Cedric Hervey Ong v. Wong Suk Lin and Others
Read the full judgment text of HCA 650/2015 on BabelCite. This High Court CFI judgment was delivered on 7 September 2018.
1. On 26 March 2015, the Plaintiff commenced this action against the Defendants for vacant possession of the property known as Flat A2, 8 th Floor, Triumph Court, 13 – 41 Electric Road, Hong Kong (“ Property ”),and mesne profits.
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HCA 650/2015 [2018] HKCFI 2040 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 650 OF 2015 _____________
_____________ (By Original Action)
_____________ (By Counterclaim)
_______________ JUDGMENT _______________ INTRODUCTION 1.On 26 March 2015, the Plaintiff commenced this action against the Defendants for vacant possession of the property known as Flat A2, 8thFloor, Triumph Court, 13 – 41 Electric Road, Hong Kong (“Property”),and mesne profits. 2.The 1st, 2nd and 3rd Defendants resist the Plaintiff’s claim and counterclaim for possessory title pursuant to sections 7 and 17 of the Limitation Ordinance (Cap 347) on the ground of adverse possession of the Property for over 12 years from 23 March 2002. 3.The 4thDefendant is not represented and has not taken part in this action. For the sake of simplicity, any reference to “the Defendants” shall hereinafter mean “the 1st, 2nd and 3rd Defendants”. BACKGROUND The parties 4.The Plaintiff and the Defendants are relatives. This action involves three generations. 5.The Plaintiff is the son of Mr Ong Kim Tiong Chua (“Kim”) and Ms Beng Lee Ong (“Beng”). 6.Kim is the son of Mr Ong Su (“Ong”) and Ms Chua Hong Kiao (“Chua”). 7.Kim has two brothers by the name of Mr Jerommel Ong Carranceja (“Jerommel”) and Mr Lawrence C Ong (“Lawrence”). 8.Mr Wong Si Fong (“Wong”), also known as Ong Si Pang, is the younger brother of Ong. 9.The 1st, 2nd and 3rd Defendants are the children of Wong and Ms Chang Sui King (“Chang”). 10.The above parties and their relationship may be shown as follows: The chain of title to the Property 11.By an Assignment dated 1 May 1963 (“1963 Assignment”), U Kwan Investment Co Ltd (“Developer”) assigned the Property to Chua for a consideration of HK$33,000. 12.By a Deed of Gift dated 27 October 1989 (“1989 DOG”), Chua assigned the Property to Jerommel and Lawrence who then held the Property as joint tenants. 13.By a Deed of Severance dated 28 February 2003, the ownership of the Property was changed from joint tenancy to tenancy in common in equal shares. 14.By two Deeds of Gift both dated 28 February 2003 (“2003 DOGs”), Jerommel and Lawrence respectively assigned ⅙ and ½ share of the Property to Kim with the result that Kim held ⅔ share and Jerommel held ⅓ share of the Property as tenants in common. 15.By a Deed of Gift dated 13 July 2006 (“2006 DOG”), Jerommel assigned his ⅓ share of the Property to the Plaintiff with the result that the Plaintiff held ⅓ share and Kim held ⅔ share of the Property as tenants in common. 16.By a Deed of Gift dated 23 October 2009 (“2009 DOG”), Kim assigned his ⅔ share of the Property to the Plaintiff with the result that the Plaintiff has become the sole registered owner of the Property. 17.The above chain of title may be shown as follows:
The Defendants’ occupation of the Property 18.The parties came from Fujian in the Mainland. The Plaintiff’s grandfather Ong went to the Philippines and became a successful businessman there. 19.In about 1936, Ong’s younger brother Wong (the Defendants’father) married Chang in Fujian. In the late 1940s, Wong went to the Philippines leaving behind Chang, two children (Shuk Wah (daughter) andChi Keung (son)) and an unborn child (Shuk Chun (daughter)). They are theelder brother and sisters of the Defendants. In the early 1950s, the relationship of Wong and Chang deteriorated. 20.In 1956, Chang came to Hong Kong. In Hong Kong, she wrote letters to Ong in the Philippines for help. Ong persuaded Wong to go to Hong Kong sometime in the late 1950s to meet Chang. The two re-united in Hong Kong. Later in the early 1960s, they moved into the Property held bythe Plaintiff’s grandmother Chua. Since then, Wong’s family stayed in the Property. 21.On 19 August 1963, Chua executed a Power of Attorney appointing Wong to be her attorney primarily to let, rent out or lease the Property (“1963 POA”). No power to sell or encumber the Property was given to Wong. Ong (and later Chua after Ong’s demise in 1982) financiallysupported Wong’s family including paying for their living expenses and theoutgoings of the Property until the late 1980s. Before Ong’s demise, Ong and Chua visited Wong and Chang in Hong Kong at the Property from time to time. 22.The Property had three rooms. Chua’s mother Madam Yeung“Madam Yeung”) occupied the smallest room. Ong’s first wife Madam Lo and Wong’s daughter Shuk Chun occupied a bigger room. Wong, Chang, and their other children occupied another bigger room. 23.In other words, in the 1960s to the mid-1970s, the Property was the residence of three families: Madam Yeung, Madam Lo and Wong. 24.Madam Yeung left the Property and emigrated to the Philippines in about 1974. Madam Lo left the Property and moved back to the Mainland in about 1975. 25.Since the mid-1970s, the Property has been the residence of Wong’s family alone. 26.On 28 October 1989, the very next day after Jerommel and Lawrence became the owners of the Property on 27 October 1989, they executed a Power of Attorney appointing Wong to be their attorney primarily to “manage” the Property (“1989 POA”). Again, no power to sell or encumber the Property was given to Wong. 27.Wong and Chang respectively passed away on 23 March 2002 and 13 August 2014. They have seven children. However, only the Defendants are still now in occupation of the Property. 28.After Chang’s demise on 13 August 2014, the Plaintiff through his mother Beng requested the Defendants to move out from the Property on repeated occasions from 18 October 2014 to 15 December 2014, but to no avail. Hence, the Plaintiff commenced this action. THE PLAINTIFF’S CASE 29.It is the Plaintiff’s case that Chua acquired the Property in the early 1960s for investment purpose and to provide a residence for her mother Madam Yeung. 30.The Plaintiff does not challenge the Defendants’ case that the Defendants’ parents and family members had or have been residing in the Property since the early 1960s, and had or have been so residing without Madam Yeung and Madam Lo since the mid-1970s. The Plaintiff however contends that the Defendants’ possession of the Property could not be considered adverse because the Property was occupied by the Defendants and their parents with a licence from the respective owners. They were initially the Plaintiff’s grandmother Chua, then the Plaintiff’s uncles Jerommel and Lawrence, and later the Plaintiff’s father Kim. The owner is now the Plaintiff himself. 31.It is also the Plaintiff’s case that the Defendants did not have the requisite intention to exclude the above owners of the Property (animus possidendi). THE DEFENDANTS’ CASE 32.It is the Defendants’ case that Chua held the Property as trustee for Ong. It is also their case that the consent to occupy the Property came from Ong and not Chua. 33.The Defendants do not dispute that Wong lived in the Property under a licence from the Plaintiff’s grandparent (though they say it should be Ong not Chua) and later from Jerommel and Lawrence. However, they insist that the licence to occupy the Property was only given to Wong personally but not to his wife Chang or their children (“Wong Licence”). Their case is that upon Wong’s demise on 23 March 2002, the Wong Licence was terminated and their (and their mother’s) possession of the Property has become adverse. 