HCA 1662/2001
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 1662 OF 2001
______________________
BETWEEN
| | HSBC PRIVATE TRUST (HONG KONG) LTD | Plaintiff |
| | (formerly known as BERMUDA TRUST (HONG KONG) LTD) | |
| | and | |
| | AU YEUNG CHUNG | Defendant |
| | (for herself and the estate of LAU HAK, Deceased) | |
______________________
Before : Deputy High Court Judge Carlson in Court
Dates of Hearing : 17, 20-21, 23 November 2006, 20-22, 25-27 June and 6-9 August 2007
Date of Judgment (Handed Down) : 4 January 2008
______________________
J U D G M E N T
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Introduction
1. This is a claim for possession of a substantial piece of land close to the sea-shore just off the Tuen Mun Highway near Siu Lam. The Plaintiff is the administrator of the Estate of Mr George Zee, now long dead, he having died in May 1967 without having made a will. I will refer to him from now on as the deceased. Just over a month after his death, his widow appointed the Chartered Bank, as it was then called, to administer the deceased’s Estate. It was granted letters of administration over the Estate on 19 June 1967. The Plaintiff is the successor to the Chartered Bank it having, following a series of name changes, taken over the Chartered Bank’s Trustee business.
2. The Defendant, Madam Au Yeung Chung is the widow of the late Mr Lau Hak who died on 3 June 2005. He had been the original Defendant in the action, the writ having been issued on 12 April 2001. The Defendant subsequently applied to be named as the defendant in her late husband’s place in her own right, as a person resident on the land which is the subject of the action and also on behalf of his estate. In this judgment, I propose to refer to the late Mr Lau Hak by his name.
3. The action has thrown up a number of issues which will require resolution by me, although essentially what is said by the Defendant is that by virtue of Mr Lau Hak’s and his family’s continuous occupation of the land in question adverse to the deceased’s and thereafter, insofar as that may be necessary, the Plaintiff’s ownership and title the Defendant is now able to defeat the claim for possession and entitled to remain there for as long as she wishes. In other words, a defence of adverse possession based on an occupation going back to 1953.
4. I propose to start by identifying the land in dispute by reference to its Lot numbers, these being 501, 502, 503 RP, 504 RP, 506 RP, 507 RP, 508, 510 RP, 511, 513 RP and 514 RP in Demarcation District No.379. This is all helpfully identified in the Demarcation District (“DD”) plan which is Ex. P3 as well as in Ex. P1 in the evidence. In the course of this litigation, the land has been well investigated by the parties’ experts, Professor Harley for the Plaintiff, and Mr Leung for the Defendant and their extensive reports which are contained in Bundle C have various copies of plans identifying the land and many aerial photographs of it which give an indication of the use to which it has been put over the years. Just by way of example, page C390 is a plan produced by Mr Leung taken from the 2004 Lot Index Plan which shows the position on the ground as it presently is.
5. What really needs to be concentrated on is the land which the Defendant claims to currently occupy being Lots 504 RP, 505 RP, 507 RP, 510 RP, 511, 513 RP and 514 RP. Whilst the other lots which I have referred to are also the subject of the Plaintiff’s claim for possession, the Defendant does not lay claim to these and different issues arise there which are largely referable to the necessity of making such a claim in respect of them against the Defendant and which really fall to be considered under the costs of the action once the outcome is known.
6. In a case such as this it is essential to establish the chronology of events, most of which is not in dispute. I propose to set this out now and as I do identify events and matters which are in dispute. I take most of this from a very full chronology prepared by Mr Jenkin Suen, who appears for the Plaintiff, which comes as part of his written closing submission. Where I am silent on an event or a date, it is to be taken as not being in dispute or reasonably capable of dispute. In establishing this chronology, I am able to refer to contemporaneous documents, most of which either speak for themselves or are not capable of being disputed as to their content or effect. And so much of the documentary history of the matter presents no difficulty. Nevertheless, as to live evidence which might have been capable of providing a reliable picture of events, there is precious little. I will come to it and relate and discuss it presently but it is worth observing at this stage that all I have had is the evidence of the deceased’s son, Mr Albert Zee, of gentleman of about 60, who was in his teens when the deceased took him to the land and had discussions with Mr Lau Hak and, as he then was, a very young Lau Wing Kam, Mr Lau Hak’s son who was born in 1957 and who was just a child when the deceased and his father met. One only needs to state these facts to understand how uncertain the live evidence has been as to the events shortly after the purchase of the land by the deceased. The Defendant herself, who has lived her life alongside Mr Lau Hak on the land since 1956 and who provided a witness statement, has decided not to give evidence and so I have nothing from her. The result therefore is that I have been asked to consider events covering the use and occupation of this land over a period of 48 years with precious little live evidence and this needs to be understood as I set out the chronology which now follows.
Chronology
7. In 1953, a date which is not admitted by the Plaintiff, Mr Lau Hak occupied the land and put it to use for market gardening — growing vegetables, which were sold at Cheung Sha Wan Market — and he also kept some pigs and chickens. He appears to have effected improvements to the land by digging drainage ditches and sinking wells for water. On 24 June 1956, he married Madam Au Yeung Chung, the present Defendant. In 1957 their eldest son Lau Wing Kam, who has for many years now lived in Canada, was born. On 8 September 1959, the deceased purchased the Lots from a Mr Davis for $17,500 [B31]. In 1961, Mr Lau Hak obtained a Crown Land Permit to occupy the crown land on DD379 which entitled him to erect a temporary structure and for cultivation. The permit was for the whole of 1961 [B262-263].
8. There is some evidence, disputed and hazy, that in about 1966 the deceased visited the land and informed Mr Lau Hak that he had purchased it and granted him a bare licence to use part of the land for small-scale cultivation and the keeping of livestock [A13-14]. Although not accepted by the Plaintiff, the Defendant’s case is that in 1966, Mr Lau Hak put fences around his home and the buildings where he kept his pigs and chickens. On 8 May 1967, the deceased died intestate [B32]. On 19 June 1967, letters of administration were granted in respect of the deceased’s Estate to the Chartered Bank Hong Kong Trustee Limited, and now by succession, the Plaintiff [B32].
9. From contemporaneous minutes and correspondence, between July and October 1967, it can be seen that the deceased’s widow Mrs Zee agreed that the administrators of the Estate [the Plaintiff] should start collecting rents from the tenants of the deceased’s properties and to write to the tenants to ascertain the precise situation regarding their tenancies. The Plaintiff asked Mrs Zee to tell it whether there were any existing tenancies in respect of land owned by the deceased in the New Territories and, if so, what the rents were. She replied that there were none [see B41-46]. At B43, which is part of the Minute of a Meeting held at the Plaintiff’s offices on 18 July 1967 to consider the various elements of the deceased’s Estate reference was made to the land which is the subject of this action and somebody must have informed the meeting that the deceased had purchased it with the intention of building either a shipyard or putting up a factory building, permission for which had been refused by the relevant Government department.
