Tang Sing Yu and Others v. Tang Tat Kwong and Others

HCMP1466/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1466 OF 1999

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BETWEEN

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Before : Hon Tang J in Court

Dates of Hearing : 14-16 September 2004

Date of Judgment : 8 October 2004

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J U D G M E N T

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1.The plaintiffs are the registered owners of Lot No.337 in D.D. No.5 in Tai Po Tau Village, Tai Po, New Territories.  They claim possession against the 1^st defendants in respect of a portion of Lot 337 being the area marked TS2 and TS3 and coloured green on the plan at bundle A38 (the land).  The same areas are coloured yellow and green respectively on the plan at A180.

2.The 1^st defendants comprises three individuals, namely, Tang Tat Kwong, Tang Kee and Law Wah.

3.I am no longer concerned with Law Wah.  The claim against Law Wah related to a different part of Lot 337, a structure erected at the uncoloured rectangle at A180.

4.Tang Tat Kwong is the son of Tang Kee, deceased.  By order of Master J Wong dated 8 April 2002, Tang Tat Wai was appointed to represent Tang Kee’s estate for the purpose of this proceedings. 

5.For convenience sake, I shall refer to Tang Tat Kwong as D1.  It is D1’s case that Tang Kee (“TK”) was a squatter and that after TK’s death D1 continued as such.  There is no dispute that TK had been in possession of the land since the 1960s.  If TK had occupied the land as a squatter, on the evidence available to me, a case of adverse possession for the requisite 20 years’ period would have been established and the plaintiffs’ title extinguished.

6.It will assist the understanding of the claim if I trace the devolution of title to the plaintiffs.  I think I can start in 1935.  By succession dated 15 May 1935 Lot 337 became vested in Tang Chim Shi as trustee for Tang Yuet Hung and Tang Kam Cheung.  Tang Kam Cheung is the father of the plaintiffs.  Tang Yuet Hung is his elder brother.  Tang Yuet Hung has no sons.  By a Deed of Gift dated 20 April 1995, Lot 337 was gifted to Tang Sing Yu, Tang Wing Tai, Tang Wing Cheung, Tang Wing Choy as tenants-in-common in equal shares.

7.By an assignment dated 20 February 1997, Tang Wing Tai assigned his quarter interest to Tang Wing Choy.

8.The plaintiffs are Tang Sing Yu, Tang Wing Cheung and Tang Wing Choy.

9.The owners of Lot 337 were or are indigenous villagers residing at Tai Po Tau Village.  In particular, Tang Kam Cheung and his family resided at No.37 Tai Po Tau Tsuen and his brother Tang Yuet Hung lived nearby.

10.Lot 337 is approximately 300 metres away from No.36 Tai Po Tau Tsuen.  It is situated on a gentle slope but within easy walking distance.

11.Three witnesses were called on behalf of the plaintiffs, first, Tang Sing Yu, the first named plaintiff, his mother Liu Tim Ho (PW2) and lastly Tang Tit Heung (PW3), the village representative of the Tai Po Tau Village.  Tang Kam Cheung has not been called because he is old and unwell.

12.D1 was the only witness called on behalf of the defendants. 

13.According to PW2, there were originally several chicken sheds on Lot 337.  And that in the early 1960s, her husband let one of the chicken sheds to TK on an oral tenancy at the rent of $30 per year.  According to her, the chicken shed was situated at the area coloured yellow at the plan at A180 (the yellow area) but that in about 1965 TK demolished the original chicken shed and built a new corrugated iron and stone structure in its place.  Later TK extended the structure by building on the area coloured green on the plan at A180 (the green area). 

14.She said that in 1970s after the extension was built, the rent became $75 a year.  The rent was paid to her personally most years by TK at about the time of the Mid-Autumn Festival.  According to her, the rent was raised to $300 in 1990.  It is her evidence that the rent was continued to be paid up to and including 1998.  According to her, she had let the other chicken sheds to other people who had left at different times. 

15.The evidence of Tang Sing Yu was to similar effect, although according to him no rent was paid in 1998 and that in 1995 after he and his brothers became the registered owner of the property, he spoke to TK and wanted him to leave.  However, he said TK refused to do so unless he was paid compensation in the sum of $200,000.00 to cover his removal expenses and also to compensate him for structures he had built on the land.

