Tsang Kwong Kuen v. Hau Wai Keung Gaius and Others

CACV 1/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1 OF 2014

(ON APPEAL FROM HCA NO. 971 OF 2009)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an appeal against the judgment of Deputy High Court Judge Seagroatt of 4 December 2013 dismissing the Plaintiff’s claim for relief based on his alleged adverse possession of Lot 175 in Demarcation District No 95 [“the Land”]. The Plaintiff’s case is that he (and his father at an earlier stage) had been in possession of the Land since 1963 until he was dispossessed wrongfully by the Defendants in 2003. The learned judge found against the Plaintiff on the facts. He was not satisfied that the Plaintiff or his father had been in possession for 20 years prior to 1991 or twelve years of adverse possession since that year. In that respect, the judge preferred the evidence of the defence witness to that of the Plaintiff.

2.The judge also accepted the defence case that Hau Nam Sing Tong, the registered owner of the Land (with its managers joined as the Defendant in this action) is a hereditary Tong and there are three members of the Tong who could successfully resist the Plaintiff’s claim for extinguishment of the Tong’s title by virtue of the principle discussed in Leung Kuen Fai v Tang Kwong Yu Tong [2002] 2 HKLRD 705. 

3.Mr Shum, appearing for the Plaintiff, challenged both bases of the judge’s decision.  On the possession aspect, counsel acknowledged that there is a challenge to the findings of fact by the judge. However, his principal submission is that the judge failed to give proper reasons and failed to deal with the submissions on credibility advanced by him at the trial.

4.On the Leung Kuen Fai aspect, Mr Shum accepted the law as stated in that case (which has subsequently been applied by this court in Wong Shing Chau v To Kwok Keung [2008] 5 HKC 372).  The challenge by Mr Shum focused on two aspects:

(a) The lack of evidence as to the nature of the Tong being a hereditary Tong; and

(b) The lack of evidence as to the membership of the three members relied upon by the Defendants.

5.We shall first deal with the Leung Kuen Fai aspect as it is a short point and there is no dispute that the appeal must fail if Mr Shum cannot overcome it.  The essence of the relevant principle is that due to the peculiar characteristic of a Tso or Tong (preserved by Chinese customary law and s 13 of the New Territories Ordinance Cap 97) with new equitable interest stemming from each new member being admitted upon birth by reason of his hereditary link with the focal ancestor, a person who is in adverse possession cannot extinguish the title of the Tso or Tong under the Limitation Ordinance unless he can establish the requisite limitation period against all the living members of the Tso or Tong.

6.In Leung Kuen Fai, supra, the judge expressly left open the question of unborn interest and the possible implications on limitation flowing from it, see paras 24(f) and 47 of that judgment.  In this appeal, neither party addressed us on this question. In view of our conclusions below, it is not necessary for us to deal with it in this judgment.

7.The particulars of the members of the Tong relied upon by the Defendants are as follows:

Name	Date of birth	Expiry of his limitation period
Hau Keung	20.1.55	19.1.86
Hau Ka Kui	25.12.78	24.12.05
Hau Ip Fai	6.8.84	5.8.11
Hau Ka Yuen	28.6.94	27.6.18

The calculation of the expiration of the relevant limitation period is to be found at para 3 of the judgment in Leung Kuen Fai, supra.  Thus, at all material times when the Plaintiff was allegedly in possession of the Land, subject to the contentions of Mr Shum raised in this appeal, there was at least one member of the Tong against whom the limitation period had not expired.

8.This principle is only applicable to a hereditary Tong.  Mr Shum submitted that there is no evidence supporting the finding that Hau Nam Sing Tong is such a Tong.  With respect, this is plainly incorrect.  In his oral testimony, Hau Keung, the defence witness said as follows:

“A. There is no such documents but we, the brothers, the uncles and all the villagers, know each other very well. We are aware of the existence of Hau Nam Sing Tong. Hau Nam Sing is our ancestor. It was set up to memorise him.

