Tang Ka Hung Robert and Another v. Tang Tim Chue and Another

HCA3/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3 OF 2006

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BETWEEN

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Before : Mr. Recorder Rimsky Yuen, SC in Court

Dates of Hearing : 31 August and 1 to 4 September 2009

Date of Judgment : 29 April 2010

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JUDGMENT

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A.      BACKGROUND

1.The plaintiffs are the son and daughter of the late Mr. Tan Sum On (alias Tang Sam On) (“Deceased”). The 1^st defendant is the plaintiffs’ half brother. The present dispute concerns the piece of land registered in the Land Registry as The Remaining Portion of Lot No. 1927 in Demarcation District No. 124, Yuen Long, the New Territories, Hong Kong (“Land”). The 2^nd defendant claimed that he had been a lawful tenant of the Land since 1982. 

2.Sadly, this is not the only litigation amongst the family members. As will be discussed below, there had been litigations involving the Deceased and the 1^st defendant. There had also been a probate dispute between the plaintiffs and the 1^st defendant concerning the estate of the Deceased. The history of the family disputes can be traced back to as early as the 1970’s, if not earlier. In this trial, the 1^st defendant sought to introduce considerable background facts which go beyond the scope of the present dispute. Examples include the Deceased’s alleged improper behaviour when he was young and his less than cordial relationship with Madam Liu Chuen Mui (“Madam Liu”) (the first wife of the Deceased and the mother of the 1^st defendant). Although it is important to consider the parties’ contentions in their proper context, the following summary of the background would be sufficient for the purpose of explaining my findings and decision.

3.The ancestor of the Tang family, Mr. Tang Lim Ming (alias Tang Chik Fook), had three sons. The eldest son Mr. Tang Pui King had one son. The second son Mr. Tang Kap Wing had no son and predeceased Mr. Tang Lim Ming. The third son Mr. Tang Kan Cheung also had one son. In 1931, Mr. Tang Lim Ming arranged distribution of the properties of the Tang family. Since his second son Mr. Tang Kap Wing had no son, the Deceased (being the son of Mr. Tang Kan Cheung) was made the posthumous adopted son of Mr. Tang Kap Wing pursuant to Chinese law and custom. A Tang Kap Wing Tso (鄧甲榮祖) was established and the Deceased was made the successor thereof.

4.The Deceased left Madam Liu in around 1954 and had since stayed with the plaintiffs’ mother. It is not entirely clear what form of marriage ceremony the Deceased and the plaintiffs’ mother went through. Presumably, it was the Chinese customary ceremony. For the present purpose and without determining her exact legal status under Chinese customary law (as it is unnecessary to do so), I shall simply refer to the plaintiffs’ mother as the Deceased’s second wife. Although the Deceased and Madam Liu did not formally go through divorce proceedings until around 2002, the Deceased had been living with his second wife since the 1950’s and they gave birth to four children including the plaintiffs.  These four children including the plaintiffs hardly had any contacts with Madam Liu or the 1^st defendant.

5.In 1977, the senior members of the Tang family were unhappy about certain conduct on the part of the Deceased during the funeral of Mr. Tang Kan Cheung due to his status as the posthumous adopted son of Mr. Tang Kap Wing. By a document in Chinese dated 8 March 1977 (exhibit D1) issued by the senior members of the Tang family including Mr. Tang Pui King, the Tang family sought to remove the Deceased as the successor of Tang Kap Wing Tso. The Deceased disputed this decision and commenced High Court Action No. 2125 of 1978 (“1978 Action”) in July 1978 against various parties including Madam Liu and the 1^st defendant. The Deceased claimed that he remained the legal successor of Tang Kap Wing Tso and sought an injunction restraining Madam Liu and the 1^st defendant from intermeddling with the properties of Tang Kap Wing Tso.

6.The 1978 Action was settled in 1983. The settlement was recorded in a Consent Order dated 8 July 1983 made by Liu J. By this Consent Order, the 1^st defendant (who was named as the 3^rd defendant in the 1978 Action) was declared the sole successor of Tang Kap Wing Tso. In return, numerous pieces of land (including the land registered as Lot No. 1927 in Demarcation District No. 124) were given to the Deceased. Pursuant to this settlement, the land registered as Lot No. 1927 in Demarcation District No. 124 (which comprised the Land), together with various other pieces of land, was transferred to the Deceased in September 1983. 

7.By a Deed of Surrender dated 27 February 1989, the Deceased surrendered a portion of Lot No. 1927 in Demarcation District No. 124 (an area of around 290 square feet and known as Section A) together with other lots to the Crown. As a result, the remaining area of Lot No. 1927 became known or registered as the Remaining Portion of Lot No. 1927 in Demarcation District No. 124 (i.e. the Land which is the subject-matter of this action). The Deceased had since remained as the registered owner of the Land.

8.What happened to the Land and how it was managed are matters of dispute in this action. I shall return to this aspect in the discussion below. In short, the 1^st defendant alleged that the Land had been leased to the 2^nd defendant since 1982 and that the Deceased, following the transfer pursuant to the settlement of the 1978 Action, authorized him to deal with the Land and to collect rents from the 2^nd defendant. The plaintiffs disputed the defendants’ case and denied that the 2^nd defendant was a lawful tenant of the Land.

9.On 27 September 1991, the Deceased made a will (“Will”). Under the Will, the Deceased’s assets were distributed amongst the four children he had with his second wife and the plaintiffs were appointed as the executors. The 1^st defendant was not named as a beneficiary under the Will.

10.In 1999, another dispute arose between the 1^st defendant and the Deceased. The dispute concerned the distribution of compensation monies paid by the Government for the resumption of certain pieces of land. As a result of this dispute, the 1^st defendant commenced High Court Action No. 12547 of 1999 (“1999 Action”) against the Deceased and two other members of the Tang family. This 1999 Action was subsequently settled and a sum of money was paid by the Deceased to the 1^st defendant. 