10. In 1968, this being heavily disputed, Mrs Zee is said to have visited the land and confirmed with Mr Lau Hak that the bare licences granted to him by her late husband remained valid. Just to underline the haziness of this part of the case, there is an alternative allegation that Mrs Zee granted Mr Lau Hak a fresh licence to continue using a portion of RP 504 for residential and agricultural use [A14]. In the course of 1968, the Plaintiff and the relevant Government departments corresponded over the valuation of the deceased’s Estate. The Plaintiff suggested that the value of the Lots in this action was $7,000. The Government took a contrary view and there is a letter dated 19 May 1969 [B50] which gave a valuation of $40,553.80 based on the fact that the Lots were well cultivated and producing crops of good quality. This valuation was eventually accepted by the Plaintiff.
11. The pattern of Crown Licences, first granted to Mr Lau Hak in 1961, continued over the years. These run from 1969 [B264-265], the next is for 1978 [B266] then 1983 [B268], finishing in 1995 [B271]. The areas of Crown land are demarcated on the plan attached to each licence and the licence itself, in the usual way, describes the purpose of the licence, usually permitting the presence of certain structures such as pigsties, agricultural sheds and residential buildings. These licences are helpful because they provide contemporaneous evidence of the sort of activities that Mr Lau Hak was carrying out on both the relatively small tracts of Government land which he occupied with its permission on payment of the appropriate fee and, as the Plaintiff accepts, the market gardening that he carried out on its now disputed land.
12. In late 1973 [B54.2-54.6] the Government resumed Lots 509 and 512 as well as portions of 503, 504, 506, 507, 510, 513 and 514 for which the Plaintiff was compensated in the sum of $11,879.04.
13. In March 1976 [B55-60], the Plaintiff granted a right of way to a company called Barichon Limited, whose activities on parts of the Plaintiff’s land form an important part of the evidence. On 5 June 1987, which is not accepted by the Plaintiff, Mr Lau Hak is said to have entered into a tenancy agreement between himself and a person called Chung Wing Fu. The tenancy agreement itself is a home-made document at B64.1 to 64.3, with English translations provided at B64.9.1-64.9.2.
14. The next very important event occurred sometime in 1988 when, as the Defendant accepts, Mr Lau Hak gave up his cultivation of the various lots and stopped keeping livestock. As from 24 June 1988, the Government had prohibited the keeping of livestock. There is a survey of structures and livestock prepared by the Government dated 25 January 1988 [B64.10-11] which provides a good indication of the extent of Mr Lau Hak’s livestock activities at the time that he was obliged to call a halt to these. It appears that amongst other animals he kept chickens, pigs and geese.
15. There is no doubt that shortly after that the use of the land changed dramatically. Smallholdings in the New Territories which grew fruit and vegetables were turned into storage areas for containers and other pieces of equipment such as piping. This is precisely what happened to these lots as is very well demonstrated by the aerial photography that has been placed before me and commented upon by the experts. Professor Harley has referred to such photographs from 1956 to 1999. This is all reproduced in Bundle C which contains the expert’s reports. These photographs start at page 356 in 1956 where the beginnings of cultivation can be observed, well and truly taking hold in the succeeding years, through to 1999 by which time storage had come to an end. The end of cultivation in 1988 is well depicted by looking at the photograph for 1987 [C367] where some growing can be made out, followed by the 1988 photograph on the next page which shows storage already taking place on the disputed land. The bottom left corner of the photographs from 1988 [C368] through to 1997 [C372] clearly show the activities of Barichon Limited who operated a pipe production plant there where they also stored the pipes that had been produced by them pending their sale and removal by their customers. As I have already indicated, I will need to say more about their activities presently as well as the use of the land which the bottom left corner of the photographs so clearly depict from its early use as a boatyard [see for example 1963, C358] to the eventual clearance of that part of the land by 1999 [C374] in preparation for the construction of a large residential development which now stands there.
16. The period from 1988 to the beginning of 2000 is characterised by tenancies granted by the Plaintiff to Barichon and its associate Rights Protection Limited together with negotiations with Barichon which had indicated a willingness to purchase the land but which came to nothing. There is no doubt that in the course of its tenancies, Barichon stored pipes on the land and carried out improvements in terms of paving parts of it and laying drainpipes. At B70 one finds a letter dated the 6th March 1989 from Rights Protection Limited to the Plaintiff saying that Mr Lau Hak and a Mr Yau, who had been farming the Lots for several decades:
| “ | … now give up farming … and assigned to our company for use. Our company paid several hundred thousands to the said farmers, being compensation for the crops and cultivation fees. We also spent much money laying drainpipes and levelling the site. We now learned that you are the owner of the land.” |
There then followed an offer to rent the land for $20,000 a month. I am urged by Mr Szeto, for the Defendant, to treat this as something of a rogue letter and give it no weight because Mr Lau remained on the land and there was no receipt produced by the Plaintiff for the compensation allegedly paid to Mr Lau Hak and Mr Yau. Mr Szeto submits therefore that the facts contradict the terms of this letter.
17. What is clear is that in August 1989, the Plaintiff granted Barichon a right of way over Lot 513 RP and entered into a tenancy agreement for two years with Rights Protection back-dated to 1 March 1989 at a monthly rent of $33,000, which would appear to follow on from Rights Protection’s letter of 6 March 1989 at B70 supra. This two-year tenancy is at B83-103 covering all the Lots in this action.
18. In January 1991 [B105] it would appear that an offer had been made by Barichon/Rights Protection to purchase the land for $5 million. This was not pursued and correspondence in 1992 indicates the presence of trespassers on portions of the land which had existed for a long time and which might affect the Plaintiff’s legal ownership [B128-129]. This correspondence continued into April 1992 [B133-137] culminating in a letter on 30 April 1992 from the Plaintiff to Mr Lau Hak asking him to demolish the structures that he had put up on the land and to deliver vacant possession of it by 30 May 1992 [B138-139]. Mr Lau Hak did not comply, notwithstanding which, on 30 May 1992 the Plaintiff and Barichon entered into another tenancy agreement for three years as from 1 September 1991 at a rent of $33,000 a month for the first two years and at $37,000 a month for the third year.
19. Whilst this was going on, Mr Lau Hak and a Mr Chung also entered into a three-year tenancy from 2 July 1992 to 1 July 1995 at $3,000 a month in respect of Lots 504-514. If true this gave rise to a curious feature of two ‘landlords’ and ‘two tenants’ on several of the Lots in question. In fact, Mr Lau Hak purported to grant Mr Chung a further tenancy from July 1998 to July 2000, also the $3,000 a month [B64.7-64.9, 64.9.5-64.9.6]. The authenticity of these tenancies is strongly questioned by Mr Suen which is a matter I will have to return to presently. In the meantime, the Plaintiff granted Barichon a further two-year tenancy from 1 September 1994 at a monthly rent of $48,000 for the first year and $52,000 a month for the second [B170-199]. In September, it concluded a further two-year tenancy with Barichon at a rent of $59,800 a month. That tenancy was held over for a further two months to the end of October 1998 after which Barichon removed itself and wrote to the Plaintiff on 17 December 1998 that it had cleared the land [B235].