16.This is a case which largely turns on credibility.  However in assessing credibility I do not rely entirely on the demeanour of the witnesses or my impression of them.  I also rely on what I considered to be the inherent probabilities. 

17.D1 was born in 1954.  He said that in 1960, one day his father took him to a dilapidated structure at the yellow area and said words to the effect that they were going to squat霸地.  D1 appeared to be an emotional man.  He broke down and cried on several occasions during his testimony, beginning when he gave evidence about this incident in 1960.  He said that he remembered that day very clearly because it was on that day that his knee was injured by a nail.

18.Thereafter from time to time he would break down and cried.  It would seem out of either devotion to his father or his feeling that he or his father had been cheated.  According to D1, his father never paid any rent nor indeed did he.  When asked questions about animus possidendi, he demonstrated that both he and TK would have passed the test laid down by the Court of Final Appeal in Wong Tak Yue v. Kung Kwok Wai and another (No.2) (1997-1998) 1 HKCFAR 55.

19.D1 said that his younger brother worked in a solicitors office firm, although he was unable to tell me exactly what was his brother’s job.  It also transpired that there was a hut which was built by TK and which was situated on Taxlord Lot 338 which bordered Lot 337.  According to D1 his father was involved in a claim against certain developers, who had presumably acquired Taxlord Lot 338, in 1997 as a result of which TK was paid a compensation of about $270,000.00.  He said that there was an agreement made at a solicitor’s office relating to this settlement.  It seems that by this settlement TK also gave up any claim to or interest in Taxlord Lot 338.  It then transpired that the structures which his father built also encroached on Taxlord Lot 338.  This was clearly shown on the plan at A180.  So in early 1999 armed with the requisite proof the developer demolished that part of the structure which was built on Taxlord Lot 338.  That more or less cut the structures in halves.  Thereafter D1 ceased to live there, although he said occasionally he would return, even to sleep there.

20.In recounting this evidence, D1 also broke down and cried saying that he felt he had been cheated.  He said he had no choice but to allow the developers to demolish the structures but not before he had instructed surveyors.  The surveyors’ conclusion was that the structures built by TK had trespassed onto Taxlord Lot 338 as well. 

21.According to D1, he told me that his father never asked for any compensation from the plaintiffs in respect of the land.  I do not accept his evidence.  I think it is highly unlikely, especially after TK was aware that the structures which he built had to be demolished because approximately half of it was built on Lot 338.  I am not impressed by D1 as a witness.  I do not believe he was telling me the whole truth.  In particular, I find it difficult to believe and I do not believe that TK told D1 in 1960 that he was霸地. 

22.On the other hand there is much in the evidence of the plaintiffs which I find difficult to accept.  In particular, I find it difficult to accept the evidence that rent was paid up to and including 1997.  I do not believe rent was paid in 1998 either.  If rent had been paid, I find it difficult to believe that at least after 1995 no rent receipt would have been issued.  In this regard I note that in relation to the structure which was at one time occupied by Law Wah, rent receipts were issued, it seems, starting from 1 May 1995.  At that time the tenant was Wong Hong.  It was said that that portion of Lot 337 was under the management of Tang Yuet Hung.  Whatever might have been the position before 1995, I find the coincidence in time (the Deed of Gift was dated 20 April 1995) to point to the fact that the rent receipts were issued by the plaintiffs.  

23.PW2 gave her evidence reasonably well especially relating to events of some time ago.  Thus, she was quite impressive when she spoke about the 1960s.  Her evidence relating to the later years is less impressive.  I find it difficult to believe that as late as 1998, D1 actually paid her rent.  By then, TK or D1 with the “success” of the claim for adverse possession in relation to the hut in Taxlord Lot 338, was highly unlikely to have offered to pay rent or be willing to pay rent in relation to Lot 337.  Indeed, I doubt whether any rent was paid at least since 1995.

