Tsang Kwong Kuen v. Hau Wai Keung Gaius and Others

HCA 971/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 971 OF 2009

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BETWEEN

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J U D G M E N T

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1.This action is another dispute over a piece of land in which the plaintiff claims entitlement to it by virtue of adverse possession, and in this case the defendants claim title to it on behalf of the heirs of a Tong.

2.The land in question is plot 175 in Demarcation District 95, in the Northern New Territories.  It is surrounded by a number of other plots, the ownership of which is relevant to the principal matters which I have to consider.  These include plots numbered 173, 174, 176, and 177. Although there is a large scale plan of the Northern District showing the full area of DD 95 with the Ho Sheung Heung Road to the northwest and the Ho Sheung Heung Pai Fung Road to the northeast extending down the middle of the northern central sector, I have relied upon the extract of the Lot Index Plan prepared by the surveyor Mr Henry Chan.  I have attached a copy of this plan to my judgment for ease of reference. 

3.One other feature requires identification and that is the access footpath running from the west, the Ho Sheung Heung Road, to the eastern loop of the Ho Sheung Heung Pai Fung Road at the foot of the 27.1 metre high hill.  This footpath runs through plot 176, then between plots 173 and 176, cuts into plot 175 finally emerging between plots 173 and 174 before bifurcating with the west/east line continuing on between other plots, and the southern branch going down the western boundary of plots 174 and 178 before turning eastwards along the southern boundary of plot 178.  Again it bifurcates but it is not necessary to consider that further. 

4.The surveyor has also provided a series of aerial photographs taken between 1945 and 2011 on which he has marked out the boundaries of the various plots.  Unfortunately the earliest of these photographs do not have the degree of sharpness and definition of those dating from 1972 onwards but he has been able to enhance some of the earlier ones.

THE AERIAL EVIDENCE OF THE HISTORY OF THE USE OF PLOT 175

5.The surveyors instructed by the respective parties have provided a joint statement following a meeting on the 3 February 2012.  Their conclusions are in short and helpful form.  The plot in question, in common with a number of other plots, including plot 174 with which I will deal separately since it was the subject of earlier litigation and a judgment of Mr Recorder Jat Sew Tong SC.  They together form the cluster of plots in DD 95 which I attach to this judgment for the purposes of identification.  Plot 175 was under cultivation from 1945 to 2001 but the nature of the farming changed from vegetable growing to tree plant growth from 1998 to 2001. 

6.A comparison between the aerial views of February 1997 and May 1998 shows a marked contrast between clear regular cultivation and the transition to gradual scrub growth as I would term it. Although the term “cash crop farming” is attached to an indeterminate area of the north-eastern sector of the plot, by September 1999 it can only be described as irregular growth of trees or plants – the latter is more likely in view of the fact that only sixteen months elapsed.  Not much has changed by August of 2000 though the label “cash crop farming” is still attached as it is in March 2001.  Again I would describe the picture as that of irregular growth in predominant scrub land.  It is almost identical in form to its adjacent plot on the eastern side, plot 174. 

7.By May 2002 the scrub like nature of the plot still resembles that of plot 174.  The label “vegetation removed” has been attached to these plots.  By July 2003 the whole plot appears to have been cleared.  August 2004 and April 2005 show several large vehicles parked on it. For the first time, fences were identified on the southern boundary of the plot in 2002.

THE PLAINTIFF’S EVIDENCE

8.Only the plaintiff himself gave evidence in support of his case.  He was not an impressive witness.

9.He is now 46 years of age which means that he would not really be aware of his parents’ activities in relation to any of these plots of land until approximately 1972/1973 when he was about 5/6 years of age.  He was one of eight children and the fourth in line, with an older brother and two older sisters.  None of his siblings provided a statement in support of his contentions.  His father, now in his 80s, came from the Mainland in or about 1957.  He had given evidence in the proceedings concerning plot 174 before Mr Recorder Jat SC.  He did not make a statement in the proceedings before me which were commenced in 2009, some six or so years after the alleged act of dispossession in 2003. 

10.The evidence of the father could have been significant – as it had been in the other proceedings – because this plaintiff contends that his father had farmed plots 170, 171, 173, 174 and 175 together with 83, 84 and 86 since he could remember.

11.He also said his older siblings helped his father and mother before he was old enough to provide any assistance.  Clearly they ought to have been in a position to confirm their brother’s evidence. 

12.He started to help his father in about 1980 when he was approximately 13 years of age.  His father gave up farming on all plots, he said in 1997.  I think it was more likely to have been in 1995 relying on the evidence given to the court in the earlier action in 2006. 

