hung said that the tenancy from Choi Shuk was “deliberately not pleaded in the Statement of Claim” and that “we deliberately did not rely on the period occupied by the father”. No reason has been offered why Lai Suk Yi (黎淑儀) should be given leave to plead what was deliberately not pleaded.

55.If leave were given, Hau Tso Hee (侯灶喜) should be given leave to make consequential amendments to his Defence.  There is no reasonwhy Hau Tso Hee (侯灶喜) should be given only 2 days to amend his Defencewhen Lai Suk Yi (黎淑儀) has taken all the time in the world to ask for leave to amend her Statement of Claim.  In any event, giving leave is bound to entail an adjournment of the trial.  A trial date is a milestone date under Order 25, rule 1B(8) and is immovable except in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.[14]  No exceptional circumstance has been suggested. 

56.The general principles regarding amendment of pleadings, particularly late amendments, are well known and have been succinctly summarised by A Cheung J (as he then was) in §7 in Tang Poon Lap v Tang Kam Kai HCA 761/1996, 23 December 2003:

“ I have been referred to the general principles regarding amendment of pleadings, particularly late amendments. I will not rehearse the same here. I agree totally that in a late amendment situation, it is incumbent upon the party seeking the amendment to ensure adequate particularity: Perak Pineeror Ltd v Carrian Holdings Ltd CA 59/85 (unreported); Re Unisoft Group (No. 2) [1994] BCC 766; Wellfit Investments Ltd v Poly Commence Ltd [1995] 3 HKC 56; Hong Kong Civil Procedure 2004 (Vol. 1) para 20/8/10. Furthermore, the court will not allow futile or useless amendments: Hong Kong Civil Procedure 2004 (Vol. 1) para 20/8/24”.

57.The “Choi Shuk” tenancy lacks adequate particularity, including whether it is oral or in writing; the term of the tenancy (whether for a fixed term, a tenancy at will or a periodic tenancy); the amount of rent; and the date when Lai Chi Chuen (黎智全) ceased to pay rent to “Choi Shuk”.  A tenancy is a fact and there is no reason why Lai Suk Yi (黎淑儀) should be allowed to be vague, evasive or indecisive in a late application for amendment.

58.Most importantly, amending to plead the tenancy from “Choi Shuk” is a futile or useless amendment.  Futile or useless amendments are not allowed.  The tenancy is alleged to be made by “Choi Shuk”, not by or on behalf of any paper owner(s) of Lots 2241 and 2248.  Section 12(1) and (2) of Limitation Ordinance, Cap 347, provides that “accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued on the date of such determination”, emphasis added.  While section 12(1) and (2) may affect “Choi Shuk”, section 12(1) and (2) does not affect the paper owner.  The amendment is futile and useless and should not be allowed.

TAKING OF POSSESSION BY LAI CHI CHUEN (黎智全) WITH HAU TSAN PUI (侯燦培)’S CONSENT

59.(1)   The application by the paper owner, Hau Tsan Pui (侯燦培), to the Crown dated 23 October 1968 for a modification of tenancy (ie the Crown Lease);

(2)   The “Modification of Tenancy” dated 16 July 1969 by the Crown which was countersigned by Lai Chi Chuen (黎智全); and

(3)   The 9 Receipted Demand Notes in respect of annual fees for 9 years from 2006 to 2014 (when the Writ in this Action was issued by Lai Suk Yi (黎淑儀)).  These Receipted Demand Notes were the documents of Lai Suk Yi (黎淑儀);

(collectively “the 3 sets of documents”) are contemporaneous documents, the authenticity of which was not disputed. Taken together, they are fatal against Lai Suk Yi (黎淑儀)’s claim of adverse possession.

Hau Tsan Pui (侯燦培)’s letter dated 23 October 1968

60.Page 683 of Bundle B3 is a copy Chinese letter dated 23 October 1968 by    Hau Tsan Pui (侯燦培), the then paper owner, to the Tai Po District Lands Office consenting to allow [name blacked out] to construct on Lot 2241 DD 91 a temporary structure for human habitation, a structure for pigs, a structure for chicken and a structure for storage.  Hau Tsan Pui (侯燦培) expressed the hope that permission would be granted.  Reading it with the Modification of Tenancy by the Crown, the irresistible inference is that the black-out name is Lai Chi Chuen (黎智全):

「 敬啟者本人有名下管業田地座落第九十一約地段第二二四一號現同意[黎智全] 君在該地段內蓋建臨時住人屋一間猪屋一間雞屋一間士多一間特簽具同意書送呈

鈞府察核敬希賜准為感

謹呈

大埔理民府

簽具同意書人侯燦培

一九六八年十月甘三日」 (emphasis added.)

