Worldpart Industrial Ltd v. All Occupiers of Lot No 1198 and The Remaining Portion of Lot 1220 Both in Demarcation District No 83, Fanling, New Territories, Hong Kong and Another

HCMP 50/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 50 OF 2005

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Before: Deputy High Court Judge Mayo in Court

Date of Hearing: 27 October 2014

Date of Judgment: 3 November 2014

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J U D G M E N T

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1.The plaintiff by its amended statement of claim seeks vacant possession of Lots 1198 and the remaining portion of Lot 1220 in Demarcation District 83 in Fanling in the New Territories (“the land”).

2.The claim relates to squatters attempting to establish adverse possession of the land.

3.The 1^st defendants if they exist are all allegedly occupiers of the land.

4.The 2^nd defendant is the intended administrator of the estate of Poon Hin, deceased (“Mr Poon”) who died on or about 9 March 2012, who has been identified as a claimant.

5.At the hearing, I was informed by Mr George Chu representing the plaintiff that no one had applied for Letters of Administration of the estate of Mr Poon to be issued.

6.However Master J Wong, by order dated 8 July 2013, ordered that Mr Huang Riping (Mr Huang) be appointed to represent the estate of Mr Poon for the purpose of the instant proceedings.

7.Mr Huang did not attend at the hearing of this case.

8.One witness gave evidence for the plaintiff.  He was Mr So Siu Hong (“Mr So”) who was a former employee of the plaintiff.

9.This case has been protracted over a number of years.

10.It was commenced by an originating summons dated 7 January 2005.

11.An order of Master Hui was made on 8 September 2005 for the summons to be proceeded with as an action and the necessary steps were taken to implement the order.

12.Mr So gave evidence of the various visits he made to the land.

13.In 1996 the plaintiff had been aware that there was an unauthorised occupant on the land.

14.On visiting the land he saw Mr Poon who was originally the 2^nd defendant in the proceedings.  He told Mr Poon that he must either vacate the land or enter into a tenancy agreement with the plaintiff.

15.Terms for the tenancy were discussed.  Mr Poon did not accept the terms which were offered but requested to be allowed to continue occupying the land until the crop he had planted had been harvested.  This request was acceded to.

16.Mr Poon was permitted to remain on the land until the end of 1996.

17.Mr So visited the land in early 1996 when he saw that Mr Poon had vacated the land. 

18.He said that it was definitely his impression that no one had been occupying the lots since 2005.  At the present time there was no evidence of the lots having been cultivated.  The only structure on the land was a shed used for the storage of tools.  It appeared that the shed had not been occupied for any residential purpose.

19.I accepted Mr So as a truthful and reliable witness.

20.It is pertinent at this stage to consider the case which was being advanced by Mr Poon in the witness statement which was filed on his behalf.

21.In his statement he says:

“4. In 1982, I obtained some money from the government department now known as Agriculture, Fisheries and Conservation Department as the damages for the vegetable shooting. I remember that I have received an approximate sum of HK$80,000.00 for the recovery of a farmland which I was farming on. The said recovered farmland was used to construct a drainage which is located in the Ma Shi Po Village. A copy of a Lot Index Plan is annexed to this statement. The said drainage was coloured red. Because of the construction of the said drainage, the Government has recovered other farmlands as well. I knew a person called Mr. Li who also received compensation because of the said recovery of land by the Government. Mr. Li occupied several farmlands in Ma Shi Po Village including the Land. At that time, I was given to understand the said Mr. Li was using the tactic by putting vegetable shooting in the farmland and waited for the moment of the Government’s recovery of lands to earn the government’s compensation.

5. After the recovery of the lands for the said drainage, I was approached by Mr. Li and was offered to transfer the Land to me.  I agreed to Mr. Li’s offer and I paid him HK$40,000.00 to take up the possession of the Land.  Then at the end of year of 1982, I have entered the Land and started to cultivate the Land.”

22.It will be noted from this that his occupation of the land was not as adverse possession as claimed but by virtue of the agreement he alleged that he had concluded with Mr Li.

23.The requisite intention to possess land was considered by Li CJ in Wong Tak Yue v Kung Kwok Wai David [1998] 1 HKC 1 at pp12 and 13:

“Requisite intention to possess

The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v Moran [1990] Ch 623, [1989] 2 All ER 225 which treated as authoritative and applied the principles enunciated by Slade J in Powell v McFarlane (1977) 38 P & CR 452.

There is no dispute about the 14th defendant's factual possession. The crux of this appeal is whether the 14th defendant has an arguable case on the essential ingredient of the requisite intention to possess. Ms Gladys Li SC who appeared for the plaintiffs before us submitted that the 14th defendant plainly did not have the requisite intention.

As Nourse LJ pointed out in Buckinghamshire County Council v Moran (op cit) at 644 (Ch), 238h (All ER), adverse possession can be described as ‘possession as of wrong’ and with limitation it is the intention of the squatter that is essential.

The requisite intention to possess has been referred in various authorities under its latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane at 471-472, the intention to possess requisite for adverse possession

‘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 the law will allow.’

The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.

Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism.  The courts would scrutinise the circumstances in which they were made and would give them such weight if any as they may deserve.  Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

24.I have no doubt that this is a correct analysis of the law and that on facts I find Mr Poon and anyone claiming through him is unable to establish adverse possession of the land.

25.I am also satisfied that no one else is able to make a claim for adverse possession.

26.At the conclusion of the hearing I advised Mr Chu that I would be entering judgment for the plaintiff and giving my reasons for this in due course.  These are my reasons for entering judgment for the plaintiff in the terms of the relief sought in the amended statement of claim.

27.For similar reasons to those outlined by Deputy Judge Seagroatt in HCMP 53/2005 I make an order nisi that there will be no order for costs.

Mr George Chu, instructed by Leung Kin & Co, for the plaintiff

The 1^st and 2^nd defendants were not represented and did not appear