Wu Yee Pak and Another v. Un Fong Leung and Others

FACV No. 1 of 2004.

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2004 (CIVIL)

(ON APPEAL FROM CACV NO. 172 OF 2002)

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Between

	WU YEE PAK	Appellant
	WU YIU KI	(Plaintiff)
	in the capacity of the Plaintiff’s next friend appointed by Order to represent WU YEE PAK
	and
	UN FONG LEUNG	(1st Defendant)
	UN YING LUNG	(2nd Defendant)
	TANG TOK LUN and TANG CHAN LAM	Respondents
	(alias TANG CHAN NAM)	(3rd Defendants)

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Court:

Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Mr Justice Litton NPJ

Date of Hearing:	12 October 2004
Date of Judgment:	4 November 2004

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J U D G M E N T

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Chief Justice Li:

1.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

2.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

3.Before its resumption by the Government in 1997, the land then designated as Lot No. T213 R.P. in DD No. 93 Tak Yuet Lau, Lowu, New Territories (“the land”) was registered in the names of the respondents (jointly named as the 3rd defendants in this action) who inherited it from their great grandfather in 1952.  The appellant (the plaintiff in this action) claims that he and his family had been in continuous occupation of the land as trespassers since 1934 until its resumption in 1997.  He seeks a declaration that the respondents’ title to the land had been extinguished by virtue of s.13(1) of the Limitation Ordinance, Cap. 347 and he had acquired a possessory title thereto by reason of his adverse possession.  He also claims to be entitled to be registered as the owner of the land before resumption and to the compensation payable by the Government upon resumption.

4.As with many other cases of adverse possession, this case turns on facts which happened years ago and which, as a result of the faded memories of some witnesses and the absence of other witnesses, cannot now be easily and fully ascertained.  Yet the court had to do the best it could with what was available before it.  After a trial which lasted 4 days, the appellant’s claims failed before Yeung J and his subsequent appeal was dismissed by the Court of Appeal (Rogers VP, Burrell and Stone JJ).

Whether possession was adverse

5.Since possession by the appellant of the land through occupation is accepted, the key issue is whether his possession was adverse in that he was neither a tenant nor a licensee of the respondents.  The burden of proof admittedly lies with the appellant and the evidence he has to adduce must be compelling.  Powell v. McFarlane & another (1977) 38 P & CR 452; and Wong Tak Yue v. Kung Kwok Wai David & another [1998] 1 HKC 1.

Facts which were not in dispute

6.Some of the facts are not in dispute.  The appellant and initially his parents and then his own family consisting of his wife and seven children had started to occupy the land since 1934 until 1997.  Throughout the years of occupation, he had farmed on the land, put up fences, built and modified the houses thereon.  However, the respondents and their predecessor-in-title as registered owners had been paying government rent for the land until its resumption in 1997.  Prior to that, the Government had twice resumed parts of the land: in 1962 and 1995, paying a small compensation on the first occasion and $1.2 million on the second occasion to the respondents.  No objection was raised and no claim was made by the appellant on either occasion.

Facts which were in dispute

7.Although there was a suggestion from the respondents that the appellant’s mother was the servant of the respondents’ family and thus the appellant and his parents were permitted to occupy the land in 1934, there was no clear evidence from the appellant as to how he and his parents first came to occupy the land.  On this issue, the trial judge apparently did not feel confident to make any finding and none was made.

8.For the respondents, there was evidence that the appellant was either a tenant or a licensee.  Both the respondents’ sister and the first named respondent’s wife testified to the effect that the appellant’s wife had regularly until 1991 visited the respondents’ mother bringing farm produce and cash to the lady for permitting the appellant to stay on the land.  The first named respondent’s wife said this was done twice a year and the respondents’ sister said she saw this happening more than 10 times.  It was also alleged that the first named respondent’s wife had visited the land in 1974 when a potential purchaser was interested to buy the land, that on several occasions the appellant requested the respondents to write on his behalf to the District Office for permission to modify the houses built on the land to avoid flooding.  It was further alleged that in 1973 the second named respondent had asked the appellant to move out of the land but out of sympathy had allowed him to stay on upon the undertaking that the appellant would move out when his financial condition had improved.  This did not happen.

9.On behalf of the appellant, a total of six witnesses including himself, his wife and a village representative gave evidence. Apart from confirming the fact that the appellant and his family had been occupying and farming on the land since the 1930s, the main thrust of the evidence adduced by the appellant was his denial of knowledge of the respondents and their family, of ever meeting the first named respondent’s wife and of knowledge of the Government resumption of parts of the land in 1962 and 1995.  He alleged that the two resumptions related to some other land and not the land he had been occupying, although he accepted that he had been paid compensation by the Government for felling the trees on the land occupied by him.

