YU KIT CHIU AND ANOTHER v. CHAN SHEK WOO t/a 陳潮昌士多

DCCJ 5488/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5488 OF 2003

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D E C I S I O N

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1. This is the application of Choi Chi-fook (“Mr Choi”) :-

(a) to join in this action as the 2^nd defendant; and

(b) for an interim stay of execution for 3 months of the writ of possession and fifa obtained by the plaintiffs in this case against the defendant.

2. The application is opposed by the plaintiffs.

Background

3. The plaintiffs are the executors of the estate of Yu Ki-cheung, deceased (“the Deceased”), who was the registered owner of Remaining Portion of Lot 994 and Lot 995 in DD 115 before his demise.

4. By this action, which was commenced on 19 September 2003, the plaintiffs claimed against the defendant for possession of Remaining Portion of Lot 994 and damages for trespass.  The defendant asserted in his defence that he had been in adverse possession of the land for over 20 years and counterclaimed for a declaration that the plaintiffs’ right to recover the land had been time-barred.

5. The action was tried before Her Honour Judge Mimmie Chan (as she then was) in February 2010 and, by a judgment dated 22 March 2010 (“the Judgment”), judgment was granted in favour of the plaintiffs and the counterclaim was dismissed.  The defendant’s appeal was subsequently dismissed by the Court of Appeal on 18 February 2011.

6. The plaintiffs proceeded with execution and obtained the subject writ of possession with fifa combined in November 2011.

7. Then came two applications:-

(a) the application by one鄭穎朗 (“Mr Cheng”), who claimed to be an occupier in Remaining Portion of Lot 994, for joinder and an extension of time for him to move out; and

(b) the application of one Chan Yuk-mui (“Madam Chan”), who claimed to be in occupation of the premises known as “No 9-D1, Choi Yuen Village, Au Tau, Yuen Long, New Territories” within Remaining Portion of Lot 994 (“the Premises”), to be joined as a party in this action, to have the execution of the writ of possession stayed, and to have the Judgment set aside.

8. Both applications came before His Honour Judge Leung (as he then was) and the learned Judge dismissed the applications on 26 July 2012.  Both Mr Cheng and Madam Chan applied for leave to appeal but their applications were dismissed by the Judge on 30 November 2012.  Madam Chan applied further to the Court of Appeal for leave to appeal, but her application was also dismissed on 19 February 2013. 

9. For the purpose of this application, Mr Cheng’s application is irrelevant and we should focus on Madam Chan’s unsuccessful application.  It is common ground that Mr Choi is the son of Madam Chan.

10. Judge Leung has this to say, in his decision dated 26 July 2012, on the relationship between the plaintiffs’ claim herein against the defendant and Madam Chan’s application:-

“ 22. The plaintiffs in their amended statement of claim claimed for an order for possession of the suit portion. The suit portion was defined (in paragraph 2(ii)) as Lot 994 RP. It was the plaintiffs’ contention that the defendant has been in occupation of Lot 994 RP since a day prior to 28 October 1978.

23. In the re-amended defence and counterclaim, the defendant contended that since 1962 he has been occupying the subject portion of Lot 994 RP.  The subject portion of Lot 994 RP was identified and coloured yellow in the Lot Index Plan attached to the pleading.  It forms part of the Lot.  The defendant asserted adverse possession of the subject portion of Lot 994 RP, not the entire Lot 994 RP. 

24. The plaintiffs were seemingly aware that there are other occupiers in Lot 994 RP besides the defendant.  In their pleading (at paragraph 3M), the plaintiffs referred to the letters of demand from their then solicitors on 4 July 2002 to the occupiers of the suit portion inclusive of the defendant.

25. The materials before me suggest that the plaintiffs were aware that part of Lot 994 RP has always been occupied by Choi Senior [ie Mr Choi’s father] and his family…

30. Notwithstanding the above, the plaintiffs put forward their claim that the defendant was and is the occupier of the entire Lot and decided not to name any other occupier of the Lot whether know or unknown as defendant.  On pleading, there was no suggestion that all other occupiers of Lot 994 RP derived their occupation of the Lot under the defendant so that an order against the defendant may be good against the others.  In view of the evidence in respect of the occupation of Choi Senior and his family since the 1970’s, there could be no suggestion as a matter of fact either.

31. When it came to the Judgment, the defendant was somehow said to be claiming that he and his family have been occupying “the Site” since 1962 (see the Judgment at paragraph 1).  As defined in the Judgment, “the Site” was Lot 994 RP.  The defendant was eventually ordered to deliver up vacant possession “the Site” to the plaintiffs.  Such definition of “the Site” was adopted on appeal (see the Court of Appeal Judgment at paragraph 2).

32. On the face of it, the description in the Judgment of the extent of the defendant’s claim is at variance at the defendant’s actual pleaded case.  Eventually, the order for possession against the defendant also covered the entirety of Lot 994 RP, not just the portion of it that the defendant claimed to possess.”

The present application

11. Mr Choi is the son of Choi Senior and Madam Chan.  His application (for joinder and interim stay of execution) is supported by an affirmation in which he deposed to the fact that:-

(a) He is aware of the previous unsuccessful application of his mother but his present application is premised on the fact that he is in actual occupation of the Premises.

(b) In about July 2013, he received a notice to quit from the bailiff requiring him to vacate the Premises by 3 September 2013 in pursuance of the writ of possession and fifa.

(c) He has been advised by his legal advisors to:-

(i) apply to join in this action as a defendant;

(ii) commence a fresh action together with his mother against the plaintiffs claiming adverse possession of the Premises; and

(iii) take steps to further appeal the Judgment to the Court of Final Appeal.

(d) On 24 July 2013, he commenced DCCJ 2698 / 2013 against the plaintiffs herein as defendants claiming a declaration that the title of the plaintiffs herein to the Premises has been extinguished and that Mr Choi and his mother (ie Madam Chan) have acquired a title by means of adverse possession.

(e) The Judgment (against the defendant) extends to the whole of Remaining Portion of Lot 994 and thus covers the Premises upon which he resides.  He says that since the Judgment has been affirmed by the Court of Appeal on appeal, only the Court of Final Appeal has the jurisdiction to vary the Judgment.  He is minded to instruct a Senior Counsel to advise him on the procedural steps required to further challenge the Judgment.  In the past months, he had been trying to raise money to cover the legal costs and that accounted for the delay in making the application.

12. The plaintiff has filed an affirmation in opposition in which they recounted the history of this action and the involvement or interest of Mr Choi in the unsuccessful application of Madam Chan.  They complain that the present application is a re-litigation of the issues finally determined by Judge Leung (which was upheld on appeal) and is an abuse of the legal process. 

13. Today, the legal representatives of both sides elaborated on their respective position as stated above.

Discussion

14. In my view, Mr Choi’s application is misconceived and totally unnecessary.

15. The fight in this action was between the plaintiffs and the defendant.  The issues identified by Judge Chan in paragraph 7 of the Judgment were:-

(1) whether the defendant has been in possession of Remaining Portion of Lot 994 for more than 20 years next before September 2003;

(2) whether the defendant had been in possession of Remaining Portion of Lot 994 under licence by or with the consent of the registered owner;

(3) whether the defendant had the intention to possess Remaining Portion of Lot 994 to the exclusion of the whole world, including the registered owner thereof; and

(4) the damages payable by the defendant for his occupation of the Remaining Portion of Lot 994, if adverse possession is not established.

16. The learned Judge found on the evidence (which was affirmed by the Court of Appeal on appeal) that:-

(1) The entire Remaining Portion of Lot 994 was in the exclusive possession and occupation of the defendant and his family by May 1967, which is more than 20 years before the commencement of this action in September 2003.

(2) She was not satisfied that the Deceased’s agent had granted a licence to the defendant in 1962 to occupy Remaining Portion of Lot 994.

(3) However, the defendant did not have the intention to possess Remaining Portion of Lot 994 by reason of his acknowledgment in 1970 (in terms of the Modification of Tenancy issued by the Yuen Long District Office on 8 May 1970 under Permit No. 16222) that the owner of the land was the Deceased.  In any event, the defendant’s use and occupation of Remaining Portion of Lot 994 after 1985 and 1986 was with the consent and permission of the plaintiffs (see the plaintiffs’ solicitors’ letter to District Lands Office consenting to the defendant’s application for temporary building licence which led to the issue of the waiver).  The defendant has thus not discharged his burden of proving that he had the requisite intention to dispossess the owner.

(4) The defendant is liable to the plaintiffs for means profits for the period between 4 July 2002 and 24 February 2010 in the sum of $593,911 and thereafter at $6,900 per month until delivery of vacant possession.

17. Although Mr Choi has not identified the legal basis of his joinder application in his summons, his counsel, Mr Ho, confirms that the test is none other than Order 15, rule 6(2)(b) of the Rules of the District Court.

18. There is no suggestion that Mr Choi is privy to the events and documents pertaining to the issues between the plaintiffs and the defendant recounted above.  Mr Ho is not suggesting that Mr Choi can offer any material evidence in those regards.  I do not see how it can be said, in terms of Order 15, rule 6(2)(b)(i), that Mr Choi’s presence in this action is necessary to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon.

