Lin Jianchun v. Lin Xiumei and Another

Please refer to HCMP157/2012 for the relevant appeal(s) to the Court of Appeal.

Case No.DCCJ 2491/2008

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCCJ 2491 of 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2491 OF 2008

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BETWEEN

	林建春 (LIN JIANCHUN)	Plaintiff
	and
	LIN XIUMEI (林秀梅) ALSO KNOWN AS林梅	1^st Defendant
	何宝鵬 (HO PO PANG)	2^nd Defendant

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Coram : Deputy District Judge Clement Lee in Court

Dates of hearing : 7^th, 8^th, 9^th and 13^th June, 2011

Date of handing down Judgment : 13^th July, 2011

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JUDGMENT

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A. BACKGROUND

1.The Plaintiff is the registered owner of Lot No. 427 in Demarcation District No. 51, North in Sheung Shui, New Territories, Hong Kong (“the Land”). The Plaintiff purchased the Land from Mr. Liu Tso Hung, who is also known as Liu Cho Hung (“PW1”) by way of an assignment dated 7^th February 2005. The Plaintiff claims against the 1^st Defendant for recovery of possession of the Land on the ground that she failed to pay arrears of rent due and payable. The Plaintiff accepts that the 2^nd Defendant might be a lawful occupier of the Land since 1995 until legal action was taken by virtue of his son and mother relationship with the 1^st Defendant who was the tenant of the Land. The Plaintiff also claims against the 1^st and 2^nd Defendants for arrears of rent or mesne profits for the use and occupation of the Land.

2.The 1^st Defendant claims that her late husband, Mr. Ho Lai Biu (“the late Mr. Ho”), herself and her son (the 2^nd Defendant) have been occupying the Land in different periods since 1976. Between 1976 and November 1994, the Land was occupied by the late Mr. Ho. Between 1989 and November 1994, the 1^st Defendant, as an illegal immigrant, occasionally occupied the Land together with her husband. Her husband died on 15^th November 1994 when she was in Hong Kong as an illegal immigrant. She did not occupy the Land for about 2 months between the end of November 1994 and January 1995. On or about 9^th January 1995, she was granted a two-way permit by the PRC government for staying in Hong Kong. Since February 1995, she continued to occupy the Land together with her son who was then aged 14 years old as at 1995. As at the date of her witness statement dated 15^th March 2010, she was still applying for a permanent residence status in Hong Kong.

3.By way of defence and counterclaim, the 1^st and 2^nd Defendants claim that the late Mr. Ho as a squatter dispossessed the paper title owner as early as in 1976. Although the late Mr. Ho died in November 1994, between 1989 and November 1994, the 1^st Defendant claims to be the joint squatters with her husband, though she said that she was an illegal immigrant at the time. Since February 1995 until 20^th March 2008 (the date when the Plaintiff sought possession of the Land in the Lands Tribunal), 1^st and 2^nd Defendants continued to be the squatters and dispossessed the paper title owner for more than 12 years.

4.In the light of the change of the legislation in 1991 reducing the limitation period from 20 years to 12 years. It is not in dispute that if the Court accepts that the adverse possession started as early as in 1976, 20-year limitation period applies. If the adverse possession started in February 1995 (as contended alternatively by the Defendants), 12-year limitation period shall apply.

5.In rebuttal of the Defendants’ contention as a squatter, the Plaintiff averred its landlord and tenant relationship with the 1^st Defendant. The 2^nd Defendant resided there as the son of the 1^st Defendant. Historically speaking, as early as in 1970, the Land was leased to the late Mr. Ho by Mr. Liu Kam Yiu (PW1’s brother) on PW1’s behalf. PW1 was the then landlord of the Land. Since about 1993 and after the death of Liu Kam Yiu, the Land was leased by PW1 directly to the 1^st Defendant by virtue of a written tenancy agreement. The said tenancy expired in 2000 and it became an oral tenancy since 2000. In or about November 2004, PW1 intended to sell the Land and requested the 1^st Defendant to sign a written tenancy agreement, she refused. Nonetheless, PW1 sold the Land to the Plaintiff in 2005 and the sale and purchase of the Land was made subject to a tenancy agreement between PW1 and the 1^st Defendant. According to the statutory declaration made by PW1 in the said sale and purchase, there was a written tenancy agreement between PW1 and the 1^st Defendant in 1993 but the said tenancy agreement and rental receipt was lost or mislaid.

