Man Kai Tak v. 梁妹 and Others

CAMP 70/2018

[2018] HKCA 518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 70 OF 2018

(ON AN INTENDED APPEAL FROM DCCJ NO. 1806 OF 2010)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I. Background

1.1The plaintiff is the registered owner of the premises known as Lot 995 in DD 102, Yuen Long, New Territories (‘the premises’).

1.2The 2^nd and 3^rd defendants claimed to be in adverse possession of the premises since 19 March 1974 when their father (‘Leung Senior’) bought from one Chan So who was then in possession of 18 lots of land (one of which was the premises) the following items :

1)  One wooden house for human habitation;

2)  Two chicken houses;

3)  Seven lots of sandworm fields;

4)  Two lots of vegetable fields;

5)  One unit of electric pump; and

6)  Miscellaneous items including water pipes and chicken manure.

1.3Leung Senior and his family (including the 2^nd and 3^rd defendants) took possession of the 18 lots and made use of the same, particularly the premises, as their home for dining, resting, sleeping, playing and cycling.  Over the years, Leung Senior and his family had been carrying out various farming and agricultural activities on the 18 lots.  They have also constructed or installed facilities such as water wells, electricity supply and fresh water supply on the 18 lots to support their daily life and agricultural activities.  Around 1986, the Leung family erected a wire fence of at least 1.5 metre high along the boundaries of the 18 lots and has been keeping three guard dogs on the premises to deter trespassers and illegal immigrants.  After the erection of the wire fence, the only access to the premises is through a metal gate installed on the boundary of the premises facing lots 1600 and 1601 in DD 102, Yuen Long, New Territories.

1.4Leung Senior died on 26 May 2001 but his family continued to be possession of the premises.

1.5Deputy District Judge Timon Shum rejected the 2^nd and 3^rd defendants’ claim of adverse possession.  Instead he found Leung Senior had been in occupation of the premises as a tenant beginning from 1 March 1979 when the plaintiff’s father (‘Man Senior’) entered into a written tenancy agreement with Leung Senior for a fixed term from 1 March 1979 to 30 February 1984 at an annual rent of $400 (‘the 1979 TA’).  Upon the expiration of this agreement, Leung Senior and his family continued to pay rent as a yearly tenant.  On 10 March 2005, the 1^st defendant who is the sister of the 2^nd and 3^rd defendants entered into another written tenancy agreement with the plaintiff for the premises at the annual rent of $600 for the period from 10 March 2005 to 10 March 2010 (‘the 2005 TA’).  The Judge also found that that the 2^nd and 3^rd defendants had failed to adduce any expert evidence showing that the premises which is about 7,000 to 8,000 sq. ft. forms part of the 18 lots.

1.6The Judge ordered possession of the premises to be granted to the plaintiff.  Earlier the plaintiff had already obtained an order for possession of the premises against the 1^st defendant for non‑payment of rent.  The 2^nd and 3^rd defendants then applied to be joined and raised their adverse possession claim. 

1.7The 2^nd and 3^rd defendants now renew their application for leave to appeal against the judgment below and also apply for a stay of execution of the judgment.  The Judge had refused to grant leave.

II.  Grounds of appeal

2.The 2^nd and 3^rd defendants rely on the various grounds of appeal set out in the draft intended grounds of appeal attached to their summons of 23 May 2018.  Most of these grounds if not all have already been dealt with in the Judge’s leave decision.  These grounds are :

1)  The Judge erred in failing to consider the factors listed in section 49 of Evidence Ordinance (Cap. 8) when he accepted the hearsay evidence adduced by the plaintiff, namely the evidence that Kwok (‘Leung Senior’s wife’) continued to pay rent after the end of the 1979 TA, and finding that there was a yearly tenancy / tenancy at will (‘Section 49 ground’);

2)  The Judge erred in finding that the 2^nd and 3^rd defendants had insufficient degree of control over the premises, when the Judge has already held that the parties have no dispute that the Leung family was in possession of the premises at all material times (‘Degree of control ground’);

3)  The Judge erred in finding that the 1^st defendant was the sister of the 2^nd and 3^rd defendants (‘Identity of the 1^st defendant ground’);

4)  The Judge erred in accepting the credibility of the plaintiff’s witnesses while rejecting the credibility of the 2^nd and 3^rd defendants’ witnesses (‘Credibility ground’).

III.     Legal principles

3.1Section 63A(2) of the District Court Ordinance (Cap. 336) provides that no leave to appeal shall be granted under section 63 unless the Court is satisfied that :

1)  the appeal has a reasonable prospect of success; or

2)  there is some other reason in the interests of justice why the appeal should be heard.

3.2The threshold for challenging findings of fact is very high.  As the trial Judge’s findings are usually reached based on evaluation of oral evidence and assessment of credibility of the witness, it is well established that the Court of Appeal will only intervene if it is satisfied that the Judge’s findings of fact are plainly wrong.

IV.     Our view

1)     Section 49 ground

4.1It is clear that this ground is misconceived.  The so‑called hearsay evidence is the evidence given by the plaintiff’s witness Hau who testified about the payment of rent by the Leung family.  Her evidence is direct evidence and not hearsay evidence.

2)     Degree of Control ground

4.2Again this ground is misconceived.  Even if there is no issue that the Leung family had been in physical possession of the premises it does not mean that they have been in adverse possession.  The Judge’s finding that their occupation was by way of a tenancy renders the 2^nd and 3^rd defendants’ claim for adverse possession unsustainable.

3)     Identity ground

4.3This is purely a finding of fact which the Judge is in the best position to decide.

4)     Credibility ground

4.4The same reasoning in 3) applies.

V.  Conclusion

5.1The 2^nd and 3^rd defendants simply fail to satisfy the threshold for obtaining leave.  As a result the application for stay also fails.  Accordingly the application is refused with costs to the plaintiff.  This Court will assess the costs summarily.  The plaintiff is to file and serve its statement of costs within seven days and the 2^nd and 3^rd defendants to file and serve their objections within seven days thereafter.

5.2As the 2^nd and 3^rd defendants’ application is totally without merit, pursuant to Order 59, rule 2A(8), we will make an order that no party may request our determination to be reconsidered at an oral hearing inter partes.

Mr Tim Wong, instructed by Paul W. Tse & Co., for the plaintiff

Mr Solomon Lam, instructed by Ford, Kwan & Company, for the 2^nd and 3^rd Defendants