Lam Wai v. Tam Sau Hing & Wong Fook

HCA004090/1984

BETWEEN

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Coram: Deputy Judge Nazareth in Court.

Date of Hearing: 24th - 25th April 1985.

Date of Delivery of Judgment: 2nd May 1985.

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JUDGMENT

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1. The plaintiff is the owner of a small building at 24 Catchick Street, which was gifted to her in 1977 by her husband Chan Yin. She claims possession of the roof of the building, upon which there is a hut occupied by the two defendants. She says they were granted permission to occupy the roof by her husband Chan Yin only as licensees at will and that they now wrongfully refuse to go.

2. The defendants resist the plaintiff's claim upon two grounds. They say first, that the plaintiff's husband, while he was the owner in 1957, gave them permission to build the hut, and they did so at substantial cost on the clear understanding that they might occupy it for as long as they wished. They deny they were granted permission as tenants at will and claim they were invited to erect and occupy the hut so as to displace drug addicts, and repeat that they were told they could stay as long as they wished. Second, the defendants say, by reason of such occupation since 1957 they are entitled to adverse possession.

3. Now this case has not been characterised by the recriminations and unpleasantness that it so often encountered in this type of case. That is no doubt because the parties are basically decent and not unreasonable people; and also because of the relationship between the parties. It goes back to 1932 when Chan Yin married his first wife, now deceased. She was accompanied by the 1st defendant, then a young girl of about six years, who came as a maid. In accordance with custom, she was acquired for the first wife who came from a wealthy family. About the time of the Japanese invasion in 1939, the family took refuge in Macau. There, after a few years, the lst defendant left to work on her own. They lost contact until one day the lst defendant met Chan Yin on a street in Hong Kong many years later. By that time she had married the 2nd defendant and lived with him and their three children in Shaukiwan. Following her chance meeting, she occasionally called upon Chan Yin and his first wife, whom she addressed as aunt.

4. Chan Yin says that about 1957 the lst defendant came to see him about some problem she had with her Shaukiwan accommodation. She asked if she might live temporarily on the roof of No.24. Seeing her plight he gave her permission. Chan Yin denies that there were drug addicts in the place, that he gave permission for a hut to be erected and a fortiori that such a hut could be occupied for as long as the 1st defendant might wish. He also denies that he had anything to do with the 2nd defendant in giving permission.

5. The defendants' version is somewhat confused, and even a little contradictory. The 1st defendant admits she was looking for accommodation, her Shaukiwan's room being too small, and that she went to see Chan Yin and told him of this. Chan Yin, she says, himself offered the roof of No.24 and suggested that she might erect a hut. She was concerned about such a hut being demolished by the authorities, but says Chan Yin assured her that being on private property there was no such danger. She went on to say that no mention was made of whether she could stay temporarily or permanently.

6. In conformity with the Defence drafted for the defendants by some undisclosed friend who was a solicitor or connected with a solicitor, she claimed at first that the hut cost $15,000 in 1957. Later she said it cost about $5,000 initially and subsequently an additional $10,000 to re-erect when damaged by typhoon Wanda. She also added that if she had alternative accommodation, particularly public housing, she would promptly and happily move out. The reason she did not move out was because she and her husband were now old, she was not well, and they had no money.

7. The 2nd defendant says that Chan Yin told him in 1957 to move to the roof, to erect the hut and not to allow drug addicts there. He asked Chan Yin how long he could stay and says he was told as long as the building was not demolished.

8. When the hut was damaged by the typhoon, Chan Yin gave him asbestos sheeting to repair it. About 1980, in the course of a conversation about No.24, he claims Chan Yin told him to stay on and that No.24 was not to be demolished.

9. He conceded that his complaint is not that the plaintiff and her husband are wrong in telling the defendants to move out, but that they have not given the defendants enough time.

10. It is common ground that no rent has ever been paid for occupation of the roof.

11. I do not believe Chan Yin's claim that he never gave permission for the but to be erected and that he did not even know of it until after it had been built. Without some such erection, the defendants' family could not have lived on the roof. In my view he not only gave the defendants permission to live on the roof, but also to erect some sort of structure to provide shelter. The question, however, is whether the defendants are licensees at will, and I have no hesitation whatsoever in finding that they are. On the evidence they have clearly failed to prove on the balance of probabilities that they were given permission to remain as long as they wished or as long as the building remained undemolished (whatever might have been the effect of such a bare promise). On the contrary, it seems to me probable on the evidence, that the duration of their stay was not specifically discussed and that Chan Yin's assumption, if not also that of the defendants', was that they would leave when they found alternative accommodation, even if that might prove a long term eventuality.

12. As to adverse possession, it is not disputed that the defendants have been in occupation since 1957. However, on the evidence it is clear that they have been in occupation as licensees. No aspect of their occupation, as far as I can see, has been adverse to the title of Chan Yin or his wife. On the contrary when finally asked to move, in about 1982, the defendants applied for public housing and would have cheerfully left had they secured any. There is obviously no merit in the defence of adverse possession, and I dismiss it.

13. The plaintiff is clearly entitled to succeed. However after some 28 years of continuous occupation, I think that the defendants should be afforded some time within which to look for alternative accommodation and to move, notwithstanding that they were asked to move in 1982 and that the writ in this action was issued in June 1984. Of relevance also is Chan Yin's statement that it is not intended to put the roof to any use or to redevelop No.24. What he is concerned about is that at 73 he is getting old and considers that the matter should be sorted out for his family. He and his wife live in the United States and the defendants are no inconvenience or nuisance to him.

14. Although in her statement of claim, the plaintiff claimed damages or mesne profits, these were not pursued at the hearing.

15. For the foregoing reasons there will be judgment for possession to the plaintiff. I will hear the defendants and counsel for the plaintiff on the order I should make and on costs.

Representation:

Mr. Albert Tsang instructed by M/S. King & Co. for Plaintiff.

lst and 2nd defendants in person.