Leung Siu Wai Winnie v. All Occupier(S) of Portion of Lots Nos 1190 and 1191 Both in Demarcation District No 96, Yuen Long, New Territories

DCMP 2039/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2039 OF 2014

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DECISION

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Introduction

1.There are the following applications before me:-

(1) the plaintiff’s application by way of originating summons filed on 1 August 2014 for possession of the property situated at Portion of Lots Nos 1190 and 1191 both in DD 96, Yuen Long, New Territories and coloured blue as per the plan attached thereto (the “said Portion”) under Order 113 of the Rules of District Court (the “plaintiff’s originating summons”);

(2) the defendants’ application by way of summons filed on 3 September 2014 for an order that this action to be continued as if the cause or matter had been begun by writ pursuant to Order 28, rule 8 of the Rules of District Court and for leave for Wong Nin Foon (黃年歡) (“WNF”), Wong Yuen Kiu (黃遠嬌) (“WYK”), Wong Chun Ming Maggie (黃進明) (“WCM”) and Wong Shing Foon (黃勝歡) (“WSF”) to be joined as defendants herein pursuant to Order 113, rule 5 and/or Order 15, rule 6 of the Rules of District Court (the “defendants’ 1^st summons”); and

(3) the defendants’ application by way of summons filed on 6 January 2015 for leave to file the 2^nd affirmations of WNF, WYK, WCM and WSF dated 5 January 2015 (the “defendants’ 2^nd summons”).

2.In the hearing on 14 January 2015, without any real objection from the plaintiff, I made an order in terms of the defendants’ 2^nd summons and granted leave to the defendants to file their 2^nd affirmations with costs reserved.  At the conclusion of the hearing, judgment on the plaintiff’s originating summons and the defendants’ 1^st summons was reserved which I now give. 

Background

3.The plaintiff has been the registered owner of the properties known as Lots Nos 1190 and 1191 both in DD 96 (the “disputed land”) since 8 January 1982.  It is the plaintiff’s case that the defendant(s), whose name or identity is unknown to the plaintiff, had from a date unknown to the plaintiff been occupying the said Portion unlawfully without the plaintiff’s knowledge and consent.  The plaintiff alleges that the acts of the defendant(s) amounted to a trespass and the trespass is continuing.  Thus she asks for an order for possession of the said Portion pursuant to Order 113 of the Rules of District Court.

4.At the hearing, the court pointed out that in the plan attached to both the originating summons and the plaintiff’s affirmation in support, only Lot No1190 is, but Lot No 1191 is not, coloured in blue.  This is inconsistent with the plaintiff’s case that the said Portion is situated within both Lot Nos 1190 and 1191.  It is unclear as to which portion of Lots Nos 1190 and 1191 that the plaintiff seeks possession.  Mr Chu, counsel for the plaintiff, accepts this is a mistake and that amendment to the plan would have to be made in any event. 

5.The defendants’ case is one of adverse possession.  The gist of their case, as appeared from their first and second affirmations, is as follows:-

(1) WNF, WYK, WCM and WSF are respectively the second eldest son, the third eldest daughter, the fourth eldest daughter and the youngest son of Wong Fook Chuen (黃福全) also known as Wong Fork (黃福or 黃霍), deceased (the “father”) and Fung Mui (馮妹), deceased (the “mother”) (collectively, the “family”). WNF, WYK, WCM and WSF were born in 1956, 1963, 1966 and 1968 respectively.  The eldest daughter (the “eldest daughter”), who is five years older than WNF and emigrated to the United States in the early 1980s, does not feature in these proceedings;

(2) since in or about 1962 the family had lived in a wooden hut on a piece of Government land with an area of about 40 square metres in DD 96 (the “Government land”) which is adjacent to the disputed land.  At that time only the eldest sister and WNF lived in the wooden hut whilst the father and mother lived in Causeway Bay which was close to their work place.  The eldest daughter and WNF started to grow vegetables on the disputed land.  The area where the disputed land was situated is called Ma Cho Lung (馬草龍) which at that time was largely uninhabited and undeveloped; 

