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

CACV 487/2021

[2022] HKCA 1335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 487 OF 2021

(ON APPEAL FROM HCA NO. 1128 OF 2007)

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Before :  Hon Cheung, G Lam and Chow JJA in Court

Date of Hearing :  23 August 2022

Date of Judgment :  6 September 2022

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J U D G M E N T

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Hon Cheung JA :

I.  Introduction

1.This is an appeal by the plaintiff against the judgment of Wilson Chan J who found for the 1^st defendant in the action commenced by the plaintiff on 30 May 2007.

II.  Background

2.The Judge had summarised the background of the case which I am happy to adopt and supplement it by other matters gathered from this case and the judgment in HCA 6145/1992 referred to in [11].

3.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 is the second wife of the Deceased and step‑mother of the plaintiff.

4.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 claimed an injunction restraining the 1^st defendant from entering or using the Land and damages and/or mesne profit for trespass.

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

6.It is the 1^st defendant’s case that she had all along been in joint possession of the Land with the Deceased as joint squatters from 1980 to 2000 when the Deceased died. She raised a counterclaim that she has acquired a good possessory title to the Land by reason of her adverse possession from 1980 to 2000.

7.The 1^st defendant started cohabiting with the Deceased on the Land in 1980. In addition to living in the structures erected on the Land, she and the Deceased jointly carried out fish breeding activities at the fishpond on the Land (‘Fishpond’).

8.In the late 1980s, since the fish breeding business deteriorated, she and the Deceased ceased conducting the business and the Deceased began to sell sweet soup in the Yuen Long area while the 1^st defendant maintained the Land including the Fishpond.

9.The 1^st defendant gave birth to a daughter on 14 September 1981 (the ‘Daughter’) and the couple subsequently got married on 5 July 1986. They divorced in 1994, and on the 1^st defendant’s case, the divorce was upon the advice of an immigration consultant in order to facilitate the Daughter’s emigration to the USA. Despite the divorce, the 1^st defendant continued to live on the Land with the Deceased as husband and wife and they remarried on 2 September 1997.

10.In 1991, the 1^st defendant and the Deceased jointly decided to reclaim the Fishpond and converted the area into a car parking area for container trucks/lorries (‘Car Park’). They jointly managed the business of the Car Park for profits.

11.On 10 September 1992, in HCA 6145/1992, Birkenhead Properties and Investment Ltd (‘Birkenhead’), the registered owner of a larger piece of land which included the Land (‘Birkenhead Land’), commenced proceedings against the Deceased for, inter alia, possession of the Birkenhead Land. The Deceased raised a counterclaim that he had acquired a possessory title on the ground of adverse possession. He claimed that he and his family had been living on the Land since the 1960’s. The Deceased was previously married to his first wife Madam Tai who died on 16 April 1970. They had six children which included the plaintiff in this action.

12.At one stage in 2001, the 1^st defendant applied to be joined as a party in HCA 6145/1992 on the ground that she also had an interest in the Birkenhead Land but withdrew her application in 2009 thinking that the Deceased’s claim would protect her interest and status relating to the Birkenhead Land.

13.The Deceased died on 28 December 2000 before the conclusion of HCA 6145/1992. The Deceased left a will dated 19 January 1999, devising all his estate to his sons, including the plaintiff.

14.The 1^st defendant claimed that even after the Deceased’s death on 28 December 2000, she continued to manage the business of the Car Park until about 2004. She also continued to reside on and was in possession of the Land until early 2006.

15.On 30 May 2007, prior to the conclusion of the 1992 Action, the plaintiff commenced the present action against the 1^st defendant.

16.According to the 1^st defendant, she was misled by the plaintiff as to the legal consequences of the will and in the absence of legal advice, she in early October 2009 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.

17.On 2 February 2011, the Deceased’s counterclaim in HCA 6145/1992 against the registered owner partially succeeded when Louis Chan J held that the Deceased had been in adverse possession against Birkenhead and the Deceased had acquired good possessory title of part of the Birkenhead Land (‘the Birkenhead judgment’). That part of the Birkenhead Land is the Land now claimed by the plaintiff and the 1^st defendant in the present action.

