Chan Lin Wing v. Chau Chung Leung
Read the full judgment text of DCCJ 3943/2016 on BabelCite. This District Court judgment was delivered on 18 April 2019.
1. This is an adverse possession case concerning part of Lot No 1171 (the “Lot”), in Demarcation District No 96. Under the relevant government leases, the land use of the Lot is agricultural.
Cited by 2 cases · Cites 16 cases
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DCCJ 3943/2016 [2019] HKDC 325 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVL ACTION NO 3943 OF 2016 --------------------------------
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--------------------- JUDGMENT --------------------- BACKGROUND 1.This is an adverse possession case concerning part of Lot No 1171 (the “Lot”), in Demarcation District No 96. Under the relevant government leases, the land use of the Lot is agricultural. 2.The defendant is the current paper owner of the Lot. 3.The plaintiff says he or his predecessors have been in successive adverse possession of part of the Lot (the “Subject Area”) and seeks a declaration that the title of the defendant to the Subject Area has been extinguished by reason of the Limitation Ordinance (Cap 347) (the “Ordinance”) and that the plaintiff has acquired a possessory title to the Subject Area. The plaintiff also seeks an injunction and damages for trespass against the defendant. 4.For identification purposes, the Subject Area is the shaded Area in the plan in Annexure 1. 5.The defendant counterclaims for declarations to the effect that the plaintiff has not been in adverse possession of the Subject Area and that the defendant’s title has not been extinguished by virtue of section 17 of the Ordinance and is the rightful owner of the Subject Area. The defendant also seeks damages for trespass against the plaintiff. 6.It is common ground that the annual rateable value of the Subject Area does not exceed HK$240,000 and that damages for trespass would be well within the jurisdictional limit. THE LAW 7.Section 7(1) of the Ordinance provides for a limitation period of 12 years in an action to recover land. Under the transitional provision ie section 38A, a limitation period of 20 years applies to causes of action which accrued before 1 July 1991: Tsang Wing Kit Eric & Another v Occupiers & Others [2009] 3 HKC 496. 8.Since the plaintiff’s case is that adverse possession occurred some time in 1974 by his predecessors, the relevant limitation period in the present case is thus 20 years. However, the limitation period of 12 years is also relevant as the plaintiff also claims adverse possession by himself from 1992 onwards. 9.The principles concerning adverse possession are well known and have recently been summarized by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527:-
10.HH MK Liu has in Chan Kwong Shing & Another v Ip Foon[2018] HKDC 248; DCCJ 3568/2015 (9 March 2018) further observed (in addition to the basic principles) at §10 as to the assessment of evidence in this type of cases:-
11.I bear in mind and adopt the above principles when assessing the oral evidence of the witnesses in the present case. 12.Mr Ng, Counsel for the plaintiff further submitted that:-
ANALYSIS OF THE PLAINTIFF’S CASE Factual Possession 13.In the plaintiff’s witness statement (which he adopted as his evidence-in-chief), he said that his father (the “Father”) purchased a farm (the “Farm”) in Ma Tso Lung Tsuen (the “Village”) in 1974 for his family to live in. The Farm consists of the Subject Area and its surrounding area. It also consists of government land. A plan showing the area of the Farm can be seen outlined in red in Annexure 1. 14.There is no dispute that the area of the Farm as alleged by the plaintiff consists of both Government land and private land. 15.The plaintiff took over the Farm from the Father in 1992 when he said the Father told him about the history behind how he acquired the Farm. 16.The plaintiff said that the incidence for the Father’s occupation of the Farm is a transfer from a Mr Law to the Father pursuant to an agreement in Chinese dated 7 February 1974 between Law and the Father (the “Chinese Agreement”). 17.The Chinese Agreement reads:-
