Read the full judgment text of HCA 7140/1995 on BabelCite. This Court of First Instance judgment was delivered on 30 June 2015 before Chow J.
Land law – adverse possession – factual possession and intention to possess – hawker stall on private land – occupation under Government fixed-pitch hawker licence – whether licensee acquires possessory title – whether occupation as licensee is possession in own right – On Hing Terrace staircase – Inland Lot No 617 – Ivy House at Nos 18-20 Wyndham Street – Possessory title claimed to 1st Defendant's Area on the Lower Steps and Landing of the New Staircase – Chu Senior and Madam Yu operated hawker stall carrying on 'mending and knitting clothes' business from approximately 1963/64 to 1985 under successive fixed-pitch hawker licences granted by the Government – Licences issued under the Hawker (Urban Council) By-laws (now Hawker Regulation, Cap 132AI) specified precise pitch location, dimensions (1,200 mm x 900 mm), commodity, and hours – Licensing authority retained power to allocate and require vacation of the pitch – 1st defendant claimed possessory title had been acquired by parents' long occupation – Court applied two-element test for adverse possession from Powell v McFarlane and Pye v Graham (endorsed in Shine Empire Ltd v Incorporated Owners of San Po Kong Mansion) – Court also applied principle from Sze To Chun Keung v Kung Kwok Wai David that possession under licence is attributed to the licensor – Held, the 1st defendant's parents occupied the pitch as Government licensees and not in their own right, so the element of factual possession was not made out – Occupation was for a special or limited purpose (hawking) under stringent statutory restrictions, lacking the requisite animus possidendi to exclude the world at large including the paper title owner – 1st defendant therefore failed to establish adverse possession – Plaintiffs' alternative case that occupation was under licence from plaintiffs (implied or express) not made out – Illegality issue not decided as adverse possession failed on other grounds – Court determined position and dimensions of D1's Old Hawker Stall on the evidence of expert analysis of 1970s photographs, finding lateral width of 900 mm, lower extremity at riser of 4th tread, and upper extremity at riser of 9th tread of the Lower Steps – Plaintiffs' claim for possession of the New Staircase allowed; 1st defendant's counterclaims and 2nd/3rd defendants' counterclaim against 1st defendant dismissed – Costs ordered on a nisi basis in favour of plaintiffs against 1st defendant with certificate for 2 counsel, 1st defendant to pay 2nd/3rd defendants' costs of defending counterclaim, and 2nd/3rd defendants to pay 1st defendant's costs of defending their counterclaim up to commencement of trial only – 1st defendant's own costs to be taxed in accordance with Legal Aid Regulations.
Legal issues: Whether parents of 1st defendant acquired possessory title by adverse possession · Whether occupation under government hawker licence amounts to possession in own right · Whether plaintiffs granted an express or implied licence to the 1st defendant's parents · Whether illegality of hawker conduct bars adverse possession claim · Determination of position and dimensions of D1's Old Hawker Stall
Outcome: Plaintiffs' claims against the 1st defendant allowed; order for possession of the New Staircase (including the 1st Defendant's Area) made in terms of prayer (1)(e) of the re-re-re-amended statement of claim, with liberty to apply for further relief. 1st defendant's counterclaims against the plaintiffs and the 2nd and 3rd defendants dismissed. 2nd and 3rd defendants' counterclaim against the 1st defendant dismissed.
Cited by 23 cases · Cites 4 cases