Yu Tim Choi v. 俞東貴 and Another
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DCCJ 5580 OF 2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5580 OF 2006 _____________________ BWTWEEN
__________________________ Coram : H. H. Judge YUNG, District Judge Dates of Hearing : 26th, 27th, 30th & 31st March, 2009 Date of Handing Down of Judgment : 8th April 2008 2009 ___________________________ J U D G M E N T ____________________________ Adverse Possession 1.The Plaintiff is the registered owner of the subject lot of land. He inherited the subject land from his grandfather Yu Mau Pun. By these proceedings he is seeking an order for possession against the Defendants. They might not have pleaded their defences in an orderly way. This might have misled Mr. Cheung, counsel for the Plaintiff, to submit that their pleadings do not support their defence or reliefs sought in the counterclaim. On the careful reading of the facts pleaded, two alternative defences and bases of their counterclaim are in fact pleaded although these should have been set out much more clearly. 2.The central issue of the pleaded case of the Defendants is that his right of action is time-barred. Firstly they in fact alleged that the title of the Plaintiff or of its predecessor has been extinguished by adverse possession and was acquired by their father, Yu Tin, or even earlier by their grandfather, Yu Loi Hei. Alternatively, they themselves have acquired the title by adverse possession. It is common ground that the period of limitation is 20 years in this case. The Plaintiff took out this action on 10 November 2006. The ultimate question is therefore whether the right of action of the Plaintiff or of his predecessors in title, Yu Mau Pun through whom he claims has accrued before 10 November 1996. It would be convenient to look at the issue at three stages, before the death of Yu Loi Hei, taking over possession by Yu Tin, taking possession by the Defendants. Facts Pleaded in Support of Adverse Possession 3.Each of the Defendants was seeking, inter alia, a declaration for possessory title solely to himself. Despite that the Defendants assured me that there is no conflict of interest between them in this matter,. They file separate defences and the facts pleaded therein to support their case of adverse possession can be summarised as follows:
Evidence 4.The history of occupation of the occupation and possession of the subject land by Yu Tin is recounted by the Defendants, his two sons. Their combined version is as follows. Well before 1926, their great grandfather (Yu Pak Kun ) and his two brothers, Yu Po Hong and Yu Mau Pun (the Plaintiff’s grandfather) jointly occupied and was in joint possession of the subject land and other lots of land in the same locality. Yu Pak Hong died without any issue. Yu Mau Pun’s son, Yu Ying (the Plaintiff’s father), left the subject land to manage a shrine and did not return to live on the subject land. Thereafter the Defendant’s grandfather and his descendants have been living there. As to the other lots of land, they have been occupied by Yu Loi Hei and his descendants for farming and other purpose. Yu Loi Hei died in 1943 and had been living on the subject land all along. After his death in about 1943 Yu Tin had been living on the subject land since birth paying the Crown Rent. In 1960, when the family decided to pull down the house and to build a new one, they applied to have electricity supply connected to the house. Yu Tin died in 1999. 5.There were court actions between the Plaintiff and Yu Tin over the dispute in title of other lots of land. In one of these actions, Yu Tin sought a declaration of possessory title by adverse possession in respect of one lot of land registered to Yu Mau Pun. In an affirmation by filed in court in that action, Yu Tin gave an account of the history which is not quite the same as that recounted by his sons, the two Defendants. His account was that to quote:
6.The conspicuous divergencies of the two accounts is who the great grandfather of the Defendants was, Yu Pak Kun or Yu Po Hong and in which year Yu Loi Hei passed away, 1943 or 1932. These discrepancies did not affect the issue in this case. I prefer the account of Yu Tin who should have a better knowledge and memory of who his grandfather really is and of the year of his own father’s death. Their inaccurate account of on these two points by itself should not be taken against the credibility of the Defendants in other matters. 7.The Plaintiff’s account is fundamentally different. The Defendants and other members of the family were in possession or occupation as licensees not before he left for France in 1965. 8.The Plaintiff gave evidence that when he was 13, his father told him about the land owned by Yu Mau Pun. His father’s account was that it was his father and mother who lived in the house on the subject land before moving to the new house in another village where the Plaintiff was born. After his father passed away in 1945, he checked from time to time the condition of the land of Yu Mau Pun, including the subject land. He remembered that the house was vacant and unoccupied. Later in 1965 before leaving for France, he left the land in the care of the village representative, Yu Ting Ki and handed over to him the Crown Rent payment record for settlement. He did not return to Hong Kong until 1983. Then Yu Ting Ki informed him that he had arranged for a local villager named, Yu Tin, to look after the land. The Plaintiff had no objection. 