Chan Wai Hung v. The Incorporated Owners of Tung Lo Court
Read the full judgment text of DCCJ 4396/2019 on BabelCite. This District Court judgment was delivered on 20 July 2023.
1. This action concerns the plaintiff’s claims of possession of Parking Lot No. 51 (“ Lot 51 ”) and the adjacent pathway (“ Pathway ”) in the basement car park (“ Car Park ”) of Tung Lo Court, a mixed-use commercial and residential complex completed in 1960 and located on Tai Po Road, Kowloon.
Cited by 3 cases · Cites 14 cases
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DCCJ 4396/2019 [2023] HKDC 983 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4396 OF 2019 _____________________ BETWEEN
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____________________ J U D G M E N T ____________________ Table of Contents
A. INTRODUCTION 1.This action concerns the plaintiff’s claims of possession of Parking Lot No. 51 (“Lot 51”) and the adjacent pathway (“Pathway”) in the basement car park (“Car Park”) of Tung Lo Court, a mixed-use commercial and residential complex completed in 1960 and located on Tai Po Road, Kowloon. 2.The defendant is the incorporated owners of Tung Lo Court (“IO”), which was registered as a corporation under the Multi-Storey Buildings (Owners Incorporation) Ordinance, the predecessor of the Building Management Ordinance (Cap 344) (“BMO”), in May 1972. 3.It is common ground that the registered owner of Lot 51 was one Talent Key Limited (“Talent Key”) between November 1988 and December 1996. Upon Talent Key’s dissolution in December 1996,[1] Lot 51 became bona vacantia and has been vested in the Government by virtue of section 292 of the predecessor Companies Ordinance (Cap 32). The Pathway, on the other hand, is a common part of Tung Lo Court. 4.The plaintiff alleges that he had been in exclusive possession of Lot 51 and the Pathway between 1993 and November 2010, but was excluded by the IO from possessing the same since October 2013. The IO denies all of the plaintiff’s claims, and alleges that the plaintiff has no locus standi to sue in respect of Lot 51 on the ground that it is bona vacantia. 5.The plaintiff called three witnesses, viz. (1) himself, (2) Mr Wong Yun Po (“Mr YP Wong”), his brother-in-law, and (3) Madam Sit Sau Ming (“Madam Sit”), a lady who claimed to have lived in the Car Park between 1993 and November 2010. The IO called (1) Mr Lam Man Lung (“Mr Lam”),[2] its secretary, and (2) Mr Lau Tsun (“Mr Lau”), the sole proprietor of Lee Hing Construction Engineering Co (“Lee Hing”) who has been regularly engaged by the IO to perform repair works of Tung Lo Court since around 1996, to give evidence. The plaintiff also adduced expert surveying evidence from Ms Lo Yee Tak Ellen (“Ms Lo”) on the rental value of Lot 51 and the Pathway. B. BACKGROUND 6.In this section, I set out the background facts chronologically, specifying the more major factual disputes where they appear. 7.In 1982, the late Mr Cheuk Chiu (“Mr Cheuk”), a licensed plumber, purchased four parking lots in the Car Park.[3] Mr Cheuk later became a member of the management committee of the IO, and at times, held himself out as an owners’ representative or manager of the Car Park. According to Madam Sit’s evidence, Mr Cheuk set up an office in the Car Park in 1980s, and employed her ex-husband, Mr Leung Chim Hung (“Mr Leung”), to manage the Car Park throughout 1990s. Mr Cheuk passed away in December 1999. 8.According to the plaintiff’s evidence, he was first acquainted to Mr Cheuk in 1980s. The plaintiff incorporated a plumbing company called Hanfield Plumbing Engineering Limited in 1990. As the plaintiff did not have any plumbing licence, he started cooperating with Mr Cheuk in 1991 on a few plumbing projects. He also started parking his private car, a Toyota Corolla, in the Car Park without paying any fee or anyone’s permission. 9.The plaintiff claims that, in around 1993, he started placing his plumbing materials at Lot 51 and using the Pathway for parking his private car. Lot 51 and the Pathway are shown in red and yellow respectively in the Car Park plan produced in the plaintiff’s witness statement, which is now reproduced in the Appendix hereto. 10.According to the plaintiff, in order to prevent others from taking his plumbing materials, he and one Mr Yeung Yuen Fai (“Mr Yeung”), one of his employees, enclosed Lot 51 and the Pathway by erecting (1) a metal gate which served as the only access and egress to the Pathway (“Gate”), (2) an iron hoarding between parking lot 52 (“Lot 52”) and the Pathway (“Hoarding 1”), (3) an iron hoarding between Lot 51 and the Pathway (“Hoarding 2”), (4) a metal door next to Hoarding 2 which served as the only access and egress to Lot 51 (“Door”), and (5) an iron hoarding between Lot 51 and the adjacent Lot 50 (“Hoarding 3”). All three hoardings (collectively “Hoardings”) ran from the floor up to the ceiling. As for the Gate and the Door, they were locked at all times up to November 2010 and only three people had keys to those locks, namely, the plaintiff himself, Mr Yeung and Mr YP Wong. During his possession of Lot 51 and the Pathway, he installed lighting in both areas and a drainage pump. No one ever objected to his exclusive possession of Lot 51 and the Pathway. 11.The IO denies that Lot 51 and the Pathway were ever enclosed by the plaintiff as alleged or at all. According to Mr Lam’s evidence, the IO engaged Union Fire Safety Limited (“Union Fire”), a registered fire service installation contractor, to perform repair works to the fire sprinklers and associated pipes in the Car Park in early 2002 (“Fire Sprinkler Works”). The workers of Union Fire were then able to have free access to Lot 51 and the Pathway when performing the relevant works at the ceiling of the Pathway. Thereafter, in around 2003, Mr Lam first noticed that a metal mesh gate had been set up to enclose the Pathway, but the metal chain tied to the gate was so loose that entry into the Pathway could be made by simply pulling the gate doors apart. In around 2008 or 2009, he noticed that another set of metal mesh had been installed on top of the metal mesh gate at the entrance of the Pathway. 12.In 2010, the IO engaged Tat Hing Construction Co, Ltd (“Tat Hing”) to carry out a large scale renovation of the Car Park (“Renovation”). In early November 2010, Tat Hing and the IO issued notices to users of the Car Park that they shall vacate all of their vehicles and personal belongings from the Car Park by 14 November 2010. According to the plaintiff, he duly vacated his personal belongings from the Car Park in November 2010. There is no dispute that all structures surrounding Lot 51 and the Pathway (viz. the Gate, the Door and the Hoardings) were removed during the Renovation. 13.After the completion of the Renovation in mid-March 2011, the plaintiff provided a Chinese document dated 12 April 2011 (“Written Request”) to the IO which reads:-
It is common ground that the plaintiff signed the Written Request. However, he disagrees that the following handwritten remarks, which appeared at the bottom of the Written Request, were present when he signed the Written Request:
14.On 22 April 2011, the plaintiff entered into a tenancy agreement to rent Lot 51 to one Mr Yau Kai Lam (“Mr Yau”) at a monthly rental of $2,100 for 6 months from 22 April 2011 to 21 October 2011 (“Tenancy Agreement”). According to the plaintiff’s case, he was introduced to Mr Yau by Mr Wong Sai Ping (“Mr SP Wong”), an estate manager engaged by the IO to manage Tung Lo Court, and the Tenancy Agreement was entered into upon a mutual understanding amongst himself, Mr Yau and Mr SP Wong that Mr Yau would be allowed to park his car in the Pathway. The IO contends that it does not have any knowledge of the dealings between Mr SP Wong and the plaintiff, and in any event, any introduction made by Mr SP Wong was done in his personal capacity rather than on behalf of the IO. 15.On the same day, viz. 22 April 2011, the IO, through Mr SP Wong, issued a written demand to Talent Key (“Payment Demand”) for overdue management fees for Lot 51 since 1991 and contribution towards the costs of the Renovation and other repair works of Tung Lo Court since 1994, in the total sum of $56,553. There is no dispute that the plaintiff took upon himself to satisfy the Payment Demand by (1) paying a sum of $24,397 to the IO, and (2) directing Mr Yau to pay his monthly rental for Lot 51 to the IO and providing a written authorisation of even date to the IO (“Written Authorisation”) to deduct the outstanding sum of $32,156 from Mr Yau’s monthly rental payments. Mr SP Wong, on behalf of the IO, acknowledged the above arrangement by affixing the IO’s chop on the Written Authorisation. 16.According to the IO’s case, it received payment from the plaintiff in discharge of the Payment Demand and his subsequent payments for management fees in respect of Lot 51 because it had been misled by the plaintiff, who allegedly represented to Mr Lam that he was a director of Talent Key. The plaintiff denies that he had ever misled the IO as alleged or at all. 17.There is no dispute that, after the Tenancy Agreement expired, Mr Yau continued to rent Lot 51 at a monthly rental of $2,100 from the plaintiff until March 2013. It is the plaintiff’s case that the IO, through Mr Sze Lap Ki (“Mr Sze”), a supervisor of the management office, started using the Pathway for parking motorcycles thereafter. In October 2013, the IO further divided Lot 51 into two motorcycle parking spaces and allowed the same to be used by its tenants or licensees for parking motorcycles. 