Tsang Kun Kau and Another v. Yu Ying and Others

DCMP 2335/2012

[2024] HKDC 1278

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2335 OF 2012

------------------------------------

------------------------------------

------------------------------------

------------------------

DECISION

------------------------

A.  INTRODUCTION

1.In this Decision, I will adopt the abbreviations used in my judgment handed down on 28 March 2024 ([2024] HKDC 508; the “Judgment”).

2.By the Judgment, I dismissed Ps’ claim for possession of the land situated at Lot No 93 in Demarcation District No 454, Tsuen Wan, New Territories, Hong Kong (the “disputed land”) and mesne profits and granted a declaration that Ps’ title, interest and/or right in and/or over the disputed land has been absolutely extinguished by virtue of Section 17 of the Limitation Ordinance prior to the commencement of the present action, and a declaration that D1 has been in adverse possession of the disputed land for a period of no less than 20 years before the commencement of the present action, and has thereby acquired and is entitled to the possessory title, interest and/or rights on and over the disputed land.    

3.By a summons filed on 24 April 2024, Ps applied for leave to appeal to the Court of Appeal against the Judgment. A draft notice of appeal was attached to the summons.

4.Following the guidance laid down by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350 (at §24 per Lam V-P, as he then was), I directed the parties to lodge skeleton submissions in respect of the application. On 24 May 2024, Ps’ trial counsel Mr Leung filed his skeleton submissions in support of the application. On 31 May 2024, D1’s trial counsel Ms Lau filed her skeleton submissions in opposition to the application.

5.After reviewing the skeleton submissions, as I considered there were matters which called for clarification, I directed the application be dealt with at a short hearing fixed on 22 July 2024.

6.On 16 July 2024, both P1 and P2 filed a notice to act in person. At the hearing on 22 July 2024, P1 and P2 appeared in person, and Ms Lau appeared for D1.

7.Regrettably, Ps’ stance at the hearing is incoherent and incomprehensible. On the one hand, they said that they did not understand English and therefore could not comprehend the contents of the draft notice of appeal and the skeleton submissions filed on their behalf. On the other hand, despite their claim, they said that they nevertheless adopted the contents of the draft notice of appeal and the skeleton submissions filed on their behalf.   

8.In these circumstances, the court has no choice but to consider the contents of the draft notice of appeal and the skeleton submissions filed on their behalf and rule on their application accordingly.  

B.  LEAVE TO APPEAL: APPLICABLE LEGAL PRINCIPLES

9.It is trite that leave to appeal shall not be granted unless the Court is satisfied that (1) the appeal has a reasonable prospect of success; or (2) there is some other reason in the interests of justice why the appeal should be heard: Section 63A(2) of the District Court Ordinance (Cap 336). In the present case, the second limb is not relied upon and therefore the only issue before the Court is whether Ps have satisfied the Court that the appeal has a reasonable prospect of success.

10.It is also trite that a reasonable prospect of success involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125, at para 17 per Le Pichon JA.

C.  THE LEAVE TO APPEAL SUMMONS AND THE DRAFT NOTICE OF APPEAL

11.The draft notice of appeal is 20 page long, containing 12 grounds of appeal spread across 12 paragraphs. Each of these 12 paragraphs is further divided into various sub-paragraphs. The document includes 22 footnotes, referring to the trial transcripts and specific paragraphs in Ps’ written closing submissions or supplemental written closing submissions. The document reads like a skeleton argument, canvassing evidence or submissions at length. It is not a concise document. It fails to clearly and succinctly set out the reasons why the Court of Appeal should interfere with the Judgment. It fails to follow the guidance set out in §§20 and 22 of Practice Direction 4.1. With respect, I do not find the document helpful in the proper resolution of the application.

12.Be that as it may, as the burden is on Ps to satisfy the court that the appeal has a reasonable prospect of success, I will now proceed to examine the grounds outlined in the draft notice of appeal.

13.In broad terms, §§1 to 5 address animus possidendi ie the intention to possess, §§6 to 10 centre around the “licence point”, and §§11 to 12 relate to the court’s findings on the fencing of the disputed land.

14.Given that the Judgment addressed factual possession before addressing the intention to possess, my proposed approach is to address §§11 to 12 first, followed by an examination of §§1 to 5, and finally, §§6 to 10.

