Pong Yiu Chuen v. Nam Tin Chuk Temple Ltd
Read the full judgment text of DCCJ 3036/2016 on BabelCite. This District Court judgment was delivered on 25 January 2021.
1. This is an adverse possession action brought by Mr Pong and the subject matter is a piece of land known as Tung Lam Terrace, No. 84 Fu Yung Shan Road, the Remaining Portion of Lot 1196 in DD 453, Tsuen Wan (“ the Land ”). Lam Tin Chuk Temple Limited (“ the Company ”) became the registered owner of the Land in July 2007. Mr Pong alleges to have occupied the Land since his birth in 1950 and has acquired a possessory title thereto by way of adverse possession.
Cited by 1 case · Cites 9 cases
|
DCCJ 3036/2016 [2021] HKDC 104 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3036 OF 2016 --------------------
-------------------- Before: His Honour Judge Kent Yee in Court Dates of Hearing: 18, 20, 21 and 25 August 2020 Date of Judgment: 25 January 2021 -------------------- JUDGMENT -------------------- Introduction 1.This is an adverse possession action brought by Mr Pong and the subject matter is a piece of land known as Tung Lam Terrace, No. 84 Fu Yung Shan Road, the Remaining Portion of Lot 1196 in DD 453, Tsuen Wan (“the Land”). Lam Tin Chuk Temple Limited (“the Company”) became the registered owner of the Land in July 2007. Mr Pong alleges to have occupied the Land since his birth in 1950 and has acquired a possessory title thereto by way of adverse possession. 2.In his Re-re-re-re-Amended Statement of Claim (“SOC”), Mr Pong claims (a) a declaration that he has been in adverse possession of the Land for more than 20 years and/or 12 years prior to the commencement of these proceedings (June 2016) and has thus acquired a possessory title thereto and (b) a declaration that the rights of the Company and/or that of its predecessor in title to recover the Land has become statute-barred under section 7(2) of the Limitation Ordinance, Cap. 347 (“the LO”), and that their title to the Land has been extinguished by virtue of section 17 of the LO. 3.The Company insists on the validity of its title to the Land and makes no counterclaim. 4.In their closing submissions, Ms Maggie Wong SC (“Ms Wong”) and Ms Sheena Wong for the Company identify two main issues calling for my determination:
5.Indeed in the Re-Amended Defence (“the Defence”), the primary defence is pleaded in the following terms[1]:
6.Thus, central to the defence is its allegation of the continuous existence of a licence until 2011. Of course, this court should bear in mind that the burden remains firmly on Mr Pong to prove all the elements of his plea of adverse possession by compelling evidence. Background facts 7.I shall first outline the uncontroversial background facts. 8.Mr Kan acquired several lots of land in Tsuen Wan including the Land on or about 15 July 1949. He was the person-in-charge of the Temple erected adjacent to the Land. The grant of the Land by the government is for agriculture purpose only and is subject to the Special Condition that no building of any description shall be erected on the Land. 9.The late father of Mr Pong (“Mr Pong Senior”) was a labourer and took part in certain construction works in the Temple in the 1970s. 10.Mr Pong Senior became acquainted with Mr Kan and Mr Kan agreed to grant a tenancy to Mr Pong Senior for his occupation of the Land with his family at least from August 1966 to April 1970 (“the Tenancy”). Mr Pong Senior paid rent to Mr Kan under the Tenancy. A rental receipt issued by Mr Kan to Mr Pong Senior (“the Receipt”) showed that Mr Pong Senior paid a sum of HK$1,200 for the rent from 1 January 1970 to 30 April 1970. The exact details of the Tenancy including its commencement and the expiry dates are, however, not known. 11.On or about 1 November 1975, Mr Kan executed his last will (“the Will”) by which he bequeathed several lots of land including the Land to 4 beneficiaries, namely, Lok Chuen Wai alias Chuen Wai, So Yan, Yuen Wai alias Sik Yuen Wai and Liu Chi alias Sik Liu Chi without appointing any executor. 12.On 26 May 1976, Mr Kan passed away. It was not until 6 July 1988 that the letters of administration of the Will were granted to So Yan. 13.In or about December 1980, Mr Pong Senior issued a hand-written undertaking to the Temple (“the 1980 Undertaking”) in the form of a letter and apologized for his permission of two gentlemen staying at the rooms of a structure erected on the Land without the consent of the Temple. He undertook to direct the two gentlemen to find alternative accommodation within 3 months. The 1980 Undertaking read as follows:
14.There is no dispute about the authenticity of this letter. Mr Pong Senior passed away on 15 October 1983. 15.In late February 1995, Mr Pong found an envelope of the Temple at the front gate of the Land and it contained a letter purportedly issued by So Yan (“the 1995 Letter”). Its content was hand-written in the Chinese language and it read,
16.The Company refuses to accept the authenticity of the 1995 Letter. 17.So Yan passed away on 7 March 2003 leaving the whole of the estate of Mr Kan including the Land unadministered. Wong Pui Ling and Wong Pui Fun became the joint executrixes to the estate of So Yan. 18.On 27 June 2007, the legal title of the Land was vested from So Yan to Sik Liu Chi as administrator de bonis non. 19.On 19 July 2007, by an assent of the same date, the legal title of the Land was vested onto Lok Chuen Wai, Sik Liu Chi, Wong Pui Ling, Wong Pui Fan and Sik Kin Chiu. Lok Chuen Wai and Sik Kin Chiu are the executors of Yuen Wai, who passed away on 20 April 1982. Thus, the Land was assigned to the four beneficiaries or their personal representatives pursuant to the Will. 20.Each of these beneficiaries or their personal representatives executed an assignment of the same date in favour of the Company and transferred the legal title and their respective beneficial interests in the Land to the Company. 21.On 15 May 2011, Sik Kin Chiu made a report to the police alleging Mr Pong’s trespass on the Land. Policemen went to the Land and carried out an investigation with Madam Li who is the wife of Mr Pong (“the 2011 Investigation”). 22.On or about 20 July 2011, Messrs. M.K. Lam & Co. (“D’s solicitors”) instructed by the Company issued a letter to Mr Pong for the first time. In the said letter, D’s solicitors complained about the potential hazard caused by a tree erected on the Land as pointed out by the District Lands Office in its letter to the Company dated 27 April 2011. They demanded that the occupiers of the Land should take prompt remedial action. 23.On or about 20 October 2011, D’s solicitors issued a letter to the occupiers of the Land (“the October Letter”) and complained about their trespass on the Land for the first time. They demanded delivery of vacant possession within 10 days from the date of the said letter but was ignored. 