11.On 6 December 2004, the Deceased made a codicil (“Codicil”). By paragraph 2 of this Codicil, the Deceased directed that Madam Liu, the 1^st defendant and a Madam Tang Yuk Ho be excluded from attending the Deceased’s memorial service and/or funeral service and/or burial service and that their names be excluded from the Deceased’s obituary. 

12.The Deceased died on 7 November 2005. The 1^st-named plaintiffs, Mr. Tang Ka Hung Robert (“Mr. Robert Tang”), informed the 1^st defendant of the death of the Deceased on around 21 November 2005 at a traditional meeting of the extended Tang family. Unhappy disputes arose between the plaintiffs and the 1^st defendant over whether the 1^st defendant should be allowed to attend the Deceased’s funeral. It is not necessary to deal with this aspect in detail, suffice it to add that that particular dispute was eventually resolved after an injunction application against the 1^st defendant was made.

B.      EVENTS LEADING TO THIS ACTION

13.The events leading to this action took place in December 2005, shortly after the Deceased passed away. According to the plaintiffs, the defendants and their agents wrongfully entered into and took possession of the Land. Further, it is the plaintiffs’ case that the defendants caused damage to the Land or otherwise had committed nuisance thereon. The wrongful acts pleaded in the Amended Statement of Claim, and which were confirmed by Mr. Robert Tang at this trial, can be summarized as follows.

14.On around 2 December 2005, the plaintiffs discovered unauthorized construction work being carried out on the Land in that an excavator was driven into and stationed on the Land.  Around three days later, viz., on around 5 December 2005, a Chinese male was found operating the excavator on the Land. A few plantations were removed, the ground surface was excavated and a shed was pulled down. The plaintiffs reported this incident to the police. The Chinese male was arrested. It turned out that this Chinese male was a holder of a Chinese two-way permit asked to operate on the Land. He was convicted of criminal damage and sentenced to 6 weeks’ imprisonment.

15.Following the incident on 5 December 2005, Mr. Robert Tang fenced off the Land by putting up iron poles with iron chains. A notice was also put up stating that the Land was private property and no entrance was permitted. Thereafter, the 2^nd defendant was found operating an excavator on the Land on around 11 December 2005. The iron poles and iron chains put up by Mr. Robert Tang were removed, the surface of the Land was extensively excavated and some of the plantations there were crushed down.  When the police investigated this incident, the 2^nd defendant claimed that he was asked by the 1^st defendant to do the work. The 1^st defendant turned up at the scene and claimed that he had leased the Land to the 2^nd defendant some 20 years ago.

16.On around 13 December 2005, a lorry with a crane drove onto the Land and picked up piles of soil from the ground without the plaintiffs’ consent. Upon police investigation, a Mr. Lee Kwok Pang turned up at the scene and alleged that he was responsible for the work. This Mr. Lee Kwok Pang also alleged that he had rented the Land from the 1^st defendant.

17.On around 19 December 2005 and again without the plaintiffs’ approval, lorries went in and out of the Land and construction debris were dumped onto the ground. The Land was effectively used by the defendants or its agents as a dumping ground for construction debris.  Since the Land was at all material times (and still is) an agricultural land, it is the plaintiffs’ case that such use was illegal and contrary to the restrictions contained in the relevant Government Lease. The plaintiffs were concerned that the defendants’ activities would expose the Land to the risk of forfeiture.

18.By a letter dated 19 December 2005, Mr. Robert Tang’s solicitors (Anthony So & Co.) wrote to the defendants and demanded them to undertake not to trespass the Land. No such undertaking was given. By a letter dated 23 December 2005 from the 2^nd defendant’s solicitors (Andrew Chan & Co.), the 2^nd defendant asserted that he was a tenant of the Land under an existing tenancy for a term of 10 years expiring on 31 December 2012.

C.      THIS ACTION

19.Against this background, the plaintiffs commenced this action on 3 January 2006. In the Statement of Claim filed on 27 January 2006, the plaintiffs claimed the following relief :

(1)     possession of the Land;

(2)     an injunction restraining the 1^st and 2^nd defendants from trespassing the Land, doing any damage to it or any property thereon or otherwise committing any nuisance thereon;

(3)     an order that the defendants do forthwith pull down and remove all poles, structures, buildings or any part thereof built by the defendants; and

(4)     damages.

20.Upon commencing this action, the plaintiffs applied for an interim injunction against the defendants. The application was heard before Chung J on 28 February 2006. Upon the plaintiffs’ undertaking to commence a probate action in relation to the Will as soon as practicable, an injunction was granted on the same day whereby the defendants were restrained from entering into, occupying or otherwise remaining on the Land. (See the Reasons for Decision delivered on 4 March 2006.)

21.After the interim injunction was granted, the plaintiffs commenced High Court Probate Action No. 7 of 2006 (“Probate Action”) against the 1^st defendant. By the Order made by Chu J on 19 September 2007, the 1^st defendant’s challenge against the Will was dismissed and the Caveat entered by him in HCCA2730/2005 was ordered to be withdrawn.  Eventually, probate in respect of the Deceased’s estate was granted to the plaintiffs on 2 November 2007 (Grant No. HCAG010298/2007). Thus, there can no longer be any issue concerning the plaintiffs’ status to maintain and continue this action.

D.      THE ALLEGED TENANCIES—THE DISPUTE

22.The defendants did not really put up any positive challenges to the acts of trespass or nuisance complained by the plaintiffs (i.e. those summarized in paragraphs 14 to 17 above). Having considered the relevant evidence (including the contemporaneous reports to the police, the photographs and the testimony of Mr. Robert Tang), I accept the plaintiffs’ version of events as to what happened to the Land in December 2005 and find them as proved. On the evidence, the only conclusion that can be reached is that the defendants were responsible for the said events and activities in December 2005.