18.According to the plaintiff, he issued a letter dated 31 December 2013 demanding the IO to cease its wrongful and unauthorised letting of Lot 51 and the Pathway, but he has not kept a copy of the aforesaid letter and therefore cannot produce the same in these proceedings. The IO denies having received such a letter, or any complaint by the plaintiff, as alleged. 19.The IO claims that it conducted an investigation in 2014 and discovered that the plaintiff was not in fact the owner of Lot 51. It is common ground that the IO has refused the plaintiff to enter the Car Park since January 2014. C. THE PARTIES’ PLEADED CASES C1. The plaintiff’s case 20.The plaintiff’s pleaded case, based on his amended statement of claim and reply, is as follows. Between late 1980s to about 2000, the actual possession, control and management of the entire Car Park was exercised by Mr Cheuk. In about 1991, the plaintiff started parking his vehicle in the Car Park without any consent, licence or permission from the IO, Talent Key or Mr Cheuk. 21.In 1993, the plaintiff enclosed both Lot 51 and the Pathway by the Gate, the Door and the Hoardings. He was in exclusive possession of Lot 51 and the Pathway since then. He used Lot 51 exclusively as a storage room for his business, whereas the Pathway was used for parking his private car. Throughout the years, he treated himself as the owner of Lot 51 and the Pathway, and he incurred costs and expenses on Lot 51 and the Pathway in the capacity of an owner, including the installation, maintenance and repair of lighting and plumbing apparatus in Lot 51 and the Pathway, paying the rates and Government rent for Lot 51 (“Rates”) since 1993 up to the present, and paying the management fees and general maintenance costs in respect of Lot 51 to the IO up to December 2014. 22.At all material times, neither Mr Cheuk nor the IO had ever disturbed the plaintiff’s exclusive possession of the Pathway. As for Lot 51, neither Talent Key nor the Government had ever disturbed his exclusive possession of the same. 23.After Mr Cheuk passed away, the Car Park was managed by Mr Leung and Madam Sit in place of Mr Cheuk. Mr Leung, Madam Sit and the IO never disturbed the plaintiff’s exclusive possession of the Pathway. 24.Since 2010, the IO, through its management company, took up the management of the Car Park from Mr Leung and Madam Sit. The IO acknowledged the plaintiff’s right and title to possess Lot 51 by regarding him as the owner of Lot 51, offering to look for a tenant of Lot 51 for him, asking him to execute a proxy form for voting at the annual general meeting of owners on 6 May 2012, issuing an entry pass of the Car Park and assigning a mailbox to him, and demanding and accepting management fees from him as if he was the true owner of Lot 51 until December 2014. In the premises, he has a relatively better right of possession of Lot 51 against the IO under the principle of relatively of title, and the IO is estopped from denying his right and title vis-à-vis the IO to exclusively possess Lot 51. 25.The plaintiff also claims that he has acquired a possessory title to the Pathway by reason of his adverse possession of the same for a period of 12 years from 1993 to 2005, or alternatively, any continuous period of 12 years between 1993 and October 2013. The IO’s paper title to the Pathway has been extinguished and its right to recover possession of the same has been time-barred under sections 7, 10 and 17 of the Limitation Ordinance (Cap 347) (“LO”). 26.After Mr Yau surrendered his tenancy of Lot 51 in March 2013, Mr Sze and/or his tenants occasionally occupied the Pathway for parking vehicles. In about October 2013, the IO wrongfully divided Lot 51 into two motorcycle parking spaces and let the same and the Pathway to its tenants or licensees for parking motorcycles. Despite repeated demands, the IO still fails to surrender possession of Lot 51 and the Pathway to the plaintiff. Since January 2014, the IO further wrongfully denied his access to the Car Park. He has therefore been deprived of the use, enjoyment and exclusive possession of Lot 51 and the Pathway. 27.The plaintiff claims (1) declaratory relief for a possessory title to (a) Lot 51 based on relativity of title vis-à-vis the IO, and (b) the Pathway based on adverse possession; (2) delivery of vacant possession of Lot 51 and/or the Pathway; (3) an injunction to restrain the IO from causing any unlawful disturbance to his exclusive possession of Lot 51 and/or the Pathway; and (4) mesne profits for the IO’s possession and use of Lot 51 and/or the Pathway. C2. The IO’s case 28.The IO’s case, as pleaded in the defence, is as follows. It has the statutory power and authority to implement and enforce the deed of mutual covenant of Tung Lo Court (“DMC”) and the relevant provisions of the BMO, including the right to possess, control and manage the common area of the Car Park. It has never permitted any trespass, unlawful occupation or unauthorised use of any part of the common area of the Car Park. 29.The IO denies that Mr Cheuk, Mr Leung and Madam Sit had ever occupied any of the parking lots of which they had no legal or equitable interest or any part of the common area. If the IO received any complaint about any parking lot having been unlawfully occupied, it would take action to remove such occupation. Upon discovery of any unknown or unclaimed objects in the common area of the Car Park, including the Pathway, the IO would post a notice inside the Car Park requesting the immediate removal of the same, and if no action was taken by the owner of those objects, the IO would forthwith remove and clear the same without any further notice. 30.The IO received complaints that some rubbish or articles such as used water pipes, old plastic buckets and a makeshift metal shelf were found at Lot 51. It forthwith put up a warning notice requesting immediate removal of those objects, and made a complaint to the Buildings Department (“BD”) and the Fire Services Department (“FSD”). 31.The IO denies that the plaintiff had ever parked any vehicle at Lot 51 or the Pathway. It also denies that the Pathway was ever enclosed. At all material times, it did and does have free access to and egress from the Pathway and other parts of the common area of the Car Park to carry out repair works and to remove any unauthorised obstructions whenever necessary. 32.The IO claims that the lighting and plumbing apparatus in Lot 51 and the Pathway were common facilities falling within the IO’s duties, management and authority, and the relevant repair works to the plumbing apparatus were carried out by Lee Hing. 33.In around 2012, Mr Lam saw the plaintiff at Lot 51. When Mr Lam asked the plaintiff about the latter’s authority for being present at Lot 51, the plaintiff replied that he was a director of Talent Key. The IO was therefore misled by the plaintiff into believing that he was the owner of Lot 51, and on such basis, issued him an entry pass of the Car Park and a mailbox. The plaintiff has never paid any management fees which duty to pay falls on the owner of Lot 51. In around 2014, the IO investigated and verified the fact that the plaintiff was not the owner of Lot 51. It did not accede to the plaintiff’s offer to pay the management fees in respect of Lot 51 upon the condition that the IO would acknowledge the plaintiff to be the owner of Lot 51. Thereafter, the plaintiff has not paid any management fees. 34.During Mr Yau’s tenancy of Lot 51, the IO warned him several times for placing loose articles at Lot 51 and parking his car outside Lot 51. As a result, he ceased renting Lot 51. 35.The IO has never authorised Mr Sze to occupy the Pathway for parking vehicles. Since about April 2019, in order to alleviate the problem that the usable area of Parking Lot No. 28 (“Lot 28”) is not big enough to accommodate a car, the IO would arrange the occupier of Lot 28 to park his car at the Pathway on a temporary basis. At times when there were repair works inside the Car Park, the IO may allow its contractors and their workmen to park their vehicles at the common area including the Pathway during the time of their work. Save for those exceptional circumstances, the IO would not allow parking in the Pathway. 36.The IO also denies to have made any partition to Lot 51 or let the same since March 2013. Nonetheless, the owner of Parking Lot No. 50 (“Lot 50”) would sometimes wrongfully park his motorcycle in Lot 51 without permission. When this situation comes to the IO’s attention, the owner of Lot 50 would be advised against such behaviour. D. THE WITNESSES 37.As stated above, on the plaintiff’s side, the plaintiff himself, Mr YP Wong, Madam Sit and Ms Lo were called to give evidence at trial. For the defence, Mr Lam and Mr Lau gave evidence. 38.Most of the seminal events go back a long time indeed. The plaintiff’s alleged enclosure and exclusive possession of Lot 51 and the Pathway took place some 30 years ago. In the light of the long lapse of time, I have had regard to the oft-cited observations of Leggett J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd and another [2013] EWHC 3560 (Comm) at §§15-22, whilst bearing in mind that they do not lay down any general principle for the assessment of evidence: Kogan v Martin and others [2019] EWCA Civ 1645, §88. 39.As Coleman J observed in Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923[4] at §§53-57, citing Gestmin (supra), courts have consistently recognised the fallibility and potential unreliability of human memory. The issue of fallibility of human memory has been succinctly described by McClelland CJ in Watson v Foxman and others (1995) 49 NSWLR 315 at 319 as follows:-