III.  The Judge’s finding

18.The Judge found that there was 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.

19.He accepted the 1^st defendant’s evidence that the 1994 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 as to enable the Daughter to emigrate to the US.

20.Despite the divorce, the 1^st defendant never left the house on the Land and she continued to live together with the Deceased. She 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 was a genuine husband and wife relationship based on love and affection.

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

22.The Judge held that given the fact that the Deceased and the 1^st defendant lived as a married couple, they jointly possessed the Land as squatters. She was not a licensee of the Deceased to occupy the Land.

23.The Judge held that the 1^st defendant jointly possessed the Land with the Deceased from 1980 to 2000 and thereafter solely and adversely possessed the Land until 2009. The squatters’ title to the Land was held by both the 1^st defendant and the Deceased jointly with equal rights. The Estate of the Deceased and the 1^st defendant are therefore jointly entitled to occupy the Land.

24.After the death of the Deceased, from 2000 to 2006, the 1^st defendant continued to occupy and live on the Land alone. Since about 2006, the 1^st defendant ceased to reside on the Land, but she continued to keep the keys to the Land and the house and therefore continued to be in constructive possession thereof. The 1^st defendant mistakenly handed over the Land to the plaintiff in 2009. However, by reason of the accrued squatter’s right of the 1^st defendant of her own, she is entitled to continue to possess the Land jointly with the estate of the Deceased. At the time of commencement of the present 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 the 1^st defendant from the Land since early October 2009.

25.Based on the findings made at [23] and [24] above, the Judge found 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.

26.After the Deceased’s death and from 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.

IV.  Relief granted by the Judge

27.The Judge granted the following orders to the 1^st defendant :

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 of the Deceased 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.

V.  Grounds of appeal

28.Nine grounds of appeal are advanced by the plaintiff, but as Mr. Lo for the plaintiff submitted, the key issues in this appeal are as follows :

1)  Did the 1^st defendant have the requisite possession and intention to possess the Land jointly with the Deceased as tenants in common in equal shares continuously from 1980 to 2000 (if any at all)?

2)  Did and could the 1^st defendant acquire possessory title in the Land as tenants in common with the Deceased?

3)  Did the 1^st defendant occupy the Land with permission of the Deceased i.e. only a licensee of the Deceased?

4)  Is the judgment in HCA 6145/1992 in rem and hence binding on the world (including the 1^st defendant) and/or is the 1^st defendant estopped by conduct/res judicata from pursuing her counterclaim and/or is the 1^st defendant’s counterclaim an abuse of process?

VI.  My view

29.I will examine the decision that the 1^st defendant was in joint possession with the Deceased as tenants in common from 1980 to 2000.

1)  Nature of adverse possession

30.It is well established by Powell v McFarlane (1979) 38 P&CR 452 that adverse possession requires proof of factual possession and intention to possess. Slade J in Powell at page 470 held :

‘ Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly.’

31.Intention to possess means

‘ in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title....’

32.In Bligh v Martin [1968] 1 WLR 804, Pennycuick J held ‘Possession is from its nature, exclusive in this connexion’. Lord Hope of Craighead in JA Pye (Oxford) Ltd v. Graham [2003] 1 AC 419 affirming Powell stated ‘Exclusivity is of the essence of possession’.

2)  Presence of other family members

33.This case is not the commonly seen adverse possession case where a man together with his family commenced to squat on a piece of land and eventually acquired a possessory title against the paper title owner. In this case, by the time the 1^st defendant came to the Land in 1980, the Deceased and his family by the first marriage had already been in possession of the Land from at least 1972 onwards. Four of the Deceased’s children were still living on the Land when the 1^st defendant moved in to the Land in 1980. They remained there until 1990. There was also an aunt in occupation on the Land.

34.It is important to emphasise it is not the 1^st defendant’s case that :

(1)  she had acquired a possessory title as a member of the Deceased family by reason of the Birkenhead judgment; or

(2)  she together with the Deceased and his other children jointly possessed the Land from 1980 onwards.