23.In the circumstances and bearing in mind the plaintiffs’ status as executors can no longer be challenged and that there is no dispute over the title to the Land, the burden rests on the defendants to establish their defence. In short, the defendants’ case is that the Land had been lawfully leased to the 2^nd defendant since around 1982. According to the defendants, not only had the lease been renewed twice in around 1992 and 2003, the 1^st defendant was at all material times authorized by the Deceased to handle the lease with and to collect rentals from the 2^nd defendant.  Details of the defendants’ allegations in this aspect will be discussed below. 

24.The plaintiffs disputed the alleged leases and the allegation that the 1^st defendant was authorized by the Deceased to deal with the Land.  According to Mr. Robert Tang, he went pass and visited the Land every time he went to pay tribute to ancestors with the Deceased during Ching Ming or Chung Yeung Festivals. The Deceased had told him that the Land was valuable because of its location and the redevelopment potential. Mr. Robert Tang was adamant that the Deceased had not and would not possibly have authorized the 1^st defendant to deal with the Land. He pointed out that the Deceased owned numerous pieces of land with his two brothers and they had two to three staff to assist him in matters such as collection of rents or related matters.

E.      THE KEY ISSUES

25.The crux of the dispute is whether the 2^nd defendant was at the material time a lawful tenant of the Land. 

26.The Deceased had never signed any lease or tenancy in respect of the Land. All the relevant documents relied on by the defendants were signed by and in the name of the 1^st defendant. It is the defendants’ case that the 1^st defendant was duly authorized by the Deceased to deal with the 2^nd defendant, although there was no formal authorization documents such as power of attorney or letter of authorization. Accordingly, the key issues that call for consideration and determination by this court are : (1) whether the Land was at the material time leased to the 2^nd defendant; and (2) if yes, whether the 1^st defendant was duly authorized by the Deceased to handle the lease with the 2^nd defendant. 

F.       ALLEGED AUTHORIZATION

27.I shall first deal with the issue of authorization. The reason is this. If the 1^st defendant was not authorized by the Deceased to deal with the Land, whatever arrangements (if any) made with the 2^nd defendant by the 1^st defendant purportedly on behalf of the Deceased would not be binding on the Deceased or his estate and could not confer any right on the 2^nd defendant to occupy or use the Land.

28.Having considered all the evidence and the parties’ submissions, I find as a fact that the Deceased had not authorized the 1^st defendant to deal with the Land on his behalf as alleged by the defendants. As will be discussed further below, my key reasons for reaching and making this finding are: (1) the alleged authorization is inherently improbable given the poor relationship between the Deceased and the 1^st defendant; (2) there was neither any need nor any reason for the alleged authorization as the Deceased could handle the matter without the assistance of the 1^st defendant; (3) the evidence and testimonies of the defendants are inconsistent and self-contradicting; and (4) the defendants are unreliable witnesses. I shall add that whilst I have considered all the evidence adduced at this trial and also the submissions made by the parties, the following discussion will only deal with the matters material to or necessary for explaining my findings.

F.1     The dealings in 1982-1983

29.According to the defendants, the 2^nd defendant’s family began to occupy the Land since around 1980 when the 2^nd defendant and his mother started to plant vegetables there. The Land, alleged the defendants, was first leased by the 1^st defendant on behalf of Tang Kap Wing Tso to the 2^nd defendant in 1982. The defendants relied on a copy of an extract from a lease book (“Lease Book”) which shows a purported record of a lease of the Land for 10 years at the rental of HK$5,000 per annum. The date of the relevant record in the Lease Book is 1 February 1982.

30.After the Land was transferred to the Deceased in 1983 pursuant to the settlement of the 1978 Action, the defendants contended that the Deceased was informed of the lease and that the Deceased authorized the 1^st defendant to deal with matters concerning the lease (including the collection of rental) with the 2^nd defendant.

31.I find this contention by the defendants inherently improbable. I have already discussed the background leading to the 1978 Action (in which the Deceased was the plaintiff and the 1^st defendant was named as the 3^rd defendant) and the fact that it was only settled in 1983. By the settlement, the 1^st defendant was made the successor of Tang Kap Wing Tso in lieu of the Deceased. According to Mr. Robert Tang, the Deceased chose to settle the 1978 Action instead of going to trial because he did not have sufficient finance to continue the action. Following the settlement, the Deceased complained that the settlement had caused him to lose a sizable portion of his assets. Given the history of the matter and the parties’ relationship at the time, the Deceased’s sentiment is not difficult to understand.

32.The proper inference to be drawn in the circumstances is that the relationship between the Deceased and the 1^st defendant following the settlement could neither be good nor cordial. Indeed, it would not be an exaggeration to describe their relationship as a poor one. The 1^st defendant accepted that his relationship with the Deceased turned bad since 1971. Although the 1^st defendant suggested that his relationship with the Deceased had improved shortly after the settlement, I find it difficult to accept this alleged sudden improvement. Thus, it is most unlikely that the Deceased would shortly after the settlement authorize the 1^st defendant to deal with the Land on his behalf.

33.Apart from the poor relationship between the 1^st defendant and the Deceased, there was no objective need or reason for the Deceased to authorize the 1^st defendant to deal with the Land. When the 2^nd defendant testified at the trial, he stated that he had known the Deceased since around 1979 and they met quite frequently at the place where they used to have tea. That being the case, the Deceased should have no difficulty in dealing with the 2^nd defendant even if the Land had in fact been leased to the 2^nd defendant. In any event, irrespective of whether the Deceased knew the 2^nd defendant, the rental was HK$5,000 per annum and payable once a year. Collection of rental in the circumstances was not a complicated matter. At the trial, the 1^st defendant referred to triads activities and sought to suggest that dealing with rental matters in the New Territories was no simple task. I find this suggestion by the 1^st defendant an exaggeration. The Land was not the only piece of land owned by the Deceased. As stated above, the Deceased and his two brothers owned other pieces of land in the New Territories and they had two to three staff helping them out. Viewed thus, there was no need for the Deceased to appoint the 1^st defendant as his agent.