24.On 23 June 2016, Mr Pong commenced these proceedings by writ against the Company. Overview of Mr Pong’s case 25.In a nutshell, Mr Pong’s case is that by reason of the exclusive possession of the Land by him and his family since 1970s until the present moment to the exclusion of the whole world including the registered owners, he has acquired possessory title to the Land through adverse possession for more than 20 years and/or 12 years. 26.Mr Pong alleges that since 1950s, Mr Pong Senior had resided in a wooden hut erected on the Land with Madam Chow, his wife and the mother of Mr Pong, until his demise in 1983 (“the Wooden Hut”). Madam Chow passed away in 1967. The Wooden Hut was their matrimonial home providing accommodation for their family. 27.All of the siblings of Mr Pong had resided in the Wooden Hut for some time. They include the eldest sister Pong Kwei Yee, the eldest brother Pong Yiu Kai, the younger brother Pong Yiu Hin (“Hin”), another younger brother Pong Yiu Chi and the youngest sister Pong Kwei Foon. They all moved out when they got married except Hin, who still resides on the Land. 28.Mr Pong started residing on the Land since his birth. It became his matrimonial home when he got married with Madam Li in 1986. Their son, Pong Hiu Fung was born in 1987 and the Land is still the residence of his family. 29.Mr Pong alleges that the family of Mr Pong and Hin have been residing in the Land for decades without any interference or complaints by the registered owners of the Land until 2011. 30.I shall briefly state the case of Mr Pong about their factual possession on the Land throughout the years. I should start with the structures erected during his alleged period of occupation of the Land. 31.In addition to the Wooden Hut, in or about 1964, Mr Pong Senior and his family constructed an L-shaped dwelling house adjacent to the Wooden Hut (“House 1”). The elder family members used to reside in House 1. Since they passed away, Mr Pong and his family has used House 1 as a storage room. 32.In front of House 1, in or about 1980, Mr Pong and his family built a small rectangular house (“House 2”) with independent toilet facilities. It has become the residence of Hin. 33.In or about 2011, the Wooden Hut was badly damaged by a typhoon. It became inhabitable and Mr Pong caused it to be demolished and in its place, a new house was constructed (“the New House”). Mr Pong and his family have resided in the New House ever since. 34.At this juncture, an introduction of the present condition of the Land should be helpful. The following information is gleaned from the expert report of Mr Ma dated 18 June 2019 (“the Expert Report”). Mr Ma is a chartered land surveyor commissioned by Mr Pong and has rich experience in giving expert evidence in court. His evidence was severely and forcefully attacked by Ms Wong but the following matters are uncontroversial. 35.The total occupied area of the Land is 520.8 m². Behind the Wooden Hut (and later the New House) and House 2 is the northern side of the Land and there is a vertical slope of some height (about 6m). On the top of the slope, the Temple is erected with a system of metal fence in place on the edge of the slope. 36.The eastern side of the Land is flanked by the Home for the Aged (“the Elderly Home”) and a system of concrete freestanding boundary wall have been erected as boundary petition separating the Elderly Home and the Land. 37.On the western side of the Land there are trees, rocks and boulders. 38.On the southern side, there is a system of metal fence with an entrance gate erected. 39.Mr Pong says that the following activities conducted by his family and him are proof of their factual possession of the Land to the exclusion of the world including the registered owners since 1970 and their intention to do so. 40.First, Mr Pong and his family planted various kinds of trees and plants on the Land including banyan trees and bamboo trees. 41.Second, throughout the years, Mr Pong and his family carried out maintenance and repair works on the Land including the enclosure of the Land with wire mesh and/or ridge and/or enclosure wall of about 4 feet tall since the 1970s, laying cement to the area in front of and surrounding the Wooden Hut, Houses 1 and 2 and the New House in or around 2011 and the erection of a gate for entrance and exit. 42.To protect the Land against non-invitees, Mr Pong and his family have kept some dogs on the Land. 43.Mr Pong himself, Madam Li and Hin testified to support the foregoing pleaded allegations. Mr Ma testified in support of Mr Pong’s case. 44.Four family members and/or relatives of Mr Pong and a friend of his have filed their witness statements. Their evidence is of little relevance to the material factual disputes. Ms Wong agrees that their statements can be admitted as evidence without their live testimony. Overview of the case of the Company 45.Though the Company only acquired the Land in 2007, all its predecessors-in-title were somehow connected with the Temple. Mr Kan was the manager of the Temple to start with. 46.The Company is formally known as Chi Sum Fat Tong Limited. It was incorporated in 1996 and it managed the Temple. Its name was changed to the present one in October 2003. Sik Kin Chiu and Madam Sik Sum Wai, among other people, were the directors of the Company. Sik Kin Chiu (“the late Mr Sik”) made his witness statement for the purpose of these proceedings but he passed away in 2018. Madam Sik then filed her witness statement and became the only witness for the Company in his stead. 47.Madam Sik frankly admitted that she had little personal knowledge of the matters stated in her witness statement and the late Mr Sik was her major source of information. She did not personally know and has not even seen Mr Kan and So Yan, the two key characters in the defence, in person. 48.The crux of the pleaded defence is that Mr Kan and his successors in title gave their consent and allowed Mr Pong Senior and his family to occupy the Land first by way of the Tenancy and, after its termination, a licence even after the demise of Mr Kan and Mr Pong Senior. Thus, Mr Pong had throughout been in lawful possession of the Land and he did not have the intention to possess the Land adverse to the interest of the registered owners of the Land. 49.Basically the Company relies on three matters to prove its contentions. First, the permission was first given when Mr Kan granted Mr Pong Senior the Tenancy, which cannot be controversial in light of the Receipt at least until 1970. Thereafter, Mr Kan and subsequently So Yan gave him a licence as evidenced by the 1980 Undertaking. Lastly, it is alleged that during the 2011 Investigation, Madam Li and/or Mr Pong made a clear admission on the intention of their occupation of the Land which negates any adversity of their possession and confirms the existence of the licence (“the 2011 Admission”). 