35.Her case is built on a very narrow basis that she and the Deceased (without other members of his first marriage) were in joint possession and acquired a possessory title against Birkenhead from 1980 to 2000. After the death of the Deceased in 2000 to 2009, she continued with the adverse possession in her own right. This is despite the fact that the Deceased had already acquired a possessory title under the Birkenhead judgment.

36.In the circumstances, in order to establish her claim, the burden must be on the 1^st defendant to show that from the moment she entered the Land in 1980, she was in joint possession of the Land with the Deceased to the exclusion of the Deceased’s other family members.

37.This is the first difficulty faced by the 1^st defendant. In Morris v Pinches (1969) 212 Estate Gazette 1141, the defendant and his parents made use of a plot of land for rearing animals. The defendant alone claimed a prescriptive title. Buckley J rejected the defendant’s claim. The report at page 2 stated :

‘ ..... He (his Lordship) had no doubt that the Pinches family had regarded themselves as entitled to the exclusive use of this plot of land for many years, but he did not think that the use to which it had been put was a use which could grow into a prescriptive title in the defendant alone. He was not saying, indeed, that the three of them could assert such a title, but that was not the claim put forward. The allegation put forward by way of counterclaim was that in 1947 the defendant moved cattle on to the disputed land and had maintained cattle there ever since, also keeping horses there from time to time. On these grounds the defendant sought a declaration that he was entitled to possession and had acquired a good possessory title. He (Buckley, J.) thought the defendant could not make out that claim successfully because the evidence did not show that he had, throughout the necessary period, been in possession in his own right adversely to the plaintiff.’ (emphasis added)

38.A decision of similar effect is Brazil v Brazil [2005] All ER (D) 311 (Mar). The claimant and the defendant belong to what are now separate branches of an old and extended Romany or gipsy family. The defendant’s father Tom 2 lived on a piece of land with many of his siblings. The defendant claimed that his father had acquired possessory title to the land. David Donaldson QC (sitting as a Deputy High Court Judge) found against the defendant. He held :

‘ 32. Firstly, Tom 2 was not alone: other members of the family were also living on the land. Any occupation by him could not therefore result in a possession which must be single and exclusive.

33. That obstacle might have been superable if it could be shown that the presence on the land of all the other members of the family was under licence from Tom 2, but that has not in my judgment been demonstrated. On the contrary, the evidence suggests that while Tom 2 – as the eldest surviving male of his branch – may have been regarded as in some sense the leader of the small community, he would not have been thought to have had a superior right to be on the site as compared with his mother or those of his siblings who lived there.

34. I should record that I have not been asked by the Defendant to consider this case on the basis of joint possession. It is therefore unnecessary for me to determine whether if one sought to view as a single whole the actions of all those living on the land from time to time – or perhaps of all the caravan owners – sufficient indicia of factual occupation were in place for at least 12 years by 1973.

35. Secondly, it would also be necessary for the Defendant to demonstrate that at least by 1961 it was Tom 2’s intention to possess the land to the exclusion of all others. Plainly, the presence of other siblings against the background I have described above makes it inappropriate if not impossible to draw any such inference. Moreover, any such intention would have had to extend to the true owner, or more precisely to the true owner as Tom 2 would have understood it, i.e some member of the James branch of the family. In his eyes this was probably the eldest surviving male of that branch. However that may be, I am not persuaded that Tom 2 during any period of 12 years before 1973 would have had an intention to possess to the exclusion of any member of the James branch of the family, and in particular of any member whom he believed to be the true owner. The indicia of factual possession do not give rise to any such inference, being at best neutral in this regard, nor is the conclusion warranted by any other extraneous evidence.’ (emphasis added)

39.The Judge in this case held that the plaintiff failed to discharge the burden that the 1^st defendant is not a licensee. He held :

‘ 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.’

40.The Judge at [36] then discussed the ‘indirect evidence’ adduced by the plaintiff to show the 1^st defendant was a mere licensee by

‘ 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.’