61.By the B3-683 letter, Hau Tsan Pui (侯燦培), the paper owner, consented to the taking and continuation of occupation/possession of the site by Lai Chi Chuen (黎智全) [15].  Thus, Lai Chi Chuen (黎智全)’s occupation/possession did not constitute dispossession or possession by him for the purposes of the Limitation Ordinance.

Modification of Tenancy dated 16 July 1968

62.62. Page 572 of Bundle B3 is a copy “Modification of Tenancy” dated 16 July 1969 granted by the Crown, with Lai Chi Chuen (黎智全) signing as “Permittee”, and with a photograph of Lai Chi Chuen (黎智全) affixed to the top left hand corner of the document.  It is disclosed as a document of Lai Suk Yi (黎淑儀).  It reads as follows:

“ Audit No. 23721

… Permit No. 36119

Fees $ … Annual fee 16.00

Owner’s name Hau Tsan Pui of Kam Tsin 

In consideration of fee $1.00 (16.00/A) the Crown hereby permits the modification of the Crown Lease or purchase agreement of Lot/s No/s. 2241 in D.D. 91 to the extent only that the registered owner Hau Tsan Pui permits Lai Chi Chuen [16] may for the period between 1^st from [sic] 31^st December 69 and to erect & maintain T/Ss of basic dimension (1) 285 sq ft (2) 60 sq ft (3) 138 sq ft, (4) 60 sq ft for ① dwelling ② kitchen ③ Shade, ④ Shade as indicated in red in a map marked ⑥ in file No. TP280/130/68 in the District Office, Tai Po Subject to the following general and special conditions:

1. This permit may be cancelled at any time by the District Officer Tai Po on one month’s notice being given.

2. This permit shall not be transferred.

3. This permit shall be produced whenever required by the District Officer Tai Po or any officer deputed by him, and shall be returned to the District Office Tai Po on expiry.

4. The signature of the permittee on the duplicate copy of the permit shall be taken to imply his acceptance of the conditions upon which the permit is granted.

5. If in the opinion of the District Officer Tai Po a breach ofany of the conditions has occurred he may cancel the permit forthwith.

SPECIAL CONDITIONS

Dated the 16^th day of July 1969

(Signed by Lai Chi Chuen)

____________________________ ________________________________

Signature of Permittee                            District Commissioner, New Territories   ”  

63.Lai Chi Chuen (黎智全) signed the Modification of Tenancy and his photograph was affixed to it.  By the Modification of Tenancy, Lai Chi Chuen (黎智全) acknowledged that his taking and continuation of occupation/possession was with the actual consent of the paper title owner.

9 Receipted Demand Notes for annual fees for Modification of Tenancy

64.Lai Suk Yi (黎淑儀) also disclosed 9 Receipted Demand Notes for $16 each issued by HKSAR in respect of Modification of Tenancy with Departmental Reference “RADLON 36119” [17] covering the respective periods of 12 months each from:

(1)   1 January 2006;

(2)   1 January 2007;

(3)   1 January 2008;

(4)   1 January 2009;

(5)   1 January 2010;

(6)   1 January 2011;

(7)   1 January 2012;

(8)   1 January 2013; and

(9)   1 January 2014.

65.The Receipted Demand Notes covered the years 2006 – 2014 as annual fees for Modification of Tenancy granted on the application of Hau Tsan Pui (侯燦培) for the benefit of Lai Chi Chuen (黎智全) as permittee.  The payment of fees evidenced by the 9 Receipted Demand Notes is a continuing recognition of the occupation/possession of the land with the consent of the paper owner.  This is incompatible with Lai Suk Yi (黎淑儀) having the intention to possess for the purpose of the Limitation Ordinance.

