Sarah Sally Chan Kent (Executrix of the Estate of Ruby Jim Sunyou Alias Ruby Kang You Jim (Nee) Wong, Deceased) v. Chim Sau Ching and Another

HCA 2369/2015

[2019] HKCFI 3066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2369 OF 2015

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JUDGMENT

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A.  INTRODUCTION

1.This cases concerns a piece of land known as Section A of Lot No 1517 in Demarcation District 281 (“the Land”).  The plaintiff, Sarah Sally Chan-Kent (“Sarah”) claims possession of the Land as the legal registered owner thereof.  The 1st defendant, Chim Sau Ching (“Ching”) is a relative of Sarah.  She claims adverse possession of the Land by herself and/or her family members.  Alternatively, she relies on proprietary estoppel, or the equitable principle concerning imperfect gift as set out in Pennington v Waine [2002] 1 WLR 2075.  While denying that Ching or her family members were in possession of the Land at all, Sarah claims that, in any event, they merely occupied the Land as licensees pursuant to express, or implied licences granted by the registered owner of the Land.

B.  THE FAMILY

2.The person who played a central role in this case is Chim Kwok Fan (“CKF”), who was also known as Jim Sun You, Jim Sunyou, Sun You Jim or Chim San Yau.  He was an indigenous villager of the Chap Wai Kon Village at Shatin, New Territories.  He was born on 15 September 1901 and died on 27 March 1981.  He emigrated to Canada when he was about 17 years old.

3.CKF had two wives.  His first wife was Lau Shing Kiu.  They had a biological son called Jim Ping Kwan (“Ben”), who was also known as Chim Ping Kwan, Jim Kwan or Ben Jim.  It is unclear when Ben was born; he died on 12 May 1985.  He lived in Canada.  While it seems that he had some descendants, there is no evidence about them.

4.CKF and Lau Shing Kiu also had an adopted son called Chim Yick Ling (“CYL”), who was also known as Jim Yick Ling or Jimmy Ling.  It is unclear when he was born and died, but it seems that he died in the late 1980s.  His wife was Cheung Koon Tai (“CKT”).  She always lived in Hong Kong. She died on 16 August 1998 at the age of 82.  It appears that CYL emigrated to England when he was young, and had another family there.  CYL and CKT had a son called Chim Kim Hee (“CKH”).  CKH was born on 14 January 1936 and died on 21 September 2017.  CKH married Law Ying Fung (“LYF”), who was born on 20 June 1935, in about 1954.  Ching, born on 29 October 1963, is the daughter of CKH.  She has an elder sister called Jim Sau Lan (born in 1956), an elder brother called Tsim Lo Fat (born in 1958) and a younger brother called Chim Chi Wai (born in 1969).  CKH moved to England in about 1959.  In about 1971, Ching’s mother together with Ching’s elder brother moved to England.  In about 1973, Ching and her elder sister also went to England.  In about 1975, Ching’s parents took her younger brother to England as well.  Ching returned to live in Hong Kong in about 1998.  Since then, CKT and Ching were the only two persons who lived in Hong Kong.  And after CKT died, Ching has become the only one.

5.CKF married his second wife, Ruby Sun You Jim (“Ruby”) also known as Ruby Jim, Ruby Jim Sunyou, Ruby Kang You Jim (nee) Wong in Canada on 8 November 1955 when he was 54 years old.  By then, Lau Shing Kiu had apparently already passed away.  Ruby, who was born in Hong Kong, moved to Canada shortly before her marriage in 1955.  She died on 20 January 1997.  CKF and Ruby had five children including Susan Jim, Gordon Jim (“Gordon”) (born on 4 June 1958), Dennis Jim (“Dennis”) (born on 29 June 1960), Lilly Jim and Sarah (born on 19 July 1963).  Gordon’s wife is Pei Qining (“Pei”), who was born on 12 January 1967.  CKF and Ruby continued to live in Canada until they passed away.  Sarah and her sibling all live in Canada as well.

C. THE LAND

6.The Land is situated at Chap Wai Kon Village, Shatin.  CKF became the legal registered owner of the Land on 17 July 1948.  Upon his death in 1981, Ruby Jim, as the sole executrix of his estate, became the legal registered owner.  Under the last will of CKF made on 30 March 1978, he gave all his estate, which included the Land, to Ruby.  By an assent dated 20 January 1993, Ruby became the legal and beneficial owner of the Land.

7.After Ruby’s death, P, as the sole executrix of her estate, became the legal registered owner.  Under the last will of Ruby made on 23 July 1991, Sarah and her four siblings are the five beneficiaries of her estate, which included the Land.

8.It is common ground that there is now a twin house, which is more accurately described as two semi-detached houses on the Land with the following addresses ie No 6 and No 6A Chap Wai Kon (Old) Village, Shatin, New Territories, Hong Kong (“House 6” and “House 6A”).  There is a dispute whether there are always two houses on the Land, or whether there was originally one house only which was subsequently converted into two houses (and if so, when).

D. THE PARTIES’ RESPECTIVE CASE AND THE ISSUES

D1.  Sarah’s case

9.Sarah’s case is that she is entitled to possession of the Land in her capacity as the legal registered owner thereof.  Her primary contention is that Ching has failed to discharge the burden of proving the two essential elements of adverse possession ie factual possession and the intention to possess.  Among other things, she claims that Ching had acknowledged the title of the legal owner by, firstly, asking Sarah’s siblings to settle outstanding Government rates and rent in 2008; and secondly, asking Gordon for permission to renovate House 6A in about 1992.

10.Further, and in any event, Sarah claims that there could not be any adverse possession because, since about 1970s, CKF granted an oral licence to CKT to reside on the Land until her death because he felt sorry that CYL had abandoned CKT and left Hong Kong for England.  After CKF’s death, the licence was continued by Ruby up to the time Ruby died.  And after that, the licence was continued by Sarah.  After CKT died, she granted a licence to Ching to allow her to reside on the Land until it was revoked by a letter issued by Sarah’s solicitors on 7 August 2014.

11.Sarah claims in the alternative that, if there were no such express licences (“the Express Licences”), there were nevertheless implied licences (“the Implied Licences”), which can be inferred by (a) the good or cordial relationship between Sarah’s family with CKT and Ching; (b) the use and configuration of the Land in the same way at least until 2011; (c)the common understanding between parties or Ching’s clear knowledge that the Land belonged to CKF and then Ruby before the commencement of this action as evidenced by the visits to and stays on the Land by CKF, Sarah and her siblings whenever they returned to Hong Kong; (d) Ching asked Sarah’s siblings to settled the accrued Government rent and rates and for permission to renovation House 6A; and (e) CKF and Ruby’s payment of the renovation of the two houses in about 1977.

D2.  Ching’s case

12.Ching’s case is that, since the time of her grandparents ie CKT and CYL and grand-uncle ie Ben, and later also her father ie CKH, there has been a single continuous possession, jointly and successively, which was adverse to the paper owners:

(a)  CKT had lived on the Land since her marriage to CYL in about 1931 until her death in 1998.

(b)  CKH lived on the Land since his birth in 1936.  LYF also lived on the Land after she married CKH in about 1954 until both of them emigrated to England in about 1959.

(c)  Ching lived on the Land since her birth except for the period between 1973 and 1988 when she was studying in England.  After she returned to Hong Kong in 1988, she has been living on the Land, taking care of CKT until she passed away.  She is still living there.

(d)  In the 1970s at the latest, CKF had the intention to assign the Land to his two sons from his first marriage ie CYL and Ben.

(e)  In about 1976, the single house originally built on the Land was divided into two houses in view of CKF’s intention to give one of them to CYL and the other to Ben.  CKT paid for the works.

(f)  On 4 October 1977, when CKF returned to Hong Kong, he executed a power of attorney (“the 1977 POA”) to CKT to enable her to execute an assignment of the Land in favour of CYL and Ben who were both working abroad at that time.

(g)  After that, CYL, CKT and Ben took the Land as belonging jointly and exclusively to themselves, until CKH (from around late 1977 onwards) and Ching (from around 1987 onwards) also took the Land as belonging jointly and exclusively to themselves.  Since around 1998, Ching has taken the Land as belonging exclusively to her.  The Land has all long been the ancestral home for them and they took the Land to the exclusion of the whole world including the paper owners.

(h)  CKT and Ching had, for the most parts, paid Government rent, and when CKH received a demand letter for Government rates, he applied for exemption.  They paid the utility charges relating to the use of the Land.  Ching had also repaired and renovated House 6 and House 6A.  Further, at various times, they had let House 6A to various tenants.

13.Alternatively, Ching relies on proprietary estoppel.  She contends that, in reliance on the 1977 POA and CKF’s intention to gift the Land to CYL, CYL, CKT and their descendants including CKH and Ching have organized themselves and behaved in the ways she claims including, in particular, expending money on the Land so that it is unconscionable for CKF and his successors in title to deny CYL, CKT and/or their descendants including Ching their title to the Land.

14.Lastly, Ching contends that, although the gift of the Land intended by CKF was incomplete, equity should give effect to it because it would be otherwise unconscionable.  She relies on the same facts in support of her case on proprietary estoppel.

D3.  The issues

15.The primary issue is whether Ching has discharged the burden of proving adverse possession.  Whether CKT, Ching or her family members occupied the Land pursuant to the Express Licences/Implied Licences would have to be considered at the same time.

