Thousand Treasure Investment Ltd v. Pinkton Ltd

DCCJ3540/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3540 OF 2006

BETWEEN

Before:    Her Honour Judge H C Wong in Chambers (Open to the public)

Date of Hearing:    18 January 2010

Date of Delivery of Decision:     18 January 2010

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D E C I S I O N

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1.The defendant applies for leave to appeal against my judgment after trial in this action. 

2.I shall not repeat the defendant’s grounds for appeal here as they have been set out in the documents placed before me filed into court.

3.It is not in dispute that the issue for trial is whether the plaintiff is entitled to recover possession of the encroached area of his land or property which the defendant claimed it had been in adverse possession for over 12 years.

4.Consequently, the issue to decide is whether the defendant has established it had been in adverse possession for 12 years or more.  The burden is on the defendant to prove the adverse possession.  If it succeeded, the plaintiff would fail in its claim for repossession of the encroached area.

5.Mr Wong, counsel for the defendant, submitted that the court should take into account the unchallenged evidence of Madam Hui who claimed the dividing wall had been there since she first visited Just Dance Studio in December 1993. 

6.On the other hand, Mr Lam disagreed with Mr Wong that Madam Hui’s evidence was unchallenged.  He relied on Madam Chow’s evidence in court which contradicted Madam Hui’s evidence.  Madam Chow claimed the dividing wall was not there between 1992 and 1995.  Madam Chow is and was an estate agent, she had been and is still an occupier and owner of one of the units in the same building.

7.Mr Wong also criticized the plaintiff’s lack of evidence as Madam Chow had failed to pinpoint the exact date the dividing wall was erected even though she claimed there was no dividing wall between 1992 and 1995.

8.In my judgment I found Madam Hui’s evidence to be unreliable and gave reasons as to why I preferred the evidence of the plaintiff’s three independent witnesses.  I have also rejected Mr Wong’s evidence on the existence of the present dividing wall since 1992 based on the evidence of the three independent witnesses, all of them confirmed that the two shop premises were void of any walls until the end of 1995. 

9.I agree with Mr Lam, counsel for the plaintiff, that the issue was not whether the plaintiff can prove positively that the present dividing wall was erected at a certain date.  The issue is whether the defendant can show 12 years of uninterrupted adverse possession.  In my judgment, I have found that the defendant had failed to do so.

10.Whether I should draw an adverse inference of the plaintiff’s failure to adduce evidence from the former owner’s solicitors or the former owner Mr Cheng would not assist the defendant’s case in establishing 12 years’ uninterrupted adverse possession.  Of course it would be helpful to have Mr Cheng and his then solicitors to give evidence at the trial.  It would have strengthened the plaintiff’s case in rebuttal, but the primary burden is still on the defendant to establish the 12 years’ uninterrupted possession against the plaintiff.

11.On the aforesaid basis, I do not think the defendant has any realistic or reasonable prospects of success on appeal.  I reject the application for leave to appeal, and the application for stay of execution is also refused with costs to the plaintiff, to be taxed if not agreed with certificate for counsel.

Mr Simon H W Lam, instructed by David Hui & Co., for the Plaintiff

Mr Jason Wong, instructed by  Ko & Co., for the Defendant.