(3) in 1963 when WYK was born, the father and mother moved to live in the wooden hut and continued to grow vegetables on the disputed land.  The family also raised buffalo to plough the disputed land, and WNF looked after the buffalo;

(4) in 1965-1966, the family built a well, a water pump room and a water storage pool on the disputed land;

(5) at that time there were not many residents in Ma Cho Lung. There was a man called Fung Fai (馮輝) (“FF”) who was one of the early residents of Ma Cho Lung, well-respected and acted like the head of the village.  When new residents moved to Ma Cho Lung, they needed FF’s assistance so that land could be allocated to them for farming.  By a written Chinese agreement dated the second day of the Chinese New Year in February 1968 (the “Chinese agreement”), FF gave or sold the disputed land, which had hitherto been used by the family for farming, to the father for $1,000; 

(6) in the same year, the mother obtained the permission of the then District Commissioner, New Territories to build another wooden hut on the Government land in front of the original wooden hut.  Afterwards, the family moved to live in the new wooden hut and the original wooden hut was used as a kitchen. 

(7) in 1980, the mother obtained the permission of the then District Commissioner, New Territories to covert the two wooden huts into a brick house.  The family also built a wooden hut of about 20 square metres on the disputed land to be used as a kitchen. 

(8) from the mid-1960s to the early 1990s, the family carried out farming on the disputed land. 

(9) in 1984, WNF was married and moved to live in Sham Shui Po.  In 1987-1988, WSF was married and moved to live in Tai Po.  In 1990, WCM was married and moved to live in Tai Po.  In 1991, WYK was married and moved to live in Fan Ling.  But they went back to Ma Cho Lung about once a week to take care of family matters and the disputed land, which was in their exclusive possession or in the exclusive possession of their family; 

(10) at all material times before 2012, the boundaries of the disputed land were marked by field bunds without any wire mesh fencing as the latter would obstruct the movement of buffalo to and from the disputed land and cause inconvenience to other farmers; 

(11) in 1993, the father passed away. The mother continued to live in Ma Cho Lung.  However, as she was unable to farm by herself, she started growing fruit trees on the disputed land;

(12) in 2012, the family erected wire mesh fencing along the boundaries of the disputed land;

(13) from 1962 to 2014, the family occupied the disputed land without interference from anyone; and

(14) at all material times, the family had the intention to possess the land to the exclusion of the registered owner.

6.At the hearing, Mr Sze informed me that the mother had passed away in 2010. 

7.It was only in their 2^nd affirmations that the defendants asserted for the first time that they and the family have the requisite intention to possess the disputed land to the exclusion of the registered owner.  As will be seen below, the order I made in relation to the defendants’ 2^nd summons will have an effect on the costs order I am going to make in relation to the plaintiff’s originating summons and the defendants’ 1^st summons. 

Principles applicable to Order 113 and Order 28, rule 8 

8.Under Order 113, rule 1 of the Rules of District Court, where a person claims possession of land which he alleges is occupied solely by person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in possession without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions thereof. 

9.However, it is only when the plaintiff’s case is so clear on the facts and the law that the defendant must be regarded as being in wrongful occupation of the land that an order for possession under Order 113 should be made: Mutual Luck Investment Ltd v Chiu Yim Man [1993] 3 HKC 309 at 403A-B per Keith J (as he then was).  If the defendant can demonstrate, albeit by a narrow margin, a substantial issue that warrants a proper trial, an order for possession under Order 113 should not be made: Goldmen Electronic Co Ltd v Shum Wai Man [2002] 2 HKC 324 at para 17 per Deputy High Court Judge Poon (as he then was). 

10.It has also been said that the Order 113 procedure will not usually be an appropriate vehicle for the recovery of land which has been occupied by many families for many years.  Such cases will invariably raise issues of both fact and law which cannot be properly investigated without proper pleadings and following a trial at which the rules of evidence are adhered to: Mutual Luck at 403C. 

11.Under 28, rule 8(1) of the Rules of District Court, the court has power to order originating summons proceedings to continue as if the cause or matter had been begun by writ where it appears to the court at any stage of the proceedings that the proceedings should be so continued. 

