Lee Ktm v. Chu King Lu

HCA000003/1978

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Coram: Barker, J. in Court

Date of Judgment: 30th July, 1980

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JUDGMENT

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1. In this action the Plaintiff claims possession of land variously known as 11A Deep Bay Road, Kam Loy Yuen and 10 Deep Bay Road, near P.T.S., Aberdeen, and consequential relief.

2. It is common ground that the Plaintiff holds this land under permit No. 3960 from the Crown Land Department, the use of the land being stated on the permit as 'Cultivation and Pigeon rearing'. It is also common ground that, in late 1976 and 1977, the Defendant built a large wooden hut, the main hut, marked (b) on D1, laid a concrete yard, marked (c) on D1, and built a second wooden hut, marked (a) on D1. It is admitted that the Defendant, his wife and family occupy the relevant piece of land.

3. Prior to October, 1976, the Defendant occupied a shipyard which was adjacent to the Plaintiff's land. By letter, page 1 of the agreed bundle P2, the Defendant was notified that this shipyard had to be vacated by the 21st October, 1976 and that he was eligible for compensation of $83,073 - which he was in fact paid. Then he needed somewhere to live and work. And he lit upon the Plaintiff.

4. It is essential, if this case is properly to be understood, to give a brief description of the dramatis personal. The Plaintiff is now 82 years of age, frail, rheumatoid, and for some time, aphasic. He lost his voice shortly before these proceedings began and it was difficult indeed for the interpreter to hear what he was saying even though he sat within 6 inches of him. He was a man, in my judgment, of whom advantage could easily be taken. His wife, Ho Kwan-ying, is herself of advanced years, a mild person. His daughter, Li Kar-sheung, at all material times a school teacher, is also somewhat timid, quiet spoken but precise. The Defendant, on the other hand, 50 years of age, is, as I find aggressive and overbearing and the Plaintiff was an easy target for him. His wife, Cheung Shun-ying, is, in my judgment, of like temperament with her husband.

5. The version of events as given by the plaintiff, his wife and daughter differs markedly from that given by the Defendant and his wife. The evidence of the Plaintiff and his family is, in substance, as follows.

6. The Plaintiff knew the Defendant as a mere acquaintance. After the Defendant had yielded up possession of his shipyard, he came to the Plaintiff and asked him to give him some facility for the installation of a telephone and also to allow him to store some of his working tools on the Plaintiff's land. To this, the Plaintiff agreed. At the time, his wife was out of the Colony, but his daughter was not, though she was working during the day. According to the daughter, the Defendant told her that her father was a good man to allow him to install a telephone, but told her nothing more as to his proposed user of the land.

7. What happened thereafter was that the Defendant by his workmen entered the land without the Plaintiff's consent, and erected a substantial residential work hut (b) on D1 and concreted over a yard, whilst he stood helplessly by. During the day he was alone, hampered by rheumatism and old age and unable effectively to prevent what was going on. He said the Defendant at one stage did suggest that he should pay money to the Plaintiff an offer which he refused. His evidence was graphic. 'What could I do? I had not been informed beforehand. What could I say! I had already committed an offence because he had built on Crown land.' I just told him not to do that because I would be committing an offence through his action. He was treating the place as his own and he did what he liked. He lived there and he said he would move away once his shipyard was built.

8. This was the position when his wife arrived back in Hong Kong from Canada on the 28th November, 1976. In her absence (b) and (c) of D1 had been constructed. On the 29th November, 1976, she, the Plaintiff and their daughter went over to the Defendant's main hut. She told the Defendant it was wrong for him to have constructed such a large hut, that he should not have spent so much money on its construction and that he should move away immediately to his shipyard once it was built - which the Defendant agreed to do.

9. It is common ground that the Defendant's shipyard has been built and yet he has not moved out - but occupies the place as his own.

10. In March, 1977, the plaintiff went to Canada, thinking that he had the Defendant's promise to move out once his shipyard was built. Whilst he was in Canada, he wrote a number of seemingly affectionate letters to the Defendant and to one of his daughters, in which there is no mention of any promise to move out and to which, perhaps significantly, the Defendant chose not to reply.