D.  P’s GROUNDS OF APPEAL

D.1  §11-12: this Court’s findings on the fencing of the disputed land

15.In §11, Ps contended that this Court erred in finding in §158 of the Judgment that D1 had fully fenced-off the disputed land since 1983. In §12, Ps further contended that this Court erred in holding in §160 of the Judgment that if the disputed land were not fully fenced off by D1, D1 has still established factual possession of the disputed land. It is clear that the aforesaid findings of this Court were concerned with factual possession of the disputed land.  

16.Each of §11 and §12 is further divided into six sub-paragraphs, resulting in a combined length of 4 pages. I do not intend to address each and every sub-paragraphs in §§11 and 12. However, given that whether a squatter could establish factual possession is a question of fact depending on the circumstances of the case (Cheung Kwong Yuen v Sun Hui Fang [2016] 1 HKLRD 464 at §11 per Kwan JA, as she then was), and given the well-established principle that the appellate court will not disturb a finding of fact by the trial judge who had the benefit of hearing and observing the evidence at first hand, unless the finding is plainly wrong (Suen Shu Tai v Tam Fung Tai (2015) 18 HKCFAR 491 at §12 per Ma CJ, approving the observations of Cheung JA in that case), in my view, Ps have failed to overcome this high threshold for the following reasons.

17.First, this Court’s finding regarding the fencing of the disputed land is an integral part of its comprehensive evaluation of whether D1 could establish factual possession of the disputed land, and is closely connected to the credibility of witnesses involved in this case. At §§78-79 of the Judgment, this Court found that the testimony of P1, Ps’ main witness, was unsatisfactory, that his evidence (and the evidence of P2, WKH and TWK) is contradicted by contemporaneous documents, incoherent or self-contradictory, and that generally, where the evidence of Ps’ witnesses conflicts with that of D1 and the Daughter, this Court preferred the latter. It is important to note that in the draft notice of appeal, Ps do not seek to challenge this finding.

18.Second, this Court’s finding concerning the fencing of the disputed land is integral to its finding of factual possession as a whole. This Court’s finding on factual possession as a whole is extensively detailed in Section I of the Judgment, where this Court found, as facts contrary to Ps’ evidence, that:

(1)  Section I.1: D1 began to construct the 4 squatter huts on the disputed land since around 1983;

(2)  Section I.2: The iron sheet hut alleged by Ps in their pleadings and witness statements was actually the 4 squatter huts situated within the disputed land.  These huts were not dilapidated or abandoned. In contrast, the brick house was situated not within the disputed land but within Lot 94;

(3)  Section I.3: D1’s 5 children were raised and had resided on the disputed land since their birth, as described in §27 of the Judgment;

(4)  Section I.4: D1 constructed a well, a concrete water tank and install water pipes on the disputed land since the 1980s;

(5)  Section I.5: D1 build a stove inside the 4 squatter huts from about 1983; 

(6)  Section I6: D1 built a shrine on the disputed land in the early 1980s; 

(7)  Section I.8: There were waterways, which were pre-existing when D1 began residing at Lot 94 in 1977, on the eastern and western boundaries of the disputed land, and they acted as a natural barrier preventing outsiders from entering the disputed land;

(8)  Section I.9: D1 planted fruit tree on the disputed land since he decided to occupy Lot 93 in 1978; and 

(9)  Section I.10: D1 had been keeping dogs on the disputed land since 1978 to prevent intruders from entering the disputed land.

19.It is also important to note that Ps did not seek to challenge these findings in either their draft notice of appeal or skeleton submissions. On the contrary, it appears from the following paragraphs of the draft notice of appeal that Ps accepted most of the findings of this Court in Section I of the Judgment, ie:

(1)  §12.4 (“the squatter huts built on the disputed land”);

(2)  §12.5 (“the planting of some fruit trees”; “the raising of some dogs”; “the keeping of ancestral tablets [sic]”; “the using of a stove in the squatter hut” and “the construction of water tank/pipes”); and

(3)  §12.6 (“the children had only resided in the squatter huts for a relatively brief period of time between early 90s and until 1997”).

20.In my view, Ps’ acceptance of most of the findings of this Court in Section I of the Judgment clearly supports this Court’s conclusion that D1 was in factual possession of the disputed land since 1983.

