Cheng Yau on v. Cheng Law Shi and Others

HCA012754/1994

1994 No. A12754

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Seagroatt in Court

Dates of Hearing: 25 & 26 November 1996

Date of Handing Down of Judgment: 13 December 1996

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J U D G M E N T

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1. House Lot 54 and Lot 171, a plot of land, in Nim Wan Village, New Territories, were, until the early 1950's, owned and occupied by the first and second Defendants, mother and son. The other houses and land plots in this village were owned and occupied by members of four clans who were themselves blood Kinsmen.

2. In 1989 the Government gave notice that it intended to resume occupation of the land in the village, and accordingly the occupants of the village were to be resettled in a new Nim Wan Village. Compensation was to be paid to the owners of the houses/land in the old village. Who were the occupiers of House 54 and plot 171 and were they entitled to this compensation? The first and second Defendants were still the legal owners but had long since ceased to occupy.

3. The Plaintiff says that when the first and second Defendants left the house and land in the mid-1950's, he moved his farming equipment and crops to be stored into the house No. 54, looked after it and performed all the traditional activities in relation to it. The land he said he cultivated with potatoes, peanuts and other vegetables right up to the time when the government resumed the land following a notice dated 31st March 1989 expiring on 30th June 1989. In support of his contention he called another occupant of the old Nim Wan Village who had himself claimed compensation for his occupancy of four houses. That evidence and the structure and activity of representation by some elders of the clan is significant.

4. The identified four elders had made payments of the Crown rent for the village properties over a number of years. Normally they were reimbursed such payments by the actual occupants of the properties. The owners/occupants of number 54 had not reimbursed for payments since in or about 1955. They had lost contact. Amongst those making payments of Crown rent for the houses, including No. 54, was the third Defendant. The attitude of this 'ad hoc' Committee of Elders was to accumulate a fund of compensation for the benefit of the descendants of the common ancestors, viz. the members of the four family units which occupied the village.

5. At one stage the witness Cheng Ping Kwan, who is more closely related to the third Defendant than he is to the Plaintiff, was persuaded to try and obtain succession as heir to the house and land in question himself. But he, and his associates were advised that this was not possible or was unlikely since the legal owners may well still be alive, though they had abandoned occupation. However when the Plaintiff indicated that he was to pursue a claim as occupier of the premises, Mr. Cheng Ping Wan, stood back, and neither supported nor opposed his claim. This attitude may well have been influenced by the Plaintiff's indication to Mr. Cheng Ping Wan, that he would give half of the compensation to the fund, which I understand to be the fund to which I have referred. The Plaintiff seems to have been accepted as having a valid claim by reason of his alleged use of No. 54 for storage and his cultivation of the plot 171. There is no direct knowledge of this but the father of Mr. Cheng Ping Wan had indicated such to his son. No other witness - and the whole village has been resettled - has been called to support the Plaintiff's claim. No evidence has been called to support even the barest of contentions by the Plaintiff that he actually used and/or occupied the respective land/house at any time since the early or mid-1950's.

6. The Plaintiff's own recollection of dates and events is extremely vague. I am bound to have to make some allowance for this in view of the lapse of time - we are dealing with a period of about 35 years and a further seven years have elapsed since the resumption by the Crown, and the resettlement.

7. The Plaintiff also occupied other properties, which were resumed by the Crown, and some of which he had moved into in the same circumstances which prevailed when he said he occupied No. 54 viz. by the vacating by the owner or previous occupant. He claimed compensation in respect of at least six lots. He did not make a claim in respect of the land which is the subject of these proceedings until 1994.

8. He was unaware of any Crown rent being paid in respect of No.54. He paid none. He was not asked for reimbursement in respect of the rent paid by the elders for that property. He never received any correspondence addressed to the first and second Dependants.

9. The evidence concerning the receipts for the Crown rent for properties including No. 54 (and land plot 171) is interesting but unhelpful to the Plaintiff's case.

10. It was the practice that someone would pay the Crown rents for the particular branch of the family and reimbursement would be made by the owner/occupier. Receipts were not kept in respect of the Plaintiff's properties because he belonged to another branch of the family. It was not surprising therefore that the witness Cheng Ping Wan was designated as the person to succeed to the ownership of No. 54 and claim the compensation for the benefit of the Fong. Such claim did not proceed because of advice from solicitors that there was insufficient evidence to prove that the registered owners (First and Second Defendants) had died.