19. The fight between Mr Choi and the plaintiffs is in DCCJ 2698/2013.  I am given to understand that that action is proceeding and has reached the stage of Case Management Conference.  Significantly, the plaintiffs herein (as the defendants in that action) has not applied to strike out that claim. Mr Choi and the plaintiffs will have to resolve their differences in that action.  I do not see how it would be just and convenient, in terms of Order 15, rule 6(2)(b)(ii), to allow Mr Choi and the plaintiffs to ventilate their disagreement in this action.

20. Mr Choi’s application to join in as a defendant is dismissed.

21. It appears that Mr Choi is most concerned that the plaintiffs, in enforcing the Judgment, may somehow evict him from the Premises before the disposal of DCCJ 2698/2013.  In my view, such fear is unfounded.

22. Judge Chan has indeed decided at paragraph 22 of the Judgment that:-

“…I am satisfied from the layout of the structures, and from the survey plans and sheets contained in the Survey Report that the entire Site was in the exclusive possession and occupation by Mr Chan [ie the defendant] and his family by May 1967…” (my emphasis)

23. Judge Chan’s decision was justified based on the evidence then available to her.  Mr Choi was not a party back then and did not participate at the trial.  The court was simply not aware of Mr Choi’s allegations.

24. The Judgment, including the order for possession, was made against the defendant in this case.  The sealed order for possession is in these terms:-

“The Defendant do deliver up to the Plaintiffs vacant possession of the land as described in the amended Statement of Claim as the Remaining Portion of Lot 994 in DD 115, Yuen Long, New Territories, Hong Kong (“the Site”) within 12 weeks from the date of service of the Order to be drawn up pursuant to the Judgment.”

25. Simply put, the Judgment is directed at the defendant and not against Mr Choi.  This may be contrasted with an order for possession made under Order 113 which is to enable the plaintiff in such a case to recover possession of the subject premises against those in occupation, in terms of Form No. 42A of Appendix A to the Rules of the District Court.  The plaintiffs have never invoked Order 113 in this action and the Judgment is directed at the defendant (as well as anyone claiming under the defendant).  Since Mr Choi’s claim is independent from that of the defendant, I am of the view that he is not bound by the Judgment.

26. Although the writ of possession issued on 17 November 2011 directed the bailiffs to “enter the said premises [defined as Remaining Portion of Lot 994 in DD 115] and caused the plaintiffs… to have possession of it”, it was made pursuant to leave granted by Master J Chow on 25 July 2011 which was in these terms:-

“IT IS ORDERED that the Plaintiffs do have leave to issue a Writ of Possession against the Defendant for the recovery of possession of the land known as the Remaining Portion of Lot 994 in DD 115, Yuen Long, New Territories and costs of this application be to the plaintiffs.”

27. When the Writ is read together with the order of Master Chow and properly understood in the context of an enforcement of the Judgment, it becomes clear that it does not have an effect of evicting Mr Choi, who has an independent claim against the plaintiffs.  Mr Chong (leading Ms Wong) does not dispute all these.

28. Mr Choi’s application for an interim stay of execution of the Judgment is therefore misconceived.

29. The above is sufficient to dispose of the application but I should say further that I agree with Mr Chong that the present application of Mr Choi is an attempt to re-litigate an issue finally determined by Judge Leung.

30. Mr Choi has quoted Order 45, rule 3 in his summons.  However, his counsel has advanced no argument based on that provision.  In my view, that is understandable having regard to Judge Leung’s observations in paragraphs 35 to 41 of his decision dated 26 July 2012.

31. The true basis of the present application seems to be the alleged claim of adverse possession by the Choi’s family in relation to the Premises. Madam Chan relied on the same factual scenario in her bid to join in this action.  Judge Leung dismissed that application and Madam Chan’s application for leave to appeal was dismissed by both Judge Leung and the Court of Appeal. Mr Choi’s present application is, in my view, an attempt to have a second bite of the cherry.  It goes without saying that any claim of adverse possession must be based on factual possession.  Mr Choi’s case (as disclosed in the pleadings in DCCJ 2698/2013) is premised on the occupation of his late father and Madam Chan.  Mr Choi has filed affirmations in support of his mother’s unsuccessful application.  When his mother’s attempt failed, he now mounts his own application seeking essentially the same relief.  That, in my judgment, is an abuse of process.

Conclusion

32. For the above reasons, I dismiss Mr Choi’s application with costs with certificate for one counsel, such costs to be taxed on District Court scale if not agreed on indemnity basis.

33. The simple reason for ordering indemnity costs against Mr Choi is that I have so far heard no justification for the present application, that is notwithstanding the short discussion before the argument.

34. Furthermore, Mr Choi has elected to proceed with this application notwithstanding the concession made by Mr Chong.  Taking all these into consideration, I consider that this is an appropriate case to order indemnity costs against Mr Choi.

DCCJ 5488/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

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REASONS FOR DECISION

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1. In September 2003, the plaintiffs commenced the present action against the defendant for possession of land Lot 994RP in DD 115, New Territories, and damages for trespass. The defendant, by his guardian ad litem, put up a defence and counterclaim, asserting adverse possession.

2. The case lasted for years.  After trial, HH Judge Mimmie Chan (as she then was) handed down her judgment on 22 March 2010 (“the Judgment”) whereby she found in favour of the plaintiffs and, among other things, gave the order for possession of Lot 944RP.  The defendant’s appeal against the Judgment was dismissed by the Court of Appeal on 18 February 2011 (“the CA Judgment”).

3. Writ of possession (and fieri facias combined) followed, in execution of the Judgment.  Then the 1^st intervening party (“Cheng”) and the 2^nd intervening party (“Madam Chan”) applied to be joined as parties in this action.

4. After hearing, I handed down my written decision on 26 July 2012 whereby I dismissed the applications by Cheng and Madam Chan with costs to the plaintiff (“the Decision”).

5. On 14 August 2012, Cheng and Madam Chan applied by summons for, among other things, further stay of execution of the writ of possession.  As before, Cheng was unrepresented.  As to Madam Chan, she was represented by solicitors and counsel during the last hearing before this court.  However the applications since then have been taken out by Choi Ka Yan (“Choi”) as the “授權人” (or authorised representative) of Madam Chan.  Further Choi appeared in person before the master then.

6. The applications were heard before the master on 24 August 2012.  The master granted the stay of execution of the writ of possession until further order on condition that Cheng and Madam Chan took out their respective applications for leave to appeal against the Decision.  This Cheng and Madam Chan (again purportedly by Choi) did by their summons dated 29 August 2012 and 27 August 2012 respectively.

7. During yesterday’s hearing, Madam Chan was absent but Choi again appeared.  According to her, she is Madam Chan’s daughter.  She produced a letter of authorisation by Madam Chan and a doctor’s certificate.  Because of her advance age (said to be over 90) and health condition, Choi has been authorised to represent Madam Chan.  She also produced a notice to act in person.  I was reluctant to accept such representation of an absent litigant in person.  Nevertheless, in the absence of objection from the plaintiffs, as confirmed by counsel, and for completeness, I allowed Choi to speak.  In any event, what she spoke about did not actually differ from what were already set out in the summons and affirmation.

8. Counsel confirmed that no issue was taken as to whether the applications for leave to appeal were out of time.  At the conclusion of the hearing, I dismissed the applications with costs to the plaintiffs (to be taxed, if not agreed, but without certificate for counsel).  Accordingly I should and did lift the stay of execution of the writ of possession.  As indicated, I now give my reasons.

LEAVE TO APPEAL

9. Unless the intended appeal has a reasonable prospect of success or in the interest of justice the case ought to be heard by the appellate court, leave to appeal shall not be given: see section 63A(2) of the District Court Ordinance, Cap 336.  It is the burden of the applying party to demonstrate that either or both of the 2 limbs of the section are satisfied.

CHENG

10. Cheng’s last application before me was already his repeated application to be joined as a party.  As explained, that was strictly abuse of legal process (see §§12-13 of the Decision).  Further, in the absence of any affirmation in support or submission during the hearing, Cheng’s application had to be dismissed (see §§14-17 of the Decision).

11. Differing from the past, Cheng has filed an affirmation in support of his present application for leave to appeal.  The affirmation sought to assert the history of his father’s occupation in the lot and his lack of knowledge about the legal proceedings in the present case.  In other words, Cheng sought to adduce fresh evidence for the purpose of his intended appeal.

12. Cheng will have to overcome the hurdle under O.59, r.10(2) of the Rules of the High Court which stipulates that no further evidence (other than evidence as to matters which have occurred after the date of the hearing) may be received on the hearing of an appeal except on special grounds.  By special grounds, the court would effectively look to see if the conditions in laid down in Ladd v Marshall [1954] 1 WLR 1489 are satisfied, namely:

(1) the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;

(3) the evidence must be such as is inherently not improbable.

See Hong Kong Civil Procedure 2012 (Vol.1) at 59/10/8.

13. Considering the sketchy affirmation Cheng now relied on and all the circumstances (some of which were equally discussed in respect of Madam Chan’s case), I am not satisfied that the above conditions are satisfied.