34.The Defendants asserted that the Plaintiff’s pleaded case is solely based on express licence and therefore the Plaintiff is not permitted to rely on implied or other forms of licence. 35.The Defendants further asserted that after Wong’s demise in 2002, Chang and his family continued to possess, occupy and reside in theProperty without any verbal or written agreement/arrangement with anyone from Ong’s family (ie without any express licence). They deny that their and Chang’s possession of the Property after Wong’s demise was permitted by any express licence. 36.To explain why Chang and the Defendants were permitted to reside in the Property prior to the demise of Wong if Wong alone was the licensee, the Defendants asserted that they did not require the consent from Ong to live in the Property. They asserted that “[t]hey live in the [Property] because they follow their father/husband”.[1] THE AMENDMENT SUMMONS 37.Although it is clear from the Plaintiff’s pleadings (Re-AmendedReply, and Answer to Further and Better Particulars of the Amended Reply)and evidence that it is the Plaintiff’s case that the Defendants were permitted to stay in the Property until around November or December 2014, it was however pleaded in the Amended Statement of Claim that the Defendants had without consent remained in possession of the Property “ever since 23 October 2009”, which is the date the Plaintiff has become the owner of the Property. 38.In the Opening Submissions for the Defendants, the Defendants submitted that the Court should deal with the above inconsistency before hearing the testimony. 39.By a summons filed on 11 July 2018 returnable on 16 July 2018, the first day of the trial, the Plaintiff sought leave to re-amend the Amended Statement of Claim to make clear the Plaintiff’s case that the Defendants were permitted to stay in the Property until around November or December 2014 (“Amendment Summons”). 40.Despite the Defendants’ objection, I granted leave to the Plaintiff to re-amend the Amended Statement of Claim pursuant to the Amendment Summons. My reasons are set out below. 41.In gist, the Defendants submitted that the proposed amendments go to the root of the disputed issue on consent. The Plaintiff’spre-amended case included an admission by the Plaintiff of the Defendants’unauthorized occupation of the Property (“Unauthorized Occupation Admission”) from 23 October 2009 to November or December 2014 “Period”). Unless amended, the Plaintiff will not be able to advance the case of consent in respect of the Period in view of the Unauthorized Occupation Admission. The Defendants submitted that the prejudice to the Plaintiff is self-inflicted and the Court should have no mercy on that.[2] 42.I agree that the Court should have no mercy on self-inflicted prejudice. I also note that in the post-CJR era, delay alone is a ground for dismissing an application. 43.However, in the present case, the Plaintiff’s case on granting consent to the Defendants up to November or December 2014 has been firmly pleaded in his Re-Amended Reply, and Answer to Further and Better Particulars of the Amended Reply. It has also been clearly stated in the Plaintiff’s witness statements. The proposed amendments do not raise any new allegations. Of course, they also do not introduce any new claims. 44.Therefore, I do not find that allowing the amendments would cause prejudice to the Defendants which could not be compensated for by costs. 45.The amendments ought to be allowed for the purpose of determining the real question in controversy between the parties. I therefore allowed the application. 46.Where an application for leave to amend has been resisted butis allowed, the usual order for costs is that there be two sets of costs: namely,costs of and occasioned by the amendments shall be to the other side in any event but costs of the hearing before the court shall be to the party who is successful in the argument as to whether leave to amend ought to be granted. However, the court has discretion to order otherwise.[3] 47.In view of the late application, and the fact that the Defendants’opposition is not unreasonable by reason of such delay, it would be fair that the Defendants be awarded all the above two sets of costs, and the Defendants’ own costs be taxed in accordance with the Legal Aid Regulations. For reference in taxation, the Court spent about one hour on oral hearing in respect of the Amendment Summons. APPLICABLE PRINCIPLES 48.Under sections 7 and 17 of the Limitation Ordinance (Cap 347),actions for recovery of land are statute-barred and one’s title is extinguishedafter 12 years from the date the right of action accrued. The right of actionin turn accrues, and so time begins to run, when the requirements of sections8 and 13 of the Ordinance are satisfied, ie when there is adverse possession. 49.Most of the applicable principles are succinctly set out in the judgment of the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai[1998] 1 HKLRD 241. Elements and burden of proof 50.A person claiming to be in adverse possession has the burden of proving both factual possession and the requisite intention to possess: Wong Tak Yue, 249H. 51.The evidence the person has to adduce must be compelling: WuYee Pak v Un Fong Leung & Others (2004) 7 HKCFAR 498 at 500D–E. Factual possession and absence of owner’s consent 52.To establish factual possession, the occupant has to show a degree of control of the land, with single and exclusive possession.[4] 53.In addition, possession must be “adverse”, ie without the owner’s consent: Shine Empire Ltd v Incorporated Owners of San Po Kong Mansion [2006] 4 HKLRD 1 at 8E–F. 54.Thus, possession under a licence is not adverse. The possession of a licensee is treated as being on behalf of the licensor. In the words of Slade LJ in Powell v McFarlane (1979) 38 P&CR 452 at 469:
55.In the case of land co-owned by two or more persons as tenantsin common, any co-owner has the power to grant a licence to occupy the co-owned property on a non-exclusive basis. Such licence cannot be terminated by the other co-owner(s): Chin Lan Hong & Ors v Cheung Poh Choo & Ors [2005] 3 HKLRD 811 (CA), at 822G – 824H. Requisite intention to possess 56.Even upon termination of a licence, time does not automaticallystart to run. It only starts to run if the occupant has also shown a change of intention from occupying the land respecting the true owner’s ownership to occupying the land intending to dispossess the true owner. In the words of Rogers VP in Cheung Chung Yan v Chan Man Kwong (unreported, CACV 268/2003, 12 February 2004) at paragraph 22:
57.In Cheung Chung Yan, the Court of Appeal disagrees that time automatically starts to run upon the termination of a licence caused bythe death of the licensor. Ma CJHC (as the Chief Justice then was) held, at paragraph 16(2) that “nothing in the evidence demonstrates that as from 1964 [when the licensor died], the defendants had the intention to exclude the true owner (the plaintiff) from the Land.” 58.Similarly, in Jin Yu Chia v Personal Representative of Lee AhHsin (unreported, HCA 1121/2011, 24 April 2017), after referring to WongTak Yue and Cheung Chung Yan, Wilson Chan J held, at paragraph 21, that it is not a correct approach to say that time automatically starts to run for the purpose of limitation of actions upon the termination of a licence. 59.The requisite intention to possess involves the intention to exclude the whole world including the owner: Wong Tak Yue, 250B. 60.The question of intention to possess, as with any other question of intention, is one of fact: Wong Tak Yue, 250H. Intention made clear to the world 61.Moreover, an occupant must not only have the requisite intention to possess, he must also make such intention clear to the world. If the occupant’s acts are equivocal and are open to more 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, he will not be treated as having the requisite intention to possess: Powell v McFarlane (1979) 38 P&CR 452 at 472. Such proposition was cited with approval by the Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at 593G – 593I. 62.Where the occupant had made self-serving statements as to what his intention was, the court should approach them with some skepticism. Conversely, where such statements were against his interest, the court would usually accord to them considerable weight: Wong Tak Yue, 250C–D. THE ISSUES 63.There is no dispute about the possession of the Property by theDefendants (and initially their parents), nor is there any dispute that Wong was a licensee. Thus, the key issues for determination are:
(1) FACTUAL POSSESSION: POSSESSION WITHOUT CONSENT? 64.In the present case, to establish factual possession, absence of the owner’s consent has to be shown: see Shine Empire Ltd at 8E–F. Possession under a licence is not adverse: see Powell at 469. Thus, it is necessary to determine whether the Defendants have (and initially Chang had) been in possession of the Property under a licence at any time after Wong’s demise. 65.It is trite law that a licence or permission may be express or implied.[5] Express licence? 66.I have to determine whether any of the following three heads of express licences asserted by the Plaintiff is established by evidence:
Analysis of the evidence Witnesses 67.Three factual witnesses were called for the Plaintiff. They are the Plaintiff, his mother Beng, and Beng’s friend Yeung Kwok Wai (“Yeung”). 68.Four factual witnesses were called for the Defendants. They are the three Defendants themselves, and their elder sister Wong Shuk Chun (“Chun”). 69.The valuation expert on the rental value of the Property was not called because his single joint expert report is not in dispute. Resolving factual dispute 70.I shall be guided by the general principles set out in Hui Cheung Fai & Another v Daiwa Development Ltd & Others (unreported, HCA 1734/2009, 8 April 2014) at paragraphs 77 to 80 on the proper approach for the assessment of evidence. Contemporaneous documents and inherent likelihood or unlikelihood will be given due consideration. Credibility of the factual witnesses 71.I shall deal with the witnesses in the order in which they were called. Where a witness is found to be unreliable, it does not follow automatically that all of his/her evidence is rejected and vice versa. Beng 72.She is the key witness for the Plaintiff. She is an admirable witness. She is able to recall the details of her conversations. Her evidence stood up to lengthy cross-examination. Her cross-examination lasted for three days for around 15½ hours. It was a memory test on very minute details. It was demanding for a witness at the age of 73. However, her evidence remained unshaken. 73.When the Defendants’ Counsel repeatedly challenged her that she did not mention in her witness statement that she referred, during her visit at the Property on 18 October 2014 (“Admitted Visit”), to Chang’s promise to return the Property upon her death, she stood firm and pointed out that the Defendants’ Counsel was wrong:
74.Paragraph 71 of Beng’s witness statement confirms that Beng is right. The relevant part reads: “Besides their mother (Chang) promised that [the Property] would be turned over to [Beng’s family] upon her death and she told us that her children also agreed.” [10] 75.In fact, in the Closing Submissions for the Defendants, the Defendants accepted that Beng’s oral evidence was generally in accord with her witness statements. They however challenged her credibility on the ground that her ability to recall details of the events that took place many years ago is too good to be true. However, in view of Beng’s ability to withstand the lengthy and fairly tough cross-examination, no adverse inference may be drawn against her out of her ability to recall details of the events that took place many years ago. 76.The Defendants also submitted that Yeung confirmed in his oral evidence that the 1st and 3rd Defendants did not agree to vacate the Property (or even spare a room for Beng) during the Admitted Visit. They submitted that Yeung’s oral evidence firmly rejected/conflicted Beng’s evidence and the Plaintiff’s pleaded case.[11] However, Yeung’s oral evidence is not as stated by the Defendants above. Yeung did say in cross-examination that after Beng’s repeated persuasion, at the end the 1stDefendant agreed to vacate the Property:
77.Yeung’s above oral evidence is consistent with his statement evidence:[13]
78.The Defendants further submitted that contrary to Beng’s evidence, Yeung unequivocally confirmed in cross-examination that (1) Beng had no difficulty in getting to the Property by herself even in 2011;and (2) she did not seek help from Yeung by asking him to bring her there.[15] Again, the above is not an accurate account of Yeung’s evidence. Yeung did say that Beng sought help from him. She only had no difficulty in finding the Property when she was already near the Property:
79.There is no material difference between Beng’s evidence and Yeung’s evidence. There may be minor differences between their evidence but they are largely attributable to details given by Yeung in response to cross-examination. However, none of them gives rise to any concern over Beng’s trustworthiness as a witness. 80.Moreover, some of Beng’s evidence is supported by documentary evidence. The dates and times of the Asserted Visits and phone calls made by Beng to Chang or the 1stDefendant are supported by documentary evidence such as Beng’s travel records issued by the Immigration Department of Hong Kong, copies of passport records and telephone bill records. Each step of transfer of ownership from Chua and ultimately to the Plaintiff is supported by copies of proper transfer documents. The waiver of debts leading to the 2003 DOGs and 2006 DOG is also well documented. 81.As to why, unlike Jerommel and Lawrence, Kim and the Plaintiff did not sign a power of attorney to formalize the asserted licence given by them, Beng explained that at the time they did not know about the 1989 POA. This explanation is supported by contemporaneous document since the 1989 POA is indeed not shown in the receipt of the title deeds. 