Although His Honour was addressing evidence of the content of conversations, it appears to me that those observations are of general application. 40.I have also borne in mind the guidance given by Stock JA (as he then was) in Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corporation Ltd [2007] 3 HKLRD 439, §135:
41.Therefore, in a case such as the present one, where the trial is long removed from the time of the events in question, I am of the view that the only safe course in assessing the witnesses’ testimonies would be to make primary reference to the objective surrounding facts, such documentation as there is (which is limited in the present case), and the inherent probabilities as they appear to the court, taking into account all the circumstances including the motivations and characters of the people involved and the relationship between them. 42.The documentary evidence before the court is limited. None of the parties have adduced any contemporaneous documents, such as photos, to shed light on the state of affairs of Lot 51 and the Pathway in 1990s. The earliest document which the plaintiff has adduced in support of his alleged possession of Lot 51 is a demand note issued by the Rating and Valuation Department to Talent Key in September 2001 for rates and Government rent in the quarter of October to December 2001. On the part of the IO, it relies on the land search of Lot 51 to show that it registered two memoranda of charges dated 6 February 1998 and 30 December 2000 respectively in the Land Registry against Lot 51 for its owner’s default in paying management fees, but other than that, the IO has not produced any document prior to 2011 in relation to Lot 51. 43.Having heard the testimonies of five factual witnesses in the context of the entirety of the evidence, I have come to the view that none of the factual witnesses has told the whole truth and none of them is so reliable that I can confidently accept his or her evidence in full. Overall, I consider it necessary to assess the evidence of all factual witnesses with caution and care and with primary reference to the other evidence and overall probabilities. On the other hand, Ms Lo’s expert evidence is well reasoned and has not been seriously challenged under cross-examination. I accept her evidence in full. 44.The plaintiff has the burden of proving his allegation that he was in exclusive possession of both Lot 51 and the Pathway from 1993 until November 2010 when the Renovation took place, and thereafter, from March 2011 (upon completion of the Renovation) until 2013 (when he was allegedly ousted by the IO from the Car Park). However, he has not produced any contemporaneous documents to support his case in relation to all alleged events between 1993 and August 2001. Further, his case is contradicted by Madam Sit, one of his own witnesses, who gave evidence that when she first came to Hong Kong in 1993, it looks like Mr Cheuk had set up his office in Lot 51 (“佢嗰個辦公…所謂辦公室喇都喺好似 51 號嗰度”).[5] His claim of having erected the Gate, the Door and the Hoardings by himself and Mr Yeung in 1993 is a bare allegation which is not corroborated by his other witnesses or any documentary evidence. 45.Further, the plaintiff has not given any explanation as to why, despite his case that Mr Cheuk was in actual control and management of the entire Car Park throughout 1990s, he was able to come into exclusive possession of Lot 51 and the Pathway and to erect enclosures thereto in 1993 without having even talked to Mr Cheuk, his business partner, on the same. He has not explained why he decided to enclose both Lot 51 and the Pathway when the enclosure was, on his own case, only meant to prevent others from taking his plumbing materials placed at Lot 51.[6] All these matters, together with those contentious aspects of his evidence to be discussed further below, cast considerable doubt on the credibility and reliability of his evidence. 46.Mr YP Wong, the plaintiff’s brother-in-law, is a registered Chinese medicine practitioner. He claims to have borrowed the plaintiff’s private car for sightseeing once or twice a month between 1993 and 2008, and thus paid regular visits to the allegedly enclosed Pathway where the car was parked and witnessed the plaintiff’s exclusive possession of Lot 51 and the Pathway during the aforesaid period. When he was asked during cross-examination on which weekday did he usually borrow the plaintiff’s car, he said there were no fixed dates or hours. His answer does not sit well with the plaintiff’s evidence that the plaintiff himself had to use the same car for his plumbing business for six days a week,[7] and from around 8-9 am (when he attended the Car Park to take his car) till 5-6 pm (when he drove his car back to the Car Park) every working day. Further, Mr YP Wong’s evidence that he resided in Shau Kei Wan but nonetheless went to the Car Park in Sham Shui Po to borrow the plaintiff’s car for visiting places such as Taikoo Shing and Kornhill, and then went back to Sham Shui Po to return the plaintiff’s car at the Car Park before taking public transport to return home in Shau Kei Wan, is tantamount to suggesting that he made four cross-harbour journeys in order to travel between Shau Kei Wan and Taikoo Shing or Kornhill, all being neighbourhoods in the Eastern District on Hong Kong Island. This part of his evidence is unreal and does not have the ring of truth about it. On the whole, I have considerable reservations about the veracity of Mr YP Wong’s evidence. 47.The oral testimony of Madam Sit[8] is likewise problematic. She claims in her witness statement that she had a good understanding of the state of affairs of Lot 51 and the Pathway, including the plaintiff’s alleged exclusive possession of the same since 1993, because she had lived with Mr Leung in the Car Park throughout the period from 1993 to 2010 and assisted in managing the Car Park. However, in her oral testimony, when she was confronted with the fact that there was no fresh water supply in the Car Park until 2003, and thus she could neither cook nor take a shower in the Car Park between 1993 and 2003, she started wavering and eventually admitted that she had lived with a relative before 2003.[9] This unexplained change in her evidence undermines the reliability of her alleged knowledge of the plaintiff’s exclusive possession of Lot 51 and the Pathway prior to 2003. 48.Further, Madam Sit said in her evidence that, as part of her management of the Car Park after Mr Cheuk passed away, she accompanied the personnel of Union Fire during their annual inspections of the fire service facilities[10] in the Car Park and paid for their inspection fees from 2003 to 2009. She was adamant that, during those inspections, the personnel of Union Fire would inspect all fire sprinklers in the Car Park, viz. those in the common area as well as in the private parking lots, one by one and would not omit any fire sprinklers. But when she was asked how could the personnel of Union Fire inspect the fire sprinklers in Lot 51 given that it was enclosed by the Door, Hoarding 2 and Hoarding 3 up to the ceiling, and the Door was allegedly locked by the plaintiff at all material times, she became evasive and repeatedly said she did not know. To my mind, Madam Sit did not tell the whole truth to the court, and the above aspects of her evidence throw considerable doubt on the credibility and reliability of her evidence. 49.Nor am I impressed with the evidence of Mr Lam and Mr Lau. In their witness statements, they unequivocally stated that neither Lot 51 nor the Pathway had ever been enclosed. However, Mr Lam said in oral evidence that he first saw in December 2008 that Lot 51 and the Pathway had been enclosed by the Door, the Gate and the Hoardings. Later, he changed his evidence, accepting that he was told by Mr Lau in 1993 that Lot 51 had been enclosed by the Door and metal hoardings, and confirmed that he personally saw the metal hoardings surrounding Lot 51 as early as 1994. There is no explanation for the fundamental differences between Mr Lam’s evidence and the pleaded case of the IO, which was verified by his statement of truth. As for Mr Lau, he admitted in oral evidence that he had told Mr Lam about the enclosure of Lot 51 back in 1993, and that the entire §7 of his witness statement regarding Lot 51 was incorrect. Overall, I consider it necessary to take a heavily guarded approach to the evidence of Mr Lam and Mr Lau. E. LOT 51 E1. The main issues 50.The parties have submitted an agreed list of issues and their respective lists of additional issues for the court’s consideration. In the light of the parties’ pleaded cases as well as the lists of issues, it seems to me that the main issues to be determined by the court in respect of Lot 51 are as follows:-