16.If Ching fails to prove adverse possession, I would then need to consider her case based on proprietary estoppel.  And if that also fails, I would have to consider her case based on the principle in Pennington v Waine.

E.  THE RELEVANT LEGAL PRINCIPLES

E1.   Adverse possession

17.Since Ching’s case is that adverse possession began in 1977, the relevant limitation period is 20 years.  Before 1 July 1991, section 7(2) of the Limitation Ordinance (Cap 347) (“LO”) provided that no action shall be brought by any person to recover any land after the expiration of 20 years from the date on which the right of action accrued to him.  The amendment introduced by the Limitation (Amendment) Ordinance 1991 substituted “12” for “20”.  Section 38A(1), the transitional provision, takes the date when the cause of action accrued as the pivotal point: time for bring an action to recover land shall remain to be 20 years if the cause of action accrued before 1 July 1991, but 12 years if it accrued on or after 1 July 1991 (Tang Moon Lam, the person appointed to represent the estate of Tang Shau Ki v Tang Ying Yeung [2019] HKCA 1102, §§26 – 50).

18.The general principles on adverse possession, which are not in dispute, have been restated recently by Barma JA in Poon Chi Hang v Lai Ho Sun [2019] HKCA 734, §6:

“ ... In brief, to succeed, the adverse possessor must prove both a sufficient degree of factual possession and an intention to possess. The necessary factual possession must be single and conclusive, and it must be exclusive, continuous, open, visible and notorious. It must not be equivocal, occasional, or for a special or temporary purpose. As for intention to possess, this refers to the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title so far as reasonably practicable. Such intention will not easily be established by self-serving statements, but will be a matter of inference from the actions of the adverse possessor in the light of the circumstances of the case. The burden of proving both elements rests with the adverse possessor, and the evidence must be compelling, although the standard of proof is the normal civil standard based on the balance of probabilities. Occupation under a licence or otherwise with the permission of the paper owner does not amount to adverse possession.”

19.Factual possession signifies an appropriate degree of physical control; the question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances (Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd(2007) 10 HKCFAR 588 at 593).

20.The question of intention to possess, as with any other question of intention, is one of fact.  Whether it can be established depends on the assessment of all the circumstances in a particular case (Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997–98) 1 HKCFAR 55 at 69A).  What is required is not an intention to own or even an intention to acquire ownership but an intention to possess (J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 436H, §42).

21.Where a squatter acknowledges the true owner’s title, the acknowledgment, whether oral or in writing, may show, when taken with the other circumstances of the case, that the squatter did not have the intention to possess; or it may show that the squatter was in possession with the licence of or as agent for the true owner (Jourdan, Adverse Possession(2^nd ed), §9-102 at p 221).  Further, a squatter, who makes a request of the owner which treats the owner as being in control of the relevant land, does not manifest the intention to possess.  In Pavledes v Ryesbridge Properties Ltd (1989) 58 P&CR 459, the squatter asked the true owner to repair the fences around the disputed area to keep out trespassers.  Knox J held at pp 480 – 481:

“ This is quite a separate question from the one where there is an acknowledgement such as to start time running afresh. Possession is indivisible, we are told. It seems to me that [the squatter] cannot validly claim himself to be in adverse possession as against persons whom he actively requested to shoulder the responsibilities that possession has. ...”

22.The intention to possess may be established even if the squatter mistakenly believes that the land belongs to him, or that he has the owner’s consent to be there.  Indeed, a mistaken belief of ownership is sufficient for the purposes of intention to possess (Bannerman Town, Millars and John Millars Eleuthera Association v Eleuthera Properties Ltd [2018] UKPC 27 at §51).

23.There is no requirement that the occupier must believe his possession is unlawful.  In Ho Hang-wan v Ma Ting-cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649, the squatters succeeded although they always regarded themselves as licensees, although the licence had been terminated upon the paper owner’s death.  In J Alston& Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 (Ch), HH Judge Hazel Marshall QC held that:

“ 114. This is a case of someone ‘holding over’ after the termination of an actual permission to occupy land. It is axiomatic that where a person remains in possession after the termination of such a licence by its expiry in time, time run against the paper owner licensor, because his right to recover possession accrues at that time.”

24.Further, what is required is an intention to possess for the time being, but not necessarily indefinitely.  It is unnecessary to prove an intention to exclude the paper owner in all future circumstances.  In Buckinghamshire County Council v Moran [1990] Ch 623 at 643, Slade LJ held that:

“ Nevertheless, I agree with the judge that ‘what is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to possess’—that is to say, an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title. No authorities cited to us establish the contrary proposition. The conversation with Mr. Harris, as recorded in the attendance note and the letter of 18 December 1975, to my mind demonstrate the intention of the defendant for the time being to continue in possession of the plot to the exclusion of the council unless and until the proposed by-pass is built. The form of the conveyance to the defendant and of the contemporaneous statutory declaration which he obtained from Mr. and Mrs. Wall, are, of course entirely consistent with the existence of an intention on his part to take and keep adverse possession of the plot, at least unless and until that event occurred.”

25.Possession under a licence is not adverse because, unless and until the licence has been terminated, no right of action to recover the land has ever accrued against the paper owner (Powell v McFarlane (1979) 38 P&CR 452 at 469).

26.Permission may be given unilaterally and does not require acceptance by the licensee (Smith (Personal Representative of Hugh Smith (Deceased) & others v Molyneaux [2016] UKPC 35, §§28 – 30).

27.The owner may give permission orally or in writing and by words or conduct (Smith (Personal Representative of Hugh Smith (Deceased) & others v Molyneaux [2016] UKPC 35, §24).  When permission is given orally or in writing, it would constitute an express licence.  When permission is given by conduct, it would constitute an implied licence.

28.The circumstances in which a licence will be implied have not yet been fully determined (Megarry & Wade, The Law of Real Property (9^th ed, 2019), §7-029 at p 270; Civic Ltd v余綺妙 HCA 225/2011 (28 March 2014, unreported), §§142 – 145). Having said that, it is clear that acquiescence is insufficient to establish implied licence.  In Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd HCA 15824/1999 (11 October 2007, unreported), §127, Lam J (as he then was) held that:

“ Passive acquiescence is not enough to establish implied licence. There must be some overt acts on the part of the licensor referable to a licence having been granted to give rise to an implication by conduct, see R (Beresford) v Sunderland City Council [2004] 1 AC 889, in particular paras 76 to 83.”

29.In Raingate Ltd v Bee Cheng Hiang (Hong Kong) Ltd [2017] 6 HKC 472 at 476, §11, the Court of Appeal held that, although the actual decision in R (Beresford) v Sunderland City Council [2004] 1 AC 889 was held to be wrong and departed from by the United Kingdom Supreme Court in R (Barkas) v North Yorkshire County Council [2015] AC 195, the passages relied on in Kam Lan Koon remain good law.  In Poon Chi Hang v Lai Ho Sun [2019] HKCA 734 at §24, Barma JA held that:

“ In order to establish the existence of a licence or other permission to continue to occupy the flat, it would in my view be necessary to point to some fact that would be probative of such licence or permission having been granted ....”

He also held at §31 that:

“ In my view, these matters, and the behavior of the defendant throughout the period of occupation after the payment of rent had ceased, amounts to at most acquiescence on the defendant’s part in the continued occupation of the flat by Poon Yiu Chung, his family and the plaintiff. It cannot suffice to establish actual permission (whether spoken or otherwise). Mere acquiescence would not prevent such occupation from being adverse.”

30.A revocable licence is automatically terminated by the death of the licensor, and it is not necessary for the licensee to have received notice of the death (Ho Hang-wan v Ma Ting-cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649 at 652A–E).

31.Adverse possession can be jointly held by more than one person.  As DHCJ To explained in Law Po Lin v Hau Kwai Fat & Others [2018] HKCFI 1345, §23:

“ Thus, two or more persons are in joint adverse possession of land belonging to another if they are in physical occupation of the land with the common intention that their possession shall be to the exclusion of everyone else including the paper owner, but not as between themselves. They have effective control over the land as against the whole world. As between themselves, they are entitled to the use and possession of any part of the land but cannot point to any part as his own to the exclusion of the other.”

32.In Bannerman Town, Millars and John Millars Eleuthera Association v Eleuthera Properties Ltd [2018] UKPC 27, the Privy Council held that:

“ 52. Possession of land may be exercised jointly, and vicariously. Where a number of persons are proved to have occupation and use of land together, and the question arises whether they had joint possession of the whole of the land, this will usually turn upon the agreement, arrangement or shared common intention (if any) between them ....

53. There is an element of uncertainty in those authorities whether the requisite mutual meeting of minds must amount to an agreement or to an arrangement, or to a common intention shared between them. It is not necessary that there should be a formal contract. But the mere aggregate of the separate intention of each occupier, which is neither communicated to nor shared with any of the others, will be insufficient. The requirement is for a shared common understanding, sufficient to render multiple occupants of land joint possessors of it. It is quite separate from the general requirement of an intention to possess. Rather, it formed part of the analysis of possession in fact.

54. Possession may be vicarious in the sense that A may occupy land on behalf of B, such that B rather than A is in possession of it .... Vicarious possession may arise where, for example, A is the licensee, agent or agricultural contractor of B.  Again, this will depend upon the existence of some agreement or arrangement between them.”