F.2     Alleged Renewal in February 1992

34.In paragraph 7 of the Affirmation filed by the 1^st defendant in opposition to the interim injunction application referred to above (affirmed on 1 February 2006), the 1^st defendant described the alleged renewal in 1992 as follows :

“Since 1989, my Father [i.e. the Deceased] and I became a lot closer and gathered together very often. My Father and I were together at Wing Wah Restaurant when the 2^nd Defendant came to discuss the renewal of the lease on or about 29^th February 1992. The negotiation for renewal was made with both the 2^nd Defendant and my father. We discussed and agreed that the lease was to be renewed for another 10 years in the sum of HK$5,000 per year. The lease was agreed between my Father and the 2^nd Defendant in the terms contained or evidenced in writing in the lease book signed by me for and on behalf of my Father.  …  My Father confirmed to the 2^nd Defendant when asked that I should sign on the lease book. I was asked by my Father to handle the lease for him and that I should collect the rent.”

35.At the trial, the defendants effectively adopted this version of events in support of their contention that the lease was renewed in 1992 for another 10 years with the authorization of the Deceased. For the reasons set out below, I likewise find this part of the defendants’ case inherently implausible.

36.First, as stated above, the Deceased made the Will on 27 September 1991. That was about five months before the alleged renewal of the lease on 29 February 1992. By making the Will, the Deceased had decided to bequeath his assets including the Land to the four children of his second marriage. In addition, the plaintiffs were named as executors. On the other hand, the 1^st defendant was not named as a beneficiary. Having put in place such an arrangement, it is most unlikely that the Deceased would authorize the 1^st defendant to deal with the Land.  The relationship between the plaintiffs and the 1^st defendant have never been good. In fact, there was at the time hardly any relationship at the time. The Deceased surely knew about this. As a father with such knowledge and in such circumstances, it was most unlikely that the Deceased would on the one hand leave his assets to be administered by the plaintiffs and yet on the other hand authorized the 1^st defendant to deal with the Land.

37.Second, as stated above, there was no need for the Deceased to authorize the 1^st defendant to deal with the Land. The Deceased had other options. He could have dealt with the Land by himself. He could instruct the two or three staff (who, as stated above, assisted the Deceased to deal with the lands owned by the Deceased and his brothers) to deal with it. Alternatively, the Deceased could ask plaintiffs (especially Mr. Robert Tang) to deal with the Land. Since the Deceased trusted the plaintiffs and appointed them as the executors of his estate, there was no reason why the Deceased would not also trust that the plaintiffs could deal with the Land if he found it necessary to have someone to assist him.

38.Third, the situation in 1992 is different from the situation in 1983. The first lease was allegedly recorded in the Lease Book in 1982. This was before the Land was transferred to the Deceased in 1983.  By 1992, the Deceased had already become the registered owner of the Land. Hence, if the lease was to be renewed, one would naturally expect the Deceased to be named as the landlord even if the 1^st defendant was authorized to deal with the rental matters on behalf of the Deceased. Yet, this was not done. There is also no reference in the relevant part of the Lease Book that the 1^st defendant was acting as agent for and on behalf of the Deceased. 

39.In this regard, the defendants’ background is relevant. The 1^st defendant is an educated person. He received education in Canada and has obtained a diploma in real estate management in around 1996 to 1997 (which was part of a master programme, although he did not obtain the master degree). During cross-examination, the 1^st defendant accepted that he was familiar with how lands in the New Territories should be managed and has a lot of lawyer friends whom he could consult. Thus, if the 1^st defendant was in fact authorized by the Deceased to manage the Land as the defendants alleged, one would expect the 1^st defendant to deal with the matter in at least a slightly more sophisticated manner (such as adding a clause that he signed as agent of the Deceased). This was not done, not to mention that no power of attorney or informal letter of authorization was ever made. On the other hand, the 2^nd defendant, on his own case, was at the material time a businessman. He leased lands in the New Territories and operated businesses such as a “Pak Yick Construction Eng. Co.”. He also knew at the time that the Land was transferred to the Deceased in 1983. That being the case, one would expect the 2^nd defendant to seek a more sophisticated form of protection following the transfer of the Land to the Deceased. Yet, no such steps were ever taken.

F.3     Alleged Renewal in 2003

40.The defendants’ case and their testimonies in this aspect are highly unsatisfactory. If the 1^st defendant had been authorized to deal with the Land on behalf of the Deceased in the way the defendants sought to allege, the 1^st and 2^nd defendants’ case and testimonies should be consistent. However, different versions had been put forward and the defendants’ failed to provide any satisfactory explanation for the inconsistencies.

41.The first version (“1^st Version”) is contained in a letter dated 23 December 2005 sent by the 2^nd defendant’s solicitors Andrew Chan & Co. to the plaintiffs’ then solicitors Anthony So & Co. (see paragraph 18 above). As stated above, the 2^nd defendant asserted in this letter that he had a tenancy for a term of 10 years expiring on 31 December 2012.