50.Mr Pong denies the existence of any licence granted to him and his family after the termination of the Tenancy and maintains that neither Madam Li nor he ever made the 2011 Admission. 51.Apart from these contentions, the defence refuses to accept that the 1995 Letter originated from So Yan and in any event the defence says it does not assist Mr Pong. 52.Though the Company in its pleaded case denies that Mr Pong has had exclusive, continuous and uninterrupted possession of the Land between 1970 and 2011 and seeks to challenge the expert evidence of Mr Ma. However, as shown by the formulation of the two key issues by Ms Wong and the primary case pleaded in the Defence, the real dispute is over the alleged permission and consent given to Mr Pong and his family to occupy the Land by way of a licence. Relevant legal principles 53.Mr Leung, for Mr Pong, and Ms Wong do not have arguments about the established principles of adverse possession. Both of them refer to a number of authorities and set out the relevant principles extensively in their written submissions. I see no need to rehearse them here and suffice it to say I shall pay heed to those principles. The starting point is that the burden is on Mr Pong to prove the twin requirements: both factual possession and the requisite intention to possess, i.e., animus possidendi for the requisite period under the LO: Wong Tak Yue v Kung Kwok Wai & Anor. (No.2) (1997-98) 1 HKCFAR 55 at p.68E per Li CJ. 54.I find the following summary of the basic principles made by Harris J in Tsang Foo (also known as Fu) Keung & Anor. v Chu Jim Mi Jimmy and Ors. [2017] 3 HKC 527 at §22 (to which Cheung JA and Yuen JA agreed) to be helpful and sufficient for present purposes:
55.In light of the Company’s heavy reliance placed on the 2011 Admission, the following propositions highlighted by Ms Wong to me are of particular importance. 56.Li CJ had this to say concerning statements made by an occupier about his intentions in Wong Tak Yue at p 69A-B:
57.In the same case, Ching PJ (at p.71E) also held that there is no better evidence of the intention of an occupier of land than his express declaration against his own interest. 58.Ms Wong further draws this court’s attention to the following dictum of Cheung JA in Jin Yu Chia v Personal Representative of Lee Ah Hsin, deceased [2018] HKCA 979 at §§4.4 to 4.7 (with emphasis supplied by her):
59.With these principles in mind, I now render my analysis of the evidence on the key factual issues. I shall first scrutinise all the circumstances under which Mr Pong and his family have occupied the Land and determine the lawfulness of their occupation from 1970 to 2015. I shall pay particular attention to Mr Pong’s intention as to his occupation of the Land throughout the period. Analysis of evidence From 1970 to 1980 60.Mr Pong says his possession since 1970 had been adverse to Mr Kan and after his death in 1976, his successor-in-title whilst the Company says they stayed on the Land on the strength of the permission or licence as evidenced by the 1980 Undertaking. 61.For the period from 1970 to 1980, there are three important matters. They are the Tenancy, the death of Mr Kan and the 1980 Undertaking. 62.There is no dispute about the existence of the Tenancy, which is inarguably evidenced by the Receipt. It rebuts any allegation of adverse possession during its currency. 63.Mr Pong in his pleaded case states that Mr Pong Senior made the last payment of rent in the end of April 1970 and Mr Kan had not requested or demanded Mr Pong Senior to pay rent since then. Thus, Mr Pong says that the Tenancy came to an end on 30 April 1970 or shortly after 30 April 1970. Mr Pong avers that he and his family had never entered into any tenancy with Mr Kan or his successors-in-title since 1970. 64.It is the evidence of Mr Pong that he himself had no personal knowledge of the Tenancy and he did not know that Mr Pong Senior had paid rent to Mr Kan until he found the Receipt in the Wooden Hut in 2011. 65.The Receipt was dated 28 April 1970 and it evidenced Mr Pong Senior’s payment of rent for the period from 1 January 1970 to 30 April 1970 in the amount of HK$120. 66.Hin’s evidence is that in his recollection he had heard rental demands were made to his late father when he was very small. He could not tell the exact time when the demands were made. 67.This is the state of the evidence of the Tenancy. The lack of any rental receipt issued after 30 April 1970 and any evidence of rental demands thereafter suggest that, and so I find, on the balance of probabilities, the Tenancy ceased to exist after April 1970 and there was no new tenancy created thereafter. In fact, the defence fails to identify any new tenancy. 68.After the expiry of the Tenancy, the continued exclusive occupation of the Land without payment of rent could be evidence of an intention to process the same adversely to the right of the true owner: Poon Chi Hang v Lai Ho Sun [2019] HKCA 734 per Barma JA at §32. 69.There is no serious dispute about the continuous possession of the Land by Mr Pong Senior and his family after the termination of the Tenancy. However, there is a total lack of evidence as to whether Mr Kan had given his consent or permission to Mr Pong Senior for that. 70.Mr Leung submits that in any event any licence given by Mr Kan was terminated upon his death in 1976 by operation of law. He refers to To Wai Sing v To Hung Tai & Anor., unreported, CACV 48/2014, 5.8.2014 per Cheung JA at §10.2 where it was held that a licence is a personal contract which would be terminated by devolution of title or by death. The judge went on to cite Meeruppe Sumanatissa Terunnanse v Warakapitiye Pangnananda Terunnanse [1968] A.C. 1086 where Lord Devlin at 1095-1096 said this,