33.A squatter may also 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 (Young Ivy Shui Heung v Yau Koon Sum & Others [2019] HKCA 221 at §13).

34.Upon the expiry of the limitation period, section 17 of the LO provides that, subject to section 10 thereof which is irrelevant to this case, “the title of that person [ie the person entitled to bring an action to recover the land] to the land shall be extinguished”.

35.Once an owner’s title is extinguished, a subsequent acknowledgement cannot revive it (Sanders v Sanders (1881) 19 Ch D 373 at 379; Chong Yuk Por v Chan Kam Muk [2013] 1 HKC 505, §§19 – 20; Tsang Foo Keung& Another v Chu Jim Mi Jimmy& Others HCA 7140/1995 (12 July 2013, unreported), §113).  Having said that, an acknowledgement of the paper owner’s title after the expiry of the limitation period may be evidence relevant to whether the possessor has the requisite intention to possess during the limitation period (Tsang Foo Keung & Another v Chu Jim Mi Jimmy & Others HCA 7140/1995 (12 July 2013, unreported), §114).

36.The parties have referred me to numerous other precedents on adverse possession.  I do not find it necessary to deal with them in detail.  While they are useful in illustrating how the general principles were applied in different factual circumstances, each case must depend on its own facts.

E2.   Proprietary estoppel

37.In Chan Gordon v Lee Wai Hing [2011] 2 HKLRD 506 at 514, §28, DHCJ Au-Yeung (as she then was) held that:

“ The essential elements of proprietary estoppel are well known. The owner of land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the owner’s property (representation). In reliance upon this belief, the claimant acts to his detriment to the knowledge of the owner (reliance). The owner then seeks to take unconscionable advantage of the claimant by denying him the right or benefit which he expected to receive (detriment). See Megarry and Wade, The Law of Real Property (7th ed., 2008) pp.698–699 and Thorner v Major [2009] 1 WLR 776, per Lord Scott of Foscote.”

38.In Li Kwok Ching v Secretary for Justice HCA 1303/2010 (31 March 2015, unreported), G Lam J considered the law on proprietary estopped in §§91 – 97 of his judgment.  His judgment was upheld on appeal in CACV 88/2015 (13 January 2016, unreported).  In §92 of his judgment, he observed that cases of proprietary estoppel tend to fall into different strands or categories, and one of them is the “imperfect gift” cases.  Pascoe v Turner [1979] 1 WLR 431 is an example of this category.  In that case, as there were no documents supporting the plaintiff’s statement that he had given the house to the defendant, the gift was incomplete.  However, as the plaintiff encouraged or acquiesced in the defendant improving the house in the belief that that the property belonged to her, the court compelled him to give effect to his promise by ordering him to execute a conveyance of the property to the defendant.

E3.   The principle in Pennington v Waine

39.In Pennington v Waine [2002] 1 WLR 2075, Arden LJ held that there may be circumstances in which it would be unconscionable for the donor of an incomplete gift to recall the gift.  He held at §64, pp 2090 – 2091:

“ If one proceeds on the basis that a principle which animates the answer to the question whether an apparently incomplete gift isto be treated as completely constituted is that a donor will not be permitted to change his or her mind if it would be unconscionable, in the eyes of equity, vis-à-vis the donee to do so, what is the position here? There can be no comprehensive list of factors which makes it unconscionable for the donor to change his or her mind: it must depend on the court’s evaluation of all the relevant considerations. ...”

40.The authors of Lewin on Trusts (19^th ed) observed in §3-052 at p 81 that the reasoning of the English Court of Appeal has been criticized.  In Chan Gordon v Lee Wai Hing [2011] 2 HKLRD 506 at 523, §§63 – 66, DHCJ Au-Yeung (as she then was) refrained from basing her decision on the principle of Pennington v Waine.

F.  THE WITNESSES

41.At the trial, Sarah, Gordon, Dennis and Pei gave evidence to support Sarah’s case.  On the other hand, Ching, Tsim Tim Shau (“TTS”), Chim Lai Fan (“Fan”) and Jim Lai Sim (“Sim”) gave evidence to support Ching’s case.  TTS was a villager of Chap Wai Kon Village.  He is now 87 years old.  He left to work in England in about 1971 and returned to settle in Hong Kong in about 1997.  He was the head of the village for 8 years up to March this year.  Fan and Sim are sisters; and Ching’s cousins.  Fan is now about 58 years old whereas Sim is now about 55 years old.  They having always been living at Chap Wai Kon Village.

42.All the witnesses have been crossed examined; in particular, Ching was subject to long and vigorous cross examination by Ms Siu acting for Sarah.  I have considered their credibility carefully bearing in mind all the submissions made by counsel.

43.While there are direct conflicts in the evidence given by some witnesses on some matters, the main difficulty is that the relevant events took place a long time ago, and many persons involved have passed away.  What makes it even more difficult is that there are very few relevant documents; and when documents are available, they are often incomplete and there is also often no clear evidence why they came into existence.

44.It must be difficult for the witnesses to recall clearly what happened in relation to events that took place a long time ago. Their evidence may not be reliable not because they lied deliberately.  I share the same observations made by HH Judge Keyser QC in Moorgate Capital (Corporate Finance) Ltd v H I G European Capital Partners LLP [2019] EWHC 1421 (Comm) at [68]:

“ ... It is not uncommon in the experience of the courts for witnesses to deceive themselves in what are essentially honest but nonetheless false recollections. In determining where the truth lies it is more helpful to focus on objective indicia, both in the documents and in the inherent probabilities, than to rely on evidence as to a witness’s memory, especially when the events in question took place a considerable time ago. (Like many other judges,I find helpful the remarks of Leggatt J in Gestmin SGPS SA v Credit Suisse Securities (Europe) Ltd [2013] EWHC 3560 (Comm) at [15]–[22] and in Blue v Ashley [2017] EWHC 1928 (Comm) at [65]–[69].)”

45.I also find helpful the insightful remarks made by Leggatt J in Gestmin SGPS SA v Credit Suisse Securities (Europe) Ltd[2013] EWHC 3560 (Comm) at [15] – [22]:

“15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been ‘refreshed’ by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.  This does not mean that oral testimony serves no useful purpose—though its utility is often disproportionate to its length.  But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events.  Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

46.I shall now proceed to consider and analyse the facts, and make relevant factual findings insofar as necessary.

G. ANALYSIS OF THE FACTS

G1.  Before 1977

47.I accept Ching’s claim that, even before CKF became the owner of the Land in 1948, her grandparents ie CYL and CKT had lived there since they got married in about 1931.  However, CYL left for England about two years later.  Since then, he only returned to Hong Kong occasionally.  Nevertheless, it is clear that CKT had continued to live on the Land.

48.I also accept that, after Ching’s father, CKH, was born in 1936, he lived on the Land.  After LYF married CKH, she also lived there.  Their elder daughter and son, born in 1956 and 1958 respectively lived there since their birth.  CKH then moved to England in about 1959, leaving behind his mother, his wife and his two children.  The number of persons living on the Land increased after the birth of Ching and his younger brother.  Ching, born in 1963, and her younger brother, born in 1969, lived on the Land since their birth.  In about 1971, Ching’s mother together with Ching’s elder brother moved to England.  Hence, only CKT, Ching as well as her elder sister and younger brother remained living on the Land.  In about 1973, Ching and her elder sister also went to England.  As a result, only CKT and Ching’s younger brother stayed in Hong Kong.  In about 1975, after Ching’s parents took her younger brother to England as well, CKT became the only person staying on the Land.

49.I accept that there was originally only one house on the Land.  However, it is unclear when it had been converted into two houses; or when the two houses became known as House 6 and House 6A respectively.  The survey plan drawn by the then Crown Lands & Survey Office in 1961 shows a line dividing the Land into two halves.  This line might suggest some form of partitioning.  There is no relevant legend on the plan, or any expert evidence on how the line should be properly construed.  Further, Fan gave evidence that there is always only one house on No 8 where she has been living. However, on the survey plans up to 1991, there was a vertical line dividing the land where No 8 is into two halves; the line disappeared in the plan made in 2010.  In the circumstances, I am not satisfied that the line, by itself, proves that there were already two houses on the Land in 1961.

50.Ching, Sim and Fan are all adamant that the house was only converted into two in about 1976 or 1977.  Ching said that, before she went to England in 1973, there was only one house.  Gordon said that he visited the Land for the first time with his late father in 1975; and he recalled that there were already two houses there.  He was 17 years old at that time and had just finished high school.  CKF’s passport shows that he was in Hong Kong between 13 January and 14 February 1975.  Gordon also produced two photos taken in Canada in February 1975 after they returned from Hong Kong.  Ching was not in Hong Kong in 1975.  I accept that Gordon did visit the Land in early 1975.  However, I doubt the accuracy of his recollection as to whether there were already two houses there at that time.  He was there for a short period only; the trip took place about 44 years ago; and he had visited the Land subsequently when it was clear that there were two houses.  Ching, Fan and Sim have been living in the village for a very long time.  It is more likely that they have a more accurate recollection as to approximately when one house became two houses on the Land. In any event, it does not matter much when this occurred.  Ching claims that CKT paid for the related works from monies CKF sent him from England and those distributed by the Tso Tong of the village.  This makes sense because, in about 1976 or 1977, she appears to be the only adult living on the Land.  Having said that, again, it does not matter much who paid for such works.  The critical point is that, on Ching’s case, adverse possession only started later in about late 1977.

