Man Fong Hang v. Choy Kwong
Read the full judgment text of LDPD 996/2012 on BabelCite. This Lands Tribunal judgment was delivered on 15 October 2013.
1. The applicant is the registered owner of Lot No 27 in Demarcation District 105, Sun Tin, Yuen Long, New Territories (“Lot 27”).
Cites 2 cases
|
LDPD 996/2012 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION APPLICATION NO. LDPD 996 OF 2012 ________________ BETWEEN
________________
___________________ JUDGMENT ___________________ Background 1.The applicant is the registered owner of Lot No 27 in Demarcation District 105, Sun Tin, Yuen Long, New Territories (“Lot 27”). 2.It is the applicant’s case that the respondent had been his tenant in respect of part of Lot 27 (“the subject premises”) under a periodic tenancy at the yearly rent of $700, and the tenancy was terminated by means of a transitional termination notice (“the TTN”) served pursuant to the Landlord and Tenant (Consolidation) (Amendment) Ordinance 2004 (“the Amendment Ordinance”). The respondent has refused to leave and the applicant therefore applies for vacant possession of the subject premises and payment of “$700 per annum from the 1st January 2010 to date of delivery of vacant possession”. 3.The respondent denies any tenancy between the parties and avers that, by reason of his continued occupation of the subject premises for a period of over 20 years since 1960, the applicant is debarred by operation of section 7 of the Limitation Ordinance from recovering possession. The trial 4.At the call-over hearing held on 3 October 2012, the respondent elected, through his solicitors, to proceed with his case based on adverse possession by way of a defence to this application as opposed to commencing a new action in an appropriate forum to claim for the appropriate relief. The application was thereafter set down for trial. 5.When the trial first came on in March 2013, the applicant requested an adjournment on the ground that his son had just discovered some photocopies of old rental record including records pertaining to the subject premises. As the rental record would be relevant to the issue of whether a tenancy in fact existed, I acceded to the request and adjourned the trial. 6.When the trial came on this time, the applicant was represented by Juliana Chow who was not the counsel representing the applicant in the aborted trial. Ms Chow apparently took a fresh look at the applicant’s case and stood ready to concede that the TTN had not been effective in terminating the alleged tenancy. However, the parties were unable to agree to an amendment of the pleadings and the applicant proceeded with his application as pleaded. 7.After the close of evidence but before closing submissions, the respondent wanted to introduce into evidence a letter dated 10 April 2013 from the Lands Department and an information paper dated October 2000 prepared by the Housing Bureau for Legislative Council Panel on Housing. The applicant asked for an adjournment to look into the matter and later came up with further documentary evidence obtained from Yuen Long District Lands Office. By consent, all these documents have been admitted as evidence. The applicant’s evidence 8.The applicant testified at trial and called the following witnesses. They elaborated on their written statements and were subjected to cross-examination by the respondent’s counsel Belinda Ma.