6.Apart from rebutting the contention of squatter, the Plaintiff relied on the 1^st Defendant’s intention to pay rent. The incident happened in November 2004. PW1, accompanied by a village head, Mr. Liu Chun Kui (“PW2”) went to the Land and requested the 1^st Defendant to sign a tenancy agreement. She refused but she expressed her willingness to continue to pay rent. The Defendants agreed to the above except that the incident happened in early 2005, not November 2004 and they also disputed the allegation of willingness to pay rent.

B. ISSUES

7.The issues for determination at trial are:-

(1)   Whether the late Mr. Ho and his family have been in exclusive and continuous possession of the Land for more than (i) 20 years before 20^th March 2008 if adverse possession commenced prior to 1991? or (ii) 12 years before 20^th March 2008 if adverse possession commenced after 1991? Three subsidiary questions arise and they are:-

(a)   Whether the Defendants elect to testify under oath on the self-incriminating evidence regarding illegal entry and remaining;

(b)   If so, whether the periods of illegal remaining of the Defendants between (i) 1989 to 1995 or (ii) unoccupied period after 15^th November 1994 to 9^th January 1995 are to be counted in “possession” as a matter of law and evidence;

(c)   Whether and to what extent the death of the late Mr. Ho would affect the calculation of limitation period.

(2)   Whether the late Mr. Ho and his family had been in exclusive and continuous possession of the Land under the tenancy agreements made between Mr. Liu Kam Yiu on behalf of PW1 and the late Mr. Ho from 1976 to 1993 and between PW1 and the 1^st Defendant from 1993 to 2005 and thereafter between the Plaintiff and the 1^st Defendant.

(3)   Whether the late Mr. Ho and his family have the intention to possess the Land to exclude the world at large including the true owner of the Land. The subsidiary question is whether the late Mr. Ho and his family have been in possession of the Land with the consent of the Plaintiff or his predecessors.

C. LEGAL PRINCIPLES

8.The legal principles on adverse possession are lucid. In Wong Tak Yue v Kung Kwok Wai & Another [1998] 1 HKLRD 241, it was held by the Court of Final Appeal thata person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. Adverse possession could be described as “possession as of wrong” and with limitation it was the intention of the squatter that was essential. The question of intention to possess, as with any other question of intention, was one of fact.

9.Regarding the approach on dealing with evidence on intention, it was also held in the said case that where the occupier had made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the court should approach them with scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they might deserve. Conversely, where the occupier had made statements as to what was his intention and such statements were against his interest, the court would usually accord to them considerable weight. A defendant’s intention to pay rent if the owners had requested payment demonstrated that he was treating himself as enjoying possession under a lawful title from the owners. His intention to possess was not “as of wrong” but was “as of right”.

10.The recent judgment from the Court of Appeal delivered on 18^th February 2011 also sets out succinctly the legal statement on adverse possession, including the cases decided after Wong Tak Yue: see Yu Kit Chiu and Yu Hon Chiu, the Executors of Yu Ki Cheung v Chan Shek Woo by Chan Wai Chung his guardian ad litem, CACV 137/2010 as per judgment given by Hon Cheung JA:-

“Limitation Ordinance

13. When a person invokes adverse possession to defeat the title of the paper owner he does so by invoking the provisions of the Limitation Ordinance :

‘Section 7(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:

Section 8(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

Section 13(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

Section 17 Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.’

14. While the period of limitation under the current legislation is 12 years which is reduced from the previous 20 years, the case has been contested on the basis of a 20 years’ requirement.

Principles

15. A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess animus possidendi. This requirement has been authoritatively affirmed by the Court of Final Appeal in Wong Tak Yue v. Kung Kwok Wai & Another (No. 2) (1997-1998) 1 HKCFAR 55 which approved the principles enunciated by Slade J in Powell v. McFarlane (1979) 38 P & CR 452 and adopted in the subsequent line of cases such as R v. Secretary of State for the Environment ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v. Moran [1990] Ch. 623.