14. I am not satisfied that Cheng demonstrated a reasonable prospect of success in the intended appeal.  Nor was the alternative limb of section 63A(2) demonstrated. Cheng’s application was therefore refused and dismissed.

MADAM CHAN

15. As explained, I was not satisfied that joining Madam Chan at this unusual stage would be proper exercise of discretion in the following circumstances of the case:

(1) I am sceptical about the assertion of lack of knowledge about the legal proceedings in the present case for all these years since 2003 (see §§35-41 of the Decision).

(2) Even assuming that the assertion mentioned in (1) above is true, I believe the merits of Madam Chan’s contention would likely be no better than those of the defendant.  In particular, the defendant’s assertion of animus possidendi in the alleged adverse possession of the lot was contradicted by the facts (see the Judgment, the CA Judgment, §§25-29; 42-43 of the Decision).

(3) In any event, Madam Chan cannot expect to be joined as a party for the purpose of seeking to set aside the Judgment and necessarily the CA Judgment so as to re-open the case concerning the part of Lot 994RP occupied by her family (see §§44-46 of the Decision).

16. By the affirmation now filed in support of the application for leave to appeal, the alleged lack of knowledge about the legal proceedings in the present case and the alleged history of occupation in the lot were repeated.  Repetition of the allegations does not afford Madam Chan with a reasonable prospect of success in the intended appeal, particularly in view of the observations mentioned in paragraph 15 (1) and (2) above.

17. Madam Chan also sought to capitalise my observation about the ambit of the order for possession.  It was suggested that the Judgment was “irregular”.  I could not agree.  What Choi has not recited was that I specifically warned myself against drawing any conclusion in this respect (see §§22-23; 29-33 of the Decision).  After trial, and confirmed by the appellate court, the Judgment could hardly be categorised as “irregular”.

18. More fundamentally, I am not convinced that joining Madam Chan (or Cheng) at this level and at this stage is the proper way to surmount the hurdle mentioned in paragraph 15(3) above, assuming that it is surmountable.

19. In the circumstances, I do not see a reasonable prospect of success in the intended appeal against the Decision.  Nor am I satisfied that the Decision ought to be considered by the appellate court on the alternative limb of section 63A(2).  I therefore refused to give leave to appeal and dismissed the application.

COSTS

20. Considering the applications and the grounds put forward, I declined to certify the engagement of counsel for the plaintiffs (who was neither the leading nor the junior appearing in the last hearing) but without compromising my gratitude for his assistance.

Mr Ernest Koo instructed by Messrs K M Lai & Li for the plaintiffs

The 1^st intended party, in person, present

The 2^nd intended party, in person, absent (but appearing by representative CHOI Ka Yan)

Note: Interpreter’s assistance could be provided to the parties in receiving these written reasons for decision.

DCCJ 5488/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

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D E C I S I O N

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1.  The plaintiffs are the executors of the estate of Yu Ki Cheung (“Yu”). They commenced the present action in 2003 to recover possession of certain land in the New Territories from the defendant. Judgment after trial was eventually obtained in March 2010, which was upheld on appeal in February 2011. In the course of the enforcement of the judgment early this year, the 1st intended party (“Cheng”) and the 2nd intended party (“Madam Chan”) appeared and now apply to be joined as parties to this action.

BACKGROUND

2.  Yu was the registered owner of what used to be known as Lots 994 and 995 in DD 115, Yuen Long, New Territories.  As a result of the resumption of part of the land in these lots by the Government in the 1980’s, the 2 lots have since become known as the Remaining Portions of Lots 994 and 995 (“Lot 994RP” and “Lot 995RP” respectively) in the demarcation district.

3.  Yu passed away in June 1980.

4.  In September 2003, the plaintiffs commenced the present action against the defendant for possession of Lot 994RP and damages for trespass.  The defendant, by his guardian ad litem, put up a defence and counterclaim, asserting adverse possession.

5.  Much time has been taken until the case was eventually tried before HH Judge Mimmie Chan.  In her judgment handed down on 22 March 2012 (“the Judgment”), HH Judge Mimmie Chan found in favour of the plaintiffs and, among other things, gave the order for possession of Lot 944RP.

6.  The defendant appealed.  The Court of Appeal handed down their judgment on 18 February 2011 affirming the Judgment (“the CA Judgment”).

7.  In November 2011, writ of possession (and fieri facias combined) was issued in execution of the Judgment.  On 4 January 2012, notice to quit was served on Cheng, an occupier in Lot 944RP.  By summons dated 20 February 2012, Cheng applied for literally extension of time for moving out and joinder of him as a party in this action.

8.  When the summons was heard on 23 February 2012, Cheng was absent and the Master dismissed the application.  On 2 April 2012, Cheng filed another summons seeking identical reliefs as before.  Cheng applied for legal aid in the same month.

9.  On 7 March 2012, notice to quit was served on Madam Chan, another occupier in Lot 994RP.  By summons filed by her solicitors on 5 April 2012, Madam Chan applies to be joined as a party in this action, to have the execution of the writ of possession stayed and to have the Judgment set aside.

10.  Interim stay of execution of the writ of possession was granted until the determination of these applications.

O.15, R.6

11.  O.15, r.6(2) of the Rules provides:

“Subject to this rule, at any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application -

……

(b) order any of the following persons to be added as a party, namely-

(i) any person who ought to have been joined as a party or whose presence before the Court if necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”

CHENG

12.  Cheng’s first summons was dismissed by the Master as he failed to show up at the hearing of his own application.  Had there been reasons for his absence, Cheng could have subsequently applied to the Master to have the decision set aside (if the order has yet to be perfected) so that his application could be heard afresh.  Alternatively, he could have filed a notice of appeal to be heard before a judge in chambers pursuant to O.58 of the Rules of the District Court.

13.  Cheng did neither of them.  Instead he took out the second summons applying for identical reliefs as before.  That he was unrepresented does not change the fact that this is strictly abuse of legal process.

14.  In any event, O.15, r.6(3) of the Rules requires that:

“An application by any person …… adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.”

15.  An application for joinder of party can be made at any stage of the proceedings. But an application at this stage is unusual.    In these circumstances, the discretion to exempt the applying party from the requirement under the above sub-rule should not be lightly exercised.

16.  Notwithstanding various extensions of time, Cheng has not filed any further affidavit in support of his second summons.  In court, Cheng appeared in person; and the hearing of his application was conducted in Chinese.  He made no submission.

17.  There is simply no material before this court in support of his application.  His application by the second summons has to be dismissed.

MADAM CHAN

18.  Unlike the case of Cheng, evidence was filed on behalf of Madam Chan to establish her interest in the cause.  This action between the plaintiffs and Chan, the defendant, has reached the stage of execution of the writ of possession.  Yet O.15, r.6 permits the joinder of party at any stage of the proceedings.  In principle, Madam Chan may seek to be joined for the purpose of what remains in this action, i.e., the execution proceedings.  However Madam Chan seeks to be joined for a more radical purpose.

19.  In support of Madam Chan’s application, her son, Choi Chi Fook (“Choi Junior”), has filed affirmations.  According to Choi Junior, the defendant has always been occupying part of Lot 994RP while his late father, Choi Yan Fat (“Choi Senior”), mother, he and his siblings occupied another part of the lot as residence.  He is still occupying the same part.  The building structures occupied by the two neighbouring families respectively are separated by a footpath.  As summarised in his first affirmation (at §7(ii)):

“The Plaintiff is and/or should be fully aware that within the boundary of Lot No. 994RP in D.D. 115 there have been two structures and/or stone huts erected thereon and that the Temporary Structure and/or stone hut occupied by the Defendant was erected upon portion or part of the land within Lot No.994RP in D.D. 115. It is misleading to claim that Temporary Structure and/or stone hut occupied by the Defendant consisted and/or included the whole of Lot No. 994RP in D.D. 115”

20.  On Madam Chan’s behalf, Mr Cheung contended that by way of adverse possession, the right of Yu, as the registered owner, to recover the part of Lot 994RP occupied by his family has long been extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347.

21.  Madam Chan asks to be joined as a party so that she could be heard to first set aside the Judgment.  I pointed out during the hearing that even assuming that Madam Chan is right, she is in no position to seek to set aside the Judgment to the extent that affects the defendant’s occupation of the lot.  This is reinforced by O.15, r.6(1):

“No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

Mr Cheung for Madam Chan accepted that; and confined his client’s purpose to setting aside the Judgment to the extent that affects the part of the lot occupied by her family.

Madam Chan’s interest in the cause

22.  The plaintiffs in the amended statement of claim claimed for an order for possession of “the suit portion”.  The suit portion was defined (in §2(ii)) as Lot 994RP.  It was the plaintiffs’ contention that the defendant has been in occupation of Lot 994RP since a day prior to 28 October 1978.

23.  In the re-amended defence and counterclaim, the defendant contended that since 1962, he has been occupying “the subject portion of Lot 994RP”.  The subject portion of Lot 994RP was identified and coloured yellow in the Lot Index Plan attached to the pleading.  It forms part of the lot.  The defendant asserted adverse possession of the subject portion of Lot 994RP, not the entire Lot 994RP.

