Read the full judgment text of FACV 000001/1997 on BabelCite. This FACV judgment was delivered on 13 January 1998 before Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Mortimer NPJ, Lord Cooke of Thorndon NPJ.
Land law – limitation of actions – adverse possession – animus possidendi – re-opening of issue in final appellate court – exceptional circumstances – Limitation Ordinance (Cap 347) ss.7(2), 8(1), 13(1), 17, 23, 24 – Landlord and Tenant (Consolidation) Ordinance (Cap 7) Parts I, II and V – New Territories (Renewable Crown Leases) Ordinance (Cap 152) – possession of land in Hung Shui Kiu, Yuen Long – 7-year tenancy dated 9 April 1957 at $325 per annum – last rent payment 19 May 1963 to Hop Yick Co. – 1980 action by predecessors-in-title – 1990 action – whether the Court of Final Appeal should re-open limitation issue not duly raised or pursued in the Court of Appeal, where the judge had assumed an election in favour of adverse possession and stayed execution pending the Privy Council decision in Chung Ping Kwan v. Lam Island Co. Ltd. [1997] AC 38 and the Court of Appeal upheld that stay – held, exceptional circumstances justified re-opening (Ahamath v. Sariffa Umma [1931] AC 799 applied) – second issue, whether arguable limitation defence – adverse possession requires factual possession and intention to exclude the world at large including the paper-title owner (Powell v. McFarlane; Buckinghamshire County Council v. Moran; R. v. Secretary of State for the Environment Ex p Davies) – affirmed statements against interest established 14th defendant's intention to pay rent if requested, inconsistent with animus possidendi and an intention 'as of right' rather than 'as of wrong' – Ho Hang-wan v. Ma Ting Cheung [1990] 1 HKLR 649 distinguished on its own facts – appeal dismissed with costs – costs to follow the event including costs reserved.
Legal issues: Whether to allow re-opening of limitation issue not pursued below · Whether arguable limitation defence based on adverse possession
Outcome: Appeal dismissed with costs.
Cited by 1 case