9.In about 1989 the Plaintiff received a letter from the Government about compensation for the resumption of one of the lots of land registered in name of Yu Mau Pun. He believed that it must be the village representative who informed the Government as to whom it should contact and whereat. In 1990 the Plaintiff came to Hong Kong to deal with the matter. The government resumption started the dispute between the Plaintiff and Yu Tin. Yu Tin had different stages took two points, firstly that he himself, and not the Plaintiff, was entitled to succeed to the estate of Yu Mau Pun, secondly he had acquired a possessory title to the lot of land to be resumed. The affirmation referred to above was the one filed in support his claim. Before the Death of Yu Loi Hei 10.Yu Loi Hei died in 1932. The reference to his entering into the subject land and the occupation thereof is so vague and lacking details. Furthermore the sources of the information must be inherently unreliable. As a matter of simple arithmetic, Yu Loi Hei died when Yu Tin was about 6 years old. He had not mentioned the time or event of Yu Mau Bun having the land demised to him, nor had any of the defence witnesses for that matter. If anything could be inferred from the vague account given by Yu Tin, it would be a license given by Yau Mau Bun to his clansman to occupy the land. 11.Further the evidence must be of multiple hearsay and is of the nature of self-serving. The evidence adduced by the defence does not prove on the balance of probability that the Yu Loi Hei was in factual possession of the subject land or that he had the necessary intent to possess required to establish a possessory title. The title of then registered owner of the subject land had not been extinguished at the time of the death of Yu Loi Hei. More than that, I do find it established that Yu Mau Bun had been dispossessed or had discontinued his possession. Therefore I find time did not start to run before the death of Yu Loi Hei Taking over Possession by Yu Tin 12.Yu Tin was born in 1926. As having been pointed out, he was about 6 years old when his father died. It is not clear where he lived or who took care of him when he was still in tender age. If one might guess, his grandfather, Yu Po Hong. It was because he alleged that his grandfather, father and himself was living in the “Residential Lot” referred to in the above affirmation. According to this affirmation of Yu Tin, they did not reside at the house on the subject land. On the contrary, according to his affirmation he took possession over the Residential Lot and the land the under resumption after the death of Yu Po Hong in 1943. Not by any stretch of information, one can infer that he had taken possession of the subject land before he took over possession of those lots of land. 13.Putting the Plaintiff’s evidence against the evidence of the witnesses if the defence witness and the affirmation of Yu Loi Hei , I find the version of events given by the Plaintiff credible and accept it. In particular I find that Yu Tin only came to occupy the house and the land as a licensee. 14.Furthermore, Mr. Cheung argues that, by his claim that he was entitled to succeed to Yau Mau Pun property, Yu Tin has acknowledged in the letters in question Yau Mau Pun’s title. I accept his argument. I More than that I think the position Yu Tin taken in the letters corroborates the Plaintiff’s version or was at least consistent with the version given by the Plaintiff. Taking Possession by the Defendants 15.The Defendant sought to argue that their period of possession could be tacked with that of Yu Tin. In view of my finding on facts, this question does not arise. If it does, I would have to accept the forceful argument of Mr. Cheung. The Defendants lived on the land by his father’s permission and license and were not in possession in their own name or behalf. Boundary Dispute 16.The house did not enclose the whole of the subject land. The Plaintiff argues therefore that those parts had not been under the factual possession of the Defendants and their family. In this regard, I accept the argument of Mr. Fan, counsel for the 2nd Defendant. Occupation or possession of part of the land might sometimes lead to a conclusion of occupation or possession of the whole. The invisible demarcation or boundary in this case was observed by the neighbours. Erecting barrier or enclosure or not is a red herring. The layout of the house and environment would sufficiently discourage strangers or trespassers. The persons in possession of the house would also be in possession of the whole lot of land in this particular case. Conclusion 17.Counterclaim be dismissed. There be an order for possession as claimed. And order nisi for costs in favour of the Plaintiff with certificate for counsel. Annexure : Chronology
Mr. Wallace Cheung instructed by M/S Choi & Liu for the Plaintiff. The 1st Defendant in person. Mr. Edward Fan instructed by M/S Lo, Wong & Tsui for the 2nd Defendant. |