66.The 3 sets of documents, ie the Chinese letter by Hau TsanPui (侯燦培), the Modification of Tenancy and the 9 Receipted Demand Notes, conclusively established that Lai Chi Chuen (黎智全)’s taking and continuation of occupation/possession of Lot 2241 was with the consent and permission of the paper owner.  Possession with the express permission of the head lessor (the Crown or HKSAR Government) and the paper owner is anything but possession as of wrong, ie it is not adverse possession.

67.There is House of Lords authority, cited by our Court of Appeal, that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Limitation Ordinance, Cap 347, see JA Pye (Oxford) Ltd & another v Graham & another [2003] 1 AC 419 at §37 per Lord Browne-Wilkinson:

“ … the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act.”

This passage was cited by Cheung JA in Yu Kit Chiu & another v Chan Shek Woo (陳錫湖) t/a “陳潮昌士多”, unreported, CACV 137/2010, 18 February 2011 [18].

68.Mr Andy Hung should be familiar with the case of Chan Shek Woo, as he was counsel for Chan Shek Woo, both in the Court of Appeal and in the District Court (DCCJ 5488/2003, 22 March 2010). 

69.Nevertheless, Mr Andy Hung did not cite Chan Shek Woo in the trial before me.

70.Chan Shek Woo was a case in which the permittee signed the Modification of Tenancy in that case and beneath his signature were the words “ON BEHALF OF REGISTERED LAND OWNER”.  In our case, Lai Chi Chuen(黎智全) signed the Modification of Tenancy as Permittee but did not purport to be acting on behalf of the paper owner.  However and decisively, as in the Chan Shek Woo case, Lai Chi Chuen (黎智全) acknowledged that his taking and continuation of occupation/possession was with the actual consent of the paper owner, not to the exclusion of the paper owner.  Irrespective of whether Lai Chi Chuen (黎智全) was the tenant of Hau Tsan Pui (侯燦培), actual consent given by Hau Tsan Pui (侯燦培) to occupation/possession is incompatible with possession as of wrong.

71.I quote two further passages from Cheung JA’s judgment:

“ By acknowledging that he agreed to the terms of the modification on behalf of the deceased, Mr. Chan was acknowledging that he was possessing the land on behalf of the deceased and not to his exclusion. In my view Mr. Chan was not able to establish that hehad the intention to possess the land in 1970 or thereafter when hehad since 1970 paid the permit fees continuously. He did so even up to 2005 which was even after the plaintiffs had commenced proceedings against him” [19]; and

“ The payment of fees by Mr. Chan must be a continuing recognitionof the possession of the land by the plaintiffs which is inconsistent with Mr. Chan having the intention to possess” [20].

72.Not only are the 3 sets of documents by themselves fatal against Lai Suk Yi (黎淑儀)’s adverse possession claim, they cast serious doubts on the bona fides of her claim.  The annual permit fee under the Modification of Tenancy has been paid, at least for 2006 to 2014.  This is repugnant to possession as of wrong.

Credibility of Lai Suk Yi (黎淑儀) as a witness

73.Lai Suk Yi (黎淑儀)’s evidence was anything but satisfactory.

74.She was born on 2 October 1964.  Plainly, she could not have personal knowledge of a lot of the matters she alluded to.  She has been advised to make it clear in her answers if she was giving hearsay evidence in which case she should disclose the source of her information and the grounds of belief.  She did not heed the repeated advice.  Often times, she sought to pass off hearsay evidence as evidence from her personal knowledge.

75.She did not give anything resembling a systematic account of her version.  She was all over the place.  She often gave incomplete, incoherent, unintelligible or contradictory answers to questions.  Sometimes she simply did not respond to questions at all.  Her oral evidence was at times contradicted by her witness statements.

76.Worse still, she insisted on answers which were demonstrably untrue.  On 8 February 2018, it was put by Mr Francis Yip to her in cross-‌examination that nowhere in her two witness statements did she mention that at the age of four she saw with her own eyes her father taking possession of the two lots of land.  Whether there was reference in a document to a matter is an objective fact which does not admit of genuine or bona fide dispute.  She disagreed with what Mr Francis Yip put to her.  She was asked to identify the relevant passage(s) in her witness statements.  She failed to do so and said she needed a break.  She was given a break which lasted 19 minutes but she still failed to identify any relevant passage(s).  She persisted in claiming that there was such reference in the witness statements but she could not find it.  She was given until the following morning to identify the relevant passage(s)which she insisted was in her witness statements.  On the following morning, she said she had read the statements and went on to say that:

“ A. Correctly speaking, before I was born, together with my parents and my elder brother, we had been living there.

