Lau Kwai Lin (in Her Capacity As Administratrix for The Estate of Chan Tin Chu, Deceased) v. 陳綺雯

DCCJ 5904/2020

[2025] HKDC 878

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5904 OF 2020

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BETWEEN

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DECISION

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Introduction

1.By a summons filed on 11 July 2024 (“the 1^st summons”), the defendant applied for leave to appeal against my judgment dated 14 June 2024 (“my judgment”).

2.The defendant filed a notice by party of intention to act in person on 25 October 2024.

3.The defendant filed another summons on 29 November 2024 (“the 2^nd summons”) stating that she would not “counterclaim” the green area and wished to add 2 grounds of appeal.

4.Although the defendant is acting in person, the majority of her written submissions are in English. Accordingly, this decision is written in English.

Legal principles

5.Section 63A(2) of the District Court Ordinance provides:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that…

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

6.The test of whether an appeal has a reasonable prospect of success under the new statutory provision is the same test as applied before the amendment to Cap 336, i.e. whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal as is laid down in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd, HCMP 357/2011, 8/7/2011, unreported.

7.Where the appeal is against the exercise of a discretion, the appellant ought to demonstrate that the decision was plainly wrong, or that the trial judge has taken irrelevant matters into consideration or has ignored relevant matters: see SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37 at p 48.

Ground 1

8.By this ground, the defendant’s submission (which she said was drafted by her former counsel) sought to argue that it was an error in law in holding that the act of considering to buy the land from the plaintiff is sufficient to show that the defendant lacks the necessary animus possidendi when establishing her adverse possession claim.

9.It was submitted that I was erred in law in that Edginton v Clarke & ano [1964] 1 QB 367, p 376 does not support the proposition/finding in paragraph 92 of my judgment. That the case concerns the statutory defence under ss 23(1)(a) & 24 of the Limitation Act 1939. It never touches upon how an “acknowledgment” affects a squatter’s animus.

10.The submission further said that the proper analysis is found in J.A. Pye (Oxford) Ltd & Anor v Graham & Anor [2000] Ch. 696G-697C.

11.The relevant passage is as follows:

“Mr Gaunt attractively submits that, by making an offer or request to the owner to take a tenancy or a licence, the squatter “shows an intention to submit to the owner’s right to possession” and that this therefore negatives an intention to possess. It seems to me that, in light of the way in which the concepts of possession and intention to possess have been interpreted in the cases to which I have been referred, that argument must be rejected. A squatter who is still “clocking up” his 12 years and who knows the law will appreciate that his ability to exclude the owner from the land in question will be limited, in the sense that the owner has the right to come onto the land and indeed to evict the squatter. In my judgment, that is a factor that one should bear in mind when considering the dictum of Slade J in Powell v McFarlane, 38 P & CR 452, 471-472, and approved in Buckinghamshire County Council v Moran [1990] Ch 623, that the squatter has to intend to exclude everyone including the owner “so far as is reasonably practicable and so far as the processes of the law will allow.” Given that the well informed squatter will know that he cannot lawfully exclude the owner if he wishes to come to the land, and that indeed the owner can lawfully evict the squatter, I see nothing inconsistent in the squatter having an intention to possess at the same time as making an offer to take a tenancy or a licence. Of course, that is not to say that an offer could not be expressed in terms which tended to negate a present animus possidendi.” (emphasis added)

12.Further, Neuberger J (as he then was) also reiterated in the following paragraph that:

“However, it also appears to me that the fact that a squatter asks the owner whether he can take a licence to occupy the land in question may be a factor which, at least in some circumstances, could be invoked by the owner to assist his contention that the squatter did not have the requisite animus possidendi at and around the time the request was made. While the existence of such a request might not be of much value on its own in this connection, its effectiveness might be strengthened by the terms in which it was expressed and/or other surrounding circumstances.”