24.  The plaintiffs were seemingly aware that there are other occupiers in Lot 994RP besides the defendant.  In their pleading (at §3m), the plaintiffs referred to the letters of demand from their then solicitors on 4 July 2002 to “the occupiers of the suit portion, inclusive of the Defendant”.

25.  The materials before me suggest that the plaintiffs were aware that part of Lot 994RP has always been occupied by Choi Senior and his family.  As pleaded and found in the Judgment, the defendant was permitted to maintain the building structures erected by him on part of the original Lot 994 by virtue of a Modification of Tenancy (“MOT”).  The permit was cancelled on the abovementioned date of 28 October 1978.  Then in 1986, with the consent of Yu through his solicitors, the District Land Office granted the defendant a Short Term Waiver (“STW”) for him to convert his occupation to the operation of a shop on part of what then had already become Lot 994RP.  It was the store that the defendant was occupying as at the date of commencement of this action.

26.  The plaintiffs suggest that Choi Senior was in a similar situation.  They disclosed by affidavit that another MOT was issued to Choi Senior for his maintenance of the building structures that had been erected for his occupation of other parts of Lot 994 (and Lot 995) in 1970.  The permit was terminated in June 1980.  With effect from 1 July 1985, a new permit was issued providing for Choi Senior’s occupation of those parts of what have become known by then as Lots 994RP and 995RP.

27.  Also before me are the letters from the then solicitors for Yu to the District Land Office in 1985 expressing Yu’s consent to the occupation of part of Lot 994RP by Choi Senior.  Then the letter dated 5 February 2004 from the District Land Office to the plaintiffs’ then solicitors explained the above history and confirmed that the new permit granted to Choi Senior with effect from 1985 is still valid.

28.  As the plaintiffs deposed, they were advised and verily believe that Choi Senior and now his family members were and still are occupying, if at all, those parts of Lot 994RP with the consent of Yu and the plaintiffs.

29.  In the circumstances, well before the amended statement of claim was filed in August 2007, the plaintiffs were aware that the defendant was not the sole occupier of the entire Lot 994RP; and that part of the lot was subject to occupation by others including Choi Senior (or his family).  The permit issued to Choi Senior with effect from 1985 apparently remains effective.

30.  Notwithstanding the above, the plaintiffs put forward their claim, alleging that the defendant was and is the occupier of the entire lot; and decided not to name any other occupier of the lot, whether known or unknown, as defendant.  On pleading, there was no suggestion that all the other occupiers of Lot 994RP derived their occupation of the lot under the defendant so that an order against the defendant may be good against the others.  In view of the evidence in respect of the occupation by Choi Senior and his family since the 1970’s, there could be no such suggestion as a matter of fact either.

31.  When it came to the Judgment, the defendant was somehow said to be claiming that he and his family have been occupying “the Site” since 1962 (see the Judgment at §1). As defined in the Judgment, “the Site” was Lot 994RP.  The defendant was eventually ordered to deliver up vacant possession of “the Site” to the plaintiffs.  Such definition of “the Site” was adopted on appeal (see the CA Judgment at §2).

32.  On the face of it, the description in the Judgment of the extent of the defendant’s claim is at variance with the defendant’s actual pleaded case.  Eventually the order for possession against the defendant also covered the entirety of Lot 994RP, not just the portion of it that the defendant claimed to possess.

33.  Having said the above, I however refrain from drawing any conclusion or I would run the risk of making unfair speculation or assumption without the benefit of the actual hearing that the trial judge and the appellate court had.  I must also not lose sight of the fact that the defendant was legally represented both during the trial and the appeal.  Should the above observation cause real concern about the legitimacy of the ambit of the order being sought, I expect counsel for the defendant would have raised that during the trial or the appeal.

Whether Madam Chan should be joined

34.  In any event, whether to make the order remains a matter of discretion of the court. As such, the discretion has to be exercised considering all the circumstances of the case.

35.  Mr Chong (with Miss Wong) for the plaintiffs submitted that though not named as a defendant, Madam Chan and her family could have come forward and asked to be heard.  They have not done so over the past years until now.

36.  According to Choi Junior, Madam Chan is now 89 years old and has moved to an elderly care home since 2008.  However he claims to be residing at his family home as before.  In his first affirmation, Choi Junior was unequivocal in that the first time he came to know about the proceedings in this action was when he made enquiry with the bailiff upon the service of the writ for possession in March 2012.

37.  The plaintiffs questioned how Choi Junior failed to notice the service of court documents in this action over the past years.  In particular, they relied on the various affirmations of service previously filed.  It was invariably deposed to in those affirmations that the court documents have been served, including by way of posting up at the conspicuous place at the “main entrance” of the lot.

38.  There is no suggestion that the “main entrance” of the lot is or includes the door to where the Choi family resides in the lot.  However I notice from the correspondence between the District Land Office and the solicitors for the plaintiffs in 2004 mentioned above that the MOT permits issued to Choi Senior in the 1970 and 1985 were not addressed to him either.  Instead they were addressed to others in the vicinity for forwarding to Choi Senior.  The last permit issued in 1985 was addressed to no one but the store of the defendant for forwarding to Choi Senior.  There is no denial of receipt of those permits through the defendant by Madam Chan’s family.

39.  The plaintiffs also produced a statement of Choi Soo Keung, who was supposed to be a witness for Chan at the trial.  He was eventually not called.  This Mr Choi is actually the younger brother of Choi Junior.  The younger brother stated that he was approached to be a witness for the defence in this action because his elder brother informed the defendant’s family that he would be in Hong Kong during the time of the trial.

40.  In response, Choi Junior in his second affirmation had to admit that his younger brother did inform him of the proceedings in this action.  This was effectively a retraction of his earlier deposition that he had no knowledge about the proceedings in the present action until execution by the bailiff in March 2012.  In court, Mr Cheung tried to explain the change but in my view unsuccessfully.

41.  Then Choi Junior turned to explain that as the present action was directed against the defendant, he and his mother decided not to take any step.  However, judging from the statement of his younger brother, I would be sceptical about any denial of knowledge by Choi Junior that the plaintiffs’ claim touched and concerned his family’s occupation of part of Lot 994RP.  The essence of his younger brother’s statement (at §§7 and 8) was nothing but exactly an explanation of his family’s occupation of part of Lot 994RP.

42.  Mr Chong also submitted that as far as the merits of the contentions of Madam Chan are relevant, her position should be no better than that of the defendant, in view of the analysis by the trial judge and the appellate court of the issue of animus possidendi required in proving adverse possession in the circumstances of this case.  I think such observation is fair.

43.  Further, the younger brother of Choi Junior in his statement acknowledged that his family came to know in the 1980’s from the MOT demands that registered owner of Lot 994RP is Yu; and that they have been meeting such demands to pay the annual land rent.  As mentioned, the District Land Office confirmed in writing in 2004 that the MOT permit issued to Choi Senior with effect from 1985 is still valid.

44.  Even assuming that Madam Chan has a possible cause for complaining that the order for possession was made to cover the part of Lot 994RP that has always been in the possession of her family without her being heard, I do not see how this court is in a position to set aside the Judgment.  The Judgment is one delivered after trial.  It is not for the trial judge, let alone any other court of the same level, to set it aside. 

45.  Mr Cheung for Madam Chan relied on O.35, r.2(1) which provides that any judgment or order obtained where one party does not appear at the trial may be set aside by the court on the application of that party.  The rule is irrelevant.  It does not cover a situation where a person is not a party to the action that has been tried.  Reading it in conjunction with O.35, r.1 (which stipulates what the judge may do if both parties or one of them fails to appear) should leave one with doubt about such understanding.  This, I believe, explains why only 7 days after trial are allowed for the absent party to make an application under that rule.

46.  Of course, the Judgment went to appeal; and the Court of Appeal affirmed it.  The CA Judgment is binding on this court.  What Madam Chan now seeks to do is to impeach the CA Judgment by this court that is not allowed by law.

47.  Mr Chong for the plaintiffs submitted that Madam Chan should have considered commencing a new action for her purpose instead of seeking to join in this action at this stage.  Inevitably the new action will raise the issue of the plaintiffs’ entitlement to the part of Lot 994RP that was and is in the possession of her family.  Mr Chong submitted that the principle of res judicata (even in its broad sense) would not stand in the way of Madam Chan, who is not a party to this action.

48.  If the suggestion by Mr Chong is followed, I would expect the question of multiplicity of legal proceedings would still arise.  The suggestion was not hinted in Mr Chong’s written submission but only during the hearing.  In the absence of sufficient argument, I refrain from expressing any conclusive view on the feasibility of a fresh action.

49.  Anyway Mr Cheung for Madam Chan did not agree to commence a fresh action.  Instead he proposed the alternative of an application to the Court of Appeal for leave to appeal to the Court of Final Appeal.  This again impressed me as being an ad hoc suggestion during the trial.  Mr Cheung was unable to refer to the basis for such an application to be made in accordance with the rules of court.

