Young Ivy Shui Heung v. Yau Koon Sum and Others

CAMP 184/2018

[2019] HKCA 221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 184 OF 2018

(ON AN INTENDED APPEAL FROM DCCJ 3807/2015)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

Introduction

1.This is a renewed application by the defendants for leave to appeal against the Judgment given by Deputy District Judge Eric Tam (“the Judge”) on 11 May 2018 ([2018] HKDC 500; “the Main Judgment”) and for stay of execution of the Main Judgment pending appeal.

2.After a 5-day trial, the Judge granted a declaration in favour of the plaintiff that the title of the defendants and/or their predecessors-in-title to Lot 580 in DD253, Sai Kung, New Territories (“the Lot”) be extinguished and the plaintiff had acquired possessory title to the same.  On 19 November 2018, the Judge dismissed the defendants’ application for leave to appeal and for stay of execution ([2018] HKDC 1346; “the Leave Decision”).

Background

3.As the parties’ respective cases have already been set out in detail in [2] – [13] of the Main Judgment, we shall not repeat them here.

4.In light of the submissions advanced, we should highlight the successive occupations of the land in question.

5.In early 1970, the plaintiff and her mother allowed her mother’s lover and cohabitee, Mr Chan Yuk Fui (“Chan Senior”), together with his children from another relationship, to live in House No 5, part of which occupied the Lot.  Later in 1970, the plaintiff went to study aboard.  The plaintiff’s mother passed away in 1975, and the plaintiff became the sole beneficiary of her mother’s estate.  House No 5 was subsequently occupied by the eldest son of Chan Senior, Mr Chan Bing Hong (“Chan Junior”), and his wife Madam Tong Siu Lai Amy (“Madam Tong”).

6.Subsequently, a dispute arose between Chan Junior and the plaintiff in respect of the ownership of House No 5. The plaintiff sued Chan Junior in 1994 for recovery of possession. That dispute was settled in 2003 between Madam Tong and the plaintiff after the demise of Chan Junior. The result was that the plaintiff obtained possession of House No 5 (including the Lot).

7.Since then, the plaintiff had possession of the land.

The Main Judgment

8.Both the plaintiff and the 1^st defendant gave oral evidence at trial.  Madam Tong also testified on behalf of the defendants.  The Judge accepted the evidence of the plaintiff and rejected the evidence of Madam Tong and the 1^st defendant. 

9.Accordingly, the Judge accepted the plaintiff’s case.  He found that the plaintiff and her mother had adversely possessed the Lot and that they gave permission for the family of Chan Senior to stay in House No 5.  He also found that, after the passing of her mother, the plaintiff granted a licence to Chan Junior to live in House No 5. The Judge did not accept the contention that the plaintiff’s mother had paid a licence fee to the defendants’ predecessor-in-title, nor did he accept that a licence was ever granted to the plaintiff, or her mother, or the former owner of House No 5.  The Judge further rejected the defence’s case that Chan Junior was in occupation pursuant to a licence or tenancy granted by Yau Kam Shing.

Grounds of appeal

10.In the draft notice of appeal attached to their summons of 3 December 2018, the defendants rely on 4 intended grounds of appeal, which are identical to those already dealt with by the Judge in the Leave Decision.  Those intended grounds of appeal are:

(1)  The Judge erred in finding that the plaintiff had intended to adversely possess the Lot by failing to take into account the facts that the plaintiff went to study aboard without residing at House No 5, that she did not occupy the Lot immediately after her mother passing away, and that she allowed a third party to dispossess her of her occupation.  Referring to JA Pye (Oxford) Ltd & Ors v Graham [2003] 1 AC 419, the defendants argued that the Judge should have held that the plaintiff failed to prove the requisite intention to possess;

(2)  The Judge erred in failing to provide adequate reasons for his inference that the plaintiff had adversely possessed the Lot and in finding in favour of the plaintiff where there was insufficient evidence allowing him to so conclude;

(3)  The Judge erred in rejecting the defendants’ version about his family granting a licence; and

(4)  The Judge failed to consider adequately or at all the overall credibility of the plaintiff when assessing the plausibility of the plaintiff’s assertion.

