Wan Kin Shing v. The Incorporated Owners of City Centre Building and Others
Read the full judgment text of HCA 354/2015 on BabelCite. This High Court CFI judgment was delivered on 3 April 2023.
1. The subject matter of this action is a “Wall Shop” situated on a scavenging lane (“the Lane”) between City Centre Building and Century Court [1] in Wanchai. The address of the Wall Shop is Side-lane entrance, 12 Stewart Road, Hong Kong.
Cited by 6 cases · Cites 18 cases
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HCA 354/2015 [2023] HKCFI 815 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 354 OF 2015 ________________________
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________________ JUDGMENT ________________ A. INTRODUCTION 1.The subject matter of this action is a “Wall Shop” situated on a scavenging lane (“the Lane”) between City Centre Building and Century Court[1] in Wanchai. The address of the Wall Shop is Side-lane entrance, 12 Stewart Road, Hong Kong. 2.The Lane is longitudinally divided into two halves. On paper, the northern half is owned by the 1st defendant, and the southern half is owned by the 3rd defendant.[2] 3.The Wall Shop, which according to a survey plan prepared by the expert for the plaintiff (“the Plan”) is 23.1m2 in area, is immediately adjacent, or attached, to City Centre Building. I attach as Annex I a copy of the Plan to this Judgment. 4.The 1st defendant is the Incorporated Owners of City Centre Building (“the IOCCB”). It was incorporated on 11 December 1989. The Wall Shop is partly situated on the half of the Lane owned by the IOCCB, which also owns the external wall of the City Centre Building. Part of the external wall had been demolished (see [6] below) and some other area of the external wall is completely enclosed by the Wall Shop. 5.The 2nd defendant was the owner of a part of the ground floor of the City Centre Building known as Shop F, which it divided into two parts by a deed poll dated 4 April 2018 (i.e. after the issue of the writ herein on 16 February 2015). On that date, it sold and assigned one part thereof (called “Section A of Shop F”) to the 4th defendant, which therefore became (and still is) the owner of Section A of Shop F. This action only concerns Section A of Shop F, and not the remainder of Shop F. 6.In about 1968 or 1969, the Wall Shop intruded (and remains intruding) into a part of Shop F (which is now a part of Section A of Shop F) when that part of the external wall of City Centre Building adjacent to Shop F was demolished, and a new wall was built further inside Shop F, thereby creating an extended area for the Wall Shop. According to the plaintiff, two windows of Shop F were (and remain) sealed up at about the same time. This extended area (called the “Extended Portion”) consists of what was formerly part of the external wall (owned by the IOCCB, called “Extended Portion A”), as well as part of Section A of Shop F (now owned by the 4th defendant, called “Extended Portion B”). 7.The Wall Shop is also partly situated on the half of the Lane owned by the 3rd defendant, which acquired Century Court and the southern half of the Lane by virtue of an assignment dated 15 March 1997. Outside the enclosed area of the Wall Shop, and situated on the 3rd defendant’s half of the Lane, there is a knee-high brick wall attached to the Wall Shop on which plants are placed (“the Planter”). According to the Plan, the area occupied by the Planter is 2.1m2. On and extending from the top of the Wall Shop is a canopy (of about 5m2) which overhangs the part of the Lane owned by the 3rd defendant, including the Planter, as well as an enclosed space (called the “Orange Enclosed Space”). I attach as Annex II a photograph taken on 11 December 2017 showing the Planter, the Orange Enclosed Space and the canopy. According to Mr Liu Long San (“Mr Liu”), the only witness called by the 3rd defendant, the Planter was built sometime after 21 November 2013, as photographs retrieved by him taken on that date show that the Planter did not exist at the time. In cross-examination, the plaintiff says that the Planter was put in by him in March 2013. The plaintiff has confirmed that he is making no claim for the area occupied by the Planter, making it unnecessary to find exactly when it was built save that it could not have been earlier than March 2013, but he is claiming the canopy and the Orange Enclosed Space. 8.The Plan is prepared by the expert for the plaintiff and which the expert for the 3rd defendant agrees to adopt (as far as the 3rd defendant’s land is concerned, namely the cyan, yellow and violet areas) as showing the locations and areas occupied by various parts of the Wall Shop, as well as the Planter and the canopy.[3] The pink area is that part of the Wall Shop occupying land owned by the IOCCB. The green area is the Extended Portion. The orange area is another part of the Wall Shop occupying land owned by the IOCCB (but on a lot different from the lot on which the pink area is situated). The cyan and yellow areas are the part of the Wall Shop and the Planter occupying land owned by the 3rd defendant.[4] The violet area is the area occupied by the canopy, overhanging land owned on paper by the 3rd defendant. I accept and adopt the Plan as evidence of the size, area and location of various parts of the Wall Shop, the Planter and the canopy, and on which paper owner’s land each of them is occupying as at December 2017 (the date of the Plan) and now. 9.The only defendant which participates in this trial is the 3rd defendant, which owns Century Court (or the site on which it was built), and part of the Lane on which the Wall Shop is partly, and on or over which the Planter, the Orange Enclosed Space and the canopy are, situated. Neither the IOCCB nor the 4th defendant has taken any part or steps in these proceedings, without even filing any pleadings. As for the 2nd defendant, while it has filed a defence (subsequently amended), it has been granted leave to be excused from attendance at the trial but shall be bound by the judgment, save that it has the right to address the Court on the question of costs after trial.[5] B. THE ISSUES AND THE EVIDENCE B1. The plaintiff’s case 10.In the following paragraphs, I set out the plaintiff’s case. 11.According to the plaintiff, his parents, Wan Ming Hoi and Wong Choi Kam, entered into and took possession of an area on the Lane in the early 1950’s, without the consent or authority of the relevant owners. It was used by Wan Ming Hoi as a shoe repairing business, and soon, in the first half of 1954, Wan Ming Hoi and Wong Choi Kam began using the area as their residence as well. The place therefore became their home as well as being used for the shoe repairing business. Over the years, it had also been used for other business purposes by the family. 12.The couple gave birth to five children (a daughter and four sons) between 1954 and 1966, including the plaintiff (born in 1956), and the children all lived with their parents at the Wall Shop after they were born until 1974, when the family moved to live in a unit in City Centre Building. Wan Ming Hoi and his family, however, continued to possess the Wall Shop for business purposes, including, since 1982, by a business called K Wah & Co, and since 1984, by a company called K Wah International Limited, both established by the plaintiff. The shoe repairing business in fact ceased in 1968. At the time of its incorporation, the plaintiff owned 57% of the share capital of K Wah International Limited, with the rest being held by Leung Kit Fun (33%), Wan Ming Hoi (5%) and Wong Choi Kam (5%). The latter two transferred their shares to Leung Kit Fun in 1993. Leung Kit Fun is the plaintiff’s wife. 13.However, the exact area occupied by the Wall Shop, while always on the Lane, changed over the years. From 1952 to 1968, it was located immediately adjacent to an unnamed three-storey building (on which site a building called Hua Yuan Building (later renamed Century Court) was later developed), leaving a gap on the Lane between the then Wall Shop and the building on the other side of the Lane (on which City Centre Building was later developed (its occupation permit was issued on 9 September 1966)). The Wall Shop then “shifted” to immediately adjacent, or attached, to City Centre Building in about 1969, fully enclosing part of the external wall of City Centre Building, and leaving a gap on the Lane between the Wall Shop and Century Court. Around that time, according to the plaintiff, the Wall Shop had enlarged by extending into the Extended Portion (see [6] above). 14.The evidence of the plaintiff in his witness statement on the circumstances of the extension of the Wall Shop into the Extended Portion consists of one paragraph, which I set out in full:
15.It is the plaintiff’s case that the Wall Shop (in its various extents at various times) had been in the exclusive possession of Wan Ming Hoi and his family since Wan Ming Hoi and Wong Choi Kam entered into and took possession in the early 1950’s. He refers to various matters evidencing the continuous exclusive possession of the Wall Shop by the family since the early 1950’s, including acts by the Government, utility companies, and the IOCCB, which all recognised the possession of the relevant area by Wan Ming Hoi and the family. I shall deal with the question of whether it was Wan Ming Hoi alone, or Wan Ming Hoi and his family, who had exclusive possession at Section C6 below. 16.According to the plaintiff’s pleadings, in about December 1990, it was resolved at a family meeting that the plaintiff would take over the exclusive possession and/or the title of the Wall Shop completely as from January 1991. What the plaintiff says in his pleadings are as follows:
17.The pleaded case of the plaintiff is that the written document was kept at the family’s unit in City Centre Building but in about 2007 Wong Choi Kam discovered that the document had been lost after a refurbishment. 18.In his witness statement, the plaintiff says that at the family meeting in December 1990:
That is, according to the statement, at Wan Ming Hoi’s direction (which suggests that the owner of the Wall Shop as at the date of the alleged meeting was Wan Ming Hoi alone: this is an issue to which I will return below) the Wall Shop was to be taken over not by the plaintiff alone, but by him and his wife and, if they were going to have children, by the children as well.[6] This is also what the plaintiff says during cross-examination (see [20] below). Putting aside the question of formalities and validity, the alleged intention was that the Wall Shop was given to the plaintiff and his own immediate family (i.e. his wife and children). This is not only at odds with the pleadings, which states that only the plaintiff was given the Wall Shop, but also with the fact that only the plaintiff is now seeking various reliefs in relation to the Wall Shop based on adverse possession, proprietary estoppel, acquiescence and laches, but not his wife or their three children. He seeks, for example, a declaration that
and an order formally vesting the title of the Wall Shop in him alone. 19.Notwithstanding his pleadings which pleads the discovery of the loss of the written agreement by Wong Choi Kam as a fact (and not simply that he was told by Wong Choi Kam that it was lost), in his testimony the plaintiff says he has a doubt whether the document has in fact been lost. He does not believe his mother who told him that the document had been lost. 20.The plaintiff has been put to vigorous cross-examination by Mr Kenny Lin,[7] counsel for the 3rd defendant, on this alleged agreement, to which I shall return. However, I note here that even though no written document is produced, the plaintiff, in the witness box, recalls the various paragraphs of this document as follows:[8]
The document was then signed by Wan Ming Hoi, Wong Choi Kam, the plaintiff and his two brothers. 21.According to the plaintiff, under the alleged agreement, other than having to give Wan Ming Hoi HK$180,000, and although not written as such, as a condition for the Wall Shop to be given to his family, he had to give up his interest in the clinic at which his brother, Wan Kin Cheung, operated his dental practice. However, unless and until he obtains title to the Wall Shop (by which I take him to mean a declaration from the Court), he is still entitled to his interest in the property which had been used as the clinic. 22.I have set out what the plaintiff says about this alleged agreement in his pleadings and in his witness statement at [16] and [18] above. 23.According to the plaintiff, he and his wife did take over the possession of the Wall Shop as from January 1991 (but in his testimony he says that he and his wife and (at that time) their only son started to live in the Wall Shop from about 18 December 1990, upon their return from New Zealand, to where they had emigrated). They lived there for a few months before moving out to rented accommodation, but the Wall Shop continued to be used for various business purposes, with K Wah International Limited continuing to operate its business there, while a floral business was also started there (to which notice of interim valuation was issued by the Commissioner of Rating and Valuation in 1991). One of their sons would also stay there overnight on weekends and holidays. The plaintiff had since 1991 been responsible for the payment of rates for the Wall Shop. The plaintiff had also been paying the electricity and water charges for the Wall Shop since 1991, and had refurbished the Wall Shop on a few occasions. However, I note that the telephone bills were issued to Leung Kit Fun, who also signed as a contracting party a licence agreement which allowed the use of the Wall Shop for telecommunications purposes. Other bills regarding the Wall Shop were issued to K Wah International Limited. Further, in some documents to the Commissioner of Rating and Valuation, it was one of the three sons of the plaintiff who was named as an (and not the) owner of the Wall Shop, and in some other such documents another son was so named. 24.On 27 August 2010, Wan Ming Hoi passed away. The schedule of assets and liabilities of the estate of Wan Ming Hoi did not include the Wall Shop. The plaintiff is not an executor of the will of Wan Ming Hoi. 25.It is the plaintiff’s case that the paper titles of the four defendants to the areas occupied by the Wall Shop (or various parts thereof) had been extinguished by virtue of the plaintiff and/or Wan Ming Hoi and/or his family’s adverse possession. Further or in the alternative, the defendants are estopped from asserting their titles by virtue of proprietary estoppel and/or acquiescence and/or laches. 26.The plaintiff asks for the following substantive reliefs:
B2. The counterclaim 27.The part of the Lane which belongs to the IOCCB is subject to a right of way for the owners and occupiers for the time being of Lot 2756-L, i.e. the lot on which Century Court was partly situated (“Right of Way”). This is not in dispute. It is, however, the plaintiff’s case that the Right of Way has been abandoned by the 3rd defendant, which has also lost the right to authorise others to exercise the Right of Way. That is, the plaintiff says that he has acquired title to the Wall Shop free from the Right of Way. On its part, the 3rd defendant counterclaims for an injunction restraining the plaintiff from preventing, obstructing or hindering it from exercising the Right of Way, as well as for possession of that part of the Lane owned by the 3rd defendant on which the Wall Shop is situated, and the demolition thereof. B3. The earlier action by the IOCCB 28.In 2006, the IOCCB commenced an action[9] (“the 2006 Action”) against Wan Ming Hoi (as the 1st defendant there) and another person occupying another part of the Lane. According to the Re-Amended Statement of Claim of the IOCCB:
There followed claims in trespass, breach of the Building Management Ordinance[10] and the deed of mutual covenant of City Centre Building. 29.In the Re-Amended Defence and Counterclaim of Wan Ming Hoi, originally dated 24 May 2006 and amended twice on 5 May 2008 and 7 July 2008, and which the plaintiff confirms to have been prepared according to his instructions alone and that he was in overall charge and control thereof (as Wan Ming Hoi had retired and was living in Macau):
It is to be noted that the alleged family meeting and agreement in December 1990 was not mentioned in the pleadings,[11] and, although adverse possession of “Portion A”, which is essentially those parts of the Wall Shop owned by the IOCCB, by Wan Ming Hoi and his family was mentioned, it was Wan Ming Hoi alone who was claiming, in 2006, a possessory title. 30.By a consent order dated 30 August 2010, both the 2006 Action by the IOCCB against Wan Ming Hoi, and his counterclaim, were wholly discontinued. B4. Other matters regarding possession of the Wall Shop 31.Further, in about February 2002, the plaintiff intended to make a complaint on some matters. He drafted a Chinese letter dated 13 February 2002 which was addressed to the parent company of the 3rd defendant, copied to the IOCCB and Protech Property Management Limited (“Protech”), which had managed Century Court since 2001 and is a company affiliated with the 3rd defendant. The letter was in the name of Wan Ming Hoi but signed by the plaintiff, who admits that he used the name of Wan Ming Hoi without his consent. In the letter, it was stated:
32.I note that Protech replied by way of a letter dated 18 February 2002, addressed to Wan Ming Hoi. In it, Protech stated:
33.The only witness called by the 3rd defendant is Mr Liu, a senior property officer employed by Protech and who has been involved in the management of Century Court since Protech started doing so in 2001. 34.In his testimony, Mr Liu confirms that Protech had been aware of the existence of the Wall Shop since 2001 and,
Protech, according to Mr Liu, has never complained about, or demanded entry into, the Wall Shop. Mr Liu says that he was only aware that the Lane was separately owned by the IOCCB and the 3rd defendant after the commencement of this action. Before that, he just considered the Lane to be a public scavenging lane which everyone could walk by. C. DISCUSSION C1. Adverse possession: the legal principles 35.Regarding the general principles regarding adverse possession, I need to cite two authorities only. The first is the judgment of Nazareth NPJ[12] in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd:[13]