71.The determination is automatic regardless of whether or not the licensee has any notice of death: Ho Hang-wan v. Ma Ting –Cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 649 at p.652D-E per Hunter JA. 72.Mr Leung’s submission is sound in law and I accept his submission. But the matter does not stop there. The Company contends that after the death of Mr Kan, the continued occupation of the Land by Mr Pong was under a licence and with the consent of the estate of Mr Kan. Somehow, the 1980 Undertaking lends support to this contention and sheds light on the nature of the occupation of the Land by Mr Pong Senior at least up to the date of the document. 73.Neither parties has any personal knowledge of the circumstances under which the 1980 Undertaking was issued. The personal representatives of So Yan discovered this document among his personal effects after his passing. The 1980 Undertaking had no specified addressee and there is no evidence as to how it found its way to So Yan’s place. I have no reason to suspect that Mr Pong Senior was not serious about its contents. It was written sincerely and he even made an effort to secure a witness with an English name to append his signature on it to enhance its solemnity. 74.In their evidence, Mr Pong and Hin had different recollections about the brief stay of the two gentlemen referred to in the 1980 Undertaking at the Land. I do not think it really matters what they had actually done. What is important is that Mr Pong Senior unequivocally admitted that he was residing at the Land on a loan basis and that he was unreasonable to have let the two invitees stay at the two rooms inside the Wooden Hut without the prior approval of the Temple. 75.Though the Temple was never a registered owner of the Land, the intention of Mr Pong Senior is abundantly clear. He submitted himself to the authority of the owner of the Land and stated his acceptance of any legal action taken by the owner of the Land in case of a breach of the agreement. In other words, his occupation was as of right and not as of wrong. There could be no adverse possession at least up to the date of the 1980 Undertaking. 76.In all fairness to Mr Leung, he does not submit anything to the contrary in his closing submission. He submits that time should start to run afresh as from 1980. 77.Mr Leung further deals with the alternative case of the Company in its Defence based on section 23(1) of the LO. In fact, Ms Wong merely makes a brief mention of this alternative case by way of a footnote in her Opening Submissions saying that the 1980 Undertaking was an acknowledgement by Mr Pong Senior of the paper owner’s legal title. I have heard no further submission on this in her Closing Submissions. 78.It does not seem that this point is taken seriously. In any event, I agree with Mr Leung that the requirements in section 24 of the LO are not met in that the 1980 Undertaking was not addressed to the title owner or his agent (and Ms Wong did not suggest so). The Company is unable to pray in aid section 23 of the LO. From 1980 to 1985 79.The Company says that there was a continuing licence granted by the estate of Mr Kan or his representative (referred to in the 1980 Acknowledgement as the Temple) to Mr Pong and his family to remain on the Land. 80.The grant of letters of administration only took place in 1988. Prior to that, the title to the Land remained in the estate of Mr Kan. It is unknown and the Company does not identify who actually granted the alleged continuing licence. 81.Nor can I accept that the alleged continuing licence could be extended to the family of Mr Pong. For this contention, the defence relies on two matters. First, it points to the uncontroversial fact that Mr Kan noticed Mr Pong Senior was with his family when he agreed to grant the Tenancy. Second, it relies on the 2011 Admission, which is in hot dispute. I shall deal with the latter in detail later. 82.I am not convinced that the knowledge of Mr Kan that Mr Pong Senior rented the Land as a residence of his family can justify such an extension. Mr Pong Senior was the only tenant identified in the Receipt. His family members could not possibly be considered to be tenants under the Tenancy as well. 83.In a similar vein, if Mr Pong Senior was granted a personal licence to occupy and reside at the Land with his family, it does not mean that each of his family members was necessarily a licensee and was entitled to stay on the Land even after the death of Mr Pong Senior in 1983. 84.As held in To Wai Sing, any such alleged licence should be personal in nature and should be automatically determined by the death of Mr Pong Senior in 1983 or, even if it could be extended to the family members of Mr Pong Senior, by the devolution of title on the grant of letters of administration in 1988. 85.The Company cannot identify any overt acts on the part of the estate of Mr Kan and the predecessors-in-title of the Land relating to an express grant of a continuing licence to occupy the Land to Mr Pong in the Defence. Nor is there any particulars given in the pleading or otherwise as to how the alleged continuing licence was granted by any of the predecessors-in-title including So Yan to Mr Pong for his occupation of the Land. 86.Ms Wong in her Opening Submissions and Closing Submissions suggests that the licence could be implied in the circumstances though, as rightly pointed out by Mr Leung, there is no plea of an implied licence in the Defence at all. I shall, nevertheless, deal with this allegation after I have disposed of the material factual issues. From 1995 to 2015 The 1995 Letter 87.Now I turn to the 1995 Letter. The Company takes an ambivalent position on this document, which I find to be very telling. 88.On the one hand, the Company refuses to accept its authenticity and urges this court to attach no weight to this document. On the other hand, the Company says that in the 1995 Letter in a way assists the defence case of a continuing licence. 89.On the authenticity issue, Ms Wong submits that the complaint is about its provenance rather than its being a forgery created by Mr Pong. Whilst the Company does not allege that in fact Mr Pong did not receive the 1995 Letter, it refuses to accept that the 1995 Letter was written and sent to Mr Pong by So Yan. In other words, it was still a forgery albeit not made by Mr Pong. 90.Both Mr Pong and Hin testified about the receipt of the 1995 Letter. I find their respective accounts to be honest and reliable despite some minor differences. In particular, I find Hin to be a straightforward and impressive witness and he has tried his best to tell this court what he believes to be the fact. He has made a very short witness statement and his actual evidence is contained in two sub-paragraphs only. In the witness box, he was cross-examined on, among other matters, the Tenancy, the 1995 Letter and the 2011 Investigation. These matters were not mentioned in his witness statement and seemingly he had not prepared to testify on these matters. However, he was ready and willing to answer all the questions in a forthright manner. I accept their evidence that the 1995 Letter was received by them on the Land. 91.In my view, the challenge to the provenance of the 1995 Letter is lame and the doubts cast do not appear to be reasonable. To begin with, the defence did not see fit to adduce handwriting expert evidence to study the handwriting in the 1995 Letter. 