42.The second version (“2^nd Version”) was the one put forward when the defendants opposed the plaintiffs’ application for interim injunction in early 2006. At the time (when the 1^st defendant was legally represented), paragraphs 8 and 9 of the Affirmation of the 1^st defendant (affirmed on 1 February 2006) stated as follows :

“8.     On or about 1^st January 2003, again my father and I negotiated with the 2^nd Defendant for renewal of the lease.  It was then in Ka Shing Restaurant, we in principle agreed that the lease was to be renewed but we wanted a higher rent and a new term. As we could not at that time agree on the new rent and term, we agreed to renew the lease but the rent would continue to be HK$5,000 until further review. The renewal of the lease was agreed in writing or evidenced in writing in the lease signed by me for and on behalf of my Father, as we intended to have the rent and term revised later, they were not stated in the lease book.  …  [the extract of the Lease Book was then produced]

9.       On or about 10^th January 2003, my Father and I further discussed with the 2^nd Defendant about the terms of the lease. We agreed that the term should be until the end of 2010. As for the rent, the 2^nd Defendant agreed to a rise but demanded that the rest of the Lot No. 1927 should be retrieved for his use under the lease. My father and I considered it a fair request and we agreed that the rent would be raised after the retrieval of the rest of the land and the rent until then would continue to be HK$5,000 per year. The renewal of the lease was agreed in writing or evidenced in writing signed by me for and on behalf of my Father. The rent was not stated in the lease book as there should be new rent after retrieval of the land.  … [the extract of the Lease Book was then produced]”

43.Unlike the 1^st Version under which the lease was said to expire on 2012, the 2^nd Version suggested that the lease would expire on 2010. The 2^nd defendant failed to explain this discrepancy.

44.The third version (“3^rd Version”) is the one contained in the 2^nd defendant’s Amended Defence prepared by his then solicitors and filed on 4 June 2008. Paragraphs 3(d) and (e) of the 2^nd defendant’s Amended Defence pleaded that the renewed term was from 1 January 2003 until the end of 2010 and the rent is HK$5,000 per year. Further, the 2^nd defendant also relied on the Lease Book. Unlike the 1^st Version, the expiry date alleged in the 3^rd Version is the end of 2010 and not 2012. Unlike the 2^nd Version, the 3^rd Version made no reference to any increase of rent.  Instead, the rent was simply pleaded as HK$5,000 per year. Nor was there any reference to the 2^nd defendant’s alleged demand for the use of the rest of Lot No. 1927 (which was mentioned in the 2^nd Version). If the 2^nd Version is true, the 2^nd defendant’s request for the use of the rest of the Land was an important matter and could not have been missed.

45.The fourth version (“4^th Version”) is the one contained in the 2^nd defendant’s Witness Statement filed on 14 July 2008 (i.e. only slightly more than a month after the Amended Defence was filed and when he still had the benefit of legal representation). Paragraphs 9 to 12 of the 2^nd defendant’s Witness Statement asserted as follows :

“9.     On or about 1^stJanuary 2003 and shortly after the expiration of the 1992 lease, I negotiated with the Deceased and the 1^st Defendant again for the renewal of the lease. This time we met in Ka Shing Restaurant which is also in Yuen Long. We agreed in principle that the lease was to be renewed but the 1^st Defendant and the Deceased wanted a higher rent and a shorter term. As we could not at that time finalize the new rent and term, so we agreed to renew the lease first but on the rental, I should pay the old rent at HK$5,000 per annum which would be subject to review. The renewal of the lease was agreed in writing or evidenced in writing in the lease book signed by the 1^st Defendant for and on behalf of the Deceased. As the rent and the term would be finalised later, they were not stated in the lease book.  …  [the 2^nd defendant then produced an extract from the Lease Book]

10.     On or about 10^th January 2003, I further discussed with the Deceased and the 1^st Defendant about the term of the lease.  We finally agreed that the term should be until the end of 2010. As for the rent, I agreed to a rise but I demanded that the rest of the Lot No.1927 should be retrieved for my own use under the lease. The Deceased and the 1^st Defendant considered it a fair request and we agreed that the new rent would be payable after possession of the rest of the land was regained and delivered to me for my use but for the time being the rent until then would continue to be HK$5,000 per annum. The renewal of the lease was agreed in writing or evidenced in writing signed by the 1^st Defendant for and on behalf of the Deceased.  The new rent was not stated in the lease book as the amount would be revised and finalised after I had obtained possession of the remaining part of Lot No.1927.  …  [the 2^nd defendant then produced an extract from the Lease Book]

11.     On 3^rd February 2003, I called the 1^st Defendant and told him that I wanted to meet him and finalise the issue on the new rent. We met at Maxim Restaurant at Tin Yiu Estate, Tin Shui Wai at about 11:00 a.m. During this meeting we had a discussion on the terms of the new lease but finally we agreed that the term was only for five years effective from 1^st June 2003 to 31^st May 2008 and that the new rent payable should be HK$60,000.00 per month subject to the following condition:-

(a)   the landlord should be responsible for all the costs incurred in providing two entrances to the Property and the drainage system;

(b)   the landlord should also be responsible for planting trees and costs for environmental protection but the maintenance fee will be borne by the tenant.

After finalising the major terms of the tenancy, the 1^st Defendant attended my office and we signed a formal tenancy agreement to this effect. There is now produced and shown to me marked ‘LK-5’ a copy of the said tenancy agreement in Chinese. The format of this Chinese agreement was drawn up by my staff at my instructions and material terms were inserted by the 1^st Defendant by hand.

12.     In the premises I verily believe that the Property was leased to me by the Deceased through the 1^st Defendant who acted as his agent until the end of 2010 under a written agreement or alternatively under an oral agreement evidenced in writing and I am the lawful tenant of the Property.”  [Emphasis added]

46.This 4^th Version is evidently self-inconsistent. Paragraph 11 of the 2^nd defendant’s Witness Statement asserted that the term was finally agreed to be five years from 1 June 2003 to 31 May 2008. However, paragraph 12 thereof concluded by asserting that the Land was leased to him until 2010. 

47.It is plain from the above discussion that altogether three different expiry dates had been suggested by the defendants, namely, 2012, 2010 and 2008. On the afternoon of the second day of this trial and upon being asked by this court, both defendants maintained that the correct expiry date is 2008. However, on the evidence adduced by the defendants and even taking into account their oral testimonies in court, there is no way to resolve the conflict of evidence concerning the different expiry dates of the alleged renewed lease.