9.In addition, an affirmation of Leon Lai (“the applicant’s solicitor”) and the witness statement of the applicant’s son Man Ka-Ho (文嘉豪) (“the son”) were adduced as evidence by consent without calling the maker. 10.Their evidence may be summarized as follows:
The respondent’s evidence 11.The respondent also testified at trial and his evidence is that:
The issues 12.Both counsel agree that the issues to be tried are:
13.Given the concession made by the applicant, the importance of issue (2) falls away. The remaining issues are fact sensitive and they necessarily intertwined. Discussion 14.For obvious reasons, the eldest brother cannot testify on the rental arrangement he made with the respondent. Instead, the applicant offers the following evidence to prove the respondent’s tenancy:
收款人：文風榮代
15.In her closing submission, Ms Ma commented adversely on the applicant’s evidence and submitted that the applicant had failed to discharge the burden of proving the respondent’s tenancy. 16.First, she says that Madam Man was selective in her memory as she could neither recall the details of her encounters with the respondent nor the particulars of the other tenants. It is said that she contradicted herself when she said she had known the respondent for 30 years when it is the applicant’s case that the respondent has been their tenant since the 1960s. 17.In my view, one needs to be careful when dealing with elderly witnesses such as Madam Man (who is 89 years old) and the respondent (who is 83 years old) given their age. It is apparent from the applicant’s evidence that Madam Man did not have much dealing with the family properties but relied on other family members to do so. At the trial, she was being asked to recall specific details of events that happened over several decades. She is illiterate and can only rely on her unaided memory. In those circumstances, it is not surprising that she could not elaborate clearly on her encounters with the respondent or recollect the particulars of the other tenants. Furthermore, we do not know when she and the eldest brother got marry and when she first came to know the respondent. So, she is not necessarily wrong about having known the respondent for 30 years. More importantly, Madam Man’s evidence is internally coherent and is consistent with the other evidence adduced by the applicant. I do not think Ms Ma’s criticism is sufficient to undermine Madam Man. 18.Secondly, Ms Ma complains that the nephew’s evidence is contradictory and unbelievable. It is true that the nephew was unsure as to who had deleted the name “莫坤” and replaced it with “莫漢全” at various parts of the rental booklets. But we are not here concerned with the tenancy of 莫坤 or 莫漢全, and the fact that the nephew has been unable to differentiate between the handwriting of his father (ie the eldest brother) and that of his wife is neither here nor there. 19.Thirdly, Ms Ma has mounted an attack on the tables prepared by Mr Chung. She observes that the second page of the tables annexed to the nephew’s statement (at page 43 of the trial bundle) and Mr Chung’s statement (at page 53 of the trial bundle) are different in that the last row concerning the respondent (ie line 21) has been missing from the nephew’s tables. 20.The applicant’s solicitor has offered an explanation in his affirmation. He said:
Under cross-examination, the nephew said that the solicitor had brought over the witness statement to a canteen in the New Territories for his signature. This has led Ms Ma to doubt in her closing submission who is telling the truth. 21.The difficulty here is that the solicitor’s affirmation was adduced without cross-examination. It is not known whether the solicitor and the nephew were referring to the same incident (ie, the solicitor faxing over the tables and the solicitor bringing over the statement for signature). More importantly in my view, page 1 of the tables (at page 42 or 46 of the trial bundle) already included the arrangement Mr Chung made with the respondent (see line 1 on page 1 of the tables). I do not accept that the evidence of the nephew is necessarily inconsistent with that of the applicant’s solicitor or that line 21 was recently added to boast the applicant’s case. 22.Fourthly, Ms Ma criticises Mr Chung for not mentioning the fact that he had pocketed the rents in his written statement and for not being able explain in his oral testimony why there are two versions of his tables. I do not think these glitches are sufficiently serious to discredit Mr Chung. 23.On the part of the respondent, he insisted in his evidence that there was no tenancy. He said in his statement that:
The plan he referred to (appearing at page 11 or 145 of the trial bundle) originated from the applicant’s answer to the respondent’s request for further and better particulars on the Notice of Application:
The plan carries the description that the subject premises rented by the respondent are about 661 square meters in area (“蔡武光租用範圍約661平方米”). 24.Unlike the other side, the respondent’s evidence is not supplemented by other evidence. At one stage of the trial, the respondent sought to introduce into evidence some aerial photographs but that was eventually withdrawn upon the objection of the applicant. So, there are just the words of the respondent. 25.Curiously, the respondent denied at trial the following statement from his own witness statement and insisted that no one had ever demanded rent from him:
Given his age, I do not think much about this inconsistency. However, his denial tends to support Mr Chung’s evidence that he (ie Mr Chung) had only spoken to the respondent at the shop at the entrance to the village where the subject premises is located. 26.In my view, the respondent’s case is contradicted by the objective evidence in this case in two material aspects. 27.First, the respondent claims to have come to the subject premises in 1960 as a barren land and gradually built structures on it over the years for habitation and to rear pigs and chickens. 28.It is apparent from the modification of tenancy dated March 1969 bearing the official seal of the Yuen Long District Office and the attached plan (at pp 155-156 of the trial bundle) that the eldest brother had obtained permission to maintain the 11 structures[2] identified on the plan upon Lot 27 and the adjourning Lot 41. The document was signed by “莫坤” on behalf of the land owner, presumably upon receipt. 29.There is also a letter dated 16 February 1970 from the Yuen Long District Officer to the eldest brother (at pp 153-154 of the trial bundle) stating that the only agricultural structures permitted to be maintained upon Lot 27 and Lot 41 were 1 chicken shed, 4 pigsties and 1 agricultural kitchen. The conditions of approval stipulated inter alia that:
30.Whilst it is correct for Ms Ma to observe that the respondent’s name is nowhere to be found on these documents, they do in my view establish two important facts: (i) one required permission from the Government to build upon Lot 27 whether for human habitation or for agricultural purposes; and (ii) the owner thereof (ie the eldest brother) did obtain permission from the Government to maintain the structures mentioned in these documents. The applicant’s solicitors had asked for “all modification of tenancy and all kinds of permits, licences and/or waivers” relating to Lot 27 and the adjourning lands and the documents mentioned above were the only documents supplied by the District Lands Office relating to Lot 27. Given the degree of particularity of the structures mentioned in these documents (in terms of location, size and use), it is rather unlikely in my view that there were other structures (belonging to the respondent) then standing on Lot 27 that had escaped the watchful eyes of the eldest brother and the Government. Whatever structures the respondent might have built on Lot 27 since 1960 were noted in these official documents and had the blessings of the owner (ie the eldest brother). It does not matter that the modification of tenancy was received by the respondent but by an agent for the owner. 31.Secondly, the respondent was adamant in his testimony that he would not disclose his identity card number to anyone. However, Mr Chung was able to name the respondent’s identity card number on the rental receipt for 2004. This tends to undermine the respondent’s denial and support the applicant’s case that the respondent paid rent for 2004. 32.In my view, the photocopies of the rental booklets kept by the eldest brother (at pp 58-122 of the trial bundle) prove to be pivotal in this case because it is clear evidence of the respondent’s tenancy. The photocopies carried the handwritten telephone and facsimile number of Mr Chung. Furthermore, it contained not just the rental arrangement of the respondent but the arrangement with other tenants as well. It is rather difficult for anyone to go to such length to falsify so much information relating to so many tenants. I accept the authenticity of the photocopies and place much weight on the information contained therein concerning the respondent. 33.The respondent was named “蔡武光” in the rental booklets, the rental receipt for 2004 and the TTN. When this application was commenced, the respondent was called “蔡武光”. The respondent has consistently denied having used such a name. The applicant has since amended the respondent’s name to “Choy Kwong (蔡光) also known as蔡武光”. The eldest brother is not able to explain how he came by the name “蔡武光”. In my view, nothing material came out of this as the respondent has never disputed having occupied part of Lot 27. 34.This is after all a civil trial and the standard of proof is merely on the balance of probabilities. Despite the absence of the eldest brother’s testimony and the glitches in the applicant’s evidence, I find the applicant’s case more believable. 35.All in all, I accept the applicant’s case that:
36.No point is taken on certainty of terms, and I find that there is a periodic tenancy between the applicant and the respondent in respect of the subject premises by reference to the payment of the agreed rent of $700 per annum on or before the 1st day of January each year. 37.Given my above finding, the respondent’s claim of adverse possession of the subject premises must (subject to two further points to be discussed shortly) fail. 38.First, Ms Ma has observed that the earliest record of rental payment by the respondent dated back to 1986 (at p 65 of the trial bundle) and there is no evidence of any rental payment over a period of more than 20 years between 1960 (the year the respondent claims to have begun occupying the subject premises) and 1986. She submits that the respondent has already acquired a title to the subject premises by adverse possession in about 1980 and any subsequent acknowledgment of tenancy on the part of the respondents (eg by payments of rent) would not revive the owner’s title, citing Sanders v Sanders (1881) 19 Ch D 373 and Chong Yuk Por v Chan Kam Muk, unreported, DCCJ 3826/2007, 26 October 2012. 39.In my view, Ms Ma’s latest attack is parried by the official documents obtained by the applicant from District Lands Office. As I have said, these documents confirm that the respondent was occupying the subject premises (and build thereon) with the consent of the eldest brother. So, the respondent could not have been a trespasser at the material time (ie in 1969 and 1970). Despite the lack of direct evidence, I am prepared to infer from these official documents that the respondent had been a tenant over that period of time thus destroying any possibility of him claiming adverse possession over the period between 1960 and 1986. 40.Secondly, it is not clear from the evidence which part of Lot 27 was occupied by the respondent and for how long. It is common ground that he only occupied “part” of Lot No 27 and it is his evidence that he gradually built upon the land. Possession being one of the essential elements of adverse possession[3], it behooves the respondent to prove that he has possessed the subject land for the requisite period of time. 41.It is true that he has admitted the applicant’s plan and there is evidence (from the nephew and Mr Chung) that the respondent may have fenced off such land. But it is not clear how the plan actually relate to Lot 27 and for how long he has been in possession of the land depicted in the plan. 42.In fact, the land depicted in the applicant’s plan looks different in shape to the land depicted in the sketch plan attached to the modification of tenancy dated March 1969 (at page 156 of the trial bundle). This has led Ms Ma to lament in her closing submission that even a land expert might not be able to explain the discrepancies. 43.There is no objective evidence (eg aerial photographs) to confirm which part of Lot 27 was occupied by the respondent at any given time. The official documents adduced by the applicant identified the structures found on Lot 27 in 1969/1970. The letter dated 10 April 2013 from the Lands Department (adduced by the respondent) mentioned the fact that 8 structures were found on Lot 27 during the Squatter Control Survey held in 1982. According to Mr Chung, the respondent was occupying two structures in 2004 – a smaller structure made of bricks and a larger one comprising several wooden structures (see Exhibit A2). The respondent mentioned 4 brick houses in his evidence. How are these brick houses related to the structures found on Lot 27 at different times? Given the state of evidence, I would not have found for the respondent on his claim based on adverse possession in any event. 44.Finally, I would like to touch briefly on issue (2) for completeness. 45.The applicant has conceded that the TTN is ineffective in terminating the respondent’s tenancy. That is because sections 5 and 6 of the Amendment Ordinance provide (insofar as they are relevant) that:
46.The insurmountable difficulty faced by the applicant is that the TTN was only served on 29 January 2011 but expressed to take effect on 31 December 2011. There is a clear breach of section 6(2)(a) which requires not less than 12 months’ notice. The point was taken by the respondent in the written opening prepared for the aborted trial in March. In my view, the concession is inevitable. Conclusion 47.For the above reasons, I find there is a periodic tenancy between the applicant and the respondent in respect of the subject premises by reference to payment of the agreed rent of $700 per annum. The TTN has not been effective in terminating the tenancy and the respondent’s tenancy is still subsisting. The respondent last paid rent in 2009 and has since been in arrears of rent. 48.The only ground upon which the applicant asked for possession having failed, I dismiss the applicant’s claim for vacant possession of the subject premises. On his monetary claim, however, I order the respondent to pay the applicant the sum of $2,800 being the rent due since 1 January 2010 at $700 per annum. 49.Both parties agree that costs should follow the event with certificate for counsel. I therefore order the respondent to pay the applicant the costs of the application to be taxed on District Court scale if not agreed and with certificate for counsel.
Ms Juliana CHOW, instructed by Leon Lai & Co., for the applicant Ms Belinda MA, instructed by Lui & Law, for the respondent [1] The whole ID card number has been recorded on the receipt. For personal data piracy reasons, some digits have been omitted here. [2] apparently consisted of 2 structures for accommodation, 1 kitchen, 1 porch, 1 chicken shed, 4 pigsties, 1 lavatory and 1 agricultural kitchen. [3] See Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55 at 68E. Please refer to HCMP150/2014 for the relevant appeal(s) to the Court of Appeal. |
Cases cited in this judgment
Further hearings and rulings under LDPD 996/2012