92.The defence’s focus is that in the 1995 Letter, So Yan signed “蘇大師” (Master So) apparently with a ball pen. Madam Sik testified that So Yan usually wrote with Chinese writing brushes. He also liked concealing his position and rarely referred to himself as Master So. 93.Madam Sik’s evidence in this regard is not convincing. Her knowledge about the alleged conduct of So Yan was only derived from what she learnt from other people in the Temple including the late Mr Sik. Even if her assertion is true, it does not necessarily follow that on the balance of probabilities, So Yan could not have written and signed the 1995 Letter with a ball pen and referred to himself as Master So. In addition, Mr Leung helpfully draws to my attention that So Yan in fact signed certain legal documents including his own will not with a Chinese written brush. Thus, the fact that So Yan wrote and signed a document with a ball pen should not cause any real concern. 94.Ms Wong submits that the 1995 Letter could be delivered to the Land by someone other than So Yan or his agents. In other words, it could be a prank. 95.There is not even a remote suggestion as to who the prankster could be. As soon as Mr Pong reverted to So Yan pursuant to the 1995 Letter, the falsity of the 1995 Letter would be exposed if it were a prank. I could see no fun or point in it at all. 96.I have also examined the envelope of the 1995 Letter. It bore a stamp of the printed name of the Temple together with its address and two telephone numbers. Madam Sik says she has never seen this stamp. There was simply no need for a prankster to go so far as to fabricate an envelope of the Temple and cause to be made the stamp. It was unnecessarily elaborated. 97.Ms Wong refers to the evidence of Mr Pong in cross-examination that he repeatedly stated that he had doubts about the genuineness of the 1995 Letter when he received the same. Given the lack of any prior communication between So Yan and Mr Pong and indeed the fact that Mr Pong did not know So Yan at all, it is only natural that Mr Pong had such doubts. But these doubts cannot suggest that as a matter of fact that the 1995 Letter was not written and sent by So Yan in the absence of any evidence of forgery. 98.I do not accept the criticism of Mr Wong that Mr Pong should have done something to confirm the validity of the telephone numbers of the Temple printed on the envelope and the authenticity of the envelope. 99.These matters are not made an issue. In any event the Temple is in the best position to deny the validity of the telephone numbers but no such denial has ever been made. 100.The content of the 1995 Letter is of significance. It says:
101.There, it is remarkable that So Yan did not refer to any legal relationship between Mr Pong and him in respect of the Land such as any tenancy or licence. In my view, on the balance of probabilities, there were no such relationship at all. 102.Ms Wong points out that in the 1995 Letter, So Yan did not say that Mr Pong had been adversely possessing the Land or that he had acquired a possessory title. I do not think that it would be natural for him to have said so or anything similar. There is no evidence that So Yan had any legal training. 103.Ms Wong submits that by the 1995 Letter, So Yan asserted and acknowledged his legal title to the Land and up till that point of time, he had been giving permission or licence for Mr Pong to remain on the Land. In case of non-response from Mr Pong, So Yan continued to allow Mr Pong to occupy the Land with his continuing permission. 104.I cannot accept this submission. The 1995 Letter is not amenable to such an interpretation in my judgment. Its general tenor does not suggest any assertion of his legal title against Mr Pong. The intention of So Yan was very clear. He was willing and ready to give up the Land and transfer the legal title to the Land to Mr Pong. There is no evidence as to why So Yan had such an intention and I should not surmise. But it is unreasonable and illogical for So Yan to, first assert his legal title in the beginning, then indicate his intention to gift the legal title to the Land to Mr Pong and in case, Mr Pong did not accept it, continue to permit Mr Pong and his family to occupy the Land indefinitely. 105.Another reason why I reject her submission is that it ignores the incontrovertible fact that So Yan and Mr Pong barely knew each other and there had been no previous dealing between them. 106.Mr Pong did not respond to the 1995 Letter and the Company does not suggest otherwise. There is no evidence that So Yan took any follow-up action, either. 107.In his witness statement, Mr Pong explained why he did not approach So Yan for a free transfer of the legal title to the Land. He maintained that at that time he honestly believed that he was the true owner of the Land, by law or otherwise. He testified that he understood the notion of adverse possession already. 108.Under cross-examination, Mr Pong explained what he thought about the 1995 Letter at the time when he received the same. His evidence in this respect is not easy to understand. He said that the 1995 Letter reinforced his confidence in his ownership of the Land. At the same time, he regarded it as a threat as he gathered that the Temple was the legal owner of the lands in the vicinity and the Land could be one of those lands. 109.I do not agree with Ms Wong that his suspicion that the Temple might be the legal owner of the Land is indicative of a permission or licence given to him by the Temple or the registered owners to occupy the Land. 110.The non-response of Mr Pong speaks louder than words. It cogently supports his position that he genuinely thought he had already become the owner of the Land by reason of his long-term occupation of the same. Mr Pong did not find it necessary to deal with So Yan to assert his ownership of the Land albeit he might be the paper owner. 111.His evidence is echoed by Hin’s testimony under cross-examination. He pointed out that it was otiose to ask for a formal transfer. He gave his answer spontaneously and did not seem to have prepared to give an answer similar to Mr Pong’s. Rightly or wrongly, it was their genuine view on their status or position in regard to the Land. 112.I accepted their explanation for their non-response. It is a reasonable explanation why Mr Pong did not bother to do anything to accept the offer of So Yan and formally acquire the legal title to the Land. There is no other plausible explanation suggested by the defence. 