Pang Lai Yung v. Wong Hoi Lam

HCMP 1742/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1742 OF 2004

______________________

BETWEEN

______________________

Before : Mr Recorder B Yu, S.C. in Court

Dates of Hearing : 17-19 December 2007

Date of Judgment : 9 January 2008

______________________

J U D G M E N T

______________________

Introduction

1.The plaintiff claims possession of a piece of land in Taipo known as Remaining Portion of Section B of Lot No. 1299 in Demarcation District 8 (“the Land”).  The defendant claims that his father and step-mother were in adverse possession of the Land since about 1964 and that he has continued such possession.  He counterclaims that the plaintiff’s title to the Land has been extinguished under the Limitation Ordinance.  The plaintiff does not dispute that the defendant and her parents had made their residence on the Land during the period between 1964 and 1996 but disputes that that possession was adverse.  She also disputes that the defendant was in possession between 1997 and 2000.

The Relevant Facts

2.The Land is situated in Kam Tin and is accessible from Lam Kam Road by a slip road.  It has an area of about 8,000 square feet.  The registered owner of the Land since March 1950 was Cheung Tai Tseung Tso (“the Tso”) of which Madam Chung Kam Lin (“Madam Chung”) was the manager.  In 1978, the Tso was dissolved and all the properties of the Tso were vested in Madam Chung.  Madam Chung is the maternal grandmother of the plaintiff.  In August 1997, the plaintiff purchased the Land from her grandmother.  In the Defence, the defendant did not admit the plaintiff’s paper title to the Land.  This was no longer in issue at the trial.

3.The defendant was born in 1945.  His father was Wong Po [王 布].  His mother passed away when he was 3 years old.  Wong Po later married Leung Ho [梁好].  In 1952, Leung Ho gave birth to Wong Siu Yuk [王紹玉].  I shall refer to Wong Po and Leung Ho as “the defendant’s parents” and the four of them as the Wong family.

4.There is no dispute that from about 1965, the Wong family moved to Lot 1299B in DD8 (“Lot 1299B”) and erected a wooden hut on the land for dwelling and also built two chicken sheds.  Thereafter, the Wong family lived in the wooden hut and practised farming and the rearing of chicken for their living.  During the years, various acts such as applying for telephone and electricity connection and the planting of trees were carried out on the land.  It is unnecessary to set out the details.

5.In April 1966, the District Office, Tai Po granted approval to the erection and maintenance of 2 chicken sheds on Lot 1299B.  That approval was granted on the application of Leung Ho.  In the approval letter, the sheds were described as “existing structures” and were stated to be 12’ in length, 10’ wide and 12½’ high.  The approval was addressed to the Tso but Leung Ho’s name appeared as the occupier.  The approval was expressed to expire on 31 December 1966 but renewable.

6.In about June 1990, a portion of Lot 1299B was resumed by the Government for Lam Kam Road improvement.  Compensation was paid to the Tso in the sum of HK$37,050 and ex-gratia allowance for crops grown on the resumption portion was released to Wong Po on 29 June 1990.  The Land is the t remaining portion of Lot 1299B after resumption.

Was possession adverse?

7.In order to succeed on a claim of adverse possession, it is necessary to prove both possession and the requisite intention to possession, the burden being on the party claiming: Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498, 500D.  There is no dispute about the defendant’s factual possession.  The question in this case is whether the defendant had the requisite intention to possess or animus possidendi.  The intention to possession requisite for adverse possession:

“	involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.”

(per Slade J in Powell v McFarlane (1979) 38 P & CR 452, 471-472, applied in Wong Tak Yue v Kung Kwok Wai & Another (1997-98) 1 HKCFAR 55 at 68)

8.Adverse possession has been described as “possession as of wrong”: Wong Tak Yue v Kung Kwok Wai (1997-1998) 1 HKCFAR 55 at 68H.  Lord Millettt said in Ramnarace v Lutchman [2001] 1 WLR 1651 at 1654 paragraph 10 that possession is not normally adverse if it is enjoyed with the consent of the true owner.

9.In the present case, the defendant adduced no evidence to prove that when Wong Po and Leung Ho occupied the Land, they had the intention to exclude the owner with the paper title.  The defendant was simply unable to say – because he claims he had no knowledge – whether his parents had a licence or a tenancy from the Tso or Madam Chung.

