Chung Sang v. The Personal Representative of Ho Tam

HCMP 961/2018

[2020] HKCFI 2131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 961 OF 2018

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JUDGMENT

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1.The plaintiff (“P”) claims that he has acquired a possessory title to part of Lot No 424 in Demarcation District No 83 (“Lot 424”), which is coloured brown on the plan annexed to the Originating Summons herein (“the Subject Area”). After perusing the papers, I directed that the Originating Summons would be determined on the papers without an oral hearing.

2.Mr Ho Tam (“Ho”) was the registered owner of Lot 424. Ho has passed away.  By an Order dated 19 November 2019, the Official Solicitor was appointed under Order 15 rule 6A(4) to represent the estate of Ho solely for the purpose of accepting service of the Originating Summons.

3.Pursuant to the said Order, P served the papers in these proceedings on the Official Solicitor on 3 December 2019.  The Official Solicitor acknowledged service of the Originating Summons and indicated that he would not be in a position to oppose or concede to the P’s claim.

4.P’s case as set out in P’s affirmation dated 22 June 2018 is as follows:

(1)     In or about 1971, he met a Mr Wong (“Wong”) who worked in the Fanling San Wai Barracks.  Wong said that he had been allocated a public housing unit in Kwai Chung and so he was willing to sell a wooden living structure (“the Structure”) erected by him on the Subject Area.

(2)     Eventually, P paid a sum of about HK$3,000 to Wong for the purchase of the Structure on the Area in or about 1971.  Since then, the Structure and the Subject Area have been possessed and controlled by P.

(3)     Since about January 1972, P has been supplied with electricity in the Subject Area by CLP Power Hong Kong Limited with the account registered in P’s own name.

(4)     Since about June 1983, P has been supplied with water in the Subject Area by Water Supplies Department (“WSD”) with the account registered in P’s own name.  Prior to the water supply from the WSD, P had built a well nearby the Structure to obtain water for residential purpose and basic needs.  P still keeps and retains the said well.

(5)     Between about 1972 to about 1982, P was running a mini-store on the Subject Area, selling drinks, cigarettes, groceries and snacks to the villagers and primary students nearby.

(6)     In about mid-80s, the Government started to levy rates on the Subject Area.

(7)     In about 1983, the Structure on the Subject Area became very old and dilapidated.  P therefore repaired the Structure at his own costs and made it a metal-sheet house.  P also erected fence along the perimeter of the said metal-sheet house.  P is still in possession of the said metal-sheet house.  There are specific remarks on the metal-sheet house painted by the Government for the purpose of identification.

(8)     Since the occupation and possession of the Subject Area by P from about 1971, nobody has ever queried P on his right or title to use and occupy any part or the whole of the Subject Area or has asserted any title against P or made any demand on P in relation to any part or the whole of the Subject Area or the use of the same by P.

(9)     Throughout the period in which P has been in exclusive possession and occupation of the Subject Area, P intends to occupy and use the Subject Area as if the same is his own property, to the exclusion of the world at large, including the paper title owner.

(10)     By reason of the aforesaid, P claims that he has established a possessory title to the Subject Area.

5.P has produced a surveyor’s report in support of his claim.  In the said report, after reviewing the relevant survey sheets from 2002 to 2017 and the relevant aerial photos from 2001 to 2017, the surveyor takes the view that there is evidence showing a temporary structure on the Subject Area since 2001.  The surveyor has produced some photos taken on 3 May 2018 (“the Photos”) in the report.  From the Photos, it can be seen that a well-maintained metal-sheet house is on the Subject Area, and the house is surrounded by fence. 

6.The principles concerning adverse possession are well established. A useful summary can be found in Tsang Foo Keung v Chu Jim Mi Jimmy^[1], in which Harris J (Cheung JA and Yuen JA concurring) said: -

“22. Before explaining the Judge’s reasons for rejecting the 1^st defendant’s case it will be helpful to summarise the basic principles of adverse possession: -

(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

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

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

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

(6)  If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.”

7.Exclusive possession of the land by the person claiming adverse possession bears significance, as this is relevant to both the requisite factual possession and the requisite intention to possess.  As said by Lam VP in Gotland Enterprises Ltd. v Kwok Chi Yau^[2]:

“32. …… Legal possession could only be established when both elements are present. In our judgment, the exclusion of other persons has significance both in relation to the character of the physical occupation and the requisite intent. Thus, in Powell, Slade J alluded at the end of the paragraph cited above to no-one else had done so. Likewise, Lord Hutton in JA Pye referred to using the land in a way in which the owner was excluded.

33. This is not to re-introduce the concept of ouster disavowed by Lord Browne-Wilkinson in JA Pye at paragraph 38. Rather it stems from the undoubted proposition that possession is single and exclusive. As said by His Lordship in that paragraph:

‘Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have ‘dispossessed’ the true owner …’

34. After rejecting the notion that the squatter must have a positive intention to exclude the owner, at paragraph 43 of JA Pye Lord Browne-Wilkinson endorsed the formulation by Slade J in Powell:

‘ … Slade J reformulated the requirement (to my mind correctly) as requiring an ‘intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.’