41.Morris and Brazil were not referred to the Judge and Mr. Lo for the plaintiff had not submitted at the trial arguments along the lines of those that were upheld in these two cases. However, the presence of these family members highlights the dispute as to whether the 1^st defendant was in possession of the Land from the moment she entered it in 1980 or whether she was a licensee of the Deceased as contended by Mr. Lo. The 1^st defendant was only 20 years of age when she entered the Land. The Deceased by then was already in his 50s. Their child was only born one year later and the marriage did not take place until 1986. It was not the 1^st defendant’s case that there was any discussion between them about her status on the Land. It is extremely difficult to envisage that from the moment the 1^st defendant entered the Land she would be allowed by the Deceased to possess the Land jointly with him to the exclusion of the Deceased’s family members. While inference may be drawn that a married couple might jointly possess land, such inference could not be so easily drawn on the facts of this case. In the context of this case, the other family members may well be the licensees of the Deceased. Likewise, it is more probable that the 1^st defendant entered the Land in 1980 as a licensee of the Deceased like his other family members who were already living there. In my view, the Judge was wrong to find that possession of the Land together with the intention to possess in order to constitute adverse possession, could be formed as early as 1980.

42.Mr. Shum (together with Ms Wong) for the 1^st defendant now submitted that the 1^st defendant’s case is that the 1^st defendant having lived with the Deceased on the Land as a married couple since July 1986, she accrued 20 years of adverse possession on her own right. This seems to be a recognition that if the 1^st defendant was in possession, the earliest time she could do so was from the time of their marriage. But this was not the case put forward by the 1^st defendant which was that she jointly possessed the Land from 1980 to 2000 with the Deceased as joint squatters and thereafter as a sole squatter until 2009. The Judge also understood that the relevant period for her to acquire the possessory title was from 1980 to 2000 and that was the foundation of the Judge’s decision. If adverse possession only began in 1986, then the 1^st defendant would not have acquired the necessary 20 years of continuous adverse possession of the Land by 2000.

43.The Judge further held that he relied on the judgment of H H Judge Andrew Li in U Po Chu v Tsang Pui Ling, DCMP 467/2013 (Leave to appeal against the judgment was refused by this Court in HCMP 2795/2016). Judge Andrew Li reviewed the authorities on the issue of possession. In that case, the 1^st defendant claimed to have acquired possessory title against the plaintiff. But Judge Andrew Li found there were also other occupiers in the property and their respective occupation was several and independent of each other. The occupiers were in several possession but not single joint possession. On this basis, the 1^st defendant failed to prove that he had exclusive possession of the property. The Judge’s reliance on this case was misplaced.

3)  The Birkenhead judgment

44.Assuming, for the purpose of argument, the 1^st defendant started exclusive possession with the Deceased from 1980 onwards, there is a more fundamental problem facing her claim. Louis Chan J’s judgment in HCA 6145/1992 held that the Deceased acquired a good possessory title to the Land by virtue of his uninterrupted and exclusive possession of the Land beginning since before 10 September 1972 for over 20 years prior to the commencement of Birkenhead’s action on 10 September 1992, and the title of Birkenhead to the Land was extinguished on 10 September 1992. This being the case, there is no question of the Deceased and the 1^st defendant being in adverse possession against Birkenhead from 1992 onwards because this could not have arisen at all when Birkenhead’s title was already extinguished. The plaintiff had argued this point before the Judge, namely, Birkenhead’s title was already extinguished by the Deceased in 1992 and from 1992, Birkenhead had no title for the 1^st defendant’s ‘adverse possession’ to ‘defeat’ and the 1^st defendant could not have been a ‘squatter’ against Birkenhead for adverse possession purposes. The Judge dealt with the argument as follows :

‘ 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.’

45.There are two problems with this view. First, the Judge’s reliance on Fairweather and second, his reliance on the 1^st defendant’s right as a tenant in common for purpose of acquiring a possessory title.

4)  Fairweather

46.Dealing first with the case of Fairweather. In that case, there were two pieces of land No. 311 and No. 315 initially held by a freeholder and leased to different sub‑lessees. M who was initially a sub‑lessee and later head lessees of No. 311 managed to acquire adverse possession of a part of No. 315 which was occupied by a shed. M eventually became a freeholder of No. 311 and let No. 311 to Pliszka for 21 years who in turn assigned this 21 year lease to Fairweather (the defendant in the action). St. Marylebone (the plaintiff in the action) became the freeholder of No. 315 subject to a 99 year lease. This lease was later surrendered to St. Marylebone and it commenced action for possession of the shed in No. 315 against Fairweather and M on the ground that they had trespassed on it.