18.Contrary to the plaintiff’s assertion, from a reading of the Chinese Agreement, what was transferred was only Government land licensed to Mr Law pursuant to licence number [Y]11153 at the time, together with the right to use the structures on such Government land and the farming tools. There was no mention of any transfer of private land by Law to the Father. Likewise, if one looks at the plan for permit Y11153, one can only see the Government land and the structures thereon being delineated and coloured in red, as shown in Annexure 2. 19.From the Crown Land Licence Y21364 granted to the Father dated 12 December 1974, it can be seen the Yuen Long District Office gave permission to the Father to occupy a licence area of 2616 sq ft and about 1.21 ac cultivation land (I do not agree with the plaintiff’s evidence that the Government land only comes to 2616 sq ft. There is clearly also another 1.26 ac of cultivation land included). The agricultural structures permitted on the licence area included a private residence, a chicken shed, a kitchen, an agricultural kitchen and a pigsty. 20.The plaintiff’s evidence was that despite the Chinese Agreement, the Crown Land Licence Y21364 and the plan for permit Y11153, the understanding between Law and the Father was that the transfer not only related to the Government land but also included other private land within the Farm, which was much bigger than the area of Government land licensed as shown in Annexure 1. The rationale given was that otherwise the Father would not have paid the high price of HK$68,000 for the transfer of only the licence to use the Government land and the farming tools. 21.There was no evidence on how much is the current equivalent value of HK$68,000 in 1974, nor was there evidence on what and how many farming tools were included in the purchase price. The court is not in a position and has no basis to draw the inference that the price of HK$68,000 must have included both the Government land as well as private land constituting the Farm area as alleged. 22.Suffice it to say there is no contemporaneous document supporting the plaintiff’s evidence that the transfer pursuant to the Chinese Agreement related to more than the licence to use the Government land as indicated in the plan for permit Y11153. 23.The plaintiff gave evidence that someone alleging to be the private owners of Lot 1149 and Lot 1177 within the Farm had approached them to reclaim their land around 1982 to 1983. The plaintiff said that the Father’s response to them was that he had bought the land and that the land belonged to him. According to the plaintiff these registered owners did nothing afterwards to reclaim the land and they continued in occupation. It is difficult to believe that a registered owner of a piece of land would simply give up ownership of a piece of land upon a bare assertion by the Father. Even assuming that were true, without a declaration that the lands had been adversely possessed and in the absence of a transfer of title, the fact that a registered owner did not take further action does not make the Father the registered owner of these private lots. 24.The plaintiff then recounted how he grew up on the Farm with his siblings and parents from 1974 onwards. He specifically remembered that the Farm was already surrounded by wire mesh fence when they moved in. The Father then reinforced the fence and added a front entrance and a rear entrance. Dogs were also kept for security purposes. 25.The Father also put up metal mesh fences within the Farm to demarcate different areas. The family depended on the Farm for their livelihood. The income of the family predominantly came from ducks and hens rearing. The Farm also produced different vegetables and some fruits for sale. 26.In the early 1980s, the Farm was at the height of its operations rearing nearly 2,000 ducks, 200-300 chickens and 20 pigs. In around 1981, the Father stopped pig rearing and sold off the remaining pigs in the Farm. 27.From 1985 onwards, the children of the family, including the plaintiff, began leaving the Farm. The plaintiff left in about 1985 when he started his secondary education. The rest of his siblings also left the Farm around 1985 and 1986 to live in a flat in Sheung Shui. The plaintiff’s parents continued to live on the Farm and planted vegetables and fruit trees. The number of ducks and hens kept on the Farm gradually decreased. 28.Contemporaneous documents have shown that in June 1991, the Yuen Long District Land Office had asked the Father to demolish the livestock keeping structures within the area covered by the Crown Land Licence No Y21364. 