Leung Chi Cheong (The Person Appointed To Represent the Estate of Leung Fai, Deceased) v. Liu Che Wun and Another

HCA 1128/2007

[2021] HKCFI 2435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1128 OF 2007

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BETWEEN

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Before:  Hon Wilson Chan J in Court

Dates of Hearing:  11 to 13, 16 November; 7 to 8 December 2020 and 10 February 2021

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J U D G M E N T

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A.  INTRODUCTION

1.Leung Chi Cheong, the plaintiff, is the personal representative of the estate (“Estate”)  of his father, Leung Fai (the “Deceased”). The 1^st defendant, Madam Liu Che Wun (“Madam Liu” or the “1^st defendant”), is the second wife of the Deceased and step-mother of the plaintiff.

2.The plaintiff, as personal representative of the Estate, commenced the present action against the 1^st defendant for trespassing part of Lot 769 in Demarcation District 99 in Mai Po, Yuen Long (the “Land”)  and claims injunction restraining Madam Liu from entering or using the Land and damages and/or mesne profit for trespass.

3.The 2^nd defendant is a nominal defendant representing every other person in occupation of the Land.

B.  BACKGROUND

4.Madam Liu’s case is that she started co-habiting with the Deceased on the Land in 1980.  In addition to living in the structures erected on the Land, Madam Liu and the Deceased jointly carried out fish breeding activities at the fishpond on the Land (“Fishpond”).

5.In the late 1980s, since the fish breeding business deteriorated, Madam Liu and the Deceased ceased conducting the business and the Deceased began to sell sweet soup in the Yuen Long area while Madam Liu maintained the Land including the Fishpond.

6.Madam Liu gave birth to a daughter on 14 September 1981 (the “Daughter”)  and the couple subsequently got married on 5 July 1986.  They divorced in around the mid-1990s, and on Madam Liu’s case, upon advice of immigration consultant for the purpose of facilitating the Daughter’s emigration to the USA.  Despite the divorce, Madam Liu continued to live on the Land with the Deceased as husband and wife and they remarried on 2 September 1997.

7.In about 1991, Madam Liu and the Deceased jointly decided to reclaim the Fishpond and converted the area into a car parking area for container trucks/lorries (“Car Park”).  Madam Liu and the Deceased jointly managed the business of the Car Park for profits.

8.On 10 September 1992, in HCA 6145/1992, Birkenhead Properties and Investment Ltd (“Birkenhead”), registered owner of a larger piece of land including the Land (“Birkenhead Land”), commenced proceedings against the Deceased for, inter alia, possession of the Birkenhead Land.  The Deceased counterclaimed for possessory title thereto on the ground of adverse possession (the “1992 Action”).

9.At one stage in 2001, Madam Liu applied to be joined as a party in the 1992 Action on the ground that she also had interest in the Birkenhead Land; but withdrew her application in 2009 thinking that the Deceased’s said claim would protect her interest and status relating to the subject land in dispute.

10.It is Madam Liu’s case that she had all along been in joint possession of the Land with the Deceased as joint squatters.

11.Before the conclusion of the 1992 Action, the Deceased died on 28 December 2000.  The Deceased left a Will dated 19 January 1999, devising all his estate to his sons, including the plaintiff.

12.After and despite the Deceased’s death on 28 December 2000, Madam Liu continued to manage the business of the Car Park until about 2004.

13.Madam Liu also continued to reside on and was in possession of the Land until early 2006.

14.On 30 May 2007, prior to the conclusion of the 1992 Action, the plaintiff commenced the present action against Madam Liu.

15.According to Madam Liu, having been misled by the plaintiff’s misrepresentation as to the legal consequences of the Will and in the absence of legal advice, in or about early October 2009, Madam Liu delivered the keys of her house situated on the Land and the keys to the gates of the Car Park to the plaintiff’s solicitors and vacated from the Land.  The plaintiff has since been in physical possession of the Land. 

16.On 2 February 2011, the Deceased’s counterclaim in the 1992 Action against the registered owner partially succeeded when the court held that he had acquired good possessory title of part of the Birkenhead Land ie the Land in dispute in the present action.

C.  THE PLAINTIFF’S CASE

17.The plaintiff’s case is that Madam Liu trespassed onto the Land after the death of the Deceased and the plaintiff claims injunction restraining Madam Liu from entering or using the Land and damages and/or mesne profit for trespass.