51.I also bear in mind the other proposed sub-issues raised by the parties, and shall deal with the same insofar as they are material to the determination of the plaintiff’s claims at hand. E2. Whether the principle of relativity of title is applicable 52.It is well established at common law that there is no such concept as an absolute title. Where questions of title to land arise in litigation, the court is concerned only with the relative strengths of the titles proved by the rival claimants. Thus, if party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land: Ocean Estates Ltd v Pinder [1969] 2 AC 19 at 24H-25A, per Lord Diplock; Skylark Limited and Anor v Kung Sui Wing and Anor, HCA 2607 of 2006 (5 June 2009), §§19-20, per DHCJ To (as he then was); Nam Ching Wun v Tsun Un Pawn Shop, HCA 2151 of 2008 (22 November 2016), §162, per DHCJ Marlene Ng (as she then was). 53.The leading case on the principle of relativity of title is Asher v Whitlock (1865) LR 1 QB 1, in which the English Court of Appeal held that a person in possession of land without any other title has a devisable interest in the land, and possession by itself is good title against the whole world but the true owner (at p 5 per Cockburn CJ, and p 7 per Mellor J). 54.The principle of relativity of title was approved by the House of Lords in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894, where Lord Hoffmann said (at 898A-B):-
In a similar vein, William J said in Minister of State for the Army v Dalziel (1943) 68 CLR 261, 298-299, as follows:-
55.In Hong Kong, Asher (supra) was expressly approved and applied by the Court of Appeal in Chung Ping Kwan and Others v Lam Island Development Co Ltd [1995] 2 HKLR 228 at 238.[11] In Chan Hau Ling v 劉西 and Anor, HCA 1286 of 2012 (22 April 2015), Ng J relevantly explained the principle of relativity of title (at §33) as follows:-
56.In Nam Ching Wun v Tsun Un Pawn Shop, HCA 2151 of 2008 (22 November 2016), DHCJ Marlene Ng (as she then was) applied the principle of relativity of title as enunciated in Minister of State for the Army (supra) and held (at §172) that a squatter acquires a “possessory title” which is an independent title that stems from his possession of the land, and such “possessory title” becomes impregnable after a lapse of time because, as against strangers having no title to the land, the squatter’s possession is itself “title”. If the squatter’s possession is disturbed by a stranger (e.g. another occupier), the squatter’s possession is itself title and he can sue on the strength of his own possession. But if the stranger lays claim to the land by a title of his own or if he shows title in a third party through whom he claims, he can put the squatter’s title in issue. 57.In the present case, it is right to point out that the IO does not seek to lay claim to Lot 51 by a title of its own, nor has it shown title in a third party through which it claims. Nonetheless, the IO submits that this is essentially a building management matter which the IO can exercise its managerial discretion, and that the proper defendant should be the Government. 58.With respect, I do not agree that the plaintiff’s claims in respect of Lot 51 should be analysed as a building management matter. 59.First, the IO’s pleaded case in respect of Lot 51 is simply that it has never made any partition to Lot 51 nor let the same since March 2013, and whenever the owner of Lot 50 wrongfully parked his motorcycle on Lot 51 without permission, the IO would advise against such behaviour.[12] It has never been the IO’s pleaded case that it had authorised anyone to use Lot 51 in the exercise of its alleged managerial discretion, nor that such use of Lot 51 was either reasonably necessary for the enforcement of the obligations contained in the DMC for the control, management and administration of Tung Lo Court,[13] or in the common interests of the owners.[14] In the premises, it would not be open to the IO to slip in an unpleaded issue of building management and say that there is evidence on the issue: Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, §§21-22, per Ma CJ. 60.Secondly, it is common ground that the IO’s duties and powers are derived from the provisions of the BMO and the DMC. The IO has not been able to point to any specific provision of the BMO or the DMC which would allow it to convert Lot 51, which does not form part of the common area of Tung Lo Court, to its own use, occupation or enjoyment. 61.Thirdly, in any event, the fact that the plaintiff’s claims herein are made against the IO does not necessarily mean that the dispute must be a building management matter. To my mind, there is no reason why the trite principles of relativity of title do not apply to the IO simply because it exercises duties and powers derived from the provisions of the BMO and the DMC. No authority to the effect that the IO is somehow immune from a claim for possession of land has been cited by the IO, and I do not think that such proposition is correct as a matter of law. 62.As for the IO’s claim that the proper defendant should be the Government, this seems to me to amount to a plea of jus tertii. As the learned editors of Megarry & Wade: The Law of Real Property (9th ed, 2019) explained at §7-010:-
63.In Ng Fuk Shing, the personal representative of the estate of Tang Koon Lan v Ng Fuk Nam and Anor [2018] HKCFI 2528, the house in dispute was situated on Government land. Marlene Ng J held (at §57) that such fact did not preclude the plaintiff and the defendants in possession of the land from taking action to evict trespassers or strangers on the strength of their possession:-
64.Similarly, in Prosperous World Land Investment Company Limited v Lai Fung Shan [2020] HKDC 1033, HH Judge Harold Leong applied the trite principle of relativity of title and held (at §§25, 28-30) as follows:-
65.In the light of the above authorities, I am of the view that the plaintiff, in his capacity as an alleged earlier squatter in possession of Lot 51, has the requisite locus standi to claim possession against the IO in its capacity as an alleged later squatter of Lot 51. Since the plaintiff only seeks a determination from the court as to whether he has a better right to possess Lot 51 (if any) vis-à-vis the IO, there is no need to join the Government in these proceedings: Ng Fuk Shing (supra), §57; Prosperous World (supra), §25. For these reasons, I am unable to accept the IO’s arguments that the proper defendant of the plaintiff’s claim in respect of Lot 51 should be the Government, and that such claim constitutes a breach of natural justice because the Government has not been notified of the same. 66.The IO also argues that the principle of relativity of title does not give rise to any cause of action known to the law, and therefore the plaintiff has failed to plead any proper cause of action. With respect, I do not agree. As explained above, it is well established that a squatter can maintain an action to recover possession of the land from a stranger who takes possession from him: Nam Ching Wun (supra), §§162 and 172; Ng Fuk Shing (supra), §57; Prosperous World (supra), §30; Megarry & Wade: The Law of Real Property (supra), §7-010. Insofar as the IO claims that there is no competition of titles between itself and the plaintiff as to Lot 51 because the IO has never owned or possessed Lot 51, this gives rise to a question of fact which I shall deal with below. 67.Nor am I able to accept the IO’s argument that the plaintiff’s claims in respect of Lot 51 give rise to an unpleaded issue of easement in that the plaintiff’s claims, if allowed, would mean that the IO would have to grant him a right to enter the Car Park which may be objected to by the Government. As explained above, it is not necessary for the plaintiff to have sought the Government’s prior approval before making his claims herein against the IO in respect of Lot 51. There is also no evidence suggesting that the Government would object to the plaintiff’s entry into the Car Park. In any event, Mr Cheung, counsel for the IO, has fairly acknowledged in his oral closing submissions that if the plaintiff’s claims in respect of Lot 51 are accepted by the court, the IO would respect the court’s decision and allow the plaintiff to enter the Car Park in such event. 