Tang Nam v. Wan Yung Po

HCA006973/2000

HCA 6973/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6973 OF 2000

Coram: Hon. Sakhrani J in Court

Date of Hearing: 28 June 2001

Date of Judgment: 28 June 2001

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J U D G M E N T

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1.This action concerns the properties described as the 1st landed properties and the 2nd landed properties in para. 1 of the statement of claim ("the land").

2.The land was at all material times registered in the name of Wan Yung Po who is deceased. His estate is represented by Madam Tam Yuen Fun as the defendant in these proceedings. Madam Tam is the widow of Wan Chi Hung, also deceased, who was a grandson of Wan Yung Po, deceased. The plaintiff's claim is for declarations that the defendant has lost the right to bring any action to recover any part of the land and that the defendant's title to any part of the land has been extinguished and that the plaintiff has acquired a good possessory title to the land.

3.The defendant has filed and served a defence and counterclaim denying the plaintiff's claim and also counterclaims for, inter alia, possession of the land, an injunction restraining the plaintiff from entering any part of the land and damages.

4.The defence does no more than in effect put the plaintiff to proof of his claim. No positive case by way of defence has been asserted.

5.I heard evidence from the plaintiff's son Tang Sze Wo. I have no hesitation in accepting him as a witness of truth who has given his evidence truthfully and reliably. He was born on 24 March 1961 at his parents' residence in Ma On Shan. The land is located in the vicinity of the residence. He lived there with his parents and siblings until about 1984 or 1985 when he moved from Ma On Shan to live in Kowloon. He recalled that from about the time he was seven or eight years old, that is from about 1968 or 1969, to the time he moved from Ma On Shan to live in Kowloon in 1984 or 1985 he had been helping his father, the plaintiff, who used the land for farming purposes. His father grew vegetables and fruit trees there. Although he moved out in 1984 or 1985 he did go back to visit his parents in Ma On Shan. On his evidence, which I accept, it is clear that at the latest from 1969 onwards the plaintiff has been occupying the land exclusively for cultivating vegetables and planting fruit trees there. The witness was able to describe in evidence what sort of trees were grown in the areas of the various lots as shown in exhibit P.1, the surveyor's plan with markings of the boundaries of the various areas. It was also his evidence, which I accept, that no one has during all this time ever objected to his father's exclusive occupation of the land and the plaintiff did not pay any rent for the use of the land. It is also clear from his evidence and I accept that the land so used by his father was fenced off by barbed wire. He said and I accept that there has been no change in the boundaries of the land occupied by the plaintiff since the time he helped his father cultivate the land.

6.Madam Tam is not in a position to refute any of the evidence called by the plaintiff. In her witness statement, which has been agreed as her evidence in this case, she states in para. 7 :

"I had not heard anything from my late husband relating to the alleged occupation of the said land lots by the plaintiff or anyone else. All I knew from my late husband was that his ancestors had left some land to him. As far as I can recall my late husband had never returned to his native village since our cohabitation."

And earlier in her statement she said that she cohabited with her late husband since about 1974. And in para. 11 of her witness statement she confirmed that neither she nor her late husband received any rent or fee from the plaintiff in respect of his occupation of the land.

7.The plaintiff's case is based on adverse possession of the land.

By s. 7(2) of the Limitation Ordinance Cap. 347 it is provided that no action should be brought by any person to recover any land after the expiration of 20 years from the date on which the right of action accrued to him. By s. 17 it is provided that at the expiration of the period prescribed by the Ordinance for any person to bring an action to recover land, the title of that person to the land shall be extinguished.

8.A person claiming to be in adverse possession must have both possession of the land and the requisite intention to possess the land. Wong Tak Yue and Kung Kwok Wai & Another (No. 2) [1997-1998] 1 HKCFAR 55. The correspondence in the agreed bundle referred to by Mr Louis Chan, counsel for the plaintiff, demonstrates clearly, in my view, the intention of the plaintiff to possess the land. In my view, the uninterrupted and exclusive agricultural use and occupation of the land by the plaintiff together with the fact that he enclosed the land with barbed wire leads strongly to the conclusion that he intended to possess the land to the exclusion to everyone including the registered owner of the land. In August 1999 the fencing was torn down and the trees were cleared away by those representing Yorky Limited. The plaintiff asked his son to re-instate the boundaries of the land with barbed wire fencing. This reinforces the view that all along he did intend to possess the land and to treat the same as his own to the exclusion of everyone else including the registered owner.

9.I am satisfied that the plaintiff did possess the land with the requisite intention to possess since at the latest 1969. In the circumstances, I am satisfied that the plaintiff is entitled to the declarations that he seeks. I give judgment to the plaintiff for the declaration that :

(1) the defendant has lost the right to bring any action to recover any part of the land by virtue of s. 7(2) of the Limitation Ordinance Cap 347; and

(2) by virtue of s. 17 of the said Ordinance the defendant's title to any part of the land has been extinguished and the plaintiff has acquired a good possessory title to the land.

10.The counterclaim is dismissed. The plaintiff does not seek any costs in respect of both the claim and the counterclaim and I make no order as to costs on the claim and the counterclaim.

Representation:

Mr Louis K Y Chan instructed by M/s Wong & Poon, for Plaintiff

Mr K M Chong instructed by Messrs Foo and Li, for Defendant