20. On 21 December 1998, a Mr Kwok of BTHK, a company that was managing the land for the Plaintiff, attended the land with a representative of Barichon to formally take it over. Mr Kwok had pointed out to him some structures that remained on the land and a banana plantation on Lot 514 [A292.19]. Instructions were given by him for a contractor to fence off the land. This was done by June 1999. In the meantime, the Plaintiff was trying to find a new tenant for it. On 16 June 1999 [B236] the Plaintiff reported to, amongst others, the Zee family that during the course of erecting the fencing “trespassers”, who had been on the land for many years, were seen to be present. The letter came with a sketch plan showing a hut extending onto 513 RP and another occupying part of 511 and 513 RP together with the banana plantation occupying part of 514 RP. There were also containers on part of 502 and 503 RP. On 27 July 1999, the Plaintiff’s solicitors wrote to the occupiers demanding vacant possession [B238-239]. In November 1999, a survey report obtained by the Plaintiff told the same story as that related in the Plaintiff’s letter of 16 June 1999 [B251-261]. Before I come to a letter dated 17 January 2000, written by Ms Kim Lau, the Defendant’s daughter [B240] in response to the Plaintiff’s solicitor’s letter demanding vacant possession which resulted in the writ being issued on 12 April 2001, it is just as well to distill this chronology into a few sentences lest one loses sight of the wood for the trees, although ultimately it will be the detail as applied to the relevant law that will be determinative of the outcome of this action.
21. By way of summary, there can be no doubt that at least since 1956, the Defendant says 1953, when Mr Lau Hak first occupied the land and started to cultivate it, until the present day, Mr Lau Hak (until his death in 2005) together with his family have had a presence on the land whilst always remembering that their home and most of the agricultural structures, such as storage sheds, had been erected on Government land by virtue of licences granted to them for that purpose. They have also put up structures on parts of the disputed lots. From 1956 until 1988 large portions, if not all, of the disputed lots had been commercially cultivated by Mr Lau. Since 1988, Mr Lau stopped his agricultural activities and according to the defendant’s case earned his income by allowing persons to park containers on the land as well as tractor units that transported the containers. He purported to create leases on part of the land for brief periods principally to a Mr Chung for which he was paid $3,000 a month.
22. Following his purchase of the land in 1959, Mr George Zee appears to have kept a close “commercial” eye on it but allowed, allegedly by bare licences, Mr Lau Hak to cultivate his land until he found some lucrative purpose for it. Following his death in 1967, the widow at first, and then the Plaintiff allowed cultivation to continue and the Laus to carry on as before. From 1988 until late 1998, the Plaintiff created a number of tenancies over the land in favour of Barichon and its associate Rights Protection which enabled these two companies to store things on the land. There were also failed negotiations over a proposed purchase of the land by Barichon/Rights Protection. Once the association with Barichon ended, the Plaintiff fenced off the land but it had drawn to its attention the continued presence of the Lau family over parts of the land by virtue of structures that they had built on some of the Lots as well as a banana plantation. In preparation for finding a new tenant in 1999, the Plaintiff wrote to the occupiers, that is to say the Defendant and any other members of the Lau family who were living there, telling them to leave. They would not — hence this action to obtain vacant possession.
Kim Lau’s Letter of 17 January 2000
23. This letter was in response to the Plaintiff’s solicitors’ letter of 27 July 1999 at B238. Its material part is as follows:
| “ | We are instructed that our client recently discovered that you, either yourself or jointly with others, have without our client’s consent or knowledge occupied and used the Land by obtaining possession thereof. Upon our client’s enquiries, our client notes that you, either yourself or jointly with others, have commenced the unauthorised occupation and possession of the Land by, inter alia, placing two containers, erecting two wooden huts, placing a trailer and planting trees and vegetation thereon. |
| | Your said unauthorised use and occupation of the Land constitutes an act of trespass actionable in law and has caused loss and damage to the estate of the said deceased. |
| | We are now instructed that unless you cease to carry out any operation of the Land and deliver up vacant possession thereof forthwith to our client, our client shall take such action as shall be advised against you without further notice.” |
Ms Lau’s response, six months later on 17 January 2000, is in these terms:
| “ | Re : Clarification on the use of land (your Ref. CDC:PK:986929) |
| | This is in response to your letter dated 27 July 1999 regarding the use of land in Inland Lots 501, 502, 503RP, 504RP, 506RP, 507RP, 508, 510RP, 511, 513RP & 514 in D.D.379. I would like to clarify on behalf of my father— Mr. Lau Hak that your claim of our unauthorized use to the aforesaid land is totally mistaken. |
| | In fact, long before your client– Mr George Zee’s purchase of the aforesaid land in D.D.379, my father had been farming there. In addition, even after Mr. Zee’s purchase of land in D.D.379, Mr. Zee had asked my father to exchange part of his purchased land in D.D.379 for part of my father’s farmland in early 1960’s. |
| | In accordance with the mutual agreement between Mr. Zee and my father in 1966, the aforesaid land would be continually used and supervised by my father. This has been no change even after the decease of Mr. Zee and Mrs Zee– wife of Mr. George Zee knew about this act as well. |
| | My father has totally the true authority in using the aforesaid land and been granted the registered lot numbers by the HKSAR land department. I would be appreciated if you could make this case clear and withdraw the claim of unauthorized use of the land in D.D.379 to my father as soon as possible. |
| | Looking forward to your favourable reply at your earliest convenience.” |
24. This of course is an important piece of evidence because it contains the Defendant’s (through her daughter) first response to the Plaintiff’s claim for possession. Insofar as it is possible to analyse the response it alleged an oral agreement between Mr Lau Hak and the deceased whereby in 1966, the deceased exchanged part of his land, which he had purchased in 1959, for part of Mr Lau Hak’s farmland. There is no indication in the letter what land belonged to Mr Lau Hak which the deceased agreed to exchange for his land. Thereafter this unspecified land belonging to Mr Lau Hak which he swapped with the deceased’s land “would be continually used and supervised by (Mr Lau Hak)”. The next paragraph appears to suggest that on the basis of this swap, Mr Lau Hak had authority to use the land and that he had been granted the registered Lot numbers by the HKSAR lands department. In respect of this latter assertion, it would appear that the only authority that Mr Lau Hak had been granted were not Lot numbers by the Hong Kong Government but a series of Crown licences allowing him use of Crown land and certainly not any registered Lot numbers. These Lot numbers have always been allocated to the deceased, and thereafter the Plaintiff, as the registered owner of the various lots that constituted the land which is now the subject of this action.