16. The intention to possess involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of law will allow (per Slade J in Powell at pp 471-472). The question of intention to possess is one of facts.

17. In The Incorporated Owners of San Po Kong Mansion v. Shine Empire Limited (2007) 10 HKCFAR 588 the Court of Final Appeal, per Nazareth NPJ, stated that

‘7. The principles for the application of ss. 7(2), s.17 and the associated provisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v. McFarlane [1977] 38 P & CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and adopted by this Court in Wong Tak Yue v. Kung Kwok Wai (1997-98) 1 HKCFAR 55.’

House of Lords’ decision

18. In J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419, the House of Lords affirmed the principles stated by Slade J in Powell. Lord Browne-Wilkinson at paragraphs 32 to 38 referred to the history of the English Limitation Act (upon which the Hong Kong Limitation Ordinance is based) and discussed the confusion in this area of the law. He held the problem was caused by the concept of ‘non-adverse possession’ engrafted by the common law and equity onto the early limitation statutes. He held at paragraph 36, that

‘ 36 Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner. It is said that he has to “oust” the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; that the squatter’s use of the land has to be inconsistent with any present or future use by the true owner. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.’

19. He continued to state at paragraph 37 that

‘The taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act.’

and

‘there will be a “dispossession” of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have “dispossessed” the true owner for the purposes of [our section 8(1)] [paragraph 38].’

20. Referring to paragraph 8(1) of Schedule 1 of 1980 Limitation Act [our section 13(1)], Lord Browne-Wilkinson held that the reference to adverse possession in that paragraph is directed not to the nature of the possession but to the capacity of the squatter [paragraph 35].”

D. EVIDENCE

11.The Plaintiff called 3 witnesses to testify. They are Mr. Liu Tso Hung who is also known as Mr. Liu Cho Hung (PW1), Mr. Liu Chun Kui (PW2) and Mr. Wong Kwok Keung (PW3). PW1 was the previous landlord of the Land. PW2 was a village head who was present when 1^st Defendant was allegedly said to indicate to continue to pay rent. PW3 was one of the tenant and occupier of a hut in the Land. He moved out from the Land in 2006. He said that 1^st Defendant was one of the tenants of the Land. Whereas the 1^st and 2^nd Defendants and Mr. Chan Wan (陳穩) (DW3) testified for the defence case. The Defendants’ case is set out hereinbefore. DW3 testified how the late Mr. Ho grew fruit trees in 1980’s and the Land was “fenced off”.

PW1’s evidence

12.The material evidence of PW1 is summarized as follows. In about 1952, when he was 17 years of age, he went to PRC to further his study. He acquired the Land from Liu Kwai Fat Tso (廖貴發祖) on 22^nd October 1964 by virtue of a deed of gift. In or about 1979, he told his elder brother Mr. Liu Kam Yiu to assist managing the Land and the rent went to Mr. Liu Kam Yiu. Thus, between 1979 and 1992, the Land was managed by Mr. Liu Kam Yiu. Mr. Liu Kam Yiu died on 20^th November 1992 and PW1 began to manage the Land himself. He recalled an occasion after 1992 that when he collected rent from Lai Yuk for another adjacent piece of land, Lai Yuk told him that there was another tenant with surname Ho who was occupying a hut on the Land. He went there and saw a woman in 40’s (subsequently known as the 1^st Defendant). The said lady introduced herself as Lam Mui. She expressed that her husband was sick and she would and did pay the rent. Upon the 1^st Defendant’s request, PW1 signed on a piece of paper acknowledging the receipt of the rent for that year. He also confirmed what he said in the statutory declaration. In particular, he said that the 1^st Defendant signed a tenancy agreement regarding the Land in 1993 but it was lost or mislaid. As at 2000, the said tenancy expired and it became an oral tenancy. Since then, around Lunar New Year, he went there to collect yearly rent from the 1^st Defendant and signed on a piece of paper provided by her as receipt for her record. PW1 recalled that since 1997, the yearly rent was $600 but before that he did not recall as to how much but it must be less than $600.