36.The relevant provisions in the Limitation Ordinance[14] were set out, and the general principles on adverse possession were comprehensively reviewed, by Marlene Ng J in Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Ltd[15] as follows:
37.Regarding the positions between the person with the legal ownership of the land on paper, person(s) in actual possession and the rest of the world, I refer to the following authorities:
38.Based on the above cases, the position can be stated as follows:[22]
C2. The position up to December 1990 39.Mr Harprabdeep Singh[35] for the plaintiff confirms that in so far as the claim in adverse possession is concerned, he is relying on the period from 1991 onwards only. He submits that since January 1991 the plaintiff has been in exclusive possession of the area occupied by the Wall Shop, which is more than sufficient when this action commenced on 16 February 2015, more than twenty years later. The facts relating to the position before 1991 are only relied upon by the plaintiff in relation to the question of abandonment of the Right of Way. He submits that I do not have to decide whether adverse possession had been successfully established by late 1990 as against any of the defendants (or their predecessors in title). 40.I do not agree that the question of adverse possession before January 1991 is not important and not necessary to be decided, even given Mr Singh’s stance. Instead, in my judgment, the legal positions as between, on the one hand, Wan Ming Hoi and his family, and, on the other, the various paper owners (i.e. the defendants or their respective predecessors in title), as at December 1990, vis-à-vis the Wall Shop, are of critical importance, as what were such positions, and depending on what I find to have (or have not) happened at the alleged family meeting in December 1990, the legal nature of the plaintiff’s possession of the Wall Shop as from January 1991 and what rights if any he derives from such possession (assuming that I accept the plaintiff’s case of exclusive factual possession of the Wall Shop by him alone since January 1991) will be affected. In particular, since the plaintiff’s claim is primarily based on adverse possession since January 1991, assuming he did have exclusive possession of the Wall Shop since that time, the crucial question is against whom such possession is supposed to be adverse, if at all, and that can only be the person(s) who had a cause of action to recover the land from him,[36] namely person(s) who had a title which was superior to the possessory title of the plaintiff. As Mr Singh himself submits:
However, without finding who had the right to dispossess the plaintiff as from 1991 or 1995, how can I decide whether the possession was adverse? 41.I find that sometime in 1989, Wan Ming Hoi and/or[37] his family had extinguished the titles of the paper owners[38] in the various parts of the Wall Shop save for Extended Portion B (which I shall called “the AP Parts”).[39] That is, the titles of the IOCCB and the 3rd defendant (or their predecessors) at the AP Parts now occupied by the Wall Shop as shown on the Plan had been extinguished by December 1990 at the latest, when the alleged family meeting was supposed to take place, and Wan Ming Hoi and/or his family had an indefeasible possessory title as against them in those parts of the Wall Shop as indicated on the Plan, for the following reasons. 42.I accept the evidence of the plaintiff, as set out at [11]-[13] and [15] above and find that Wan Ming Hoi and/or his family had been in continuous exclusive possession of the Wall Shop which, since at least 1969, was as shown on the Plan. That such possession has been without the consent of the IOCCB or its predecessors is evidenced by the 2006 Action itself (although no judgment has been handed down therein) and is not in serious dispute. That such possession is without the consent of the 3rd defendant or its predecessors is also not disputed by the 3rd defendant (and indeed it is counterclaiming for possession of the same). Whilst it is the case of the plaintiff that the exact area occupied by the Wall Shop had changed since 1952, his evidence, which I accept, is that the area occupied by the Wall Shop has remained the same since 1969 notwithstanding various works done. I find that during the period of 1969 to 1990, the Wall Shop was a permanent structure on the Lane, which was an enclosed area[40] the access to which was under the exclusive control of Wan Ming Hoi and/or his family, who used the Wall Shop exclusively for residential purposes (until 1974) and also for various business purposes of their own. Despite its small size, I accept the evidence of the plaintiff that it was in fact used as a residence of the Wan family, with electricity and water supplies at various stages being obtained from neighbours before the Wall Shop obtained its own independent supplies, and I do not accept the challenge of Mr Lin in this regard. I also accept the evidence of the plaintiff that Wan Ming Hoi did pay for all utility charges during this period.[41] It is also clear to me, and I find, from the various acts and conduct during the exclusive possession, that the necessary animus possidendi existed.[42] 43.Mr Lin questions whether the plaintiff has shown that the area occupied by the Wall Shop has remained the same throughout the said period, or that it has remained, since 1969, as shown on the Plan now. He points to various works which the plaintiff says had been done at the Wall Shop and suggests that the area occupied must have varied from time to time. However, the evidence of the plaintiff, who can speak from his own personal knowledge regarding the position since 1969, is clear, and which I accept, in that the area occupied by the Wall Shop remains the same up to now, save for the making of a small dent in the middle made in about 2007. The various points made by Mr Lin, for example, that the installation and replacement of roller shutter gates must have affected the exact area occupied by the Wall Shop, have not been put to the plaintiff specifically, save the general point that the area had changed. 44.In particular, the plaintiff has (before the Plan was prepared) prepared various plans himself, which he says he prepared based on available public records, as well as his own measurements and memory, showing the Wall Shop at different times. The one for the period 1969-1973 and the one for the period 1974-2006 are basically the same (the latter has an additional area attached to Century Court which is not in the Plan and not in issue here). While the plaintiff is not a professional architect or surveyor and so I will not take his plans as precise depiction of the area occupied, I accept the same as his evidence that the area occupied by the Wall Shop remained the same from 1969 to at least December 1990. The dent which appears on the plan for 2007-2015 prepared by the plaintiff does not appear on the Plan, but that is probably because, on the Plan, the dent would have been covered by the canopy. It also appears that a small triangular area in the southwest corner was set back in 2007 but that appears not to be part of the Wall Shop itself. Given the largely consistent dimensions given in the Plan and the various plans of the plaintiff, I find that the Plan represents the various areas or parts of the Wall Shop since 1969 up to its date (namely December 2017), save for the dent which was only set back in 2007. As the set back of the dent (which appears to cut across the central line of the Lane) appears to have taken place not before 2007, the titles of the IOCCB and the 3rd defendant (or their predecessors) therein were also extinguished in 1989. That is, the dent is part of the AP Parts. 45.In finding the extinguishment of the titles of the IOCCB and the 3rd defendant (or their predecessors) in the AP Parts, I have not taken into account any possession before 1969, when the Wall Shop was moved to the present location. By then, even on the plaintiff’s own case, the relevant limitation period of twenty years had not expired, since the alleged possession by Wan Ming Hoi and/or his family commenced only after 1949, and with the shift of location some areas previously occupied had ceased to be so, whereas some other areas became occupied for the first time. Some areas probably remained occupied throughout. But there is no reliable evidence before me as to the exact locations and areas occupied before the shift in 1969.[43] There is therefore no basis for me to find any part of the Wall Shop on the Plan had been occupied or possessed before the shift in 1969, and the exclusive possession by Wan Ming Hoi and/or his family over the relevant areas, under the Wall Shop as indicated on the Plan, adverse to the paper owners for present purposes could only be found to have commenced in 1969, so that by 1989 the paper titles to the AP Parts had been extinguished. 