25. It is worth observing that in drafting this letter, Miss Lau would have been able to take Mr Lau Hak’s instructions on what had occurred since the deceased’s acquisition of the land in 1959. These were not therefore hearsay instructions following her father’s death. She also had been able to talk to her brother, who was then living in Canada. He has told me as much in the course of his evidence. This therefore was a well-informed and considered response. It had taken six months to prepare. It will be instructive to see how this initial factual response to the claim for possession has changed over the years of this litigation, starting with the defence and counterclaim in its original form and after that through the amendments made to that pleading and lastly, through Mr Lau Wing Kam’s own evidence. I will say nothing further about this until I come to analyse the evidence as a whole and arrive at my findings on it.
The Issues
26. From this chronological summary of events over the 48 or so years until the issue of the writ for possession, it now becomes necessary to identify the issues which will require resolution by me.
27. The first issue, which only appeared very late in the trial and which in the ordinary course of events would and should have been taken as a preliminary issue, is whether the Plaintiff has the authority to bring this action. The point comes about in this way, which I will elaborate upon when I discuss it and rule on it. The deceased, being a Chinese who died intestate before 1971, when the Intestates Death’s Ordinance was enacted, was liable to have his estate distributed in accordance with Ching law and custom in force in China in 1841. The effect of the 1971 Ordinance is that following its enactment the estate of both Chinese and intestates of other races were to be distributed in accordance with English (now Hong Kong) law. Mr Szeto submits that the Plaintiff has failed to call expert evidence to prove the foreign (Ching) law and by failing to do so it has failed to prove that Mrs Zee, as the deceased’s widow, had authority under Ching law to appoint the Plaintiff to take out letters of administration which is the source of its authority to bring this action on behalf of the deceased’s estate. This failure to prove the validity of the letters of administration means, according to Mr Szeto, that the Plaintiff has not proved that it has the legal authority to bring the action and that as a result the whole proceedings must fail in limine. I will need to attend to this issue first.
28. Assuming for the moment, that the Plaintiff survives that challenge, the next issue is whether the Defendant’s family, under the leadership of Mr Lau Hak, was in adverse possession of the disputed Lots for the requisite 20 years, thereby creating a time-bar to recovery of possession of the land by the Plaintiff. Mr Jenkin Suen has divided this principal issue into three sub-issues which I am content to adopt. Firstly, whether the Defendant’s family had possession in fact, of the disputed land for the requisite 20 years prior to the start of the action in 2001. Secondly, whether, as a matter of law, time stopped upon the deceased’s death in 1967 and started to run again and if so, from which date. Thirdly, whether the Defendant’s family had the essential animus possidendi to possess the land or, whether they remained in possession as bare licensees or otherwise pursuant to an implied licence or permission of the deceased and/or the Plaintiff. As is apparent these are largely questions of fact to be determined on the evidence.
29. The second issue is whether, in the event that the Defendant is able to show that she has a possessory title of the disputed Lots, that title has been lost by abandonment. As framed this issue is, of course, only live if the Defendant succeeds in showing that she had secured a possessory title based on adverse possession for the requisite 20-year period.
30. Having stated the issues, it now becomes necessary to consider and resolve each of them in turn.
Does the Plaintiff have Authority to Sue?
31. A classically preliminary point such as this should have been taken at the very beginning of the trial and not by way of defence to the action. The practice and principles in this regard have been discussed by Deputy High Court Judge To in East Legend Investment Ltd, unrptd. [HCA 581/2002, 7 June 2007] where at paragraph 9 of his judgment he referred to the leading English authorities. I need only summarise these very briefly. Such a point ought to be taken at the outset and not by way of defence nevertheless, as Kerr LJ put it in Airways Ltd v Bowen & Anor:
| “ | Our civil justice leans heavily in favour of adjudication on merits and is very jealous of adjudication by default. If a party has no locus standi to bring an action, he is not entitled to bring an action and to have the chance of obtaining an award. Hence, it matters not when the issue of the plaintiff’s locus standi is raised, though the proper course is to raise it at the outset. If it is not raised at the outset, it may still be raised at any stage in the course of the proceedings provided that there is no prejudice to the plaintiff which may not be compensated for by costs. But a late challenge may have costs consequences. If the issue was not raised at the outset and substantial costs have been incurred by the plaintiff, the defendant who successfully challenged the plaintiff’s locus standi may be deprived of his own costs or may even have to pay the plaintiff’s costs thrown away by reason of the late challenge.” |
I respectfully apprehend that this is the correct approach to take. Whilst Mr Suen complains as to the way that this point has emerged and so late in the day, he has been able to confront it without any added complaint that his client has been prejudiced by its lateness although, in the unhappy circumstances that this issue is resolved against him, he says that he would have a lot to say about costs, even going so far as to suggest that the Plaintiff should have the costs thrown away by the lateness of this challenge to the Plaintiff’s locus to sue.
32. Mr Szeto has placed great reliance on the case of Li Chok Hung v Li Pui Choi [1911] 6 HKLR 12. In that case, the court was content to proceed on the basis that English law was not applicable to the grant of letters of administration over the estate of a Chinese person and that only Ching law governed succession. Mr Suen strongly submits that Li Chok Hung was subsequently held to have been wrongly decided. In Ho Cheng Shi v Ho Sau Lam [1920] 15 HKLR 35, it was decided that whilst Chinese law and custom governing the distribution of assets was to be applied by the courts of Hong Kong nevertheless, the general law of Hong Kong as to the process of the administration of an estate applied to a Chinese persons estate. Mr Suen is fortified by the fact that Ho Cheng Shi was subsequently approved in Re the Estate of Chak Chui Hang [1925] 20 HKLR 1.
33. In Li Chok Hung, the court had decided that Chinese law governed both devolution of property and the distribution of the assets. In Ho Cheng Shi this analysis was held to be wrong [see page 39].