82.There is however one cross-examination answer given by Beng which may look rather odd at first glance.Beng recalled that during the August 2003 Visit, Kim requested Chang to move out in August or September 2003. Though Chang finally agreed to move out by the end of September 2003, that request could still mean a request to Chang to move out within 10 days by the end of August 2003. Beng frankly admitted that such short notice would be unreasonable but that was what Kim said. She guessed Kim made a mistake. 83.It is wholly unnecessary for Beng to tell the Court that Kim made an unreasonable request. Beng could have kept it to herself without disclosing it. If, as submitted by the Defendants, Beng is a very sophisticated witness, it is highly unlikely that she will undermine her own credibility with such an answer. Hence, I believe the unreasonable request is a genuine mistake of Kim. Beng, being an honest witness, just relayed it to the Court. 84.Further, I do not agree that Kim was cruel (as submitted by the Defendants) even if the request was not a mistake. First, the request was made almost one and a half years after Wong’s demise in February 2002. Second, by mentioning August or September 2003, August sounds more like an option for Chang to choose in case Chang would like to move out early. Third, Chang’s children have long grown up and Kim had to waive substantial debts in acquiring his interest in the Property. Fourth, according to Beng, they (she and Kim) did tell Chang if she needed some assistance from them financially, they could still help her somehow. Also, one should not lose sight of the fact that Hong Kong’s property market was then hard hit by SARS and it was not as difficult as today in finding an alternative accommodation. 85.I find Beng to be a reliable witness. Yeung 86.Yeung is neither a member of Ong’s family nor a member of Wong’s family. He is a former business acquaintance of Beng. His evidence was measured and fair, reflecting his best endeavours to recall events which took place a few years ago. 87.Yeung accompanied Beng to meet Chang at the Property during the 2011 Visit and the 1st and 3rd Defendants during the Admitted Visit. In late November 2014, he had a phone conversation with the 1st and 3rd Defendants. He frankly admitted that he did not know what was discussed between Beng and Chang during the 2011 Visit as he himself had to answer a phone call. 88.The Defendants themselves remarked that Yeung is clearly more straightforward than Beng in answering questions in cross-examination.[17] They submitted that Yeung’s evidence is in blatant conflict with Beng’s evidence in order to challenge Beng’s credibility. However, as explained in paragraphs 76 to 79 above, I do not accept the submission of conflict between their evidence. 89.I also find Yeung to be a reliable witness. The Plaintiff 90.The Plaintiff’s evidence is relatively short since the intended recovery of possession of the Property is mainly handled by Beng for him. The Plaintiff gave evidence in a straightforward manner. 91.As pointed out by the Defendants[18], the Plaintiff candidly confirmed in his oral evidence that he had no personal knowledge of the disputed conversations between his parents on the one hand and Chang and the Defendants on the other about the Chang Licence. 92.When confirming that he gave no consent to the Defendants’ occupying the Property since October 2009, it is clear that he was in fact referring to the position taken by him in the pre-action letters and the Statement of Claim prior to the Amendment Summons. Significantly, he has confirmed that he endorsed the amendments proposed in the Amendment Summons. He frankly admitted that he did not understand the legal niceties but he trusted his lawyers. 93.The Plaintiff produced copies of emails between him and the Inland Revenue Department of Hong Kong (“IRD”), which show that on 19 August 2013, he informed the IRD that “our relatives are living [in the Property] ever since we bought the property and we never charged them rent”. 94.According to the Plaintiff, shortly after the Admitted Visit, Beng told him that “after much persuasion, [the 1stDefendant] agreed that [the Defendants] would move out by the end of 2014”. Though he and his wife were in Hong Kong, he agreed it would not be appropriate for him to accompany Beng to make the Admitted Visit as the Defendants are his elder relatives in the big family. 95.I find the Plaintiff to be an honest witness. Chun 96.Chun is an elder sister of the Defendants. She was born in 1950. 97.As submitted by the Defendants [19], she stated that:
98.She also stated in her witness statement that “[i]n an attempt to save my parents’ marriage, Ong arranged [that the Property] be bought in Hong Kong so that my parents could settle and live together in Hong Kong.” (Emphasis added.) 99.Chun’s evidence was not seriously challenged by the Plaintiff. I do not accept her evidence that Chua was holding the Property for Ong as it is essentially a speculation. I otherwise accept her evidence as highlighted above, which evidence tends to contradict the Defendants’ case that the licence to occupy the Property was only given to Wong. The rest of her evidence is not of much relevance. The 2nd Defendant 100.The 2ndDefendant was born in 1963. He denies the Plaintiff’s case that he was present during the 2009 Visit. He denies all the Asserted Visits. 101.As submitted by the Defendants [21], the 2ndDefendant reiterated that according to his understanding, Ong bought the Property for Wong. He also reiterated that Chang and the Defendants did not require the consent from Ong or Chua to live in the Property. They lived in the Property because they followed Wong (being their husband or father as the case may be). 102.However, the above assertion is contradicted by the evidence of Chun as highlighted above. It is also contradicted by his own statement evidence that the Property was provided to Wong “as a residence for his family” [22], which is different from saying that the Property was provided “as a residence for Wong and it is up to Wong to permit his family members to stay with him”. It is similarly contradicted by the evidence of the 1stDefendant who stated that the Property was “provided to our family as our residence”.[23] 103.I also find it hard to accept the 2nd Defendant’s evidence that Wong was given “full control power over [the Property] by the [1963 POA]”[24] since the 1963 POA only authorized Wong to “let rent out or lease”the Property. No power was given to Wong to sell or encumber the Property. 104.The 2ndDefendant challenged the Asserted Visits as he denieshis presence during the 2009 Visit and finds it strange that only Chang was at home during the Asserted Visits. As to why Kim knew his deformity if he was absent during the 2009 Visit, he explained that Jerommel and Tessie saw him during Wong’s funeral and they could have told Kim about it. As to the 2003 Visit, it was summer vacation and his daughter was only aged six, and he finds it strange that she was not there. In my view, the fact that only Chang was met by Beng and/or Kim at the Property is not a convincing submission that the Asserted Visits are fabricated. 105.In the premises, I do not find the 2ndDefendant to be a reliable witness. The 3rd Defendant 106.The 3rdDefendant was born in 1960. He denies all the Asserted Visits. He was present during the Admitted Visit. Like the 2ndDefendant, the 3rdDefendant made a bold assertion that occupation of the Property by Chang and the Defendants did not depend on any consent from Ong or Chua.[25] 107.As explained above, such bold assertion is contradicted by the evidence of Chun, the 1stDefendant and even the 2ndDefendant’s statement evidence.[26] 108.He even made another, bolder assertion that the Property was Wong’s property. Such assertion is inconsistent with the Defendants’ ownpleaded case. Naturally, he simply could not explain in cross-examination why then the Property was bought in the name of Chua:
109.Moreover, he contradicted himself by agreeing in cross-examination that Wong had to talk to Chua for matters happening in the Property:
110.After much effort of the Defendants’ Counsel, the 3rdDefendant subsequently managed to clarify in re-examination that he gave a wrong answer in saying that Wong had to talk to Chua in respect of the Property. However, he still left unresolved another contradiction, made by him during cross-examination about the 1989 POA, that Wong had to deal with the Property according to the instructions of Jerommel and Lawrence as owners:
111.The above also contradicts the 3rdDefendant’s oral evidence that when he informed Chang of the 1989 POA, Chang expressly stated that even if she was asked to return the Property to Jerommel/Lawrence upon their request, she would not return it.[30] 112.I do not find the 3rdDefendant to be a trustworthy witness. The 1st Defendant 113.The 1stDefendant was born in 1959. She denies all the Asserted Visits. She was however present during the Admitted Visit and talked to Beng or Yeung on the phone subsequently. 114.She asserted that in reply to Beng’s requests made to her and the 3rdDefendant during the Admitted Visit to spare Beng a room in the Property (“Room Request”) and to move out from the Property “for a few months” for Beng to do renovation (“Moving-out Request”), she courteously replied that they would need some time to consider them. 115.She did not directly make the bold assertion that the Property was bought by Ong for Wong. She only said that while she was a student,her parents told her that the Property was bought for Wong and thus Chang and the children naturally lived together with them. As mentioned in paragraph 102 above, she stated in her evidence that the Property was “provided to our family as our residence”. 116.In case of difference between her evidence and that of the Plaintiff’s side, I prefer that of the Plaintiff’s side.The main difference hereis whether after Beng’s repeated persuasion during the Admitted Visit, at the end she did agree to the Moving-out Request. I find that she did agree though probably reluctantly. However, I would not go so far as saying that she lied to the Court in refusing to admit such an agreement. Probably she was very confused during the Admitted Visit. Findings on the express licence 117.It is the Plaintiff’s case that there are three heads of express licences, including the Chang Licence which in turn consists of five asserted licences. The respective licences have effect at different or overlapping periods. It is appropriate to consider each of the licences separately. Where appropriate, they may be regarded as confirmation or continuation of earlier licences. 1989 Licence 118.According to Beng’s evidence, at about the same time as the execution of the 2003 DOGs, she and Kim had a conversation with Jerommel about the Property and the family arrangement with Wong and Chang (“Jerommel Conversation”). Jerommel told them that after he andLawrence became owners in 1989, he talked to Wong. Wong requested tocontinue the arrangement made between Chua on the one hand and he and Chang on the other, on the ground that he and Chang still had no stable income. According to Jerommel, he and Lawrence agreed to continue the said family arrangement. 119.I find the 1989 Licence in favour of the Plaintiff. Apart from Beng’s evidence, my finding is also supported by the 1989 POA, which signified the continued family arrangement to allow Wong’s family to live in the Property by Jerommel and Lawrence. The 1989 Licence was also supported by the consent from Kim since the 2003 DOGs when Kim replaced Lawrence as the other co-owner.[31] In any event, in my view possession under the licence from Jerommel alone is not adverse in view of Chin Lan Hong. It is because such possession could not be regarded as inconsistent with and in denial of the title of another tenant in common whohas no right to terminate the licence given by Jerommel. Adverse possession essentially means possession inconsistent with and in denial of the title of the true owner.[32] The 1989 Licence lasted at least up to 13 July 2006 as Jerommel remained a tenant in common until the 2006 DOG of 13 July 2006. 120.Though Kim once shortened his consent to the end of September 2003 during the August 2003 Visit, that would still not assist the Defendants since this action was commenced on 26 March 2015, ie within 12 years from August 2003. Hence, the 1989 Licence alone reduced the asserted adverse possession of Chang and the Defendants to less than 12 years and their claim must fail. 2002 Licence 121.According to Beng, she was also told by Jerommel during the Jerommel Conversation that Jerommel had informed Chang at Wong’s funeral that she could continue to live in the Property. The Defendants challenged this evidence on the ground that it was not an appropriate time during a funeral to deal with the right to use the Property. However, I do notfind it inappropriate as Jerommel had to let Chang know as soon as possible the family arrangement on her accommodation after Wong’s demise. 122.For the reasons explained in paragraph 119 above, I also find the 2002 Licence in favour of the Plaintiff at least up to 13 July 2006. It was supported by the 1989 POA and the consent from Kim since the 2003DOGs. I also find it reasonable to infer that it had the consent from Lawrence prior to the 2003 DOGs. The finding on the 2002 Licence alone similarly reduced the asserted adverse possession of Chang and the Defendants to less than 12 years and their claim must fail on this ground too. Chang Licence 123.I accept that the Plaintiff has discharged the burden of provingall the Asserted Visits and that express consent was given to Chang to residein the Property until her demise or at least up to the end of September 2003in the case of the August 2003 Visit. I therefore also find the Chang Licence in favour of the Plaintiff. Again, such finding alone reduced the asserted adverse possession of Chang and the Defendants to less than 12 years and their claim must fail on this ground too. Implied licence? 124.In case I am wrong in my finding of an express licence, I shall proceed to consider the question of whether the possession of the Property by Chang and the Defendants was in any event under any implied licence. 125.A preliminary issue that I have to determine is whether the Plaintiff’s pleaded case is solely based on express licence and therefore the Plaintiff is not permitted to rely on implied or other forms of licence as submitted by the Defendants. 126.In Request 25 of the Defendants’ Request for Further and Better Particulars of the Amended Reply, the Defendants requested the Plaintiff to “state the full particulars of as to [sic] how Chang and/or the 1st, 2nd and 3rd Defendants were allowed to occupy the [Property] and each and every licence(s) granted to them if such licence(s) and/or facts relied upon were not pleaded in Paragraphs 2.1–2.23” (“the Request”). 127.The Defendants submitted that the answer provided by the Plaintiff (“the Answer”) to the Request is restricted to express licence, and that the Plaintiff’s pleaded case is therefore restricted to express licence. 128.I disagree. The Request is only in respect of the second sentence of paragraph 4 of the Amended Reply. One should not lose sightof the rest of paragraph 4 of the Amended Reply starting with “The Plaintifffurther avers that:-” (“Further Pleadings”). 129.The Further Pleadings are about the continuance of the familyarrangement, which certainly encompasses implied or other forms of licence:
130.Hence, I do not agree that the Plaintiff’s pleaded case is solely based on express licence. Relying on the Answer to restrict the Plaintiff’s case to express licence is putting the cart before the horse. The Defendants’restrictive approach seeks to avoid the determination of the real question in controversy between the parties. The nature and effect of the family arrangement is a real question in controversy in the present case. 131.Family arrangements and contractual licence in the family context are in general non-commercial. They are commonly characterized by “unexpressed terms” that are made without any discussions at all.[33] 132.The present case is no exception. During cross-examination, the 3rdDefendant himself pointed out that there has never been any express permission since day one to avoid embarrassment:
133.Moreover, on the Defendants’ own case, Beng in fact came andvisited them at the Property on 18 October 2014 during the Admitted Visit. The 1st and 3rd Defendants were at home to receive Beng. It was not a surprise visit as Beng had notified the 1stDefendant of the intended visit one or two days before 18 October 2014.[35] 134.The response from the 1st and 3rd Defendants (“Admitted Response”)[36] to the Room Request and the Moving-out Request is telling. Even on the Defendants’ own case, they did not reject the Room Request or the Moving-out Request during the Admitted Visit. 135.Further, on the Defendants’ own case, when Beng called the 1stDefendant on 29 October 2014 to follow up on the Room Request and the Moving-out Request, she still did not reject them but merely perfunctorily replied that it was difficult to find alternative accommodation to move out (“Subsequent Response”).[37] 136.Given the family context, in my view, the Admitted Responseand the Subsequent Response give rise to the inference that any occupation by the Defendants of the Property will be allowed only for as long as the Plaintiff tolerates it. In such situation, a licence to terminate upon notice can be implied.[38] 137.In the present case, the inference of the above implied licence is further supported by the good relationship between Chang and the Defendants on the one hand, and the true owners (they were at the timeJerommel and Lawrence) on the other as set out in paragraphs 146 and 147 below. As evidenced by the Admitted Visit, the Admitted Response and the Subsequent Response, the Defendants also had a cordial relationship with the Plaintiff up to at least October 2014, and such cordial relationship also supports the above inference. 138.To complete the picture, I also do not accept that initially the licence to occupy the Property was only given to Wong. In my view, it was given to Wong, Chang and their children. As evidenced by Ong’s letters sent to Chang, Ong cared not only about the well-being of Wong but also about the well-being of Chang and their children. He even cared about their children’s marriage and future:
139.It is not in dispute that Ong was in a position to procure Chua to give a licence in favour of Wong, Chang and their children. 140.I therefore find that even if there was no express licence, the possession of the Property by Chang and the Defendants was under an implied licence. Their possession of the Property, at least up to the Subsequent Response, is not adverse. As the period of adverse possession, if any, would then be less than 12 years before the commencement of this action, the defence and the counterclaim based on adverse possession fail. Such finding alone is also sufficient to dispose of this action in favour of the Plaintiff. (2) REQUISITE INTENTION TO POSSESS? 141.In view of the above conclusion on the licence issue, there is no factual possession that lasted for at least 12 years before the commencement of this action. Thus, it is not necessary to determine whether there is the requisite intention to possess. In case I am wrong in my finding on the licence issue, I would as well consider the question of whether the Defendants have (and initially Chang had) shown the requisite intention to possess. 142.In the present case, as the Defendants submitted that their possession has become adverse upon the death of Wong (as a licensee of the then owners Jerommel and Lawrence), they (Chang and the Defendants as the remaining occupants) have to show a change of intention from occupying the Property respecting the true owners’ ownership to occupying the Property intending to dispossess the true owners after Wong’s demise. 143.It is apparent from the Defendants’ pleaded case and their evidence that they simply rely on the continued use and occupation of the Property by Chang and the Defendants as the remaining occupants after Wong’s demise to prove adverse possession. Neither their pleaded case nor their evidence seeks to show a change of intention from occupying the Property respecting the true owners’ ownership to occupying the Property intending to dispossess the true owners after Wong’s demise. There is simply no such evidence, not to mention compelling evidence. 144.According to the 3rdDefendant, “My father passed away on 23 March 2002. Since his death, our family continued to possess and occupy [the Property] without any verbal or written agreement/arrangementwith anyone from Ong’s family”.[39] 145.The respective witness statements of the 1st and 2nd Defendants each contains a passage almost identical to the above passage.[40] 146.At the same time, Chang and the Defendants continued to maintain a good relationship with the true owners or people they thought to be the true owners, ie Jerommel and Lawrence. On the Defendants’ case, they only learnt for the first time on 26 November 2014 about the change of ownership from Jerommel and Lawrence to the Plaintiff.[41] 147.On the Defendants’ own case, in 2002, Jerommel and his wife Tessie attended Wong’s funeral to pay their last respect to Wong.[42] In July 2004, Chang and the 1stDefendant flew to the Philippines to attend the wedding of Jerommel’s son.[43] The 3rdDefendant also attended the wedding.[44] In 2014, Jerommel’s wife Tessie attended Chang’s funeral to pay her last respect to Chang. 148.The poor condition of the Property, and the reluctance of Chang/ the Defendants to spend money on the Property, are more consistent with an absence of the requisite intention to possess. 149.The Defendants have not disputed Beng’s remark that the Property “was in a dilapidated state”.