COURT: I am asking about whether you could find in your witness statement the relevant evidence. Can you or can you not find it?

A.  Perhaps I could not express myself well.  I couldn't find.”

77.All in all, I find that she is not a credible or reliable witness. 

78.Whether, at any material time, there was adverse possession, and whether any such adverse possession once begun continued unbroken for20/12 years, are questions of fact to be established by evidence, the burden being on the squatter.  She has to discharge the burden of proof by cogent and sufficient evidence.  There is no place for any presumption, whether legal or evidential, in favour of the squatter.  Her evidence is neither cogent nor sufficient.  Her claim must be dismissed.

HAU TSO HEE (侯灶喜)’S COUNTERCLAIM

79.Hau Tso Hee (侯灶喜)’s counterclaim against Lai Suk Yi (黎淑儀) and Lai Tai Ming (黎明) pleads what Hau Tso Hee (侯灶喜) said or proclaimed, but does not allege agreement by or on the part of Lai Suk Yi (黎淑儀) or Lai Tai Ming (黎明).  §§17 and 18 of the Amended Defence and Counterclaim read as follows:

“ 17. On about 16^th January 2001 and by pre-arrangement over thephone, the Defendant went to the two Lots (known as No. 60,On Po Village, Sheung Shui, New Territories, Hong Kong) tocollect rent from Yeung Chat Mui. The Defendant signed rental receipt in Chinese dated 16^th January 2001 (in duplicate)and Yeung Chat Mui countersigned on one of the signed rentalreceipt confirming the payment by Yeung Chat Mui and receipt by the Defendant of the rent of the two Lots for the year.

18.   Yeung Chat Mui died in November 2001.  The Defendant came to know about the death not long thereafter.  In or about mid or late February 2002, the Defendant met the Plaintiff’s brother ‘Lai Tai Ming also known as Lai Ming’ (i.e. the 2^nd Defendant (By Counterclaim)) (hereinafter referred to as ‘Lai Ming’) and the Plaintiff at the two Lots.  The Defendant continued to let the two Lots to Lai Ming and the Plaintiff under a verbal yearly periodic tenancy commencing [sic] fromyear to year for cultivation as aforesaid (i.e. commencing fromthe 1^st lunar day of the 1^st lunar month to the last lunar day ofthe 12^th lunar month).  The payment of [sic] rent remained atan annual sum of HK$5,000.00 payable in advance as before.”  

80.The following are unsatisfactory aspects of the Counterclaim:

(1)   There is no pleaded allegation and no evidence of agreement by or on the part of Lai Suk Yi (黎淑儀) or Lai Tai Ming (黎明) of the tenancy (“Joint Tenancy”).

(2)   The “租單” purports to be an original rent receipt but is retained by the paper owner.

(3)   A copy of the “租單” is attached to this judgment.  The document seems a little new and clean for a document which should have come into existence for over 17 years.

(4)   Hau Tso Hee (侯灶喜) claimed to have written out two sets of “租單”, one for the tenant and one for the landlord’s record.  This course is strange.  The usual course is to write on the counterfoil of the printed rent receipt and use the counterfoil for the landlord’s record.  He said he did not do this because the counterfoil was small in size. I reject it.  Counterfoils have sufficient space for writing down all essential information for record purposes. 

(5)   It is cumbersome for him to write out the same words twice instead of using carbon paper.  .

(6)   The “租單” is the only “租單” produced or disclosed by him despite his assertion that he had written out more than one (set of) rent receipts.  Rent receipts which were but are no longer in his possession, custody or power relating to matters in question in the action should have been disclosed but he did not.

(7)   Hau Tso Hee (侯灶喜) claimed that all duplicate rent receipts (except the “租單”) had been destroyed.  Hau Tso Hee (侯灶喜) took the trouble of writing out two sets of rent receipts so that one set would be retained for record purposes.  Inexplicably the set prepared for record purposes had been destroyed (except the “租單”).  His case is unconvincing and not inherently probable and I reject it.  