47.The question faced by the House of Lords is whether a trespasser who had been in adverse possession of land subject to a lease for such a time as had extinguished the title of the lessee to the land could rely on the lease as a defence to a claim for possession of the land by the lessor after the lease had been surrendered to the lessor. The headnote of the case summarized the holding of the House of Lords :

(1)  for the purpose of section 2 of the Real Property Limitation Act 1874, and section 6(1) of the Limitation Act 1939, an owner in fee simple subject to a term of years had an estate or interest in reversion or remainder and, consequently, his right of action against a squatter on the demised land was to be deemed to have accrued at the date when the preceding estate or interest represented by the term determined in such manner that his estate or interest fell into possession;

(2)  for present purposes the effect of the ‘extinguishment’ sections of the Limitation Acts, 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 against persons who were not or 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 incumbrance on the fee simple in possession which was represented by the term of years; and

(3)  accordingly, the lease of No. 315, including the site of the shed was ‘determined’ by the surrender in December 1959, and upon that event the fee simple owner’s right to possession of the demised property accrued, and that since adverse possession had not been completed as against the landlord, the respondents [i.e. St Marylebone] were entitled to that part of the shed that was in the garden of No. 315.

48.The present case is miles away from the situation in Fairweather. I do not see how that case could be of relevance in this case. There is no issue of a surrender of a lease by anyone here. Mr. Shum, however, relied on the second holding of the House of Lord and argued that even if the Deceased had already extinguished the title of the Birkenhead, Birkenhead could still sue the 1^st defendant who could set up her possessory title to defeat the paper title of Birkenhead. This is a startling proposition. Common sense will tell that once Birkenhead’s title has been extinguished, it has no right to sue anyone on the Land for trespass and any action by Birkenhead would most likely be struck out. In my view, the 1^st defendant simply has no legitimate basis to craft out another possessory title against Birkenhead inconsistent with the Birkenhead judgment.

49.Mr. Lo had also submitted that the judgment of Louis Chan J is a judgment in rem because it makes a declaration on the title and status of Birkenhead and the Deceased. A judgment in rem binds the world and not merely between Birkenhead and the Deceased. Spencer Bower and Handley : Res Judicata (5^th Ed) at 10.01 stated :

‘ 10.01 A decision in rem conclusively determines the status of a person or thing; that is its jural relation to persons generally, not just parties and privies. It is sometimes said to be binding on the world, unlike decisions in personam which determine the jural relation of persons to each other.’

50.In Pattni v Ali [2007] 2 AC 85, Lord Mance at [21] elaborated on the difference of a judgment in rem and judgment in personam :

‘ 21. For present purposes, a judgment in rem in the sense of rule 40 is thus a judgment by a court where the relevant property is situate, adjudicating on its title or disposition as against the whole world (and not merely as between parties or their privies in the litigation before it). The distinction is shortly and accurately put in Stroud’s Judicial Dictionary, 7^th ed (2006), p 2029, cited (in an earlier edition) by Deemster Kerruish:

“A judgment in personam binds only the parties to the proceedings, as distinguished from one in rem which fixes the status of the matter in litigation once for all, and concludes all persons ...”

Jowitt’s Dictionary of English Law, 2^nd ed (1977), pp 1025‑1026, contains fuller definitions to the same effect:

“A judgment in rem is an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that purpose. Such an adjudication being a solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, it precludes all persons from saying that the status of the thing or person adjudicated upon was not such as declared by the adjudication. Thus the court having in certain cases a right to condemn goods, its judgment is conclusive against all the world that the goods so condemned were liable to seizure. So a declaration of legitimacy is in effect a judgment in rem. A judgment of divorce pronounced by a foreign court is in certain cases recognised by English courts, and is then a judgment in rem ... Judgments in personam are those which bind only those who are parties or privies to them; as in an ordinary action of contract or tort, where a judgment given against A cannot be binding on B unless he or someone under whom he claims was party to it.” ’

51.The issue there was on the recognition of a foreign judgment in England and the application of Rule 40 set out in Dicey, Morris & Collins The Conflict of Laws, 14^th ed (2006).