Q. Is there any document relating to this defendant Tong to regulate how income is to be kept and how expenses are to be spent or how moneys are to be distributed? Is there any?

A. Because there was only very little money, on the 17^th of the 9^th moon, we would visit our ancestors’ tombs and after spending money on the worship, if there was still money left, we would eat it all.

…

Q. I put it to you that there is no original records or constitution of the Tong for you to compile this list of beneficiaries.

A. Well, I have listed out all the beneficiaries here.

Q. You don’t understand me. You made up this list without any original records or constitution of the Tong to support it.

A. Well, because our ancestor was called Hau Nam-sing; they all knew that these persons named there were entitled to the property of Hau Nam-sing. And we all knew that, since birth, the male descendant was entitled to it, and we all know each other.

Q. That’s all you rely on?

A. That is our tradition.  We also named how we belonged to the same ancestor.  There is no difference among ourselves.”

9.There is no requirement that a Tong must have a written document proving its nature as a hereditary Tong.  The Plaintiff has not adduced any evidence to contradict the evidence of this witness.  On such state of evidence, it would be perverse for a court to reach any other conclusion.  Mr Shum submitted that the judge did not reach a finding as such. We do not agree.  Though the judge did not specifically analyse the nature of the Tong, from his conclusions on the Leung Kuen Fai issue, he must have found that this is a hereditary Tong.  At para 50 of the judgment, he referred to the three members as direct descendants of the focal ancestor in whose name the “family Tong” exists, thus qualifying as its members.

10.Mr Shum also criticised the judge for failing to discuss in the judgment his submissions on the possibility of the Tong being of a non-hereditary nature.  We have considered those submissions.  However, in view of the clear and un-contradicted evidence in respect of this issue, though the judge should refer briefly to the relevant evidence, we do not think this criticism could lead us to reverse the judge’s conclusion on the Leung Kuen Fai issue.  The judge gave judgment soon after the trial and the relevant evidence and issues raised by the parties must have been fresh in mind when the judgment was written.  The un-contradicted evidence we quoted above is quite conclusive on the point. 

11.Mr Shum also contended that there is no evidence to prove the membership of Hau Ka Kui, Hau Ip Fai and Hau Ka Yuen.  Counsel criticised the judge for placing reliance on a list of members approved by the District Office.  Again the Plaintiff did not adduce any evidence to challenge the membership of these people.  Hau Keung also gave evidence on how the list was compiled.  Immediately after the second part of the evidence quoted above, the judge asked about the list,

COURT:  Who in fact made this list?  Which of you, or how many of you, made this list?

A. The several managers and the beneficiaries, they would all check - - we would ask the father, “What’s the name of your son?”. If the son was born locally, no need to ask for his name, but if he has emigrated, we will ask for his name.

COURT:  Tell me, what did you do?  Have a meeting of the whole of the village, or did you go round to certain people?  How did you compile this list?

A. First of all, the beneficiaries.

…

A. Well, the beneficiaries, first of all, we would write down the names of those we know, see if there is - - see if there was any name left behind.

…

COURT:  Well, there may be some pages missing, I’m not sure.  No, the number, it’s the edge of the page that’s missing.  There appear to be 195 names on this list.

A. Yes.

COURT:  Did you go round and see all 195 persons?

A. No.

COURT:  Well, how did you find out whether they should go on this list or not?

A. Because when we went to worship our ancestors at the grave, we would first put up a notice saying we would meet up at 10.  We went to worship our ancestors at their graves.  I know your father, your grandfather, and it will be all right for us to write down the names, because we know most of them.”

12.Again, given the state of the evidence, we cannot see how the judge could be criticised for giving weight to that list. First, in dealing with a customary hereditary institution like a Tong, it would not be appropriate to expect records are being kept in the same manner as in the case of a register of members for a large commercial corporation.  Hau Keung’s evidence on how the list was compiled makes perfect sense in the context of an institution of this nature.  It had been verified by all the managers and basically they knew each other.  In any event, the presumption of regularity is applicable.

