Wu Yim Chung v. Lo Wai Ching and Another

DCCJ 4434/2013

[2019] HKDC 1399

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4434 OF 2013

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BETWEEN

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DECISION
(Leave to Appeal)

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1.This is an application issued by the plaintiff (“P”) by way of a summons dated 11 July 2019 for leave to appeal annexed with the draft Notice of Appeal (“Summons for leave to appeal”) against the Judgment handed down by me on 17 June 2019 (“Judgment”). 

2.On 2 August 2019, I directed with the consent of the parties, inter alia, that the Summons for leave to appeal be dealt with on paper without an oral hearing and that the parties’ written submissions be lodged with the court respectively.

3.For convenient purpose, the same nomenclatures used in the Judgment will be adopted below.

Legal principles for leave to appeal

4.The principles governing the threshold for granting leave to appeal are not in dispute.  The applicant needs to show that the appeal has a “reasonable prospect of success” or there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance.

5.On the “reasonable prospect of success” limb, “an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed”: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515 at para 19, per Chu J (as she then was)  In SMSE v KL [2009] 4 HKLRD 125, Le Pichon JA observed that “reasonable prospect of success” involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

6.On reading P’s written submission, it appears that P only relies on the “reasonable prospect of success” limb but not “some other reason” limb.

Ground 1 – error in law by applying the “wrong test” for adverse possession 

7.Mr Leung for P submitted that I erred in applying a single but wrong test in law (para 41 of the Judgment) in coming to the most important conclusion in the Judgement (paras 24 to 40) that P has failed to prove adverse possession for the requisite limitation period.  The wrong test applied by me was, “whether P has done his best to exclude the world at large, including the owner from the Suit Land, so far as is reasonably practicable”: see para 41.

8.As accepted by Mr Leung, I have already acknowledged the correct test in para 14 of the Judgment, namely:

“General principles on adverse possession

14. A recent summary of the relevant law by the Court of Appeal in Tsang Foo (also known as FU) Keung & Anor v Chu Jim Mi Jimmy & Ors, CACV 178/2015 (28 October 2016), at para 22, per Harris J is set out as follows:

i) In order to succeed in claiming possessory title by adverse possession, the claimant must show that he has both the factual possession during the relevant period and the requisite intention to possess.

ii) The requisite factual possession is a sufficient degree of exclusive physical control, and what is sufficient depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

iii) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

iv) …

v) …” (emphasis added)

9.When I continued to say in para 41 of the Judgment that “P has not done his best to exclude the world at large, including the owner, from the Suit Land so far as is reasonably practicable, in particular there is an opening in the Suit Land namely the Southern Entrance without any metal chain, ….”, it is obvious that I focused the view on the animus possidendi element but not physical possession element, and it means that P has failed to prove “the requisite intention” as required.

10.Further, as stated in para 16 of the Judgment as set out below, there is clear authority to support the inclusion of “done his best”. 

“16. The burden of proof on the adverse possessor is a heavy one. Slade J said in Powell v McFarlane & Anor (1979) 38 P&CR 452, p472:

‘An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved.  This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.  The position, however, is quite different from a case where the question is whether a trespasser has acquired possession.  In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts 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, the court will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.’ (emphasis added)”

11.This ground shows no prospect of success.

Ground 2 – error in law in adopting an erroneous approach in assessing P’s evidence

12.Mr Leung for P submitted that I wrongly dealt with the facts and evidence of P’s case (paras 24 to 40 of the Judgment) with the wrong objective of seeking to decide if “P has done his best to exclude the world”. I consider that the 3 main factual issues relating to (i) metal chain; (ii) road/track; and (iii) signboard are clearly relevant to whether P has the requisite intention to exclude the world on the animus possidendi element.  P simply submitted that I wrongly focused on the 3 issues without any reasons in support.  In my view, there is no merit in such complaints since these are all factual findings. It is also worth to mention a passage by Cheung JA in Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 at para 2.1:

“Factual possession and intention to possess are twin requirements for acquiring a title by adverse possession (J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419). It is well established that possession is tied in with the intention to possess. As Lord Browne-Wilkinson at J A Pye (Oxford) Ltd observed at 435 that ‘without the requisite intention, in law there can be no possession’. Whilst the Chus[1] might have long physical occupation of the land from 1963/1964 to 1985 (of which there is no controversy), Chow J held that the 1^st defendant had failed to establish either possession or intention to possess….”

13.This ground shows no prospect of success.