51.I need to go back a bit in time.  TTS said that, in about 1969 – 70, CKF returned to Hong Kong to deal with matters relating to resumption of land by the Government.  On that occasion, CKF told him that he (ie CKF) intended to give the Land to his two sons ie CYL and Ben; however, as he needed to return to Canada, he would deal with that the next time he came to Hong Kong.  In the statutory declaration he made on 29 August 2014, TTS said that the conversation between him and CKF took place in about September 1970 (rather than 1969 – 70).  Owing to the long lapse of time, it is understandable why he could not recall the exact time; and I do not regard such discrepancy to be material.  It is true that CKF did not deal with the matter when he returned to Hong Kong again in 1972 or 1975 for unclear reasons.  But it does not follow that he had not expressed such an intention to TTS back in 1969 – 70.

52.By 1969 – 70, CKF was almost 69 years old. It was most natural that he had thought about to whom he should give the Land.  The Land was his ancestral home.  An ancestral home means a lot to an indigenous villager like CKF.  It was customary for indigenous villagers to give their ancestral home to their male descendants.  CKF had two wives; and hence, two families.  There is no evidence that his sons given birth by Ruby, who were born, grew up and lived in Canada, had any intention to return to settle in Hong Kong.  In practice, they would not be a position to take care of the ancestral home in any event.  It was even more unthinkable that the descendants of his sons in Canada would be ready, willing and able to do so.  In the circumstances, it was inherently likely that CKF would consider more appropriate to leave the ancestral home to the two sons given birth by his first wife.  Although Ben had already moved to Canada and there is also no evidence that he or his family had any intention to return to settle in Hong Kong, Ben was nevertheless his first natural son.  On the other hand, CYL, apart from being his adopted son from his first family, had an immediate family member living on the Land ie CKT.  CKT was the person who had been taking care of, and was the one who could look after, the ancestral home in the meantime.  It was also more likely that, because CKT would remain living there, CYL’s descendants (at least, some of them), who were living overseas at that time, would be more willing to return to Hong Kong to look after the ancestral home when CKT became older and after she passed away.

53.While Ms Siu argues that TTS’s evidence is unreliable, it has not been suggested or put to him that what he said was untrue.  For reasons explained above, I accept TTS’s evidence in this respect.

G2.  1977

54.CKF’s passport shows that he returned to Hong Kong on 3 May 1977.  He was given permission to stay for three months up to 3 August 1977; however, he extended the permission once for another three months up to 3 November 1977.  In fact, he left Hong Kong on 14 October 1977.  In short, he stayed in Hong Kong for about five odd months.  This was his last trip back to Hong Kong.  During that period of time, only CKT was living on the Land.

55.There is no doubt that, during his stay in Hong Kong in 1977, CKF arranged extensive renovation and refurbishment works be done in respect of the houses on the Land.  In a handwritten note, he set out the breakdown of the construction costs as well as the particulars of payments.  The total contract sum was HK$111,500.  He paid HK$10,000 on 6 June 1977, HK$10,000 on 22 June 1977, HK$30,000 on 16 July 1977, HK$4,000 on 13 August 1977 and HK$20,000 on 1 September 1977.  Hence, he had paid a total sum of HK$74,000 by 1 September 1977 leaving a balance of HK$37,500.  He then paid HK$20,000 on 7 September 1977 and HK$7,500 on 11 September, thereby reducing the balance to HK$10,000.  On 30 September 1977, he paid HK$5,000.  The remaining balance of HK$5,000 was settled on 8 October 1977, which was six days before he returned to Canada.  There are receipts for these payments issued by one Tsang Yuen stating that they were received from CKF, save that there is no receipt for the payments made on 6 June and 7 September 1977.

56.In a letter dated 10 July 1977, CKF wrote to Sarah as follows: “The house just about ½ finish, cause to get behind due to raining most of the time, and weather is very humid and stinky hot”.  He also stated that he had gone to extend his visa for three months; he had reserved a flight on 3 September 1977 but it would depend on whether the house was finished by then.  In fact, he only returned to Canada on 14 October 1977.  It is clear that he would not leave Hong Kong unless and until he saw the completion of the construction works.  This was obviously a matter of great importance to him.

57.Ching claims that CKT had contributed to some of the construction costs.  She is unable to provide any particulars or evidence.  All the receipts available were issued to CKF.  On CKF’s handwritten note, it was stated expressly that the sum of HK$5,000 paid on 30 September 1977 was by cheque.  The sums were substantial.  It would be quite odd that CKF would ask his daughter-in-law to pay any of the costs.  It was most likely that CKF paid all the costs from monies that he brought back from Canada.

58.The question is why CKF stayed in Hong Kong for such an exceptionally long period of time in 1977; and procured the renovation and refurbishment of the houses on the Land at substantial costs during that period.  It is obvious that he was not doing this for his own benefit, or his family members in Canada.  I believe the most plausible answer is that he did that as part of his plan to carry out the intention to give the Land to his two sons ie CYL and Ben.  He wished to put the houses in good condition before giving them to his two sons.

59.What is most telling is that, on 4 October 1977, he executed the 1977 POA.  That was the time shortly before he settled in full the construction costs and returned to Canada.  The 1977 POA was a standard form document (known as N.T.A. 55 (Revised)).  It provided that CKF “for myself and my executors and administrators” appointed CKT to do all acts set out therein and to execute all necessary documents for a period of three years from 4 October 1977 to 3 October 1977 in relation to the land described in the schedule.  The only land described in the scheduled was the Land.  It conferred very wide and extensive powers on CKT.  CKF also signed on a Letter of Confirmation confirming that he was fully aware that, by executing the 1977 POA, sale may be executed in respect of the Land.  The documents were executed in the District Office Shan Tin.  CKF signed on the 1977 POA and the Letter of Confirmation; CKT put a cross mark as her specimen signature on the 1977 POA; and their signatures were in turn witnessed by an Assistant Land Officer, New Territories.  Stamp duty was paid and a memorial of the 1977 POA was registered in the New Territories Administration on the same day.  The 1977 POA is clearly a serious and important document.  There is no evidence that CKF did not understand what he had signed.  In any event, generally speaking, a person is bound by documents that he has signed.

60.Sarah and her siblings did not know about the existence of the 1977 POA during the lifetime of CKF; Sarah said her father had not mentioned such document at all.  However, Ms Siu seeks to play down its importance by claiming that, firstly, it was related to the construction works.  Such argument does not make sense because CFK paid all the construction costs before he returned to Canada; and it is difficult to see why a power of attorney was necessary for the construction works.

61.More importantly, Ms Siu also submits that the 1977 POA was executed solely for the purpose to facilitate the Government’s resumption of the Land.  I do not accept her submission.  First, there is no evidence that the Government intended to resume the Land at that time.  In fact, there is no evidence that the Government had attempted to resume the Land at any time either before or after the execution of the 1977 POA.  Second, although paragraph (b) of the 1977 POA conferred an express power on CKT to act on behalf of CKF in any proceedings relating to resumption of the Land, it was merely one of the powers given to her.  The Letter of Confirmation made it clear that CKT had the power to sell the Land.  Ms Siu refers to the phrase “or any other land wheresoever situate which the Crown may hereafter grant or agree to grant to me ... in consideration of any agreement or agreements which may hereafter be entered into between the Crown and me ...”.  This phrase merely means that the 1977 POA gave CKT the power to deal not only with the Land but also any other land that the Government may grant to CKF.  As a matter of construction, while the 1977 POA could be used in relation to resumption of the Land by the Government, it is wrong to suggest that it could only be used for such purpose.  Furthermore, if the 1977 POA was executed for such a limited purpose, and if resumption of the Land by the Government was imminent or likely, it is difficult to see why CFK would have chosen to spend substantial sums on renovation and refurbishment works for the houses on the Land.

62.TTS said that, in about 1977, CYL, who was also in England, told him that CKF was returning to Hong Kong to deal with matters concerning the transfer of the Land but as CYL could not return to Hong Kong at the same time, CKF executed a power of attorney in favour of CKT.  I also accept TTS’s evidence in this respect.

63.I take the view that the purpose of CKF’s trip back to Hong Kong in 1977 was mainly to take steps to carry out his intention to give the Land to his two sons.  Hence, he put the houses on the Land in good condition first.  Apparently, he knew that it would be necessary to execute documents in order to assign the Land to his two son as gift.  However, the practical problem was that both of his sons were not in Hong Kong at that time.  To resolve this practical problem, he executed the 1977 POA.  This would enable his attorney ie CKT to execute documents to assign the Land to his two sons when they were back in Hong Kong.  It is unclear why the 1977 POA was for a period of three years only.  However, I note that, in the standard form document, it was intended to be a power of attorney for a fixed period, and it was necessary to fill in a blank stating from when to when it was valid.  The date from which it was valid ie 4 October 1977 was simply the date on which it was executed.  I tend to think that the expiry date of 3 October 1980 was chosen somewhat arbitrarily because CKF believed that the documents for effecting the transfer of the Land to his two sons could likely be executed in three years’ time; and if not, he could execute another power of attorney.  At that time, of course, he could not know that this was his last trip back to Hong Kong and he would die about 3 years and 5 months later in late March 1981.