13.In about 2004, some potential purchasers intended to acquire the agricultural land in that area including the Land. To satisfy the needs of the potential purchaser, in or about November 2004, PW1 accompanied by the village head PW2, went to the 1^st Defendant and asked her to sign a written tenancy agreement. She refused to sign but expressed her willingness to continue to pay rent. They left in the light of her promise.

PW2’s evidence

14.The material evidence of PW2 is summarized as follows. He is an indigenous villager of Sheung Shui Village (上水鄉). As far as he knows, before early 1970’s, the Land and the adjacent lot no. 426 were cultivated by PW1’s brother, Mr. Liu Kam Yiu. On an occasion in early 1970’s, Mr. Liu Kam Yiu told him that he had abandoned cultivation, hence the Land and the adjacent lot were leased to the late Mr. Ho and Lai Yuk.

15.He recalled that in about November 2004, upon PW1’s request, he accompanied PW1 to look for the Land’s tenant with a view to ask her to sign a tenancy agreement and to collect rent. He saw a lady who was later known as the 1^st Defendant. She refused to sign without explanation but expressed her willingness to continue to pay rent.

16.PW2 also produced a document dated 14^th July 2006 that the 2^nd Defendant signed as a tenant to give up possession of Lot 426, the lot adjacent to the Land in return for HK$50,000.

PW3’s evidence

17.The material evidence of PW3 is summarized as follows. In about 1993, there were 4 huts on the Land and he rented one of them from Lai Yuk. There were another 2 huts or structures occupied by a lady (subsequently known as the 1^st Defendant) and her children. In 1994, he went to the PRC to make a living and he did not reside there. In 1997, Lai Yuk died. PW2 returned and leased from PW1 the hut and the Land previously rented by Lai Yuk. He signed a tenancy agreement and the yearly rent is HK$600. Thereafter, around Lunar New Year, PW1 went to him and the 1^st Defendant to collect the rent. PW1 sometimes asked PW3 for a blank rental receipt for issuance to the 1^st Defendant. He also recalled an occasion that he saw the 1^st Defendant passed HK$600 to PW1. He moved out from the Land in about 2006.

1st Defendant’s evidence

18.The material evidence of the 1^st Defendant is summarized as follows. She was born on 2^nd July 1939. She is illiterate. She does not speak Cantonese and she only speaks a provincial dialect known as Hoi Fung (海豐). She married to the late Mr. Ho on 7^th October 1959 in the PRC. They have 2 children, namely Ms. Ho Po Ming and Mr. Ho Po Pang (2^nd Defendant). Her husband died on 15^th November 1994 and she became the administrator of the estate.

19.Regarding possession of the Land, since 1989, the 1^st Defendant occasionally sneaked into Hong Kong and lived in the Land. On or about 9^th January 1995, 1^st and 2^nd Defendants were issued the two way permit for staying in Hong Kong. Since about February 1995, she and her son have been residing there. She recalled that as early as in 1989 when she first arrived at the Land, her husband already had a wooden hut and a toilet in the Land for residential purpose. Her husband also grew fruit trees in the Land and in an adjacent piece of Land, that is Lot No. 426. Her husband has built metallic mesh fence around the Land with a gate and padlock at the entrance.

20.In 1996, she and her son constructed a few more temporary wooden huts on the Land and continued to repair the metallic mesh fence.

21.In early 2005, the then Land’s owner (PW1) and PW2 came to the Land. That was the 1^st time she saw them. Since she did not speak Punti, her son interpreted their conversations for her. PW1 asked her to sign a written tenancy agreement but she refused on the ground that their family has been living there for more than 2 decades without paying rent. PW1 and PW2 then left.

22.She reiterated that she never signed any written tenancy agreement; she never had any oral agreement to lease the Land; she never paid any rent regarding the use and occupation of the Land; she never received any rental receipt.

