Li Sun Kuen and Others v. Liu Hon Ping and Another

HCA002681/1997

1997, No. A2681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 2681 OF 1997

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Coram: Deputy Judge A. Chung in Court

Date of Hearing: 12 to 14 April 1999

Date of Handing Down Judgment: 23 April 1999

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J U D G M E N T

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Introduction

1. The Plaintiffs bring this action to recover possession of a piece of land ("the suit property") being part of the land known as Sections A, B, C and the Remaining Portion of Lot No. 603 in Demarcation District 83 ("the Lot"). Judgment was already entered against the 1st-named Defendant ("Ms. Liu") on 14 May, 1997. The 2nd-named Defendant("the Defendant") defended the action raising a number of defences. By the time of the trial, her defence was narrowed down to one, namely, the Plaintiffs' claim has been barred by virtue of the provisions of the Limitation Ordinance, Cap. 347 and she acquired title to the suit property by reason of adverse possession.

The Issues

2. The suit property was coloured pink on a plan annexed to the Re-Amended Statement of Claim. There is no dispute that:-

(a) the Plaintiffs are the registered owner of the Lot, including the suit property;

(b) the Defendant and her family, including Ms. Liu (up to about 1985), have been occupying the suit property since about 1951.

3. According the Re-Amended Statement of Claim, the Plaintiffs contended the suit property was let to one Mr. Liu Chung, a relative of the Defendant's late husband, Mr. Liu Sun. Mr. Liu Chung later assigned the tenancy to Mr. Liu Sun. The tenancy was later transferred to Ms. Liu after Mr. Liu Sun's death in about 1991. The tenancy was terminated by a Notice to Quit served on Ms. Liu before the action.

4. The Plaintiffs' case was denied by the Defendant. Two lines of defence were advanced by her. One, she acquired title by adverse possession. Two, the tenancy relied on by the Plaintiffs was one falling within Part II of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. Since the death of her late husband, the benefit of the tenancy was transferred to the Defendant by virtue of Cap. 7. At the beginning of the trial, Mr. Tsang for the Defendant stated the Defendant no longer relied on the second line of defence. The sole issue before the Court is therefore whether title to the suit property was acquired by the Defendant by reason of adverse possession.

5. Mr. Tsang accepted that the burden of proving this defence lies with the Defendant and she needs to prove not only possession, but possession which was adverse to the Plaintiffs'.

6. It is also accepted by the parties that this issue is essentially a question of fact which rests almost entirely on the finding on the credibility of the respective witnesses.

7. The following witnesses were called at the trial:-

(a) witnesses for the Plaintiffs:-

(1) Madam Tsang Koon-mui ("PW1"), the wife of Mr. Li Kwai Yau;

(2) Mr. Li Kwai Yau ("PW2");

(b) witnesses for the Defendant:-

(1) the Defendant;

(2) Ms. Liu, the Defendant's daughter;

(3) Mr. Liu Fat Keung ("DW3").

Credibility of the Plaintiffs' Witnesses

8. PW1 was born in 1933 and is now 66 years old. She was married to PW2 in 1950. The 1st-named and 3rd-named Plaintiffs are her sons. She testified as follows:-

(a) before her marriage, she lived in Ping Tse (坪輋). After the marriage, she lived in No. 9, Fu Tei Pai (虎地排) with her mother-in-law. At that time, her late husband lived in Tai Po with her father-in-law. Her late husband went to see her every week;

(b) in the 1950's, the suit property was farm land. Her mothers-in-law farmed there and she also helped farming for a year in 1950;

(c) in 1951, Mr. Liu Chung approached one of her mothers-in-law and requested the suit property to be let to him. Finally, an agreement was reached under which Mr. Liu was to pay a total rent of 4 piculs of grain per year payable half-yearly;

(d) rent was paid by Mr. Liu at her mother-in-law's residence;

(e) starting from about 1970, she collected rent from a lady called "koo ma" (姑媽) (translated as "elder aunt"). She did not collect rent for a long time and she only recalled collecting rent for one year from "koo ma" at "koo ma"'s residence;

(f) she identified the lady in the photograph at p. 154 of the second bundle of documents to be the "koo ma" she referred to;

(g) when she went to "koo ma"'s residence to collect rent, she was told that Mr. Liu Chung already passed away in the 1960's.

