WU YEE PAK v. UN FONG LEUNG AND OTHERS

CACV 172/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 172 OF 2002

(ON APPEAL FROM HCMP NO. 3773 OF 1998)

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J U D G M E N T

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Hon Rogers VP:

1. This is an application for leave to appeal to the Court of Final Appeal. In this case there is no dispute that the plaintiff is entitled to leave to appeal under section 22(1)(a) of the Court of Final Appeal Ordinance.

2. The dispute arises out of the application for security for costs as part of the conditions which are imposed in giving leave. The grant of security for costs is very normal in applications for leave to appeal to the Court of Final Appeal. The ordinance gives power to order up to $400,000 as security.

3. In this case, the objection is taken on behalf of the plaintiff on the basis of impecuniosity and the fact that the plaintiff wishes to raise a new ground on the appeal, and has filed evidence in that regard. As regards the impecuniosity, that is a matter which seems to be fairly clear; the plaintiff was legally represented, but is now no longer able to afford that and nothing has been said to us to dispute the fact that the plaintiff is impecunious.

4. It has to be noted that the plaintiff himself is now incapacitated, as mentioned in the judgment. He has suffered a stroke since this action commenced and is now no longer in a position to look after himself. He certainly cannot conduct these proceedings on his own. If one looks at it on both sides, one also has to take into account the fact that because the plaintiff is impecunious, the 3rd defendants are unlikely to recover any costs either for the proceedings below or in this court or in the Court of Final Appeal, if the 3rd defendants are successful there.

5. We have been shown the bill of costs for the trial and apparently there is a sum of just over $400,000 which has been taxed, but not paid. We have been shown the draft bill of costs for the appeal to this court; they have not been taxed yet and they come to a modest amount.

6. Turning to the merits of the appeal, the ground which is being put forward, at the moment, is that the judge wrongly took exception to part of the plaintiff's evidence and held it against him that he was unaware that part of the land had been resumed in 1994. This court has been slightly hampered by the difficulty that some of the plans, which were a part of the report which is exhibited to new evidence that is sought to be used, have been retained by former solicitors so this court has not had the benefit of seeing those plans.

7. Having done the best one could with the plans that were available, it seems to me that it is not at all clear that the judge was wrong in his assessment that the plaintiff must have been aware of a resumption of land. The portion of the land which was subject to a resumption notice in 1994 and resumed in 1995, was only a very small part of the land which the plaintiff claimed.

8. It is quite understandable that the evidence as given by the plaintiff after he had suffered a stroke led the judge to believe that the plaintiff was denying all knowledge of it; clearly it seems from the papers that the plaintiff did receive some payment in compensation for trees which had been felled on that part of the land which was resumed in 1995 and which the plaintiff looked after.

9. Be that as it may, it seems to me however that probably the crucial point in the judge's decision, and it was the judge's acceptance of the 3rd defendant's evidence, was that rent had been paid in kind. Whether it was right to treat what the judge felt was payment in kind as indeed payment of rent is not a point which has been raised today and it is a point which the judge decided and this court has accepted. So, whether it would now be open to the plaintiff to take that point in the Court of Final Appeal is of course, very tenuous in view of the concurrent findings of fact.

10. In view of the fact that the plaintiff has a right of appeal to the Court of Final Appeal, it seems to this court that we should make some order which balances the justice to the 3rd defendants on the view that they are unlikely to recover any costs if they are successful and the justice to the plaintiff to air the grievances which the plaintiff, no doubt, feels as a result of the judgment against him.

11. In our view, doing the best we can, we consider that a sum in the region of $50,000 would be appropriate. We have taken into consideration the costs which were incurred in this court and counsel's fees. We think that if the matter goes to the Court of Final Appeal, that will at least provide the 3rd defendant with some security, albeit not very much.

12. In our view, however, it would be highly desirable that the plaintiff is legally represented and if legal aid can be provided, that seems to be highly appropriate. It would be most undesirable that a case of this nature should go to the Court of Final Appeal with the parties, or one party, representing themselves, because we do not consider that that is either in the public interest or in the interests of the efficient disposal of cases in the Court of Final Appeal.

13. Be that as it may, it is not in our power to grant legal aid to the plaintiff but we mention that in case the matter goes to other quarters. So, we will order security for costs in the sum of $50,000.

Representation:

Wu Yee Pak, the Plaintiff/Applicant, acting in person, represented by his next friend, Wu Yiu Ki (present)

Ms Lorinda Chih Wai Lau, instructed by Messrs Lawrence K Y Lo & Co., for the 3rd Defendants/Respondents

CACV 172/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 172 OF 2002

(ON APPEAL FROM HCMP NO. 3773 OF 1998)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This is an appeal from a judgment and order of Yeung J (as he then was) given on 11 February 2002. In the action, the plaintiff claimed declarations to the effect that he had been in adverse possession of land situated at Tak Yuet Lau, Lowu, New Territories and was thereby entitled to the land, the defendants' title being statute barred. The action tried before the judge related solely to the claim in respect of Lot No. T213 R.P in DD No. 93 Tak Yuet Lau, Lowu and concerned only the 3rd defendants. The judge dismissed the claim. At the conclusion of the hearing of this appeal, this court dismissed the plaintiff's appeal and said it would give its reasons in writing, which we now do.

Background

2. Lot No. T213 lies in the restricted area, close to the borders of Hong Kong. It was registered in the names of the 3rd defendants, Tang Tok Lun and Tang Chan Lam. They inherited it from their great grandfather Tang Yui Shan in 1952. The plaintiff has lived there since 1934. Initially he lived with his parents. His father died in 1949 and his mother died in 1980. Since 1948 he has been living with his wife and together they have had seven children. There is no dispute that the plaintiff has farmed the land. He has erected fences and he has built or modified houses on the land for his family, including his parents, sister and children.