13.At that stage said the plaintiff, cultivation of vegetables had ceased, the market for them having shrunk.  He then took on the planting of fruit trees, which it is widely accepted would probably need ten years to be productive.  The aerial photographic evidence to which I have earlier referred does not lend support to his assertion. 

14.He identified some features of the farming including the provision of water for plot 175 from a well on plot 173 and that there was a cow-shed on 173 which housed ploughing and irrigation equipment.  Eventually a small pond was built on 175. 

15.He produced a number of photographs featuring a number of plots including 175 and 174 and some of his relatives. 

16.On his own evidence his actual husbandry on the plot was spasmodic.  He travelled to the mainland several times each week and his length of stay depended on how much money he had to spend. 

17.Although it was put to him that plot 175 had been farmed by and leased to various local farmers between 1976 and 1995, and in particular to Tang Chi who surrendered his lease in 1995, he would not accept that to his knowledge it had ever been out of his possession or that of his father.  As far as the suggestion of a lease to Tang Chi was concerned he said that he “had no idea”. 

18.I found the plaintiff’s evidence unsatisfactory and unreliable.  He has not in my judgment shown adverse possession for a twenty years period prior to 1991 and since that date his own use of the land, particularly since 1995 (and probably 1997 depending on when his father retired), has been irregular and unproductive.  I think he has been opportunistic and ignored any indications of tenancies held by others.  As will be apparent from my considerations of the proceedings in relation to plot 174 his accuracy of recollection has at the very least, been shown to be defective or inconsistent. 

THE DEFENDANTS’ EVIDENCE

19.Hau Keung, the 2^nd defendant, is one of the registered managers of the Hau Nam Sing Tong the ‘hereditary’ owners or alleged owners of land originally belonging to Hau Nam Sing.  He and his family, and co-managers are indigenous villagers of Ho Sheung Heung where he has lived all his life.  He has had very limited education and I must have proper regard for that.  I must also bear in mind the fact of his indigenous origins and those of his co-managers, on the one land and the fact that the plaintiff and his family originated from the mainland over half-a-century ago.

20.When he was about ten years old, he heard that some farming was carried out on plot 175 by an indigenous villager named Hau Kwan Luk who died in about 1995.  In or about 1975/1976 Hau Keung took over the farming, assisted by his mother.  He grew mainly vegetables, mostly for sale in Sheung Shui, his mother carrying them to the Castle Peak Road for onward transport, until about 1980.  Then he says it was let or leased to Tang Chee (or Chi) for $200 HKD per annum. 

21.Tang Chee carried on until 1995 when he gave up the tenancy because he could not make a living.  For a period of no more than one year between 1996 and 1998 Hau Keung himself tried to grow vegetables but gave up.  Eventually he decided to plant fruit trees when he heard that the government was going to reclaim the land.  He said that he was never aware of the plaintiff or anyone else farming the plot. 

22.He was questioned at length, but with justification about the Tong and its business affairs.  There is no doubt that any consideration of the Tong’s administration shows it to be disorganised, even chaotic with little in the way of records of receipts of money or expenditure.  Ancestral worship at the appropriate times – in particular “memorialising” the founder of the Tong (or the ancestor in whose name the Tong was founded) – was effected on a modest basis.  The income from the various lettings did not permit anything other than modest displays of reverence, or mere tokens.  There is also no record of his holding a tenancy on behalf of the Tong, or of his paying any rent, but such was the haphazard way in which the affairs were conducted, I am not at all surprised at the absence of any reliable records. 

23.There were inconsistencies in his evidence and conflicts between his oral evidence and his statement.  However it was not until proceedings were commenced by the plaintiff in 2009 (six years after the plaintiff was removed from the land) that he was called upon to crystallise his recollection, and this trial has taken place, a further four years after that. On balance I prefer his evidence to that of the plaintiff in spite of its deficiencies.

24.There is an inherent improbability in the plaintiff’s case.  The Hau family, or extended family of Haus as indigenous villagers of Ho Sheung Heung have owned and farmed numerous plots in DD 95 for decades and on occasion rented out plots albeit for a very modest rental. 

25.I accept that the indigenous villagers would have used the footpath regularly for their own farming activities on plots and been aware of any farming activities by others outside tenancy agreements. 

26.As far as his and the co-managers status is concerned, and that of the Tong whom they represent, I am bound to accept the decision of the District Office who registered the Tong in 1925.  The managers who are the defendants to this action were appointed as such in November 1984.