D.  THE 1^ST DEFENDANT’S CASE

18.Madam Liu’s defence/counterclaim is that she is entitled to possess the Land as she had been in possession of the Land from the 1980s to 2009, when she was deceived into delivering up possession to the plaintiff:

(1)  For the period prior to the Deceased’s death from the 1980s to 28 December 2000, she jointly possessed the Land with the Deceased as joint squatters with equal rights and interests.

(2)  For the period after the Deceased’s death from 2000 to 2009, Madam Liu continued to possess the Land as squatter.  The 1^st defendant therefore had accrued squatter’s possessory title which runs parallel to the Deceased’s squatter’s right.

19.Therefore, at the time of commencement of this action on 30 May 2007, Madam Liu had good possessory title of the Land and was entitled to continue with her possession as squatter.  Hence, since the 1^st defendant was cheated by misrepresentation to vacate the Land and deliver physical possession to the plaintiff, the 1^st defendant is entitled to resume possession of the Land.

20.Further or alternatively, the 1^st defendant was entitled to stay on and use the Land by reason of common intention constructive trust/proprietary estoppel on the strength of the Deceased’s representations and conduct supported by their relationship.

21.Further, the 1^st defendant is entitled to reasonable provision under the Inheritance (Provision for Family and Dependents)  Ordinance, Cap 481 (“IPFDO”), as the Deceased had not made any provisions for the 1^st defendant in his will when the 1^st defendant was provided by the Deceased before his death.

E.  ISSUES AT TRIAL

22.The 1^st defendant’s submissions can be summarised as follows:

(1)  The 1^st defendant jointly possessed the Land from 1980 to 2000 with the Deceased as joint squatters and thereafter as sole squatter until 2009.  In the absence of any direct evidence of licence, the plaintiff’s attempt to rely on the alleged autocratic character of the Deceased to support an inference that the Deceased licensed his wife, the 1^st defendant, to occupy and live on the Land must fail.  The 1^st defendant’s primary case of having a squatter’s title in her own right as a tenant in common with equal share with the Estate should be upheld.

(2)  Alternatively, Madam Liu is entitled to continue to possess the Land as she holds beneficial interest in the Land by the operation of common intention constructive trust/proprietary estoppel by reason of representations/promises of the Deceased to the 1^st defendant.

(3)  Alternative to the above causes of action relating to the Land, if the court finds that the 1^st defendant does not possess any interest in the Land, the 1^st defendant, being a dependent of the Deceased prior to his death in terms of provision of (a)  residence for the 1^st defendant to live in for decades and (b)  household and daily living, and was not reasonably provided in the Deceased’s will, should be entitled to reasonable financial provision from the estate of the Deceased which owns squatter’s possessory title to the Land and earned profits therefrom under the IPFDO.

F.  THE 1^ST DEFENDANT’S ADVERSE POSSESSORY TITLE ON HER OWN RIGHT

F1.  The 1^st defendant was a joint squatter with the Deceased as Husband and Wife

F1(a).  Overview on the main issue

23.The main plank of the 1^st defendant’s argument regarding the cause of action of joint squatters of equal right is this: the squatter’s possessory title of the 1^st defendant co-existed with that of the Deceased when they both had physical possession of the Land, without one being a licensee of the other.

24.As submitted by the 1^st defendant, single and joint possession can be exercised by several persons (usually in the context of a family situation).  When more than one squatter has possession simultaneously, the title acquired is held by the squatters jointly (Powell v McFarlane (1979)  38 P & CR 452, at p 470 and U Po Chu v Tsang Pui Ling DCMP 467/2013 (unrep, 30 June 2016), at §§ 43-45).  In those circumstances, vis-a-vis the outside world including the registered owner of the land, adverse possession is by one single and joint family unit.  Each one of the possessors can defend the owner’s suit to recover possession.  The 1992 Action is a contest between the Deceased and the owner in the above context.  The 1992 Action did not deal with, let alone resolve, any question of relationship among the joint possessors within the family or whether licences have been granted by one of the possessors to the others.

25.However, when it comes to the internal relationship between adverse possessors within the family, that is a completely different context with which the present case is concerned.  Unless otherwise proven, prima facie each possessor of the land should have his/her own squatter’s right.