52.Mr. Lo further submitted that the 1^st defendant had the opportunity to join HCA 6145/1992 as a party but chose to withdraw her application. It is an abuse for her to reopen the issue when she had the opportunity of putting forward her case in that action : see Si Tou Choi Kam v Wealth Credit Ltd CACV 167/2017 at [36].

53.While I tend to agree with Mr. Lo, it is not necessary to reach a concluded view on these two issues.

5)  Joint tenancy and tenancy in common

54.Second, on the holding that the 1^st defendant acquired a possessory title as a tenant in common, the constant principle in cases of adverse possession is that when more than one squatter have possession simultaneously, the title acquired is held by the squatters as joint tenants, in the absence of evidence of a contrary intention, but one alone of the joint squatters cannot claim title alone. In other words, possession of land by the squatters must be single in that it can be held jointly but not severally. Slade J in Powell at page 470 held :

‘ When more than one squatter have possession jointly and simultaneously, the title acquired is held by the squatters jointly.’

55.Stephen Jourdan QC and Oliver Radley‑Gardner in their book Adverse Possession 2^nd Edition 7‑43 observed :

‘ 7‑43 Possession of land ‑‑‑ the effective control of the land ‑‑‑ can be exercised jointly by two or more persons. But it cannot be exercised severally. In Bligh v Martin, Pennycuick J said: ‘Possession is, from its nature, exclusive in this connexion. There is no question of concurrent possession.’ In JA Pye (Oxford) Ltd v Graham, Lord Hope of Craighead said:

‘ The general rule, which English law has derived from the Roman law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of property simultaneously. As between themselves they have separate rights, but as against everyone else they are in the position of a single owner.’ (emphasis added)

56.The authors referred to Coke on Littleton Co Litt 181a, section 278 which was cited in Ward v Ward (1871) 6 Ch App 789 :

‘ 20-69 Also, if two or three, &c., disseise another of any lands or tenements to their own use, then the disseisors are joyntenants. But if they disseise another to the use of one of them, then they are not joyntenants; but he to whose use the disseisin is made is sole tenant, and the others have nothing in the tenancy.’

57.Lord Hatherley LC in Ward held at page 791 :

‘ Now, suppose it had been a simple case of a farm wrongfully entered into by two persons, then, according to the passages cited from Coke upon Littleton, they would, being disseisors, enter as joint tenants, and would acquire seisin as such. Here two persons are in lawful possession of a copyhold; the title under which they hold it comes to an end, but they continue in possession, and thus go on holding a certain share of the property without any title whatever. In what capacity do they so hold on? It appears to me as joint tenants. The possession of each became wrongful as to this share at the same moment of time, so that they acquired their title at the same moment of time, they held by one common right or by one common wrongful title, whichever you please to call it, and they have done nothing to sever their tenancy ...’ (emphasis added)

58.This echoes the fundamental concept of ‘single possession’ which Lord Hope repeated over a hundred years later in JA Pye (Oxford) Ltd.

59.The authors of Adverse Possession contrasted the positions where a number of squatters had no exclusive right to use the land :

‘ 7-44. So if a number of persons are given separate rights to use and occupy land, but none of them are given exclusive rights to do so, separately or together, there can be no tenancy: AG Securities v Vaughan. And where a number of squatters make use of land at the same time, but the use each makes is independent of the others, and none of them is in effective control of the land, none will be in possession: Marsden v Miller. It follows from this that no claim to possession can be made by a fluctuating body of persons such as the inhabitants of a parish: Norwich Corpn v Brown, where Chitty J said: “To gain an adverse title under the Statute of Limitations the possession must not be in one man one day, and in another another.” ’

60.The Judge addressed the plaintiff’s argument 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, by accepting the 1^st defendant argument that :

‘ 68. ...... 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.’

61.In this appeal, Mr. Shum maintained his argument that the 1^st defendant is a tenant in common and relied on the principle that in case of tenancy in common, only the unity of possession is relevant. It is not necessary for the 1^st defendant to have possession at the same time of the Deceased.