113.This lends strong support to Mr Pong’s allegation of his animus possidendi. Mr Pong believed that given his ownership of the Land, he did not need to acquire the legal title from So Yan. A fortiori, he could not have thought that he required the permission or consent of So Yan to continue to occupy the Land. 114.Whether or not Mr Pong had in fact already acquired a possessory title by 1995 is not relevant. A person who had mistakenly believed himself to be the true owner and intended to exclude everyone else can still acquire title by adverse possession: Cheung Kwong Yuen v Sun Hui Fang [2016] 1 HKLRD 464 per Kwan JA at §§11-13. 115.Ms Wong submits that Mr Pong’s belief is unreasonable as in this action, he prays for a declaration that he has acquired a possessory title to the Land and he had once sought a declaration that all records in the Land Registry of the Company being the registered owner of the Land be deleted and substituted with his name. Mr Pong has subsequently given up the latter by amending his pleading. 116.I see no merit in this submission. Prior to the 1995 Letter, there is no suggestion that Mr Pong had ever met with any challenge to his occupation of the Land. The circumstances had substantially changed when he started this action. There had already been the 2011 Investigation and the claim of the Land made by the Company through D’s solicitors by the October Letter. The declarations sought by Mr Pong is of course necessary to protect his position in view of the objection of the Company. 117.On the other hand, there is no evidence that So Yan had done anything to follow up the 1995 Letter or made further contact with Mr Pong for whatever purposes until his death in 2003. 118.In any event, any licence purportedly granted by So Yan must be determined in March 2003 when he passed away. Mr Pong’s continued possession of the Land with the requisite intention would earn him the possessory title thereof and extinguish the title of the Company pursuant to the LO in 2015. The 2011 Admission 119.The 2011 Admission is the linchpin of the defence case and it takes up the lion share of the Closing Submission. 120.The pleaded case in respect of the 2011 Admission is that some time in May 2011, Mr Pong and/or Madam Li had permitted and accepted that, the former manager of the Temple, Mr Kan and Mr Pong Senior had reached an agreement under which Mr Pong’s family was permitted to live on the Land for free.[8] Thus, the 2011 Admission was made orally allegedly. 121.Ms Wong submits that the importance of the 2011 Admission is twofold. First, it constitutes strong evidence of both (i) the existence of the licence granted by Mr Kan to Mr Pong Senior, and (ii) the subsistence or continuation of such licence, granted by Mr Kan’s estate or successors-in-title even after Mr Kan and Mr Pong Senior had passed away, up until May 2011. 122.Secondly, the 2011 Admission is irrefutable evidence that as at 15 May 2011, Mr Pong and Madam Li lacked the requisite intention to possess the Land, because they believed that their occupation was and continued to be subject to the consent and permission of the paper owner. 123.Madam Sik has no personal knowledge of the 2011 Investigation and the 2011 Admission. Neither the late Mr Sik nor Madam Sik personally heard the 2011 Admission, which was made to a police officer allegedly at the residence of Mr Pong on the Land. The police officer did not testify for the defence. 124.The only contemporaneous documentary evidence in support of the existence of the 2011 Admission is in the form of an entry of 15 May 2011 in the notebook of the police officer (“the Record”). It was recorded in the Chinese language at 1538 hours that the person who made a report was the person in charge of the Temple (the late Mr Sik) and he complained that the Land was trespassed. The police officer then contacted a woman at the Land. The woman indicated that she was not sure about the title issue and so she called her husband. From him, it was known that he had resided at the Land since his birth and he had learnt from his father that Mr Kan, in charge of the Temple, let his family members stay at the Land as a temporary accommodation free of charge. But Mr Pong could not produce any documents to evidence the foregoing account. Both his father and Mr Kan had passed away. 125.It is noteworthy that the Record differs from the pleaded case in one material aspect. In the Record, the agreement between Mr Pong Senior and Mr Kan was made to allow the Land to be a temporary accommodation only. The temporary nature of the permission is missing in the pleaded case though it appeared in the witness statement of the late Mr Sik. 126.I note that the police made two reports to D’s solicitors on the result of the 2011 Admission[9] and on both occasions the police also omitted the temporary nature of the permission for unknown reasons. The two reports were purportedly made on the basis of their record. 127.Even assuming the Record contains an accurate account of what Mr Pong told the police officer over the phone, whilst it is indisputable that Mr Kan had once agreed to grant a licence to Mr Pong Senior, I still cannot accept that the 2011 Admission can show the subsistence or continuation of such licence, granted by Mr Kan’s estate or successors-in-title even after Mr Kan and Mr Pong Senior had passed away, up until May 2011. 128.There was indeed a period between the termination of the Tenancy in 1970 and the passing of Mr Kan in 1976 that Mr Pong Senior was permitted to reside at the Land with his family free of charge. At least there is no evidence that Mr Pong Senior had paid Mr Kan anything for the stay during that period. The Record only shows that the permission to stay free of charge was temporary in nature. It cannot be taken to mean that such a permission had been extended by the estate of Mr Kan and his successors-in-title after their death until May 2011. On a fair reading of the Record, such an interpretation cannot be justified. This is also contrary to my conclusion about the 1995 Letter. 129.Furthermore, the 2011 Admission or any alleged admission as shown in the Record has to be understood in its context. It was not made during a pre-arranged interview of Mr Pong. It was made when Mr Pong picked up the phone at his workplace serving as a waiter in the cafe. Facing the police investigation without any forewarning, he came up with the account as recorded in the Record to deal with the allegation of his trespass on the Land. He raised a historical fact about the agreement, which showed that they were not outright strangers on the Land. He even failed to mention the 1995 Letter, which the defence now says suggests the existence of a continuing licence. The agreement mentioned proved to be sufficient to halt the 2011 Investigation conducted at his home in his absence. According to the police report dated 16 August 2011, the policemen were convinced that the dispute did not involve any criminal element and they suggested the late Mr Sik that he should resolve the dispute by way of civil litigation. 