26.As submitted by the 1^st defendant, the only exception to the above situation in law is when one squatter grants licences to the other occupants to stay, live or work on the land.  In that event, the squatter’s right belongs to the licensor while his licensees stay under the permission of the licensor and do not have any squatter’s right.

27.To put the above exception into the context of the present case, the question is whether it is proved that the Deceased granted a licence to his wife, the 1^st defendant for her to stay, live and operate businesses on the Land with him.  If no such licence is proved, the prima facie position of each squatter/possessor having his/her own right, such that the 1^st defendant has squatter’s right of her own, prevails.  In other words, the Deceased would have no right to evict the 1^st defendant from the Land during the Deceased’s lifetime and hence the plaintiff being the executor of the estate of the Deceased would have no right to evict the 1^st defendant either.

28.With the evidence adduced by the 1^st defendant, the 1^st defendant submits that there was no licence at all because she and the Deceased were husband and wife and nobody talked about matters like “licence” to stay.  Such evidence is logical and natural in any normal marital relationship.  This is especially so when in this case the Land was not legally purchased by or owned in the name of the Deceased, but was in the course of accrual of adverse possession and was the matrimonial home of the Deceased and the 1^st defendant as a couple (the “Couple”).

29.In the plaintiff’s case at trial, no direct evidence has been adduced to support the bare assertion of licence having been granted by the Deceased to the 1^st defendant.  During the long period after all the children of the Deceased had left the Land in around 1991 and prior to the death of the Deceased, the only persons living on and occupying the Land were the Deceased and the 1^st defendant.  Hence, only the Deceased and the 1^st defendant could depose to their marital relationship, daily married life and intimate conversations.  It is therefore understandable and to be expected that the plaintiff has no direct evidence to prove any licence.  The plaintiff thus resorted to painting a picture of the Deceased’s character as a controlling and autocratic person and that he presented himself to outsiders as the main operator of the family businesses and used his name on utilities registration; so as to invite the court to draw the inference that the Deceased had granted a licence to the 1^st defendant during his lifetime, as oppose to sharing joint possession of the Land with the 1^st defendant.

30.The nature of the relationship between the joint occupants is important, since common sense would suggest the prima facie answer as to whether a licence exists.  The present case of joint occupation does not involve the following relationships which would usually impute a licence:

(1)  parents vis-a-vis children;

(2)  employers vis-a-vis staff; or

(3)  a squatter allowing friends of relatives to stay with him temporarily or even for lengthy period.

The relationship in the present case is a married couple using the Land as their matrimonial home and operating the family businesses on the Land next to the matrimonial house to support the living of their family.  The prima facie and logical effect and deduction is that the married couple have an established marriage tie unique to themselves and they share their matrimonial home and lived together without distinction or superior right of one over the other.  This is especially so when during the limitation period none of them had established title to the Land, as they were both in the process of jointly acquiring a squatter’s title.  In the circumstances there is all the more reason for the Couple not to have discussed about who “owned” the Land or had superior rights relating to the Land, as the 1^st defendant reasonably testified.

31.Factually, there are 3 possible scenarios:

(1)  The Deceased licensed Madam Liu to stay on the Land;

(2)  Madam Liu licensed the Deceased to stay on the Land (which is not the 1^st defendant’s case and hence can be ignored);

(3)  Neither the Deceased nor Madam Liu licensed the other to stay (ie joint possession of the Land when each has his/her own squatter’s right).

32.The court has to determine which of the first or third scenarios is the state of affairs in the present case.  The plaintiff’s case is scenario (1)  whereas the 1^st defendant’s case is scenario (3).  Since there is no documentary evidence to prove any licence, the intentions of the Deceased and Madam Liu and their relationship as married couple would be the most relevant factors.

33.The 1^st defendant submits that the overall evidence clearly supports scenario (3), ie the Deceased and Madam Liu jointly possessed the Land as joint squatters and no licence by the Deceased to the 1^st defendant existed.

F1(b).  Analysis of evidence in relation to joint squatters

34.Before analysing the relevant evidence, the court notes the following important and undisputed matters/facts,

(1)  The 1^st defendant moved into and lived in the house on the Land in 1980 and thereafter singlehandedly and continuously took care of the Deceased’s daily living and health until his death in 2000, for about 20 years.