64.Ms Siu argues that, if CKF truly intended to make a gift of the Land to his two sons, he could have executed a deed of gift unilaterally.  First, the mere fact that there could be another way of achieving the same objective is, by itself, neither here nor there.  Second and more importantly, the evidence does not support that he could have made a gift unilaterally.  When the Land was given to CKF as a gift on 17 July 1948, both the donor and the donee as well as a witness needed to sign on a memorial required to be registered in the District Office, New Territories, at Hong Kong according to the provisions of Ordinance No 1 of 1844 and Ordinance No 34 of 1910.  It was most likely that, if CKF were to executed a deed of gift in 1977, like the 1977 POA, a memorial for a deed of gift would have to be signed by the parties and attested by a witness, and registered in the New Territories Administration at Hong Kong according to the provisions of the Land Registration Ordinance and the New Territories Ordinance.

G3.  1977 to 1981 when CKF died

65.I also find that CKT was aware of CKF’s intention to give the Land to his two sons (ie his husband and brother in law); and that the purpose of appointing her as the attorney under the 1977 POA was to enable her to execute necessary documents to carry out CFK’s intention.  As mentioned, she signed on the 1977 POA by putting a cross on it.  TTS said that, in 1978 when he returned to Hong Kong, CKT told him that CKF had already authorized her to deal with the transfer the Land.

66.Since the execution of the 1977 POA, CKT continued to live at House 6.  It also appears that she used House 6A mainly for storage.  There was probably no change as to how she made use of the Land.

67.Sarah said that, upon CKF’s return to Canada, she heard for the first time his late parents talking about CKT (though she only learnt of CKT’s name much later); CKF told Ruby that he felt sorry for CKT living at his house because his son ie CYL had abandoned her to marry another person and lived in London; he also said to Ruby that he had told CKT that she could stay living in the house on the Land until she died.  I am unable to accept her evidence in this respect.  First, she was only about 14 years old at that time; she said she was unpacking gifts at that time; she did not take part in the conversation, and the conversation did not concern her directly; in the circumstances, I have serious doubts whether she could recall clearly and accurately such a conversation between her parents so long ago.  Second, Sarah did not say she recalled CKF mention anything about the 1977 POA during that conversation with Ruby.  It would be most surprising that CKF did not mention anything about the 1977 POA if they had talked about the Land.  Third, the suggestion that CKF had told CKT that she could live on the Land for life does not sit well with the suggestion that the 1977 POA was executed solely to facilitate resumption of the Land by the Government.  If CKF knew that the Land would be resumed by the Government, it would not make sense for him to reassure CKT that she could live there until she died.  That would be a promise that CKF would probably not be able to keep.  If the true reason for executing the 1977 POA was to facilitate the transfer of the Land to CYL and Ben (as what I have found), it would be unnecessary and also make no sense for CKF to tell CKT that she could live there for life.  Lastly, CKT had been living there for decades after CYL had left for England by then.  There is no evidence that there was any reason why CKT had to worry that she would be evicted from the Land by CKF; or that she in fact had such worry at that time.  In the circumstances, there was no conceivable reason why CKF had to tell CKT expressly and specifically that she may live there until she died.

68.Although I do not accept Sarah’s said evidence, I take the view that, all along and up to that stage, CKT had been living on the Land with the permission of CKF.  She should be regarded as a licensee of CKF.  And, after the execution of the 1977 POA, CKT continued to occupy the Land as a licensee of CKF who remained to be the registered owner thereof.  It is unrealistic to suggest that CKF revoked the licence, or withdrew his permission, to allow CKT to occupy the Land pending the transfer of the Land to CYL and Ben.

69.CKF made his last will on 30 March 1978 a few months after he returned from Hong Kong to Canada.  He left the whole of his estate to Ruby.  But if Ruby died before him or did not survive him by more than 30 days, he would give his estate to his children.  It is worth noting that, in such event, CYL and Ben would only receive CAD 1,000 each.  I take the view that he left nothing or very little to CYL and Ben because he had already given the Land ie the ancestral home to them; and hence, he would leave all his other properties to his wife and children of his second family in Canada.

70.For unknown reasons, CKT did not exercise her power given under the 1977 POA to assign the Land to CYL and Ben or at all before its validity expired on 3 October 1980.  The most likely reason was that CYL and Ben had not returned to Hong Kong during that period.

71.Nevertheless, CKF remained to be the legal owner of the Land up to his death on 27 March 1981.  He died suddenly in his grocery store.  In law, the licence or permission that he had given to CKT to occupy the Land was terminated automatically upon his death.

G4.  After CKF’s death in 1981 to CYL’s death in late 1980s

72.A probate of CKF’s estate was granted to Ruby in Canada on 14 August 1981.  A copy of his death certificate was registered at the Land Registry on 29 October 1985.  A probate of CKF’s estate was only granted to Ruby in Hong Kong on 28 January 1991; and the Land was included in the schedule of property attached to the probate.  The probate was registered at the Land Registry on 19 June 1991. Ruby’s legal title to the Land related back to the time of CKF’s death.  By an assent dated 20 January 1993 (registered at the Land Registry on 8 February 1993), she became the legal and beneficial owner of the Land.

73.CYL must have come to know about his father’s death soon after he passed away.  He must have also realized that his father had not yet assigned the Land to him or Ben.  On 16 February 1982, while he was in London, he executed a general power of attorney to CKT (“the 1982 POA”).  He described CKT as his “wife” who was “residing at 6 Chop Ngai Koon Village, Sha Ting, N.T., H.K.” He appointed her as his attorney with full power to act on his behalf insofar as it concerned his application to the District Officer, Sha Tin for succession to the estate left by CFK in accordance with section 7 of the Power of Attorney Ordinance 1972.  The schedule set out various pieces of land including DD 281 Lot No 1517A.H..  It is clear that 1517A.H. was a clerical error for 1517A.  He signed as the “registered owner”. It is unclear why he executed the 1982 POA and whose idea it was. Nevertheless, the content of the document gives an impression that CYL believed that he was entitled to succeed the Land from CKF.  Such belief was probably based on his knowledge that CKF had promised to give the Land to him and Ben during his lifetime.  Whether such belief was correct in law is beside the point.  Ben was not mentioned in this document.  However, it was possible that CYL believed that, in administering the estate of CKF, CKT as her attorney would procure the assignment of one half of the Land to Ben.  It seems that, after he executed the 1982 POA, he simply put it aside until he brought the document back to Hong Kong a few years later.

74.Gordon said he and Ruby visited the Land during their stay in Hong Kong in 1985.  Ching had not yet returned to Hong Kong by then.  Ruby’s passport shows that she was in Hong Kong between 1 July and 2 August 1985.  Gordon recalled that, when he and Ruby met CKT, Ruby and CKT chatted in Cantonese near the main door of House 6.  With his limited Cantonese, he understood that they exchanged greetings and asked about each other’s health etc.  While they were chatting, he looked around the houses on the Land.  He noted that House 6 was in a better condition than that in 1975 and CKT was living there alone; but House 6A remained in poor condition as in 1977.  The visit lasted for about 15 to 20 minutes.  He further said that, after the visit and while they were still in the village, Ruby briefly told him that she would allow CKT to stay at the house for a long time.  He could not recall other details of the conversation as it was only a very casual one.  I do not accept that Ruby granted an express licence to CKT to stay on the Land on that occasion.  Gordon did not hear Ruby making any statement to such effect to CKT.  Even if Ruby had told Gordon subsequently that she would allow CKT to stay on the Land, it does not follow that she had said so expressly to CKT.  By then, CKT should have already known that CKF had passed away.  It would be extremely odd for Ruby to say expressly to CKT that she may stay on the Land during their brief conversation.  Had she really said so, I would have thought that CKT would have raised queries in view of her understanding that CFK had agreed to give the Land to CYL and Ben. 

75.Ching said that CYL came back for a few months in 1986.  That should be the occasion when he brought the 1982 POA back to Hong Kong.  She said CYL intended to resettle in Hong Kong after his retirement but he had to return to England to wrap up some matters first.  Unfortunately, he passed away in England from a heart attack not too long after that.  CKT never used the 1982 POA.

76.Ching returned to settle in Hong Kong in 1988.  It seems that CYL had already passed away by then.  It is however unclear precisely when that took place.