The trial judges’ findings and conclusion

10.The judge took the view that the evidence adduced by both parties was not entirely satisfactory since the alleged events took place a long time ago; there was no documentary support for some of the allegations and some of the witnesses had obviously their own interests to serve.  However, having assessed all the evidence before him, the judge believed the evidence adduced on behalf of the respondents and did not accept the appellant’s evidence on the main issue: he found that in recognition of the respondents’ entitlement to the land, the appellant’s wife had indeed regularly visited the respondents’ mother and presented gifts and cash in return for being permitted to occupy the land.  The judge also found that the appellant must have been aware of the Government’s resumption of parts of the land in 1962 and 1995 and of the payments of compensation to the respondents.  The reason for dismissing the appellant’s claim appears in the judge’s conclusion:

“30.      The evidence as found by the court is inconsistent with the suggestion that the (appellant’s) possession of Lot No. T213 was adverse.  His occupation was blessed with the permission of (the respondents) and their predecessor-in-title.  (The respondents) and their predecessor-in-title had not been dispossessed, nor had they discontinued possession.  Their title over Lot No. T213 had not been taken away.

31.     Much sympathy I may have for the (appellant) and his family, his claim for adverse possession had not been made out.”

The Court of Appeal

11.Before the Court of Appeal, the trial judges’ findings on the evidence were attacked and submissions were made on what amounted to an acknowledgement under sections 23 and 24(1) of the Limitation Ordinance.  But the Court of Appeal found it unnecessary to deal with these statutory provisions and disposed of the appeal on the ground that they agreed with the judge’s findings and that the appellant had failed to discharge the burden upon him to show that his possession of the land was adverse.

The grounds of appeal

12.In this appeal, the appellant, now appearing by his next friend and acting in person, argues eight points which can be grouped into two broad grounds of appeal.  Both these grounds relate to the judge’s findings of fact:

(a)    specifically, the judge was wrong to hold that the appellant must have been aware of the Governments resumption’ in 1962 and 1995.  It is said that according to a report compiled in September 2002, i.e. after the judgment of the Court of Appeal, by a surveyor who examined the relevant government resumption plans, the land resumed in 1995 was not within the land occupied by the appellant.  The appellant seeks to adduce this report as fresh evidence; and

(b)    more generally, the judge was wrong to have accepted the evidence of the respondents and disbelieved the appellant’s witnesses.  In support of this ground, the appellant points out that the respondents were not able to provide information about the appellant’s family or to produce documentary proof that the respondents had intervened with the appellant’s occupation of the land.  It is submitted that the trial judge had generally misunderstood the relevant evidence and this had affected his analysis and findings of facts.

13.This new survey report cannot be admitted in evidence under the rule in Ladd v. Marshall [1954] 1 WLR 1489.  There is no satisfactory explanation as to why the report could not have been compiled before and adduced at the trial, the appellant having had the advantage of being represented by counsel both at the trial and in the Court of Appeal.  Apart from this, such evidence is not helpful on the issue whether the appellant had any knowledge of the resumptions in 1962 and 1995, let alone the ultimate and crucial issue which the judge had to decide, i.e. whether the appellant could satisfy the court by compelling evidence that his possession of the land was adverse.  All that the report seeks to say is that the area resumed in 1995 formed part (about 40%) of the original Lot No. T213, that the remaining area (about 60%) of that lot was resumed in 1997 and that the appellant was occupying 95% of this remaining area (i.e. the land in question) at the time of the 1997 resumption.  This is of little assistance to the consideration of the crucial issue in the case.  Further, the judge’s finding on the issue of knowledge (or the lack of it) of the previous resumptions obviously was not the main reason for rejecting the appellant’s claim.

14.As to the evaluation of the evidence, the trial judge had the benefit of hearing and observing all the witnesses and was in the best position to assess the accuracy and reliability of their evidence.  He had carefully evaluated all the evidence before arriving at his conclusion that the appellant had failed to prove that his possession of the land for all these years was adverse.  This was upheld by the Court of Appeal.  The appellant is faced with these concurrent findings of fact which this Court would not, as a matter of general practice, disturb unless there is some miscarriage of justice or violation of some principle of law or procedure.  Sky Heart Ltd v. Lee Hysan Co. Ltd (1997-98) 1 HKCFAR 318.  This is not the situation here.  We are not persuaded that the judge had misunderstood the evidence or was wrong in his analysis of such evidence.

Conclusion

15.For these reasons, much as this Court sympathizes with the appellant, this appeal must be dismissed with costs, there being no reason to depart from the normal rule that costs should follow the event.

16.Counsel for the respondents asks for costs to be paid by the next friend on the ground that it is he who has been advising the appellant.  The appellant is now in his advanced years and had suffered a stroke a few years ago.  He is represented by his son as next friend pursuant to a court order and since he is obviously unable to attend court, his son and granddaughter appear on his behalf.  I do not think the Court has the power to make the order as requested by the respondents, nor is it proper to do so in the circumstances of this case.

Mr Justice Ribeiro PJ:

17.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Litton NPJ:

18.I agree with the judgment of Mr Justice Chan PJ.

Chief Justice Li:

19.The Court unanimously dismisses the appeal with costs.

(Andrew Li)	(Kemal Bokhary)	(Patrick Chan)
Chief Justice	Permanent Judge	Permanent Judge

(R A V Ribeiro)	(Henry Litton)
Permanent Judge	Non-Permanent Judge

The appellant by his next friend and in person

Mr Leon Tang (instructed by Messrs Lawrence K Y Lo & Co.) for the respondents