9. PW1 also testified to other matters but these are not material to this action and I do not propose to set them out. Mr. Tsang submitted I should not accept her testimony because she was not a credible witness. He argued she was PW2's wife and has a strong motive for not telling the truth in order to help her husband to repossess the suit property.

10. I have borne in mind these criticisms when assessing PW1's credibility and reliability and conclude she is a truthful and reliable witness. I find she testified in a straight-forward manner and was not shaken in cross-examination. Further, as stated above, she identified a lady who she called "koo ma". This lady was described by the defence witnesses to be "koo tsai" (姑仔) (translated as "younger aunt") or "sam koo" (translated as "third aunt") (三姑). They testified that she lived with the Defendant's family at the suit property until she passed away about 10 odd to 20 years ago. If PW1 had not known the Defendant's family or had not been to the suit property to collect rent from "koo ma", I find it inexplicable why PW1 was able to identify "koo ma" from the photograph. Mr. Tsang submitted the Plaintiffs might have shown the photograph to someone in the vicinity who was acquainted with her and therefore the Plaintiffs learnt of her identity from the neighbours. The photograph was only disclosed by the Defendant in her list of document dated 24 March, 1999 (about 2 to 3 weeks before the first day of trial). This suggestion was not supported by evidence. The time between its disclosure and the trial was relatively short. In these circumstances, I consider this suggestion to be fanciful and therefore reject it. I find PW1 was able to identify this lady because she has collected rent from her earlier.

11. PW2's testimony can be summarized as follows:-

(a) he was PW1's husband since about 1950 and the father of the 1st-named and 3rd-named Plaintiffs;

(b) he was born in 1932 and is now about 67 years old and was educated to primary school level;

(c) he referred to a document at p. 61 of the bundle of documents. He said this was a contemporaneous record he kept when he received rents from tenants, including Ms. Liu;

(d) on the occasion when he went to the suit property to collect rent from Ms. Liu, she gave him 3 years' rent. The name "Liu Pan" appearing in the contemporaneous record was suggested by Ms. Liu. In fact, Liu Sun, Liu Chung , Liu Pan and Ms. Liu were all one family;

(e) the document at p. 63 of the bundle of documents was also another contemporaneous record of his collection of rent from Ms. Liu;

(f) after 1987, Ms. Liu asked him to give her his bank account number and from then rent was deposited directly into his account until February, 1994;

(g) he identified the name card at p. 66 of the bundle of documents as Ms. Liu's name card. It was given to him by Ms. Liu when he collected rent from her. At that time, Ms. Liu told him she was working with a travel agent and she could help him with buying air tickets or dealing with excess baggage.

12. PW2 also testified as to other matters but since they are not important to this action I will not set them out. Mr. Tsang invited me not to accept PW2 to be a truthful or reliable witness for the following reasons:-

(a) it is apparent from his passport that he spent about 37 years out of some 40 years (from 1953 to 1994) in the U.K. rather than in Hong Kong. According to the passport, he was in Hong Kong during the following periods only: 11.1968 to 5.1969; 9.1979 to 11.1979; 11.1980 to 1.1981; 1.1981 to 5.1981; 1.1984 to 3.1984; 4.1987 to 5.1987; 4.1989 to 5.1989; 2.1994 onwards;

(b) the Chinese character "Ping" in Ms. Liu's name card was written as "萍". This was different from the character used in the Writ of Summons or the notice to quit given earlier, which was written as "平" instead. If PW2 had possessed Ms. Liu's name card since the 1980's (which was the period when she worked with a travel agency), there should not be such difference;

(c) related to (b) above was the fact that the name card was only disclosed in the Plaintiffs' supplemental list of document dated 28 July, 1998.