Legal principles

11.Section 63A(2) of the District Court Ordinance (Cap 336) provides that no leave to appeal shall be granted unless the court is satisfied that (1) the intended appeal has a reasonable prospect of success, or (2) there is some other reason in the interests of justice that the intended appeal should be heard.

12.The threshold for challenging the trial judge’s findings of facts 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 not intervene in relation to such findings unless the appellant can demonstrate to the satisfaction of the court that the findings are plainly wrong: see Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd & Ors CACV 11/2015, 27 November 2015; and ZJW v SY CACV 10/2017, 1 December 2017. A mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category: China Gold Finance Ltd, supra, at [16].

13.In respect of adverse possessory title, a squatter can take the benefit of the adverse possession of another squatter provided that the possession continued with his own possession. There is no need for any assignment of possessory title to achieve that result. So long as the paper title owner has been continuously dispossessed, the last squatter would have acquired a superior title: see Megarry & Wade, The law of Real Property 8^th edn, paragraphs 35-021 & 35-022; Jourdan & Radley-Gardner’s Adverse Possession 2^nd edn at paragraphs 6.51 and 6.52; Ng Lai Sim v Lam Yip Shing HCA 2963/1998, 22 November 1999; Chong Hing Bank v Fairview City Ltd [2018] HKCFI 1732.

Discussion

14.In [18] – [33] of the Main Judgment, the Judge clearly explained in detail why he accepted the plaintiff’s evidence and rejected the evidence of Madam Tong and the 1^st defendant. Other than ground 1 (which we would address below), the other proposed grounds of appeal in substance challenge the judge’s assessment of the evidence and findings of fact.

15.Having considered the submissions of Mr Chan carefully, we are unable to find any basis from those grounds which can meet the high threshold discussed in Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd & Ors CACV 11/2015, 27 November 2015; and ZJW v SY CACV 10/2017, 1 December 2017.

16.In respect of proposed Ground 1, in light of the principle of law set out at [13] above, it is a non-starter. Even assuming that it is debatable that the plaintiff herself were not in possession during parts of the period in question, so long as it is not a discontinuation of the possession adverse to the defendants, the plaintiff as “the last squatter in line” was entitled to the accumulated period of adverse possession.

17.Thus, once the Judge rejected the defence’s case of Chan Junior or Madam Tong occupying the land with the licence or tenancy granted by Yau Kam Shing, the plaintiff would be able to assert the adverse possessory title against the defendants. 

18.Further, at [35] – [36] of the Main Judgment, the Judge rejected the argument that the plaintiff had abandoned the possession of the Lot by pursuing her study overseas or by failing to occupy the Lot soon after the demise of her mother.  The Judge also found that the plaintiff and her mother granted permission to Chan Junior to stay in House No 5.  In this application, the defendants failed to persuade us that there is any error in the analysis of the Judge. 

19.At the hearing, Mr Sunny Chan submitted that since the Plaintiff did not plead her case based on successive occupations there was no inquiry on the intent of Mr Chan Junior if his occupation could be one with the requisite animus possidendi. With respect, the submission cannot get off the ground in view of the finding by the Judge that Mr Chan Junior occupied with the licence of the predecessor-in-title of the defendants and counsel’s own submission that Mr Chan Junior’s possession was adverse to that of the Plaintiff. 

Disposition 

20.In our view, there is no prospect of success in the intended appeal.  Also, there is no reason in the interests of justice that the intended appeal should be heard nevertheless. 

21.For these reasons, we refused to grant leave to appeal.  It follows that the application for stay of execution should also be refused.  We dismissed the defendants’ summons of 3 December 2018 with costs accordingly.

Mr P K Chan, instructed by Jesse H Y Kwok & Co, assigned by the Director of Legal Aid, for the plaintiff

Mr Sunny Chan, instructed by Lo, Wong & Tsui, for the 1^st to 5^th defendants