48.The reference to the Chinese tenancy agreement dated 3 February 2003 (“Alleged Tenancy Agreement”) (exhibit D4) in the 4^th Version is highly material in the consideration of the defendants’ case.  Neither of the defendants referred to this Alleged Tenancy Agreement when they opposed the plaintiffs’ application for interim injunction in early 2006. Instead, as pointed out above, the 1^st defendant in his relevant affirmation stated that the renewed term would expire at the end of 2010.  Besides, the 1^st defendant at the time only relied on the extracts from the Lease Book and not the Alleged Tenancy Agreement. 

49.The 2^nd defendant’s Amended Defence likewise made no reference to the Alleged Tenancy Agreement. The 1^st defendant’s Defence or Witness Statement did not really address the alleged renewal in 2003 and also made no reference to this Alleged Tenancy Agreement as well.  Further, this Alleged Tenancy Agreement was not disclosed in the 2^nd defendant’s List of Documents filed by Tang, Wong & Cheung on 26 June 2008. It was only first disclosed in the 2^nd defendant’s Supplementary List of Documents filed on 14 July 2008 (i.e. the same day when the 2^nd defendant’s Witness Statement was filed).

50.Bearing in mind the nature of the parties’ dispute and the history of this action, I have serious reservation about the genuineness of this Alleged Tenancy Agreement. From the very beginning, the defendants knew full well that it is the plaintiffs’ case that the defendants trespassed the Land. From the very beginning, the defendants defended by asserting that the Land had been leased to the 2^nd defendant through the 1^st defendant as the agent of the Deceased. That being the position, one would expect the defendants to rely on the Alleged Tenancy Agreement right from the start as a defence if it in fact existed. Yet, despite the letter before action sent in December 2005, which was followed by the commencement of this action and the plaintiffs’ interim injunction application in early 2006, no reference was made to the Alleged Tenancy Agreement by the defendants until much later. The defendants’ case based on the Alleged Tenancy Agreement has all the hallmarks of an afterthought. 

51.Although the defendants were not legally represented at the trial, they did previously have legal representation. In particular, the 1^st defendant was legally represented at the time of the interim injunction application while the 2^nd defendant had legal representation until his Witness Statement was filed. At the time when the defendants had legal representation, their solicitors would naturally explain to them the nature of the claim and take instructions on matters relevant to their defence. As the defendants gave instructions on the renewal of the leases as well as made reference to extracts from the Lease Book, they certainly understood the nature of the claims and what would assist them in their defence. Viewed thus, if the Alleged Tenancy Agreement were in fact in existence as the defendants alleged, it is highly improbable, if not impossible, that the defendants would have forgotten about it. 

52.The late emergence of the Alleged Tenancy Agreement cried out for an explanation. Yet, the defendants were unable to offer any satisfactory explanation for their failure to disclose the Alleged Tenancy Agreement in this action before July 2008. When cross-examined by Mr. Robert Tang as to why he did not disclose the Alleged Tenancy Agreement during the plaintiffs’ interim injunction application, the 1^st defendant said he knew he needed to explain the 2^nd defendant’s status as a tenant but thought that whatever lease would be sufficient for such a purpose. In light of the matters discussed above, I find this purported explanation difficult to accept. As regards the 2^nd defendant, he accepted during cross-examination by Mr. Robert Tang that he could not explain why he did not refer to the Alleged Tenancy Agreement at the interim injunction application.

53.To complete the picture, I should add this. Each of the 1^st and 2^nd defendants made an affirmation in the Probate Action (both filed on 16 May 2007). In his affirmation filed in the Probate Action, although the 1^st defendant did make a passing reference to the Alleged Tenancy Agreement, the account given and the approach adopted there were quite different from the defendants’ case in this action. On the other hand, the 2^nd defendant’s affirmation (in Chinese) filed in the Probate Action is very brief and did not deal with the alleged renewals of lease in detail. However, two aspects are important. First, contrary to his testimony in court, the 2^nd defendant suggested in paragraph (2) of his affirmation filed in the Probate Action that he did not know the Deceased before the Land was transferred to the Deceased in 1983. Second, the account given in his affirmation filed in the Probate Action in respect of the alleged renewal in 2003 is markedly different from this witness statement filed in this action. On the whole, when compared with the defendants’ pleadings and evidence in this action, the defendants’ affirmations filed in the Probate Action raised more questions than provided answers to the problems in the defendants’ case.

54.Putting aside the matters discussed above, the contention that the Deceased would at that time authorize the 1^st defendant to act as his agent in dealing with the Land and the renewal of lease is in any event inherent improbable. The relationship between the 1^st defendant and the Deceased at the end of 2002 or early 2003 could not possibly be good or cordial.

55.As stated above, there was the 1999 Action commenced by the 1^st defendant against, among others, the Deceased. The 1999 Action was commenced on 4 August 1999. Allegations were specifically made against the Deceased and the 1999 Action resulted in payment made by the Deceased to the 1^st defendant. The proper inference to be drawn is that the Deceased would not be pleased with the commencement of the 1999 Action by the 1^st defendant.

56.Even more telling is the Codicil made on 6 December 2004. As pointed out in paragraph 11 above, the Deceased in paragraph 2 of his Codicil directed that, amongst others, the 1^st defendant be excluded from attending his memorial service and/or funeral service and/or burial service and that his name be excluded from his obituary. This is highly unusual, especially in view of the fact that the Deceased is a Chinese and the 1^st defendant is his son of the first marriage. 

57.In the absence of any suggestion or evidence that some events took place after early 2003 which led to a deterioration of the relationship between the Deceased and the 1^st defendant, the 1999 Action and the Codicil show that the relationship between the 1^st defendant and the Deceased during the period from 1999 to end of 2004 could not possibly be a good one. Instead, the Deceased must have a very strong negative feeling towards the 1^st defendant; otherwise the Codicil would not have been made in such an unusual way. Furthermore, I should add that the allegation made by the 1^st defendant that he had at the material time a good relationship with the Deceased remained a bare allegation and was not supported by any objective or contemporaneous evidence.