13. Further to the above, Mr. Tsang also criticized PW2's veracity relying on the answers given by PW2 when I asked him about his rent-collection record at p. 61 of the bundle of documents. These answers were:-

(a) the record shows rents being collected in arrears;

(b) the different paragraphs in this record were recorded on different occasions and were made contemporaneously when rents were collected from different tenants on different occasions;

(c) the first entry was the paragraph at the top right hand corner of the 2-page record and the last entry was the paragraph at the lower right hand corner of this record;

(d) the first, third and fourth entries were recorded in 1985, 1984 and 1983 respectively.

14. Mr. Tsang submitted that PW2's testimony regarding this alleged rent record could not be true because:-

(a) it is inherently implausible that the first, third and fourth paragraphs were not written chronologically but in 1985, 1984 and 1983 respectively. Further, this answer cannot stand together with PW2's answer that the entries were made consecutively one after another;

(b) according to PW2's passport, he was not in Hong Kong in 1983 or 1985. It was therefore inherently implausible for him to have made entries which show that he collected rents from the tenants in 1983 or 1985, as some of them purport to show.

15. I have reservations regarding the reliability of PW2's testimony relating to this alleged rent record. I also find the nature of this document to be suspicious but I note that PW2 has difficulties in testifying accurately regarding dates. For example, he testified he was born in 1932. However, on a number of occasions, he testified that he left Hong Kong for the U.K. in 1932. It was only after some time that he was able to correct this and said he went there in 1953. This last date tallies with the records in his passport.

16. Bearing in mind Mr. Tsang's criticisms, I find PW2's testimony regarding his collection rent from Ms. Liu to be credible and reliable. This part of his testimony was supported by entries in his bank passbook. Further, I consider Ms. Liu's name card to be important on this issue. According to Ms. Liu, she worked for this travel agency from about 1980 and ceased doing so in 1985 when she married. It is the defence case that they did not know PW1 or PW2 during that time. In fact, they only knew of the Plaintiffs' claim in 1995. Similar to the identification of "koo ma" by PW1, I find it unexplainable why the Plaintiffs came to possess this name card if Ms. Liu was unknown to PW2 around the time when she was working at the travel agency.

17. As regards Mr. Tsang's criticism relating to the Chinese character "Ping" (between the name card and the Plaintiffs' documents), I agree with Mr. Ng's submissions that this was caused by the Plaintiffs' not supplying the name card to their lawyers earlier. I also bear in mind that this criticism was not put to the Plaintiffs' witnesses by Mr. Tsang in cross-examination.

18. Mr. Tsang suggested the Plaintiffs could have obtained the name card from the office of the travel agency (presumably sometime around 1995); alternatively, they could have obtained it from someone acquainted with Ms. Liu. Again, I find the suggestion fanciful and do not accept it. I am satisfied PW2 obtained the name card from Ms. Liu as he testified.

19. Mr. Tsang also criticized the Plaintiffs for failing to call Madam Leung Kiu to testify and no reason was given for such failure. Madam Leung Kiu was one of mothers-in-law of PW1 and was the one who granted a tenancy to Mr. Liu Chung and collected rent from him, according to the Plaintiffs' pleadings. I do not consider this to materially affect the credibility or reliability of the Plaintiffs' witnesses.

Credibility of the Defence Witnesses

20. The Defendant testified as follows:-

(a) before she lived at the suit property, she used to live in Shek Kip Mei;

(b) when she was about 34 years old (in about 1955), a fire in Shek Kip Mei burnt down her house and she and her late husband had to look for accommodation for the family;

(c) her late husband had several clan brothers all surnamed "Liu"; one of them was Mr. Liu Chung. They were living in the vicinity of the suit property and they informed her late husband there were places nearby which they could build a home;

(d) Mr. Liu Chung did not live at the suit property but lived somewhere nearby;

(e) she and her late husband built a house at the suit property. This house was rebuilt and extended over the years;

(f) over the years, no one came to collect rent or in any way interfere with the occupation of the suit property by her family;

(g) the photograph at p. 154 of the bundle of documents shows "koo tsai" who used to live with her family before she passed away about 20 years ago. She was the younger sister of her late husband;

(h) she had never seen PW1 or PW2 before the trial;

(i) she did not know any of the tenants whose names were put to her by Mr. Ng in cross-examination.