| “ | … only that part of Chinese customary law which relates to distribution of assets has become the law of the Colony. If this is so, the Chinese custom that property on death vests directly in a successor, has no application to Hong Kong assets. If the matter was ever doubtful, the doubt has been removed by the Probate Ordinance. This part of the defence therefore fails. [emphasis added]” |
Further, in Re the Estate of Chak Chui Hang supra the court underlined the distinction between English law, which governed the grant of probate and administration even over the estate of a Chinese person and, Chinese law which was restricted to how the estate of a Chinese person should be distributed. The following passages from the judgment in Chak Chui Hang really put the matter beyond doubt:
| “ | ‘ | So far as the jurisdiction in matters of probate and administration conferred on the Supreme Court are concerned, it appears to me that it is under the above mentioned provisions exercisable over all persons whether Chinese or not; and that no question can be raised as to their applicability to the Chinese inhabitants of the Colony …’ (at 7-8) |
| | ‘ | The laws relating to probates and letters of administration were amended and consolidated by the Probates Ordinance, No.2 of 1897. I think that this Ordinance must be taken to apply, as regards grants of letters of administration, to the estates of Chinese intestates as well as other intestates;f and the strongest support is given to this view by the provisions of s.18 of this Ordinance.’ (at 10) |
| | ‘ | (4) | … it would appear to follow from the provisions of the Probate Ordinance, 1897, and the laws which preceded it that letters of administration must be taken before the property of a deceased intestate can be administered …’ (at 12) |
| | ‘ | … I think that the statement of the position made by Sir Francis Piggott [in Li Chok Hung, supra] is not altogether accurate. As I have already stated, the provisions of the Probate Ordinance, 1897, require in my opinion that letters of administration should be taken out before the estate in Hong Kong of an intestate is dealt with. |
| | The learned Chief Justice apparently did not deal with the applicability to local conditions of the provision of the English law which entitles a widow to a grant of letters of administration of her husband’s estate if he died domiciled in Hong Kong.’ (at 14)” |
Finally, the court also observed that:
| “ | ‘ | … the practice of the Registry has been to grant letters of administration in strict accordance with provisions of the English law, i.e. to the widow in the first instance unless she is unfit and then to the next of kin.’ (at 14)” |
34. It strikes me that in the face of such a clear pronouncement of the position as to the administration of a Chinese persons estate under English law that Mr Szeto’s submissions can have no substance. He has attempted to rely on the decision in Ho Tsz Tsun v Ho Au Shi [1915] 10 HKLR 69, but this cannot assist him. That case only dealt with the law governing the distribution of leaseholds of a Chinese person who had died intestate. It is accepted that Chinese law would govern distribution but this case provides no authority for the proposition that letters of administration need not be applied for in the usual way.
35. Finally, I should also refer to two passages referred to by Mr Suen, one from Ho Cheng Shi and the other from Chak Chui Hang both of which clearly demonstrate how misconceived Mr Szeto’s submissions have been in this regard. Both these passages serve as authority that Chinese custom will not prevent the court from granting letters of administration to a widow:
| “ | ‘ | … It is urged that it is contrary to Chinese customary law to allow this plaintiff, who is a woman, the concubine of the intestate, to administer his estate … |
| | | … The answer is, I think, that the status of a woman is different in our law. She is competent to be administratrix, and as such to do anything that may be necessary for the administration. In dealing with assets, which are, ex hypothesi, Hong Kong assets, her status under the law of China is immaterial …’ (Ho Cheng Shi, supra, at 39, 40-41) |
| | ‘ | … But letters of administration to the estates of deceased Chinese have been granted to their widows for many years past without any of the evils which Mr Eldon Potter pressed on my attention having ensued, and also without the foundations of Chinese family life having been subverted. In my opinion it would be pedantic to upset a rule which has been followed for such a long time on the ground that if the question had been raised in 1843 it might have been argued that the position of a Chinese widow in the family under Chinese law and custom was such that she could not be considered entitled to a grant of administration of the property of her deceased husband.’ (Re Estate of Chak chiu Hang, supra, at 17-18)’” |
36. It seems to me that the position has been very well settled for over 80 years. I regret that Mr Szeto has thought it appropriate to re-visit the matter now with a view to showing otherwise. This has merely served as an unnecessary distraction. Mr Suen has also pressed other reasons why the letters of administration are perfectly valid which are, to my mind, additional reasons for upholding his submission [see pages 11 and 12 of his closing submission]. I do not propose to discuss these here because I am content to decide the issue on the basis of the cases which I have referred to above from which there can be no other conclusion than that the Defendant must fail on this issue. I hold that the letters of administration were validly taken out and accordingly, that the Plaintiff has lawful authority to bring this action. From this, I can now turn to the real merits of the action which focus on the issue of whether the Defendant has a defence based on adverse possession for the requisite 20 years.
Did the Defendant and Her Family have Possession for 20 Years Prior to the Issue of the Writ?
37. The legal principles governing the question of whether a person has possession for the purposes of the relevant parts of the Limitation Ordinance are those set out by Slade J (as he was) in Powell v McFarlane [1977] 38 P&CR 452, as approved by the House of Lord in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, prior to which the Court of Final Appeal had also adopted Slade J’s formulation in its decision in Wong Tak Yue v Kwong Kwok Wai [1997-1998] 1 HKCFAR 55.
38. The relevant part of Slade J’s judgment is in these terms:
| “ | (2) | If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’). |
| | (3) | Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive 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 of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances … acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree … 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 …” |
39. What must now follow is an analysis of the evidence leading to such findings of fact as I am properly able to arrive at given the paucity of live evidence, followed by an application of those findings to the legal principles which I have just referred to.
40. What is beyond dispute is that from 1956 to 1988 Mr Lau Hak actively cultivated the land. That he did so to the knowledge of the deceased from 1959 when he purchased the land and, after his death in 1967, to the knowledge of his widow, his son Albert and the Plaintiff is also not capable of serious dispute. I find this as a fact. The Defendant has contended that occupation and cultivation started in 1953, but in the absence of any live evidence to support this, and no documentary evidence, it is difficult to sustain a bare plea going back to 1953. The first aerial photograph is dated 1956 which confirms cultivation and so I am able to take this as the starting date for occupation and cultivation. The Defendant herself, had she given evidence, might have been able to assist on these events having started in 1953 but, as she has not, all that I am left with is a pleaded case alleging 1953 as the starting date, unsupported by evidence.
41. This having been said what will be decisive of the Defendant’s plea of adverse possession for more than 20 years is the answer to the question concerning the basis of Mr Lau Hak’s possession and cultivation of the land. Mr Szeto submits that on the evidence the case is all over by 1973 when the 20 years of physical possession by Mr Lau Hak was complete, but as I have already found, he can only start the clock from 1956 and so on his best case 20 years would have been completed in 1976. He has submitted that the suggestion that in 1960 and thereafter the deceased met with Mr Lau Hak and orally gave him a bare licence to occupy and cultivate his land is simply not maintainable on the evidence. Firstly, it is based on the childhood memories of Mr Albert Zee, with all the inherent weaknesses of such evidence, which is completely uncorroborated by any other reliable evidence. If anything, submits Mr Szeto, the contrary is more likely to be true. For this he relies on Albert Zee’s evidence that his father, who was a careful and experienced businessman, had advised him, and this was his practice, to always commit business agreements to writing prepared by lawyers. He would never leave things to chance by merely dealing with important matters on the basis of an oral agreement and a handshake. Mr Szeto therefore submits that had there been a bare licence granted by the deceased to Mr Lau Hak, its terms would have been reduced into writing by the deceased’s solicitors who would have been careful to spell out in precise terms, the nature of the legal relationship. I will be required to say more about this in relation to the third sub-issue under this heading, as Mr Suen has divided it up, which is whether Mr Lau Hak’s family had the required animus possidendi in occupying the land or whether they were bare licensees.