46.While the plans prepared by the plaintiff, which he annexes to his Re-Amended Statement of Claim, and on which he bases his claims, are not identical to the Plan, I do not find this to be an impediment to the grant of any reliefs to which he is otherwise entitled. The annexed plans serve as a general indication of the nature and extent of his claims which I find to be sufficiently accurate for the defendants to be able to respond adequately without any prejudice. While the declarations sought refers to the annexed plans, the wording can be adjusted accordingly. C3. Extended Portion B 47.I shall explain why I exclude Extended Portion B from the AP Parts. The circumstances under which the Wall Shop extruded into Shop F in about 1968 or 1969 are stated at [6] and [14] above, which I find as facts. 48.According to the land search record, the registered owner of Shop F in 1968 was Hip Hing Investment Company Limited (“Hip Hing”). There is no evidence on the relationship between Hip Hing and Cheung Fung, or whether the agreement between Cheung Fung and Wan Ming Hoi was made with the knowledge and consent of Hip Hing or any of the successors in title of Hip Hing, or whether Cheung Fung had any authority to make the agreement binding on the Hip Hing (or its successors in title). Simply because Cheung Fung was not the registered owner does not necessarily mean, as Mr Singh invites me to find, that the possession of a part of Shop F by Wan Ming Hoi was without the owner’s consent. The nature and effect of the agreement, by which Cheung Fung purported to “割讓” a part of Shop F to Wan Ming Hoi, is obscure. Certainly, as between Wan Ming Hoi and/or his family on the one hand, and Cheung Fung on the other, there was no question of adverse possession. Whether there had been adverse possession as against the registered owner of Shop F at any time is wholly unclear. For example, if Cheung Fung was in fact at the time a lessee of Shop F, then during the terms of his tenancy the owner might or might not (depending on the terms of the lease) have a cause of action to evict Wan Ming Hoi and/or his family: if it did not then the relevant limitation period did not run. If Cheung Fung did have a lease in 1968, it appears from the evidence of the plaintiff that it might have ended by 1970, as he says that in 1970 Shop F was occupied by a Dong Hing Restaurant. But there is no evidence of the relationship between Cheung Fung and Dong Hing Restaurant (or any subsequent owners/occupiers of Shop F). Of course the aforesaid are all speculation from me but the point is that without any evidence of the relationships between the registered owner at any one time, Cheung Fung, the occupier at any one time and Wan Ming Hoi and/or his family at various times since 1968, in relation to the use, occupation and possession of Shop F or Extended Portion B, there is simply no basis for me to find whether any person had any cause of action to claim possession of Extended Portion B against Wan Ming Hoi and/or his family, and if so when did the cause of action arise, and whether the relevant limitation period had expired by December 1990 (or even at the time when this action was commenced). Assuming that there was factual exclusive possession of Extended Portion B by Wan Ming Hoi and/or his family since 1969, and by the plaintiff since January 1991, there is simply no evidence for me to find whether the same was or was not with the consent of whoever was the registered owner of Shop F at the time. The difference between Extended Portion B and the rest of the Wall Shop is that there was some consensual basis for Wan Ming Hoi and/or his family to enter into possession originally, and it is not clear to me what has been the continuing effect (if any) of that consent. The denial of the 2nd defendant, and the inaction of the 4th defendant, do not thereby prove the plaintiff’s case. C4. The external wall enclosed by the Wall Shop (including the two sealed up windows of Shop F) 49.Regarding the external wall, in Sunbroad Holdings Ltd v Unknown Occupiers,[44] Tang VP[45] (as he then was), following Leung Kwok Kau v Tam So Wa,[46] said:
50.Mr Singh argues that the present case does not just involve the surface of the external wall. He argues that since the Wall Shop consists of heavy steel framework attached to the external wall, there must have been attachments which penetrate the wall rather than the framework just resting against it. He refers to a judgment to that effect of Chief District Judge Ko in Chan Siu Cheung Henry v Cheung Wing Keung Peter.[47] 51.However, in Chan Siu Cheung Henry, there was in fact expert evidence that the defendant’s stall was attached to the external wall by iron brackets, and thus the depth of the wall was engaged.[48] 52.There is no such expert evidence in this case and I do not think that I can make the finding that there must have been penetration of the external wall by any means of attachment at any time. I have no evidence as to how heavy such steel framework must have been and whatever its weight the way to secure it. For example, does it have to be attached to the wall by nuts and bolts, or can it be secured by fastening it to the floor only? If the latter, then the claim for adverse possession of the external wall is not justified. Of course I am not making, and I cannot make, any findings in this respect, but am only making the point that Mr Singh’s submissions that there must have been some penetration without evidence are unsound. 53.Further, in so far as possession of the external wall is said to arise by the means of attachments into the wall, what were/are the locations of the attachments, how deep were/are they, and was/is possession limited to those specific parts and to such depths? There is also no evidence of how long were any such attachments had been at each location. 54.Assuming two windows did exist at the external wall which Wan Ming Hoi and/or his family did seal up, after sealing up, there could have been no adverse possession thereof as the window panels then simply became a part of the body of the external wall, and the same analysis above applies. C5. The canopy and the Orange Enclosed Space 55.The plaintiff claims adverse possession of the canopy and the Orange Enclosed Space, relying on Tang Sau Lin v Youngfield Ltd.[49] However, there are difficulties in such a case. 56.In relation to the canopy itself, it is not clear at all from the evidence as to when the canopy, or any canopy, was constructed at the Wall Shop. There is evidence that in 2006, the plaintiff was required by the Building Authority to set back the canopy, then attached to Century Court, to the central line of the Lane. That is, the canopy, in so far as it was overhanging the 3rd defendant’s side of the Lane, was to be removed. The evidence of the plaintiff is that he did cut back the canopy himself personally by about two feet. However, according to the Plan, as at December 2017, a canopy still extended beyond the central line. In so far as any part of the canopy existing as at December 2017 was still hanging over the 3rd defendant’s side of the Lane, it is not clear how long had it been there: was it before or after 2006? 57.There is no evidence as to when the canopy depicted in the Plan, assuming that it was also there as at the date of the writ herein, was first constructed, and whether there was any break in between. If it had not been there for a continuous period of twelve years starting from 16 February 2003, then no claim for adverse possession based on the plaintiff’s own possession could be made herein. The only evidence referred to by Mr Singh in his closing submissions is the plaintiff’s witness statement that
