Kwan Tung v. Lam Ma-tang and Another

DCCJ008139/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 8139 OF 1975

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Coram: B.L. Jones, D.J.

Date of Judgment: 6 December 1997

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JUDGMENT

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1. By a written agreement dated the 4th February 1950 the plaintiff agreed to purchase the lease of Section B, Lot 151 Cheung Chau New Territories, which is crown land, for a consideration of $400. An assignment of the lease was not however executed until the 2nd November, 1976. Under the assignment the plaintiff acquired the land for a term of five years from the 7th November, 1944 at a rent of $1.13 per annum renewable on the same terms until the termination of the crown lease. Receipts were produced by the plaintiff evidencing the fact that the rent has been paid up to date.

2. At the time of purchase the plaintiff said the land was vacant with upon it the walls and remains of a burnt out building. Subsequently the plaintiff has inspected the land each year. The position remained the same until 1955 when the plaintiff observed that several people were raising pigs on the land. One person was KWONG Ma-hong who is the father of 2nd defendant. Although he queried their right to use the land the plaintiff took no action to evict the occupants. In fact the occupants disputed that the plaintiff was the owner. Between 1956 and 1960 huts were erected on the land.

3. The plaintiff agreed that he has never lived on the land and has at no time erected a fence or attempted to enclose the land. The plaintiff has been aware of 1st defendant presence on the land since 1960 and that of 2nd defendant for the past two years. In 1975 two houses were built on the land in place of the previous structures and are now occupied by the two defendants with their families. 1st defendant claimed that he has lived continuously on the land since 1959. Prior to that time his parents lived there having moved in 1942 and his mother continued to do so until her death ten years ago. 1st defendant lived in China before 1959, but visited his mother each year until that time for a period of four months. 2nd defendant said that he was born in Cheung Chau and has lived all his life on the land where the present houses are situate. 2nd defendant's brother Kwong Ngor gave corroborative evidence. Both defendants said that no one had given permission to them to live on the land nor had anyone made any demands for the rent. Mr. Fung Pak Tai the vice-Chairman of the Cheung Chau Rural Committee has known 1st defendant since 1960 and 2nd defendant since 1957. Prior to 1975 he saw pig styes and 40-50 wooden huts on the land with people living there. He discovered that both defendants had been living on the land ten years ago. Mr. Kwong Hau gave evidence that he has lived all his life in Cheung Chau; that 1st defendant always lived on the same plot of land and that 1st defendant's mother lived at the same place and did so before the Japanese occupation. He said that he has known 2nd defendant since he was child and that he has always lived on the land in question. He corroborated 1st defendant's evidence that he went to China in 1941 and thereafter paid visits to his mother in Cheung Chau. I formed a favourable impression of both Mr. Fung and Mr. Kwong and I accept their evidence.

The plaintiff alleges in this action that the defendants in about November 1975 trespassed on his land and built a new structure. He seeks inter alia an order for possession. By their defence the defendants dispute the plaintiff's title, but in the alternative claim that it has been extinguished by the provisions of the Limitation Ordinance.

4. In this case I am satisfied that the plaintiff has proved his title to the land.

5. Section 7(2) of the Limitation Ordinance provides that:-

6. I have no hesitation in accepting the evidence of 1st defendant that he has lived on the land since 1959 and that his mother had been there during the Japanese occupation. Upon the mother's death her interest in the land was transmitted to 1st defendant. The time during which the mother was in possession is accordingly available to 1st defendant. There was therefore a continuous adverse possession for over 20 years. I further accept the evidence of 2nd defendant that he has lived on the land throughout his life which again is longer than the statutory period. I reject the plaintiff's evidence that the land was vacant at the time of purchase in 1950. The occupancy by the defendants and their predecessors has clearly been open at all times to the exclusion of the plaintiff and I am quite satisfied that the plaintiff had knowledge of their possession. The plaintiff said that he purchased the land to build a residence, but he has never occupied the land nor taken any steps to reside there. Such occupancy by the defendants was inconsistent with any intention that the plaintiff may have had to build a residence for himself. The present houses were built on the land in place of the previous structures after the expiration of the statutory period from the date that it accrued to the defendants.

7. I find that both defendants and their predecessors were in adverse possession at the time when the plaintiff purchased the land in 1950. Such adverse possession has not ceased with the result that section 13(2) of the Limitation Ordinance does not apply. As a result the plaintiff's action against the defendants is statute barred so that his title is extinguished. The plaintiff's claim is therefore dismissed with costs to the defendants on the upper scale. The defendants costs will also be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation:

Mr. Wally Yeung inst'd by Gallant Y.T. Ho & Co. for plaintiff.

Miss Johnson of Peter Mark & Co. for 1st and 2nd defendants.

(1) (1904) 23 N.Z.L.R. 660.