42. The period from 1988 until the issue of the writ in 2001 falls to be treated differently. Whereas, from 1956 to 1988 there is clear evidence of occupation of the land by Mr Lau Hak and of its commercial cultivation, after 1988 the land was converted to use as a place for storing containers and concrete pipes. The Plaintiff’s case is that whatever the basis upon which Mr Lau Hak occupied the disputed land, he gave it up in 1988 after which the Plaintiff resumed it and began to deal with Barichon and/or Rights Protection, culminating in a series of tenancies granted to these companies who used the land for storage.
43. I will resolve this issue which is exclusively a question of fact after I have rehearsed the remaining issues.
Does Time Begin to Run Again After the Death of the Deceased in 1967 or Even Later Than That?
44. This issue is raised in paragraph 5B of the Re-Re-Re Amended Reply. Mr Suen relies on section 10(2) Limitation Ordinance. The argument proceeds in this way. Even if the Defendant proves that Mr Lau Hak had been in occupation since 1953, the Plaintiff’s title would not have been extinguished until 1973. The effect of section 10(2) is that the Plaintiff’s estate will not be extinguished if the right of action of persons entitled to a beneficial interest in the land has not accrued or has not been barred by the Limitation Ordinance. From that position, Mr Suen submits that the succession of the deceased was governed by Ching law and custom and that the beneficiaries included his widow and his children. The beneficiaries right of action would not have accrued until the administration of the Estate of the deceased had been completed. Mr Suen’s primary case is that at the earliest the beneficiaries right of action did not accrue until the death of Mrs Zee in 2000, or even better 18 months after that when, pursuant to the Family Agreements, the Plaintiff was required to sell the real property of the Estate. An application of section 10(2) therefore means that time had not even begun to run by the date of the issue of the writ. The alternative case, which really drives Mr Suen back to his pleas of occupation by licence and/or abandonment, is that the right of action of the beneficiaries accrued at the very earliest in 1971 when estate duty was paid, in which case the right of action could not have been barred until 1991. At worst, if the right of action accrued on the deceased’s death in 1967 then the limitation period expired 20 years after that.
45. This plea is met by paragraph 6(c)-(f) of the Amended Rejoinder. Mr Szeto submits, in brief, that if Ching law applies the title to the land passed immediately and exclusively to the deceased’s three sons and section 10 therefore would have no application. The widow is by-passed and would have no authority to apply for letters of administration. Alternatively, the Plaintiff has, since the deceased’s death in 1967, held both the legal and equitable title to the land with the effect that the title went, after 20 years of adverse possession by Mr Lau Hak, in 1987.
46. This has provoked something of a technical argument from both counsel which I will need to rehearse and rule on after I have set out the remaining issues that are apparent on the pleadings.
Did Mr Lau Hak and His Family Have the Requisite Animus Possidendi?
47. This calls for a finding on the evidence of whether some kind of bare licence or implied licence had been granted by the deceased and thereafter, renewed by his widow after his death. This issue only comes into play if the Defendant succeeds on the primary issue of proving factual possession of more than 20 years. It is on this issue of whether Mr Lau Hak occupied the land with the deceased’s, and subsequently his widows, permission that the court is hampered by the paucity of evidence. I will be required to analyse the available evidence including the way that the original Defendant, Mr Lau Hak, put his case in the defence and counterclaim, his daughter’s letter of 17 January 2000 [B240] which I have already referred to, and all of the other evidence to which reference will need to be made in the course of arriving at the appropriate findings of fact on this issue.
Did Mr Lau Hak and His Family Abandon the Land and Thereby Lose Any Possessory Title that They Might Have Acquired?
48. This is very much Mr Suen’s long-stop submission. He says that if all else fails, Mr Lau Hak abandoned the land in 1988 when he stopped his cultivation of it and the Plaintiff repossessed it at that time thereafter creating successive tenancies in favour of Barichon/Rights Protection. This part of the case can only succeed if the Plaintiff is able to show abandonment of the land by the family of Mr Lau Hak. The Defendant’s case is that far from abandoning it, Mr Lau Hak merely changed its user by allowing containers to be stored there and by creating tenancies over part of the land. And even if that fails, the defence submit that once the Plaintiff’s title expired, this being the basis of the plea of abandonment, the Plaintiff cannot, as a matter of law, somehow revive its title by reoccupation and certainly not before the expiry of a new limitation period which will need to have run its course.
49. These being the issues that call for determination by me, I am now required to resolve each in turn. In analysing the evidence, I should say that I had the very considerable advantage of having a view of the land together with the parties and their counsel and solicitors who were able to point out to me any feature on the land that they wished to. In my assessment of the evidence therefore I propose to have regard to what I saw there and had pointed out to me on behalf of the parties. The other matter which I should draw attention to, which perhaps should have been mentioned earlier by me, is that at this stage I am not concerned with the claim for mesne profits and/or damages should such issues arise, nor the Plaintiff’s pleas based on the Basic Law and the like, to which earlier Rulings by me have made reference. These of course would only arise if I held in favour of the Defendant and upheld her plea of adverse possession. For the purposes of this judgment, I will go through the issues which I have referred to. If the Defendant fails on adverse possession, which will have required me to work through these issues, then the Plaintiff will have its possession order and I will adjourn its consequential monetary claims. If the Defendant succeeds in showing that the Plaintiff’s title has been extinguished then the Plaintiff will need to consider whether it should press on with its Basic Law and related claims which will have to be held over for further argument. I would no doubt have to give directions as to how these issues will need to be tried.
50. I have already ruled that the letters of administration have been properly granted to the Plaintiff and I propose to say nothing further about that.
Analysis of the Evidence and of the Relevant Law
Did Mr Lau Hak and His Family Have Factual Possession for the Requisite 20-Year Period?
51. I have already largely answered this question in identifying the issue itself. Based on the evidence of the aerial photography showing cultivation from 1956 until 1988 and confirmed by Mr Lau Wing Kam that his father cultivated the land from as long as he could remember [he having been born in 1957), I am satisfied that factual possession or occupation is established by the Defendant and not seriously disputed by the Plaintiff. Therefore, I find as a fact physical occupation from 1956 to 1988. For the period since 1988 until the writ came in 2001, I propose to discuss this under the second main issue based on whether there had been an abandonment of the land in 1988.
52. This being my finding the Defendant must be held to have cleared the first basic hurdle in any case based on adverse possession.
Did time Begin Again After the Deceased Died in 1967 and If So at What Point in Time Did This Occur?
53. If Mr Suen can show that, as a matter of law, time stopped and only re-started at the earliest after the death of Mrs Zee in 2000, then the limitation defence must fail because the limitation period would have been barely a year old when the writ was issued in 2001. I have already summarized the Plaintiff’s plea and submission in this regard as well as the Defendant’s response, these require no repetition here.