13.Therefore, His Lordship expressed his opinion in the circumstances of the case as he found.

14.His Lordship further explained at 706E-G that he so held his view because the owner of the land indicated its unwillingness to grant a new grazing licence to the defendant:

“The argument that a former licensee or tenant who is negotiating with an apparently willing owner for a new licence or tenancy does not have sufficient animus is not without force. None the less this is not a case where the owner indicated any sort of willingness to grant a new grazing licence or even where the position was allowed to drift after the 1983 licence expired: there were positive and persistent refusals by the plaintiffs to let the Grahams have a grazing licence use over the disputed land. On 17 January 1984 an emphatic refusal to grant a grazing licence was communicated to the Grahams, and there was never any suggestion of any reconsideration of that decision. Accordingly, as I see it from the date that John Graham was told of that emphatic refusal, and subject to the effect of the isolated grant of the right to take a cut of hay in 1984, such assistance the plaintiffs can obtain for their argument from the fact that the Grahams had been grazing licensees of the disputed land appears to me to have been dissipated.”

15.Coming back to the present case, it is my findings that the plaintiff had all along been willing to sell the land to Tsang and the defendant and there had been ongoing discussion between them on the matter.

16.That being so, the factual circumstances in Pye and the present case are completely different. On the facts of the present case, it is open to me as the tribunal of fact to find that the defendant had failed to establish animus possidendi.

17.I see no merits in Ground 1.

Ground 2

18.Paragraph 25 of the written submission in support of Ground 2 is as follows:

“The plan annexed to the Amended DCC has not identified the area of the footpath. However, it is apparent that D only counterclaims against P for a right of way in the red area (see the plan below, which is the where the rightmost part of the footpath lying within Lot 740 (land of P), and which is annexed to the draft Notice of Appeal), so that D may access the property (yellow area) from the government land. Thus, there is no need to add the Government as a party, who is not the owner of the red area. In fact, there is no suggestion that the Government did not allow D to access the Government land (part of which forms a footpath).”

19.Obviously, the defendant is attempting to alter her counterclaim in the light of my judgment.

20.This is indeed the wishful thinking of the defendant but is not permissible in law.

21.I see no merits in Ground 2.

Ground 3

22.In Ground 3, the defendant sought to dispute the findings of fact in paragraph 91 of my judgment.

23.However, the defendant did so by disputing the recitation of the plaintiff’s case (ie paragraphs 12, 14, 16 and 18 of my judgment) and the plaintiff’s evidence (ie paragraphs 63, 64-67 and 81 of my judgment).

24.Disagreement with the plaintiff’s case and evidence is simply a non-starter in disputing the findings of fact of the trial judge.

25.I see no merits in Ground 3.

Ground 4

26.By Ground 4, the defendant disagreed with my decision to accept the late discovery of the excerpts of working file on Lot 740 in SD 3 of Chan HC.

27.The decision was indeed an exercise of my discretion the reason for which was given in paragraph 8 of my judgment.

28.The defendant has failed to point out the error that I have committed in the exercise of my decision other than saying that it was seriously unfair to her.

29.I see no merits in Ground 4.

Conclusion and order

30.By reasons of the aforesaid, I am not satisfied that the defendant’s intended appeal has reached the threshold of granting leave and therefore the defendant’s application must be dismissed.

Costs

31.Costs to follow the event. I make a costs order nisi that the defendant shall pay the plaintiff the costs of this application with certificate for counsel. Such costs to be assessed summarily.

32.In the absence of any application for variation by summons within 14 days from the date of this decision, the costs order nisi shall become absolute.

33.Upon the making of the costs order absolute and for the purpose of summary assessment of costs, the plaintiff shall lodge and serve a statement of costs within 14 days from the date of the order absolute, followed by the defendant’s list of objection within 14 days thereafter.

Mr Edward Lun, instructed by Messrs K. M. Tang & Co, for the Plaintiff

The defendant appeared in person