Tang Pat You v. Lau Yet Wah, Amy

DCCJ346/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 346 OF 2014

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JUDGMENT

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1.This is an application of the plaintiff, Mr Tang Pat Yu, for a declaration that the title of the defendant, Ms Lau Yet Wah, Amy, to the subject property and land is extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347), and that the plaintiff is the owner in possession thereof. Although the defendant has not filed any acknowledgment of service of writ of summons indicating an intention to contest the proceedings, the plaintiff is still required to proceed to trial to justify its declaratory relief and prove his case.

The plaintiff’s case

2.The plaintiff’s case is slightly unusual in that unlike the  usual run of adverse possession cases where a trespasser claims adverse possessory title to the lands of a neighbour or an absentee owner, the plaintiff here claims adverse possessory title to what used to be his own property, and later a trust property to which he was solely beneficially entitled.  According to the plaintiff, who was born in 1933, during the time of Japanese occupation of Hong Kong between 1941 to 1945, [鄧媚], whose name I shall romanize as Tang Mei, was presented to him as his elder half-sister, borne of the same father, but by a different mother.  However, thereafter, she continued to live independently from the plaintiff’s family, as she had done before.

3.On about 2 May 1950, the plaintiff inherited from Tang Fuk Kat and Tang Man Shi by way of succession:-

(1) a property situate at 134 Shui Tau, Yuen Long, New Territories (“Property”), erected on all those pieces or parcels of ground registered in the Land Registry as Kam Tin Pak Pin, Lot No 80 in DD 109; and

(2) an adjoining land situate at Yuen Long, New Territories (“Land”), standing on all those pieces and parcels of ground registered as Lot No1388 in DD 109.

Since the inheritance, for a number of years, he had utilized the Property and Land for ancestral worship and storage.

4.By 1964, the plaintiff came to know Tang Big-Duen, who first became his girlfriend, and then his cohabitee.  It was during this period of co-habitation that Big-Duen came to know the plaintiff's half-sister, Tang Mei, and they later became very close friends.  In the meantime, the plaintiff continued to use the Property and the Land for ancestral worship and usage for some 10 years until 31 May 1974, when he assigned them without consideration to Big-Duen (who used a Quarry Bay address), but with the intention that Big-Duen would hold them as trustee for himself. The assignment was witnessed by Tang Mei (who used a Castle Rd address).

5.At first sight, it seems strange that the plaintiff would want to go through the conveyancing trouble of transferring the Property and the Land to Big-Duen, just to establish a bare trust for himself.  However, his explanation at trial was, and I accept, that Big-Duen had “pleaded” with him [乞求我] to allow her just to have a “taste” [滋味] of holding a property in her own name, and that she had “promised” him [向我承諾] to transfer it back to him in the future, if called upon to do so.  According to the plaintiff, he agreed to her request to please her, but intended her merely to be his trustee. He also made it an important condition that he would continue to hold the keys to the Property after May 1974, and did not hand them over to her.

6.Soon after the transfer, the plaintiff’s father passed away, and as a result, his mother moved into the Property to live, until she suffered a stroke and had to be sent to an elderly home to live out her twilight years.  The plaintiff cannot now recollect with certainty when this took place, but thereafter, the plaintiff had turned the Property again into a place for ancestral worship, and had managed the upkeep of both the Property and the adjoining Land for a number of years.

7.On 7 September 1978, unbeknown to the plaintiff at the time, Big-Duen (using a North Point address), in breach of the bare trust, transferred both the Property and the Land at a consideration of $20,000 to the defendant (using a Kwun Tong address), who is not really a total stranger to the plaintiff but Tang Mei's daughter (using the same Castle Rd address as the one Tang Mei used in 1974).  According to the plaintiff, he was not made aware of this clandestine transfer at the time because no inspection of the premises by anyone prior to the said date ever took place, nor a change of locks to the Property after that date.

8.Some 7 years later in around 1985, Big-Duen died.  On the day of her funeral, which the plaintiff and Tang Mei also attended, Tang Mei, out of the blue, informed the plaintiff that Big-Duen had in her lifetime already transferred the Property and the Land to the defendant.  The plaintiff said that he found this representation rather dubious at the time, for he was not aware of anyone, including Tang Mei’s daughter, ever claiming ownership of the Property and Land.  According to him, he continued to use the Property and the Land for ancestral worship and storage, without being unduly perturbed by Tang Mei’s information.  He also said that occasionally, he even lived in the Property.

9.About 10 years later, in June 1995, the plaintiff got married.  By March 1997, he had 3 children, and his enlarged family prompted him to move his family to live in the Property.  Ever since, he and his family have been occupying the Property and the Land as their residence and matrimonial home, and have performed a number of acts which fully support the plaintiff’s possessory title, and his intention to claim it as such.  These acts include using the Land for drying clothes and for storage purposes, making repairs to and renovating the Property from time to time, replacing old water pipes and electric wiring, repairing the enclosing walls of the Land to safeguard the Property and the Land from strangers and dogs, and exclusively holding the keys to the metal gate and the door of the Property.  Having gone through the documentary evidence, which include an Expert Report of Mr Tang Sze Kin, Eric, on the Historical Occupation on KTPPL 80 and Lot 1399 DD 109 Yuen Long (on which the Property and the Land respectively stand), copious photos of the plaintiff’s family living in the Property and using the Land, as well as documentary evidence of the plaintiff’s payment of rates and government rent, I am satisfied that all the aforesaid claims of the plaintiff’s acts are made out or are otherwise inherently plausible.

