Cheng Choi and Another v. Cheng Shek on

DCCJ 1298/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1298 OF 2009

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Coram: H.H. Judge Chow

Hearing date: 27^th April, 2010

Date of handing down Decision : 28^th May, 2010

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Decision

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1.In this action, the Plaintiffs, being the registered owners of the piece of land known as Lot No. 84 in D.D. 195, Shatin, New Territories (“the Land”), claim for possession of the Land because the Defendant has been in wrongful and illegal occupation of the Land since sometime in or about 1997.

2.By summons dated 26.2.2010, the Defendant applies for the following interlocutory injunctions against the Plaintiffs:-

(1) An injunction restraining the Plaintiffs from damaging, blocking, obstructing or impeding access of the Defendant to two brick houses (“the Brick Houses”) situate on the Land;

(2) An injunction ordering the Plaintiffs to remove a wire fence which encloses the two brick houses.

3.The Land is owned by the Plaintiffs, but the Defendant’s family occupied and possessed the Brick Houses existed thereon for pig rearing purpose from 1959 till 1988.  In January 2010, the Plaintiffs erected a wire fence enclosing the Brick Houses and obstructing the Defendant’s access thereto.  The Defendant claims that he has been in adverse possession of the Brick Houses for over 20 years.  Therefore the Plaintiffs’ title thereto was extinguished.  It follows that the erection of the wire fence amounts to trespass.

4.In 1959 the Defendant’s father erected a brick house (“the 1^st Brick House”) on the Land for pig and poultry rearing purposes.  In 1962, the wife of the Defendant’s father’s elder brother erected another brick house (“the 2^nd Brick House”) on the Land for pig and poultry purposes.  In 1966, she emigrated to the United Kingdom, and the Defendant’s father took it over for pig rearing purpose.  The Defendant and his father continued to use the Brick Houses for pig and poultry rearing purpose until 1988.

5.In his 1^st affirmation (filed on 26.2.2010), the Defendant said:-

“14……My father and I continued using the Brick Houses for commercial pig rearing purpose.  …..The doors of the Brick Houses were locked to the exclusion of others.  My father also planted trees around the Brick Houses.  …..

22. In fact I have been using the Brick Houses to keep my farming tools, a long ladder, chairs, different types of kitchen implements, firewoods and other building materials and tools.  Generally speaking, over the years I and my family members go over to the Brick Houses at least a few times per week.  It is because we grew vegetables and plants in a small farm in the Village for own service.  Moreover, though we have the modern gas stove, we still like to use the traditional stove with firewood as fuel for cooking.

23. Therefore, the allegation that since 1988 the Brick Houses were left vacant and derelict ….. was totally untrue.”

(Underlines provided)

6.The Defendant alleges that on the issue of the Defendant’s claim for adverse possession of the Brick Houses, there is a serious question to be tried.

7.In his second affirmation (filed on 20.4.2010), he commented on the contents of the affirmation of Cheng Choi, the first named Plaintiff.  He refers to Exhibit “CC-5” (exhibited by Cheng Choi) and pointed out that there are 2 bundles of drift wood as fuel for the traditional stove to fire tea leaves, two big water buckets used by him to water the farm land nearby, some metal rods and metal plates, to be used by him for reparation, and some sand bags stacked up by his father in 2005 in order to raise the floor level to avoid flooding.  He said that it supports his case that all along they maintain the Brick Houses as their own property.

8.The Defendant claims that his family members visit the Brick Houses a few times per week.  Photos 24, 25, 27, 28, 29, 33, 35, 36 in Exhibit “CSO-4” in his first affirmation show the state and conditions of the 2 Brick Houses.  There are 4 rectangular holes (1 big and 3 small) on the walls of the Brick Houses.  The big one, no doubt, was formerly used as a door.  There is a round pipe going through it; shrubs and plants grow just outside it and at its edge.  It is in a derelict state.  Anyone can go through it without any difficulty into this Brick House.  Another Brick House has 2 holes on the wall.  No doubt they were formerly used as windows.  Anyone can enter this Brick House through these 2 holes.

9.The lower photo (on P.93 of the Trial Bundle) annexed to Exhibit CC-5 of the affirmation of Cheng Choi shows that there is a long rectangular hole on the roof of 1 of the Brick Houses.  The roof is broken.  Through this hole, rain water no doubt can pour in and wet the things inside.  If the Defendant really does use the Brick Houses for storage purpose, why does he allow a big hole to exist on the roof of one of these Brick Houses?  If he really does regularly visit the Brick Houses a few times per week, why does he allow plants grow at the edge of the “door” as well as just outside it?

10.He said that the doors of the Brick Houses are locked.  This is blatantly untrue, because the “door” is simply a big rectangular hole, not blocked by any wood plank or iron bars, with plants/shrubs growing at its edge and just outside it.  Anyone can freely go in and go out of this “door”.

11.No doubt the overall state of the Brick Houses is that they are in a dilapidated state.  This is inconsistent with the allegation that they are being constantly used.  No explanation about the present state of the Brick Houses has been offered. 

12.For the purpose of constituting adverse possession, the claimant must have the necessary intention to exclude others from using the land in question: Powell v McFarlane and Another (1977) 38 P&CR 452.  In this connection the only evidence is the mere assertion that the doors of the Brick Houses are locked to exclude others.  The photos produced by the Defendant himself clearly rebut such assertion.  There is no evidence to show that the Defendant intends to exclude others from entering the Brick Houses.  His claim for adverse possessions is bound to fail.  There cannot be any issue for trial.  His application for injunction cannot succeed, and I dismiss it.

Costs

13.I make an order nisi, to be made absolute in 14 days’ time, that the Defendant do pay costs of this application to the Plaintiffs, to be taxed, if not agreed, with certificate for counsel.

The Plaintiffs:  represented by Miss Rachel Lam, instructed by Messrs A.M. Mui & Kwan, Solicitors

The Defendant:   represented by Mr. Ross Yuen, instructed by Messrs Wong, Kwan & Co., Solicitors.