11. On the 22nd August, 1977, at the request of Madam Ho, the Defendant came to see her. Her daughter was present. Madam Ho asked the Defendant to move out, since his shipyard was built, to which the Defendant's reply was that he had spent so much money on the construction of the hut and the amenities of the yard that he could not move out. And he did not. On the contrary, he constructed hut (a) on D1 by demolishing an existing open hut.

12. Moreover, as I find, he installed a number of electric cables and ran them quite illegally to one or more squatter huts nearby and charged for the service, I am satisfied making a profit out of it - a further example of treating the place as his own. At the meeting of the 22nd August, 1977, such was Madam Ho's desperation, that she offered the Defendant $10,000 to leave - an offer which he refused.

13. Towards the end of November, 1977, a further meeting took place between the parties. The Plaintiff again asked the Defendant to quit and he refused and indeed at a later stage, he was abusive to the Plaintiff.

14. Such then, in outline, is the Plaintiff's case.

15. The Defendant's case is quite different. He agrees that he was evicted from his shipyard and was paid compensation. He said he and the Plaintiff were ordinary friends and that on day he met the Plaintiff and he asked the Plaintiff if he could use some portion of his land because he, the Plaintiff, had a very large area of land. The Plaintiff's reaction to this was to say 'Very good, very good' and actually pointed out the portion of land which he could use. It was agreed that the Defendant would pay $5,000 to the Plaintiff, in consideration for which the Plaintiff would allow the Defendant to use the land. He said that he told the Plaintiff he intended to put up a hut for residential purposes to which the Plaintiff readily agreed and that the Plaintiff suggested that since it was wrong for anyone to be on his land.

(a) If any official of the P.W.D. came to inspect he the Defendant was to say that it was being built in substitution for a dilapidated waste hut already on the land and (b) that he was related to the Plaintiff, it being essential that he should not say to the P.W.D. that money had changed hands.

16. And so hut (b) and the concrete yard (c) were constructed with the Plaintiff's entire approval. And the Defendant and his family moved in on 13th November, 1976 on which day the Defendant paid to the Plaintiff $5,000 in cash - cash at the Plaintiff's request - which had been drawn out of the Defendant's bank by virtue of a cheque, signed by the Defendant and presented to the Bank by the Defendant's wife - as evidenced by the cheque stub D5 - on which is written in the Defendant's handwriting 'For Mr. Lee's use'.

17. The Defendant said that after he moved in he was offered a place at the Aberdeen resite area which he refused in view of the fact that he had constructed accommodation for himself and his family at a cost of some $37,500.

18. Having first said that there was a meeting on the 29th November, 1976, the Defendant immediately thereafter resiled from that answer and said that there was no meeting so far as he was concerned. His wife, Cheung Shun-ying, said that on the 29th November, 1976 the Plaintiff's wife came to the hut, looked around, said it was nicely decorated, and left.

19. As to the 22nd August, 1977 meeting, the Defendant said that Madam Ho told him she had successfully sold the premises and offered him $10,000 to move out - an offer which the Defendant refused since the Plaintiff had promised that he could stay there until the Government repossessed the premises.

20. The Defendant admits that the November, 1977 meeting took place and that he refused to move. Both he and his wife denied that at any of these meetings, the Defendant said he would move out once his shipyard was built.

21. As to building (a) the Defendant said that he had asked the Plaintiff for permission to convert what had been an open sided hut with roof by adding the sides but instead he had built a rather larger hut. He said the Plaintiff told him he had fixed up the P.W.D. with regard to the construction of this hut.

22. Which of these versions is correct? On behalf of the Defendant it is argued that, if no permission had been granted to erect the main hut, it is inconceivable that the plaintiff could have written letters of the tenor which he undoubtedly did, and that, in any event, no man would allow structures to be built on his land without his consent and yet stand idly by.