Conclusion

50.  Being the applying party, Madam Chan has the burden to satisfy this court that she ought to be joined.  As mentioned, Madam Chan is not seeking to be joined because of her interest in the execution proceedings.  For her purpose of setting aside the Judgment (and necessarily the CA Judgment) so as to enable her to re-open the case concerning the part of Lot 994RP occupied by her family, I am not satisfied that joining her at this stage would be proper exercise of discretion in all the circumstances of the case.

ORDER

51.  The summons filed on 2 April 2012 by Cheng and that filed on 3 April 2012 by Madam Chan are both dismissed with costs to the plaintiffs.  Costs shall be taxed, if not agreed, with certificate for counsel.  The costs order is nisi; and shall become absolute in the absence of application within 14 days to vary.

DCCJ 5488/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

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BETWEEN

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Coram :  Her Honour Judge Mimmie Chan in Court

JUDGMENT

Background

1.  The Plaintiffs are the executors of the estate of the deceased Yu Ki Cheung, who was the registered owner of Lot 994 in D.D. 115 ("Lot 994") in Yuen Long, the adjacent Lot 995 in D.D. 115 ("Lot 995") and what is identified as the Remaining Portion of Lot 994. The Defendant ("Mr. Chan") claims that he and members of his family have been occupying the Remaining Portion of Lot 994 ("Site") since 1962. The Plaintiffs claim that Mr. Chan's occupation of the Site was unauthorized, and seek by these proceedings an order for possession of the Site and damages for trespass. By way of defence and counterclaim, Mr. Chan claims that he has been in adverse possession of the Site for over 20 years, and seeks a declaration that the Plaintiffs' right to recover possession was time-barred at the time of the issue of the Writ in these proceedings in September 2003.

2.  It is not in dispute that Mr. Chan and his family have occupied the Site and had erected structures on the Site for use as a residence, for rearing chickens and pigs initially, and later for operation of a grocery store. The Plaintiffs say that such occupation began some time prior to 1978. Mr. Chan claims that he had built a wooden hut on the Site in 1962.

3.  The Plaintiffs claim that the late Mr. Yu had entrusted the management of the lands which he owned in the New Territories, including Lot 995, Lot 994 and the Site, to one Wong Pui ("Mr. Wong"), who would let out the lands, collect the rent from the occupiers and account to Mr. Yu for such rent collected. The Plaintiffs claim that Mr. Wong had granted a licence to Mr. Chan to use and occupy the Site, and that Mr. Chan had paid an annual licence fee to Mr. Wong on behalf of Mr. Yu.

4.  On his part, Mr. Chan denies that he had paid any licence fee to Mr. Wong or to anyone on behalf of the registered owner of the Site.

5.  It is not disputed that on 8 May 1970, a Modification of Tenancy was issued by the Yuen Long District Office under Permit No. 16222 ("Permit") in respect of the Site. By virtue of the Permit, the Government permitted the modification of the Crown Lease under which Lot 994 was held to the extent that structures including accommodation, a porch, a kitchen and a latrine were permitted to be maintained on the Site for the period between 1 April 1970 and 31 December 1970, in consideration of payment of a permit fee. Mr. Yu was stated to be the owner, and Mr. Chan signed the Permit as "Permitee on behalf of the registered land owner". The parties accept that the Permit continues to exist by virtue of the continued payment of the annual permit fee and the automatic annual renewal of the Permit.

6.  It is also not in dispute that by December 1985, a Short Term Waiver had been proposed by the Yuen Long District Lands Office to be granted in respect of the Site, whereby the property was permitted to be converted for non-agricultural building purposes, and for Mr. Chan's use of the shop to be continued on the Site. The Short Term Waiver was finally issued on about 18 December 1986 ("Waiver"). The Plaintiffs claim that this was granted with their consent, as evidenced by the letters dated 23 January 1985, 20 February 1986 and 10 March 1986 from the Plaintiffs' solicitors to the District Lands Office ("DLO"). Mr. Chan denies knowledge of the issue of the Waiver in 1986, and further denies being party to any correspondence between the DLO and the Plaintiffs in relation to the Waiver.

Issues

7.  The issues for determination at trial are:

(1)  whether Mr. Chan has been in possession of the Site for more than 20 years next before September 2003;

(2)  whether Mr. Chan had been in possession of the Site under licence by or with the consent of the registered owner;

(3)  whether Mr. Chan had the intention to possess the Site to the exclusion of the world at large, including the registered owner;

(4)  the damages payable by Mr. Chan for his occupation of the Site, if adverse possession is not established.

8.  The effect and the circumstances leading to the issue of the Permit and the Waiver have bearing on issues (2) and/or (3) identified above.

Legal Principles

9.  The legal principles on adverse possession are clear. In the absence of evidence to the contrary, the owner of the land with the paper title is deemed to be in possession of the land. To establish adverse possession, the burden is on the squatter to prove that he has both factual possession of the land and the requisite intention to possess, and that the possession was adverse to the owner.  As pointed out by Nourse LJ in Buckinghamshire County Council v. Moran [1990] 1 Ch 623, and as applied by Li CJ in Wong Tak Yue v. Kung Kwok Wai & Another [1998] 1 HKLRD 241, adverse possession can be described as "possession as of wrong" and it is the intention of the squatter that is essential. The requisite intention to possess for adverse possession "involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow" (Powell v. McFarlane (1979) 38 P & CR 452, at 471-472). 

10.  It is a well established principle that the question of intention to possess is one of fact, and whether it can be established depends on an assessment of all the circumstances in a particular case (Wong Tak Yue v. Kung Kwok Wai, supra, at 250).  On the question of intention to possess, Li CJ observed at p.250 of his judgment in Wong Tak Yue, supra :

"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 scepticism.  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."

Whether Mr. Chan has been in possession of the Site for more than 20 years next before September 2003

11.  Bearing in mind the Chief Justice's reminder in Wong Tak Yue, that self-serving statements made by the occupier as to his intentions should be viewed with skepticism, the claims made by Mr. Chan and his family with regard to their intention to claim the Site as Mr. Chan's own as early as in 1962 should be examined against such independent and contemporaneous evidence as is available.

12.  It is also natural that given the lapse in time and the failing or failed memory of the witnesses, including the senile Mr. Chan and the aged Mr. Fung who gave evidence on his behalf, the accuracy of the memory of the witnesses has to be approached with some caution. Comparison with contemporaneous documentation is always an aid to testing the reliability of oral testimony, unless there is reason to believe that the documentation is contrived or materially incomplete. Where the passage of time between events and trial is long, it would generally be appropriate to place more reliance on contemporaneous documentation.

13.  Mr. Chan claimed in his Statement made on 10 September 2008 that in about 1962, he cleared the Site with the assistance of his friend Mr. Fung, and built a wooden hut on the Site, intending to use it as a residence for himself and for his wife and children who were applying to come to Hong Kong from China. He claimed that with the assistance of Mr. Fung and his other friends, he erected a surrounding wall, a wire mesh and a metal gate to prevent others from entering the Site. After the arrival in Hong Kong of Mrs. Chan and their son and daughter, Mr. Chan continued to expand the area of his occupation of the Site, by erecting sheds to rear pigs and chicken, and by building more structures on the Site for accommodation by his expanding family and for running a business of making noodles for humans and supplying feed for chicken and pigs. By 1978, a licence was obtained for Mrs. Chan to sell liquor at the shop which was operated on a part of the Site.

14.  Mr. Chan was not available to be cross-examined at trial, as he was certified by his doctor to be suffering from senile dementia. Bearing in mind the considerations relevant to the weighing of hearsay evidence as set out in s.49 of the Evidence Ordinance, the caution against self-serving declarations set out in Wong Tak Yue, and the fact that the matters relating to the date of Mr. Chan's possession and the extent of his use of the Site are at the core of the dispute, I attach very little weight to Mr. Chan's witness statement.

15.  Mr. Fung, who had known Mr. Chan for over 46 years, did give evidence at trial, but his testimony is largely unreliable, bearing in mind that he expressed no clear recollection about the dates of the events he had referred to in his Statement made in July 2008. He also retracted the statement which he had made, that Mr. Chan had brought him to the Site in about 1962 when it was bare, and when Mr. Chan had allegedly told Mr. Fung that he (Mr. Chan) would occupy the Site. The only matters which emerged from Mr. Fung's evidence is that : (1) he had been to the Site with Mr. Chan at some unknown time before Mr. Fung's son was born, and that his son is now 46 years old; (2) there were already some low wire mesh and a fence at the Site on the first occasion of his visit to the Site with Mr. Chan; (3) he had helped Mr. Chan at different times doing odd jobs on the Site, including mending or repairing the wire mesh when it was broken, but had not helped in the erection of the hut or the structures; and (4) at some point in time, he had seen Mr. Chan's wooden hut and pig shed on the Site.

16.  According to the evidence of Chan Wai Chung ("Chan Junior"), Mr. Chan's eldest son, he came to Hong Kong with his mother and his sister in 1965. Chan Junior claims that upon his arrival in Hong Kong, the wooden hut had already been erected at the Site, and that there was a low wall, wire mesh and a metal gate surrounding the hut. The hut was used by the family as accommodation and to make noodles. The shed for chicken and pigs was erected soon after Chan Junior's arrival in Hong Kong, and thereafter, Mr. Fung and others had helped Mr. Chan to erect another structure on the Site to use as a workshop for making noodles and animal feed. According to Chan Junior, he had helped to produce animal feed at the Site when he was attending primary school, and when he completed primary six schooling in 1972, he started to work in the grocery store which his parents were operating at the Site.