21. Ms. Liu testified essentially along the same line as the Defendant's testimony summarized above. She also testified that she worked for a travel agency up to 1985 and she only knew of the claim from the registered owner in 1995. She never met PW1 or PW2 before that.

22. DW3's testimony was, similar to that of Ms. Liu, basically in support of the Defendant's testimony that their family had never paid rent to anyone at any time and that the first time when any right to possession was asserted by the registered owner was in 1995.

23. At the trial, the defence witnesses did not challenge the Plaintiffs' case that Mr. Liu Chung rented a piece of land from their predecessors-in-title. The defence case advanced at trial was that Mr. Liu Chung was occupying another piece of the Plaintiffs' land and Mr. Liu was only paying rent for that other piece of land. This allegation was never made in any of the witness statements, nor did Mr. Ng deal with this matter in his cross-examination. I found it necessary to raise this with the witnesses myself so as to draw their attention (and that of counsel for the parties) to this matter. I did so in order to give them an opportunity to deal with it by way of evidence. The Defendant did not give any explanation in answer to my questions. Ms. Liu explained she did not do so either because she only talked of the condition of her family in her statement. I do not find this explanation to be credible in light of her admission (to me) that the (then) Amended Statement of Claim (at pp. 18-22 of the bundle of documents) was explained to her. One averment alleges the tenancy was transferred to her and/or the Defendant from Mr. Liu Chung and so on.

24. When I raised this omission with Mr. Tsang in his final submission, he gallantly said he took responsibility for this omission. I do not understand why he should do so. He informed me he was instructed to appear for the defence in about July, 1998. By then, the witness statements of the defence witnesses were already prepared. Further, as stated earlier, the omission was expressly addressed when the witnesses were still testifying and there was more than ample opportunity for Mr. Tsang to clarify it with the witnesses but this was not done. In these circumstances, I do not see why I should not approach the issue of credibility by relying solely on the evidence before me.

25. Further, none of the defence witnesses was able to satisfactorily explain why it was possible for PW1 to identify "koo ma" or why the Plaintiffs possessed Ms. Liu's name card. Moreover, the exact location of the house allegedly belonging to Mr. Liu Chung or his family was never dealt with by evidence.

26. For the above reasons, I do not find the defence witnesses to be credible or reliable insofar as their testimony purports to advance the defence of adverse possession and I reject their testimony.

Conclusion

27. I find that the Plaintiffs are the registered owners of the Lot, including the suit property. I find that the Defendant has failed to establish her defence of adverse possession.

28. The amount of mesne profits was dealt with in PW2's testimony and this has not been challenged by Mr. Tsang in cross-examination. I consider the amount claimed to be reasonable and therefore allow such sum. In the circumstances, I enter Judgment in favour of the Plaintiffs as claimed in the prayer for relief of the Re-Amended Statement of Claim and dismiss the Defendant's Counterclaim.

Costs Order Nisi

29. Counsel for the parties agreed that this is an appropriate case for a costs order nisi to be made pursuant to R.H.C. Ord. 42 r. 5B(6). There is no apparent reason why costs should not follow the event. Costs of the action are to be paid by the Defendant to the Plaintiffs to be taxed if not agreed.

Representation:

Appearances: Mr. L. Ng i/s by Messrs. Yip, Tse & Tang for the Plaintiffs

Mr. K.H. Tsang i/s by Messrs. Lo, Wong & Tsui for the 2nd-named Defendant