68.Having said that, I am mindful of the undisputed fact that Lot 51 is bona vacantia land, and thus, in my view, it is in the public interest that the Government should be informed of the outcome of these proceedings. I have invited submissions as to why the court should not inform the Government as to the orders to be made herein. Having heard the submissions from Mr Siu, counsel for the plaintiff, I do not find that there is any reason why the court should not do so. I shall therefore give directions in this respect as part of the consequential orders to be made in Section H below. E3. Whether the plaintiff had exclusive possession of Lot 51, and if so, when 69.The plaintiff’s pleaded case is that he was in exclusive possession of Lot 51 from 1993 until 2013, save for a period between November 2010 and March 2011 when the Renovation took place. 70.In respect of the plaintiff’s alleged exclusive possession of Lot 51 during the initial period between 1993 and 2001, he solely relies on the oral testimonies of himself, Mr YP Wong and Madam Sit. As explained above, I shall make primary reference to the objective surrounding facts, such documentation as there is, and the inherent probabilities as they appear to the court, in assessing the witnesses’ testimonies. 71.First, I note that no contemporaneous documentation has been produced by the plaintiff in support of his claim in this respect. 72.Secondly, the plaintiff has not given any satisfactory explanation as to why, despite his case that Mr Cheuk was in actual control and management of the entire Car Park throughout 1990s, he was able to come into exclusive possession of Lot 51 and the Pathway and to erect enclosures thereto in 1993 without having even talked to Mr Cheuk, his business partner, on the same. It seems to me probable that the plaintiff did not tell the whole truth as to the circumstances in which he entered into possession of Lot 51. 73.Thirdly, the plaintiff’s claim of having erected the Gate, the Door and the Hoardings by himself and Mr Yeung to enclose Lot 51 and the Pathway in 1993 is a bare allegation which is not corroborated by his other witnesses or any documentary evidence. 74.Even though Mr Lam and Mr Lau have given evidence that Lot 51 was enclosed by the Door and metal hoardings as early as 1993, it does not follow from their evidence that those enclosures were erected by the plaintiff and Mr Yeung as alleged. This is because the other witnesses have given contradictory evidence as to the state of affairs of Lot 51 in 1993. According to Madam Sit’s evidence, it looks like Mr Cheuk had set up his office in Lot 51 back in 1993 when she first came to Hong Kong, whereas according to Mr Lau’s evidence, he had known Mr Cheuk since late 1980s and he heard Mr Cheuk saying in around 1990 that Lot 51 was rented out by Mr Cheuk to the plaintiff for use as a storeroom. To my mind, the tenor of the evidence of Madam Sit and Mr Lau is that the one who enclosed Lot 51 was more likely to be Mr Cheuk rather than the plaintiff. 75.Similarly, as to the plaintiff’s pleaded case of having installed lighting and plumbing apparatus in Lot 51 in 1993 and 1996 respectively, it is noteworthy that, even on the plaintiff’s own evidence, the only plumbing apparatus which he had installed in the Car Park was a drainage pump which was situated at a corner of the Pathway adjacent to Lot 52.[15] In other words, contrary to his pleaded case, he did not install any plumbing apparatus in Lot 51, even though the drainage pump was said to drain the underground water flooding Lot 51. Further, it is a bare allegation which is not corroborated by his other witnesses or any documentary evidence. According to Mr YP Wong, he was told by the plaintiff that the lighting and plumbing apparatus in Lot 51 had been installed by the plaintiff, and therefore, Mr YP Wong’s knowledge of the same is based on hearsay evidence. Madam Sit’s evidence is silent as to the lighting and plumbing apparatus in Lot 51. On balance, I am of the view that the plaintiff has not discharged the burden of proving that he had installed lighting and plumbing apparatus in Lot 51 in 1993 and 1996 as alleged. 76.The plaintiff also claims that he had paid the Rates for Lot 51 since around 1993 up to the present date. However, he gave contrived evidence in this regard.
77.For the above reasons, I consider that the plaintiff has not been able to prove on the balance of probabilities that he paid the Rates between 1993 and August 2001 as alleged. 78.As for the plaintiff’s payment of management fees to the IO in respect of Lot 51, there is no dispute that such payment was only made in April 2011. Therefore, it does not and cannot by itself support the plaintiff’s claim that he was in exclusive possession of Lot 51 since 1993. 79.On the whole of the evidence, I am of the view that it is more probable than not that the plaintiff only came into exclusive possession of Lot 51 in 2001 for the following reasons:-
80.For the above reasons, I find that the plaintiff came into exclusive possession of Lot 51 in 2001. 81.Thereafter, in respect of the period from 2002 to November 2010, the plaintiff claims that he did not give access of Lot 51 to the IO or Union Fire for the purposes of carrying out the Fire Sprinkler Works and the annual inspections of the fire service facilities in the Car Park. Both Mr Lam and Mr Lau said in oral evidence that parts of Hoardings 2 and 3 had to be cut off in order to allow the personnel of Union Fire to enter Lot 51 during the Fire Sprinkler Works. To my mind, this is tantamount to an admission that the plaintiff did not give access of Lot 51 to the IO or Union Fire in 2002. 82.As for the annual inspections, according to Madam Sit’s oral evidence, the personnel of Union Fire were able to inspect all fire sprinklers in the Car Park, viz. those in the public area as well as in the private parking lots, one by one and would not omit any fire sprinklers during the annual inspections, but she could not explain how it could be done without entering Lot 51. As explained above, I find this part of Madam Sit’s evidence to be unsatisfactory. In this regard, it is Mr Lau’s evidence that there were some metallic wires on top of the Door which would allow one to inspect the fire sprinklers at the ceiling of Lot 51 from the outside. I bear in mind that the plaintiff has conspicuously never produced a single photo to show the condition of Lot 51 and its enclosures. On balance, I consider Mr Lau’s evidence on this particular issue to be reasonable and inherently probable, and would find that no entry to Lot 51 was made by the personnel of Union Fire between 2003 and 2009 when carrying out the annual inspections of the fire service facilities in the Car Park. 83.For the above reasons, I am satisfied on the balance of probabilities that the plaintiff remained in exclusive possession of Lot 51 from 2002 up to November 2010. 84.After the completion of the Renovation in March 2011, the parties exchanged the following written correspondence in relation to Lot 51:-
85.In my view, it is evident from the Written Authorisation that the plaintiff held himself out to the IO as the owner and landlord of Lot 51, without making any reference to Talent Key. Therefore, the IO must be aware of the plaintiff’s exclusive possession of Lot 51 from April 2011 onwards. 86.In this regard, it is the IO’s pleaded case that it was misled by the plaintiff into believing that he was a director of Talent Key by reason of an alleged misrepresentation made by the plaintiff to Mr Lam in around 2012. However, in Mr Lam’s witness statement, he stated that the plaintiff first made the alleged misrepresentation to him in around 2009 to 2010, and during another conversation in 2012, the plaintiff made the same alleged misrepresentation to him again. No satisfactory explanation has been given by Mr Lam to explain away the discrepancies between the IO’s pleaded case (which was verified by his statement of truth) and his own evidence. In my view, the IO’s claim of misrepresentation does not sit well with the Written Request and the Written Authorisation in which the plaintiff held himself out as the owner of Lot 51 without making any reference to Talent Key. On the whole, I am unable to accept the IO’s case that the plaintiff made the alleged misrepresentation to Mr Lam. 87.In summary, I find that the plaintiff was in exclusive possession of Lot 51 from 2001 to November 2010, and thereafter, from April 2011 onwards. Whether his exclusive possession of Lot 51 has since been disturbed by the IO as alleged shall be addressed below. E4. Whether the IO has ever disturbed or prevented the plaintiff from using Lot 51, and if so, when and for how long 88.The plaintiff’s case is that, after Mr Yau surrendered his tenancy of Lot 51 in March 2013, the plaintiff’s exclusive possession of Lot 51 was disturbed by the IO which (1) divided Lot 51 into two motorcycle parking spaces in October 2013 and allowed the same to be used by its tenants or licensees, and (2) refused to allow him to enter the Car Park since January 2014. He has produced photos taken by Madam Sit in 2014 and 2015 showing that some yellow lines were drawn on the floor of Lot 51 and three motorcycles, each covered by a motorcycle canvas cover, were parked in Lot 51. 89.There is no dispute by the IO as to the authenticity of these photos. According to Mr Lam’s evidence, the yellow lines on the floor of Lot 51 were drawn by the security guards of Tung Lo Court to ensure that the owner of Lot 50 would not park his vehicle into Lot 51. Under cross-examination, Mr Lam admitted for the first time that:-
