Lu Xiaohua, The Administratrix of the Estate of Wong Yiu Chung, Deceased v. Hau Shun Chi Nelson

CAMP 132/2020

[2020] HKCA 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 132 OF 2020

(ON AN INTENDED APPEAL FROM DCCJ NO. 287 OF 2016)

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Before : Hon Kwan VP and Cheung JA in Court

Date of Decision : 30 November 2020

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.   Background

1.1H H Judge Winnie Tsui (‘the Judge’) gave judgment for the plaintiff on her claim for adverse possession against the defendant in respect of the land known as Section A of Lot 214 (‘Lot 214A’) in Demarcation District No. 95 (‘DD 95’) New Territories (‘the Land’). 

1.2The defendant now seeks leave to appeal from this Court having had his application for leave refused by the Judge.  We will deal with the application on paper.

II.  The plaintiff’s case

2.1The Land was originally part of Lot 214 in DD 95.  In 1975, Lot 214 was sub‑divided into two areas : the Land and the Remaining Portion of Lot 214 (‘Lot 214 RP’).  It is the plaintiff’s case that since 1975 for a period of 20 years or more the Wong family has been in adverse possession of the Land. 

2.2The plaintiff is the widow of Wong Yiu Chung (‘the deceased’) who was one of the sons of Wong Fung Shui (‘the father’).  The father and his family (‘the Wong family’) had been farming the Land since 1975.  They grew vegetables on the Land.  When the father became too sick to farm in 1990, his wife continued the work.  The children of the father including the deceased continued to assist their mother in the farming.  They then changed to grow trees that required less labour intensive work.  Amongst the evidence relied upon by the plaintiff are aerial photographs.  From 1975 to 1989, the photographs showed intensive farming.  From 1989 to 2000, there was less cultivation.  From 2001 to 2014, the cultivation changed from vegetables to trees.  The Wong family was a closely‑knit family.  The members were mutually supportive to one another.  When the deceased was diagnosed with cancer, the deceased’s mother made the decision that he should inherit the Land, which was agreed by his sister (Chun Lan) and his brother (Chun Chung).  

III.   Grounds of appeal

3.1Five grounds of appeal are set out in the draft notice of appeal.  However, the defendant’s written submission filed in support of his present application only referred to three of them.  We will deal with these grounds first. 

1)   Intention to pay rent

3.2The defendant relies on the evidence in cross‑examination of Chun Chung, one of the witnesses for the plaintiff and another son of the father, that had the father known who the landlord of the Land was, the father would have found him to enter into a lease.  The defendant submits that this is unequivocal and forceful evidence that there was an intention to pay rent, not an intention to possess.  Further, if there was an intention to pay rent, it would not matter that rent was not paid: Wong Tak Yue v Kung Kwok Wai (No.2) (1997‑1998) 1 HKCFAR 55. 

3.3This issue was addressed by the Judge at [145] to [151] of her judgment.  She recognized that Chun Chung’s statement is a statement against self‑interest and should be given considerable weight. However, she held that, at the same time, it must be viewed against the other fundamental facts established by the plaintiff, namely, 

(1)   since 1975, the Wong family had been farming on the Land;

(2)   it had never paid any rent for the Land; and

(3)   the father knew at that time that the Land was no longer owned by the previous owner and the new owner was a villager also by the surname Hau. 

3.4The village was a small community and it would not have been too difficult for the Wong family to find out the identity of the new owner if they had wanted to.  Yet, there is no suggestion that they had at any time taken any serious step to find out who the new owner was.  Meanwhile, they continued to farm on the Land in a way which excluded everyone else from using it and never paid any rent.  All this shows a clear intention of the Wong family to adversely possess the Land.  The Judge held that it is plain that Chun Chung’s evidence goes against the general thrust of these facts.  Furthermore, what Chun Chung said was his own speculation of what the father would have done.  This speculation goes against the objective fact that the Wong family had been occupying the Land for a few decades without paying any rent or attempting to pay any rent.

3.5The Judge held :

‘ In the circumstances, when the above fundamental facts are considered together with Chun Chung’s statement, I am unable to find as fact that the Wong family were willing and ready to pay rent to Hau Tai Hong. Hence, Wong Tak Yue is not engaged. The Wong family’s intention to adversely possess the Land is established.’

3.6We cannot see how the Judge’s reasoning can be faulted.

2)   Fencing

3.7The defendant then argued that the plaintiff’s alleged acts of possession were by way of farming but there was insufficient fencing to constitute a valid claim for adverse possession: Gotland Enterprises v Kwok Chi Yau, CACV  260/2014, 19 January 2016 at paragraphs 32, 36, 37, 39, 54 and 59.  It is the plaintiff’s case that the Land was easily accessible by transport. 