3. Not surprisingly, there was no reliable evidence from either the plaintiff or from the 3rd defendants as to how the plaintiff, and realistically his parents, came into possession of the land. No doubt all relevant persons who might have had memory of that have long since died. Indeed, even the plaintiff has suffered the misfortune of a stroke in 2000. The judge recorded the fact that his illness rendered him unable to give coherent evidence.

4. There was evidence from the 3rd defendants' sister that she had met the plaintiff's wife on more than ten occasions, starting from the early 1950's, when the plaintiff's wife had visited the 3rd defendants' mother and brought farm produce. Moreover the judge records the evidence of Madam Tang Leung Siu Ha, Tang Tok Lun's wife, that she had married into the 3rd defendants' family in 1962 and thereafter she was aware that the plaintiff's wife would visit the 3rd defendants' mother to pay rent twice a year with farm produce or cash. Her evidence was that the plaintiff only stopped paying rent in 1991 after the death of the 3rd defendants' mother and that the last time she had received $200 as rent from the plaintiff's wife was towards the end of 1991.

5. The plaintiff's wife apparently gave evidence that she had never met Madam Tang Leung Siu Ha. The judge, however, specifically did not believe her evidence in that respect. The judge reminded himself that all the witnesses were partial. Nevertheless he accepted that the plaintiff's wife had been in the habit of visiting the 3rd defendants' mother twice a year before she died to present her with small sums of money and other farm produce. He held that constituted a clear acknowledgement of the 3rd defendants' entitlement over Lot No. T213. He went on to say, in paragraph 29 of his judgment, that this was in return for being allowed to occupy Lot No. T213. In paragraph 30, he found that the totality of this evidence was that it was inconsistent with the suggestion that the plaintiff's possession of Lot No. T213 was adverse.

6. There were other matters to which the judge alluded, for example, evidence from Madam Tang that there had been an occasion in 1974 when it was thought that the land might be sold and that the plaintiff had been told about it at the time. Madam Tang also had given evidence that between 1962 and 1970 there were three occasions when the plaintiff requested the 3rd defendants to write letters to the District Office so that modifications to the houses on Lot No. T213 could be made to avoid the impact of flooding. These matters, however, do not appear to have featured as the basis for the judge's conclusion that the possession was not adverse.

7. On behalf of the plaintiff, Mr Lam sought to argue in this court that there was no evidence upon which a tenancy could be held and that the judge's judgment was entirely silent as to the terms of any licence which the plaintiff enjoyed. As such, it was said that the judgment was based upon the existence of acknowledgement of the 3rd defendants' title. It was then said that because such acknowledgement was not in writing the 3rd defendants could not rely upon it, such reliance being excluded by the provisions of section 23 and 24(1) of the Limitation Ordinance, Cap. 347. The material parts read as follows:

"23. Fresh accrual of action on acknowledgment or part payment

(1) Where there has accrued any right of action ... to recover land ... and

(a) the person in possession of the land ... acknowledges the title of the person to whom the right of action has accrued; or

(b) ...

the right shall be deemed to have accrued on and not before the date of the acknowledgement or payment.

24. Formal provisions as to acknowledgments and part payments

(1) Every such acknowledgment as aforesaid shall be in writing and signed by the person making the acknowledgment.

(2) Any such acknowledgment or payment as aforesaid may be made by the agent of the person by whom it is required to be made under section 23, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made."

8. In my view, Ms Lau was correct that it really matters not what the exact basis of the licence was. The judge's finding (at paragraph 30 of the judgment) was that the regular payments of money and farm produce were inconsistent with the plaintiff's possession being adverse. The terms of any tenancy or licence would only go to the right of the plaintiff to remain on the land to the exclusion of the 3rd defendants. But it is not necessary that the terms of any licence are precisely defined if the facts show that the person in possession of the land did not purport to do so adversely to the owner.

9. Furthermore, a distinction is drawn in section 24 between acknowledgements which are referred to in section 24(1) and payments which are referred to in addition to acknowledgements in section 24(2). I do not propose to analyse or consider the full effect of section 23 of the Ordinance because the matter was not fully argued before us. It is sufficient for these purposes to say that I do not consider that on a proper construction section 24(1) could exclude reliance being made upon payment because that is to be distinguished from a simple acknowledgement.

10. In those circumstances the appeal fell to be dismissed.

Hon Burrell J:

11. I agree.

Hon Stone J:

12. I agree. In light of the findings of fact made by the judge below, and the absence of a transcript of the evidence, Mr Lam plainly had little room for manoeuvre in this appeal.

13. At first blush sections 23-24 of the Limitation Ordinance, Cap 347 perhaps appeared to hold out some hope, but in common with the Vice President I do not consider that the requirement of writing in section 24 of the statute is of relevance to the present case, wherein the trial judge has made a specific finding of regular monetary payments, which in themselves plainly are inconsistent with establishment of the necessary animus possidendi.

14. And although I have some sympathy with Mr Lam's broad submission that there has been imprecision in identification of the periods in which payments of money and offerings of produce were made - that which he characterised as a 'global' approach - at bottom this is a function of evidential difficulties inevitable in this type of case, and such criticism does not suffice to get him home.

15. At the end of the day the plaintiff has failed to establish the evidential burden upon him, and however regrettable this may be in light of the history of this case, in my view there was little option but to dismiss this appeal.

Representation:

Mr George Lam, instructed by Messrs Martin Law & Co., for the Plaintiff/Appellant

Ms Lorinda Chih Wai Lau, instructed by Messrs Lawrence K.Y. Lo & Co., for the 3rd Defendants/Respondents

Remarks: Appeal by the Plaintiff to Court of Final Appeal. Appeal dismissed with costs. Please refer to FACV1/2004