27.I accept the evidence concerning the beneficiaries under the Tong whose dates of birth prevent the running of the limitation period against the Tong.  There is no evidence which challenges this.  In any event the plaintiff has failed to establish adverse possession for any relevant period. 

THE LITIGATION IN RESPECT OF PLOT 174

28.The registered title to plot 174 is in the name of Hau Kin Ho, an indigenous villager of Ho Sheung Heung.  In 2003 his three sons commenced proceedings against the occupiers of the plot, and the plaintiff in the action before me was made an additional and identified defendant to that action.  He claimed entitlement to the plot by virtue of adverse possession. 

29.The action was tried before Mr Recorder Jat SC in December 2006 with his judgment being handed down on 10 January 2007. 

30.It was agreed in that action that the defendant’s father Tsang Lim (the father of the plaintiff in the action before me) had farmed plot 174 until about 1995, the dispute being the basis of Tsang Lim’s occupation.  Tsang Lim’s son claimed the family had been in adverse possession since approximately 1963.  On the other land the plaintiffs asserted that, at best, Tsang Lim held a tenancy from Hau Hai which he surrendered in 1995.  The rent had changed over time from the equivalent of 100 catties of grain and in 1963 about $30 HKD per annum, eventually increasing to $100 HKD per annum. 

31.The defendant contended that his father had never paid rent but had occupied the plot and farmed it to the exclusion of others since 1975.  He conceded however that his father had told him that his father had paid rent for 171. 

32.When the defendant (the plaintiff in the action before me) gave evidence, he said that his father had told him that he had in fact rented plots 83 and 171 from the owners of those plots.  His affirmation had contained contrary assertions.  There was no document in respect of this arrangement. 

33.His father gave evidence to the like effect.  They both testified that Mr Tsang Lim retired from farming in 1995 which was in effect what Mr Hau Chi Keung had said.  The latter had said in an affirmation that Tsang Lim, when giving up the tenancy, added that much of “the land originally rented and farmed by him had been returned to the landlord.”

34.When it came to considering the evidence of Tsang Kwong Kuen the aerial photography substantially contradicted his assertion that he continued to farm the plot (174) after 1995.  I do not need to rehearse the evidence on this aspect.  There is no credible evidence to support the contention of continuous farming with the planting and growth of trees.  By May 2002 the expert evidence concluded that no trees could be seen on the plot and it was covered with wild grass.

35.Some evidence of cultivation was apparent in the February 2003 photograph.

36.The Recorder concluded that the evidence revealed that there had not been any consistent farming between 1995 and 2003. He considered several other events and factors which led him to conclude that the 2^nd defendant had failed to establish that he was in exclusive possession of the plot since 1995, and had moreover failed to prove adverse possession by his father since 1963. 

37.I am not of course bound by his decision on a general basis but he had had the opportunity of hearing both the 2^nd defendant and his father, and the result of his assessment of the situation over the years, taking into account the credibility of the parties involved and the evidence of the aerial photographs, is a matter to which I must pay proper regard. 

THE LAW TO BE APPLIED

38.The plaintiff has of course to satisfy me that he has established adverse possession for the requisite period or periods.

39.The most comprehensive survey of the approach to be adopted is that in Powell-v-McFarlane [1977] Property & Compensation Reports Slade, J (page 452) which has been followed and approved in a number of leading cases.

40.The aphoristic starting point is that a person claiming possession, without having the paper title, must show that he has both factual possession and the intention to possess, the “animus possidendi”.  The question to be asked is “does he have an appropriate degree of physical control?”  It is necessary to look at all the circumstances to ascertain whether or not his actions and activities constitute a sufficient degree of exclusive physical control.  Acts of possession of parts of the land in question may be evidence of possession of the whole.  Again it will be a matter of degree.  For example inactivity in relation to part of the land which is deliberately left fallow so as to regenerate fertility in order to be used productively in a later season or seasons does not terminate possession of the whole.  To argue otherwise would be to turn the agrarian revolution on its head.

41.Slade, J (as he then was) said (at page 471) “…broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”  This is an attractive and practical alternative exposition of his earlier more legalistic definition of “factual possession” (at page 470):

“It must be a single and exclusive possession [the original word was ‘conclusive’ but was corrected as a typographical error by Slade, J in Buckinghamshire County Council-v-Moran 1990 Ch 623 at page 641A and adopted as such in later authorities] though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot bothbe in possession of the land at the same time.”

42.In JA Pye (Oxford) Ltd-v-Graham [2003] 1 AC page 419, Lord Hope of Craighead said:

“The general rule, which English law has derived from the Roman Law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of the property simultaneously. As between themselves they have separate rights but as againsteveryone else they are in the possession of a single owner.”