21.Third, of particular significance is the finding in Section I.8 of the Judgment that there were waterways, which were pre-existing when D1 began residing at Lot 94 in 1977, on the eastern and western boundaries of the disputed land, and they acted as a natural barrier preventing outsiders from entering the disputed land. It is important to note that Ps’ draft notice of appeal is completely silent on this finding, seemingly because Ps have accepted it. This finding demonstrates that, in addition to the fence on the eastern and western boundaries of the disputed land, the waterways also served to prevent outsiders from entering the disputed land. This finding is consistent with and reinforces the findings of this Court in §§158 & 160 of the Judgment.

22.Fourth, Ps’ contention that this Court should not have accepted the “self-serving” evidence of D1 regarding fencing the borders of the disputed land since about 1983 (§11.2, draft notice of appeal) is without merit, as “the role of a Judge is precisely to decide, as a matter of primary fact, whether to accept or reject the evidence of a witness”: World Food Fair Ltd v Hong Kong Island Development Ltd (2006) 9 HKCFAR 735, at §37 at pp748C-D per Ribeiro PJ.  

23.Fifth, Ps’ contention that this Court failed to address whether D1 has exercised “a sufficient degree of exclusive physical control” (§12.2, draft notice of appeal) is also without merit, because Section I of the Judgment specifically centered on the issue of whether D1 had demonstrated a sufficient degree of exclusive physical control of the disputed land.

24.Sixth, Ps’ contention concerning expert evidence (§11.1, draft notice of appeal) is just a regurgitation of arguments already deployed in the trial[1] and rejected by this Court in §162 of the Judgment. It does not constitute a valid ground of appeal in the absence of palpable errors: Yu Man Fung Alice v Chiau Sing Chi Stephen [2021] HKCA 1456 at §§6-8 per Kwan VP; Hon Tin Tong Company Ltd v Choy Kwok Keung [2024] HKCA 582 at §39 per Cheung JA. While §11.1 of the draft notice of appeal quotes §162 of the Judgment, it does not address the findings made therein.

25.Finally, Ps’ contention that the photos of the fences were taken only after 2012 does not support their case, because based on the current state and condition of the fences, this Court drew the inference that they were constructed much earlier (see §§147, 148 & 150, Judgment). Similar inferences were drawn from the current state and condition of the 4 squatter huts (§90, Judgment), the well (§129, Judgment), the stove (§137, Judgment), the shrine (§141, Judgment) & the fruit trees (§181, Judgment), which Ps have not challenged. Furthermore, P’s contention that there is no “direct evidence” that D1 had completely fenced off the disputed land (§11.3, draft notice of appeal) since 1983 is contradicted by D1’s evidence, which this Court has accepted.

D.2  §§1-5: this Court’s findings on D1’s animus possidendi/the intention to possess 

26.Similar to the case of factual possession, given that whether a squatter could establish the requisite intention for the purpose of adverse possession is a question of fact depending on the circumstances of the case (Cheung Kwong Yuen v Sun Hui Fang (supra) at §11), and given the well-established principle that the appellate court will not disturb a finding of fact by the trial Judge who had the benefit of hearing and observing the evidence at first hand, unless the finding is plainly wrong (Suen Shu Tai v Tam Fung Tai (supra) at §12 per Ma CJ), in my view, Ps have failed to overcome this high threshold for the following reasons.

27.First, Ps’ contention that this Court, in §199 of the Judgment, failed to apply the correct legal test (§§1-2, draft notice of appeal) is without merit, because §199 of the Judgment actually referred to §66 of the Judgment, where this Court summarized the principles derived from the judgment of the Court of Appeal in Gotland. These principles were also applied by Marlene Ng J in Joyce Lau[2] and Au-Yeung J in Yeung Wai Tong[3].    

28.Second, Ps’ contention that this Court has adopted an erroneous approach in assessing D1’s evidence of intention to possess by only focusing on the self-serving statement is also without merit (§2, draft notice of appeal), because this Court is fully aware that the statements set out in §200 of the Judgment were self-serving. Thus:

(1)  In §70 of the Judgment, this Court observed, applying Wong Tak Yue[4] at 69A-C per Li CJ, that where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve; and

(2)  In §201 of the Judgment, this Court stated that it accepted that the statements set out in §200 of the Judgment could properly be regarded as self-serving, and the Court should approach them with some skepticism.

Nevertheless, this Court considered D1’s aforementioned statements to be consistent with his unequivocal and exclusive possession of the disputed land from 1978, or alternatively from 1983, onwards, and therefore accepted D1’s evidence that he had the requisite intention to possess the disputed land, in his own name and on his own behalf, to the exclusion of the world at large including the owner with the paper title.