12.It should also be borne in mind that the originating summons procedure is not and is never intended to be a short-cut to resolve disputes which can only be properly dealt with in a writ action.  Where there are substantial factual issues which cannot be resolved by affidavit, the originating summons procedure is inappropriate: Shum Wah Ming v The Estate of Chen King Ngo, deceased & Anor, CACV 21/1996, unrep, 10 July 1996 at para 25 perCheung J (as he then was). 

Adverse possession: legal principles

13.The law on adverse possession is well established.  A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai & Another (1997-98) HKCFAR 55 at 68E-F per Li CJ.

14.As to factual possession, in Powell v McFarlane (1977) 38 P & CR 452 at 470-471 Slade J said, at pp.470-471:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, 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 both be in possession at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ……Everything must depend on the particular circumstances, but 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 statement of the law was approved by the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at para 41 per Lord Browne-Wilkinson. 

15.As to the intention to possess requisite for adverse possession, in Powell v McFarlane (supra) Slade J said that it:-

“…… involves the intention, in one’s own name and on one’s 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.”

This statement of the law was approved by the Court of Final Appeal in Wong Tak Yue (supra) at p 68I-J per Li CJ.  See also: The Incorporated Owners of San Po Kwong Mansion v Shine Empire Limited (2007) 10 HKCFAR 588 at para 7 per Nazareth NPJ.  The question of intention to possess is a question of fact.  Whether it can be established depends on assessment of all the circumstances in a particular case: Wong Tak Yue at p  69A-B. 

16.The period of adverse possession as required by sections 7 and 17 of the Limitation Ordinance (Cap  347) is 20 years if the right of action accrued before 1 July 1991 and is 12 years if the right of action accrued after 1 July 1991. 

My view

17.Applying the above principles, I am of the view that the defendants have demonstrated substantial issues which warrant a proper trial.  In my opinion, the plaintiff’s case is not so clear on the facts and the law that the defendants must be regarded as being in wrongful occupation of the disputed land.  Hence this is not an appropriate case for the court to make an order for possession under Order 113.  I will instead make an order in terms of the defendants’ 1^st summons, ie, this action to be continued as if the cause or matter had been begun by writ and WNF, WYK, WCM and WSF to be joined as defendants herein.  That being the case, I do not consider it desirable to examine the evidence in detail or counsel’s submissions on these matters.  Nonetheless, I shall highlight the following issues between the parties which I do not believe can be resolved under the Order 113 procedure without a trial.

Intention to possess 

18.Relying on Wong Tak Yue at p 69F, Mr Chu submits that the squatter’s intention to possess must be “as of wrong” and cannot be “as of right”.  Mr Chu further submits that “the father and the mother lacked the requisite intention to possess because the father “bought a licence” from FF and the mother was a licensee of the Government in respect of the Government land. 

19.In the case of the father, Mr Chu relies on Yu Kit Chiu v Chan Shek Woo, CACV 137/2010, unrep, 18 February 2011 in which the alleged squatter had signed a permit (or modification of tenancy) and did so “on behalf of” the registered owner.  It was held that this was fatal to the alleged squatter’s adverse possession claim because signing in this way was an acknowledgment that the registered owner was still in possession.  Mr Chu also relies on Lam Ngok Ching & Ors v Tsang Yuk Ming, HCA 1192/2004, unrep, 8 June 2006 where the alleged squatter was let into occupation and/or possession of the suit property by the registered owners because of two agreements for sale and purchase.  It was held that the alleged squatter could not have been in adverse possession of the suit property when he first took possession thereof.  Mr Chu submits that the Chinese document by which FF gave or sold the disputed property to the father is equivalent or similar to the modification of tenancy in Yu Kit Chiu and the sale and purchase agreements in Lam Ngok Ching and therefore the father’s intention to possess the disputed land was not “as of wrong” but was “as of right”. 

20.With respect, I do not agree.  In my opinion, the fact that the disputed land was given or sold by FF to the father pursuant to the Chinese agreement does not show that the father’s intention to possess the disputed land was not “as of wrong” but was “as of right”.  There is no evidence that FF was the registered owner of the disputed land at the time the Chinese agreement was signed or at any other time.  The Chinese agreement contained no acknowledgment by the father of the title of the registered owner.  The father was not let into occupation and/or possession of the disputed land by the registered owner thereof.  In my view, Yu Kit Chiu and Lam Ngok Ching are not relevant to the issues herein and do not advance the plaintiff’s case. 