13.Mr Shum criticised the judge for observing that the Plaintiff did not put forward evidence to dispute the membership of these people.  Counsel said the Plaintiff had no knowledge about these matters and therefore could not be expected to come up with relevant evidence.  Whilst it is correct that the Plaintiff might have difficulty in adducing relevant evidence on this issue, it does not detract from the fact that there was no evidence before the court to contradict the evidence of Hau Keung and the judge was quite entitled to make his observation accordingly.  The Plaintiff cannot put a higher onus on the Defendants simply because he could not come up with relevant evidence.  We do not think that, at para 27 of the judgment, the judge had drawn any adverse inference against the Plaintiff on the basis that he did not adduce positive evidence on this issue.  There is no merit in this criticism.

14.In light of these conclusions, the appeal must be dismissed as we are of the view that the judge was correct in his conclusions on the applicability of the Leung Kuen Fai issueto the facts of the present case.  Even if the Plaintiff could establish possession from 1963 to 2003, his claims would still fail.

15.In such circumstances, we would only deal with some essential points on the question of possession.  The judge expressly found the Plaintiff to be an unimpressive witness (para 8 of his judgment) and his evidence to be unsatisfactory and unreliable (para 18), his recollection defective or inconsistent (para 18).  He preferred the evidence of the Defendants’ witness (Mr Hau Keung) to that of the Plaintiff (para 23).  Though, in our respectful view, the reasoning process could have been expressed in a better structured manner, the judge’s reasons for coming to these conclusions could be found at various parts of the judgment:

(a) At the early stage when the Plaintiff’s father started using the Land, he was  still at a tender age and his older siblings who assisted in farming did not give evidence to corroborate the Plaintiff’s case (paras 9 and 10);

(b) The aerial photos do not support the Plaintiff’s assertion (para 13);

(c) The Plaintiff ignored the tenancy over the Land held by Tang Chi between … (paras 17 and 18);

(d) There is inherent improbability in the plaintiff’s case given the presence of the Hau family and the extended family Haus at the village and the regular use of the footpath next to the Land (paras 24 and 25); and

(e) The evidence given in HCMP 2807 of 2003 where the claim of adverse possession by the Plaintiff in respect of Lot 174 (as the 2^nd Defendant in those proceedings) failed (paras 28 to 37). 

16.Mr Shum submitted that the judge’s reasoning was flawed in respect of each these reasons. 

17.On the lack of corroborative evidence, Mr Shum criticised the judge for commenting on the father not giving evidence when the court had been told that he could not do so due to his health condition.  With respect, we do not think the judge drew any adverse inference against the Plaintiff due to the absence of the father’s evidence.  At para 9 of the judgment, the judge simply stated as a fact that the father had not given evidence in this trial.  This can be contrasted with para 11 where the judge did comment upon the absence of corroborative evidence from the siblings.  Mr Shum contended that the absence of such evidence is not a valid reason to reject his client’s evidence.  Whilst we accept that the absence of such corroborative evidence per se may not be sufficient to lead the court to reject the Plaintiff’s evidence, we are certainly of the view that the judge was entitled to take this into account as a factor in the overall assessment of the credibility and reliability of the witnesses.  This is particularly so when, as observed by the judge at para 9, the Plaintiff would not be aware of his parents’ activities on the Land until he was about 5 or 6 years old. 

18.There is absolutely no merit in Mr Shum’s criticism of the judge’s reference to the Plaintiff starting to help with farming in 1980 when he was 13.  This was actually the evidence of the Plaintiff.  As regards his earlier knowledge about his father’s activity based on his observation instead of helping, the judge already referred to it at para 9. 