29.Third, Ps’ contention that this Court has failed to take into account the statements made by D1 which were against his interest (§4, draft notice of appeal) is similarly without merit, because:

(1)  Ps’ contention, based on the statement in D1’s Affirmation regarding the fencing of the disputed land not having occurred for over 30 years (§§4.1 & 4.2, draft notice of appeal), is just a regurgitation of arguments already deployed in the trial[5] and rejected by this Court in §161 of the Judgment. It does not constitute a valid ground of appeal in the absence of palpable errors. Furthermore, Ps’ contention that this Court has failed to deal with this issue in §§199-201 is incomplete and incorrect, as it fails to consider §161 of the Judgment.

(2)  Ps’ contention, based on the statement in D1’s Affirmation concerning the use of the disputed land and D1’s evidence under cross-examination (§§4.4-4.5, draft notice of appeal), is again just a regurgitation of arguments already deployed in the trial[6] and rejected by this Court in §212 of the Judgment. It does not constitute a valid ground of appeal in the absence of palpable errors.   

30.Fourth, Ps’ contention that this Court has failed to take into account D1’s declaration of personal particulars to the Immigration Department (§5, draft notice of appeal) is also just a regurgitation of arguments already deployed in the trial[7] and rejected by this Court in §127 of the Judgment. Again, it does not constitute a valid ground of appeal in the absence of palpable errors.

D.3  §§6-10: this Court’s finding on the “licence point” 

31.In my view, §§6-10 of the draft notice of appeal, which are concerned with this Court’s finding on the “licence point”, has no reasonable prospect of success for the following reasons.

32.First, Ps’ contention that the “licence point” was not raised for the first time at closing is incorrect (§6, draft notice of appeal):

(1)  D1 being cross-examined on this issue without objection from D1’s counsel does not convert this unpleaded issue into an issue for trial. It is also important to note that the Agreed List (see §59, Judgment) did not include this issue as an issue for trial;

(2)  As Ma CJ observed in Kwok Chin Wing v 21 Holdings Ltd[8] (at §§21-22), it will simply not do for unpleaded issues to be “slipped in” when the evidence is being given in the hope that the other side is not sufficiently alert to object; and 

(3)  As this Court also observed in §202 of the Judgment, since the licence point has not been pleaded by Ps in their pleadings but was only raised by their counsel for the first time at closing, this Court directed counsel to lodge further written submissions on the point, which they did by lodging their supplemental closing submissions.

33.Second, Ps’ contention that the licence point does not need to be pleaded is just a regurgitation of arguments already deployed in the trial[9] and rejected by this Court in §205 of the Judgment. It does not constitute a valid ground of appeal in the absence of palpable errors. In particular:

(1)  In §205 of the Judgment, this Court specifically referred to and applied the principles propounded by the Court of Appeal in Cheung Kwong Yuen v Sun Hui Fang[10] (at §§15, 16.1 & 16.2 per Yuen JA) to support its conclusion that the “licence point” should have been pleaded; and

(2)  The draft notice of appeal, aside from citing Cheung Kwong Yuen for a completely different point (§7.4, draft notice of appeal), does not address the ruling in §205 of the Judgment.

34.Third, Ps’ contention that allowing them to run the licence point would not cause prejudice to D1 (§8, draft notice of appeal) is again just a regurgitation of arguments already deployed in the trial[11] and rejected by this Court in §206 of the Judgment. Again, it does not constitute a valid ground of appeal in the absence of palpable errors. In particular:

(1)  Ps’ contention that D1 was unable to pinpoint any prejudice or material prejudice to him during closing if the Court were to allow Ps to run the “licence point” (§8.2, draft notice of appeal) is incorrect, as Ms Lau, in §3 of her supplemental closing submissions quoted in full and relied on the judgment of Yuen JA in §§15 to 19 of Cheung Kwong Yuen. Ms Lau then submitted in §4 inter alia that “should Ps have pleaded this issue or matter, the government may be joined as a party and D1 would know what evidence he needed to prepare for the trial concerning this issue …”. Additionally, Ms Lau stated that “it is therefore highly unfair and prejudicial to D1 if Ps were allowed to ambush D1 and leave to their Closing to raise this unpleaded issue/matter.”