90.Clearly, Mr Lam’s oral evidence represents a fundamental change in the IO’s case as to the use of Lot 51 after 2014. First, despite the IO’s plea that it did not make any partition to Lot 51, Mr Lam accepted that the yellow lines on the floor of Lot 51 after 2014 were drawn by the security guards employed by the IO. Secondly, whilst the IO pleaded that it only allowed temporary parking by either the occupier of Lot 28 or its contractors in the common area of the Car Park such as the Pathway, Mr Lam openly admitted during cross-examination that temporary parking was also allowed in Lot 51. In my view, it is more probable than not that the IO permitted not just temporary parking, but also long-term parking of motorcycles in Lot 51, since the photos taken in 2014 and 2015 show that three motorcycles, each covered by a motorcycle canvas cover, were parked in Lot 51. To my mind, it is inherently improbable that each of those motorcycle owners would invariably cover their respective motorcycles with a canvas cover for temporary parking as alleged by the IO. 91.For the above reasons, I prefer the plaintiff’s evidence in this respect. I find that the IO entered into exclusive possession of Lot 51 in October 2013 and has since then converted the same for its own use and occupation, thus preventing the plaintiff from using Lot 51. 92.Since the IO has not shown to have any legal title or right to possess Lot 51, I find that, as between the plaintiff and the IO, the plaintiff, being the earlier squatter in possession of Lot 51, has a better possessory title to Lot 51 than the IO: Asher (supra), at 5 and 7; Chung Ping Kwan (supra), at 238; Nam Ching Wun (supra), §§162 and 172; Ng Fuk Shing (supra), §57; Prosperous World (supra), §29. 93.For completeness, I note that the fact that the plaintiff was no longer in possession of Lot 51 at the date of issuing these proceedings is immaterial. As Ng J explained in Chan Hau Ling (supra), §33, the common law has adopted the notion of title by first occupancy and held that possession, even if lost, gives rise to a right to recover it since as between mere possessors, prior possession is a better right: see also Ezekiel v Fraser [2002] EWHC 2066 (Ch). 94.In the premises, by depriving the plaintiff of his exclusive possession of Lot 51 since October 2013, the IO is liable to the plaintiff in trespass, which is actionable at the suit of the person in possession of land although he is neither the owner nor derives title from the owner, and indeed may be in possession adverse to the owner: Clerk & Lindsell on Torts (23rd ed, 2020), §§19-01 and 19-10. I am unable to accept the IO’s argument that the plaintiff did not plead a case of trespass. In my view, the plaintiff has pleaded all material facts in support of his case of trespass in §§22-25 of the amended statement of claim, and those pleas (save for the plaintiff’s allegation of issuing a letter dated 31 December 2013 to the IO, which I do not accept on the balance of probabilities: see §18 above) have been established to the requisite standard for the reasons stated above. E5. Whether the IO is estopped from denying the plaintiff’s right to possess Lot 51 (if any) 95.Having reached the above conclusion, I propose to deal with plaintiff’s estoppel claim briefly.[19] 96.The plaintiff claims that, by reason of the IO’s conduct in regarding him as the owner of Lot 51, offering to look for a tenant of Lot 51 for him, asking him to execute a proxy form for voting at the annual general meeting of owners on 6 May 2012, issuing an entry pass to the Car Park and assigning a mailbox to him, and demanding and accepting management fees from him as if he was the true owner of Lot 51, the IO is estopped from denying that he has a relatively better title than the IO to possess Lot 51. Mr Siu submitted that the plaintiff’s case is one of proprietary estoppel. 97.I find that certain parts of the plaintiff’s estoppel claim are less than satisfactory. First, the plaintiff did not put his case in respect of the appointment of proxy to Mr Lam during cross-examination, and therefore Mr Lam did not have an opportunity to deal with it in his oral evidence. In any event, the plaintiff has not produced any instrument of proxy in these proceedings but only a receipt issued by the IO which, on its face, is not clear as to whether the instrument of proxy was issued to Talent Key or the plaintiff personally. In the circumstances, I am not prepared to give any weight to this matter. 98.Secondly, I do not think that the plaintiff has proven, on the balance of probabilities, that it was the IO, as opposed to Mr SP Wong acting in his personal capacity, who offered to look for a tenant of Lot 51 for him and arrange for Mr Yau to enter into the Tenancy Agreement with him. 99.Save as the foregoing, in the light of the Written Authorisation, I accept the plaintiff’s case that the IO was aware that the plaintiff, in his personal capacity, leased Lot 51 to Mr Yau and the rental income derived therefrom was to be applied to settle the outstanding sums owed to the IO under the Payment Demand. I also accept the plaintiff’s evidence that, after the Renovation, the IO issued an entry pass to the Car Park and assigned a mailbox to him, as well as demanding and accepting management fees from him as if he was the true owner of Lot 51 until 2014. 100.For the above reasons, I find that the IO has, through its conduct, made an assurance to the plaintiff that, as between the plaintiff and the IO, the plaintiff has a relatively better title than the IO to possess Lot 51, which was relied upon by the plaintiff to his detriment by settling the Payment Demand and paying the management fees for Lot 51 to the IO until December 2014. In these circumstances, the IO would be estopped from denying that the plaintiff has a relatively better title than the IO to possess Lot 51. E6. Summary 101.In summary, I find that the plaintiff was in exclusive possession of Lot 51 from 2001 up to September 2013 (save for four months between November 2010 and March 2011 when the Renovation took place), and that from October 2013 onwards, he has been dispossessed from Lot 51 by the IO, which has since occupied and used Lot 51 for its own purposes. As between the plaintiff and the IO who are both mere possessors of Lot 51, the plaintiff, having been in prior possession of Lot 51, has a relatively better title to Lot 51 than the IO. Thus, the plaintiff can recover possession of Lot 51 from, and claim trespass against, the IO. Further, the IO, by reason of its previous conduct, would be estopped from denying that the plaintiff has a relatively better title than the IO to possess Lot 51. F. THE PATHWAY F1. The main issues 102.In the light of the parties’ pleaded cases and lists of issues, it seems to me that the main issues to be determined by the court in respect of the Pathway are as follows:-
103.Again, I bear in mind the other proposed sub-issues raised by the parties, and shall deal with the same insofar as they are material to the determination of the plaintiff’s claims at hand. F2. The relevant principles on adverse possession 104.The relevant statutory provisions are found in the LO. Section 7(2) provides:-
105.Section 17 provides:-
106.It is common ground here that the plaintiff has to establish adverse possession of the Pathway as against the IO for the requisite period of 12 years. 107.It is also common ground that, for that purpose, the plaintiff has to demonstrate factual possession of the Pathway as well as the requisite intention to possess (viz. animus possidendi) for the whole period. 108.Factual possession has been described by Slade J (as he then was) in Powell v McFarlane (1979) 38 P&CR 452 at 470-471, as follows:-
109.On the question of intention to possess, Slade J stated that:-
110.These statements of principle have been adopted by the Court of Final Appeal as representing the law in Hong Kong: Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55, 68F and H-J; The Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588, 592H-593I. F3. Whether the plaintiff had exclusive possession of the Pathway, and if so, when 111.The plaintiff claims that he was in adverse possession of the Pathway for a period of 12 years from 1993 to 2005, or alternatively, any continuous period of 12 years between 1993 and October 2013. 112.In respect of the plaintiff’s alleged exclusive possession of the Pathway between 1993 and 2005, he solely relies on the oral testimonies of himself, Mr YP Wong and Madam Sit. I would adopt the same approach as explained above by making primary reference to the objective surrounding facts, such documentation as there is, and the inherent probabilities as they appear to the court, in assessing the witnesses’ testimonies. 113.First, I repeat my views as set out in §§71-73 above, which also apply to the Pathway. 114.The plaintiff has not given any satisfactory explanation as to why he had to enclose the Pathway in 1993:-