10.It has been submitted by Mr Ng on behalf of the plaintiff that these acts sufficiently show the plaintiff’s factual, continuous and exclusive possession of the Property and the Land, and that on the strength of such evidence, the plaintiff also seeks the court to draw an inference of animus posidendi, ie, an intention to possess.  It is also the plaintiff’s case that by March 2009, 12 years after March 1997, the defendant’s title to the Property and the Land has become extinguished by reason of the plaintiff’s adverse possession.

Application of the relevant law on adverse possession

11.The relevant statutory provisions on adverse possession applicable to the plaintiff’s case can be found in the Limitation Ordinance (Cap 347) (“Ordinance”).  Section 7(2) thereof provides that:-

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

The effect of section 7(2) on the defendant as “any other person” – meaning any person other than the Hong Kong Government referred to in section 7(1) – suggests that she cannot avail herself of any action to recover land after the expiration of 12 years from the time when her right of action accrued to her.

12.On the question of the accrual of a person’s right of action to recover land, section 13(1) thereof provides that:-

“No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the forgoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

Applying this section to the plaintiff’s case, the defendant’s right of action to recover the subject Property and Land shall not be deemed to accrue until as late as March 1997, because this is the point in time when, on the plaintiff’s case, they have come into his adverse possession.

13.Section 17 of the Ordinance further provides that:-

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

For the purposes of the plaintiff’s case, section 10 is not relevant because it relates to provisions in case of land held on trust. And since the plaintiff is claiming adverse possession against the defendant, who is not a trustee but prima facie a mere purchaser, section 10 has no application here.

14.So the combined effect of sections 7(2), 13(1) and 17 is that the defendant’s right to bring an action to recover her Property and Land has apparently expired in around March 2009.  However, on the aforesaid sections, the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai David & another [1998] 1 HKC 1, citing a string of English cases, has this to say, per Li CJ (with Litton and Ching PJJ, Mortimer VP and Lord Cooke of Thorndon all concurring) at p 12E:-

“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.”

Mr Ng is therefore correct in his proposition that the burden of proof of adverse possession is on the plaintiff to show that his evidence is sufficient to establish both factual possession and animus posidendi, for a continuous period of 12 years from March 1997 to March 2009.

15.As to the law on factual possession, in Powell v McFarlane and another (1977) 38 P&CR 452 at 470-471, Slade J pointed out that:-

“Factual possession signifies an appropriate degree of physical control of the Land. It must be a single and [exclusive] possession, … . 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 had done so.”

On the strength of the plaintiff’s evidence of his actions, I am satisfied that apart from factual possession, the plaintiff has been dealing with the subject Property and Land in a manner a lawful owner might have been expected to deal with it, and that no one else, including the defendant, has ever done so.

16.As to the meaning of animus possidendi, Slade J further observed, at p 471, that:-

“The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M.R., in Littledale v. Liverpool College … as “the intention of excluding the owner as well as other people.” … .

The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner … will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having the requisite animus possidendi and consequently as not having dispossessed the owner.”

17.After considering the plaintiff’s aforesaid acts commenced since March 1997, I am satisfied that the plaintiff has shown the requisite animus possidendi, and has made such intention clear to the world by his acts which are open to only one interpretation, that he has intended to exclude everyone including the defendant as best as he can.  In coming to such a finding, I am well aware of the caveat expressed in the Court of Final Appeal in Wong Tak Yue on a trespasser’s self-serving statements.  At p 13B, Li CJ cautioned thus:-

“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 skepticism. The courts would scrutinize 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.”

18.But after scrutinizing all the evidence, and considering all the circumstances, I am satisfied nonetheless that the self-serving statements of the plaintiff do not give rise to any cause for the court’s skepticism. I also find the plaintiff’s maintenance of the Land by repairing the walls indicative of the requisite animus posidendi.  In support of this view, see for example, Tang Nam v The Estate of Wan Yuen Po (HCA 6973/2000) for the considerable weight and recognition given to enclosures, where Sakrani J said in para 8 that:-

“In my view, the uninterrupted and exclusive agricultural use and occupation of the land by the plaintiff together with the fact that he enclosed the land with barbed wire leads strongly to the conclusion that he intended to possess the land to the exclusion of everyone including the registered owner of the land.”

Conclusion

19.In my view, the uninterrupted and exclusive residential use and occupation of the Property and Land by the plaintiff before me, together with the fact that he has repaired the walls on the Land to maintain security, and has held the keys to the main gate and door to the Property throughout his occupation period up to the present, all lead inevitably to the conclusive inference that he has since March 1997, intended to possess the Property and Land to the exclusion of everyone else, including the defendant registered owner, who literally did nothing apart from holding mere paper title thereto.  I have therefore no doubt that the plaintiff is entitled to the reliefs sought, and do make the form of the declarations as formulated by him, and which are as follows:-

(1) A declaration that the defendant’s title to the Property and Land (as defined above in para 3), is extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347);

(2) A declaration that the plaintiff is the owner in possession of the Property and Land.

Costs

20.I also make an order that costs of this action be to the plaintiff, including all reserved costs, if any, and that the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations (Cap 91A).  And unless an application is made to vary this order within 14 days hereof, this costs order nisi shall also be made absolute. 

Mr Ng Man Kin, of Kwok, Ng & Chan, assigned by the Director of Legal Aid, for the plaintiff

The defendant was not represented and did not appear