77.Nevertheless, for the period from CKF’s death in 1981 to CYL’s death in the late 1980s, there is no doubt that CKT remained living in House 6; and since Ching’s return in 1988, she also lived in House 6.  Using House 6 as their residence is clear and sufficient evidence of factual possession.  As to House 6A, I accept that it was mainly used for storing old furniture and other objects which were no longer in use.  Ching said that there were times when House 6A were rented out both before and after she returned in 1988.  When it was rented out, the old furniture, etc, would be moved to one side.  While I would not exclude the possibility that House 6A might have been rented out occasionally, I believe, most of the time, nobody lived there.  This is consistent with Gordon’s observation in 1985 that House 6A was in a poor condition.  Having said that, it does not follow that CKT (and Ching after her return in 1988) was not in factual possession of House 6A.  There is no evidence that anyone else had any control over House 6A; and in fact, they used it for their own purposes.  The mere fact that House 6A could have been better maintained and used is irrelevant.  I hold that CKT and Ching (after her return in 1988), were in factual possession of both houses on the Land during this period.  As to intention to possess, I accept that CKT and Ching believed that the Land was already owned by CYL (in respect of House 6) and Ben (in respect of House 6A) by then; and they also believed that they had the right to stay there as the wife and granddaughter of CYL and were responsible for taking care of the Land.  CKT had either forgotten or failed to appreciate that the legal formalities for transferring the Land had never been completed.  It must be borne in mind that she was an old lady.  It is doubtful whether she had received any education as she could not even write or sign her name on the 1977 POA.  Their belief in this respect coupled with the factual possession that they exercised over the Land are sufficient to infer an intention to possess the Land.  Before Ching returned to Hong Kong and when CKT was living on the Land alone, I take the view that she was in possession of the Land in her own capacity, and also vicariously on behalf of CYL and Ben, whom she believed to be the owners thereof.  After Ching returned to live in House 6, she and CKT were in possession of the Land in their own capacity, and also vicariously on behalf of CYL and Ben.

78.For this period, I have already held that no express licence was given by Ruby to CKT during her trip to Hong Kong in 1985 or at all.  There is also no or insufficient evidence of any positive and overt act by Ruby from which one may infer an implied licence.  All the matters that Ms Siu relies on, even taken together, are equivocal, and consistent with mere acquiescence on the part of Ruby.

G5.  From CYL’s death in late 1980s to Ruby’s death in 1997

79.Gordon said that he visited the Land again in 1992.  He produced a photo of Ching given to him by Ching with her handwritings on the back.  At the top, there was the date “29^th Oct”.  It appears that Ching in fact wrote on 13 October 1992.  She addressed Gordon as “great uncle”, and herself in both her English name, Wendy, and Chinese name, Ching, as his “great niece”.  She said “Glad to know you, you are a very nice guy.  Hope you are going to have a good holiday.”  Gordon said that he stayed in House 6 on that occasion.  He had taken a photo of the roof of House 6 on 14 November 1992.  The conditions of the houses were similar to that in 1985.  What is more important is that he said Ching, whom he met for the first time, asked him for permission if she could do some work regarding House 6A so that she could rent it out; he deliberately did not give her a reply as he was thinking that he had to discuss that with his siblings.  While Ching stated that she could not recall the details, she was sure that she had not asked Gordon for any such permission.  I am not satisfied on a balance of probabilities with Gordon’s evidence on this point.  By then, Ching’s understanding should be that House 6A already belonged to Ben.  There was no reason why, out of the blue, she would ask Gordon for permission.  And if she had really asked, it would be extremely strange that there was no evidence of any follow up.  Further, there is no evidence that any renovation work was done concerning House 6A shortly after 1992.  I believe that, at most, Ching might have mentioned in passing that she had thought about renovating House 6A before renting it out when Gordon asked about it upon seeing that, apparently, House 6A was in a rather poor condition and had not been used.  Gordon said that Ching gave him contact information on a piece of paper.  There is a handwritten note written by Ching which set out her name, Wendy Chim, her address ie 6 Cap Wai Kon Village, Shatin, NT, Hong Kong and her phone number ie 6374457.  The note was undated.  It could be given to Gordon for future contacts.

80.Gordon and Pei said that they had visited the Land together in 1994.  Pei used to live in Guangzhou.  They had a wedding banquet in Guangzhou before coming to Hong Kong.  The then stayed briefly in Hong Kong before returning to Canada to get married formally.  Pei’s passport shows that she was in Hong Kong between 31 May 1994 and 5 June 1994.  They (together with Pei’s cousin) met CKT at the Land.  They stayed for about 30 minutes.  CKT and Gordon (with his limited Cantonese) did most of the talking.  Gordon said that he called Ching in advance, and he and Pei met Ching at Sha Tin New Town Plaza after their short visit to the Land.  Ching denied that she had spoken to Gordon, or met him and Pei.  I do not find it necessary to resolve the dispute on this point as it is immaterial.  I accept that Gordon and Pei had visited the Land briefly in 1994 but nothing about that visit is of real significance.

81.Sarah said that she travelled alone to Hong Kong for about seven days to visit the Land in the fall of 1994/1995.  She got the contact details of Ching from Gordon.  She met both CKT and Ching at the Land.  She said that after she introduced herself, CKT looked a bit concerned and her facial expression seemed to be somewhat uneasy with questions like why she was there, what she wanted etc.  CKT did not speak English and she did not speak the Hakka dialect.  She immediately asked Ching to translate in Chinese that she was there only to see the Land and she was not going to ask her to leave.  She observed that CKT looked relieved after that.  She stayed mostly in House 6 during that brief visit which lasted for about 15 – 30 minutes.  Looking from the outside, it appeared that no one was living in House 6A.  Ching denied that she had met Sarah before 2011.  There is no clear evidence that Sarah was in Hong Kong in 1994/1995.  Even assuming that she visited the Land at that time, I am not satisfied that there was a conversation among her, CKT and Ching as alleged.  At that time, CKT believed that CKF had already given the Land to CYL and Ben.  There was no conceivable reason for her to be concerned upon meeting Sarah.  Further, it was puzzling why Sarah would have said that she was not going to ask CKT to leave the Land; she had no right to ask CKT to leave in the first place as her mother, Ruby, was by then the legal owner of the Land.  Ruby was the only person who had the power to grant a licence or permission to stay on the Land; and there is no evidence that Ruby had instructed Sarah to say anything like that to CKT.  I do not accept that Sarah (on behalf of Ruby) granted any licence to occupy the Land to CKT on that occasion.

82.Both Houses 6 and 6A were previously located within a Designated Village Area and exempt from assessment to Government rates under section 36(1)(c) of the Rating Ordinance.  However, following re-designation, they became liable to rates assessment from 1 August 1994.

83.CKH, CKT’s wife and Ching’s father, completed two Form R1K under the Rating Ordinance on Requisition for Particulars of Tenements: one in respect of House 6 and the other in respect of House 6A. The two forms were issued on the same date on 25 August 1994.  CKH did not date the one concerning House 6 but he dated the one concerning House 6A 12 September 1994.  It was most probable that he completed the two forms at the same time.  In the form concerning House 6, he stated that it was built in 1880 and was first occupied on 6 August 1880; it was wholly occupied by the owner; and it was used by the descendants for self-occupation.  He signed the form as both “owner” and “agent for owner”.  In the form concerning House 6A, he also stated that the house was completed and first occupied in 1880; and it was used as residence.  Although he stated that it was wholly occupied by owner, he also stated that it was first used by a tenant since 1 November 1992 at a monthly rent of HK$2,000.  He also signed as both “owner” and “agent for owner”.

84.These two forms were completed with another set of documents.  In respect of each of House 6 and House 6A, CKH had also completed an application form for rates exemption of village house in the New Territories.  The first page of the form regarding House 6 is missing.  It appears that he had not completed the form properly and completely.  He should not have completed both Parts 3 and 4: he should complete Part 3 only if he was the occupier or the owner (if it was vacant); and he should complete Part 4 only if he was an agent of the owner or the occupier.  But he completed both Parts 3 and 4 on page 2.  In Part 3, he stated that he was an indigenous villager of Chap Wai Kon Old Village.  In Part 4, a fellow villager certified that the applicant was an indigenous villager and that the relationship of the two persons mentioned above was uncle and nephew.  However, it is unclear which two persons he was referring to.  In Part 5 on the same page, it was stated that, for both ground floor and first floor of House 6, they had been used as residence since 1980 to 1994.  It is clear that 1980 must be a mistake for 1880.  In the form concerning House 6A, in Part 2 on page 1, he stated that he was the agent of the owner or the occupier, but in the place where he should state the name of owner or the occupier, he stated his own name and then described their relationship as uncle and nephew.  And again, he completed both Parts 3 and 4 on page 2 in exactly the same manner as in the form concerning House 6.  In Part 5, he stated that both the ground floor and the first floor were vacant between 1945 and 1994.  This is inconsistent with the Form R1K in which he stated that House 6A was first rented out on 1 November 1992.  It is also unclear why he seemed to suggest that while someone was living in House 6A (which was always there since 1880), it had become vacant after 1945.  1945 marks the end of the Second World War.  It might be the case that before the war, some family members actually lived at where House 6A was.

85.Notwithstanding the apparent mistakes made by CKH on these four documents, they shed important light on his state of mind at that time.  It is most telling that he regarded himself as both the owner as well as the agent for the owner; and referred to an uncle nephew relationship.  This could and should be explained on the basis that he regarded himself as the owner of House 6 (as he was the son of CYL who had passed away by then) and the agent of his uncle, Ben, whom he regarded to be the owner of House 6A.  Such view was entirely consistent with his knowledge that his grand-father, CKF, had intended to give the Land to his late father and uncle back in 1977.  What he apparently may not know by then is that Ben had already passed away in 1985.  Ching said CKT told her that it was in around late 1980s or 1990s that she learnt from relatives that Ben had passed away.

86.In fact, House 6 was granted exemption from payment of rates from 1 August 1994.  On the other hand, the application regarding House 6A was not processed since insufficient information was provided by the applicant by request. Hence, rates became payable in respect of House 6A since 1 August 1994.

