Fung Yau Lin and Others v. Tang Ping Kuen and Others

DCCJ 1005/2017

[2020] HKDC 1133

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1005 OF 2017

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BETWEEN

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Before:  Deputy District Judge Jonathan Wong in Chambers

Date of Submissions by the 3^rd and 4^th Defendants:  10 July 2020

Date of Submissions by the 1^st to 4^th Plaintiffs:  15 July 2020

Date of Reply Submissions by the 3^rd and 4^th Defendants:  17 July 2020

Date of Decision:  7 December 2020

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D E C I S I O N

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A.    Introduction

1.Before the Court is an application by the 3^rd and 4^th defendants (“Relevant Defendants”) for leave to appeal against my judgment handed down on 29 May 2020 (“Judgment”).  The terms defined in the Judgment are adopted in this decision.

2.The plaintiffs commenced these proceedings to recover possession of the Land.  The plaintiffs’ claim was contested by the Relevant Defendants. 

3.It was the Relevant Defendants’ case that, since October 1991, they had been occupying the parts of the Land demarcated in the plan annexed to their Re-Amended Defence and Counterclaim, ie the Alleged Occupied Land.  They counterclaimed for a declaration that the title of the plaintiffs had been extinguished by reason of the Limitation Ordinance Cap 347 and that they had acquired possessory title of the Alleged Occupied Land.

4.The parties agreed that the applicable limitation period was one of 12 years.  As such, in order for the Relevant Defendants to succeed in these proceedings, they had to show factual possession since at least 2005: paragraphs 5 and 57 of the Judgment.

5.The Relevant Defendants’ pleaded case was summarized at paragraph 8 of the Judgment (“Summary”).  The Relevant Defendants do not suggest the Summary was erroneous.  As set out in the Summary, the Relevant Defendants’ factual case for adverse possession of the Alleged Occupied Land was premised on five broad matters, namely: (1) farming various fruit trees and lemongrass from about October 1991 to 2015, (2) farming organic plants since 2015, (3) erecting a wire fence in 1997, a low rise fence in 2003 and boarding since 2013 around the Alleged Occupied Area, (4) raising and keeping guard dogs to keep any strangers from entering and (5) building a private road in 2013. 

6.As items (2) and (5) only took place in 2013, they were only of peripheral significance: paragraphs 90 to 91 of the Judgment.

7.By the Judgment, I found for the plaintiffs and against the Relevant Defendants.  I dealt with items (1), (3), and (4) of the Summary respectively at Sections D, E and F of the Judgment.  At Section H of the Judgment, I concluded that the Relevant Defendants had failed to establish adverse possession.  I said at paragraph 89 of the Judgment as follows:-

“Drawing together the evidence of the various topics explored above, the Relevant Defendants can at best show that they had carried out some limited cultivation from 2006 onwards at small areas on the Alleged Occupied Land and the Alleged Occupied Land was unfenced until 2013 and even then only for a very small part at the outset. Applying Chow Tin Sang… such activities do not amount to physical possession of the land or a manifestation of the intention to exclude others. The extent of such cultivation by itself, relative to the size of the Land, is insufficient to constitute requisite possession of the Land (and from which intention to possession may be inferred).”

8.By a summons dated 26 June 2020, the Relevant Defendants seek leave to appeal the Judgment based on the following three grounds of error:[1]-

(1)  Giving insufficient or no weight to the Order made in the HC Action[2] which allows or gives rise to the inference that the Relevant Defendants had been in exclusive occupation of the Land (“Ground 1”);

(2)  Giving undue weight to the experts’ evidence despite difficulties in the said evidence (“Ground 2”);

(3)  Rejecting the Relevant Defendants’ case against the inconsistent Plaintiffs’ testimony vis-à-vis the Relevant Defendants’ consistent testimony, the overall background and the difficulties in the expert evidence (“Ground 3”).

9.The parties acceded to my invitation to deal with the present leave application by way of written submissions.  The plaintiffs are represented by trial counsel Mr Ronald Pang (“Mr Pang”) and the Relevant Defendants by Mr Austin Yiu (“Mr Yiu”) who did not appear for the Relevant Defendants at the trial.