Ground 3 – failure to apply the correct test for “factual possession”

14.Mr Leung for P submitted that I failed to address my mind to the correct test of “sufficient degree of exclusive physical control” regarding the physical possession element.

15.For P to succeed on his claims for adverse possossion, P has the burden to prove both (i) physical possession and (ii) animus possidendi.  Once it is concluded that P failed to prove the animus possidendi element based on the facts finding, P’s claims are bound to be dismissed.

16.This ground shows no prospect of success.

Ground 4 – error in ignoring the undisputed fact that P was previously the registered owner and tenant in occupation of the Suit Land

17.The facts relating to P and his brother being the former registered owners of the Suit Land as well as Luk Ping On on behalf of P’s father and his family rented the Suit Land have been set out from paras 2 to 5 of the Judgment.  It is not justified to say that such facts and evidence are ignored by me.

18.This ground shows no prospect of success.

Ground 5 – error in disregarding facts and evidence which are pertinent to P’s claim for adverse possession

19.Such facts and evidence are not disregarded: see paras 43 and 48 of the Judgment.

20.Further as said in para 3 of the Judgment, from 1988 to 1998, P’s family gradually acquired numerous lands (at least 27 lots) surrounding the Suit Land.  The unchallenged evidence that it was P’s family who maintained and repaired those fences all these years and replaced the wire-mesh fences with hoardings in 2012 is neither here nor there since P may simply want to enclose his own lands which encircle the Suit Land.

21.This ground shows no prospect of success.

Ground 6 – error in relying upon supposition which are speculation, irrelevant, unsupported by evidence and/or contradicted by expert evidence 

22.Mr Leung for P submitted that I erred in law in relying on speculations or irrelevant findings to reject P’s claim: see paras 45, 46, 47 and 52 of Judgment.

23.It is not disputed that the Southern Entrance was blocked in 2004 and that P never said it was blocked by him. Indeed, it is illogic for him to do so since it is his evidence that he installed a metal chain to allow egress and ingress of large construction trucks: see para 26 of the Judgment.  Blockage of the Southern Entrance whether by Madam Kwong or someone else is highly relevant since it would obviously affect and indeed break the continuity of P’s possession in 2004.

24.As the continuity of P’s possession has broken in 2004, I need for the sake of completeness to consider the physical possession and animus possidendi from 2005 onwards till 2013.  As P allowed free or easy access to the owner of the Suit Land or other persons in 2012/2013 (see paras 46 to 49 of the Judgment), P also failed to show that he intended to exclude the world in around 2012/2013.

25.P’s submission that my finding is contradicted by the expert’s evidence is misconceived since Ds’ expert report referring to the aerial photo No. CW55724 dated 4 March 2004 only said “a gate was captured at the southern boundary on Lot 340”.  It must be noted that the expert was referring to “southern boundary on Lot 340”, but not the Southern Entrance as defined in para 24 of the Judgment.

26.This ground has no merit.

Ground 7 – error in making findings which are directly contradicted by unchallenged expert evidence

27.During the examination, Ds’ expert further orally explained to the court with the assistance of the survey sheets as follows:

i. For the year 1999:  The Southern Entrance at the track had no barrier (no gate can be seen).  It is an opening. 

ii. For the year 2002: The Southern Entrance at the road was joined by a solid line.  The solid line is not fencing (the marking used are different) and remains an opening.  The solid line was used because the track turned into a road.  The solid line indicated the boundary of the road.  The opening remains there.

iii. For the years from 2004 onwards: same situation continues.

28.P’s expert also expressly stated in para 11 of his report dated 24 February 2017 that the southern boundary was also fenced as shown in the survey sheets since year 1992 except a small opening next to the temporary structure.  P himself orally alleged installation of metal chain but not a gate at the Southern Entrance: see para 26 of the Judgment.  Based on such evidence, I found that there was an opening in the Suit Land namely the Southern Entrance.

29.This ground has no merit.

Ground 8 – error in applying the decision in Chan San

30.I have dealt with the issues at paras 32 to 37 of the Judgment in details and will not repeat here.

31.Again, this ground has no merit.

Conclusion

32.As all the grounds of appeal do not have any reasonable prospect of success, I order that Summons for leave to appeal be dismissed with costs to Ds, to be taxed, if not agreed.

Mr Adrian Leung, instructed by Wong, Hui & Co, for the plaintiff

Mr Roy Lau, instructed by Lam, Lee & Lai, for the 1^st and 2^nd defendants