Ng Hung Ngan v. Yeung Fook Mui and Another

HCA 2296/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2296 OF 2013

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Before: Hon Mimmie Chan J in Chambers (Open to Public)

Date of Hearing: 12 August 2014

Date of Decision: 12 August 2014

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D E C I S I O N

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1.This is the plaintiff’s application for summary judgment.

2.The plaintiff himself pleads, in para 3(a)(ii) of the Statement of Claim, that from 1981 or thereabouts, one Tang Yau Fok allowed him to grow vegetables on the Land, and that thereafter, he had continued to grow vegetables and to occupy the Land.  It is on the basis of such occupation that the plaintiff claims that he has adversely possessed the Land, and seeks summary judgment for a declaration that the title of the registered owner of the Land has been extinguished and that the plaintiff has acquired a possessory title.

3.I am satisfied that the defendants have established by their affirmation that there are triable issues which raise an arguable defence, and a reason for trial of the plaintiff’s claim, by virtue of the defendants’ non admission in the defence filed of the pleaded facts of the plaintiff’s claim of adverse possession.  It is trite that a claimant of adverse possession must prove the fact of possession and the requisite animus possidendi to exclude the entire world including the rightful owner.  It is only where possession is clear and unequivocal that animus possidendi can be presumed.

4.The plaintiff made the point that the defendants have failed to condescend to particulars with regard to various matters.  It is trite that a defendant does not have to plead to law, not raise legal issues in the evidence filed in opposition to an application for summary judgment.  In any event, the distinguishing feature in this case is that the plaintiff’s own pleaded case raises issues which require a trial to determine his entitlement to the relief sought.

5.On the face of the pleadings, the plaintiff claims to have been “allowed” by Yau Fok to grow vegetables on the land in 1981.  The meaning of this is clear, and the plaintiff’s attempts to put a constrained and distorted meaning to the word “allowed” are forced and disingenuous.  His having been allowed by Yau Fok raises questions of fact and law as to the relationship, if any, between Yau Fok and the deceased Tang Pui King, whether such permission or licence to occupy the Land was given by Yau Fok on behalf of Pui King, whether the plaintiff’s possession and occupation was on behalf of Yau Fok and not in the plaintiff’s own purported right, both before and after Yau Fok’s alleged death in the 1990s -  all of which are relevant to the issue of whether the plaintiff had indeed possessed the Land adversely to the registered owner from 1981, and significantly, whether he possessed the Land with the necessary intention to exclude the entire world including the registered owner, the deceased.

6.Whilst it is true that the defendants have not given particulars of any licence or of the fact that Yau Fok was acting on behalf of Pui King, whether the plaintiff’s own pleading of his having been allowed to use the Land indeed meant as the plaintiff later asserted in his affirmation; and whether the plaintiff indeed had the intention to dispossess the Land he occupied with permission from Yau Fok, are still disputed matters for cross-examination and trial. 

7.I also accept that the act of possession and occupation relied upon by the plaintiff, and as pleaded in the Statement of Claim, is for a period of time at least the act of growing and harvesting vegetables on the Land.  It is arguable that such may not, without more, such as the fencing off of the Land and the exclusion of others (which are neither pleaded nor referred to in the affirmations in support), constitute open, single and effective exclusive control of the Land, as required by law (Powell v McFarlane (1979) 38 P&CR 452).

8.Although it was argued on behalf of the plaintiff that he had also built 3 houses on the Land, it is important that on his case, this was alleged to be on part of the Lot only.  On the plaintiff’s evidence, a farming house cannot exceed 100 square feet.  The Land claimed to be in adverse possession is in the total area of 19,799 sq ft.

9.There are accordingly further questions for trial, such as the production and examination of the evidence of the extent of the plaintiff’s alleged occupation and control of the entire Land, as a result of his building of the farm houses on the part of the Land. It is settled that acts of possession done on parts of the land to which a possessory title is sought must be evidence of possession of the whole.

10.In all, this is not an appropriate case for summary judgment to be entered.  It is arguable that the plaintiff has not raised a prima facie sustainable case, and his claim should proceed to trial for cross-examination of the plaintiff and his witnesses, as to the nature and extent of his alleged occupation since 1981, and for the court to be satisfied on the evidence of the alleged possession of the entire Land.

11.The application for summary judgment is dismissed, with costs to the defendants.

Mr Valentine Yim and Ms Vivian Lam, instructed by Tang, Wong & Cheung, for the plaintiff

Mr Adrian Leung, instructed by Wong, Hui & Co, for the defendants