10.The plaintiff has, however, produced some evidence that the occupation by the Wong family was with Madam Chung’s permission, and more specifically, by way of tenancy.

11.First, the plaintiff produces a document which is on its face a tenancy agreement drawn up in Chinese between Madam Chung as landlord and Leung Ho as tenant.  This document is marked as exhibit P1 (“P1”).  The defendant made 3 points about P1: (1) he disputes its authenticity, (2) he points out that P1 does not bear the signature of Madam Chung and is therefore not an agreement; and (3) he puts in issue the relevancy of P1 since the document does not refer specifically to the Land.

12.Second, the plaintiff relies on the evidence of her mother in an affirmation where she deposed to two occasions between 1991-1995 when she witnessed Leung Ho paying rent to Madam Chung at the latter’s home.  The plaintiff tendered this witness for cross-examination, but Mr Chong indicated that he did not wish to cross-examine this witness.

13.Further, Mr Chan pointed to certain facts, such as the obtaining of the approval in 1966 by Leung Ho from the District Office, and the fact that the defendants’ parents did not claim compensation for resumption of part of Lot 1299B, which he suggests entitle the Court to draw the inference that the occupation of the Wong family on the Land was with Madam Chung’s permission.

14.I shall deal first with the issues concerning P1.  This document states the identity card numbers of Madam Chung and that of Leung Ho.  It does not bear the signature of Madam Chung. It bears the Chinese characters 梁好 written in the position for the tenant’s signature.  P1 alsobears the signature of a witness who signed in Chinese as 張集雄 (“Cheung”). His identity card number was also given. The document purports on its face to be a tenancy agreement. The term of the tenancy was stated to be for 1 year from 1 January 1993 to 31 December 1993. Rent was $2,200 per annum payable by two instalments.  The subject matter of the tenancy was described as “禾田壹份共兩塊壹斗兩升”.  Clause 3 of the document stipulates that the tenant may use the hut for human habitation, the shed for chicken, the shed for pigeon and one shed for kitchen.  As I mentioned, one issue which arises is whether P1 related to the Land at all.

15.Mr Chan informed the Court that the expression “壹斗兩升” is an old Chinese system for measuring area, and that it is roughly equivalent to 8,000 sq ft. He also suggested that the reference to “禾田壹份共兩塊” could be a reference to the two sides of the field on the left and right of the slip road. The reference to the hut for human habitation and 2 sheds for chicken/pigeons would be consistent with the evidence. There was, however, no evidence that there was a separate kitchen, although some of the answers of the defendant may be interpreted to mean that there was a separate lavatory. I do not however consider that too much weight should be attached to the superficial discrepancy between the land as described in P1 and the state of the evidence. What is important is that there has been no suggestion that there was any other piece of land which could be the subject of this document. If P1 is authentic, there is little scope for doubt that it must relate to the Land.

16.I turn to the issue of authenticity of P1. The plaintiff has produced a transcript of a recorded conversation at a meeting in November 2004 at which Cheung admitted to her that the signature on the document was his, and that the identity card number was also his. He also admitted that he was signing as a witness to a tenancy agreement between Madam Chung and Leung Ho. Cheung has however made a witness statement in these proceedings in which he denied that the signature on P1 was his. It is apparent that at the time he made the statement, he was not aware that the conversation he had with the plaintiff in November 2004 was recorded. Cheung has declined to give evidence. The parties agreed that both his statement as recorded and his witness statement should be admitted in evidence, and that the Court should accord to each of them such weight as the Court deem fit.

17.In considering the weight to be given to the two inconsistent statements of Cheung, I must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence: see section 49(1) of the Evidence Ordinance. I start from the position that the defendant does not challenge the authenticity of the tape recording or the accuracy of the transcription. The responses that Cheung gave to the plaintiff’s queries at the meeting in November 2004 were spontaneous and unequivocal. He also confirmed that the identity card number ascribed to him was indeed his. No reason has been put forward why the spontaneous and unequivocal response did not represent the truth, save for the subsequent inconsistent statement of Cheung. That statement (dated 17 October 2006 and before the plaintiff disclosed the tape recordings) asserted that at the time of the meeting he told the plaintiff that he could not be sure that the signature on P1 was his. It is obvious that that assertion is false and was made when he was unaware that the meeting had been recorded. No attempt was made by him to explain why at the meeting in November 2004 he had unequivocally confirmed his signature and that he was witnessing a tenancy agreement. In the absence of an explanation, his subsequent denial that the signature was his would, in my view, deserve to be accorded little or no weight.