(8)   The reason for asking Yeung Chat Mui (楊七妹) to sign on the “租單” is not convincing at all.  Rent receipts should be acknowledged by the recipient, not the payer.

(9)   The contention that her signature was required to record the change of identity of the tenant is contradicted by the fact that there is no record of the change of tenant to the brother and the sister.

(10)   Hau Tso Hee (侯灶喜) said that Yeung Chat Mui (楊七妹) was:

“ worried if some day in the future, her son resigned, retired or wasfired, and that she feared that he got nowhere to live. If there wasanything happened to楊七妹, and asked me if I could continue to rent the two lands to Lai Ming and Lai Suk-yi, the two siblings”.

Lai Tai Ming (黎明) had been living in Government married quarters since 1995.  No reason had been offered for Yeung Chat Mui (楊七妹)’s concern in 2001 about lack of living accommodation for Lai Tai Ming (黎明) should anything happen to her.  There was no evidence about his inability to live in private accommodation.  There is no basis for Yeung Chat Mui (楊七妹)’s concern about Lai Tai Ming (黎明) having “nowhere to live”.  Further, no reason had been given for including Lai Suk Yi (黎淑儀) as a joint tenant. 

(11)   Residence for Lai Tai Ming (黎明) was the reason for the joint tenancy.  This is contradicted by Hau Tso Hee (侯灶喜)’s pleaded case in §18 of the Amended Defence and Counterclaim that the Joint Tenancy was “for cultivation”.  It is inherently improbable for Lai Tai Ming (黎明) to agree to a tenancy “for cultivation” when the premises were intended for residence.

(12)   Hau Tso Hee (侯灶喜) produced a copy of the Savings Bank History Report covering the period from 01/02/07 to 31/12/11 of an account in the name of “Hau Lai Fun/Fung Yuk” which contained, among others, the following entries, showing deposits in the amount of $5,000.00 each:

Transaction Date	Value Date	Deposits	Transaction reference
05/02/07	05/02/07	*5,000.00	6B2FA CQ
21/02/07	21/02/07	*5,000.00	0209A NBD
05/03/07	05/03/07	*5,000.00	6A4AA CQ
04/04/07	04/04/07	*5,000.00	6D49A CQ
03/12/07	03/12/07	*5,000.00	6FD7A NBD
18/02/08	18/02/08	*5,000.00	0207A NBD
02/02/09	02/02/09	*5,000.00	6B2BA NBD
19/04/10	19/04/10	*5,000.00	6F4AA NBD
10/02/11	10/02/11	*5,000.00	6F48A NBD

Under “Codes for Passbook transactions”, “CQ” stands for “Cheque Deposit” and “NBD” stands for “Cash Deposit”.

Hau Tso Hee (侯灶喜) asserted that the entries printed in bold were payments of rent by Lai Suk Yi (黎淑儀) and Lai Tai Ming (黎明). I reject his assertion.  All that the Passbook entries showed were deposits in cash in the amount of $5,000.00 on each occasion, without any information on the identity of the depositor(s) or the reason for the deposits.  There is no basis for Hau Tso Hee (侯灶喜)’s wishful thinking.  Further thereasons (a) for rejecting the entries showing cheque deposits (b) forrejecting the cash deposit on 03/12/07 and (c) for including theentry on 19/04/10 (which was out of line with the other deposits in February) were unconvincing and I reject them.

(13)   Hau Tso Hee (侯灶喜) was an indigenous villager.  Male dominance in indigenous villages is notorious.  Females seldom, if ever, count.  Yet management of Lots 2241 and 2248 was carried out by females, Fung Yuk (馮玉) and/or Hau Lai Fun despite Hau Tso Hee (侯灶喜) having a number of brothers. I am not persuaded that this is inherently probable.