29.The plaintiff then went abroad to study in England and returned to Hong Kong in 1992. The plaintiff’s mother left the Farm around 1998 to live with her children in Sheung Shui as her health deteriorated, leaving only the Father living on the Farm. The Father eventually also moved away from the Farm in 2004 to live in Sheung Shui. 30.Mr Wong, 黃勝歡 gave evidence that he used to live between two houses in the Village which were to the north and south-west of the Farm respectively. As such, he would take a route which is near and along the west side of the Farm to-and-fro the two houses. He would also walk to the bus stop and mini bus stops. These routes were along the south side and the north side of the Farm. It was his evidence that the Farm was enclosed by wire mesh all around and access into the Farm was through a metal gate to the south-east side of the Farm. He used to go into the Farm and played with the plaintiff during their primary school days. His evidence was also that there were reared hens, ducks, pigs and various crops inside the Farm, with a few guard dogs. Mr Wong黃勝歡 had moved out of the Village since he was about 18 years old, but he would go back to visit his parents every month or so. I find Mr Wong黃勝歡 to be an honest and straightforward witness and I accept his evidence. 31.Ms Chan 陳黃歡 gave evidence that she saw the Father move into the Farm with his family around 1974. It was her evidence that the Farm was fenced up and with guard dogs. She lived opposite to the entrance of the Farm and everyone accessing the Farm would need to go through a locked gate. I find Ms Chan 陳黃歡 to be an honest and straightforward witness and I accept her evidence. She moved out of the Farm around 1985 to visit the Father and other neighbours, until about 2000 when she stopped going back to the Village. 32.Ms Chan 陳蓮娥 adopted most of the contents of her brother, the plaintiff’s witness statement. However, this was unsatisfactory as it became clear upon cross-examination that she did not have recollection of much of the details described by the plaintiff in his witness statement. She was however an honest witness who would admit when she could not remember certain details concerning the demarcation of the Farm in the 1970s and 1980s. What she was clear about, and the court accepts her evidence in relation thereto, was the fact that there was a Farm, which was operated by the Father since 1974. The whole family lived on the Farm and depended on the proceeds of the Farm for their livelihood. Ducks and hens were reared on the Farm. Vegetables and fruit trees were also planted for profits. 33.I accept the evidence of i) the plaintiff, ii) Ms Chan 陳蓮娥 (the plaintiff’s sister), iii) Mr Wong 黃勝歡, and iv) Ms Chan 陳黃歡, to the extent that the Father had operated a Farm and had lived on the Farm with his children, including the plaintiff since around 1974 to about 2004. 34.These accounts by and large match the observations of the experts in their respective reports and the joint report. The aerial photos taken between 1979 to 1986 clearly show a track running through the Subject Area. This supports the plaintiff’s evidence that the north-east corner of the Farm was where the trucks would access into the Farm for transporting the hens and ducks for sale. Both experts agreed that fences to certain parts of the Farm could be identified from the various aerial photographs. 35.The aerial photos showed that there were overgrown grasses and shrubs in the Subject Area starting from about 1989-1990 and these were getting dense, until 1995 when they were cleared. Wild vegetation again grew from 1996 to around 2007, until 2008 when the grasses and shrubs to the central part of the Subject Area were cleared. Parts of the farmland diminished in size from about 1995 to 1997 and some land became abandoned from 1998 to 2006. These support the plaintiff’s recounting of the history, that since 1985, the children of the family began leaving the Farm to live in Sheung Shui. The Mother left the Farm around 1998 and then eventually the Father left in 2004. The level of wild vegetation growing on the Farm would be indicative of how much the Farm was still in occupation. Clearly, by the late 1980s, the agricultural activities in the Farm had decreased much from the previous heyday. 36.In the joint statement made by the experts, it was agreed that at least ¼ of the Farm had been used for mixed activities including agricultural activities and human residential activities since 1974. 37.I accept that the Father had physically operated the Farm in the area as indicated by the plaintiff as the area of the Farm in Annexure 1 since 1974. 38.However, even though the Father might have had long physical occupation of the land within the Farm, whether he had had the requisite intention and consequently, possession in law, is a different matter. Requisite Intention 39.The required intention is an intention to possess.
Possession has to be adverse 40.In order to prove possession in law, the plaintiff has the burden to provide compelling evidence that the possession was adverse and not attributable to a license or tenancy (Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498).