87.From the time when CYL died in late 1980s up to the time when Ruby passed away in 1997, CKT and Ching continued to live in House 6.  As to House 6A, I believe that it was still most mainly for storage though it may have been rented out from time to time.  Insofar as House 6 is concerned, as CYL had passed away, CKH believed (mistakenly) that he had become the owner thereof.  Such belief was shared by CKT and Ching.  For this period, CKT and Ching were in possession of House 6 in their own capacity and also vicariously on behalf of CKH (instead of CYL).  In respect of House 6A, they continued to believe (mistakenly) that it was owned by Ben; and upon his death, Ben’s descendants.  CKT and Ching were in possession of House 6A in their own capacity and vicariously for Ben’s descendants after his death in 1985.

88.For this period, there is no evidence that the legal owner of the Land, Ruby, had granted any licence to any of the occupiers.  In fact, it seems that, after Ruby’s visit to the Land in 1985, she had never went there again, or even communicated with any of the occupiers of the Land in any way till her death.  I am also not satisfied that, during this period, Ruby or anyone on her behalf, had done any positive and overt act which could be construed as granting an implied licence to CKT or Ching.  As mentioned, this was all along a case of mere acquiescence since CKF’s death.

G6.  From Ruby’s death in 1997 to CKT’s death in 1998

89.Ruby made her last will back on 23 July 1991.  She appointed Sarah as her executor and divided her estate equally among her five children.  After her death on 20 January 1997, Sarah obtained probate of her mother’s estate in Canada on 2 May 1997. But no step had been taken to obtain probate of her estate in Hong Kong, including the Land, until 2015.

90.Ching said that before CKT passed away, CKT told her that, after she died, Ching would be the only family member in Hong Kong; the ancestral home ie the two houses on the Land would be hers.  I do not accept her self-serving statement in full.  It was probable that CKT had instructed her to take care of the houses after her death as Ching would be the only family member remaining in Hong Kong.  However, I do not accept that CKT would go as far as saying that the houses would become hers.  CKT understood that the two houses belonged to her husband, and after his death, his son; and the family of his brother in law, respectively.  It was improbable that she believed she had the right to decide who should succeed the ancestral home.

91.CKT died on 16 August 1998 not too long after Ruby.  For this short period, the only material change is that, according to Ching, CKT moved to live in an aged home/nursery home due to poor health shortly before her death.  Ching said CKT’s health deteriorated in about 1995.  From the time she moved out (which could be even before Ruby had passed away), Ching would be the only person remain in occupation of the Land.  She was in possession of the Land in her own capacity and also vicariously on behalf of CKH and Ben’s descendants.

G7.  From CKT’s death in 1998 to commencement of this action in 2015

92.Gordon and Dennis said that they visited Hong Kong in about November 1998.  Dennis had never visited the Land before.  Hence, they went to visit the houses though they did not live there.  Gordon said that, before the trip, Sarah had asked him to bring a document for Ching to sign.  He did not tell Dennis about that.  He could not find the document but recalled that it was about asking Ching to confirm her use of the Land was with the consent of his family, etc.  However, he forgot to do this when he met Ching.  When Sarah learnt about his oversight after he returned to Canada, she was a bit unhappy.  Sarah said that, as the sole executrix of Ruby’s estate, she prepared such a document for Ching to sign.  Ching said that she only met Gordon and Dennis as well as Pei in a hotel between Tsimshatsui and Jordan in Kowloon, but not at the Land.  This was the only time she met Pei.  There is a photo taken from a distance showing the village.  I believe that Gordon and Dennis had in fact visited the Land.  It was natural that Dennis would like to see the houses of CKF, which could be said to be the “root” of the family.  However, in the absence of any evidence such as photos taken inside the houses or the hotel, or wherever showing the three of them together, I find it difficult to determine whether they met Ching at the Land or in the hotel.  I do not consider this to be a material issue.  I also have serious reservations whether Sarah had instructed Gordon to ask Ching to sign on a document as alleged.  By then, Sarah had not yet obtained probate in Hong Kong regarding Ruby’s estate.  It is unclear what had prompted her to think of asking the occupiers of the Land to sign a document.  She did not know that CKT had already died.  She should have asked CKT, or CKT and Ching together, but not Ching only to sign such a document.  And if she really thought this was something of importance, it seems inexplicable why she did not follow up the matter: she could have called Ching by phone, asking her to sign and return the document by mail or fax.  What is puzzling is that she had not asked Ching to sign any document when she met her in Hong Kong in 2011 (which I will consider in more detail below).  In any event, even on Gordon’s own evidence, no document whatsoever had been shown to Ching on that occasion.  Even if what they said is true, it would not have made any material difference.

93.CKH suffered from a number of chronic medical problems.  According to the medical evidence, by 2006, apart from hypertension and peripheral vascular disease, he was suffering from chronic renal failure and chronic kidney disease.  Ching said that since about 2006, his father stopped returning to Hong Kong due to poor health.

94.As mentioned earlier, Government rates for House 6A became payable since 1 August 1994.  However, neither CKT nor Ching had settled any of the rates payable.  They also failed to pay Government rents, which became payable for both houses since 28 June 1997.  As a result, the Government had brought numerous claims in the Small Claims Tribunal against Ruby, being the registered owner of the Land.  As a result of five judgments obtained by the Government between November 2002 and August 2004, the Government obtained a charging order absolute against the Land on 28 February 2005 in DCMP 4369/2004.  The total sum involved was HK$40,323.50 with interest and costs.  In addition, the Government had obtained another charging order absolute on 2 June 2008 in DCMP 404/2008.  It covered a total sum of HK$26,382.40 plus interest and costs based on seven judgments in the Small Claims Tribunal between April 2003 and May 2007.

95.Ching said that she received letters from the Government addressed to Ruby from time to time.  She usually ignored and threw them away as they were not addressed to her.  She recalled opening a few and found that they concerned outstanding Government rates and rents.  She thought that the sums mentioned were too substantial to be correct.  But as she was busy, she did not follow up the matter.  She came to know about the charging order in DCMP 404/2008 shortly after it was made in mid-2008.  She noted that it was a court document addressed to Ruby but she did not know what it was about.  Hence, she called Gordon’s number in Canada.  However, the person who answered the call was Dennis, who told her that Gordon had already moved.  It is common ground that Ching and Dennis then had a brief conversation.  Apparently, Ching told him that she had received a court document addressed to Ruby concerning Government rates and rents; and she queried why there was such a document.  Gordon had little idea what she was talking about, and hence, asked her to fax the document to him.  Dennis accepted that Ching had not asked her to pay anything during that conversation.

96.It is not in dispute that, in fact, Ching faxed a one paged court document to Dennis.  The fax could no longer be found.  It was likely to be the first page of the charging order.  Dennis tried to call Ching to confirm that he had received the fax.  However, he only managed to speak to a friend of Ching on 26 July 2008 (according to the telephone billing record).

97.On behalf of Ruby, Dennis contacted both the Department of Justice and the Rating and Valuation Department.  He and his siblings then made various payments.  As a result, the charging order in DCMP 404/2008 was discharged on 3 April 2009.  They also found out about the sum due under the charging order in DCMP 4369/2004.  There appeared to be confusions leading to correspondence between Dennis and the Government authorities in 2010 and 2011.  In any event, the charging order in DCMP 4369/2004 was only discharged on 26 January 2016 after the commencement of these proceedings.

98.The question is whether the way Ching handled the Government rates and rents negated an intention to possess the Land.  It is correct that she had neglected paying Government rates and rents for many years.  I am not too impressed by her explanation that she was very busy because she had to work from about 10:30 am till 10 pm.  But the more important point is that she had never asked Dennis, his siblings or Ruby to pay. She said she did not know Dennis had settled them.  What is even more telling is that, not too long after the incident in 2008, as evidenced by numerous demand notes, she had procured the change in the accounting information concerning payment of Government rates and rents of the two houses on the Land to the effect that she became the “registered payer” of the two accounts.  This was a clear indication that she intended to assume the liability to pay Government rates and rents personally.  I note that, after that, there were still delays and failures to pay these liabilities, and she only settled all balances upon legal advice after receiving Sarah’s demand letter dated 7 August 2014 (but before the commencement of these proceedings).  Nevertheless, all in all, I am not satisfied that the way she handled Government rates and rents (though unsatisfactory) negated her intention to possess the Land, or constituted an acknowledgment of the paper owner’s title.  Whether the limitation period has expired by then is, therefore, immaterial though in law, as mentioned, an acknowledgment after the title of the paper owner has been extinguished cannot revive the paper owner’s title.

99.Sarah said she visited the Land and met Ching on 15 October 2011.  She stayed in House 6 for a short time. She also met Ching’s mother who was on a visit from London.  She only found out by then that CKT had already passed away.  Sarah said that, although she had thought about the matter, she did not raise any question about the Land with Ching.  She also took some pictures of House 6.  I see no reason why Ching would or should have stopped her from doing so.  By allowing her to take pictures, it does not in any way imply that Ching acknowledged Sarah to be the owner of the house.