58.In my judgment, this is imprecise and I do not read it to include matters like a canopy. It is the plaintiff’s own evidence that the Planter was only constructed by him in 2013 but if the word “outlook” is meant to include something like the canopy it certainly would include something more permanent like the Planter. If “outlook” does not include the Planter, I see no reason to read it to include the canopy. The need to resort to such evidence in support of the case on the canopy is itself suggestive that the plaintiff’s case thereon lacks evidential foundation. 59.As for the Orange Enclosed Space, there is no specific pleading or evidence of when it was first constructed. The photograph depicting the Orange Enclosed Space (i.e. Annex II) shows an angle equivalent to the triangular area set back in about 2007 according to the plaintiff’s own plans, and this suggests that the Orange Enclosed Space might only be constructed in 2007. Earlier photographs of the Wall Shop also do not show the Orange Enclosed Space. But I need not make any positive findings on this save to remark that the plaintiff has now shown by evidence as to when the Orange Enclosed Space was built. C6. Who had possessory title as at December 1990 60.As to the AP Parts, while I find that, as from 1969, it was exclusively possessed by Wan Ming Hoi and/or his family, the question remains whether the exclusive possession was by Wan Ming Hoi alone, or by him jointly[50] with some or all of his family members from time to time, so that the possessory title, which became indefeasible by the paper owners after the expiry of the relevant limitation period, was with Wan Ming Hoi alone, or with Wan Ming Hoi and members of his family jointly. Since possession has to be single and exclusive, and the concept of exclusive possession connotes control over the land to the exclusion of the world including the paper owner, the question is whether the Wall Shop (including the AP Parts) was being exclusively controlled by Wan Ming Hoi solely, who in turn allowed his wife and children, and later K Wah International Limited, to use the Wall Shop as licensees, or whether the exclusive control and possession was exercised by all the family members jointly from time to time. 61.According to the plaintiff’s own evidence, the Wan family is a traditional one, where a daughter who has got married (外嫁女) would have no right to family assets, and that a woman who marries into the family has an even lower status. On this basis, it seems that at all times, Wong Choi Kam would not have been intended to have any rights in relation to the Wall Shop, or intended to be in joint control and possession of the Wall Shop with Wan Ming Hoi (and/or other members of the family). However, there is no dispute that when a unit in City Centre Building was purchased in 1974 for the family to reside in, it was purchased in the joint names of Wan Ming Hoi and Wong Choi Kam, which is inconsistent with what the plaintiff says to be the family tradition, and a matter which he cannot explain. 62.As for the children, when the Wall Shop moved to its present location in about 1969, the eldest one was 15 and the youngest one was three, and it seems to me unreal to say that in 1969, or at any time before that when the Wall Shop was at a different location on the Lane, that it was intended that any of the children was to have, or that they did exercise, control over the Wall Shop jointly with Wan Ming Hoi in the sense required. Thus, unless at some time later, for example, when each child came of age, then there was a change so as to include that child jointly with those already having such possession, it is difficult to see that at any time before December 1990 any children, including the plaintiff, had joint control and possession, instead of occupying the Wall Shop as permitted by Wan Ming Hoi (and possibly Wong Choi Kam). But there is no basis to make any such finding. 63.The case of the plaintiff himself is equally unclear as to whether it was Wan Ming Hoi alone who had exclusive possession, or whether it was Wan Ming Hoi and his family members jointly (all emphasis in the quotes are added by me):
64.It is not possible for me to resolve the question of whether the exclusion possession of the Wall Shop between 1969 and December 1990 was by Wan Ming Hoi alone, or by Wan Ming Hoi jointly with his family members (and even possibly K Wah International Limited). The only person before me who can shed light on this is the plaintiff, but his case and evidence is unclear and inconclusive. However, I do not think it matters in so far as extinguishment of the titles of the paper owners is concerned, as exclusive possession by different individual squatters or different joint squatters successively can be added together to “fill up” the relevant limitation period, and there is no need for one single squatter, or one single group of joint squatters, to have exclusive possession for the entire period. In my judgment, there is no doubt, and I find, that during the whole of the period from 1969 to December 1990, the Wall Shop was exclusively possessed as a matter of fact by Wan Ming Hoi and his family in the sense that use of and access to the Wall Shop at any one time was exclusively limited to Wan Ming Hoi and his family. Either the control vested solely with Wan Ming Hoi, or with Wan Ming Hoi and his family jointly. There is no basis to find, and I do not find, that Wan Ming Hoi and various members of his family were at any time exercising separate, several control or possession of the Wall Shop.[53] That is sufficient to extinguish the paper titles to the AP Parts. Within the family, whether it was Wan Ming Hoi who was in sole control, or there was joint control by him and some or all other members of the family, does not affect the question of extinguishment, but only to the question of who owned the possessory title to the Wall Shop, with the possessory title to the AP Parts having become indefeasible by anyone else by 1989. That may be Wan Ming Hoi alone, or Wan Ming Hoi and his family members. It is not necessary to resolve this. C7. Whether the plaintiff has “absolute legal title” of the AP Parts 65.Wan Ming Hoi and/or his family having extinguished the titles of the IOCCB and the 3rd defendant (or their predecessors) and became the “absolute legal owner” of the AP Parts in the sense as I explained above, no doubt the plaintiff, assuming that he has been in exclusive possession thereof by himself since January 1991 up to now as he alleges, can resist any claim for possession of the AP Parts by the IOCCB and the 3rd defendant, the titles of which had been extinguished, but does it follow that he has then become the “absolute legal owner” of the AP Parts, as he prayed for in one of the declarations being sought? 66.I note that the declaration the plaintiff asks for is a declaration that he has become the “absolute legal owner” of the relevant land. The use of the word “absolute” suggests that he is not seeking a declaration of the position just between him and the defendants. It may be that such a declaration binds the defendants only and not other persons not parties to this action, but nevertheless the use of the word “absolute” is liable to create confusion or misunderstanding. 67.Applying the principles stated at [38] above, given my finding that as at December 1990 Wan Ming Hoi and/or his family had become the “absolute legal owner” of the AP Parts, if and in so far as the plaintiff is seeking to be declared as the current “absolute legal owner” of the AP Parts himself generally, the plaintiff needs to satisfy me that:
68.In either case, the answer hinges on whether the agreement which the plaintiff alleges was made between members of the Wan family in December 1990 was in fact made, and if so what was its effect. However, as one can see, the two scenarios referred to in the preceding paragraph are inconsistent and mutually exclusive, in the sense that if the plaintiff went into exclusive possession of the Wall Shop because Wan Ming Hoi and/or his family did somehow validly transfer ownership to the plaintiff, there was no adverse possession. If Wan Ming Hoi and/or his family did not so transfer, then unless the plaintiff has shown that his exclusive possession was adverse to Wan Ming Hoi and/or his family with the necessary animus possidendi, he could not have extinguished the title of Wan Ming Hoi and/or his family and became the absolute legal owner himself. 69.The difficulty, however, for the plaintiff is this. Despite the fact that the alleged agreement is pleaded in the first version of the Statement of Claim, and elaborated further in the first version of the Reply and Defence to Counterclaim as against the 3rd defendant, and maintained in the subsequent versions, on his pleadings the plaintiff’s claim to an absolute legal title is based only on adverse possession, proprietary estoppel, acquiescence and laches, and not because he has validly succeeded to the title of Wan Ming Hoi and/or his family by transfer: see the reliefs claimed which I set out at [26] above. Indeed, Mr Singh has expressly confirmed that the plaintiff’s case rests upon his own adverse possession of the Wall Shop since January 1991. However, it is not the plaintiff’s case that he is claiming adverse possession as against Wan Ming Hoi and/or his family. That is, neither scenario is the plaintiff’s pleaded case. 70.In any event, I do not accept the plaintiff’s evidence that an agreement regarding inter alia the Wall Shop was entered into in December 1990 between him and the other members of the Wan family, for the following reasons:
71.In the premises, even if there had been exclusive possession of the Wall Shop by the plaintiff since January 1991 up to now as he alleges, such possession cannot be explained by reason of the alleged agreement. On the other hand, without the alleged agreement, there is an evidential gap as to the basis and circumstances under which the plaintiff came to possess the Wall Shop exclusively. As the titles of the IOCCB and the 3rd defendant (or their predecessors) in the AP Parts had been extinguished by Wan Ming Hoi and/or his family by December 1990, to get an absolute legal title himself, the plaintiff needs to craft out an indefeasible possessory title as against Wan Ming Hoi and/or his family, rather than as against those defendants, because, when the plaintiff commenced exclusive possession in January 1991 as he alleges, those defendants already had no right to sue him for possession. [55] But the question is, was the plaintiff’s possession with or without the consent of Wan Ming Hoi and/or his family? If it was, then there is no case for adverse possession. As Lord Browne-Wilkinson said in JA Pye (Oxford) Ltd v Graham:[56]