B.   The applicable principles

10.There is no dispute between counsel that leave to appeal should only be granted if I am satisfied that (1) the intended appeal has a reasonable prospect of success or (2) there are some other reasons that the intended should be heard.  The Relevant Defendants do not rely on the latter ground. Counsel also agree that a reasonable prospect of success involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable.

11.Where an appeal is one against a finding of a primary fact or an inference based on a primary fact, the appellant has to satisfy the court that the finding was plainly wrong or the trial judge had fallen into palpable errors: Ting Kwok Keung v Tam Dick Yuen & Others (2002) 5 HKCFAR 336 §42; DBS Bank (Hong Kong) Limited v Sit Pan Jit, CACV 91 of 2015, 10 June 2016 §§72 and 111-117 and China Gold Finance Limited v CIL Holdings Limited & Others, CACV 11 of 2015, 27 November 2015 §§11 and 15-19.

C.   Ground 1

12.As set out at paragraphs 4 and 5 of the Judgment:-

(1)  the Tang family (including the Relevant Defendants) had since 1967 or early 1968 resided on Lot No 695 which abut the southern boundary of Lot 697;

(2)  the 3^rd defendant acquired possessory title to Lot 695 in the HC Action and the Order which was made in the HC Action gave possessory title to the 3^rd defendant to a small part of Lot 697;

(3)  as the plaintiffs were not parties in the HC Action, it was agreed by Mr Pang and Mr Yiu’s predecessor at the trial that no reliance could be placed by the Relevant Defendants on the Order made in the HC Action to establish adverse possession (“Relevant Defendants’ Concession”).

13.The trial proceeded on the basis of the Relevant Defendants’ Concession.  As Mr Pang has pointed out, although the relevant material in the HC Action (ie the pleadings and witness statements etc) were included in the hearing bundle, such material did not feature throughout the course of the trial.[3]

14.The Judgment was rendered on the basis of the Relevant Defendants’ Concession.

15.Mr Yiu does not disagree with the fact that the material in the HC Action was not referred to at the trial.[4] However, Mr Yiu submits that:-

(1)  I have the necessary power and competence to evaluate evidence even if parties did not specifically refer to it;

(2)  it would be a highly unsatisfactory situation if I were not allowed on my own terms to consider and evaluate evidence already placed inside the trial bundle even when parties had not specifically referred me to such evidence;

(3)  as observed in Numeric City Ltd v Lau Chi Wing, DCMP 2850 of 2015, 11 February 2016, the court is entitled and in fact duty bound to independently assess all available evidence before it.

16.I am unable to agree with Mr Yiu that Ground 1 has a reasonable prospect of success.

17.First, I do not read Numeric City as an authority for the proposition that a court should give regard to material that was placed in the hearing bundle but was not referred to in the course of the trial, especially in the light of a concession of irrelevance by a party.

18.Secondly, the plaintiffs had conducted the trial on the basis of the Relevant Defendants’ Concession.  Mr Yiu has not made any submission as to how a unilateral departure from that concession on my part, without affording the plaintiffs an opportunity to be heard, could be a fair disposal of the present matter.

19.Thirdly, and perhaps most substantively, I am unable to see how the HC Action can assist the Relevant Defendants.  The HC Action relevantly concerned a small part of Lot 697 (the Land comprises of Lots 697 and 700). 

20.Mr Yiu has made sweeping submissions at paragraph 12 of P’s Submissions that “[the material in the HC Action] allows for and give rise to weighty factual inference that at all material times, the Defendants had been in exclusive physical occupation of the land” and “it would be incredible for the Defendants, as rural people to strictly delineate their occupation/possession by the legal boundaries of each plot of land; rather all adjoining lands inclusive of the land in the HC Action and the Land in the present proceedings would be occupied.”

21.It is entirely unclear from Mr Yiu’s sweeping submissions as to precisely how the material in HC Action can have the effect of altering the conclusions I set out at paragraph 89 of the Judgment.  This is especially so when the 3^rd defendant obtained possessory title in the HC Action principally on the factual case that the Tang family resided on the relevant land, which factual case is materially different from that pursued in these proceedings as set out in the Summary (ie principally by reason of farming activities and fencing).

22.I also note that Mr Yiu has not addressed Mr Pang’s reliance on Jourdan, Adverse Possession (2^nd Ed) §10-17 for the proposition that a squatter is not entitled to rely on his possession of part of a tract of land to be treated as possession of another part if both parts are not owned by the same person.