2nd Defendant’s evidence

23.He was born on 1^st May 1981, married with 1 child. His own family and the 1^st Defendant were and are residing in the Land. He has attained education level up to tertiary. He came to reside in the Land and study in Hong Kong since February 1995 with a two way entry permit. He was issued an identity card with the permanent residence status on 1^st May 1999. He said that since 1994 or 1995, he has been residing in the Land with his mother (1^st Defendant). Before his father passed away, his father had built a wooden hut and a toilet for residential use. His father also grew fruit trees in the Land and in the adjacent lot no. 426. In 2006, lot no. 426 was recovered by the land owner. Before he resided in the Land, his father had constructed metal mesh fence around the Land with an entrance and a lockable wooden door. The hut where they resided had the supply of electricity as early as in January 1977 and the bill was in his father’s name.

24.The hut was also registered as a squatter hut by the Housing Department as early as in July 1976. In about 1984, his father’s name was also registered as a squatter resident in a record of the District Lands Office. Since 1996, he and his mother constructed a few more huts in the Land and in another lot no. 254. They also repaired the metal mesh fence around the Land. In 2001, Water Department started to supply water to them. Before that, they had a well and consumed underground water.

25.In about 2005, PW1, the landlord of the Land and PW2, the village head of Sheung Shui Village came to their hut. His mother only spoke Hoi Fung language and did not speak Cantonese, hence he acted as the interpreter.

26.PW1 asked his mother to sign a tenancy agreement. His mother refused and expressed that they had been living there for more than 2 decades without paying any rent. PW1 and PW2 then left.

DW3’s evidence (Mr. Chan Wan)

27.Mr. Chan Wan’s wife is the niece of the 1^st Defendant. He moved to live in Hong Kong in 1980. He occasionally visited the late Mr. Ho during the weekend. At that time, the late Mr. Ho grew some vegetables and had surrounded the place where he lived and cultivated (他在當時己圍起了他住和耕種的地方). In about 1987, he assisted the late Mr. Ho to move small fruit trees to be planted in the Land. The late Mr. Ho spent about $3,000 on those small fruit trees.

E. DISCUSSION

Whether the late Mr. Ho and his family have been in exclusive and continuous possession of the Land for more than (i) 20 years before 20^th March 2008 if adverse possession commenced prior to 1991? or (ii) 12 years before 20^th March 2008 if adverse possession commenced after 1991?

28.The above issue requires the finding as to whether and when adverse possession took place. Regarding the approach on evidence, I remind myself of the approach on evidence of adverse possession as propounded in Wong Tak Yue case:-

“… where the occupier had made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the court should approach them with scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they might deserve. Conversely, where the occupier had made statements as to what was his intention and such statements were against his interest, the court would usually accord to them considerable weight. A defendant’s intention to pay rent if the owners had requested payment demonstrated that he was treating himself as enjoying possession under a lawful title from the owners. His intention to possess was not “as of wrong” but was “as of right”.

29.According to the defence case, the 1^st Defendant set her foot on the Land as early as in 1989 when she allegedly sneaked into Hong Kong. Between the period of 1976 and 1989, the Defendants relied on such evidence as (i) there was a record in Ho Lai Biu’s name showing that in about 1976, the late Mr. Ho was the registered squatter resident in relation to the huts on the Land he was occupying; (ii) there was a record in Ho Lai Biu’s name showing that in about 1977 there was supply of electricity to the hut in which they resided; (iii) DW3 occasionally visited the late Mr. Ho after 1980 and he saw the Land was surrounded. He assisted the late Mr. Ho to move small fruit trees to the Land in about 1987.

30.My views are that the records of supply of electricity and being a squatter resident could be accepted as evidence of physical possession of the huts. However, the squatter resident (寮屋住客) in the context of a government’s registration is not the same as a squatter in the context of adverse possession. The squatter resident (寮屋住客) may be entitled to ex gratia or social benefit such as public housing if the Land requires redevelopment or fire disaster destroyed the squatter huts. Its registration has no material connection with “a squatter possessed a land with continuous exclusive possession and the requisite intention to possess” in Wong Tak Yue sense. The Defendants are still required to prove “exclusive possession” or “intention to dispossess” of the whole Land.