35. The significance of physical exclusion of the owner was further alluded to by His Lordship at paragraph 45, after rejecting the dicta of Bramwell LJ in Leigh v Jack5 Ex D 264:

‘The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.’ (our emphasis)

36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so.  In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”

8.The evidence given by P in his affirmation is supported by the documentary evidence produced by him.  I have not seen any photo showing the Structure.  However, I have seen the Photos, which show the metal-sheet house and the fence erected by P in about 1983.  Looking at the Photos, one can understand that the entire Subject Area is in fact covered by the metal-sheet house and surrounded by the fence erected by P in about 1983. In these circumstances, P would at least have been in exclusive possession of the entire Subject Area since about 1983.  The exclusive possession is cogent evidence in support of the requisite factual possession and the requisite intention to possess in relation to the adverse possession claimed by P.

9.Based upon the evidence before the Court, at the very least, P has been in adverse possession of Subject Area since about 1983.   From about 1983 until the commencement of these proceedings on 22 June 2018, more than 20 years have elapsed.  In my judgment, P has made out his adverse possession claim against D in respect of the Subject Area.  I make a declaration that:

(1) P has established a possessory title to the Subject Area; and

(2) The defendant’s title to the Subject Area has been extinguished pursuant to s.17 of the Limitation Ordinance.

10.P also claims an order that he is entitled to be registered as the owner of the Subject Area in the Land Registry.  With respect, this claim is misconceived and cannot be allowed.  I repeat what I have said in The Personal Representative of the Estate of Lee Chiu Tai, Deceased v Tsang Loi Ki and Another[3]:

“21. …… Regrettably, sometimes practitioners have some misunderstanding as to what a possessory title means. The law on this point has been made clear by the Court of Appeal in Wong King Lim v The Incorporated Owners of Peony House (CACV 3/2012, 29 May 2013) and by Mr Recorder Jat SC in Tsang Cho Kiu v Lam Tsat Fuk (HCMP 1077/2013, 10 December 2013). In Tsang Cho Kiu, the issue before the court is whether an adverse possessor is entitled to have an order requiring that the name of the registered owner on the Land Registry be deleted and replaced by the name of the adverse possessory. The learned recorder refused to make this order. In that case, the learned recorder said:

‘14. …… Mr Lam drew my attention to the recent decision of the Court of Appeal in Wong King Lim v The Incorporated Owners of Peony House, CACV 3/2012, 29 May 2013 (Yuen and Lam JJA, Au J). …… In dismissing the incorporated owners’ appeal, the court referred to general principles which are relevant to the question before me.

15. In judgment para 33.2, Yuen JA (with whom Lam JA and Au J agreed) noted that:

“It is important not to confuse land with title. Land A remained subject to the covenant in favour of land B, even though the title of the owner of land A had been extinguished by the squatter’s adverse possession. Thus Collins MR held [in Re Nisbet and Potts’ Contract [1905] 1 Ch 391] at p.402 that the whole (meaning the entirety of the) right the squatter acquires under the statute of limitations is the extinguishment of a title adverse to his own, and nothing else.” (original emphasis)

16. Lam JA (as Johnson Lam VP then was) separately observed in judgment para 37 that:

“Under common law, a squatter does not succeed to nor take over the title of the paper owner whom he has dispossessed, see Fairweather v St Marylebone Property [1963] AC 510. As observed by Keith J in Chung Ping-kwan v Lam Island Development [1995] 2 HKLRD 228 at p 235, “the squatter’s possessory title was an independent title …” The title of the squatter stems from his possession of the land and it was defeasible by the paper owner’s title until the right of the paper owner against him has been extinguished under the Limitation Ordinance by dispossession for the requisite period of time. In Fairweather, the majority of the House of Lords held that the paper owner’s title was only extinguished vis-à-vis the squatter. It remains as a title as between the paper owner and his lessor and it could be surrendered, and upon such surrender the lessor’s right of possession started to accrue and basing on that right the lessor could recover the land from the squatter. This outcome vividly demonstrates the proposition that a squatter does not acquire the title of the paper owner and the Limitation Ordinance does not operate as a statutory conveyance of that title to the squatter.”

17. In my judgment, these principles apply to the present case. Mdm Tsang has established a possessory title as against the paper owner; but it does not follow that she is entitled to be substituted as owner in the Land Registry records.’

22. These principles have also been emphasized by me in Wang Hanzhen v Li Kuen (DCMP 3269/2014, 17 February 2016), in which I said at [53]:

‘Notwithstanding the plaintiff's success in adverse possession, the plaintiff would not take over the title of the defendant. The defendant's title has only been extinguished vis-à-vis the plaintiff. It remains as a title vested in the defendant and could be surrendered to the Government. See Wong King Lim v The Incorporated Owners of Peony House (CACV 3/2012 , 29 May 2013), per Yuen JA at [33.2] and per Lam JA (as he then was) at [37]. Applied by Recorder Jat SC in Tsang Cho Kiu v Lam Tsat Fuk (HCMP 1077/2013, 10 December 2013).’

23.     So the Judgment obtained by the plaintiffs only means that the defendant’s title has been extinguished vis-à-vis the plaintiffs and those deriving title under the plaintiffs, no more and no less.  ……”

11.The relief granted to P is the declaration as set out in [9] above.  P does not seek costs.  There be no order as to costs.   

Written submissions by Kenneth Sit Solicitors, for the plaintiff