23. These are powerful arguments, but in my judgment they fail. I have seen and heard the witnesses. The Defendant I find is belligerent and untruthful. Time after time he was caught out in a lie, and his wife was equally aggressive. In so far as their evidence conflicts with that of the Plaintiff and his witnesses I unhesitatingly prefer the latter. I find it quite inconceivable that the Plaintiff would, of his own motion, and to aid a comparative stranger, suggest a conspiracy to deceive the P.W.D. The explanation for the letter is that the pathetic old man having accepted a fait accompli so far as the hut (a) was concerned, but having received a promise that the Defendant would move as soon as his shipyard was built, made the best of things knowing that his wife and children lived next door and probably being fond of the Defendant's children.

24. I do not believe that any payment was made by the Defendant to the Plaintiff. The cheque book was not disclosed on discovery, and was produced by the Defendant to his solicitors only one week before the trial. I do not know when the Defendant wrote on the stub 'For Mr. Lee's use', but I am not satisfied that the relevant cheque had any bearing on this case.

25. In my judgment, all the Plaintiff granted to the Defendant initially was permission to install a telephone and to store some tools. I find that the Defendant, taking advantage of a virtually helpless old man, thereafter without his consent erected wooden huts (a) and (b) and concreted the yard. Thereafter faced with a position he could not avoid, the Plaintiff with no alternative, allowed the Defendant to remain until his shipyard was built. His shipyard has been built and though asked to leave he has not done so.

26. What are the legal consequences of all this? It was pleaded in the Statement of Claim that the Defendant was a trespasser ab initio, and it is argued on behalf of the Defendant that even on the Plaintiff's case this is not so. I disagree. The Defendant's licence was merely to enter to install a telephone and store some tools and work. This he never purported to do. His entry was to construct a hut, and as such, he was a trespasser. In view of my finding, no question of estoppel case can arise. This was not a case when the Defendant was led into courses of action to his detriment by the Plaintiff's inaction. He was taking advantage of a weaker man. If I be wrong in my initial conclusion and on base licence was granted it has clearly been terminated. It was faintly argued that since an allegation to this effect was made for the first time in the reply rather than in the Statement of Claim, I should not allow the claim to succeed on this ground. I reject this argument. The purpose of pleading is to alert the parties to the issue to be raised and this was done.

27. It might be argued and indeed was that irrespective of what happened at the outset, the Plaintiff in fact granted the Defendant a licence to stay until his shipyard was built, which licence was terminated. In all the circumstances, I am by no reason satisfied that such a licence was granted, save as a fait accompli. If it was, it was terminated As Counsel for the Plaintiff conceded such a licence and its termination has not been pleaded but the Defendant has in no way been prejudiced, and I decline to allow the Defendant to succeed on such a technicality. In the result the Plaintiff is entitled to possession.

28. There is a counterclaim. The Defendant has undoubtedly done, at the request of the Plaintiff, certain electrical and painting work on the Plaintiff's home. According to the Plaintiff's wife, there was a discussion about payment for the work at which when asked what he would charge, the Defendant said 'nothing'. She said, if this were so, it would be better for him not to do any work, whereupon the Defendant said he would finish the work first and then would talk about money. Notwithstanding this conversation which I am satisfied took place, in my judgment having regard to all the circumstances the inference to be drawn is that the Defendant is entitled to be paid a reasonable sum for the work which has been done. But it is for him to prove his case and this he has signally failed to do. He has produced a number of invoices with little or no indication as to what they refer - an invoice for a painter (page 20 of P2) with no detail as to how it is made up (and the painter was not called) and in these circumstances although I am satisfied that some money is due, the Defendant has failed to prove how much. In the circumstances the counterclaim fails.

29. I should a that there was in the counterclaim a claim for gardening work was allegedly done by the Defendant's wife. This, even if proved, was clearly unsustainable in law and was expressly abandoned by the Defendant's Counsel.

30. Judgment:

31. Liberty to apply.

32. Plaintiff to have the costs of the claim and counterclaim.

33. Stay of execution provided notice of appeal is filed within 28 days, from today, and time is to run in the vacation.

Representation:

F. Eddis (H.H. Lau & Co.,) for Plaintiff

Y.C. Mok (P.H. Sin & Co.,) for Defendant