62.In my view, the 1^st defendant’s argument does not address the issue. The relevant passages in Megarry & Wade The Law of Real Property, 9^th Ed are as follows :

Joint Tenancy

[12-002] ‘ “A gift of lands to two or more persons in join tenancy is such a gift as imparts to them, with respect to all other persons than themselves, the properties of one single owner.” Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. The intimate nature of joint tenancy is shown by its two principal features, the right of survivorship and the “four unities”.’

[12-004] ‘ 2. The four unities [for a joint tenancy] must be present. The four entitles of a joint tenancy are the unities of possession, interest, title and time.’

[12-007] ‘ (c) 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.’

Tenancy in Common

[12-012] ‘ 3. Only the unity of possession is essential. Although the four unities of a joint tenancy may be present in a tenancy in common, the only unity which is essential is the unity of possession. In particular, it should be noted that the unity of interest may be absent and the tenants may hold unequal interests, so that one tenant in common may be entitled to a one‑fifth share and the other to four‑fifths, or one may be entitled for life and another in fee simple.’

63.There is nothing controversial in these passages in Megarry & Wade. However, they are statements regarding the status of joint tenants and tenants in common respectively. These passages are not said in the context of persons in adverse possession. When it is held that the 1^st defendant is a tenant in common, it begs the fundamental question that there must be exclusive single possession in the first place, particularly when the 1^st defendant’s case as advanced is that she and the Deceased were in joint possession from 1980.

64.In my view, even if the joint tenants between themselves have separate rights, there is no place for the idea that such rights are in the nature of the rights of a tenant in common and a person like the 1^st defendant could somehow acquire a possessory title on her own as a ‘tenant in common’ notwithstanding her own case that she was in joint possession with the Deceased. The argument is convoluted and not supported by authority.

65.In my view, there is no proper basis for the 1^st defendant’s claim for possessory title. The title to the Land belonged to the Deceased from 1992 onwards and the 1^st defendant could not craft out another possessory title from the same land. Her claim that she was in sole adverse possession against Birkenhead from 2000 to 2009 also fails for the same reason.

6)  Factual challenges

66.The plaintiff’s appeal also covers challenges to factual findings by the Judge such as the 1994 divorce was a genuine divorce, the Deceased was solely in charge of his business and the 1^st defendant was cheated by misrepresentation to leave the Land. I am of the view that the plaintiff is not able to show these factual findings are plainly wrong which is the threshold for this Court to overturn factual findings by a trial judge. On the issue of divorce, Mr. Lo argued that the Judge did not deal with a letter written by the Deceased to his son stating that his marriage was at an end. He also referred to a letter written by the 1^st defendant telling the Deceased that she would leave him. The only relevance of the divorce is whether the 1^st defendant had left the Land after the divorce and only returned to it after their remarriage. The Deceased’s letter is hearsay in nature. As to the 1^st defendant’s letter, her case is that she wrote the letter because she wanted the Deceased to get rid of his drug addiction. She had no intention to leave the Deceased and she only left the Land and stayed with a friend temporarily. Eventually, she and the Deceased reconciled and returned to the Land. The Judge had considered her letter and accepted what the 1^st defendant said. The Judge as the tribunal of fact was entitled to decide who operated the business. The reason why the 1^st defendant left the Land in 2009 is irrelevant to the legal issues that I have discussed. I do not consider that these factual challenges would advance the plaintiff’s case.

67.As my discussion already covered the other three issues identified by Mr. Lo, it is not necessary to canvass them separately.

VII.  Other relief sought by the 1^st defendant

68.The 1^st defendant had relied on other causes of action in the trial below. The Judge stated in his judgment :

‘ 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 [Inheritance (Provision for Family and Dependents) Ordinance (Cap. 481) (‘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.’

69.These other causes of action that have not been determined must be remitted to the Court below for determination.

VIII.  Conclusion

70.As the 1^st defendant fails in her primary case, I will allow the appeal, set aside the orders made below and order the outstanding issues to be remitted to the Judge for determination.