[45] According to the Defendants’ pleaded particulars, the specific items spent on the Property were all incurred for necessary repair or maintenance works, not renovation or improvement works. 150.The two major specific items, namely HK$25,000 incurred in 2003 for “major repair work of the building” and HK$21,076 incurred between 2008 and 2015 for “fire service maintenance fee”, were not even incurred for the maintenance of the Property but were incurred for the maintenance of the common areas of the building (Triumph Court), and were not initiated by Chang or the Defendants but by the Incorporated Owners of Triumph Court. 151.The above sum of HK$21,076 is evidenced by four receipts. Although the three of them that were dated November 2014 to April 2015 (after the Room Request and the Moving-out Request in October 2014) were issued to the 1stDefendant, the first receipt that was dated November 2008 (after Wong’s demise in 2002) was still issued to Chua. The first receipt tends to show that there was no change of intention from occupying the Property respecting the true owner’s ownership to occupying the Property intending to dispossess the true owner after Wong’s demise, and that such change (if any) probably only came after the Room Request and the Moving-out Request in October 2014. 152.The Defendants’ general reference to renovation and improvement works in the pleadings is not particularized and not supported by any documentary evidence. Quite the contrary, the recent photographs of the Property produced by the Defendants show that the Property is shabby and is very much in need of renovation and improvement. 153.Among the documentary evidence produced by the Defendants are four demand letters to the owner/occupant of the Property from the solicitors for the Incorporated Owners of Triumph Court (“IO Solicitors”)for maintenance fee contribution (“Contribution”). Chang and the Defendants defaulted in paying the Contribution. In the final demand dated19 April 2002 (after Wong’s demise), the IO Solicitors threatened to apply to the District Court for a warrant to seize the chattels in the Property and auction them to offset the unpaid Contribution. 154.As mentioned in paragraphs 146 to 153 above, Chang and theDefendants continued to maintain a good relationship with the true owners or people they thought to be the true owners, and they had no incentive to spend money on the Property. The reasonable inference is that neither Chang nor the Defendants had the requisite intention to possess. 155.As in all adverse possession cases, the Defendants sought to show that they (Chang and the Defendants as remaining occupants) occupythe Property to the exclusion of all others. The Defendants therefore furtherasserted that for more than 12 years before the commencement of this action,initially Chang and now the Defendants have kept and are still in exclusive possession of the keys that give access to the Property. 156.However, as observed by Ma CJHC (as the Chief Justice then was) in Cheung Chung Yan, at paragraph 18(1), where the true owner of the land at least occasionally visited the land, not much significance is to beplaced on the fact that Chang had, and now the Defendants have, occupied the Property to the exclusion of all others as such exclusion is consistent with the exclusion at large except the true owner. 157.The Plaintiff asserted that there have been a number of visits. Even though the Defendants only admitted one visit at the Property by Beng(ie the Admitted Visit) after Wong’s demise, there is in principle no materialdifference between a single visit and multiple visits so long as the AdmittedVisit was made by Beng in her capacity as a representative of the true owner. 158.Though the Defendants asserted that at the time they still thought that the true owners were Jerommel and Lawrence, it is beyond dispute that Beng is from Ong’s family. As shown in the witness statement of each of the Defendants mentioned in paragraphs 144 and 145 above, Ong’s family is treated by the Defendants as representing the owners of the Property. The reasonable inference is that the Defendants have associated Beng with the owners of the Property or the owners’ side of the family to say the least. Yet, the 1st and 3rd Defendants had no hesitation in receiving Beng during the Admitted Visit. 159.As mentioned in paragraph 134 above, even on the Defendants’own case, they did not reject the Room Request or the Moving-out Request. The Admitted Response is noteworthy. 160.According to the 1stDefendant, “we courteously replied that we would need some time to consider and [sic] without agreeing to her proposal”.[46] 161.According to the 3rdDefendant, “At that moment, I discussed with [the 1st Defendant] as I did not know how we should react, since all rooms were occupied and there was no spare room. So we courteously replied that we would need some time to consider and did not agree to her request”.[47] 162.The failure to reject the Room Request and the Moving-out Request is even more telling because on the Defendants’ own case “At no time had [Beng] said or hinted that she would let [the 1st and 3rd Defendants]stay temporarily a bit longer after the renovation”.[48] Indeed, during the Admitted Visit, Beng even suggested the 3rdDefendant to move back to the Philippines, saying that he would be better off staying there.[49] 163.The Subsequent Response also tends to show an absence of the requisite intention to possess. 164.The Admitted Response and the Subsequent Response are against the interest of the Defendants. I will accord to them considerable weight: Wong Tak Yue, 250C–D. 165.Hence, on the Defendants’ own case and on the unchallenged evidence alone, I have no difficulty in finding that the Defendants have failed to show the requisite intention to possess. Their acts are equivocal and are open to more than one interpretation. The other obvious possible interpretation is that Chang and the Defendants were still occupying the Property respecting the true owner’s ownership at least up to the Subsequent Response. They have therefore failed to show their intention to exclude the whole world including the owner: see Powell at 472. 166.The above finding on the failure to show the requisite intentionto possess would have also disposed of this action in favour of the Plaintiff. DISPOSITION 167.For the reasons discussed above, I find in favour of the Plaintiff in their claims against the Defendants. 168.The parties have agreed on the calculation of mesne profits. 169.The Plaintiff stated in his written submissions that he does not seek mesne profits or costs against the 4thDefendant if the Court finds in his favour. 170.Accordingly, I order as follows:
171.Costs should follow the event. I therefore order the 1st, 2ndand 3rdDefendants do pay the Plaintiff the costs of the action and the 1st, 2nd and 3rd Defendants’ Counterclaim, to be taxed if not agreed. The 1st, 2nd and 3rd Defendants’ own costs are to be taxed in accordance with the Legal Aid Regulations. There shall be no order as to costs against the 4thDefendant. 172.The above order as to costs is a costs order nisi. It shall become absolute in the absence of any application within 14 days to vary the same. 173.Lastly, it remains for me to thank Counsel for their assistance.