130.The burden to prove the 2011 Admission is on the Company. I still have to consider the evidence of Madam Li and Mr Pong on this issue. They were, on the whole, straightforward and reliable but on this issue, they were markedly cautious. Both of them denied having said anything about the agreement between Mr Kan and Mr Pong Senior. Mr Pong said he merely asked Madam Li over the phone to locate the old mails sent to the Land to show to the police officers that they had resided there for a long time. 131.I accept the validity of the criticism of Ms Wong about their evidence in this respect. I believe that more likely than not the agreement was actually raised by Mr Pong so that the police officer could make such a record with the accurate information of the parties involved such as their full names though the Chinese name of Mr Kan was incorrectly recorded. According to the Record, the police officer merely attended the scene to deal with a trespass case and he had not been given much information beforehand. Such information must be given by Mr Pong. I believe that the Record contained a precise account given by Mr Pong over the phone and I reject the evidence of Mr Pong in this regard. 132.For the other two reports made by the police, apparently they were not made contemporaneously and not by the police officers making the 2011 Investigation. I am unable to accept that they can materially add to or change anything in the contents of the Record. 133.Despite my rejection of the evidence of Mr Pong and my conclusion that he was less than frank in his evidence on his telephone conversation with the police officer, the Record did not begin to show that throughout all those years, Mr Pong had had a genuine belief that he and his family remained at the Land on the strength of the agreement, which was expressed to be temporary. I cannot allow words to be added to his account in the Record and I do not accept that the Record can give rise to those inferences now advocated by the defence. I am of the view that Mr Pong merely mentioned the agreement to show that they were not total strangers trespassing on the Land. He did not really make any statement against his interest as alleged. 134.To conclude, I can only accept that Mr Pong said those things as shown in the Record. I do not accept the accuracy of the 2011 Admission and I cannot accept that the Record can negate the animus possidendi of Mr Pong over the years. 135.I further note that in the October Letter, D’s solicitors did not allege any grant of a new or extended licence after the death of Mr Kan at all. Implied licence? 136.Despite the intractable problem that the plea of an implied licence is not pleaded, I should now deal with the submissions of Ms Wong on this issue. 137.Ms Wong submits that in the absence of any response to the 1995 Letter, So Yan continued to allow Mr Pong to occupy the Land with his continuing permission/licence. 138.She then refers to BP Properties v Buckler (1988) P & CR 337 for the proposition that a registered owner can grant a unilateral licence even in the absence of any positive response or formal acceptance by the squatter. 139.She further submits that a licence may be implied where (i) there is some overt act by the landowner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given; and (ii) a reasonable person would have appreciated that the user was with the permission of the owner. 140.Lastly, she submits that where a person in possession of land is negotiating with the owner for the grant of some interest in that land, there may also be a natural inference from the circumstances that the owner permits the occupier to be on the land pending the result of the negotiations: Colin Dawson Windows v King’s Lynn and West Norfolk BC[2005] 2 P&CR 19 at §§33-40; Smart v Lambeth LBC [2013] EWCA Civ 1375, [2014] HLR 7 at §35 per Floyd LJ. I fail to see how Mr Pong could be taken to be in negotiation with So Yan for the transfer of the legal title when he received the 1995 Letter. 141.Ms Wong relies on a piece of evidence of Hin to the effect that Mr Pong had told him that the Temple sent the 1995 Letter and allowed them to continue to reside at the Land. I believe that his evidence is taken out of context and what he said cannot possibly amount to an admission that So Yan granted a licence to them by implication. 142.I agree with Mr Leung that the plea of an implied licence is a non-starter. The defence simply fails to suggest what the overt acts of So Yan capable of giving rise to an implied licence are. Apart from the 1995 Letter, there is not a shred of evidence how he dealt with the Land vis à vis Mr Pong. So Yan did not even mention any permission or licence ever given to Mr Pong to occupy the Land in the 1995 Letter. 143.I also accept the evidence of Mr Pong and Hin in regard to the 1995 Letter and there is no room for any implication of a licence at all. 144.The inaction of So Yan after the issue of the 1995 Letter could not possibly be taken to be a grant of a licence by implication. It is trite that mere acquiescence cannot be sufficient to establish implied licence: Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd, unreported, HCA15824/1999, 11.10.2007 at §127 per Lam J (as he then was) and Poon Chi Hang, supra, per Barma JA at §31. 145.Lord Walker giving the leading speech in the House of Lords in R (on the application of Beresford) v Sunderland City Council [2004] 1 AC 889 had this to say about acquiescence in the law of adverse possession,
146.To conclude, the present state of the pleading and the evidence cannot allow a finding of an implied licence at all. Miscellaneous arguments 147.Ms Wong points out that the Land was allocated a squatter survey number the squatter control policy when Mr Pong was a child. She submits that this can negate any animus possidendi. I accept the submission of Mr Leung that the squatter control policy bears no relevance to an adverse possession claim in respect of land under private ownership: Chong Hing Bank Ltd v Fairview City Ltd & Ors.[2018] HKCFI 1732 . 148.Ms Wong also highlights that Mr Pong has over the years failed to pay any government rent or rates for the Land and ignored the letters form the Lands Department demanding his action to clear dangerous trees and unauthorized building works. She submits that this conduct is inconsistent with acts expected of a true owner of the Land and his stated intention of having treated the Land as his own. 149.I cannot accept this submission. The persistent failure on the part of Mr Pong to comply with the demands of the authorities merely shows that he is not a responsible and law-abiding person. It does not show that he is in fact a licensee. 150.Ms Wong cites to me HSBC Private Trust (Hong Kong) Ltd v Au Yeung Chung, unreported, HCA 1662/2001, 4.1.2008 for the proposition that a bare licence or implied licence granted by a deceased could be renewed or continued by his successors or personal representatives. I have no doubt about the validity of the proposition but in the present case the evidence simply does not support such renewal or continuation. 151.Lastly, Ms Wong refers to me the following dictum of Rogers VP in Cheung Chung Yan v Chan Man Kwong, unreported, CACV268/2003, 12.2.2004 at §22:
152.The facts in Cheung Chung Yan are very different from those in the present case. In that case, the plaintiff is the younger sister of the 2nd defendant and the 1st defendant is the husband of the 2nd defendant, in other words, the brother-in-law of the plaintiff. The 3rd defendant is the daughter of the 1st and 2nd defendants. 153.The defendants previously enjoyed a licence granted by the late father of the plaintiff. And the plaintiff and the 2nd defendant were on good terms after the death of their father. It was therefore held that the termination of the licence upon the death of the father did not alter the intention of the defendants in their occupation of the land respecting the true owner’s ownership. 154.In the present case, there is no evidence that Mr Pong knew Mr Kan or So Yan personally and that he was aware of their passing. There is also no evidence that Mr Kan knew, let alone having a good relationship with, any of their successors in title. 155.In the circumstances, I am of the view that Cheung Chung Yan does not assist the defence at all. 156.In light of the foregoing analysis, I have found against the alleged existence of a licence under which Mr Pong and his family reside at the Land after the licence granted by Mr Kan was terminated in 1976 upon his death. Mr Pong and his family cannot have any knowledge, belief or understanding of any such alleged licence. Other elements 157.Though my factual findings thus far are sufficient to dispose of the two issues identified by Ms Wong, I am aware that the burden is still on Mr Pong to prove his fulfilment of all the requirements of a plea of adverse possession by compelling evidence. 158.Regarding exclusive possession of the Land with an intention to exclude the world at large, the defence does not really have a positive case. The Company does not adduce contrary evidence. There is no allegation that someone other than Mr Pong and his family has the possession of the Land too. The Company has not adduced its own expert evidence to contradict the Expert Report. 159.Whilst enclosure is the strongest possible evidence of adverse possession, it is not dispensable. In Gotland Enterprises Ltd v Kwok Chi Yau and Ors, unreported, CACV 260/2014, 19.1.2016 at §37, Lam VP said,
160.In the SOC, it is pleaded that throughout the years, Mr Pong and his family has exclusive possession of the Land with the erection of the Wooden Hut, Houses 1 and 2 and the New House. They also surrounded the Land with wire mesh and/or ridge and/or enclosure wall of about 4 feet tall since 1970s and erected a gate with lock and key for entrance and exit. They also keep a number of dogs as a security measure to guard the Land against trespassers. 161.These allegations were borne out by the evidence of Mr Pong including photos, which was not seriously challenged by way of cross-examination. 162.I accept the physical setting of the Land renders it impracticable to fence off the entire area. Indeed, I do not find it necessary for the purpose of proving exclusive possession. The Land is sufficiently enclosed by the slope to the north, the boundary wall of the Elderly Home to the east, natural barriers in the form of trees, rocks and boulders to the west and the metal fence on the southern side. All these were shown by the survey sheets, aerial photos and/or photos in the Expert Report. 163.I do not think it is necessary for Mr Pong to construct the slope and the boundary wall of the Elderly Home and to put in place the natural barriers. What matters is that they are available to Mr Pong to enclose the Land and exclude the world at large. 164.I am not impressed by Mr Ma’s evidence except the documents exhibited in the Expert Report. It is alarming that he accepted that one of his conclusions in the Expert Report was reached only by way of speculation. However, Mr Pong does not need to rely on such evidence at all. 165.In the circumstances, I am satisfied that Mr Pong has established exclusive occupation of the Land throughout the years and no other people including the agents of or any people authorised by the registered owners were free to enter the Land and share possession of the same with Mr Pong. He has exhibited the requisite intention to exclude the world at large including the registered owners from the Land so far as is reasonably practicable and so far as the law allows. Conclusion and Orders 166.For the reasons given, Mr Pong has proved to my satisfaction that he has had both the factual possession and the requisite intention to possess the Land since 1983 or by 1995 at the latest. His exclusive and uninterrupted occupation of the Land since 1983 has been without any permission or licence granted by any of the registered owners of the Land. 167.Therefore, Mr Pong must succeed in his claim of adverse possession no matter which requisite period (20 years or 12 years) is applicable. I enter judgment in favour of Mr Pong and grant the two declarations sought in the SOC. 168.There is no reason why costs should not follow the event. I make an order nisi that Mr Pong should have his costs of the action including any costs previously reserved, to be taxed if not agreed with certificate for counsel. Mr Pong’s own costs should be taxed in accordance with the Legal Aid Regulations. 169.Lastly, I thank Mr Leung, Ms Wong and Ms Sheena Wong for their impressive industry and thorough written submissions, which have immensely assisted this court.
Mr. Adrian Leung, instructed by S. C. Ho & Co., assigned by the Director of Legal Aid, for the plaintiff Ms. Maggie Wong SC and Ms. Sheena Wong, instructed by M.K. Lam & Co., for the defendant [1] §3(1) of the Re-Amended Defence. [2] Powell v McFarlane (1979) 38 P&CR 452, Slade J 470 [3] Ibid 470/1 [4] Ibid 471/2 [5] Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498, Chan PJ §5 [6] Bolton Metropolitan Borough Council v Musa Ali Qasmi (1999) 77 P&CR D36 [7] Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232, Lord Hoffmann 1235 D-F [8] §12(2) of the Re-Amended Defence. [9] First on 18 August 2016 and then on 19 December 2016. | ||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case