31.The Defendants relied on DW3’s evidence. I accepted that the late Mr. Ho did grow fruit trees in the Land in 1980’s, especially DW3 knew that the late Mr. Ho retired as a government’s cleansing worker in mid 1980’s. However, DW3 simply mentioned in his witness statement that the late Mr. Ho had surrounded the area in which he lived and cultivated (他在當時己圍起了他住和耕種的地方). He did not describe which part of the area was surrounded, despite the existence of aerial photographs and recent photographs to assist describing. He did not describe how the Land was surrounded, what materials were used to surround the area, bearing in mind that it could have been surrounded by bushes or free standing walls. If it is his evidence that the area was fenced off by metal mesh, he did not say so. This part of evidence of “surrounding” is vague. It must be noted that Counsel for the Defendants also agreed that according to the surveyor’s report dated 22^nd July 2010 prepared by Leung Shou Chun for the Defendants, which was adduced by consent without calling the maker, there was such objective evidence as the survey sheet marked as Appendix 2 in the said report showing that the Land was fenced off as at 2004. There was no objective evidence on “fenced off” before 2004. Further, the aerial photographs could not depict whether the Land was fenced off before 2004. It is stated in the said report: “The fences which enclosed the occupation areas were not discernible in the aerial photographs. They were observed in our site survey in 2009, and were also recorded in Tull’s plan of 2004.”

32.The net result is that for the period before 2004 (including the year of 1989), except the bare assertion of “surrounding”, there is no objective evidence of “fenced off”. In short, if DW3’s evidence is put forward by the Defendants to show “fenced off by metal mesh” for any period before 1989, the Defendants failed to do so and DW3’s evidence of “surrounding” is unreliable. I do not accept his evidence except there is no conflict between the parties.

33.Most important of all, according to the Defendants’ version, the 1^st Defendant first arrived at the Land in 1989, there was insufficient evidence to show that for any period before 1989, the late Mr. Ho in the capacity of a squatter was in continuous and exclusive possession of the Land with the intention to dispossess the true owner. In summary, in so far as the period between 1976 and 1989 is concerned, the Defendants failed to establish that the late Mr. Ho as a squatter has dispossessed the paper owner by going into ordinary and exclusive possession of the land for the said requisite period without the consent of the owner, the principle expounded in J A Pye (Oxford) Ltd.

34.Next relevant year should be 1989 when the 1^st Defendant alleged that she first set her foot on the Land by sneaking into Hong Kong and resided in the Land occasionally with her husband. Counsel for the Defendants asked me to ignore the year of 1989 and he preferred February 1995 as another relevant commencement date of adverse possession, if 1976 was not accepted as the year when adverse possession commenced. I was puzzled by such election as both 1^st and 2^nd Defendants spent much efforts in stating their illegal remaining in Hong Kong between 1989 and 1994 despite it might be self incriminating. It must be noted that had I accepted 1989 as the year of commencement of the adverse possession, 20-year limitation period applies and the alleged adverse possession was less than 20 years and the Defendants’ counterclaim would fail. Despite such election, I should briefly cover the period from 1989 to 1994 as to whether I accept their contention of illegal remaining.

35.Although the intended testimonies might be self incriminating, she chose to testify on this aspect under oath. Counsel for the Plaintiff asked her how frequent she sneaked into Hong Kong, for example, how many times a year and how long for each stay, she said that she did not recall. Not only she failed to give the approximate estimation, she gave convoluted answer to the simple questions. For example, when she was asked how long for each stay, she said that whenever she was investigated (by police), she was deported back to China. It is strange that she was never charged for illegal remaining if that is the case. After all, there was no such record of deportation. Further, she did not describe how she sneaked into Hong Kong such as whether by speed boat, hide under or inside the lorry. It is out of common sense that if a person sneaked into Hong Kong occasionally between 1989 and 1994 but she was unable to give an approximate estimate as to how frequent, how many times and how long for each stay, let alone the way she sneaked into Hong Kong. I reject the evidence that she stayed in the Land between 1989 and 1994 by sneaking into Hong Kong. There are other aspects causing me to reject her evidence and I shall cover them in the relevant context.

36.Next relevant date is February 1995 when the 2^nd Defendant resided with the 1^st Defendant in the Land after they obtained the two way permit. He also began to study in Hong Kong. Parties agreed that 12-year limitation applies.