24.PW3 was the village representative.  He was related to the plaintiffs.  However, how closely he was related to them was not clearly explored.  But one would expect people in the village to be more or less related to one another.  It was said that because of that he had reasons not to tell the truth.  His evidence was brief.  Basically he said TK was a friendly person and that they were acquainted.  That does not surprise me since TK lived in the neighbourhood for over 30 years.  He said that TK told him that he was the tenant of Yuet Hung (meaning Tang Yuet Hung) and that he used the land to carry on the business of roast meat.  According to D1 some work relating to roast meat was carried out by TK but on Taxlord Lot 338 only. 

25.I find PW3 a reliable witness.  As I have said, his evidence was brief.  There was no exaggeration or embellishment.  Exaggeration and embellishment are very often indications of a biased witness.  I find what he said to be credible and probable.  After all, TK was living more or less in their midst and in casual conversation it was quite natural for TK to say where he was living or doing and in so saying mentioned that he was the tenant of Yuet Hung.  Now, Mr Chan who appeared for D1 said that since according to the plaintiffs Lot 337 had been informally divided between Yuet Hung and his brother and that the yellow and green areas occupied by TK were on the upper half of Lot 337 which belonged to Tang Kam Cheung, TK had no reason to say that he was the tenant of Yuet Hung.  This is something that I have taken into consideration but I do not think that this makes me doubt the evidence of PW3.  Yuet Hung was the elder brother, Lot 337 was registered in his and his brother’s name, I am not surprised that TK should say that he was the tenant of Yuet Hung.  

26.It is clear from the evidence of PW2 that the owners of Lot 337 were not rich.  They were small land holders.  Apart from Lot 337 and they owned Lot 339.  So far as Lot 339 was concerned there were lychee trees and not much else.  On Lot 337 they could grow sweet potatoes and sometimes raised chicken there.  There were two other small pieces of paddy which she and her husband farmed but they were not enough to support their family and they were tenants of other paddy fields.  Lot 337 is not a large lot.  It was third class land, approximately 0.08 of an acre in size.  Lot 339 (also 3^rd class land) has an area of 0.25 acres.  As for the other two other pieces of paddy, one is first class with an area of 0.07 of an acre and the other second class with an area of 0.01 of an acre.  So the owners were small land owners who were unlikely to neglect their land or be not eager to turn some profit from their land.  Also on the evidence it would appear that the crown rent was paid on a more or less five yearly basis.  So they would not have forgotten that they owned Lot 337.  I note that D1’s evidence was that TK had encroached on Taxlord Lot 338.  But Lot 338 was a taxlord lot and might have been owned by an absentee landlord, and a big land owner at that.  So I do not think that even if, TK and D1 were indeed trespasses on Taxlord Lot 338, they were necessarily trespassers on Lot 337.

27.Moreover, it is the evidence of D1 that towards the end of the 1960s or the early 1970s another house or hut was built on Lot 337.  That was the structure in relation to which a rent of $260 per month (in 1995) was payable by Wong Hong.  And that was the structure in relation to which the plaintiffs claimed possession against Law Wah.  So even taking D1’s case, as early as late 1960s or early 1970s, the owners of Lot 337 went to the expense of building a structure on Lot 337 and apparently, let that structure for rent.  This structure is only a matter of feet away from D1’s structures.  I believe it is improbable that TK would have been allowed to use the land without any payment.  

28.I am of the opinion that TK entered into possession of the land as tenant.  In this respect, I accept the evidence of PW2 and PW3.  The probabilities also support such a view.  $30 in 1960, to a person in the circumstances of PW2, was not an insignificant sum.  And compared to the back-breaking work of trying to grow sweet potatoes on land which according to D1 was rock solid, it might have been quite attractive.  On the balance of probabilities I find that TK entered the land as a tenant at an annual rent of $30.  I also accept PW2’s evidence that the rent was raised to $75 a year some time after the extension was built.  And that starting from 1990, TK paid her $300 instead of $75 a year. 

29.I also accept the evidence of PW3 when he confirmed the evidence of PW2 that there were other chicken sheds at Lot 337 in the 1960s occupied by other people.

30.In coming to my view on credibility I also took into consideration that when this action was commenced (under O.113) it was supported by an affirmation of Tang Sing Yu dated 6 March 1999 and this was said by him :

“3.  On divers dates unknown to the Plaintiffs, the 1^st and 2^nd Defendants have taken occupation of the Property without the consent or knowledge of the Plaintiffs.  By reason thereof, the 1^st and 2^nd Defendants have trespassed the Property and are still trespassing the Property.