(2)  It follows from the above that Ps’ contention that the prejudice identified in §206(1)-(2) of the Judgment “have never been the ‘prejudice’ identified or put forward as basis of prejudice by D1 during trial or in his written closing submissions” (§8.6, draft notice of appeal) is also incorrect.        

35.Fourth, Ps’ reliance on the Court of Appeal’s decision in IO of Kam Luk Building v 吳靜燕[12] (§9, draft notice of appeal) is misplaced. It is again just a regurgitation of arguments already deployed in the trial and rejected by this Court in §208 of the Judgment. Again, it does not constitute a valid ground of appeal in the absence of palpable errors. In particular, in §9 of their draft notice of appeal, Ps have failed to address the observations of this Court in §208 of the Judgment.

36.Lastly, given the conclusion above, I do not consider it necessary to address §10 of the draft notice of appeal, which pertains to §§210-212 of the Judgment. The latter was mentioned for completeness and in the event that this Court is mistaken in its determination that it is not open to Ps to take the licence point, a scenario I do not believe to be the case. Therefore, the contentions in §10 are merely academic. Furthermore, §10 is again just a regurgitation of arguments already deployed in the trial[13] and rejected by this Court in §§210-212 of the Judgment. Again, it does not constitute a valid ground of appeal in the absence of palpable errors. Nevertheless, for the sake of completeness, I will deal with §10 very briefly:

(1)  In §210 of the Judgment, this Court observed that:

“ … Ps assert that the licence was granted in June 1997. Thus, even on Ps’ case, D1’s possession of the disputed land prior to June 1997 was not authorized by any permission, consent or licence. In my view, Ps’ claim that the licence was granted in June 1997 is inconsistent with the fact that D1 possessed the disputed land without any permission, consent or licence for almost 20 years (from 1978 to June 1997). Ps have not explained how a possession without any permission, consent or licence for such prolonged period could then suddenly become one with the permission, consent or licence granted by the Lands Department.”

Aside from asserting that §210 of the Judgment is “plainly wrong” (§10.5, draft notice of appeal), Ps have failed to address the observations of this Court in §210 of the Judgment. In particular, Ps have also failed addressed the observation of this Court in §207 of the Judgment that the licence point is inconsistent with Ps’ pleaded case that D1 illegally entered and occupied a portion of the disputed land[14]. Put simply, Ps should not be allowed to blow hot and cold.

(2)  In §211 of the Judgment, this Court observed that the findings in the cases referred to therein relied on the existence of a licence to occupy the relevant land as a determining factor. Aside from contending that this Court had erred in its application of the legal principles to the facts of the present case (§10.1, draft notice of appeal), Ps have failed to explain in what way this Court erred.

(3)  §10 of the draft notice of appeal has failed to address this Court’s findings in §212(1) and (2) of the Judgment.

(4)  Ps have also failed to address this Court’s observation in §212(f) of the Judgment, which referred to and relied on the judgment of Lord Hoffmann in Sze To Chun Keung v Kung Kwok Wai David (§10.7, draft notice of appeal).

(5)  Furthermore, I agree with Ms Lau that Ps’ contention that “assuming that D1’s occupation of the disputed land after 1997 was with the permission of the Government and hence, it was the Government who should be deemed to be in possession of the disputed land … it should be the Government (Lands Department) the licensor therein who should have the locus standi in bringing an action for possessory title to the land, and not D1 (who in his capacity as a mere licensee of the Government) would not have the locus to counterclaim for adverse possession” (§10.7, draft notice of appeal) reinforces this Court’s finding that the licence point should have been pleaded, and if it had been pleaded, D1 might have joined the Government as a party. This is especially relevant given the common ground between the parties that the disputed land was privately owned, not Government property, raising questions about how the Government could be deemed to be in possession of private land.

E.  CONCLUSION

37.To conclude, none of the grounds raised by Ps has any reasonable prospect of success. Ps’ summons is dismissed with a cost order nisi that D1’s costs be paid by Ps to be taxed if not agreed with certificate for counsel and that D1’s own costs are to be taxed in accordance with the Legal Aid Regulations.

38.Lastly, it remains for me to thank Ms Lau for the assistance she has rendered to the court.

The 1^st and 2^nd Plaintiffs appeared in person

Ms Lorinda Lau, instructed by Patrick Chu, Conti Wong Lawyers LLP, for the 1^st Defendant