(2)  The Couple gave birth to a daughter in 1981.

(3)  After a period of co-habitation, they got married in 1986.

(4)  Their long relationship as married couple was made known to the Deceased’s children and people around such as neighbours and business associates, for instance Mr Au Yeung (“DW2”).

(5)  The 1^st defendant helped out in the Deceased’s business of both fish rearing and sale and car parking, and this was well known to others including DW2, and that decisions could be made by the 1^st defendant concerning the businesses when the Deceased was not around.

(6)  The Deceased did show love and care for the 1^st defendant to be expected of a husband in an ordinary marriage relationship which was demonstrated by the plaintiff’s own testimony relating to the reason for the Deceased’s absence from the plaintiff’s marriage ceremony, ie the Deceased did not want to upset the 1^st defendant.  The true marital relationship is also demonstrated by the fact that in all the letters the Deceased wrote to Leung Chi Ming produced by the plaintiff, no single word was said by the Deceased complaining or pointing at any misconduct of the 1^st defendant or that the 1^st defendant only wanted money from the Deceased.

(7)  There is no evidence, whether documentary or oral testimony, pointing out or even hinting that in respect of the use of the Land the Deceased treated the 1^st defendant as a mere licensee.  As a matter of fact and to the contrary, it is clear from the uncontradicted evidence of the 1^st defendant concerning the incident of the 1^st defendant leaving home with the Daughter for a few days, it was the Deceased who begged/requested the 1^st defendant to go back to the house on the Land to live with him again.

35.Given the clear and uncontroversial fact that the Deceased and the 1^st defendant had lived as an ordinary married couple for decades treating the Land as their matrimonial home, a prima facie case of joint adverse possession is made out.  The burden is thus on the plaintiff to prove the existence of a licence contrary to the above ordinary relationship and prima facie case.

F1(c).  The plaintiff’s attempt to rely on indirect evidence to prove an alleged licence

36.Whether there existed a licence is a matter privy only to the Deceased and the 1^st defendant.  In the absence of any direct evidence, the plaintiff resorted to adducing indirect evidence so as to invite the court to infer the existence of a licence.  Such indirect evidence includes:

(1)  painting a picture of the Deceased’s dominant personality; and

(2)  belittling the Deceased’s relationship with the 1^st defendant to the absurd extent that the Deceased treated the 1^st defendant as a prostitute.

37.For the reasons set out below, the 1^st defendant submits that the indirect evidence adduced by the plaintiff does not support an inference that the Deceased granted a licence to Madam Liu to stay on the Land.

F1(d).  The plaintiff and PW2 do not know and could not present a complete picture of the relationship between the Couple who were living on the Land by themselves for decades 

38.The plaintiff himself admitted that after he left the Land in around 1990, there was no contact with the Deceased at least from 1990 to 1995 (絕少聯絡).  From 1995 onwards, he only went back to the Land for 3 to 4 times a year and he never went into the house where Madam Liu resided.  He agreed that from the 1990s to the Deceased’s death, he never saw and had no knowledge as to how the Deceased and Madam Liu interacted with each other.

39.The plaintiff’s elder brother, Leung Chi Ming (“PW2”)  left the Land even earlier to study in Taiwan in 1978.  Although he returned to the Land within 6 months, he emigrated to the Netherlands in 1981 and have lived there ever since.  He visited the Land from March to November 1983, then for the subsequent 10 years (from 1983 to 1993), he did not visit the Land at all.  Since 1993, he came back 1 to 2 times per year.  He agreed that he had knowledge of most family events through hearsay from his siblings and the Deceased.

40.By the very fact that both the plaintiff and PW2 ceased living on the Land since they were young, thus not spending any substantial time with the Couple, their evidence on matters such as the relationship between the Couple must be mere general impression and speculations based on distorted impressions of their own.  I agree that they cannot be relied upon to present a complete picture of the relationship of the Deceased and Madam Liu and their activities on the Land.

F1(e).  The Deceased’s personality

41.The plaintiff tried very hard to paint a false picture of the Deceased’s personality, so as to make the point that it was unlikely for the Deceased to have treated Madam Liu as an equal, rather than a mere licensee.