41.The Father had passed away and there could be no evidence from him on his intention. All the plaintiff could say was that the Father must have considered the Chinese Agreement as relating to the sale of the whole Farm, rather than just the Government land. I have explained above why I do not accept that there was any basis in support of the assertion. 42.As admitted by the plaintiff, the Farm consists of both Government land and private land. Contemporaneous documents in the form of “Crown Land Licence Fee Receipts” were produced and it could be seen that since 1974, a licence fee of HK$88 had been paid on a yearly basis, pursuant to the provisions in Crown Land Licence Y21364. Annual Crown Land Licence Fee Receipts were produced from 1974 up to the year 1991. There was no evidence on what happened after 1991 except the plaintiff had written to the Yuen Long District Land Office on 14 February 2001, asking for an update of the renewal of the licence application back in 1996. In the letter the plaintiff complained about the lack of progress of the licence renewal application in 1996 by the Father. It is not clear what happened after that. 43.What is clear is that the Father (and the plaintiff) were in possession of the Farm under a clear understanding that certain parts of the Farm were Government land. The Father and the plaintiff must have known, or they are deemed to have known, by payment of the licence fees for at least 17 years, that their occupation and possession of the Government land within the Farm was permitted by the District Land Office on behalf of the Government. With such permission, there can be no suggestion that the Father and/or the plaintiff’s possession of the Government land within the Farm was in any way “adverse”. There can thus be no basis for the plaintiff to assert that the Father’s occupation of the whole Farm was adverse. 44.The plaintiff might argue that the Father had adversely possessed only those part of the Farm that were private land. The difficulty of this argument arises when the plaintiff admitted that prior to the commencement of the present proceedings, neither the Father nor himself had demarcated (by engagement of surveyor or otherwise) which bits of land within the Farm belonged to the Government and which bits of land were privately owned. 45.In any event, this was not an argument raised by the plaintiff. The plaintiff’s case was that if the Court agrees that fences existed, no question arises as to (and thus irrelevant to ask) whether the Farm included and if so how much of Government land was included and where they were in the Farm. The plaintiff said that this was because all that was needed was an intention to exclude, so far as is reasonably practicable and so far as the process of law will allow. Incorporated Owners of San Po Kwong Mansion (2007) 10 HKCFAR 587 46.With respect, the legal principles relied upon by the plaintiff in Incorporated Owners of San Po Kwong Mansion were made on the basis of a trespasser. To simply adopt the legal principles referred therein without regard to the assumption that the person in occupation was a trespasser would be ignoring the requirement that possession needs to be adverse. 47.It was also admitted that it was impossible for the Father or the plaintiff to have identified, whilst in possession of the Farm to have known which parts of the Farm were on Government land and which parts were on private lands. In other words, there was no evidence showing that prior to the commencement of these proceedings, the Father or the plaintiff knew or was conscious of whether the Subject Area was Government land or private land. This is especially so when within the Farm, the Subject Area is enveloped and surrounded by Government land. 48.In the circumstances, I am of the view that the plaintiff has failed to discharge the burden of proving by compelling evidence that the possession of the Subject Area was adverse. Accordingly, I find that the requisite intention was not proven and there was no possession in law. ANALYSIS OF THE DEFENDANT’S CASE 49.As the plaintiff bears the burden of proof, and as I find that the plaintiff has failed to come up to proof on his claim for adverse possession, the defendant is clearly the owner of the Lot and consequentially the Subject Area, being the registered owner of the Lot. “In an adverse possession case, the registered owner is entitled to take the position of requiring the squatter to prove the adverse possession claimed by him. The registered owner is entitled to rely upon the paper title. The registered owner may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof required in establishing a possessory title.” Birkenhead Properties and Investments Ltd v Lam Kai Man, per To J[at 20]However, for completeness I shall consider the defendant’s case, which may be relevant to the extent of his claim for damages for trespass. 50.The defendant said he was the true legal and beneficial owner of the Lot. He said that he bought the Lot in March 2016 from the previous registered owner for a consideration of HK$771,980. Pursuant to the agreement for sale and purchase, there were terms giving vacant possession to the defendant and assigning the Lot to the defendant free from all encumbrances. There was also a declaration to the effect that no other person had any rights or interest in the Lot. 51.The defendant says that a surveyor was instructed in January 2016 to inspect the Lot and it was found that the Lot was vacant and the previous owner had set up a fence surrounding the majority part of the Lot and the adjoining piece of Government land on the northern part of the Lot (the “Combined Land”). The fence had a locked gate on the northern side of the fence. 