Mr Miranda Li, instructed by Henry Wan & Yeung, for the plaintiff (by original action) and the 1st defendant (by counterclaim) Mr Lincoln Cheung, instructed by Sun Lawyers LLP, assigned by Director of Legal Aid, for the 1st to 3rd defendants (by original action) and the 1st to 3rd plaintiffs (by counterclaim) The 4th defendant (by original action) and the 2nd defendant (by counterclaim) were not represented and did not appear [1] Closing Submissions for the 1st, 2nd and 3rd Defendants, para 52. [2] The Defendants cited Volly Best Investment Ltd v Joinland Holdings Ltd [2018] HKCFI 977, para 51 in support of this proposition. [3] Hong Kong Civil Procedure 2018, Volume 1, para 20/8/51. [4] Megarry & Wade: The Law of Real Property, 8th ed, para 35-017. [5] Megarry & Wade: The Law of Real Property, 8th ed, para 35-016. [6] Witness Statement of Beng, paras 35 – 38 (for the prior discussions between Jerommel and Kim);and Witness Statement of the Plaintiff, paras 6 – 10 (for the prior discussions between the Plaintiffand his parents Kim and Beng). [7] The 2nd Defendant denies that he was present during the 2009 Visit. [8] Yeung is Beng’s friend: see para 67 below. [9] Reproduced from Court transcript. [10] Bundle A of the hearing bundles, page 127, the second and third lines. [11] Closing Submissions for the 1st, 2nd and 3rd Defendants, para 36.5. [12] Reproduced from Court transcript. [13] Witness Statement of Yeung, para 12. [14] Reproduced from Court transcript. [15] Closing Submissions for the 1st, 2nd and 3rdDefendants, para 36.1. [16] Reproduced from Court transcript. [17] Closing Submissions for the 1st, 2nd and 3rd Defendants, para 36. [18] Closing Submissions for the 1st, 2nd and 3rd Defendants, para 38. [19] Closing Submissions for the 1st, 2nd and 3rd Defendants, para 44. [20] Reproduced from Court transcript. [21] Closing Submissions for the 1st, 2nd and 3rdDefendants, paras 51 and 52. [22] Witness Statement of the 2nd Defendant, para 17. [23] Witness Statement of the 1st Defendant, para 14. [24] Witness Statement of the 2nd Defendant, para 17. [25] For example, Closing Submissions for the 1st, 2nd and 3rd Defendants, para 56. [26] See para 102 above. [27] Reproduced from Court transcript. [28] Reproduced from Court transcript. [29] Reproduced from Court transcript. [30] Closing Submissions for the 1st, 2nd and 3rd Defendants, para 56. [31] It is reasonable to infer such consent in view of the finding on the Chang Licence in para 123 below. [32] Megarry & Wade: The Law of Real Property, 8th ed, para 35-016. [33] Kevin Gray & Susan Gray, Elements of Land Law, 5th Ed, paras 10.3.12 and 10.3.13. [34] Reproduced from Court transcript. [35] For example, Witness Statement of the 1st Defendant, paras 25 and 26; and Witness Statement of the 3rdDefendant, paras 29 and 30. [36] See paras 160 to 162 below for details of the Admitted Response. [37] 2nd Witness Statement of the 1st Defendant, para 21. [38] Cheung Chung Yan v Chan Man Kwong (unreported, CACV 268/2003, 12 February 2004), para 16(3). [39] Witness Statement of the 3rdDefendant, para 24. [40] Witness Statement of the 1stDefendant, para 19; and Witness Statement of the 2ndDefendant, para 20. [41] For example, Witness Statement of the 3rdDefendant, para 33. [42] For example, 2ndWitness Statement of the 1stDefendant, para 7. [43] For example, 2ndWitness Statement of the 1stDefendant, para 8. [44] For example, 2nd Witness Statement of the 3rd Defendant, para 8. [45] Witness Statement of the 1stDefendant, para 27. [46] Witness Statement of the 1stDefendant, para 28. [47] Witness Statement of the 3rdDefendant, para 32. [48] 2ndWitness Statement of the 1stDefendant, para 10; and 2ndWitness Statement of the 3rdDefendant,para 10. [49] For example, 2ndWitness Statement of the 1stDefendant, para 11; and 2ndWitness Statement of the 3rdDefendant, para 11. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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