42.The plaintiff described the Deceased as a stubborn (“倔強”, “獨行獨斷”)  person, self-centered (“自我中心”), very traditional Chinese village style, and autocratic (“專制, 獨裁”, “大男人” and “一家之主”).  The plaintiff also alleged that the Deceased handled the 1992 Action alone all by himself to demonstrate the above character.

43.As observed by the court during the trial, a person may have different and even inconsistent aspects of character, to be displayed at different times in life and on different occasions.  It is thus very artificial to assert that the Deceased had only the one-sided personality as suggested by the plaintiff.  I agree that from the overall evidence, the Deceased is far from having the generalized personality painted by the plaintiff as being always dominating in every aspects of life.  This is simply untrue.

44.For example, in his witness statement, the plaintiff gave evidence that Madam Liu attended the solicitors firm to supervise (監督)  the progress of the 1992 Action.  In this regard, the plaintiff accepted during cross-examination to the effect that if the Deceased indeed had such an authoritarian personality, no one would dare to supervise his discussions with his solicitors.  He further retracted his evidence and accepted that it was incorrect to say that the Deceased handled the 1992 Action alone.

45.One of the most striking evidence to contradict the plaintiff’s portray of the Deceased is the Deceased’s letters to PW2.  They show vividly that the Deceased was capable of self-reflection and had a very rational side within his personality.  For instance, in the Deceased’s letter to PW2 dated 6 May 1995 (“Deceased’s 4^th Letter”), the Deceased said he regretted having a temper and caused separation with his children (很久很久很想約在港兒女聚首䓵茶，只怪自己一時火氣鑄成了分離之錯，所以我沒勇氣約他們，希望他們原諒我).

46.From the other significant life events and contemporaneous letters, the court finds that the Deceased had other aspects to his character: a caring, understanding and even tender husband and father with a rational mind, which negates the picture the plaintiff wishes to paint about the Deceased:

(1)  The Deceased chose not to attend the plaintiff’s wedding because he did not want to upset Madam Liu.

(2)  The Deceased showed his remorse of having driven the plaintiff and his siblings away from the house on the Land in 1991 in the Deceased’s 4^th Letter to PW2.

(3)  That the Deceased wanted to contact his children in Hong Kong to gather with them.

(4)  That the Deceased repeatedly expressed gratitude to PW2 about the money PW2 had sent to the Deceased in all his letters to PW2.

(5)  From the contents of the letter written by the 1^st defendant to the Deceased in 1995, the 1^st defendant addressed herself as “wife”, which shows that their relationship was very normal and the Deceased cared about his daughter by providing $8,000 per month for her living in the US.

(6)  On the plaintiff’s own case that the Deceased agreed to remarry the 1^st defendant in 1997.

47.There is simply nothing about the character of the Deceased based on which an inference can be drawn that he merely granted a licence for the 1^st defendant to stay on the Land.

F1(f).  The relationship between the Deceased and Madam Liu

48.One of the main aspects of the plaintiff’s case is that the Deceased and Madam Liu’s relationship is not one of love and affection.  The following is what the plaintiff wants the court to find:

(1)  Madam Liu was only going after the Deceased’s money from the start so that the Deceased would provide her with financial stability.  In support of this theory, the plaintiff speculated that when the Deceased’s financial situation deteriorated and was at the lowest point of his life in 1994, Madam Liu divorced him, and in 1997 when the Deceased’s financial situation improved, Madam Liu came back to remarry him.

(2)  The Deceased did not genuinely love Madam Liu and he treated her as a prostitute only.

The plaintiff suggests that by reason of such relationship it could be inferred that the 1^st defendant was only granted a licence to stay on the Land by the Deceased.

49.One of the matters to be decided by the court in relation to the above allegations of the plaintiff is whether the 1^st defendant actually left the Land and did not live with the Deceased from the time of divorce in 1994 to remarriage in 1997.

50.The 1^st defendant’s evidence in this respect is clear, uncontradicted, inherently probable and supported by the contemporaneous letter written by the 1^st defendant to the Deceased in 1995 (“D1’s Letter”):

(1)  The daughter had left Hong Kong for studies in the US in 1992 and the Deceased supported her living by providing $8,000 per month.

(2)  The divorce was only a sham so as to facilitate an adoption by the 1^st defendant’s mother of the Daughter in the US so that the Daughter can apply for emigration to the US.

