Wong Lai Man v. Wong Tat Kwong and Another

DCCJ 260 OF 2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 260 OF 2005

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BWTWEEN

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Dates of Hearing: 2^nd, 3^rd, 4^th & 5^th November, 2009

Date of Handing Down of Judgment: 18^th January 2010

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J U D G M E N T

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The Two Sections of  Lot 107

1.One Mr.Wong Tsang On, the great grandfather of the Plaintiff’s father, owned many pieces of land in New Territories. Among them was Wang Chau Lot No.107 in D.D. 123 Yuen Long, the subject matter in the instant case.  In about 1954, Wong Tsang On divided this lot into two sections, Sections A and B, and assigned them to his two sons,  Section A to  Kam Wah and Section B to Kam Kwai .  Section A was eventually passed down to the Plaintiff’s father who then made a gift of it to the Plaintiff.  Section B stayed within the Kam Kwai’s family and was passed down eventually to his grandson, D2.  

The Common Boundary

2.The common boundary on the ground has been respected and observed by the respective families of the two brothers, or at least there is no evidence or suggestion to the contrary.  However there is a discrepancy between the boundary on the ground and the boundary as shown in plans with the Land Registry.  This discrepancy was found out by the Plaintiff’s father when he took a closer look at the plans in Land Registry record with a view to develop both sections of the land. As a result he found that a portion of Section A had been occupied and used by Kam Kwai’s family. A house was built on it and D2 had been occupying the house and the portion of land for about 50 years. Indeed counsel for the Plaintiff conceded in his final submission that ‘ she ( D2 ) and her family had used the said portion without interruption or interference from others.’

One Cause of Action Remaining for the Plaintiff

3.The Plaintiff is seeking possession of that particular portion of Section A. Initially a number of convoluted causes of action were relied on and in support some serious allegations were raised against Kam Kwai. Only one cause of action remains. The others were withdrawn or not pursued.  The evidence adduced in support is all hearsay and has been contradicted by contemporary documents. It would not surprise anyone that counsel for the Plaintiff did not pursue those causes of action.  

4.Counsel for the Plaintiff based the so called cause of action on the doctrine of common mistake.  He sought the relief of rectification of boundary. He cited cases in support.  In all these cases, the rectification relates to rectifying title documents to reflect the genuine agreement.  In the instant case, there was no need for rectification of the title papers. The Plaintiff is merely seeking possession of the portion of land occupied by D2 and family. If she is to succeed there is no rectification necessary.  The common mistake is the only ground the Plaintiff raised to counter the defence of adverse possession by D2.

5.The issue is simply whether D2 had acquired the title by adverse possession.  The so called relief under common mistake sought by the Plaintiff is no more than a consideration whether the alleged mistake would prevent D2 from acquiring a possessory title by adverse possession.  It is trite law to succeed in her counter-claim and defence, D2 has to establish her factual possession of the subject land and her intent to possess.

Adverse Possession by D2---Factual Possession

6.D2 claims she has been in factual possession of the portion of the land for over 50 years since she was married into the Wong’s.  This is not challenged by the Plaintiff or the D1. In particular the Plaintiff did not challenge that D2 occupied the premises in her own right and on her own behalf for all these years. No points were made and no questions were asked of D2 by counsel for the Plaintiff or naturally by other counsels whether she would exclude her husband or D1 from possession. If she were asked and said she would not, then unless the principle of tacking applied, she might not have been in continuous possession for the necessary length of time. Or the case would become much more complicated.

7.Equally as to D2’ intent to possess, the Plaintiff did not take up this point though her attention or her counsel’s should have been drawn to this point when I queried  D1 that he himself was not claiming any interest in the portion of land by way adverse possession. His case is always is that he is not in a position to deliver possession and not that  he has a better title than the Plaintiff.

8.As it turned out, the Plaintiff did not specifically challenge D2’s intent to exclude her husband or his descendants.  Her counsel’s only  argument is that D2 believes she was occupying the land as of right, in that she believed all along that her house was standing on the land of her late husband, until she was told the contrary by the Plaintiff’s family. 

9.On the evidence, whether D2 would even exclude her husband when he was alive or his descendants after he died is everybody’s guess. It all depends on her relationship with her husband or with his descendants or both. I know nothing of it. The Plaintiff has her own reasons not to pursue this point and was content to rely on the proposition that: ‘D2 believed she was in possession as of right, and therefore could not be in adverse possession.’ 

10.Under all these circumstances, I find that D2 was in factual possession of the subject land in that she was in possession in her own right and on her own behalf. 

Adverse Possession---Intent

11.Lastly I have to deal with the only argument the Plaintiff presented. Namely that whether her belief that the subject land was  owned by her husband, namely a portion of Section B, would preclude her to form the requisite intent to possess.   In Wong Tak Yue V Kung Kwok Wai  [1998] 1 HKLD 241,the Court of Final Appeal ruled that possession must be of wrong. The Court ruled that a person who is always willing to pay rent should the owner with paper title came along to collect lacks the requisite intent to possess.  It was also made clear in the case that the intent is a finding of facts from all circumstances of the case. The case of Buckinghamshire County Council V Moran  [1990] 1 Ch 623  was referred to in  that case, and has not been disapproved. In the latter case, it was made clear that the intention of the claimant need not be an intention to own but simply an intention to possess. At P.643 Slade L.J. said,

“ Nevertheless, I agree with the judge that ‘what is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to possess’ that is to say an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title---”

Applying this test, it would be irrelevant to ascertain if D2 would give up the land on learning the mistake. All this time before she was told of the mistake, she had no reason to suspect it. Her state of mind in regard to the mistake is not dispute. Her intent for the time being must be to look at the land as her own property and guard it as such as she did.
That meant she acted and intended to exclude the whole world including the owner of paper title from the land. According I find as a fact, that D2 has had the intent to possess. If she was aware of the alleged mistake, her possession would be of wrong and she had the requisite intent.  On the other hand if she did not know of the mistake, such belief would not weaken her intention to possess.  Either way she had the intention to exclude the whole world including the owner with paper title.

12.The mistake made by the Plaintiff and her predecessor is quite beside the point.  There are many reasons for an owner with paper title to neglect their land, say through mistakes or laches. Mistakes generally or of the type alleged the Plaintiff, i.e. owner not knowing he owns the land, has never been an ground to defeat the claim for adverse possession. 

13.The above Court of Final Appeal case can be distinguished. D2 had no right to be in possession of the land for the necessary period. The owner with paper title at the time did not take any action because they did not know they owned the land.   But any third party fully appraised of the facts would certainly conclude that D2 had the intent to exclude the whole world including the owner with paper title.  That being the case, I found that she has been in adverse possession and has acquired a possessory title. 

14.In any event there was no evidence nature of mistake the great grand father of the Plaintiff or others made.  That they made a mistake in the plans with the Land Registry is equally, if not more, likely.  Wong Tsang On was dividing a plot of land for the two sons.  The boundary on the ground should have been attracting more care and attention than the one shown in the plans with the Land Registry.  

Order

15.I enter judgment for both defendants and granted the declaration of title sought by the D2. There be an order nisi for costs following the event, with certificate for counsel. There be legal aid taxation for the Plaintiff’s own costs.

Mr. K.K. Mui instructed by M/S Wong Kwan & Co. assigned by D.L.A. for the Plaintiff.

Mr. C.K. Siu instructed by M/S Deannie Yew & Associates for the 1^st Defendant.

Mr. Stephen Fong instructed by M/S Anthony Kwan & Co. for the 2^nd Defendant .