The principle is the same when one substitutes “absolute legal owner” such as Wan Ming Hoi and/or his family who acquired such ownership by way of adverse possession for “paper owner”. 72.Mr Singh submits that the 3rd defendant has produced no evidence to suggest that the plaintiff occupies the Wall Shop from January 1991 onwards with the permission or consent of Wan Ming Hoi as his licensee. However, with respect, in so far as the plaintiff is seeking a declaration of absolute legal ownership generally, which is to the exclusion of even Wan Ming Hoi and his family, the burden is on him to adduce evidence in support. The plaintiff has not discharged his burden of proving that his exclusive possession of the Wall Shop (assuming that to be the case) satisfies all the required elements of a successful claim in adverse possession as against the person who had by then become the absolute legal owner of the AP Parts, i.e. Wan Ming Hoi and/or his family, in particular, the lack of consent of Wan Ming Hoi and/or his family. His acts in relation to the 2006 Action and in correspondence with Protech (see [28]-[29] and [31] above), which were done on the basis that the exclusive possession of Wan Ming Hoi (alone) continued, are also at odds with any case of adverse possession against Wan Ming Hoi and/or his family. The explanations given by the plaintiff in cross-examination (basically all tactical or strategic considerations) are not convincing, and indeed involves the plaintiff willing to tell what on his current case are not the truth, just so to achieve whatever was his aim at the time. That hardly inspires confidence of this Court in the plaintiff as a witness. 73.A declaration that the plaintiff has acquired the absolute legal title of the AP Parts generally has the additional difficulty in that the estate of Wan Ming Hoi, who on my findings was the absolute legal owner, or one of the joint absolute legal owners, of the AP Parts as at December 1990, has not been joined. Nor has any other family members, who may also be a joint owner, been joined herein. It is the plaintiff’s evidence that he had, through Wong Choi Kam, informed the executors of this action, but even if it was so I would have thought that the joinder of the estate (and other family members) is necessary. However, given my findings above this issue is academic. 74.If and in so far as the declaration of absolute legal ownership in favour of the plaintiff is said to be a declaration as between the plaintiff and the IOCCB and the 3rd defendant only, and binds the latter two and not generally, the use of the word “absolute” is inappropriate and liable to mislead.[57] In any event such a declaration, if it only relates to the positions between the plaintiff, the IOCCB and the 3rd defendant inter se, is unnecessary given the declaration of extinguishment of the titles of the IOCCB and the 3rd defendants (and their predecessors) in the AP Parts, and I decline to make such a declaration in the exercise of my discretion on this ground alone, irrespective of the other reasons herein. 75.In the above analysis, I have assumed that since January 1991, the plaintiff has had sole exclusive possession of the Wall Shop. However, that may well not be the case. Quite apart from the fact that on his own evidence of the terms of the alleged agreement (which I reject), the Wall Shop was to be given to him and his family, there is evidence of usage by his wife and one of his sons, which may or may not be connote possession by them in the required sense. More importantly, apart from occasional residential use of the Wall Shop by one of his sons, it is the plaintiff’s case that the Wall Shop had been used for various business purposes, which he say he sought to put under the umbrella of K Wah International Limited, which was also the addressee of many bills issued in respect of the Wall Shop. If so, it may well be that K Wah International Limited, a separate legal person, has been in exclusive possession, or has been in joint exclusive possession. However, given the findings I made above, it is not necessary for me to find whether, since January 1991, the plaintiff had been in sole exclusive possession of the Wall Shop, or jointly with others. In either case, I decline to find that the plaintiff has acquired the absolute legal ownership of the Wall Shop (or the AP Parts) as prayed for. 76.Mr Lin argues that, given the plaintiff’s own plea that by 1974 Wan Ming Hoi and his family had already obtained a title to the Wall Shop by adverse possession, the plaintiff does not have locus standi to make this present claim. By this, I understand the point is really that the various claims of the plaintiff have no merits rather than strictly a locus standi point, and which I have dealt with accordingly. There is no reason why the plaintiff cannot seek whatever declarations in relation to the Wall Shop that he wants: it is just that he fails on the merits regarding some of the issues. C8. Proprietary estoppel, acquiescence and laches 77.The cases of proprietary estoppel, acquiescence and laches add nothing. By December 1990, Wan Ming Hoi and/or his family had become the absolute legal owner of the AP Parts, and the titles of the IOCCB and the 3rd defendant (or their predecessors) in the AP Parts had been extinguished. Any estoppel, acquiescence or laches before that are immaterial, and any estoppel against, or acquiescence or laches by, the IOCCB and the 3rd defendant, after that if at all are also immaterial as to whether the plaintiff has somehow acquired absolute legal ownership from Wan Ming Hoi and/or his family. There is no basis to find any estoppel, acquiescence or laches against Wan Ming Hoi and/or his family given the evidential gap I referred to at [71] above. Nor are they pleaded. 78.For the same reasons that I reject that the case that Extended Portion B had been in adverse possession, with the answer to the question of knowledge and consent by the registered owner thereof from time to time unclear, there is no basis to find any proprietary estoppel, acquiescence and laches by the 2nd or the 4th defendants, or any of their predecessors in title, in Extended Portion B. 79.As for the external wall of the City Centre Building enclosed by the Wall Shop, and the two sealed windows, again for the same reasons that I reject the plaintiff’s case on adverse possession, with possession thereof by Wan Ming Hoi and/or his family, or the plaintiff, not proven, they could not and cannot be any basis to find proprietary estoppel against, or acquiescence and laches by, the IOCCB. With no unauthorised possession of the external wall or the two sealed windows, there was nothing which the IOCCB ought to or could do, in so far as the external wall itself is concerned. 80.As for the canopy and the Orange Enclosed Space, in the absence of any finding as to when the canopy and the Orange Enclosed Space as they were as at the date of the writ was first constructed, any case based on proprietary estoppel, acquiescence and laches is hopeless. C9. Right to light 81.As to the question of the right to light of the owner of Shop F via the two sealed up windows, the allegation of the plaintiff that it does not have any such right is simply that there is no such grant either in the assignment when Shop F was first assigned to Hip Hing, nor is there such a grant in the deed of mutual covenant of City Centre Building. But an express grant is not the only way of a right to light to arise: it can, for example, arise by an implied grant.[58] I do not think that the plaintiff has ruled out before me all possible bases on which such a right could have arisen. 82.As for abandonment, I note that in its Amended Defence, the 2nd defendant asserts that Shop F did not have the two windows as marked by the plaintiff on his plans or at all. I am not sure if this assertion is made because when the 2nd defendant took up ownership of Shop F (which according to the land search was sometime in 1991), the two windows had, as stated by the plaintiff, already been sealed up so the 2nd defendant never knew that they existed. In such circumstances, it would appear to me that the 2nd defendant, as the owner of Shop F as at the date of the writ herein, was not even aware of the existence of the two windows but which the plaintiff admits to have existed. The same can be said of any of the predecessors in title of the 2nd defendant and which only took up ownership of Shop F after the windows were sealed up in 1969. However, the aforesaid does not matter because, if there was indeed such a right for the same reasons as I reject the case of adverse possession in relation to Extended Portion B, it is not possible for me to find the reasons and circumstances of the sealing up of the two windows and thus whether there has been any intention to abandon. I reject the plaintiff’s case in this regard. D. THE COUNTERCLAIM BY THE 3RD DEFENDANT 83.The remaining question is whether the Right of Way had been abandoned by the 3rd defendant. The original existence of the Right of Way is not in dispute. 84.As stated by Lord Chelmsford LC in Crossley and Sons Ltd v Lightowler[59]:
It is a question of the intention of the grantee (i.e. the 3rd defendant or its predecessors here). 85.In Gotobed v Pridmore,[60] Buckley LJ[61] summarised the law as follows:
86.The law of abandonment was further summarised by Briggs LJ[62] (as he then was) in Dwyer v Westminster City Council:[63]
87.In the present case, it is clear that as from 1969 the latest, that part of the Lane subject to the Right of Way but was covered by the Wall Shop had not been used by the 3rd defendant or its predecessors. Nor is there any evidence of complaint or other action taken by or on behalf of the 3rd defendant or its predecessors to indicate an intention of preservation of the right despite the non-use. As at the date of the writ, that was 45 years, which is quite a long period of non-use. However, mere suspension of exercise of the right, or non-user, is not sufficient in itself to prove the intention to abandon, and the question is whether in all the circumstances the non-user clearly indicates an intention of not resuming the user.[64] However, a long continued suspension may be an element to infer an intention against the grantee,[65] and render it necessary for the grantee to show that some indication was given by him during the period of non-user of his intention to preserve the right.[66] Thus, the long period of non-use and inaction by the 3rd defendant and its predecessors is not in itself determinative, but is a consideration which I must take into account together with all the other relevant factors in the circumstances. 88.In my judgment, there has been no abandonment of the Right of Way by the 3rd defendant or its predecessors. An intention to abandon is, as the authorities stressed, not to be lightly inferred, and not from the lapse of time alone. To me, a very significant element in this case is the fact that there has been at all times an alternative means for the 3rd defendant (and its predecessors) and their licensees for access, namely its own side of the Lane. The Right of Way is on the land of the IOCCB (or its predecessors) longitudinally and so the 3rd defendant (and its predecessors) does not need to use the Right of Way for any purpose save to go from one end of the Lane to the other, which can be achieved by walking along the 3rd defendant’s own side of the Lane.[67] As Mr Liu says, he could walk freely across the Lane. The absence of a need to use the easement in question during even a lengthy period of time suggests to me that the non-use during the period is not indicative of an intention to abandon. While it may be that the 3rd defendant (or its predecessors) had done nothing in the meantime to indicate that they intended to preserve the right, the absence of the need to use suggests that such positive acts are not to be expected even in a case of non-abandonment. In Benn v Hardinge,[68] non-use for 175 years was found not to support a conclusion of abandonment because there were other means of egress. 89.Mr Singh relies on what he says was acquiescence by the 3rd defendant (or its predecessors) in that they stood by and allowed the Wall Shop to be constructed and used and obstructing the use of the Right of Way. However, the question is not so much whether there was acquiescence, but whether the facts and circumstances said to give rise to a case of acquiescence indicate, in all the circumstances, an intention to abandon. But if there had been no need to use the Right of Way because of the alternative means of access, one cannot infer from the facts and circumstances relied upon by Mr Singh that there has been an intention to abandon by the 3rd defendant (or its predecessors). I echo the sentiment expressed by Stuart-Smith LJ[69] in Snell & Prideaux Ltd v Dutton Mirrors Ltd:[70]
90.There having been no abandonment, there is no basis to reject the counterclaim of the 3rd defendant in so far as the Right of Way is concerned. I allow it. 91.The counterclaim based on the alleged trespass of the AP Parts owned by the 3rd defendant (or its predecessors) is dismissed as its title thereto was extinguished as from 1989. Its counterclaim in relation to the trespass by the plaintiff on the other parts of land owned by it, i.e. the Planter, and the part of the canopy and the Orange Enclosed Space overhanging the Lane is allowed, there being no real dispute from the plaintiff that he is in possession thereof (either alone or jointly with others) without the 3rd defendant’s consent. E. DISPOSITION 92.I allow the plaintiff’s claim only in so far as he seeks a declaration that the titles of the IOCCB and the 3rd defendants in the AP Parts have been extinguished. I otherwise dismiss the plaintiff’s action. 93.I allow the 3rd defendant’s counterclaim for a declaration that it is entitled to exercise the Right of Way, an order for vacant possession of land owned by it and possessed by the plaintiff apart from the AP Parts, and an injunction as prayed for under paragraph (4) of the prayer for relief in its counterclaim. There is a claim for damages but as no evidence of loss or damage is adduced I dismiss the same. 94.The parties are to agree the actual wording of the reliefs to be granted to the plaintiff and the 3rd defendant, failing such agreement within 28 days of the date of this Judgment any party has liberty to apply. 95.The plaintiff has partially succeeded in obtaining a declaration against the 3rd defendant, and has resisted the counterclaim in so far it relates to the AP Parts owned by the 3rd defendant. I make an order nisi that the plaintiff is to pay 80% of the costs of the 3rd defendant of the action and of the counterclaim, including all reserved costs (if any), with certificate for two counsel, to be taxed if not agreed. I also make an order nisi that the plaintiff is to pay the costs of the 2nd defendant, including all reserved costs (if any), to be taxed if not agreed. Also on a nisi basis, there is no order as to costs between the plaintiff, the IOCCB and the 4th defendant. 96.I direct that the solicitors for the plaintiff do serve a copy of this Judgment on each of the IOCCB and the 2nd and the 4th defendants at their respective registered offices within seven days from the date of this judgment. 97.I thank counsel for their assistance.
Mr. Harprabdeep Singh & Mr Tang Lik Hang instructed by Messrs Ravenscroft & Schmierer for the Plaintiff The 1st Defendant was absent Messrs Lily Fenn & Partners for the 2nd Defendant, attendance be excused Mr Kenny Lin & Mr Kin Lau instructed by Messrs Woo, Kwan, Lee & Lo for the 3rd Defendant The 4th Defendant was absent [1] It is common ground that, after the commencement of this action, Century Court was demolished. [2] When I say a piece of land is owned by a defendant or a predecessor in title, unless the context otherwise required, I mean that that entity is the owner on paper, without prejudice to the plaintiff’s claim herein. [3] When I refer to the Wall Shop herein, I do not include the Planter, the Orange Enclosed Space or the canopy as extended from the Wall Shop, or the external wall enclosed by the Wall Shop or the sealed up windows, but include the Extended Portion when I refer to the Wall Shop in relation to events or matters after the expansion of the Wall Shop into Shop F in about 1968 or 1969. [4] It is noted that while the cyan area appears on the Plan to be much larger than the yellow area, the Plan states that the cyan area is 1.6m2, and the yellow area is stated to be 3.7m2. In fact, the 3.7m2 covers both the part of the Wall Shop on the 3rd defendant’s land (of 1.6m2) and the Planter (of 2.1m2 ). This 3.7m2 is the total area of encroachment on land owned by the 3rd defendant, not including the canopy (which would add another 2.9m2, as 2.1m2 of the canopy overhangs the Planter). [5] As per the Order of Au-Yeung J dated 18 May 2022. [6] I note that at that time the plaintiff and his wife had a son, with two more sons born thereafter. [7] Appearing with Mr Kin Lau. [8] Of course, the plaintiff does not claim this to be 100% accurate word for word, nor do I expect him to be able to so recall. [9] HCA 279/2006. [10] Cap 344. [11] I am told by the plaintiff during cross-examination that in his witness statement prepared for the 2006 Action, the plaintiff did mention the alleged agreement. The witness statement is not before me, because the 3rd defendant objects to its late disclosure and the plaintiff then withdraws it. So, in substance and effect, the statement is excluded by agreement. I must say this is a most unsatisfactory manner under which the Court is to attempt to find the truth, but there is no reason for me not to accept the evidence of the plaintiff that his witness statement in the 2006 Action did mention the alleged agreement. [12] Giving the judgment of the Court