19.On the aerial photos, Mr Shum submitted that it was common opinion of the surveyors that there was a change in the land use in 1998 to 2001.  Counsel said this was consistent with the Plaintiff’s case.  With respect, counsel has overlooked what the judge said at paras 6 and 12.  At para 12, the judge came to the view that the father of the Plaintiff ceased farming in 1995 by reference to the evidence given in HCMP 2807 of 2003 (see also paras 33 and 34 of the judgment).  The Plaintiff’s case was that he continued with the use of the Land by planting fruit trees (see para 13 of the judgment).  In other words, the Plaintiff’s version was that he started to plant trees in 1995.  But that was inconsistent with the aerial photos evidence summarised at para 6: that the change occurred in 1997 to 1998.  As the Chief Judge observed at the hearing  of this appeal, the timing of change as depicted by the aerial photos was more consistent with the evidence of Hau Keung (see para 21 of the judgment). 

20.On the tenancy of Tang Chi (or Tang Chee), Mr Shum submitted that the Plaintiff’s evidence was that he did not know Tang Chee.  On this point, the judge clearly accepted (as he was entitled to) the evidence of Hau Keung that in 1980 the Land was leased to Tang Chee and Tang Chee cultivated the Land until 1995 (see paras 20 and 21 of the judgment). Thus, the judge’s comment at para 18 that the Plaintiff had been opportunistic and ignored indications of tenancies held by others.  It should also be noted that it was also Hau Keung’s evidence that Tang Chee and Tang Shun were cousins of the Plaintiff’s father and they had previously sublet other lands to the Plaintiff’s father (see paras 18 to 24 of Hau Keung’s witness statement of 3 Feb 2012).  The Plaintiff said Tang Shun was a cousin of his father (para 3 of his statement of 2 Feb 2012) though he said he did not know Tang Chee.  It was in that context that the judge assessed the evidence of the parties.

21.On the inherent improbability of the Plaintiff’s case, Mr Shum made two points.  First, he criticised the judge’s reference to those other villagers surnamed Hau as the extended family of Haus.  There is absolutely nothing in this criticism. The judge said clearly at para 24 that he was referring to them as indigenous villagers of Ho Sheung Heung and there is ample evidence before the judge to the effect that most of them were surnamed Hau and they knew each other well. 

22.Second, Mr Shum said there was no reason why these villagers would know whether the Land had been let to the Plaintiff or his father.  Again there is no merit in this submission.  As Mr Yip submitted, Hau Keung himself lived in the vicinity and his evidence was that he frequently used the footpath in question.

23.On the reference to the evidence in HCMP 2807 of 2003, though (as Mr Shum submitted) the judge should not have been influenced by Recorder Jat SC’s assessment of the evidence before him, we are of the view that the judge was perfectly entitled to take account of the evidence given in those proceedings in terms of the inconsistencies in the Plaintiff’s evidence and the evidence that the father of the Plaintiff ceased farming in 1995. Reading the judgment as a whole, this appears to be how the judge made use of the evidence in HCMP 2807 of 2003.

24.We therefore reject Mr Shum’s submissions that the judge’s reasoning was flawed.

25.Mr Shum also made other criticisms against the judge’s assessment of the Plaintiff’s evidence: the judge’s failure to give due consideration to the details given by the Plaintiff on the use of land and the photographs produced by him; the judge’s misunderstanding of the Plaintiff’s evidence about his visits to mainland China.  With respect, the judge had alluded to the Plaintiff’s evidence, including the photographs in question (see paras 14 and 15 of the judgment) and none of those can be regarded as weighty evidence.  The evidence of the Plaintiff was that he went to mainland China once or twice a week when he had money.  The judge referred to this at para 16 of the judgment.  Though he referred to the length of stay depending on whether the Plaintiff had money, he did not put such qualification on the frequency of visits to the mainland. However, it seems to us that this was not a matter of great moment in light of the main reasons given by the judge for rejecting his evidence.