52.The Assignment of the Lot took place on 18 April 2016. The defendant then proceeded to instruct contractors to remove grass and to conduct other renovation works on the Lot. The defendant’s contractor was stopped from entering the Lot on or about 19 June 2016 by the plaintiff. The plaintiff claimed via his solicitors that he and his family had been in adverse possession of the Lot for over 40 years. 53.Having received no satisfactory evidence of the plaintiff’s assertion, the defendant proceeded to erect a wall on the boundary of the Lot on or about 5 August 2016. The plaintiff reacted by erecting his own metal fence (which was later replaced by another fence a few inches away from the defendant’s wall) surrounding the defendant’s boundary wall, thereby sealing off any entry or access of the Lot by the defendant. 54.Ms Man (文鳳蟬) gave evidence in support of the defendant’s case. She had known the previous owner of the Lot in about 2010, as she used to take care of the previous owner’s mother. Ms Man’s husband and their son rented the Lot from the previous owner for leisure farming in May 2015. Her evidence was that she would visit the Lot several times a month since May 2015 and her husband would visit the farm at least 5 days a week since July 2015. Ms Man’s evidence that she had planted fruit trees on the Lot. 55.In or about June 2015, Ms Man’s husband further set up a management company to manage 8 pieces of land owned by the previous owner. Ms Man was the secretary to the management company and she would take pictures of these 8 pieces of land and store them on a compact disc for the previous owner. The purpose of taking these pictures was to monitor any squatting activities on these lots of land. 56.Ms Man’s evidence was that throughout the time when she was farming on the Lot or when she was taking pictures of the Lot and other lots belonging to the previous owner, she had never run into anyone nor was she disturbed. 57.Ms Man came to know the defendant in or about 2015 as a client of his massage and health club business. As Ms Man learnt from the defendant that he was also interested in leisure farming activities, she then introduced the Lot to the defendant at the beginning of 2016. The defendant eventually agreed to purchase the Lot whereupon Ms Man’s husband and son terminated the rental of the Lot with the previous owner. 58.Mr Wong (黃卡迪) was the contractor engaged by the defendant to carry out works on the Lot after he acquired it. In or about June 2016, Mr Wong engaged 2 workers for about 6 months to carry out works, including clearing off wild vegetation and grass, welding, laying concrete and installing partitions. 59.Mr Wong was first stopped working on the Lot on 19 June 2016 by the plaintiff. Mr Wong left with his workers and the defendant to avoid getting into a conflict. 60.Mr Wong then subsequently continued to work on the Lot in August 2016 but was stopped again on 5 August 2016 by someone claiming to be the owner of the Lot. The Police was called and Mr Wong was advised to leave the Lot to avoid dispute. Mr Wong then attempted to work on the Lot again on 7 August 2016 when he discovered that the previous hoarding that he had put up were surrounded by wire mesh. Mr Wong then called the Police, who again advised them to leave the Lot. 61.The wire mesh were subsequently taken down and removed by the Lands Department in September 2016. However, such wire mesh were once again out up and surrounded the Lot on 15 & 26 September 2016. 62.Mr Wong eventually sent an invoice of wasted costs to the defendant on 3 April 2017 for the expenses incurred for the works and costs incurred on the Lot. 63.I find the defendant, Ms Man and Mr Wong to be overall honest witnesses and I accept their version of events. It is clear from all the evidence that the Farm had to a large extent been out of use since the farming activities stopped around mid-1980s. From 2004 onwards, after the Father also left the Farm, only the plaintiff would visit the Farm occasionally to maintain mostly the residential house within the Farm and the nearby surrounding land. The other siblings would only go back once or twice to the residential house within the Farm to have family gatherings. As admitted by the plaintiff, he did not tend to all parts of the Farm. As seen from the aerial photos leading up to today, the Subject Area was covered with wild vegetation, suggesting that it had been unattended. The Subject Area being in the furthest north-east corner from the residential house, it is thus not surprising that the plaintiff had not noticed any activities carried out by the previous owner, Ms Man and her husband. Trespass 64.As I reject the plaintiff’s claim and hold the defendant to be the rightful owner of the Subject Area, there is little dispute that under these circumstances the plaintiff’s activities on the Subject Area constituted trespass. 65.The defendant had asked for mesne profits since 13 August 2016 at a rate to be assessed. 66.The defendant further claims for reimbursement of payment to Synergy Engineering Co for wasted costs charged to the defendant due to the plaintiff’s wrongful prevention from entry into the Subject Area. 67.The amounts set out in the invoice dated 3 April 2017 are as follows:-
68.I accept the claims as set out in the invoice, except for the deposits paid for the application of electricity meters and water meters, which were accepted by Mr Wong to be refundable upon failure of application. Thus, only a total sum of HK$301,600 would be allowed. CONCLUSION 69.The plaintiff’s claim for possessory title to the Subject Area is dismissed. The plaintiff’s claim for trespass is also dismissed. 70.I will thus make the following orders:-
Mr Ernest C Y Ng, instructed by Wong & Co, for the plaintiff Ms Carol O M Lee, instructed by Lennon & Lawyers, for the defendant
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