18.In the circumstances, I am satisfied that I can rely on the statement by Cheung to the effect that he did sign as a witness to P1.  Although the defendant does not admit the authenticity of the document, Mr Chong for the defendant frankly accepted that he has really no basis for making any allegation of forgery.  The defendant has sought to raise a doubt as to whether Leung Ho had in fact signed the document.  He claimed that she was illiterate and did not know how to write her name.  He further relied on the fact that in an account kept by Leung Ho, she had used a chop to operate the account.  I do not think that the fact that Leung Ho used a chop to operate a bank account can properly ground an inference that she would not know how to sign her name.  It is apparent from the writing of the name on P1 that it was more of a writing out of a name than a signature.  In other words, whoever wrote that name needed to take his/her time and would be writing slowly.  It is not surprising that a person with such ability in the writing of his/her name would wish to use the more convenient method of using a chop to operate a bank account.  As to the defendant’s testimony that Leung Ho did not know how to write her name, I regret to say that I have such grave reservations about his credibility in general that I do not feel able to rely on his evidence on this score.

19.The defendant testified that he was in continuous occupation of the Land up to the date of the hearing.  I am satisfied that this is not true.  The defendant was successful in securing a flat in Shatin in public housing over 10 years ago.  It is quite evident that he had been living there with his wife and children and indeed had been using that address for correspondence.  After this fact was revealed, the defendant resorted to suggesting that he used the Land as his workplace.  Records from the Water Authority produced by the defendant himself showed that there was no consumption of water for the best part of 1998.  The defendant also admitted that there was no electricity consumption during that year.  He had to resort to incredible excuses to reconcile these facts with his assertion that he was living there or that he was using the Land in any substantial way.

20.I accept the plaintiff’s evidence that P1 was handed to her by Madam Chung when she purchased the Land.  It is slightly odd that Madam Chung did not explain to the plaintiff what the document was, but the document may be said to speak for itself.  The fact that P1 came from Madam Chung’s custody is also probative of its authenticity.

21.The defendant has chosen not to challenge the evidence of the plaintiff’s mother.  That evidence also goes to negative the defendant’s case that the possession was adverse.  In the circumstances, I am satisfied that P1 is a genuine document and that there existed a relationship of landlord and tenant between Madam Chung and Leung Ho at least in the early 1990s.  I find that the defendant failed to prove that the possession of the Wong family had been adverse.

22.The defendant has relied on the fact that P1 was not signed by Madam Chung.  Mr Chan suggested that this may be because the agreement was in duplicate and each party would hold one copy signed by the other.  This may or may not be the case; but there is probably sufficient from the fact that this document was in the custody of Madam Chung, and that she had been receiving rent from Madam Ho to establish that there was indeed a tenancy.  In any event, P1 constitutes an acknowledgement by Leung Ho that Madam Chung was the owner such as to start time running.

23.In the light of my findings, it is unnecessary for me to canvass the other evidence relied on by the plaintiff.  It is also unnecessary for me to consider the point of locus raised by the plaintiff in respect of the defendant’s counterclaim.

Conclusion

24.I would grant judgment in favour of the plaintiff for possession of the Land.  There is a claim for mesne profits, but no evidence has been adduced before this Court as to the value of the Land.  I will direct an inquiry as to the amount of damages the plaintiff has suffered by reason of the defendant’s occupation from date of death of Madam Leung Ho on 3 January 1996 to the date when the plaintiff recovers possession.  I dismiss the counterclaim.  I make an order nisi that the plaintiff shall have the costs of the action and of the counterclaim, to be taxed if not agreed.

Mr Kenneth C L Chan, instructed by Messrs Paul Kwong & Co, for the plaintiff

Mr Matthew C S Chong, instructed by Messrs Tam, Pun & Yipp, for the defendant