3.8Again the Judge had properly dealt with Gotland in her judgment.  She held that :

‘ the keeping of [the] short and simple fences is sufficient to establish exclusive occupation, when the geographical layout of the Land is taken into account. ... [T]he Land is located in a remote and isolated area in New Territories. The footpath running next to it is the only access way to the Land. Nearby in the cul-de-sac lived only two households. The area was therefore not expected to be visited by anyone other than the two households and their visitors. Wong’s hut is only a few footsteps from the Land. If there were any strangers approaching the Land, the Wong family would be alerted by their dogs’ barking and they could take action accordingly. In my view, all these factors combined have the practical effect of keeping people off from the Land. It would be unnecessary to put up some higher fences for that purpose.’

3.9The Judge also took into account the fact that it would be impracticable to put up higher fence because it would impede the farmer’s own access to farm on that land.  The defendant’s own witness also confirmed that it would be unnecessary to put up fences to stop people from entering the Land since everyone in the area knew that the Land was farmed by the father.  The Judge held that :

‘141. ... This testimony speaks volumes for the exclusive nature of the occupation exercised by the Wong family over the Land.’

3)   Family agreement

3.10The defendant argued that the plaintiff must be bound by her own pleading when she pleaded that the Wong family agreement was that members of the family agreed that the Land was to be given to the deceased.  The family agreement ought not to stand, as there was one family member, Mr Wong Sau Chung (the deceased’s second younger brother), absent when the family agreement was entered into.  In law, all the members of the Wong family are ‘joint squatters’ who hold the Land as joint tenants: Adverse Possession, Stephen Jourdan QC, 2^nd edn at paragraphs 20 to 68 and the plaintiff alone could not claim adverse possession alone.

3.11This was the same point raised at the trial and the Judge held that :

‘142. I am therefore satisfied that from 1975 to 2016, the Wong family had been in exclusive factual possession of the Land. The possession was single and exclusive, exercised jointly by the Wong family. I accept Mr Deng’s submission that on the facts as found, the Wong family should be treated as a single family on the issue of possession. This is a case in which, as against the outside world, the family stand in the position of a single owner: J A Pye at para 70. Relevantly, Wong’s parents, Chun Lan, Wong, Chun Chung and Lu were farming on the Land not as individuals with a view to excluding each other. The unequivocal understanding among them must have been that the Land belonged to the family as a whole.’ (emphasis added)

3.12The issue of joint squatters will only arise in situations where there is more than one squatter who have possession simultaneously.  This is not the case here.  Further as the Judge observed in her decision on leave, the plaintiff’s case did not, and did not need to, turn on the family agreement.  That case has already been made out.  We agree.

4)  Presumption of encroachment

3.13The remaining two grounds raised in the draft notice of appeal but not covered by the defendant’s written submission can be dealt with shortly. 

3.14The Judge addressed the nature of the presumption of encroachment as discussed in Secretary for Justice v Chau Ka Chik Tso (2011) 14 HKCFAR 889 at paragraphs 17, 20 and 108.  She held that the presumption had been rebutted on the facts of the case.

3.15Here, the special fact is that the Wong family had initially leased the whole of Lot 214 from Hau Fook Shui before it was sub‑divided into two parts.  After the sub‑division, the Wong family continued to lease Lot 214 RP from Hau Fook Shui and it was clear in the minds of the father and Hau Fook Shui that Lot 214A no longer formed part of the lease.  From then onwards, the Wong family paid rent to Hau Fook Shui in respect of Lot 214 RP only.  Hau Fook Shui was aware that the Wong family had carried on farming on the Land.  Given the history relating to the Land, it would be clear to him that the Wong family was occupying the Land independently of the lease in respect of Lot 214 RP and that they were not occupying it as an addition to Lot 214 RP.

3.16Hence, even though Lot 214A and Lot 214 RP adjoin each other and the Wong family had been farming on the two lots as one contiguous piece of land without any demarcation, the intention of both the Wong family and Hau Fook Shui was that the Wong family was not occupying the Land in the capacity of a tenant, but on their own terms.  Hence, the presumption, if applicable, is rebutted.

3.17We agree.

5)  Licence arrangement of Lot 214A

3.18It was the defendant’s case that the father had agreed that when the owner demanded the return of Lot 214A in the future, the father or his successor would have to return it unconditionally.

3.19The Judge rejected the defendant’s case on this issue.  The defendant argued that the Judge wrongly rejected this evidence.  In our view the defendant had failed to show that it is reasonably arguable that this factual finding which is within the province of the trial judge is plainly wrong.

V.    Conclusion

4.1In our view the defendant fails to satisfy the leave threshold by showing that the grounds are reasonably argued or there is some other reason in the interests of justice that the appeal should be heard.  Accordingly the application is refused with costs to the plaintiff.  The plaintiff’s own costs are to be taxed according to the Legal Aid Regulations. This Court will assess the costs summarily.  The plaintiff is to file and serve its statement of costs within seven days and the defendant to file and serve his objections within seven days thereafter.

4.2As the defendant’s application is totally without merit, pursuant to Order 59, rule 2A(8), we will make an order that no party may request our determination to be reconsidered at an oral hearing inter partes.

Mr Earl Deng, instructed by Yiu & Associates, assigned by the Director of Legal Aid, for the plaintiff (by original action)

Mr Billy N.P. Ma, instructed by Huen & Cheung, for the defendant (by original action)