4.   The Plaintiffs through his Solicitors Messrs. Leung Kin & Co., did serve several notices to quit all dated the 5^th day of February 1999 on the Defendants requiring the Defendants to quit and deliver up vacant possession of the Property to the Plaintiffs.  There is now produced and shown to me marked “TSY-2”, 3 copies of the said letters.

5.   The Plaintiffs have been deprived of the use and enjoyment of the Property and has thereby suffered loss and damage.  The Plaintiffs does not know the name of any person occupying the Property other than the 1^st Defendants.”

31.The letters which were written on the plaintiffs’ behalf were addressed to TK and all occupiers and to Tang Tat Kwong and all occupiers respectively.  They were both dated 5 February 1999 in identical terms :

“      We act for Mr. Tang Sing Yu (鄧盛怡), the registered owner of the above property.

We are instructed that you have wrongfully taken possession of the property without our client’s consent and/or permission.  Your aforesaid act constitutes trespass on our client’s property and our client is entitled to evict you from our client’s property and claim against you for damages sustained thereby.

We hereby give you notice that you are required to quit and deliver vacant possession of the said property to our client within the next 7 days, failing which we have instructions to commence legal proceedings against you without further notice, and any costs and expenses thereby incurred will be borne by you.

In the meantime, we hereby reserve our client’s right to claim against you for all losses and damages sustained by our client as a result of your illegal occupation of our client’s property.”

32.This evidence of course undermined to a significant extent the credibility of Mr Tang Sing Yu.  If his evidence had stood alone I would not act on it.  Indeed in coming to my decision in this case, I have not relied on his evidence.  

33.However, as Mr George Lam submitted the burden of proving adverse possession is on D1.  I do not find D1 to be a credible witness.  I believe that TK entered into possession as a tenant, and D1 knew it. 

34.Section 12(2) of the Limitation Ordinance, Cap.347 provides :

“(2) A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Ordinance, be deemed to be determined at the expiration of the first year or other period, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of such determination :
Provided that, where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent.”

35.The claim in this action was commenced in March 1999.  Thus in order to succeed D1 would have to satisfy me that no rent had been paid since at least March 1979.  I am not satisfied on the evidence of D1 that no rent had been paid since March 1979.  Nor am I prepared to accept the untested witness statement of TK.  I believe it to be more likely that rent was continued to be paid on an annual basis up to and including at least 1990.  I believe more likely than not that no rent was paid after 1995 when TK was told by the plaintiffs that they wanted possession of the land.  The burden is on D1 to satisfy me that no rent had been paid since March 1979.  And I am not satisfied that that was the case.

36.I turn to the question of relief.  The plaintiffs claim possession against D1, on the basis that D1 had given up vacant possession.  The defence of D1 is that the title of the plaintiff had been extinguished by adverse possession.  On the facts I find it difficult to believe that vacant possession had been given up.  It is of course correct that since February or March 1999, the structures which used to be the home of D1 had been cut in such a way that it was no longer seriously habitable.  But I do not think D1 or his father at the time, had given up possession of the land.

37.I do not find the pleadings to be satisfactory.  However, I think in all the circumstances, I am able to give judgment in favour of the plaintiff for possession because the only substantial defence raised by the defendant was one of adverse possession.  Moreover, it seems to me that the plaintiffs have an unanswerable case for forfeiture against the defendants for impugning the plaintiffs’ title.  See for example paragraph 504 Halsbury’s Law of England Vol. 27(1).

38.In all the circumstances, I would dismiss D1s’ counterclaim, give judgment in favour of the plaintiffs for possession against Tang Tat Kwong and the estate of Tang Kee.  I also make an order nisi that the plaintiffs are to have the costs of this action against Tang Tat Kwong and the estate of Tang Kee to be taxed if not agreed.  The order will be made final in 21 days from the date of this judgment unless an application is filed earlier seeking a different order.

Mr George Lam, instructed by Messrs Ken Chiu & Co., for the Plaintiffs

Mr Richard Chan, instructed by Messrs Hermes Lui & Leung, for the 1^st and 2^nd named 1^st Defendants