(3)  Despite the divorce, the 1^st defendant never left the house on the Land and the 1^st defendant continued to live together with the Deceased.

(4)  It was when the 1^st defendant’s mother reminded the 1^st defendant of the need to protect herself and her status as wife that the 1^st defendant suggested to the Deceased to get remarried, which the Deceased agreed and they registered marriage again in 1997.

51.I agree that D1’s Letter lends strong support to the 1^st defendant’s case for the following additional reasons:

(1)  From the opening paragraph of the D1’s Letter, it is clear that she was living with the Deceased on the Land at the time when the letter was written.

(2)  The 1^st defendant signed off D1’s Letter with “老婆字”, which shows that the Couple treated and addressed each other as married couple.  If D1’s Letter was written during the period between 1994 to 1997, that would clearly support the 1^st defendant’s case that the divorce was a sham.

(3)  D1’s Letter was on the balance of probabilities written in 1995 or thereabout.  On the plaintiff’s own case, PW2’s evidence is that D1’s Letter was given to him by the Deceased in 1995.  This is corroborated by the 1^st defendant’s evidence that it was written around 1995 and when the Daughter was back from the US for holidays.  The other telling feature is that D1’s Letter was written on a writing paper pad with the figure “1995.9” printed at the bottom.  The inference is that the paper was part of a writing pad issued in 1995.  All the above supports the fact that the D1’s Letter was written in about 1995.

52.The plaintiff’s general allegation that the 1^st defendant was only going after the Deceased’s money is really speculative without any concrete supporting evidence and worst still it is against common sense and is inherently improbable:

(1)  The 1^st defendant came to know the Deceased when she was about 20 years old and cohabited with him and later got married with him and had been living with him since 1980 for the whole of the rest of his life.

(2)  From the general picture which was not disputed by the plaintiff, the Deceased had the bad habit of gambling and drug taking, which the 1^st defendant came to know after co-habiting with the Deceased.  It is common ground that the Deceased suffered from bad health with asthma.

(3)  It is also common ground that the Deceased could not be wealthy at all with no landed properties under his name and had to occupy land of others.  He at the end of his life did not manage to save any money and his estate consists only of the interest in the subject Land.  It is true to say that the Deceased had never been well off and was penniless when he died.

(4)  Despite all the above and even after discovering all the circumstances of the Deceased, the 1^st defendant chose to give birth to a daughter of the Deceased and had taken care of the Deceased as his wife until his death.

(5)  Throughout the marriage with the Deceased there is no evidence produced and it must be a fact that the 1^st defendant did not get anything of value out of the marriage and relationship with the Deceased.

(6)  Not only that the 1^st defendant had not left the Deceased and spent all her youthful and prime time of her life with the Deceased, the 1^st defendant took good care of the Deceased without any assistance from the children of the Deceased until he died.

53.Contrary to the plaintiff’s allegation, the 1^st defendant stayed with the Deceased despite the family’s harsh financial situation and despite the Deceased’s long and continuous gambling and drug addiction.  In fact, the 1^st defendant was the only person who took care of the Deceased after the plaintiff and his siblings left the Land in early 1990s, this was accepted by the plaintiff during his cross examination.  The fact that the 1^st defendant had stayed with the Deceased for all his life through thick and thin shows that their relationship is a genuine husband and wife relationship based on love and affection.

54.The plaintiff also went so far as to suggest that the Deceased did not treat Madam Liu as a true wife and to belittle their relationship to the extent that the plaintiff alleges that the Deceased treats Madam Liu as a prostitute (當叫雞), the Deceased gave $8,000 to Madam Liu as “salary” for “serving” (“服侍”)  him and that the Deceased did not wish Madam Liu to have a share of the Estate.

55.However, I agree that the objective evidence adduced at trial shows that the above hurtful assertions cannot be true:

(1)  On the documentary evidence adduced by the plaintiff, the Deceased did not make any negative comments about Madam Liu.

(2)  On the evidence of the plaintiff, the Deceased chose not to attend the plaintiff’s wedding as he did not want to upset Madam Liu.  If the Deceased had such a traditional and authoritarian personality as portrayed by the plaintiff, and if he treated Madam Liu as simply a prostitute, he would no doubt have gone to the plaintiff’s wedding (a traditionally important event)  without caring about Madam Liu’s feelings.