26.We are more concerned, however, about Mr Shum’s criticism of para 18 of the judgment.  The relevant part of that paragraph reads:

“[The Plaintiff] 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. …”

27.Mr Shum said the judge made a finding there in favour of the Plaintiff as to the occupation of the Land by him and his father.  As such, the judge implicitly rejected the defence’s case that the Land was occupied by the Defendants or their tenant. 

28.We have no hesitation in rejecting the second part of that submission.  The judge has clearly stated at other parts of his judgment that he preferred the evidence of Hau Keung to that of the Plaintiff. In our view, para 18 must be read together with other parts of the judgment. The judge referred to the activities of the father prior to 1995 at para 46:

“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 tenanted arrangement.”

29.It can be said that the judge had not stated clearly whether those plots included the Land and how this fit into Hau Keung’s evidence.  According to the latter, the Land was farmed by Hau Kwan Lik until about 1975/76 when Hau Keung and his mother took over.  In 1980, it was leased to Tang Chee until 1995.  As mentioned above, the judge accepted the evidence of Tang Chee’s tenancy over the Land from 1980 to 1995.  However, he had not found specifically that the Plaintiff’s father was a sub-tenant or licensee of Tang Chee.

30.Mr Yip referred us to the evidence of the Plaintiff at the trial.  He said his father and his uncle Tsang Chor were asked by Tang Shun in 1958, a cousin of his father, to assist in the farming of the land in DD 95.  It later extended to the Land in about 1963.  Tsang Chor ceased farming in 1975 and since then it was his father who had exclusive possession. The Plaintiff, being born in 1967, had no knowledge about the arrangement between Tang Shun and the owners of the lots.

31.Hau Keung’s evidence, as set out in his witness statement of 3 Feb 2012 was that in 1955 or 1956, Hau Tai Hong and some Tsos and Tongs of Haus had leased land in the area to Tang Chee and Tang Shun.  They summonsed their relatives to assist, including the Plaintiff’s father and uncle, in the farming of the land.  

32.Therefore there is evidence before the judge to suggest that it might be the case that the Plaintiff’s father had used the Land prior to 1995 as a licensee of Tang Chee.  Mr Shum submitted that the Defendants had not pleaded a case of occupation by the Plaintiff as licensee.

33.But as we observed, the judge did not make a positive finding that the father of the Plaintiff was a licensee or sub-tenant of Tang Chee.  Rather, he expressed in his judgment that he was not satisfied that the father of the Plaintiff was in adverse possession.  It is not disputed that the burden is on the Plaintiff to establish adverse possession, and this includes establishing that his possession was without the permission of the registered owner.  If the court was not satisfied with that, it is the end of the Plaintiff’s claims.  In most cases, a plaintiff would be able to say that he had entered into occupation without seeking permission from the true owner. However, the unusual situation in the present case is that the Plaintiff was not in a position to depose to what happened when his father first entered into possession of the Land.  Further, his own evidence was that at least in respect of some of the land in DD 95, his father was a licensee of Tang Shun and he was unable to tell what were the arrangements between Tang Shun and the true owners. 

34.In those circumstances, the judge was perfectly entitled to find that the Plaintiff had not discharged the burden of proof on his father’s possession of the Land prior to 1995 being adverse. Once we reach that conclusion, it does not matter as to whether the judge had erred in not making specific finding on the Plaintiff’s own possession after 1995.  That possession would not be long enough to support a claim of adverse possession.  Reading the judgment as a whole, it appears to us that the judge had rejected the Plaintiff’s evidence on his use of the Land after 1995 though we acknowledge that the reference to the Plaintiff’s irregular and unproductive use of the Land after 1995 at para 18 is problematic.

35.Mr Shum also advanced submissions to challenge the judge’s acceptance of the defence evidence.  In light of our conclusions above, we shall not delve into those arguments as it is quite plain that the Plaintiff’s claims must fail in any event.

36.We shall dismiss the appeal with costs.  We also order that the Plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.        

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

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