37.The Defendants’ evidence on possession and intention to dispossess was that since 1996, he and his mother constructed a few more huts in the Land and in another lot 254. They repaired the metal mesh fence around the Land. In 2001, Water Department started to supply water to them. Likewise, as said before, there is objective evidence of showing the Land was fenced off in 2004, but not before.

38.Secondly, both the 1^st and 2^nd Defendants’ statements did not mention when the Land was fenced off or installed with locks or who built the fence. If the Defendants’ position was that the Land was fenced off by metal mesh as early as in February 1995, their assertion is lacking objective evidence such as aerial photographs or survey sheets or family photographs in support. It is said that the fence is an indicia of excluding the whole world and the paper title owner. However, as between February 1995 and 2004, it seems to me that there is insufficient evidence to show “fenced off”. In essence, the Defendants failed to establish that they as the squatters dispossessed the paper owner by going into ordinary exclusive possession of the land for the requisite period between February 1995 and 2004 without the consent of the owner in the sense of J A Pye (Oxford) Ltd.

39.Having rejected the contention of adverse possession for the requisite period between 1976 and 2004 with the above analysis, it is sufficient to dispose of the case.

40.Nonetheless, the Plaintiff also relied on the 1^st Defendant’s intention to pay rent. For the sake of comprehensiveness. I shall briefly covered the factual dispute on intention to pay rent. As said before, 1^st and 2^nd Defendants denied having said so whereas PW1 and PW2 asserted differently. Apart from the above aspects why I do not accept the defence case or the Defendants’ evidence, my findings on their credibility are as follows, which is also relevant to the factual dispute on intention to possess:-

(1)   Regarding 1^st Defendant, apart from the above findings, there are other aspects showing that she is incredible and unreliable. For instances, it is her evidence and the defence case that she did not know who is the landlord. She has never met the landlord before the incident in 2004 or 2005. However, when PW1 and PW2 appeared and PW1 asked her to sign the tenancy agreement, she did not ask who they were. It seems to me that had she never met the landlord, she should have asked who they were and she should have doubted their status. However, upon being requested to sign a written tenancy agreement, she simply responded that they had been living there for 2 to 3 decades without ever paying any rent. In my view, it is more likely than not that they have met before, not just once but at such frequency that at least she did not doubt PW1’s status. This is not only against the 1^st Defendant’s version, it also transpires that PW1 went there to collect rent from her after 1992.

(2)   Secondly, it is her evidence that she only speaks or spoke and understands or understood Hoi Fung dialect.   She required Hoi Fung interpreter while giving evidence. However, for several times during cross examination, she did not wait for Cantonese/Hoi Fung interpretation before she answered. For example, questions like for decades nobody asked you to pay rent? Liu Cho Hung simply left after you refused to sign? You did not promise to continue pay rent? Ho Lai Biu was the tenant, so were you?

(3)   Regarding 2^nd Defendant’s evidence, it is even worse. Before amending the defence, his original version was that his father bought the Land. He had a relative known as Ms. Lam Leung Yin with an ID No. stated therein to prove that his father bought the Land as early as in 1968. He also stated that he had documentary evidence in support. He said that he inherited the Land in 1995 as a bequeath from his father. As to why Ms. Lam did not make statement or testify, he purported to explain that when Ms. Lam was invited to be a witness, she said that she forgot what happened. He intended to boost up his case by making a story alleging the existence of the said witness with documents in support, in fact he had none. He is not a reliable witness.

(4)   Further, his earlier version suggested their case along the line of true owner, not as a squatter.   He offered no reasonable explanation for the change of front, bearing in mind that he is well educated.

(5)   Moreover, he admitted that he was not the tenant of the lot no. 426. But it is a common ground that he signed a document in 2006 stating that he gave up possession of lot no. 426 as a tenant in exchange for compensation. When he was asked to explain why if he was not a tenant as a matter of fact but he signed a document as a tenant, he at first replied that he just noticed the word “tenant” when he was referred to that document. Secondly, he knew that he had no case against the landlord of lot no. 426 because it was owned by a Tso or Tong. I do not accept that he only noticed the word “tenant” at trial. He received tertiary education. He was a careful witness. In short, he impressed me as a witness that would not speak the whole truth, especially he knowingly signed a document incorrectly describe him as a tenant in exchange for compensation.