11. The receipts for the Crown rent for certain years were provided. This witness says that at the request of the 3rd Defendant (also a member of the group of elders) he handed over the original of these receipts for the latter's consideration. The 3rd Defendant subsequently refused to return them.

12. I am satisfied on the evidence that although the group of elders acquiesced in the Plaintiff making the claim it was by reason of his promise to pay half of the compensation to the fund administered by the group of elders. They had not supported his claim. They merely decided not to oppose it, no doubt by reason of his promise in relation to the compensation. The Plaintiff did not say to this witness he had an interest in the property or that he had occupied it for 30 years. There is no reliable independent evidence to support his claim of unbroken occupation for 20 years or more. I do not accept his evidence for the reasons indicated.

13. I now turn to the counterclaim by the third Defendant which is also based on adverse occupation for not less than twenty years.

14. He, as I have already stated, is one of the group of elders representing a particular branch of the family. He is older than the Plaintiff and had therefore lived in the village for a longer period. One point is clear to me at the outset before I consider the evidence given. The group of elders of which he was a member cannot have considered that he had a valid claim equivalent to or better than the Plaintiff otherwise they would certainly not have acquiesced in the Plaintiff's claim. They would have proposed the third Defendant make a claim, or supported his claim.

15. According to the third Defendant he lived next door to No. 54. This does not accord with the Plaintiff's numbering of the houses. There is no evidence from any other source. I am left with a conflict. I do not find the evidence of either protagonist satisfactory on this aspect. The former occupants (1st and 2nd Defendants) are certainly closer in family relation to the 3rd Defendant than to the Plaintiff and the former says that he last saw them in May 1953 shortly before they left the village. He has not seen them since. He then put his farming equipment and fertiliser in their house, farmed the land and remained in occupation until the resumption by the Crown in 1989. He says he paid the rent on the house and land plot and there is support for this claim by Cheng Ping Wan but it seems to have been part of a policy of the group of elders to protect the interests of the legal tenants by making such payments and obtaining reimbursement if possible. The 3rd Defendant says that the rent was sometimes paid by the village chief Cheng Yiu Sang on his behalf whom he reimbursed.

16. I do not accept that such payments as the third Defendant made were made other than as part of the policy, adopted by the group, of ensuring rent was paid to protect the legal position of the registered owner/tenant of the respective property. The third Defendant was not, I am satisfied, regarded by the group as the long term occupier of the land. I think his acquisition of the bundle of receipts from Cheng Ping Wan was done to lend credence to his claim of adverse possession. He denied that Cheng Ping Wan ever had receipts for the rent paid.

17. He produced a family tree which seems to be agreed by all concerned.

18. Some of his evidence is strange. He said the first Defendant told him he could use the house and land if he wanted to and that she would not return. He says he did not understand the letter of 20th April 1989 to the second Defendant relating to representation for resumption of the house and land and yet he maintains he had been paying the Crown rent on the land in the absence of the owners. Furthermore he had received notice of resumption in respect of his own house and received compensation in 1989. I am quite satisfied that he knew the position in relation to the compensation entitlement in 1989. Had he been in adverse occupation of the premises and land as he says, he would have been supported in his claim by the group of elders and there would have been no question of Cheng Ping Kwan being nominated to apply for succession to the property. The third Defendant would have been the obvious candidate. I am satisfied that he was not in adverse possession in the circumstances and for the period he alleges.

19. The evidence of Cheng Ping Wan and the existence of rent receipts, together with the evidence of the third Defendant concerning the group of elders indicates that in effect the individual properties for which Crown rent was being paid, were being looked after for the benefit of the registered tenants and/or for the relatives or clansman of absent, untraced tenants. A form of "ad hoc" trust was formed in order to preserve the rights of tenure and, when it arose of compensation. The Plaintiff was not regarded as having obtained any personal right in respect of the property, nor was the third Defendant so regarded. The claim fails as does the counterclaim. Both are dismissed with costs. These will be judgment on the claim for the Defendants with costs, and on the counterclaim for the Plaintiff with costs.

Representation:

Mr. Eddie Yip, instructed by Lawrence Pang & Co. for the Plaintiff.

Mr. James Cheng, instructed by Raymond Chan, Kenneth Yuen & Co. for the 3rd Defendant.