58.Lastly in this regard, I would add two observations. First, as discussed above, there was no objective reason for the Deceased to appoint the 1^st defendant as his agent. This observation applies equally to the alleged renewal in 2003. Second, my above findings that the 1^st defendant had not been authorized by the Deceased to deal with the lease after the transfer in 1983 or the alleged renewal in 1992 also makes it unlikely that the Deceased would have authorized the 1^st Defendant to deal with the alleged renewal of the lease in 2003. 

F.4     Credibility and Reliability of Witnesses

59.Both the 1^st and 2^nd defendants testified at the trial. In light of my above discussion in Sections F.1 to F.3 above and having seen them testifying in the witness box, I find that both the 1^st and 2^nd defendants are not credible or reliable witnesses. Not only were the defendants’ testimonies inherently improbable and unbelievable, there were inconsistencies and exaggerations here and there. In coming to this conclusion, I have taken into account the fact that the defendants were not legally represented at the trial. However, having given them all possible allowances, I remain of the view that they are neither credible nor reliable witnesses. 

60.Mr. Robert Tang testified for the plaintiffs. Strictly speaking, it is not necessary to deal with the credibility of Mr. Robert Tang. As discussed above, there is no dispute over the ownership of the Land and the burden rested with the defendants to establish their defence that the 2^nd defendant was at the time a lawful tenant. Given the highly unsatisfactory state of the defendants’ evidence, this court is in a position to reject the defence without considering the credibility of Mr. Robert Tang. However, having seen Mr. Robert Tang testifying at this trial and having considered his testimony against the evidence adduced for this trial, I find Mr. Robert Tang a reliable witness. Accordingly, insofar as there is any conflict between the testimony of Mr. Robert Tang and the testimonies of the defendants on matters material to the determination of this dispute, I accept that of Mr. Robert Tang and reject those of the defendants.

61.The defendants called a Mr. Chan Wing Hong (陳永康) (“Mr. Chan”) as their witness with a view to supporting their case that the 2^nd defendant had been occupying the Land before 2005. In addition to a very brief letter dated 5 January 2009 signed by him and produced at this trial (which basically served as a substitute as Mr. Chan’s witness statement as none had been filed before the trial commenced), Mr. Chan gave brief testimony at this trial. However, without seeking to make any criticism against him, Mr. Chan’s testimony is not helpful. Mr. Chan only testified that he occasionally saw the 2^nd defendant and his mother embarking upon agricultural or other activities on the Land. Such evidence, however, does not necessarily point to the existence of any lease. As the Land was not fenced off prior to Mr. Robert Tang’s attempt to do so in December 2005, the activities carried on by the 2^nd defendant and his mother on the Land could well be done without any lease. Adverse possession of lands in the New Territories was and is not unusual. Besides, Mr. Chan’s testimony understandably did not touch on the issue of whether the Deceased had authorized the 1^st defendant to deal with the Land.

F.5     Conclusion on Alleged Authorization

62.For the reasons discussed above, I find as a fact that the Deceased had never authorized the 1^st defendant to act as his agent to deal with the Land or to negotiate or enter into any lease in respect of the Land with the 2^nd defendant. In particular, I find as a fact that the Alleged Tenancy Agreement was not made with the authority of the Deceased. In other words, the 1^st defendant did not have any actual or implied authority to deal with the 2^nd defendant; nor did the 2^nd defendant have any ostensible authority as I find that the Deceased had not made any representation to the 2^nd defendant regarding the 1^st defendant’s authority. In the circumstances, whatever arrangement (if any) made by the 1^st defendant with the 2^nd defendant was and is not binding on the Deceased or his estate. It follows that I also reject the defendants’ contention that the 2^nd defendant was at the material time a lawful tenant of the Land. It also follows that I accept and find as proved that the 2^nd defendant’s occupation and use of the Land and the defendants’ activities thereon in December 2005 (summarized in paragraphs 14 to 17 above) were unlawful and amounted to acts of trespass.

G.      LEASES

63.As explained in paragraph 27 above, the above conclusion and findings on the issue of authorization (or more precisely, the lack of authorization) is sufficient to dispose of this action. Strictly speaking, it is not necessary to determine the question of whether the 1^st defendant had entered or purported to enter into any lease arrangement with the 2^nd defendant in respect of the Land. Should this matter go further and insofar as may be necessary, I do reject the defendants’ case in this regard as well. My reasons can be briefly stated as follows. 

64.As stated above, the defendants are unreliable witnesses. I appreciate that a witness may be untruthful about one matter and yet truthful about another. However, having considered the evidence in the round, I have difficulty in accepting the defendants’ evidence whether on the issue of authorization or the issue of whether a lease was made and renewed twice. In short, I find that the defendants’ lack of credibility is not confined to the authorization issue. Their testimonies on the alleged existence of a lease and their renewal are likewise not credible.

65.It appears to be no coincidence that the series of activities on the Land in December 2005 took place shortly after the 1^st defendant was informed of the death of the Deceased. If the Land had been leased to the 2^nd defendant, one would expect the defendants to produce the Alleged Tenancy Agreement to the police in December 2005 when their activities were challenged by the plaintiffs. This was not done. As stated above, they did not refer to the Alleged Tenancy Agreement even at the stage when they opposed the plaintiffs’ application for interim injunction. Besides, as stated above, apart from the 2^nd defendant, there was the other person, a Mr. Lee Kwok Pang, who also asserted that he had rented the Land from the 1^st defendant. One asks the question: could it be a mere coincidence that this Mr. Lee Kwok Pang also asserted that he leased the Land from the 1^st Defendant (and not directly from the Deceased), or is it more likely than not that the 1^st defendant was behind the activities in December 2005 (i.e. those summarized in paragraphs 14 to 17 above)? On the evidence, the latter is the proper inference to be drawn.