54. Success or failure for Mr Suen depends on whether section 10(2) Limitation Ordinance is applicable in these circumstances. The sub-section provides, as Mr Suen has rightly submitted at para.48 of his closing speech, that the trustee’s estate will not be extinguished if and so long as the right of any person entitled to a beneficial interest in the land “has not accrued” or has not been barred by the Ordinance.
55. Mr Szeto submits that this cannot possibly be right. He says that in order to invoke section 10(2), the beneficial interest would have had to accrue before the trustee’s legal and equitable title has been extinguished. In this case, Mr Szeto submits that if the beneficial interests did not accrue before the death of Mrs Zee in 2000, long after the expiry of the limitation period, then it is far too late for the beneficiaries to do anything about it. They can do no better than the trustee.
56. It seems to me that Mr Szeto’s submission ignores the plain words of the sub-section. The sub-section is very clear that the trustee’s estate will not be extinguished if and so long as the right of any person entitled to a beneficial interest has not accrued. The effect of these words is to statutorily stop the limitation clock until accrual of the beneficiaries interest.
57. Mr Suen is correct in submitting that in order for Mr Szeto to succeed, section 10(2) would have been drafted in a different way. It would have had to provide that the trustee’s estate is preserved only if the beneficiaries right of action has already accrued and not been barred, nevertheless, the Ordinance expressly contemplates cases where the beneficial interest is yet to accrue.
58. What needs to be established therefore is at what point the beneficial interests of the deceased’s estate accrued. This issue is entirely bound up with the extent of the applicability of Ching law. Mr Szeto has submitted that under Ching law, assuming that its applies, the title to the land would have passed exclusively and immediately upon the deceased’s death in 1967 to his three sons, in which circumstances section 10 would have no application.
59. Mr Suen’s response is that what Mr Szeto is doing is attempting to extend Ching law, beyond its allotted place governing how the assets are to be distributed on an intestacy, to when and how that distribution is to take place. In Ho Cheng Shiibid. the court held that:
| “ | the Chinese custom that property on death vests directly in a successor has no application to Hong Kong assets.” |
For the reasons which I have already discussed when considering the validity of the letters of administration, Ching law does not deprive the court of its power to appoint an administrator to administer the estate of an intestate. English law applies in this regard. Mr Suen submits that the relevance of Ching law is to highlight the point that under that law there is no rule which determines the date of distribution of a deceased’s assets. This usually falls to be decided by the widow. The case of Liu Ying Lan v Liu Tung Yiu reported, HCA 6693/1992 — [see para. 28] is in point:
| “ | … However, when it comes to succession to the property or inheritance, the father has no right to make a will in the English sense of the word to dispose of his property after his death. Instead, upon his death, all the sons of the father enjoy an equal share, and the heir does not have any privilege over his brothers. As for the daughters, daughters who are already married at the time of death have no claim to the property at all. Unmarried daughters have a claim to maintenance until marriage and upon marriage a claim for dowry. As for the widow, she has a sort of life interest claim to the property of her deceased husband for maintenance during her lifetime. The claim ceases upon her death. During her lifetime, her sons cannot insist on dividing up the property of their late father without her consent, given her prior claim to maintenance for life. [emphasis added]” |
Mr Suen has very correctly drawn to my attention that in that case the 1st Defendant had appealed to the Court of Appeal which dismissed his appeal and that the Plaintiff lodged a cross-appeal which was allowed [CACV 279/2002]. Nevertheless, the nature of the appeal did not question the correctness of the judge’s summary of Ching law which I gratefully adopt. This being the case, the passages, for which I have provided an emphasis, in my judgment serve to explain why the Family Agreements provided for the sale and distribution of the real property in the deceased’s estate only after the death of Mrs Zee. This being so the interests of the beneficiaries could only accrue upon her death in 2000.
60. Where English law applies to the mechanism and time of the distribution of the assets of an estate, it has to be that the Plaintiff, as administrator, is the legal owner of the estate, including of course this disputed land, until it has been distributed. The way title is devolved must therefore be governed by English law and not Ching law (which merely directs to whom the assets are to go). In such circumstances, Mr Suen must be right in submitting that the application of English law must involve the Limitation Ordinance (including section 10). Under the Family Agreements, the beneficial interests of the sons could not accrue until after Mrs Zee’s death, after which, and not before, the real property could be sold and the proceeds distributed.
61. Accordingly, by virtue of section 10(2), the limitation period would be inoperative against the beneficiaries until the accrual of their beneficial interests. Mr Suen put its well at para.50 of his closing submission, that once the deceased died in 1967, the right of Mr Lau Hak and of his family would be subject to a future right of action by the beneficiaries once their beneficial interests accrued. The Plaintiff’s position as the pro tem holder of both the legal and beneficial interest, pending the accrual of the beneficiaries interests, renders it the personal representative of the estate as trustee under section 2, Trustee Ordinance, Cap.29. As trustee its position is provided for under the terms of section 10(2). Mr Lau Hak and his family therefore occupied the land subject to the right of the beneficiaries upon the accrual of their interests to exercise their right as the legal and beneficial owners of the land to remove him from it.
62. This being the correct analysis, no issue of limitation can be raised by the Defendant against the beneficiaries whose interests accrued, at the earliest upon their mother’s death in 2000. The writ came the following year in which circumstances the Plaintiff is entitled to its order for possession and the counterclaim based on adverse possession must stand dismissed.
63. Although this would be sufficient to dispose of the case, in the event of an appeal I propose to rule on the other issues whilst in no way detracting from my reasoning on this issue.
Did Mr Lau Hak and His Family Have an Animus Possidendi in Their Occupation of the Land
64. The real question to be determined here is whether they occupied it with the deceased’s and subsequently his widow’s permission as bare or implied licensees. The difficulty is the lack of detailed evidence to support such a plea. The Plaintiff relies on Mr Albert Zee’s recollection that he was taken by his father to visit Mr Lau Hak and his family when he apparently agreed to let Mr Lau Hak use the land for the time being. This in about 1966, and that his widow in 1968 extended that kindness when she visited them and the land. If Albert Zee’s recollection, going back over 40 years, is likely to be fallible then Mr Lam Wing Kam’s, he is 9-year younger, is even less reliable. If anything, the Plaintiff’s best point in this regard comes from the completely unconvincing case presented by the Defendant. Miss Kim Lau’s letter of 17 January 2000 alleges an agreement between the two men in 1966 that the deceased’s land would be used and supervised by Mr Lau Hak following a swap arrangement between the two men. Broadly speaking, this factual basis is mirrored in the original defence and counterclaim which has been abandoned and replaced by the present 2006 versions which present a somewhat inconsistent position.