21.In the case of the mother, Mr Chu draws attention to the provisions of the licence granted by the Government and submits that these conditions demonstrate the mother’s “clear admission” of the Government’s title and her lack of the requisite intention. 

22.With respect, I do not see how the mother’s intention to occupy the Government land as a licensee can be relevant to her intention to possess the disputed land.  These are two separate pieces of land.  Plainly, an intention to occupy one as a licensee does not necessarily mean that the same intention would hold true in respect of another separate piece of land. 

23.In my opinion, the defendants have demonstrated a substantial issue that they have the requisite intention to adversely possess the disputed land.  This issue cannot be resolved without a trial.

Factual possession

24.In relation to this issue, Mr Chu submits that “no evidence of exclusion of others is led”. 

25.With respect, I am unable to agree with Mr Chu’s submission.  As summarised in para 5 above, the defendants have adduced evidence to show that from mid-1960s to early 1990s, the family carried out farming on the disputed land; that in 1965-1966, the family built a well, a water pump room and a water storage pool on the disputed land; that from 1993, the mother started to grow fruit trees on the disputed land; that before 2012, the boundaries of the disputed land were marked by field bunds; and that in 2012, the family erected wire mesh fencing along the boundaries of the disputed land. 

26.In my view, the activities carried out by the family on the disputed land from 1962 to 2012, if proved at trial, are capable of amounting to possession of the disputed land to the exclusion of all others.  It must be borne in mind that in the case of open land, absolute physical control is normally impractical, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion: Powell v McFarland (supra) at p 471 per Slade J. 

27.In my opinion, the defendants have demonstrated a substantial issue that they have been in possession of the disputed land from at least 1962 to 2012 to the exclusion of all others.  This issue cannot be resolved without a trial.

Possession by the children before maturity

28.Mr Chu submits that “children of any age would live as permittee/licensee of parents, which in case of any [possessory] claim, the interest would be vested in the parents first, not the young children, unless the children claim as successive squatters upon maturity” and that “there is no evidence herein as such”.

29.It should however be noted that there can be single possession exercised by or on behalf of several persons jointly: Powell v McFarland (supra) at p 470 per Slade J.  Thus there can be possession of the disputed land by WNF, WYK, WCM and WSF when they attained majority from respectively 1974, 1981, 1984 and 1986 jointly with the possession by the father (until 1993) and the mother (until 2010).  The fact that WNF, WYK, WCM and WSF had moved out to live somewhere else would not change the analysis above because it is their evidence that they went back to Ma Cho Lung about once a week to take care of family matters and the disputed land, which was in their exclusive possession or in the exclusive possession of their family. 

30.In my opinion, the defendants have demonstrated a substantial issue that they were in possession of the disputed land to the exclusion of all others for the requisite number of years.  This issue cannot be resolved without a trial.  

Order

31.For the foregoing reasons, I make the order as set out in para 17 above.  I make a further order that the parties are at liberty to apply for directions regarding the future conduct in the absence of any agreement. 

32.As regards costs, in the 1^st summons, the defendants ask for an order that costs of the 1^st summons be in the cause.  Accordingly, I make a costs order nisi that costs of the defendants’ 1^st summons be in the cause, with certificate of counsel.  As noted above, it was only in their 2^nd affirmations that the defendants asserted for the first time that they and the family have the requisite intention to possess the disputed land to the exclusion of the registered owner.  Without such evidence there is no evidence of the defendants’ intention to possess the disputed land to the exclusion of the registered owner.  The defendants’ 2^nd affirmations were filed late in the day and they had to ask for indulgence of the court to file the same.  Therefore although the plaintiff was unsuccessful in her application for an order for possession under Order 113, I consider it appropriate to order that costs of the plaintiff’s originating summons and of the defendants’ 2^nd summons be in the cause, with certificate of counsel.

33.I thank counsel for their assistance to the court. 

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

Mr Jeffrey Sze, instructed by Henry Chiu & Partners, for the defendants