66.The 1^st defendant produced two rental receipts. The first one dated 23 December 2004 (exhibit D2) purports to show rental for the month of January 2005 in the sum of HK$60,000 was paid in cash. The second one dated 26 September 2005 (exhibit D3) purports to show that rentals for the months of March and April 2005 in the sum of HK$120,000 were paid in cash. Paying a sum of HK$60,000 in cash is already unusual. Paying a sum of HK$120,000 in cash is even more unusual. Besides, in paragraph (4) of the 2^nd defendant’s affirmation filed in the Probate Action, he suggested that no rental receipt had ever been issued to him. Viewed in the context of this case and against the testimonies of the defendants, I likewise have serious reservation about the genuineness of these two rental receipts.

67.As pointed out above, the testimony of Mr. Chan does not support the existence of any lease. There is no other contemporaneous or objective evidence which can establish the existence of a lease on a balance of probabilities. I have explained my reservation as to the genuineness of the Alleged Tenancy Agreement. I appreciate that the defendants relied on copy extracts from the Lease Book on numerous occasions. However, notwithstanding its importance and despite being reminded by this court, the defendants failed to produce the original of the Lease Book. The plaintiffs’ former solicitors inspected the original of the Lease Book on 3 March 2006 and an attendance note was made. The attendance note only shows the physical existence of the Lease Book and that it contained the pages relied on by the defendants, but no further. As the original of the Lease Book was not produced, this court has no chance to see the other contents of the Lease Book (in terms of date, format, contents and others) and compared them with those relied on by the defendants.I would not say this failure on the defendants’ part is by itself fatal. However, viewed together with the other unsatisfactory features of the defendants’ evidence, the failure to produce the original of the Lease Book and the absence of a satisfactory explanation for such a failure are certainly matters that this court can take into account when assessing the defendants’ case.

68.Even if the copy extracts of the Lease Book are to be taken into account, there is the issue of whether they constitute a valid lease. Strictly, I do not need to decide this. Suffice it to highlight that in paragraph 22 of his Reasons for Decision dated 4 March 2006 (given for the interim injunction application), Chung J. pointed out that the lease allegedly made in early 2003 based on the copy extracts from the Lease Book failed to comply with section 4(1) of the Conveyancing and Property Ordinance, Cap. 219. 

69.For these reasons and insofar as may be necessary, I rule and find that the defendants have failed to establish that there was any valid lease arrangement in respect of the Land. 

H.      RELIEF AND ORDER

70.The relief sought in the Amended Statement of Claim has been set out in paragraph 19 above. 

71.In light of my findings and rulings above, I rule that the plaintiffs are entitled to possession of the Land to the exclusion of the defendants. Further, given the history of this matter and the conduct of the defendants, the interim injunction previously granted in early 2006 by Chung J should be continued and be made a permanent injunction. I appreciate the defendants claimed that they had not returned to the Land after the interim injunction was granted. However, given their past conduct and the way in which this action was defended, it would only be prudent and just to continue the injunction. I would also take this opportunity to remind the defendants that they should not, whether by themselves directly or through others, attempt to create difficulties for the plaintiffs to take possession of the Land.

72.During the trial, the plaintiffs applied to withdraw the claim for the removal order (i.e. the order referred to in paragraph 19(3) above).  The defendants did not object to this application and the application was thus allowed during the trial. I therefore need not consider that aspect any further.

73.The next head of claim is damages. The plaintiffs have not suggested the amount of damages that should be awarded to them, nor have they adduced any evidence of quantum. When asked by this court during this trial, the plaintiffs indicated that they were happy to abandon their claim for damages. As I understand, the plaintiffs do not want to incur further expenses to adduce evidence to deal with the issue of quantum. The position adopted by the plaintiffs is understandable. I believe they must have already incurred significant legal costs in dealing with this action and the Probate Action.

74.In view of the absence of evidence, this court cannot arbitrarily pick a figure and use that as the amount of damages for the plaintiffs. However, the plaintiffs have established their case and have plainly suffered damages (for instance, the putting up of the iron poles and iron chains on around 5 December 2005 referred to above). In the circumstances, I am of the view that an award of nominal damages will not be inappropriate. On the one hand, such an award of nominal damages shows that the plaintiffs have established their case against the defendants. On the other hand, it will not cause injustice to the defendants as they surely will not have to pay more compensation to the plaintiffs than is justified. In the circumstances, I award nominal damages to the plaintiffs in the sum of HK$10,000. For the avoidance of doubt, the defendants’ liability to pay this HK$10,000 should be joint and several.

75.Accordingly, I order that final judgment be entered in favour of the plaintiffs and against the 1^st and 2^nd defendants for the following relief :

(1)     A declaration that the plaintiffs (in their capacity as executors of the Deceased’s estate) are entitled to take possession of and occupy the Land to the exclusion of the defendants.

(2)     An injunction restraining the 1^st and 2^nd defendants, whether by themselves or their servants or agents or otherwise, from trespassing the Land and/or doing or causing any damage to the Land or any properties thereon or otherwise committing any nuisance thereon.

(3)     The defendants do pay to the plaintiffs nominal damages in the sum of HK$10,000, with interest thereon at judgment rate from the date of this judgment until full payment.

76.I should add that I make the declaration as stated in paragraph 75(1) above instead of the standard possession order because this court was informed at the trial that the 2^nd defendant had already vacated the Land. In the circumstances, I take the view that a declaration will do justice to the parties instead of an order of possession.

77.In addition, I make an order nisi that the defendants do pay to the plaintiffs the costs of and incidental to this action (including any costs reserved).  Whilst the parties acted in person at this trial, there were previous legal costs involved and thus I believe it is necessary and appropriate to make this costs order nisi.

The plaintiffs, represented by the 1^st-named plaintiff, appeared in person.

The 1^st defendant, appeared in person.

The 2^nd defendant, appeared in person.

Appeal by the 2nd Defendant to Court of Appeal dismissed. Please refer to CAC140/2010 dated 31 March 2011