of Final Appeal consisting also of Bokhary, Chan and Ribeiro PJJ and Lord Millett NPJ. [13] (2007) 10 HKCFAR 588 at [7]. [14] Cap 347 (“the LO”). [15] HCA 274/2014; [2020] HKCFI 1501 (footnotes omitted). [16] HCA2151/2008 (22 November 2016) at [172] (footnotes omitted). [17] CAMP 143/2019; CAMP 144/2019; [2019] HKCA 969 at [10]. [18] Giving the judgment of the Court of Appeal consisting also of Au JA. [19] [2008] 5 HKC 210. [20] Giving the advice of the Judicial Committee of the Privy Council consisting also of Lord Guest and Lord Upjohn. [21] [1969] 2 AC 19 at 24-25. [22] The following discussions are only on the positions before and after the expiry of the relevant limitation period as between the owner on paper, persons in possession, and the rest of the world. They assume that all relevant requirements under the law of adverse possession, such as exclusive possession and animus possidendi, are satisfied, when I say the result is that the person in possession has acquired an indefeasible possessory title by way of adverse possession, and that the title of the owner on paper is extinguished. [23] The limitation period under the LO is sixty years in actions by the Government to recover land: see section 7(1) of the LO. In other cases, for causes of action to recover land accrued before 1 July 1991, the limitation period is twenty years: see section 7(2) of the LO before its amendment by the Limitation (Amendment) Ordinance 1991 (No 31 of 1991), and section 38A of the LO. For causes of action that accrued on or after 1 July 1991, the limitation period is twelve years: see section 7(2) of the LO. The applicable limitation period is called “the relevant limitation period” herein. The applicable limitation period in this case is twenty years. [24] As stated by Cockburn CJ in Asher and Wife v Whitlock (1865) LR 1 QB 1 at 5: “But I take it as clearly established, that possession is good against all the world except the person who can shew a good title”. [25] Wong King Lim v Incorporated Owners of Peony House [2013] 4 HKC 295 at [37] per Lam JA (as he then was), with whom Au J (as he then was) agreed. [26] Section 17 of the LO. [27] Although he may still be subject to other legal interests that run with the land and not themselves having been extinguished, for example, easements and restrictive covenants affecting the land: see Bridge, Cooke and Dixon, Megarry and Wade’s The Law of Real Property (9th ed, 2019) at [7-070]. [28] Kirk v Sutherland [1949] VLR 33 at 37-38 per Lowe J. See also Jourdan and Radley-Gardner, Adverse Possession (2nd ed, 2011) at [20-67]. [29] Section 13(2) of the LO. In Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70 at [4], Bokhary PJ (with whom Chan and Ribeiro PJJ and Nazareth and Sir Anthony Mason NPJJ agreed), cited with approval the judgment of Brooking J (as he then was) in Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 at 341: “where the adverse possession has been continuous, it is possible to tack the possession of one intruder on to that of another although there has been no assignment of possessory rights”. [30] Now at [7-036] of the 9th ed (2019). [31] Jourdan and Radley-Gardner at [6-48] et seq. [32] Jourdan and Radley-Gardner at [6-53]; Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078 at 1086 per Nicholls LJ (as he then was), giving the judgment of the Court of Appeal consisting also of Nourse and Mann LJJ. [33] At [20]. [34] Jourdan and Radley-Gardner at [6-51]. [35] Appearing with Mr Tang Lik Hang. [36] Sections 7 and 13 of the LO. [37] I use the term “and/or” deliberately for reasons stated at Section C6 below, despite what Godfrey J (as he then was) said about it in Refco Inc v Bullion Ltd [1990] 1 HKLR 46 and 48E-G. [38] The IOCCB was only incorporated on 11 December 1989, around or just about the time which I find to be the latest time when the paper title to its land had been extinguished. See [4] above. The 3rd defendant became owner of its land on 15 March 1997. See [7] above. The limitation period that had been running against their respective predecessors, and the extinguishment of title, apply to them: see section 9(3) of the LO. [39] I decide on the Orange Enclosed Space and the canopy, and the external wall enclosed by the Wall Shop and the sealed up windows, which I do not include as my definition of “the Wall Shop” (footnote 3 above), separately below. No claim is made for the Planter. [40] As Cockburn CJ said in Seddon v Smith (1877) 36 LT 168 at 169, “Enclosure is the strongest possible evidence of possession”. [41] Which is a factor to be taken into account in considering adverse possession: The Incorporated Owners of Kam Luk Building v Poon Mui Sang DCCJ 1649/2016; [2018] HKDC 1493 at [16] per HHJ Andrew Li. [42] Jourdan and Radley-Gardner at [7-20]. [43] Save for a plan prepared by the plaintiff but for reasons stated in [44] above I will not rely on it. [44] [2012] 2 HKLRD 599 at [11]. [45] Giving the judgment of the Court of Appeal consisting also of Kwan and Fok JJA (as they then were). [46] [1968] HKLR 673. [47] DCCJ 1500/2016; [2022] HKDC 325. [48] See [63]. [49] CACV 329/2018; [2019] HKCA 903. [50] If there are more than one person in exclusive possession of a piece of land together, they are joint tenants rather than tenants in common: Leung Chi Cheong (the person appointed to represent the estate of Leung Fai, deceased) v Liu Che Wun CACV 487/2021; [2022] HKCA 1335 at [54]-[65] per Cheung JA. [51] For example, at [30] of the opening submissions, it is stated: “P’s case as to factual possession of the Wall Shop Area is that it has been exclusively possessed by WMH and subsequently by P since 1969 at the latest” (emphasis added). [52] For example, at [9] of the closing submissions, it is stated: “In this regard, D3 has produced no evidence to suggest that P occupies the Wall Shop from January 1991 onwards under the permission or consent of WMH as his licensee” (emphasis added). [53] Control by persons severally means none of them is in exclusive control and possession (either singly or jointly) and is thus insufficient to claim adverse possession by any of them, or to extinguish the title of the paper owner: Jourdan and Radley-Gardner at [7-43]-[7-44]. [54] In his closing submissions, Mr Singh suggests another possibility, namely that Wan Ming Hoi had abandoned his ownership of the Wall Shop as from January 1991. This is not only contrary to the plaintiff’s own action stated in [28]-[29] and [31] above, but is also not pleaded and Mr Lin is deprived of the opportunity to cross-examine the plaintiff on this allegation. I decline to allow the plaintiff to raise this issue. [55] See Leung Chi Cheong at [48] per Cheung JA and at [75] per G Lam JA. [56] [2003] 1 AC 419. See also Lau Kwai Ping Joyce at [16], cited at [36] above. [57] In King Benji Henry v Asia Harbour Investment Ltd HCMP 1823/2017 and HCMP 423/2018; [2019] HKCFI 1596, G Lam J (as he then was) granted a declaration that, as between the plaintiff and the defendants, the plaintiff had acquired, by way of adverse possession, ownership over the property as against all the defendants: see [29]. That was despite the fact that other persons who might have an interest in the property were not before the Court. I note, however, that the word “absolute” does not seem to be used in the declaration granted. Rather, in Pang Yiu Chor v Wong Wai Leung [2017] 4 HKLRD 761, while finding that the title of the plaintiff in the property had long been extinguished by adverse possession by the Government, Anthony Chan J declined to grant a declaration to the licensee of the Government that he had acquired possessory title. It was the Government which had acquired the possessory title and in the absence of the Government before the Court his Lordship declined to take the matter further. I respectfully adopt a similar approach. [58] Gaunt and Morgan, Gale on Easements (21st ed, 2020) at [3-126]. [59] (1867) LR 2 Ch App 478 at 482. [60] [1971] EGD 114 at 118. [61] Giving the judgment of the Court of Appeal consisting also of Russell LJ (as he then was) and Megaw LJ. [62] With whom Lord Dyson MR and Aikens LJ agreed. [63] [2014] 2 P&CR 7. [64] Swan v Sinclair [1924] 1 Ch 254 at 266 per Sir Ernest Pollock MR (as he then was). [65] R v Chorley (1848) 12 QB 515 at 519 per Lord Denman CJ. [66] Crossley and Sons at 482 per Lord Chelmsford LC. [67] I do not agree that the 3rd defendant or Protech needed to use the Right of Way so as to clean the Lane, as the Right of Way is not on the 3rd defendant’s side of the Lane. No doubt the cleaners needed, and were able, to use the 3rd defendant’s side of the Lane to clean that side. There is no evidence that the 3rd defendant or Protech was under any obligation to clean the IOCCB’s side of the Lane, which has been covered by the Wall Shop and thus not needed to be cleaned anyway, and thus there was no need to access the Right of Way for that purpose. [68] (1993) 66 P&CR 246. [69] With whom Hoffmann and Saville LJJ (as they then were) agreed. [70] [1995] 1 EGLR 259 at 262. | ||||||||||||||||||||||||||||||||
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