43.There may be circumstances where a squatter is deemed to be in actual possession of the land providing he is the only person in effective control of it despite the fact that the true owner makes some limited use of the land, not amounting to effective control of it – see Hounslow London Borough Council-v-Minchinton [1997] 74 P & CR page 221.

44.Neuberger, LJ (as he then was) in Tower Hamlets London Borough Council-v-Barrett [2005] 1 P & CR page 9 said:

“Factual possession involves some sort of physical presence or at least being in physical control in some real way. It self-evidently cannot assist the paper-owner to show that he had the right to go on the land during the 12 years the squatter was in occupation (In a sense it is because the paper owner has that right that he is at risk of losing his title to the squatter). It is hard to see why a contingent obligation of the paper owner, performance of which would require him to go on the land in certain circumstances, which did not arise during the 12-year period, should make any, let alone all, the difference to theissue of whether he enjoyed possession during that period.”

45.These decisions approved and adopted in subsequent cases in England and Hong Kong, form the rationale and framework against which vying contentions are to be tested. 

CONCLUSION

46.I have already indicated that I prefer the evidence of the defendant Mr Hau Keung, to that of the plaintiff.  The plaintiff has failed to satisfy me that he and his family have enjoyed at least twenty years of adverse possession prior to 1991 or twelve years of adverse possession since that year.  I am quite prepared to accept that the plaintiff’s father had, in the past, and certainly until 1995, farmed a large number of plots in DD 95 but principally on a tenanted arrangement. 

47.In these circumstances it is not necessary for me to consider the matter of the extended limitation periods by virtue of the dates of birth of beneficiaries of the Tong whose minority persists. 

48.Although there was some conflicting evidence about the footpath and its branches I do not consider that it is material to the issue I have decided.  It is clearly of long-standing from at least the early 1970’s but there must have been access, though less well defined to those plots from either side and certainly from the Ho Sheung Heung Village, from which the indigenous inhabitants went out to farm various plots for varying periods.  It is also unimportant as to by whom and when the concrete surface was put down.  It facilitated access to all to the plots as well as being a better surface along which persons could more from one village to another. 

49.The defendants were appointed managers of the Tong on 30 November 1984.  In December 2010, the surviving managers submitted a list of members of the Tong to the North District Office on the death of the 1^st defendant.  That has been accepted. 

50.The names and ages of three members of the Tong having been accepted by the office make it clear that under Chinese customary law they are direct male descendants of the ancestor in whose name the family Tong exists, and thus qualify for membership of the Tong.  (See Leung Kuen Fai-v-Tang Kwong Yu Tong and others [2002] 2 HKLRD 705) A new equitable interest as a beneficiary is created on the birth of a new member of the Tong.  As a result a new limitation period starts to run only when that new member reaches his majority.  (See in particular page 711 C-G of the above decision by Deputy Judge (as he then was) Johnson Lam)

51.If however I have erred in my finding against the plaintiff on the issue of adverse possession, the plaintiff could not succeed on the limitation point because there is at least one beneficiary alive today whose equitable interest prevents time running against him – viz. Hau Ka Yuen, born on the 28 June 1994.  Quite apart from him there were two others whose equitable interests operated against the plaintiff’s claim viz. Hau Ka Kin, born on the 25 December 1978 and Hau Ip Fai, born on the 6 August 1984.  The plaintiff was “dispossessed” – if he ever was in physical possession of the plot – in late 2002 or early 2003. 

52.For all the criticism that can be directed against Mr Hau Keung for his lack of supporting evidence and vagueness as to the effective distribution of modest income amongst a large number of beneficiaries – the provision of common benefits was a more realistic application of funds – I am driven to recognise on available evidence that the managers hold title to the plot, as they unarguably do, and that for the foreseeable future any other occupier or squatter will not be able to overcome the operation of the Limitation Ordinance. 

53.The plaintiff’s action is dismissed.  There will be judgment for the defendants with costs to be taxed if not agreed – an order nisi, though it is unlikely that the plaintiff could justifiably seek any alternative.

54.In passing, though not an unimportant matter, I must state that both counsel have rigorously and efficiently identified the issue in this case and commendably confined themselves to what is truly relevant. 

Mr Erik Shum, instructed by Christine M Koo & Ip, for the plaintiff

Mr Francis Yip, instructed by Ko & Chow, for the defendants

Please refer to CACV1/2014 for the relevant appeal(s) to the Court of Appeal.