17.  The evidence adduced by Mr. Chan, Mr. Fung and Chan Junior should be tested against the independent and contemporaneous documents. The latter show that Mrs. Chan, Chan Junior and his sister were recorded to have arrived in Hong Kong from China on 6 December 1965, as evidenced by the Immigration records.  The Survey Report of Leung Shou Chun Land Surveying Consultants Ltd. dated 15 July 2008, which is produced on behalf of Mr. Chan, contains aerial photographs and survey sheets available from the Survey and Mapping Office of the Government. According to the surveyors' photo study, no structure could be found on the Site as late as 24 February 1963, but according to the aerial photograph dated 16 December 1964, a structure which appears to coincide with the location of what Mr. Chan described to be the wooden hut erected by him can be detected at the Site. The structures described by Mr. Chan to be the grocery store and the shed for chicken and pigs can also be detected from the aerial photograph dated 8 May 1967. By 1971, more structures on the Site can be detected from the Government survey sheets.

18.  The contemporaneous evidence produced on behalf of Mr. Chan includes 2 letters written by Mr. Chan to the DLO, respectively dated 21 January 1969 and 1 April 1969. So far as these contain Mr. Chan's assertions that he had occupied the Site and had kept sheds for pigs and chicken at the Site, these again constitute self-serving statements made by Mr. Chan for the purpose of seeking indulgence from the DLO at the material time, and I regard them with the same skepticism as I do in respect of the declarations made in Mr. Chan's Statement as to the period of his occupation of the Site. This is particularly so when Mr. Chan had stated in these letters of 1969 that he had occupied the site for over 10 years, when even on his own case as advanced in these proceedings, he had only commenced possession of the Site in 1962. The references in the letters to "over 10 years" were clearly examples of exaggeration.

19.  Other relevant documents are the Permit itself which refers to the existence of quarters for accommodation, a kitchen and a latrine at the Site by 8 May 1970; a deposit receipt relating to an account with the China Light & Power Co. Ltd. issued to Mr. Chan at the address at the Site on 9 March 1972; and the issue of a licence to Mrs. Chan to sell liquor at the address at the Site in March 1978.

20.  Mr. Chan claims in his Statement that it was only after his family came to Hong Kong that he started to produce noodles from the wooden hut, and that hitherto, he had been working at a place at Man Li Yuen in Yuen Long, where he had also lived until (he claims) he built his hut at the Site in 1962. 

21.  On the entirety of the evidence, I do not consider that Mr. Chan has discharged his burden of proving that he had occupied the Site and built his hut there as early as in 1962. The Survey Report and the aerial photograph dated 24 February 1963 contradict Mr. Chan's assertion that he had resided at the Site and had constructed the wooden hut there by 1962. However, after considering the independent and contemporaneous documents, I accept on a balance of probabilities that by the end of 1965, some time before the arrival of Mrs. Chan, Chan Junior and his sister in Hong Kong, Mr. Chan would have built the wooden hut at the Site with the intention of providing accommodation for his family.

22.  Although there is no record in the Government survey sheets of the appearance of a gate at the main entrance of the Site until December 1979, by the state of the development of the structures at the Site, which included the structures later used as the store and the other structures used for accommodation by the family members, I am satisfied from the layout of the structures, and from the survey plans and sheets contained in the Survey Report that the entire Site was in the exclusive possession and occupation by Mr. Chan and his family by May 1967. This is more than 20 years before September 2003.

Whether Mr. Chan had been in possession of the Site under licence by or with the consent of the registered owner

23.  It is Mr. Chan's case that throughout the period of his occupation of the Site, he had never sought the consent of the registered owner of the Site, nor had he paid any rent or license fee to the registered owner.

Was there express licence from Mr. Wong?

24.  The deceased Mr. Yu and the Yu clan had substantial land interests in Yuen Long, Lot 994 and the adjacent Lot 995 included. According to the Plaintiffs, a local villager was traditionally appointed to manage the land on behalf of Mr. Yu and his clan, and it was the manager who let out the agricultural land and collected rent from the tenants, reporting to the landowners annually. The Plaintiffs claim that Mr. Wong had been engaged by the late Mr. Yu to let out Lot 994 and to collect rental income on his behalf.  Mr. Wong also acted as manager of other lots of land owned by a Tong comprising members of other families with land interests in Yuen Long.  Because of the number of lots of land involved, and the fact that the annual rental income derived was not substantial, the Plaintiffs explain that Mr. Wong would not give the detailed particulars of the tenants to the late Mr. Yu, and the late Mr. Yu did not ask for such particulars and did not keep a record of the rental income collected and received. It is claimed that the system had operated on trust for over half a century.

25.  Mr. Yu died in 1980 and Mr. Wong in turn died in 1987. The Plaintiffs have not been able to produce any evidence on or record of the rental income collected by Mr. Wong from Mr. Chan, or any other tenant of the land in question. Although Mr. Yu Kit Chiu, the first named Plaintiff, claims that as a child, he had accompanied his father, the late Mr. Yu, to Yuen Long to meet Mr. Wong and to collect the rental income received from Mr. Wong, he was naturally not able to say that Mr. Chan was one of the tenants from whom Mr. Wong had collected rent. The Plaintiffs only plead that after Mr. Wong's death, Mr. Chan had failed to pay licence fees to the Plaintiffs.

26.  The Plaintiffs argue that it can be reasonably inferred that Mr. Chan was their tenant. They rely on the correspondence exchanged between the Plaintiffs' solicitors, Messrs. Foo and Li, and the DLO in 1985 and 1986, and in particular, on a letter dated 23 January 1985 from the solicitors to the DLO ("23/1/85 Letter"). The 23/1/85 Letter reads:

"Re : Lot 994 R.P. in D.D. 115

  Lot 995 R.P. in D.D. 115

We have instructions to act for Mr. Yu Kit Chiu and Dr. Yu Hon Chiu, owners of the above named lots, and refer to a recent telephone conversation between your Mr. Lai and our Mr.Foo.

We are instructed that our clients give their consent to the tenant Mr. Chan Sik Wo (陳錫湖) in his application for a temporary building licence for erection of building or buildings on the said lots."

27.  Leaving aside for the time being the question of Mr. Chan's application for a temporary building licence, the Plaintiffs rely on the reference made in the 23/1/85 Letter to Mr. Chan being a tenant of the owners of Lot 994.

28.  Mr. Foo of Messrs. Foo and Li gave evidence in relation to his firm's correspondence with the DLO. The firm's old files and correspondence have been destroyed or otherwise cannot be located due to lapse of time. The copy of the 23/1/85 Letter produced at trial was from the Plaintiffs' own records. Understandably, Mr. Foo can no longer recall the instructions he obtained and which led to the issue of the 23/1/85 Letter. Nor does he have any recollection of any meeting or conversation with the Plaintiffs or their agents to the effect that the occupier of the Site was Mr. Chan.

29.  The 23/1/85 Letter refers to Mr. Foo's telephone conversation with Mr. Lai of the DLO. Mr. Foo's evidence is that the information that Mr. Chan was his clients' tenant (as stated in the 23/1/85 Letter) could have derived from either his clients (the Plaintiffs), or from Mr. Lai of the DLO. It was suggested to Mr. Foo that as the documents issued by the DLO refer to Mr. Chan as "Chan Sik-wu" (as evidenced by the DLO's correspondence in December 1985, March 1986 and December 1986), the reference made in the 23/1/85 Letter to "Chan Sik Wo" could not have come from the DLO. However, Mr. Foo's evidence on this is that he could not be sure, because any focus placed by Mr. Lai and himself at the material time would have been on the Chinese name of the occupier or tenant on the Site, i.e. 陳錫湖, and not on the English name.

30.  According to Mr. Foo, he had been to the grocery store at the Site, where he had met with the Plaintiffs and Mr. Wong, some time between 1980 and 1984 or 1985.

31.   Counsel for the Plaintiffs argue that Mr. Chan must have been in occupation of the Site under licence from Mr. Wong as manager of the registered owner and had been paying rent to Mr. Wong, as otherwise it was inexplicable that upon learning that Mr. Chan was an occupier of the Site in 1985, the Plaintiffs would have given consent to Mr. Chan's application for the building licence referred to in the 23/1/85 Letter, instead of asserting that Mr. Chan was a trespasser and instituting legal proceedings against Mr. Chan for recovery of possession. Counsel for the Plaintiffs also argue that the reason why the Plaintiffs did not make any attempt to repossess the Site after the visit made by Mr. Foo, the Plaintiffs and Mr. Wong to the Site in 1984 or 1985 can only be due to the fact that Mr. Chan was at the material time occupying the Site under Mr. Wong's licence.