IX.  Costs

71.There will be an order nisi that the plaintiff’s costs of the appeal be borne by the 1^st defendant to be taxed if not agreed. The costs below be reserved to the Judge upon the determination of the outstanding issues.

72.As both the plaintiff and the 1^st defendant are legally aided, their costs will be taxed according to Legal Aid Regulations.

Hon G Lam JA :

73.I agree that the appeal should be allowed. As Cheung JA points out, this is not a case where a couple entered into adverse possession of the land at the same time. The Deceased had been in possession of the Land since at least 1972. By 1980, when the 1^st defendant came on the Land, the Deceased already had a possessory title, albeit not yet good against Birkenhead (leaving aside the members of the Deceased’s first family for present purposes). If the Deceased had thereupon transferred his sole possession to himself and the 1^st defendant as joint possessors, the 1^st defendant might have been able to claim to have acquired a good joint possessory title with the Deceased by 1992, tacking on to his possession prior to 1980: see Asher v Whitlock (1865) LR 1 QB 1; Megarry & Wade, Law of Real Property (9^th ed), [7-035]-[7-037]. As Cheung JA explains above, this would result in the possessors acquiring title as joint tenants: Ward v Ward (1871) 6 Ch App 789.

74.But this is not the 1^st defendant’s case. Instead, she, simply asserted that she had joint possession, and claimed possessory title as a tenant in common with the Deceased’s estate, by adverse possession of the Land jointly with the Deceased from 1980 to 2000. In my respectful opinion the Judge erred in upholding this claim. First, the 1^st defendant had failed to plead or establish any fact or event by which possession of the Land was disposed of by the Deceased to be held by himself and the 1^st defendant jointly. On the facts of this case it is not possible simply to infer from the fact that the couple had lived as husband and wife that possession had been transferred by the Deceased in 1980 to be held jointly with the 1^st defendant. The Judge erred in putting the burden on the plaintiff to prove the contrary (see Judgment [35]).

75.Secondly, Birkenhead’s title had been extinguished by 1992 through the Deceased’s adverse possession of the Land. The 1^st defendant did not contend that she ousted the Deceased and was in adverse possession as against him after 1992. Her whole case was that she was part of this single and exclusive possession jointly with the Deceased, which extinguished Birkenhead’s title, and this was accepted by the Judge. On this basis, I, with respect, find it impossible to see how the 1^st defendant could continue to be an adverse possessor as against Birkenhead or, which is really the same thing, how Birkenhead could after 1992 bring an action against the 1^st defendant to recover the Land. It is unnecessary to discuss whether or not it follows from Fairweather v St Marylebone Property Co Ltd [1963] AC 510 that when a lessee has been dispossessed by a squatter for the statutory period, the lessee’s right or title is not extinguished as against persons who do not take through that squatter’s possession.

76.This is sufficient for allowing the appeal. As to the implications of the presence of the other family members, like Cheung JA I think it accentuates the difficulties lying in the way of the 1^st defendant’s claim that she had joint exclusive possession with the Deceased. It is unnecessary for me to express an opinion on the questions whether the judgment in the Birkenhead action is a judgment in rem and whether the 1^st defendant was acting in abuse of process in asserting a possessory title in the plaintiff’s action when she had failed to join in and put forward her case in the Birkenhead action.

77.For these reasons I too would allow the appeal and set aside the Judge’s orders. I agree with the orders proposed by Cheung JA.

Hon Chow JA :

78.I agree, for the reasons given by Cheung JA and Lam JA, that the plaintiff’s appeal should be allowed. Like Cheung JA and Lam JA, I do not consider that it is necessary to reach a firm view on whether the Birkenhead action is a judgment in rem, and whether the 1^st defendant should be regarded as having abused the Court’s process by withdrawing her application to join as a party to the Birkenhead action and subsequently claiming a title to the Land by way of adverse possession in the present action. I also agree with the orders proposed by Cheung JA.

Mr Tommy Lo, instructed by W K To & Co., assigned by the Director of Legal Aid, for the Plaintiff

Mr Erik Shum, instructed by Hobson & Ma, assigned by the Director of Legal Aid, for the 1^st Defendant