65. Mr Lau Wing Kam’s evidence about what was agreed in 1966 is to be set aside. I simply cannot rely on the recollection of a 9-year old, as he then was, speaking of these events 41 years later. Albert Zee would have been about 18 or 19 but, in the absence of independent evidence which corroborates his account of his father giving permission to Mr Lau Hak to continue using the land until such time as it was otherwise required, I would not feel sufficiently confident in upholding Mr Albert Zee’s version of what took place, although I am bound to say that I found him to be an impressive witness who had come along to do his best to give as accurate and truthful account as he was able to.
66. Mr Suen has asked me to draw adverse inferences from the failure of Mr Lau Hak’s widow, the present Defendant, to give evidence. He has presented a very detailed submission as to why I should take that course. Nevertheless, I can well understand why a very old lady like her should not wish to subject herself to the experience of giving evidence. It seems to me that she is very much a nominal defendant at the behest of her son and daughters, representing their interests to an even greater extent than her own. My impression, gained from seeing him in the witness-box, is that Mr Lau Wing Kam is very much the prime mover in the conduct of this action. Whilst no doubt a very decent person in his private life, I do not find him a witness whose evidence I can rely on. Partly, this is due to the fact that he has lived in Canada for many years now and therefore cannot provide much by way of a first hand account and partly, because much of his evidence, and Mr Suen has identified those parts in his written submission, are simply not worthy of belief.
67. From this unsatisfactory state of affairs, I must venture to decide the basis upon which the Lau family held this land. The overall impression to be gained from the evidence is that, firstly, Mr Lau Hak was in no doubt as to who was the true title owner in the person of the deceased. Miss Kim Lau’s letter, its contents prepared during her father’s lifetime, speak of the two men coming to an agreement that Mr Lau Hak would exchange land with the deceased. Mr Lau Hak had no land which he owned to exchange and it seems completely and inherently unlikely that the deceased could simply give up a substantial tranche of his recently acquired land for that sort of illusory consideration and on the basis of a handshake following an oral agreement. That account, as I have already said, is mirrored in the original defence and counterclaim and then in 2006 completely abandoned for the present pleadings.
68. Doing my best on the evidence, I am persuaded that Mr Lau Hak knew very well that this land belonged to the deceased and subsequently his family and that he occupied it and cultivated it, free of charge at the deceased’s and his family’s pleasure and that this continued throughout Mr Lau Hak’s lifetime quite irrespective of the situation after cultivation stopped in 1988. This being my view, Mr Lau Hak lacked the necessary animus to possess the land as against the deceased’s legal title and thereafter his widow and after her death against her family.
69. It is very unfortunate that after the deceased’s passing the Plaintiff, and I have to say his family as well, played a very passive role in relation to their ownership of this land, certainly until 1988, but I have no doubt whatsoever that they never intended to abandon it and crucially, that Mr Lau Hak and his family well knew that. Unfortunately, after a very long period of inactivity by the Plaintiff and much hard work by Mr Lau Hak from 1956 to 1988 at the very least, his widow and his heirs and he before his death whilst he was the Defendant, perhaps understandably, refused to give up the fruits of his hard work on land that had provided him with a living and on which he had brought up his family. All of this being said, the overall thrust of the evidence is that Mr Lau Hak well knew that he and his family were living on a borrowed place and on borrowed time.
70. This being my view of the evidence, the Defendant has failed to show, the burden being on her, that she and her late husband had the required animuspossidendi to exclude, by their physical occupation and cultivation of the land, the deceased and subsequently his family as represented by the Plaintiff. In such circumstances, this provides an additional ground for the defence and counterclaim to be dismissed and for the Plaintiff to prevail and obtain its order for possession of the land.
Was There, in Any Event, an Abandonment?
71. Given my view on the evidence that the Defendant never had the required animus possidendi, this issue does not arise and therefore it would not be appropriate to rule on what has now become a theoretical issue, but I wish to briefly comment on my view of the evidence after 1988.
72. What is clear is that starting in early 1988 with Mr Albert Zee’s discovery of Dawin Container Transportation Company Limited’s trespass on the land by using it to store containers, the Plaintiff started taking a very much more active part in the management of the land. I have already referred to the creation of a number of consecutive tenancies in favour of Barichon/Rights Protection who used the land for storage. I am satisfied that this was the case. By then Mr Lau Hak’s use of the land was very much more limited. The suggestion that he created a number of tenancies, based on tenancy agreements which have been put into evidence I have found to be unconvincing. It would not have been difficult to have called at least one or two of the tenants, but the Defendant has chosen not to do that. In the circumstances, where I am satisfied that Barichon was making use of the land for its storage requirements, and this is amply made out by the photographic evidence, it seems very unlikely that Barichon would have tolerated any concurrent use of the land on the scale suggested by Mr Lau Wing Kam. Insofar as he may have had any first hand knowledge of the tenancies I reject his account. It seems very obvious from the contemporaneous documentary evidence that Barichon, once they had entered the land as tenants, made use of it having previously spent money improving the land by re-surfacing much of it. The letter [B69-70] from Rights Protection dated 6 March 1989 that it had compensated Mr Lau Hak for the cost of his plants and cultivation and that it had paved the site having levelled it rings true given the use to which its associate Barichon put it to having secured tenancies from the Plaintiff. The fact that the Barichon also entered into serious negotiations to purchase the land from the Plaintiff also lends credence to the terms of that letter.
73. The truth of the matter appears to be that after 1988, Mr Lau Hak retreated from the land, although he may have maintained some structures on part of it, his days of actively using it were over by mid-1988 when the Government prohibited the keeping of livestock. Physically at all events he and his family withdrew from the land, occupying the original Government land upon which he had built his home. By 1988 the Plaintiff, through its tenant Barichon was well and truly in occupation of the disputed land. Mr Lau Hak and his family had withdrawn to the area immediately around their residence on Government land. Any suggestion by Mr Lau Wing Kam of his father running some kind of business on the land for the storage of containers and the parking of tractor units is to be rejected in the face of Barichon’s full use of the land. Barichon simply would not have tolerated that sort of rival concurrent activity on land that they were renting at what would appear to have been commercial rates.
Conclusions
74. For all of these reasons, the Plaintiff must have judgment in its favour on the claim for possession and the counterclaim must therefore stand dismissed. I will adjourn the claim for mesne profit and/or damages should the Plaintiff still wish to pursue these. I direct that in the first instance, this aspect should be restored before me for further directions to be heard in chambers at an early date.
75. The Plaintiff must have its costs of the action so far, to include the costs of including the claim for the lots to which the Defendant has made no claim. It seems to me that it was entirely prudent and reasonable for the Plaintiff to have brought an action against the Defendant in respect of these lots as well given the stance which the Defendant had adopted in respect of the lots as a whole, although the order for possession will not now include those lots. This order for costs will be an order nisi in the usual way.
| | (Ian Carlson)
Deputy High Court Judge |
Jenkin Suen, instructed by Messrs Deacons, for the Plaintiff
Patrick Szeto, instructed by Messrs Ho, Tse, Wai & Partners, for the Defendant