115.It is the plaintiff’s case that he locked the Gate, which was the only access and egress to the Pathway, since 1993. As shown in the Car Park plan produced by the plaintiff,[22] the effect of locking the Gate was to prevent entry into both the Pathway and Lot 51. The plaintiff said he had only permitted Mr Yeung and Mr YP Wong to enter the Pathway and Lot 51 between 1993 and November 2010. This, however, is inconsistent with Madam Sit’s evidence that it looks like Mr Cheuk had his office in Lot 51 in 1993. 116.As to the plaintiff’s case of having installed lighting apparatus and a drainage pump at the Pathway, I find that the plaintiff has not established his case in this regard to the requisite standard. 117.First, it seems to me more likely than not that the lights at the Pathway had been installed as common facilities serving the common area (of which the Pathway formed part) of the Car Park. 118.Secondly, the plaintiff said in oral evidence that he installed lighting apparatus in Lot 51 because it was very dark upon enclosure, but he did not suggest that there was any need to install lighting apparatus at the Pathway because of the lighting condition thereat. 119.Thirdly, as to the drainage pump at the Pathway, it seems to me more probable than not that it was installed by Mr Cheuk rather than the plaintiff. On the plaintiff’s own case, he was not a licensed plumber, he could only perform certain plumbing work under the instructions and supervision of Mr Cheuk, and his main work responsibilities in the plumbing business was administrative in nature such as employing workers, paying for workers’ wages, and supervising the work progress at construction sites.[23] In these circumstances, it seems to me improbable that the plaintiff could or would have installed the drainage pump at the Pathway in 1993 single-handedly without even consulting Mr Cheuk, his business partner who was then possessing, controlling and managing the entire Car Park on his own evidence. 120.Another matter which I consider material in assessing the veracity of the plaintiff’s claim of exclusive possession of the Pathway since 1993 is the existence of Hoarding 2, the Door and separate locks to the Gate and the Door. As stated above, given the configuration of the Pathway and Lot 51, and in particular, the existence of Hoardings 1 and 3, the locking of the Gate by itself would have prevented entry into the Pathway as well as Lot 51. During cross-examination, when the plaintiff was asked to explain why he erected Hoarding 2 and the Door and installed separate locks to the Gate and the Door, he initially answered that there was not much reason for doing so, then supplementing that he had to install electric plugs for lighting in Lot 51. 121.I find it improbable that the plaintiff found it necessary to erect Hoarding 2 and the Door and to install separate locks to the Gate and the Door simply because of the electric plugs and lighting apparatus inside Lot 51. Based on what he said, if he had not erected Hoarding 2 and the Door, Lot 51 would not be dark and there would have been no need to install any lighting apparatus inside Lot 51. It appears to me more likely than not that the reason why Hoarding 2, the Door and separate locks were in place was because Lot 51 had been enclosed at an earlier point in time, whereas the Pathway was only enclosed later. This, in my view, would also have reasonably explained why there were separate locks to the Gate and the Door respectively. 122.For the above reasons, I am of the view that the plaintiff has not established to the requisite standard that he entered into exclusive possession of the Pathway in 1993 as alleged. 123.On the whole of the evidence, I am of the view that it is more probable than not that the plaintiff only came into exclusive possession of the Pathway in the second half of 2002 for the following reasons:-
124.For the above reasons, I find that the plaintiff entered into exclusive possession of the Pathway in the second half of 2002. Thus, he has not established his case to the requisite standard that he was in adverse possession of the Pathway for a period of 12 years from 1993 to 2005. Further, even taking his case at its highest and assuming that he did not abandon possession of the Pathway during the Renovation, he has still failed to establish exclusive possession of the Pathway for any continuous period of 12 years up to October 2013, when he was dispossessed by the IO on his own case. 125.For completeness, given my findings as stated above, it would not be necessary for me to deal with any issues arising from the lack of a proper plea of abandonment or re-entry as Mr Siu raised in his submissions. F4. Whether the plaintiff had the requisite intention to possess the Pathway 126.As Slade J held in Powell v McFarlane (supra), at 471, animus possidendi is defined as “the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”. 127.For the same reasons as stated in Section F3 above, I find that the plaintiff only had the requisite intention to possess the Pathway when he erected the Gate to enclose the Pathway in the second half of 2002. 128.It is common ground that, in April 2011, the plaintiff signed the Written Request in which he asked the IO for permission to park a vehicle in the Pathway. There are disputes between the parties as to what was the IO’s response to the Written Request and whether the handwritten remarks which appeared at the bottom of the Written Request were present when he signed the document: see §13 above. It appears to me that those disputes are not material in determining the issue of animus possidendi. To my mind, what is material for the present purposes is that the plaintiff, who confirmed in his oral evidence to have signed the Written Request and agreed with the contents thereof (save for the handwritten remarks), asked the IO for permission to use the Pathway for parking purposes (“現申請可將車輛停泊於通道旁，敬希特准”). First, this suggests that the plaintiff had been aware that the IO did not allow parking in the Pathway. More importantly, this strongly militates against the plaintiff’s own case to have had the requisite intention to possess the Pathway in April 2011, in that if he had intended to possess the Pathway to the exclusion of the IO, there would have been no need for him to ask the IO for permission to use it or to execute the Written Request at all. 129.In the premises, I find that the plaintiff had the requisite intention to possess the Pathway to exclude the IO and the world at large between the second half of 2002 and April 2011. Therefore, he has failed to establish to the requisite standard that he had the animus possidendi in respect of the Pathway for a continuous period of 12 years. F5. Summary 130.In summary, I find that the plaintiff entered into exclusive possession of the Pathway in the second half of 2002, and he had the requisite intention to posess the Pathway between the second half of 2002 and April 2011. Thus, he has not established his case to the requisite standard that he was in adverse possession of the Pathway for a period of 12 years from 1993 to 2005, or for any continuous period of 12 years up to October 2013, when he was dispossessed by the IO. G. REMEDIES G1. Declaratory relief 131.The plaintiff claims, in respect of Lot 51, a declaration that the plaintiff has a relatively better right and title vis-à-vis the defendant in respect of the exclusive possession of Lot 51. 132.In view of my findings and conclusions as stated in Section E above, I am prepared to make a declaration in terms of the proposed order as amended. I also take note that the declaration granted shall not affect the real owner of Lot 51, viz. the Government, from recovering possession from the plaintiff. G2. Injunctive relief 133.As this court finds in favour of the plaintiff in respect of Lot 51, I shall make an order that the IO do deliver up vacant possession of Lot 51 to the plaintiff within 7 days from the date hereof: Chan Hau Ling (supra), §72(1); Nam Ching Wun (supra), §211; Prosperous World (supra), §47(a). 134.The plaintiff also claims an injunction that the IO be restrained from causing any unlawful disturbance to the plaintiff’s exclusive possession of Lot 51, whether directly or indirectly, by itself, its agents or employees. 135.As I understand it, Mr Cheung does not seem to have objected to an injunction to be granted in the event that the court finds in favour of the plaintiff. His written closing submissions in respect of the injunction sought by the plaintiff were that, unless the plaintiff can show to the satisfaction of the court and the IO that he has a legitimate right to occupy or use Lot 51, the defendant can lawfully forbid the plaintiff’s entry into the Car Park in the exercise of its management duties under the BMO and DMC. In his oral submissions, Mr Cheung has clarified and fairly acknowledged that if the plaintiff’s claims in respect of Lot 51 are accepted by the court, the IO would respect the court’s decision and allow the plaintiff to enter the Car Park in such event. 