(6)   In contrast, PW1’s evidence is straightforward and simple. He was unshaken during cross examination. Counsel for the Defendants submitted that his evidence is strange in that the 1993 written tenancy agreement was lost or mislaid. It is a fair comment that it is strange. But it seems to me that in about late 2004, PW1 was asked to retrieve the written tenancy agreement, some 11 years after its creation, it is not surprising that it was lost or mislaid. Moreover, the Land was rented out for $600 yearly. PW1 might not treat those records seriously. Nevertheless, the written tenancy agreement expired in about 2000 and it became an oral tenancy thereafter. The question became again whose version is more believable. I have made my findings on credibility and I do not intend to repeat them again.

41.I found that PW1, PW2 and PW3 are more credible than the Defendants and DW3. I accept the evidence of the PW1 to PW3 and I reject the evidence of the Defendants and their witness save that there is no conflict between the parties. The 1^st Defendant did promise to continue to pay rent and therefore PW1 left the Land despite her refusal to sign a written tenancy agreement.

42.I do follow the case of Wong Tak Yue and find that the intention to pay rent is inconsistent with the squatter’s intention to exclude the whole world including the paper title owner. The Defendants’ counterclaim shall be dismissed.

43.The above analysis also disposes of other issues and I shall set out my rulings and findings as follows.

H. FINDINGS

44.In respect of the main issues, firstly, I find that the late Mr. Ho and his family have not been in exclusive and continuous possession of the Land for more than 20 years before 20^th March 2008. They had not been in exclusive and continuous possession of the Land for more than 12 years before 20^th March 2008 (assuming adverse possession commenced after 1991).

45.Regarding the three subsidiary questions, upon receiving counsel’s advice, the Defendants chose to testify on illegal remaining under oath. As said before, I do not accept that the Defendants sneaked into Hong Kong as alleged. It is therefore unnecessary for me to decide whether the period of illegal remaining shall be counted in the requisite limitation period. Since I do not accept adverse possession by the late Mr. Ho between 1976 and November 1994 (when the late Mr. Ho died), the said period should not be added to the subsequent period in which the Defendants alleged adverse possession.

46.Further, it is my findings that the late Mr. Ho and the 1^st Defendant had been in possession of the Land as the tenants. The 2^nd Defendant and his family were the occupiers by virtue of the 1^st Defendant’s status as the tenant. Such landlord and tenant relationship was created at the outset between Mr. Liu Kam Yiu on behalf of PW1 and the late Mr. Ho from 1976 to 1993. It was subsequently made between PW1 and the 1^st Defendant from 1993 to 2005 and thereafter between the Plaintiff and the 1^st Defendant. The late Mr. Ho and his family have been in possession of the Land with the consent of the Plaintiff or his predecessors.

47.The Defendants failed to establish that the late Mr. Ho and they had the intention to possess the Land to exclude the world at large including the true owner of the Land.

G. ORDERS

48.I hereby give the following orders:-

(1)   Judgment be given for the Plaintiff. The 1^st and 2^nd Defendants do deliver vacant possession of the Land forthwith.

(2)   The 1^st Defendant do pay the arrears of rent from 2006 to 2008 in the total sum of $1,800.

(3)   The 1^st and 2^nd Defendants do pay the mesne profits from 2009 until vacant possession is given at the rate of yearly rent of $600.

(4)   Interest on the said sum of $1,800 at the rate of 8% per annum from the date of writ to the date of judgment, thereafter at judgment rate until full payment.

(5)   The 1^st and 2^nd Defendants’ counterclaim be dismissed.

(6)   Costs order nisi that the Defendants do pay the costs of the action to the Plaintiff (including the costs of the Defendants’ counterclaim) with certificate for counsel to be taxed if not agreed. Unless any of the parties applies by Summons to vary it, the costs order nisi shall be made absolute 14 days from today.

(7)   The 1^st and 2^nd Defendants’ own costs be taxed in accordance with the Legal Aid Regulations.