32.  On the other hand, Counsel for Mr. Chan sought to highlight the fact that when the Plaintiffs first made demand for possession of the Site in 2002, they did not assert that Mr. Chan was a licensee, and that it was only when amendments were made to the Statement of Claim filed in these proceedings in August 2007 that the Plaintiffs sought to rely on an alleged licence granted by Mr. Wong to Mr. Chan in respect of Mr. Chan's occupation of the Site, in consideration of payment of an annual licence fee. It was submitted that this casts serious doubt on the Plaintiffs' contention that Mr. Chan had all along been a licensee of Mr. Wong.

33.  From the available evidence, I am not satisfied that the necessary inference can be drawn that Mr. Chan must have been occupying the Site under a licence granted by Mr. Wong acting on behalf of the registered owner of the Site. Mr. Wong may well have been collecting rent from the occupiers of different lots of land in Yuen Long and in the vicinity of the Site. He may even have been collecting rent for other lots belonging to the late Mr. Yu, and accounting to Mr. Yu for the same. However, there is no evidence at all which can clearly show or even suggest that Mr. Wong must have licensed the Site to Mr. Chan in the first place, or that Mr. Wong had been collecting rent from Mr. Chan.

34.  There may also be many reasons to explain the Plaintiffs’ inactivity and failure to take eviction proceedings after discovering that the Site was occupied by Mr. Chan in 1985, or after their visit to the Site in 1984/1985. This is particularly so for land in the New Territories, where it is often difficult to verify land boundaries and ownership. On the Plaintiffs' evidence, they did not appear to have very adequate information from either the late Mr. Yu or from Mr. Wong concerning the state of the occupation of the lots of land registered in the name of the late Mr. Yu, and they simply may not have knowledge then as to whether the Site was lawfully occupied by Mr. Chan at the material times, or was a trespasser. Their lack of knowledge cannot be taken as indication of Mr. Chan's status as a licensee occupying the Site with the express consent of the late Mr. Yu acting through Mr. Wong.

35.  In my judgment, there are also too many uncertainties relating to how Mr. Foo could have come to state in the 23/1/85 Letter that Mr. Chan was the Plaintiffs' tenant, such that I cannot necessarily infer that the only possibility was that Mr. Foo had been informed by the Plaintiffs or by Mr. Wong that Mr. Chan had been occupying the Site as a tenant or licensee. Even if the source of Mr. Foo's information regarding Mr. Chan was Mr. Lam of the DLO, it suffices to say, at this stage, that I do not regard the 23/1/85 Letter as necessarily suggesting that Mr. Lai himself could only have been informed by Mr. Chan that he was occupying the Site as a tenant or licensee of the registered owner.  I shall deal with this in more detail in the paragraphs below.

Was there consent of the registered owner to Mr. Chan’s possession?

36.  The Permit was issued on 8 May 1970. The Waiver was first proposed around January 1985 and finally issued in December 1986. The Plaintiffs rely on these to show that Mr. Chan's possession and use of the Site was with the consent of the registered owner, and henceforth not adverse. Mr. Chan claims that he had never sought the consent of the registered owner of the Site in the course of the Government's issue of the Permit and the Waiver.

37.  Both parties have adduced evidence on the policy and practice of the relevant Government department at the material time in relation to the issue of the Permit and the Waiver, for the purpose of showing the involvement of the registered owner in such process, and whether the consent of the registered owner was required for the issue. Ultimately, there does not appear to be much conflict in the evidence of Mr. Lam called on behalf of Mr. Chan, and that of Mr. Robinson called on behalf of the Plaintiffs.

38.  The Plaintiffs argue that the consent of the late Mr. Yu must have been obtained and given before the DLO issued the Permit to Mr. Chan in 1970.

39.  Whereas the subsequent correspondence on the Waiver which was issued by the DLO in 1985 and 1986 was shown, on the face of the letters, to have been copied to both the Plaintiffs and to Mr. Chan, the Permit was not shown to have been accompanied by any letter from the DLO to the late Mr. Yu as registered owner. Due to the lapse of time, the Plaintiffs were not able to retrieve copies of any correspondence between the late Mr. Yu and the DLO on the Permit. They were able, however, to retrieve a letter sent by DLO to the late Mr. Yu in relation to an identical permit which was issued to another occupier, Mr. Choy, in relation to another part of Lot 994 and Lot 995.

40.  Mr. Lam was the Principal Land Executive of the Lands Department and was posted to the DLO in Yuen Long before his retirement in 2004. He professes knowledge of the policy and practices of the District Office in their routine work concerning the control of the proliferation of unauthorized erections, the issue of Permits or Mordification of Tenancy in respect of domestic structures on private land and the issue of Crown Land Licences on government land in the New Territories in the 1970s and the 1980s. He was called to give evidence on behalf of Mr. Chan in these respects, although it is not disputed that Mr. Lam was not personally involved in the issue of either the Permit or the Waiver in this case.

41.  Mr. Lam claims in his Statement that in the 1970s, erection of squatter huts and structures on government and private land was very common. According to Mr. Lam, the practice of the District Office was to regularize these unauthorized structures by first registering them, and then issuing Permits in respect of those registered domestic structures on private land, and Crown Land Licences in respect of those structures on government land. Mr. Lam claims in his Statement that the practice was to issue the Permit to the genuine occupier of the land as the permit holder, because in most cases, the consent of the registered owner could not be obtained. Mr. Lam explained that often, the owner of the land could not even be located.

42.  According to Mr. Lam, it was only around 1980 to 1982 that the District Office changed its policy and practice, and required the occupier of land to submit the written consent of the registered land-owner when applications concerning the land are made by the land occupier. Mr. Lam's evidence is that since 1982, the DLO further changed its policy and practice when dealing with applications for change of land use, such that an offer letter would be sent directly by the DLO to the registered owner, with copy to the occupier, and the permit or short term waiver in question would be issued in the name of the registered owner, instead of to the occupier.

43.  However, Mr. Lam accepts that even before the 1970s, it was and has still been the policy and practice of the District Office and DLO to adopt the form of the Permit (or Modification of Tenancy), when recording Government's agreement to change or modify the terms of a Crown Lease, and to make the owner of the land a party to such document. Mr. Lam accepts that this was done by either sending a letter and the relevant document to the land owner, through the occupier or otherwise, or by ensuring that the form of Permit in question, when signed, is signed by the occupier on behalf of the land owner. Hence, a standardized chop is imprinted on the Permit under the signature of the Permittee to whom the Permit is issued, with the words "ON BEHALF OF REGISTERED LAND OWNER" appearing beneath the signature.

44.  Mr. Robinson, who gave evidence on the Plaintiffs’ behalf, had worked as Assistant Principal Solicitor for the New Territories in 1982, and gained experience concerning the issue of Permits by the relevant District Office.  Mr. Robinson does not dispute Mr. Lam’s evidence.

45.  There is nothing in Mr. Lam's evidence which can lead me to find that the late Mr. Yu's consent had not been sought or obtained prior to the issue of the Permit to Mr. Chan in 1970. Mr. Lam 's evidence comes to the effect that in most cases, the consent of the land owner would not be obtained for the issue of the Permit because the land owner could not be located.  In this case, however, there is evidence that the late Mr. Yu was contacted by the Land Office in 1970 prior to the issue of the Permit to Mr. Choy in respect of Lot 994 and Lot 995. Mr. Lam obviously cannot, and did not, say that Mr. Yu was not in fact contacted for his consent to the issue of the Permit to Mr. Chan in 1970. In my view, the probabilities remain equal in this case as to whether or not the Land Office had contacted the late Mr. Yu and obtained his consent to the issue of the Permit to Mr. Chan.

46.  However, whether or not the late Mr. Yu's consent was sought and obtained prior to the issue of the Permit to Mr. Chan, it cannot be disputed that the Permit was issued to Mr. Chan, who signed it as Permittee on behalf of the registered land owner identified in the Permit as the late Mr. Yu. Although Mr. Chan maintains that he did not understand the English contents of the Permit when he signed it, he is in law obviously bound by the document to which he had put his signature - irrespective of whether he had bothered to read it, or to have it explained to him. That is trite law. By the express provisions of the Permit, Mr. Chan acknowledged the late Mr. Yu as the owner of Lot 994 and Lot 995, that the late Mr. Yu was permitted to maintain the structures specified in the Permit and, by signing the Permit, he was taken to accept the conditions of the Permit and at the same time acknowledged that he signed and accepted the Permit on behalf of Mr. Yu as the registered land owner.

47.  The intention to possess required for adverse possession involves  "the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow" (Powell v. MacFarlane (1979) 38 P & CR 452, 471-472; Wong Tak Yue v. Kung Kwok Wai (1997-98) 1 HKCFAR).

48.  I regard the Permit as clear acknowledgment by Mr. Chan to the Land Office, and to the world at large, that the owner of Lot 994 and Lot 995, including the Site, was Mr. Yu.

