Pang Lai Yung v. Wong Hoi Lam

CACV 48/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE

COURT OF APPEAL

CIVIL APPEAL NO. 48 OF 2008

(ON APPEAL FROM HCMP NO. 1742 OF 2004)

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Before: Hon Rogers VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 25 August 2009

Date of Judgment: 25 August 2009

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J U D G M E N T

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Hon Rogers VP:

1.This is an appeal from a decision of Mr Recorder Yu given on 9 January 2008.  By that judgment the recorder ordered that the defendant do give possession of the land in question, which is the remaining part of section B of Lot No. 1299 in DD8 in Kam Tin in the New Territories, and he ordered that there should be an inquiry as to damages in respect of the occupation of the land from the date of death of a Madam Leung Ho on 3 January 1996 to a date when the plaintiff recovers possession.

2.The history behind the case is set out in the judgment in the court below, and it goes back to March 1950 when the whole of Lot 1299B in DD8 was registered in the name of Cheung Tai Tseung Tso.  In 1965 - there is no dispute about this - the family whom the recorder referred to as the “Wong Family” moved into the lot.  The father of the family was Wong Po.  He had married a second wife because his first wife had died and she was called Leung Ho.  The defendant was Mr Wong’s son.

3.In April 1996 the District Office gave permission for the erection of two chicken sheds on the application of Leung Ho.

4.One goes forward to 1978 when the Tso was dissolved and all the properties were vested in Madam Chung Kam Lin, who is the grandmother of the plaintiff.

5.In June 1990 government resumed part of the land.  The compensation for the land was paid to the Tso and, therefore, Madam Chung.  There was an ex-gratia payment for the crops on the land to Wong Po.

6.The plaintiff’s mother made an affidavit in which she said that on two occasions between 1991 and 1995 she remembers specifically seeing Leung Ho paying rent to Madam Chung.  The defendant chose not to cross-examine her on that.

7.The next important thing is that there is a document which the recorder held was a rental agreement for the period of 1 January to 31 December 1993.  The rent was $2,200 per year.  The parties to that were Madam Chung and Leung Ho.  The recorder accepted that that was a rental agreement although there was no signature of Madam Chung on that document.  But as the recorder pointed out, there may be two copies of that document and the one retained by Madam Chung would not necessarily be signed because that was in her possession.

8.Going forward a bit in relation to that, one can observe that there was a Mr Cheung Chap Hung, who in November 2004 made a statement, of his own accord, to the plaintiff, saying that it was his signature on this document P1.  But later in October 2006, when he came to make a witness statement, he denied recognising it as his signature.  The recorder did not accept that.

9.Madam Leung Ho died on 3 January 1996.  On 11 August 1997 the plaintiff purchased the land in question from her grandmother Madam Chung.  Madam Chung herself unfortunately passed away in 1998.

10.So those are the bare facts which the recorder had to deal with.  In paragraph 21 of his judgment he said:

“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 there existed a relationship of landlord and tenant between Madam Chung and Leung, at least in the early 1990s.  I find that the defendant failed to prove that the possession of the Wong family had been adverse.”

11.On this appeal Mr Szeto, who has appeared for the defendant, drew this court’s attention as to the meaning ascribed to adverse possession in the case of JA Pye (Oxford) Limited & Anor v Graham & Anor [2003] 1 AC 419, which may be summarised in the speech of Lord Browne-Wilkinson at page 434, at letter G, where he said in relation to adverse possession:

“The question is simply whether the defendant squatter has dispossessed the paper owner by going into possession of the land for a requisite period without the consent of the owner.”

12.In the course of his argument, Mr Szeto relied very heavily on the case of Ho Hang Wan v Ma Ting Cheung, as personal representative of Ma Tse Cheung deceased, [1990] 1 HKLR 649.  But that was very much a case on its own facts because it was a case where the squatter had gone into possession as a licensee, but the licensor had died unbeknown to anybody, and the squatter simply remained there.  The Court of Appeal came to the decision that in the period after the licensor had died there was no consent given by anybody and that the squatter’s possession had been absolute in the sense that he did not have it at anybody’s behest.

13.That case was referred to in the case of Wong Tak Yue v Kung Kwok Wai & Anor, [1997-98] 1HKCFAR 55.  The Chief Justice has said at page 69, letter G:]

“I should refer to the judgment of the Court of Appeal in Ho Hang Wan v Ma Ting Cheung, (a personal representative of Ma Tsz Tsang deceased) [1990] 1 HKLR 649, on which reliance was placed by Mr Erik Shum.  I would make three observations.  First, there is nothing in that judgment which is inconsistent with the approach I have adopted here.  Intention is a question of fact and in determining it, the court has to assess all the circumstances.  Secondly, the decision should be regarded as one on its own special facts.  The Court presumed the requisite intention from the occupier’s exclusive possession after the termination of the licence by the death of the licensor, although the licensee did not receive notice of death.  Thirdly, there is nothing on the facts in that case equivalent to the evidence we have here of the fourteenth defendant’s intention as regards the payment of rent.”

14.In my view, in all these cases the specific facts of the case are particularly important.  Whilst Mr Szeto has relied very heavily on the fact that there is no specific evidence in the period from 1965 until the early 1990s, the fact is, as the recorder said, that one has to look, at all the circumstances of the case and not just specific portions.  When one looks at all the circumstances of the case one sees here a case where, at least in a period which is relevant, there was clearly a tenancy agreement, rent was paid, the paper owner of the property received compensation from the government when part of the property was taken and so on and so forth.

15.When one looks at the facts in array one sees here simply a case where there was a tenancy and, in my view, it would be unrealistic to look at the circumstances of the case and to suppose that from 1965 until 1993 Leung Ho and Wong Po occupied the property without any regard to the true owner, but suddenly decided to pay rent from 1993 onwards.

16.I conclude my judgment with this observation, that one is here dealing not with office premises in Central Hong Kong, but one is dealing with a couple of chicken sheds in Kam Tin Village in 1965.  One can only expect records to be kept in respect of that sort of property, which would be commensurate with the sort of property and time one is considering and, indeed, the facilities for keeping it out in the New Territories at that time.

17.In my view this appeal falls to be dismissed.

Hon Le Pichon JA:

18.I agree.

Hon Sakhrani J:

19.I also agree.

Mr Kenneth C L Chan, instructed by Messrs Paul Kwong & Co., for the Plaintiff/Respondent

Mr Patrick Szeto, instructed by Messrs Tam, Pun & Yipp, for the Defendant/Appellant