(3)  The Deceased went to the place of Madam Liu’s friend to ask Madam Liu to return to the Land with him and promised Madam Liu that he would quit gambling and taking drugs.

(4)  Madam Liu said she would collect the money earned from the fish breeding business if she was on the Land; further the money earned from the fish breeding and car park business was put in the drawer in the family home on the Land for both Madam Liu and the Deceased to use for family expenses (無分彼此).

56.The evidence before the court plainly shows that the relationship of the Deceased and Madam Liu was a normal relationship of husband and wife based on love and affection.

F1(g).  Conclusion on whether the 1^st defendant was a joint squatter or a mere licensee of the Land

57.I agree that the 1^st defendant’s case had been consistent from start to finish.  The 1^st defendant’s joint management of the business with the Deceased is supported by the evidence of DW2, a truly independent witness with no interest at all in the Land and in this litigation.  DW2’s evidence in court is consistent with his account in his witness statement and unshaken in cross-examination.  He said both the 1^st defendant and the Deceased would discuss with him the amount of his fees for helping them transport their fish to the market and other matters relating to the fish breeding business on the Land.  After the Fishpond was reclaimed, DW2 would put his trucks and fish feeds on the Car Park after seeking permission from either the Deceased or Madam Liu.  This truly independent evidence corroborates the 1^st defendant’s evidence and demonstrates that the Couple were actually jointly responsible for and did conduct their family business as husband and wife with no superior rights one over the other.

58.In conclusion, the plaintiff has failed to prove that Madam Liu was a mere licensee of the Land.  I find that Madam Liu was a joint squatter of equal right on the Land, the Deceased and Madam Liu both had physical possession of the Land, without one being a licensee of the other.

59.Madam Liu jointly possessed the Land with the Deceased from 1980 to 2000 and thereafter solely and adversely possessed the Land until 2009.  Applying U Po Chu v Tsang Pui Ling, supra, the squatters title to the Land was held by both Madam Liu and the Deceased jointly with equal rights.  The Estate and Madam Liu are therefore jointly entitled to occupy the Land.

60.After the death of the Deceased, from 2000 to 2006, the 1^st defendant continued to occupy and live on the Land solely.  Since about 2006, Madam Liu ceased to reside on the Land, but she continued to keep the keys to the Land and the house therefore continued to be in constructive possession thereof.  Madam Liu mistakenly handed over the Land to the plaintiff in 2009.  However, by reason of the accrued squatter’s right of the Madam Liu of her own, she is entitled to continue to possess the Land jointly with the Estate.  At the time of commencement of this action in 2007 the plaintiff did not have a valid cause of action to evict the 1^st defendant and the position would not have been changed by the event in 2009.  The plaintiff has wrongfully ousted Madam Liu from the Land since early October 2009.

F2.  Birkenhead’s title already extinguished in 1982 so that Madam  Liu could not adversely possess the Land?

61.In further response to the 1^st defendant’s case based on adverse possession on her own right, the plaintiff points out that the 4 unities of time, title, interest and possession for joint tenancy are missing.  In particular, as regard unity of title, each joint tenant must take title to the land under the same act or document.  This requirement is satisfied if all the tenants acquired their rights by the same conveyance or if they simultaneously took possession of land and acquired title to it by adverse possession.

62.The plaintiff further submits that the Deceased was already in adverse possession of the Land in 1962.  Counting from 1962 for purpose of the present discussion, he would have, by his continuous adverse possession of over 20 years from 1962 to 1982, extinguished the title of Birkenhead in 1982.

63.The plaintiff goes on to submit that even assuming that the 1^st defendant started her adverse possession as from 1980 against Birkenhead, Birkenhead’s title was already extinguished by the Deceased in 1982.  As from 1982, Birkenhead had no title for the 1^st defendant’s “adverse possession” to “defeat”.  The 1^st defendant could not have been a “squatter” vis-a-vis Birkenhead for adverse possession purposes.

64.In dealing with this argument, first of all, it should be pointed out that there is no finding in the Judgment in the 1992 Action that the Land had been possessed by the Deceased in 1962.  The only holding was that possession had begun “since before 10 September 1972” (see: Birkenhead Properties and Investments Ltd v Leung Chi Cheong, HCA 6145/1992 (unrep, 2 February 2011), §§119&123).