(14)   On Hau Tso Hee (侯灶喜)’s case, Hau Lai Fun was clearly a material witness.  Yet Hau Tso Hee (侯灶喜) did not call her asa witness.  In Kao Lee & Yip v Koo Hoi Yan [2003] 3 HKLRD 296, at §34, Ma J (as he then was) summarised as follows the principle on drawing of inferences in cases of absence of material evidence on matters peculiarly within the knowledge of a party and that party might be expected to have material evidence to give the issue:    

“ In these circumstances, adverse inferences may be more easily drawn against them and correspondingly, any inferences favourable to [his opponents] can more confidently be drawn as well: see Polaroid Far East Ltd v Bel Trade Co Ltd & Others [1990] 2 HKLR 447 at p.454; Jones v Dunkel (1958–1959) 101 CLR 298. This is of course providing that the rest of the evidence allows such inferences to be drawn and that such evidence is credible in the first place.”

See also Wisniewski v Central Manchester Health Authority [1998] Lloyd’s Rep Med 223 at p 240.  I draw adverse inference against Hau Tso Hee (侯灶喜).

81.To summarise, I am not satisfied on a balance of probabilities that:

(1)   “租單” is a contemporaneous or authentic document; and 

(2)   There was a tenancy between Lai Suk Yi (黎淑儀) and Lai Tai Ming (黎明) on the one part and Hau Tso Hee (侯灶喜) on the other. 

82.As for damages for trespass, Hau Tso Hee (侯灶喜) could have pleaded his counterclaim against Lai Suk Yi (黎淑儀) simply on the basis that Lai Suk Yi (黎淑儀) had been trespassing on Lots 2241 and 2248.  But, Hau Tso Hee (侯灶喜) chose to frame his counterclaim on the basis that the tenancy of Lai Suk Yi (黎淑儀) and Lai Tai Ming (黎明) had been forfeited by the issue of the Counterclaim and that Lai Suk Yi (黎淑儀) and Lai Tai Ming (黎明) were thus trespassing upon forfeiture of the Joint Tenancy.  As Hau Tso Hee (侯灶喜) has failed to establish the Joint Tenancy, his counterclaim fails and falls to be dismissed.

Vacation of registration of lis pendens

83.As I have decided against Lai Suk Yi (黎淑儀) on her adverse possession claim, the writ in HCA 215/2014 ceases to be registrable (assuming that it was once registrable) and registration should be vacated.  Registration of instruments which cease toaffect land should be vacated, see Anstalt Nybro v Hong Kong Resort Co Ltd [1980] 1 HKLR 76, Privy Council.

DISPOSITION

84.I order that:

(1)   Lai Suk Yi (黎淑儀)’s claim be dismissed with costs to Hau Tso Hee (侯灶喜), to be taxed if not agreed.

(2)   The registration of the Writ in this Action in the Land Registry by Memorial No 14020701100018 against Lots 2241 and 2248 in Demarcation District No 91 be vacated with costs to Hau Tso Hee (侯灶喜), to be taxed if not agreed.

(3)   Save as ordered in sub-paragraph (2) above, Hau Tso Hee (侯灶喜)’s counterclaim be dismissed with costs to Lai Suk Yi (黎淑儀) and Lai Tai Ming (黎明), to be taxed if not agreed.

(4)   Lai Suk Yi (黎淑儀)’s own costs be taxed in accordance with the Legal Aid regulations.

85.The costs orders under §84 above are orders nisi under Order 42, rule 5B(6) of the Rules of the High Court, Cap 4A.

Postscript

86.Persons who obtain legal aid to pursue wholly unmeritorious claims must not assume there is no sanction against them.  I draw attention to section 17(3) of the Legal Aid Ordinance, Cap 91, which provides that:

“ Where it appears to a court or judge that an aided person has actedimproperly in bringing … any legal proceedings or in the conduct of them, the court or judge may order the aided person to pay the costs of the Director and of the counsel or solicitor who acted for him or the costs of the other party, or the costs of the Director and such counsel and solicitor and such party”.

Mr Andy Hung, instructed by Shaw & Ng, assigned by Director of Legal Aid, for the plaintiff (by original action)
and the 1^st defendant (by counterclaim)

Mr Francis Yip, instructed by Ko & Chow, for the defendant (by original action) and the plaintiff (by counterclaim)

The 2^nd defendant (by counterclaim) appeared in person

ATTACHMENTS TO THIS JUDGMENT   Plan JA

Plan JB

-  3  -    Plan JC

Plan JD

-  5  -    “租單”