100.Sarah relies on the facts that she, her mother and siblings, had visited and even stayed on the Land on a number of occasions, and had taken pictures as they wished, to support the existence of the Implied Licences.  I do not accept that CKT and Ching allowed them to do so because they knew or believed that they were merely occupying the Land with the permission of the then legal registered owner of the Land.  They did so simply because they knew that Ruby, Sarah and her siblings were close relatives sharing the common root of CKF, and that the Land was CKF’s ancestral home.  It was most natural that CKT and Ching would treat them politely and respectfully when they returned to visit CKF’s ancestral home on those rare occasions.  The fact that CKT and Ching had been using the Land in more or less the same way over the years since CKF’s death did not in any way support the existence of the Implied Licences.  I have already rejected that Ching had ever requested Gordon for permission to renovate House 6A, or that she had asked Sarah’s siblings to pay Government rates and rent for the Land.  As I said earlier, ever since CKF’s death, while the registered legal owner ie Ruby and, after her death, Sarah knew that CTK and Ching were in actual occupation of the Land, they simply acquiesced the latter’s occupation.  I am unable to accept that, at any material time after CKF died, there was any or any sufficient evidence of overt and positive acts in particular by the then registered owner of the Land from which one can infer, on a balance of probabilities, the existence of the Implied Licences.

101.It is significant to note that in 2013, before Sarah issued any demand letter, Ching carried out substantial renovation and refurbishment works concerning House 6A.  She paid a total sum of HK$550,000 to a contractor called Tung Po Hang between 20 May 2013 and 20 October 2014.  Among other things, separate entrances were constructed for the ground floor and the first floor.  It is clear that these works were carried out with the intention of renting out House 6A.  As mentioned, I take the view that, before that, House 6A was used mainly for storage though it might have been rented out occasionally; and the general condition was not good.  It was necessary to put House 6A in a condition suitable for renting out to tenants.

102.It appears that, at the same time, she arranged separate water and electricity meters for House 6A.  Before that, there was only one water meter and one electricity meter on the Land in House 6.  They used to be registered in her father’s name, though it was CKT who paid for these utility charges until about 1995 when her health deteriorated; and after that, Ching took over the responsibility to do so.  She also changed the registered name of the meters to herself at a time which is unclear on the evidence.  Nevertheless, I have no doubt that, all over the years, all utility charges concerning House 6 and House 6A were paid by CKT and Ching.  This fact reinforces that they were all along in possession of the two houses on the Land.

103.After the completion of the renovation and refurbishment of House 6A, as evidenced by various written tenancy agreements and rental receipts, she started to rent out the ground floor and the first floor to two different tenants.  She received all the rental incomes by herself.

104.I believe Ching’s state of mind concerning House 6A had changed, by the latest, in or around 2013.  Her understanding used to be that it should belong to Ben’s family.  She also knew that her father had acknowledged that it belonged to Ben’s family.  However, she had never met Ben or any of his family members.  She did not even know how to contact them.  By 2013, Ben had also passed away for a long time to her knowledge. No descendant of Ben’s descendants had ever visited the Land or approached her.  There was no real chance that any of Ben’s family members would return to Hong Kong and claim House 6A.  At the same time, by then, due to poor health, his father had ceased to return to Hong Kong for almost seven years.  He would not be able to deal with House 6A by himself; and there is no evidence that he had given any specific instruction to Ching in this respect.  In practice, after CKT passed away, she was the only one living in Hong Kong who was ready, willing and able to take care of House 6A.  It appeared that nobody else was interested, or would claim any interest, in House 6A.  It would be a waste if House 6A was not better used.  The renovation and refurbishment of House 6A and the subsequent renting-out show clearly that she intended to take possession of House 6A by herself to the exclusion of Ben’s family members.  She said in court that she is willing to return House 6A if Ben’s family members come back and claim it.  I believe she said this simply to demonstrate her respect for her great grand-father, CKF.  She must know that this is a mere possibility in theory that would not materialize in practice.  I do not believe what she said negates her intention to possess House 6A.  I find that, by the latest, since about 2013, Ching ceased to be in possession of House 6A in her own capacity and vicariously on behalf of Ben’s descendants, but has been in sole possession thereof by herself instead.

105.As to House 6, his father was still alive at this stage.  I take the view that she continued to be in possession thereof by herself as well as vicariously on behalf of CKH.

106.Ching said that, due to poor health, her mother stopped returning to Hong Kong after 2014.

107.Sarah, through solicitors, issued a demand letter on 7 August 2014.  There were subsequent correspondence between the solicitors acting for Sarah and Ching.  Sarah obtained probate of Ruby’s estate in Hong Kong, including the Land, on 24 March 2015.  She commenced this action on 13 October 2015.

G8.  After the commencement of this action

108.CKH passed away on 21 September 2017.  After that, Ching could no longer be in possession of House 6 vicariously for his father.  She became the only one in possession of both House 6 and House 6A.  There is no evidence that her mother or other siblings, who had chosen to settle in England long time ago, have any intention to claim possession of the Land or any part thereof at all.

H. CONCLUSION OF ADVERSE POSSESSION

109.For the above reasons, I hold that, since CKF’s death on 27 March 1981, there was no express or implied licence given by the legal registered owner ie Ruby until her death on 20 January 1997 and after that Sarah to any of the occupiers of the Land.  They mere acquiesced their occupation of the Land.

110.More importantly, I find that since 27 March 1981, the Land has been in adverse possession by various persons who enjoyed factual possession coupled with the intention to possess as follows:

(a)   In respect of House 6, it was in the possession of CKT in her personal capacity and vicariously for CYL.  After Ching returned in 1988, they were in their joint possession in their personal capacities and also vicariously for CYL.  After CYL died in the late 1980s, they were in joint possession in their personal capacities and also vicariously for CKH.  After CKT died on 16 August 1998, it was in the possession of Ching in her personal capacity and vicariously for CKH.  And after the death of CKH on 21 September 2017, it has been in the sole possession of Ching.

(b)   In respect of House 6A, it was in the possession of CKT in her personal capacity and vicariously for Ben initially and after his death on 12 May 1985, his descendants.  After Ching returned in 1988, it was in the joint possession of CKT and Ching in their personal capacities and also vicariously for Ben’s descendants.  After CKT died on 16 August 1998, it was in the possession of Ching in her personal capacity and vicariously for Ben’s descendants.  And , by the latest, since around 2013, it has been in the sole possession of Ching.

111.I appreciate that my findings as to who were in adverse possession of the Land during different periods of time are different from that as submitted by Ching based partly on self-serving statements and subjective belief (probably after seeking legal advice).  I am satisfied that they are findings which are not only open to me, but also the most appropriate ones in the light of all the evidence.  In law, it does not matter so long as the Land has been in adverse possession by occupiers (whether solely or jointly, or vicariously) successively without interruption for a sufficiently long period of time.

112.As time started to run since 27 March 1981, the limitation period expired on 26 March 2001.  No legal action had been commenced by then to cover the Land (as this action was only commenced on 13 October 2015).  The title of the legal registered owner at that time ie Sarah as the executor of Ruby’s estate has thereby been extinguished.  Ching, being the person in possession of the Land at the time of commencement of this action, has acquired the possessory title of the Land.

113.In view of my conclusion on adverse possession, it is unnecessary for me to deal with the alternative cases of Ching.  Nevertheless, for the sake of completeness, I shall deal with them briefly.

I.   CONCLUSION ON PROPRIETARY ESTOPPEL

114.I accept that CKF had made a representation or assurance that the Land would be assigned to CYL and Ben.  However,I am not satisfied that Ching had acted to her detriment in reliance on such representation or assurance.  First, the evidence does not support that her decision to return to Hong Kong in 1988 had anything to do with such representation or assurance.  She relies mainly on the renovation and refurbishment costs she had incurred regarding House 6A in 2013 – 2014.  However, she should understand that the representation or assurance given by CKF was that House 6A would be given to Ben and his family.  There was never any representation or assurance by CKF that Ching would become the owner by herself.  It was quite impossible that what she did in 2013 was in reliance on the representation or assurance made by CKF.  Hence, if necessary, I would have dismissed her claim based on proprietary estoppel.

J.    CONCLUSION ON THE EQUITABLE PRINCIPLE IN PENNINGTON V WAINE

115.Putting aside that the exact scope of the principle propounded in Pennington v Waine is controversial, the facts of the present case are materially different from that case.  Although CKF had executed the 1977 POA, he could have executed an assignment or a deed of gift in escrow in favour of CYL and Ben.  He could also have made specific bequest in his will to give the Land to them to cater for the scenario that the Land could not be assigned to them in time before he passed away.  Further, Ching was not intended to be the donee of the gift of the Land.  The donees were supposed to be CYL and Ben.  There is no suggestion or evidence that she represents the estate of the donees of the intended gift.  CKF had not completed the gift during his lifetime.  I am not satisfied that, had he decided to change his mind and cancel the gift before he died, it would have been unconscionable for him to do so.  If necessary, I would have dismissed Ching’s claim based on such equitable principle.

K. ORDER

116.For the above reasons, I shall dismiss Sarah’s claim against Ching, and make the following declarations:

(a)   the plaintiff’s title to the Land has been extinguished by virtue of section 17 of the LO; and

(b)   the defendant has acquired a possessory title to the Land.

117.I make an order nisi that Sarah shall pay Ching’s costs of this action to be taxed if not agreed.

Ms Jo Siu, instructed by Liau, Ho & Chan, for the plaintiff

Ms Queenie Lau and Ms Jacquelyn Ng, instructed by S T Poon & Wong, for the 1st defendant