Leung Hon Wai and Another v. Fung Pak Tai and Another

[English Translation – 英譯本]
cacv 86/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 86 of 2007

(on appeal from DCCJ NO. 3433 of 2004)

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BETWEEN

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Before: Hon Cheung JA, Yuen JA and Yam J

Date of Hearing: 11 January 2008

Date of Judgment: 11 January 2008

Date of Reasons for Judgment and Judgment on Costs: 16 January 2008

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REASONS FOR JUDGMENT AND
JUDGMENT ON COSTS

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Hon Cheung JA (giving the reasons for judgment and judgment on costs of the Court):

The facts

1.The present case involves disputes over Lot No. 361 in Cheung Chau (“the Lot”).  By virtue of a Block Crown Lease dated 1905, the Lot is a communal property of the residents of the Cheung Chau District.  They have placed a statue of the Earth God on the Lot for the residents of the Cheung Chau District to worship.

2.On 18 November 1974, the Outlying Islands District Office appointed 9 members of the Cheung Chau Rural Committee, namely the 1^st to 9^th Defendants to the first instance proceedings herein, to be managers of the Lot.

3.The plaintiffs commenced legal proceedings against the 9 defendants.  The plaintiffs alleged that their ancestors, families and themselves had been residing on the Lot for over 80 years.  They sought the following court orders:

(1)   that the 1^st and 2^nd plaintiffs were the registered owners of the Lot;

(2)   that the defendants be prohibited from taking up further terms of office of the managers of the Lot and managing it in any capacity.

4.By the time the plaintiffs filed their claim against the defendants, all the defendants except the 6^th and 7^th defendants had passed away.  The 6^th defendant also passed away subsequent to the trial of the present case in the District Court.

5.The 6^th and 7^th defendants had filed a defence and counterclaim.  In their Re-amended Defence, the 6^th and 7^th defendants pleaded that the plaintiffs occupied the Lot unlawfully, and denied that the plaintiffs had adverse possession of the Lot.  Paragraph 12 of the Counterclaim pleaded as follows:

Without the consent of the 6^th and 7^th defendants or any authorized person, the two plaintiffs trespassed on and occupied the Lot unlawfully, thereby depriving the owners of the lawful use of the Lot and causing loss and damages (damages to be assessed).

6.The two defendants sought the following relief:

(i)     right to possession of the Lot;

(ii)    damages (to be assessed) for trespass on and occupation of the Lot from the date of trespass to the date of delivery of possession;

(iii)   interest on the above damages;

(iv)   costs.

7.The case was heard before District Judge Chow, who in the end dismissed both the plaintiffs’ claim and the defendants’ counterclaim.  The Judge’s reasons for decision are set out below:

The 1^st plaintiff conceded at the hearing that his family and himself have unlawfully occupied Lot 361.  As their claim for adverse possession is dismissed, they have no right to continue to occupy Lot 361.  As the managers of Lot 361, the 6^th and 7^th defendants have the right to possession of Lot 361.  This is not a right conferred by the court, and therefore they need not apply to the court for the right to possession of Lot 361.  Their counsel indicated in the written submission that they are no longer claiming damages against the two plaintiffs for unlawful occupation of Lot 361.  Their counterclaim is dismissed accordingly.

8.The 7^th defendant has obtained leave from this court to appeal against Judge Chow’s decision to dismiss the defendants’ counterclaim.

Issue on appeal

9.The issue involved in this appeal is a narrow one.  Mr Au-yeung, counsel for the 7^th defendant, submits that Judge Chow should not have dismissed the counterclaim but should have granted the 7^th defendant an “order for possession” (“土地管有命令”) so that he could proceed to apply for a “writ of possession” (“管有令狀”) to enforce the judgment.  On the other hand, Mr Chan, counsel for the 1^st plaintiff, argues that Judge Chow’s decision was correct because the defendant had not asked him to make an order for possession.

Our opinion

10.The legal term “管有” originates from the English word “possession”, which means effective control or occupation.  In a wider sense, “possession”, as applied to real property, denotes occupation under any title, whether freehold or leasehold, or even without title: Halsbury’s Laws of Hong Kong, Vol. 16 on “Land”, para. 230.0064.  On the face of them, “right to possession” and “order for possession” are of course different concepts: the former refers to a possessory interest, whereas the latter refers to an order for possession made by the court.  However, the court cannot simply take the literal meanings as the basis of determining a case.  The court must ascertain the true meaning of words in light of all relevant factors, because the court is not dealing with academic issues but is resolving real-life disputes.

11.In the present case, the defendants took the view that the plaintiffs had occupied the Lot without their consent and infringed upon their possessory right over the Lot.  Hence their counterclaim which sought the relief of the “right to possession of the Lot”.  Although the Counterclaim did not expressly seek an “order for possession” as relief, it is apparent from an overview of their defence and counterclaim, in particular the prayer for relief, that the defendants’ sole objective in seeking the “right to possession” was actually to seek an “order for possession” from the court.  In his final submission, Mr Au-yeung, counsel for the defendants, asked Judge Chow to allow the defendants’ counterclaim and make an order for “the return of the Lot” to the defendants.  This in effect was obviously asking the court to grant an “order for possession” to them.

12.With respect, it is difficult to understand Judge Chow’s reason for refusing to grant relief.  In our view, even if the defendants’ right to possession of the Lot stemmed from their appointment on 8 November 1974, it does not follow that the court need not grant substantive relief to them.  Given that Judge Chow held that the defendants were the managers of the Lot and had the right to possession of the Lot, the basis of the defendants’ counterclaim had been established.  At the same time, Judge Chow ruled against the plaintiffs on their claim of adverse possession of the Lot and held that they were still occupying the Lot without authority.  This being the case, if the court did not grant an “order for possession” to the defendants, how could they lawfully exercise their right to possession of the Lot?  Would the defendants have to commence fresh proceedings in order to obtain substantive possessory interest over the Lot?

13.We fail to see any valid or solid reason why Judge Chow did not grant an “order for possession” to the defendants so that they could then apply for a “writ of possession” to stop the plaintiffs from unlawfully occupying the Lot any further.  In our judgment, the grant of an “order for possession” by the court to the defendants was the only relief which enabled them to assert their legal interest.  We are of the view that Judge Chow’s decision was wrong.

Conclusion

14.We allow the appeal and quash Judge Chow’s decision on the counterclaim.  We grant an “order for possession” to the 7^th defendant.

Judgment on costs

15.We order that the 1^st and 2^nd plaintiffs pay costs of the present appeal, the trial (in whole and not ⅘) and the application for leave to appeal.

16.The plaintiffs’ objection to the appeal is in our view unsubstantiated.  We therefore order that the plaintiffs do pay the 7^th defendant’s costs of the appeal on an indemnity basis.  We also order that the 1^st plaintiff’s own costs be taxed in accordance with the Legal Aid Ordinance.

Mr Kenneth Chan, instructed by Chin & Associates, for the 1^st plaintiff.

The 2^nd plaintiff absent and unrepresented.

Mr Herbert Au-yeung, instructed by Chan & Chuk, for the 7^th defendant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.