136.On balance, I consider that the plaintiff, who has a relatively better title to Lot 51 than the IO, should be entitled to an injunction to restrain any trespass on Lot 51: Clerk & Lindsell on Torts (supra), §19-10. Damages alone would not be an adequate remedy to the plaintiff. In my view, the injunction sought by the plaintiff in terms of the proposed order as amended is reasonably necessary for his exclusive possession of Lot 51 vis-à-vis the IO, and is thus warranted. G3. Damages 137.The plaintiff claims mesne profits against the IO for the latter’s deprivation of his right to use and possess Lot 51 since October 2013. He has adduced expert evidence from Ms Lo on the market rental of Lot 51 from 1 October 2013 up to 30 June 2021. There is no challenge to the expertise and experience of Ms Lo in giving expert evidence on the issue of valuation. 138.The IO has not adduced any expert evidence on this issue. Its case is to adopt the monthly rental of $2,100 under the Tenancy Agreement between the plaintiff and Mr Yau as the multiplicand for any assessment of mesne profits. 139.Ms Lo has prepared her valuation of the market rental of Lot 51 on the premise that five motorcycles could be parked in Lot 51. The IO disputes her expert evidence on the ground that she has failed to take into account (1) the impact on the insurance policy in place at the Car Park if a parking lot is used to park more than one vehicle, (2) that neither the occupation permit nor the DMC permitted multiple motorcycles to be parked in Lot 51, and (3) the possible reduction in rentability when a parking lot is to be shared by five motorcycles. 140.In my view, it is not open to the IO to argue that Lot 51 could not be used to park more than one vehicle because Mr Lam, when shown the photos taken by Madam Sit in 2014 and 2015 during cross-examination, accepted that the IO has permitted three motorcycles to be parked in Lot 51 simultaneously. In doing so, the IO must have been satisfied that the permission it granted is in line with the terms of the occupation permit and the DMC. Ms Lo’s evidence that Lot 51 could accommodate five motorcycles is based on the practice notes published by the BD as to the dimensions of a standard motorcycle parking space, and her evidence in this respect is unchallenged. I therefore do not accept the IO’s objections in respect of (1) and (2) above. 141.As to the IO’s argument that Ms Lo has failed to take into account the possible reduction in rentability when a parking lot is to be shared by five motorcycles, the IO has not adduced any evidence as to what, if any, reduction in rentability should be made on its own case. In the absence of such evidence, I do not think that there is any sufficient basis to criticise Ms Lo’s evidence in this respect. 142.Having carefully considered the expert report and oral evidence of Ms Lo, I am satisfied with her methodology, the suitability of the comparables adopted by her as well as the adjustments she made to take into account the water seepage problem at the rear portion of Lot 51, and the differences between Lot 51 and the comparables in terms of time, size, floor, location, building condition and management. 143.I do not agree with the IO’s adoption of the sum of $2,100 as monthly rental of Lot 51 from 1 October 2013. Such sum was charged by the plaintiff under the Tenancy Agreement in 2011. No adjustments have been made to reflect the upward trend experienced in the rental market since October 2013. It is therefore not safe to adopt $2,100 as the multiplicand. 144.In the premises, I accept Ms Lo’s valuation of the market rental of Lot 51, inclusive of management fees, Government rent and rates, and free from all encumbrances, from 1 October 2013 up to the date hereof, which is as follows:-
145.I therefore find that the mesne profits from 1 October 2013 up to the date hereof amount to $471,684.30, and the same would continue to accrue at the daily rate of $143 ($4,290 ÷ 30 days) until the IO’s delivery up of vacant possession of Lot 51 to the plaintiff. H. CONCLUSIONS AND ORDERS 146.For the above reasons, I find that the plaintiff has succeeded in his claim of possession vis-à-vis the IO in respect of Lot 51 but failed to establish adverse possession of the Pathway, and would make the following orders:-
147.I make an order nisi that the IO shall pay interest on (1) the sum of $471,684.30 at 1% above the prevailing Hong Kong dollar prime lending rate from 1 October 2013 to the date of judgment, thereafter at the judgment rate until full payment, and (2) the sum of $144 per day at the judgment rate until full payment. 148.On the issue of costs, it is fair to say that the plaintiff succeeds in half of his claims against the IO in the action. Overall, I think the IO should pay half of the plaintiff’s costs of the action. 149.As I mentioned during the trial, I have some misgivings about the preparation and production of the agreed trial bundles. A majority of the documents appear twice, and some of them appear thrice. For instance, the same document would first appear as an exhibit to a witness statement, then under the section titled “Plaintiff’s documents”, and further again under another section titled “Defendant’s documents”. It appears that the agreed trial bundles were simply prepared by combining the parties’ respective documents without any proper organisation to eliminate duplicate documents, arrange the documents in a chronological order and ensure that there are no illegible pages. This practice is not conducive to the court and counsel’s preparation for the trial and would not be condoned. I am inclined to think that both sides’ solicitors have fallen short of promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings and to ensure that the resources of the Court are distributed fairly under Order 1A, rule 1(c) and (f) of the Rules of the District Court (Cap 336H), such that it would be justifiable for the court to disallow the solicitors’ costs of preparing and producing the trial bundles, including those costs incurred in updating the agreed trial bundles and the index thereto as per the court’s direction on 2 May 2023, as between the solicitors on the one hand and their respective clients, the opposite party or the Director of Legal Aid on the other hand: Leung Chin To Michael v Wong Siu Cheuk Ping Selina [2023] HKDC 376, §§60-63, per Deputy District Judge Alfred Cheng. 150.I therefore make an order nisi that:-
151.As explained above, in the light of the undisputed fact that Lot 51 is bona vacantia land, I consider that it is in the public interest that the Government should be informed of the outcome of these proceedings. Having heard counsel’s submissions, I would direct that a copy of this judgment be sent to the Department of Justice and the Lands Department by the Registrar. 152.I thank Mr Siu and Mr Cheung for their considerable assistance.
Mr Stanley C K Siu, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the plaintiff Mr Y L Cheung, instructed by Tang, Wong & Chow, for the defendant APPENDIX
[1] Talent Key was dissolved on 27 December 1996 under section 290A(3) of the predecessor Companies Ordinance (Cap 32). [2] Mr Lam served as a member of the management committee of the IO between 1994 and 1995, chairman of the IO between 1996 and 2003, and has been secretary to the IO since 2009. [3] viz. Parking Lot Nos 8, 26, 34 and 45. [4] Appeal was dismissed by the Court of Appeal in [2021] HKCA 1456. [5] For completeness, Madam Sit then sought to change her evidence by saying that Mr Cheuk’s office was in the vicinity of Lot 51 (“喺嗰附近”). [6] See §§13 and 14 of the plaintiff’s witness statement. [7] Except Sundays and holidays. [8] Madam Sit accepted in cross-examination that she did not have an amicable relationship with the IO because of, among other things, previous disagreement as to the management of the Car Park which resulted in litigation and her complaint that the IO unlawfully removed her dogs from the Car Park in November 2010 ahead of the Renovation. [9] Madam Sit’s admission is corroborated by Mr Lau, who said in oral evidence that Madam Sit moved into the Car Park in 2003. [10] Including the fire sprinkler systems, fire extinguishers and fire hydrants. [11] This point was not disturbed on appeal to the Privy Council: see [1996] 2 HKLR 315. [12] See §§18, 19 and 22 of the defence. [13] cf section 18(1)(c) of the BMO. [14] cf section 18(2)(g) of the BMO. [15] See §17 of the plaintiff’s witness statement and exhibit “CWH-6” thereto. [16] See §24 of Madam Sit’s witness statement. [17] Madam Sit permanently settled in Hong Kong in July 1999 on a one-way permit: see §9 of Madam Sit’s witness statement. [18] See Section F below. [19] At §17(f) of the amended statement of claim, the plaintiff pleads that the IO is estopped from denying that the plaintiff was the owner of Lot 51 “together with the right to use the Pathway”. Upon my inquiry, Mr Siu confirmed that the plaintiff would only rely on the estoppel argument in respect of Lot 51 but not also the Pathway. [20] See §14 of the plaintiff’s witness statement. [21] See §13 of the plaintiff’s witness statement. [22] See the Appendix hereto. [23] See §§4 and 5 of the plaintiff’s witness statement. [24] See the IO’s meeting minutes dated 4 January 2002. [25] See §27 of Madam Sit’s witness statement. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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