65.Further, in my view, even if the title of Birkenhead had been extinguished vis-a-vis the Deceased before the 1^st defendant came into possession as tenant-in-common, it would not prevent the 1^st defendant from acquiring her own possessory title by adverse possession.

66.In this regard, the 1^st defendant cited the case of Fairweather v St Marylebone Property Co Ltd [1963] AC 510 for the proposition that the effect of the “extinguishment” sections of the limitation statute, was, that when a squatter dispossessed a lessee for the statutory period, it was the lessee’s right and title as against the squatter that was finally destroyed, and not his right or title as against persons who were not and did not take through the adverse possessor.  The lessee’s estate as between himself and the lessor was not destroyed.  That, therefore, the lessee was in a position to surrender to the lessor the encumbrance on the fee simple in possession which was represented by the term of years.

67.Accordingly, in my view, the 1^st defendant correctly submitted that:

(1)  Birkenhead’s right and title was only extinguished as against the Deceased, but not as against the whole world, in particular, persons who did not take through the Deceased.

(2)  The 1^st defendant’s position is that she acquired her possessory title through adverse possession vis-a-vis Birkenhead and not through the Deceased.

68.As to the plaintiff’s point that the 1^st defendant could not have held the Land as a joint tenant as she did not take possession of the Land with the Deceased simultaneously, the 1^st defendant correctly submitted that in the context of adverse possessors’ rights, joint adverse possessors have joint rights as either “joint tenants” or “tenants in common” as in the case of any other interests in land (see §12-007 and 12-012 of Megarry & Wade The Law of Real Property, 9^th Edn).  The plaintiff has not disputed that proposition in law.  When more than one squatter have possession jointly and simultaneously, the title acquired is held by the squatters jointly (Powell v McFarlane, at p 470).  In those circumstances, vis-a-vis the whole world including the owner, adverse possession is by one single and joint unit.  Each of the possessors can defend the owner’s suit to recover possession.

69.Based on the findings made at section F1 above, I find that for the period from 1980 to 2000, the 1^st defendant jointly and adversely possessed the Land together with the Deceased as “tenants in common” in equal shares.  The 1^st defendant’s squatter title co-existed with that of the Deceased.  Neither of them was a licensee to the other.

70.After the Deceased’s death and in 2000 to 2009, there is no dispute that the 1^st defendant was the only person in physical possession of the whole Land and hence continued with her adverse possession in her own right.

G.  CONCLUSION AND DISPOSITION

71.For the reasons set out above, I find in favour of the 1^st defendant’s primary case that she has a squatter’s title in her own right as a tenant in common with equal share with the Estate.

72.At trial, counsel for the 1^st defendant made clear that her claim based on common intention constructive trust/proprietary estoppel would only arise if the court rejects the 1^st defendant’s case based on joint adverse possession, so too is the claim based on the IPFDO.  They are true alternatives to the 1^st defendant’s primary case.

73.Accordingly, I make no finding on the 1^st defendant’s case based on common intention constructive trust/proprietary estoppel and/or the IPFDO.

74.I grant the following order:

(1)  A declaration that the 1^st defendant has acquired a good possessory title to the Land by reason of her own adverse possession thereof since 1980.

(2)  A declaration that the plaintiff holds the possessory title to the Land (as declared in the 1992 Action)  on trust for the 1^st defendant and the Estate as joint owners thereof as tenants in common in equal shares.

(3)  An account of all rental and/or other income received by the plaintiff and/or the Estate in respect of the Land for half share for the period from early October 2009 until the time when the 1^st defendant could re-enter the Land, and payment of the same forthwith to the 1^st defendant.

(4)  The plaintiff’s claim against the 1^st defendant be dismissed.

75.I further order that the costs of these proceedings (including all costs reserved, if any)  be paid by the plaintiff to the 1^st defendant, such costs are to be taxed if not agreed.  The 1^st defendant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

76.The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

77.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Tommy Lo, instructed by Messrs W K To & Co, for the plaintiff

Mr Erik Shum, and Ms Christy Wong, instructed by Messrs Hobson & Ma, assigned by the Director of Legal Aid, for the 1^st defendant