D.   Ground 2

23.As set out at paragraph 15 of Ds’ Submissions and paragraph 11 of D’s Reply Submissions, Ground 2 is directed at paragraph 80 of the Judgment which is concerned with my finding on the extent of the alleged fencing by the Relevant Defendants.

24.To put matters into perspective, at paragraphs 72 of the Judgment, I recorded the fact that the parties’ respective experts agreed that the first sign of any fence which could be seen in the aerial photographs was in 2013. At paragraphs 77 to 81 of the Judgment, I dealt with the issue whether it was likely that a fence, if erected, could be observed in aerial photographs.  I preferred the evidence of the plaintiffs’ expert and made a finding that if the low rise fence was in fact built in 2003 (as contended by the Relevant Defendants), it was improbable that it could not be observed in the successive aerial photographs taken in 2003 to 2013.

25.I do not regard Ground 2 as having a reasonable prospect of success. 

26.First, there was in fact no dispute that both experts were unable to observe any fence from the aerial photographs until 2013 but were able to identify from the aerial photographs in subsequent years progressive additions to the fencing and hoarding.  I do not see how my conclusion extrapolated at paragraph 81 of the Judgment, namely that had a fence been built in 2003 it was improbable that it could not be detected in the 10 following years of aerial photographs, can be said to be erroneous.

27.Secondly, I pointed out that the lack of any fencing before 2013 was further supported by the survey sheets, which fact was left unaddressed at the trial by Mr Yiu’s predecessor and in this application by Mr Yiu: paragraph 83 of the Judgment.

28.Thirdly, I also found against the Relevant Defendants on the issue of fencing on the basis that their factual evidence was no more than a bare assertion: paragraphs 75 to 76 of the Judgment.

E.   Ground 3

29.The Relevant Defendants appear to contend that, as I had reservations on the plaintiffs’ evidence, I should have preferred the evidence of the Relevant Defendants, which Mr Yiu describes as “consistent and frank”: paragraph 17 of Ds’ Submissions.

30.Mr Yiu has fairly accepted that the Relevant Defendants face an uphill task.

31.The credibility of witness principally featured in the issue of the Relevant Defendants’ alleged farming activities (ie Section D of the Judgment).  I had noted that Madam Lam, an elderly lady, did not always give consistent evidence as to the timing of her visits to the Land: paragraphs 37 to 38 of the Judgment.  I also did not accept the 2^nd plaintiff’s evidence that she had visited the Land prior to 2015: paragraph 43 of the Judgment.  However, I did accept Madam Lam’s evidence that when she did visit the land, there was no evidence of significant cultivation: paragraphs 39 and 69 of the Judgment.

32.As I had emphasized at paragraph 87 of the Judgment, a registered owner is entitled to rely upon the paper title and may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof required in establishing a possessory title.  Further, it is trite that what weight is to be attached to a particular piece of evidence is a matter for the trial judge: Choy Po Chun & Anor v Au Wing Lun aka Au Wing Lun William [2018] 2 HKLRD 864 at §68.

33.Mr Yiu has glossed over the reasons for my rejection of the Relevant Defendants’ case on the alleged farming activities.  For example, at paragraphs 57 to 64 of the Judgment, I set out my reasons for rejecting the Relevant Defendants’ new and unpleaded case on potato leaves, which was central to the Relevant Defendants’ case on their alleged farming activities (and therefore factual possession).  Mr Yiu has not attempted to deal with those reasons substantively, other than by way of yet further sweeping submissions: paragraph 20 of P’s Submissions and paragraph 15 of P’s Reply Submissions.  I do not regard generalized submissions such as “all along, however, the viva voce evidence of the Ds’ witnesses remain consistent” renders Ground 3 one which has a reasonable prospect of success.

F.   Conclusion

34.For the above reasons, I dismiss the Relevant Defendants’ application for leave to appeal with costs to be taxed if not agreed. 

35.I thank counsel for their assistance.

Mr Ronald Pang, instructed by Katherine Y W Or & Co, for the 1^st to 4^th plaintiffs

The 2^nd defendant was not represented and did not appear

Mr Austin Yiu, instructed by Hau, Lau, Li & Yeung for the 3^rd and 4^th defendants