Read the full judgment text of CACV 448/2020 on BabelCite. This Court of Appeal judgment was delivered on 31 March 2023 before Kwan VP, Chu VP and Yuen JA.
Civil law – adverse possession – successive squatters – ex turpi causa – illegality defence – stare decisis – unpleaded case – s.14 Buildings Ordinance – government lease agricultural user – Limitation Ordinance – Mui Wo Lot No.591 – Whether the judge decided the case on an unpleaded case where the 2nd defendant's pleaded allegation of a 1978 gift from his father was rejected – Whether the maxim ex turpi causa applies to defeat a claim for adverse possession founded on an illegal act – Whether the range of factors approach in Patel v Mirza should be adopted in Hong Kong replacing the reliance approach in Tinsley v Milligan – Whether the brick house erected in 1978 in breach of s.14 BO and the residential occupation in breach of agricultural user of the government lease engaged the ex turpi causa maxim – Court of Appeal held that a judge may accept part of a party's pleaded case and reject the allegation of gift while still finding continuous adverse possession by the family since the 1950s, applying Yu Siu Cheuk v Realray Investments Ltd and Chan San v Hans Li – Court held that Patel v Mirza now represents the common law on the defence of illegality in Hong Kong and the range of factors approach based on the trio of necessary considerations should be adopted, applying the stare decisis rule in Solicitor (24/07) v Law Society of Hong Kong – Court held that the maxim ex turpi causa is not automatically excluded from the law of adverse possession, but applying Les Laboratoires Servier it applies only to criminal, quasi-criminal, or public-interest-engaging acts, so residential breach of agricultural user is not caught – Court held that applying the Patel trio of considerations on the s.14 BO point, the underlying purpose is public safety in construction, the plaintiff did not prove occupation by the mother and 2nd defendant breached s.14 BO, and the lack of enforcement action for over 40 years meant the public interest favoured the squatter – Appeal dismissed with costs to the 2nd defendant, with certificate for two counsel.
Legal issues: Whether the judge decided the case on an unpleaded case · Whether the judge misdirected himself on the evidence of adverse possession · Whether the ex turpi causa maxim applies to the law of adverse possession · Whether the range of factors approach in Patel v Mirza should be adopted in Hong Kong as the common law on the defence of illegality · Whether on the facts, the ex turpi causa maxim defeats the 2nd defendant's claim for adverse possession
Outcome: Appeal dismissed; judgment for the 2nd defendant on his counterclaim upheld.
Cited by 21 cases · Cites 3 cases