49.  Counsel for Mr. Chan sought to distinguish an acknowledgment by Mr. Chan of Mr. Yu as the owner, from an acknowledgment by Mr. Chan that he was in possession of the Site with the owner's consent. I do not accept this distinction. Mr. Chan's acknowledgment in the Permit, reasonably construed by either the registered owner himself if he should come across the Permit, or by the Land Office (as the evidence of Mr. Lam also suggests), or by any objective informed observer reading the Permit, can only mean that Mr. Chan, the Permittee, was maintaining the structures, and hence using the Site and in possession of the Site, for and on behalf of the registered owner named. No one could reasonably have come to the conclusion that the named owner on whose behalf Mr. Chan was purporting to act was being excluded.

50.  Mr. Lam 's evidence is that the Land Office was happy and prepared to continue with the practice of issuing the Permit to the occupier even though  the consent of the registered owner was not obtained, precisely because of the use of the chop whereby the occupier signing the Permit acknowledges that he was signing "on behalf of the registered land owner”. The Land Office would rely on such acknowledgment, and it was possibly due to such acknowledgment in the Permit that Mr. Lai was able, later in 1985, to inform Mr. Foo that Mr. Chan was in occupation of the Site with the owner's consent, and was hence a "tenant".

51.   The burden is on Mr. Chan to prove that he had 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, and I am not satisfied that his act of signing and acknowledging the contents of the Permit is consistent with such clear and unequivocal intention.  In the words of Slade J in Powell v. MacFarlane, supra :

" 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 he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner."

52.  Nor can Mr. Chan excuse the signing of the Permit on the ground that it was a condition imposed on him by the Land Office for his continuous maintenance of the structures he had erected on the Site. In this regard, Counsel for Mr. Chan sought to argue that the requisite intention to exclude the owner is only "so far as is reasonably practicable and so far as the processes of the law will allow". In the circumstances of the case, Mr. Chan was required by the process of the law to acknowledge the owner of the Site as Mr. Yu, and he chose so to do. Having so acknowledged, I consider that he should be bound by such acknowledgment, and in my judgment, such an acknowledgment to the whole world is clearly inconsistent with a professed intention to exclude the acknowledged owner.

53.  In Lam Ngok Ching v. Tsang Yuk Ming, HCA 1192/2004, 8 June 2006, the Court came to the same conclusion on the facts, that the defendant in the case had, by acknowledging the grant of the Modification of Tenancy as permittee of the registered owner, acknowledged the owner and was thereby not in adverse possession. Counsel for Mr. Chan sought to argue that evidence of the practice of the DLO/District Office at the material time was not available in the case of Lam Ngok Ching, and that such evidence distinguishes the present case. I do not agree that the evidence from Mr. Lam and Mr. Robinson in this case can affect my finding on the effect of the Permit. Even if I should accept that the late Mr. Yu was never contacted or approached for his consent to the issue of the Permit to Mr. Chan in 1970, I consider that Mr. Chan should be bound by his acknowledgment to the District Office and to the whole world that he was accepting the Permit and continuing his use of the structures on the Site in the name and on behalf of the registered owner.

54.  I accept the submissions made by Counsel for the Plaintiffs that there is no evidence of any significant change of Mr. Chan's position since the date of the Permit on 8 May 1970. He continued to pay the annual fees under the Permit up to at least 2005.

55.  My findings on the Permit are sufficient to deal with the question of whether there is adverse possession, so I will deal with the issue of the Waiver vary briefly.

56.  It is clear that in January 1985, the Plaintiffs through their solicitors wrote to the DLO to give their consent to Mr. Chan's application for a temporary building licence in respect of a part of the Site, and in 1986 to the ultimate issue of the Waiver. Whether or not the issue of the Waiver was initiated by Mr. Chan, and even if I should accept that Mr. Chan never approached the Plaintiffs for their consent nor was a party or privy to the Plaintiffs' correspondence with the DLO in connection with the issue of the Waiver, I accept that Mr. Chan's use and occupation of the Site after 1985 and 1986 was with the consent and permission given by the Plaintiffs as owners of the Site and communicated to the DLO. I accept that a licence can be inferred from the circumstances, notwithstanding that the licensee was unaware of the circumstances (Lord Borough of Lambeth v. Rumbelow, unrep. Ch. D. 25 January 2001, Lexis Nexis Transcripts). It follows that as Mr. Chan occupied the Site as licensee or otherwise with the permission of the Plaintiffs, Mr. Chan cannot be in adverse possession.

Whether Mr. Chan had the intention to possess the Site to the exclusion of the world at large, including the registered owner

57.    As elaborated in the preceding paragraphs, I consider that Mr. Chan's act of signing the Permit was equivocal and not necessarily referable to an intention on his part to dispossess the registered owner. I am not satisfied that Mr. Chan has discharged his burden of proving that he had the requisite intention for the purpose of establishing adverse possession, and that his occupation of the Site was adverse to the owner.

58.  Counsel for Mr. Chan argued that animus possidendi should be presumed, when there is clear evidence that Mr. Chan had enclosed the Site, covered the Site with structures, and used it as a store and a residence for himself and for his family. He relies on the case of Ho Hang-wan v. Ma Ting Cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649, to make the proposition that it is only when the squatter's use of the land is equivocal that he has to adduce compelling evidence of the requisite intention.

59.  I do not agree that Ho Hang-wan can be extended beyond the facts and circumstances of its own case to mean that in every instance where the squatter has enclosed the land, he must be presumed to have the necessary animus. That will mean that the presumption of animus can apply to almost all cases of squatters who can establish the act of exclusive possession, without having to prove more.

60.  On the facts and evidence of this case, I consider that Mr. Chan's use of the Site is indeed equivocal, as it is unclear whether he was using the Site as licensee or a designated Permittee of the owner by virtue of the acknowledgment made in the Permit.  In view of the equivocal nature of his use and possession, and the possibility of such use being referable to some actual or supposed right or licence, it will be inappropriate to presume the requisite animus.

The damages payable by Mr. Chan for his occupation of the Site

61.  Since Mr. Chan cannot establish that he has been in adverse possession of the Site, I accept that he was a trespasser after the Plaintiffs revoked his licence on 4 July 2002, and he is liable to pay damages or mesne profits in respect of his occupation thereafter.

62.   On the basis of the valuation made by Mr. Chan's own experts, I allow the Plaintiffs' claim for mesne profits from 4 July 2002 when the Plaintiffs first demanded recovery of possession of the Site up to 24 February 2010, in the total sum of $593,911 as claimed. Mesne profits would also be payable thereafter at $6,900 per month until the date of Mr. Chan's delivery of vacant possession of the Site to the Plaintiffs.

Conclusion

63.  In view of my findings, Mr. Chan has not been able to establish that he has been in adverse possession of the Site.  I will accordingly make an order for Mr. Chan to deliver up vacant possession of the Site to the Plaintiffs within 12 weeks from the date of service of the Order to be drawn up pursuant to this Judgment, and for damages to be paid, as set out in paragraph 62 above.  Mr. Chan's Counterclaim is dismissed.

64.    I will further make a costs order nisi that Mr. Chan is to pay the Plaintiffs' costs of the original action and of the Counterclaim, with certificate for Counsel, to be taxed if not agreed.  Mr. Chan's own costs are to be taxed in accordance with the Legal Aid Regulations.

DCCJ 5488/ 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

____________________

DCCJ 5488/ 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

____________________

_______________________________________

JUDGMENT ON DEFENDANT'S
APPLICATION FOR STAY OF EXECUTION

_____________________________________

Introduction

1. In Chan Tin Shi v Li Tin Shung CACV 71 of 2003 the Court of Appeal ruled that as at 1 July 1997, new leases have been granted by the HKSAR government to the registered owners of lands north of Boundary Street.  Adverse possession has to commence afresh.     

2. The plaintiff owned land of which the defendant was in adverse possession.  On 9 August 2005, the plaintiff obtained summary judgment for possession of land (“the subject-land”) and damages for trespasses to be assessed.  The defendant’s application for stay of execution was adjourned pending affirmations to be filed.  The defendant never lodged any appeal against the judge’s decision.  It is already out of time.  The defendant only applies for stay of execution today.   

Defendant’s submissions

3. Ms Yeung submits as follows:

(1)	The defendant has an arguable case in the summary judgment proceedings, as seen from the Court of Final Appeal’s leave granted to hear the appeal in Chan Tin Shi;
(2)	The defendant and his family have lived there for over 40 years.He has limited financial means for alternative residence;
(3)	The plaintiff will suffer no hardship even if the defendant stays on.

Plaintiff’s submissions

4. Mr. Chong submits as follows:

(1)	The starting point is that the plaintiff should be able to take all legitimate measures to enforce the judgment.  Only in exceptional circumstances should he be deprived of the fruits of the judgment he had obtained by being prevented from levying execution (per Ma CJHC in Credit Lyonnais v SK Global Hong Kong Ltd [2003] 4 HKC 104, at 108-9).  The defendant’s application does not come with any application for appeal against the summary judgment. He is only seeking to stay on as long as possible;
(2)	The defendant fails to comply with the judge’s order (para. 1, Stay Bundle p. 2) to make his son, who was an occupant there, file an affirmation of financial circumstances;
(3)	The defendant had applied for, with the concurrence of the plaintiff, and been granted on 18 December 1986 a Short Term Waiver (“S.T.W. 1180”) to operate a shop there.  S.T.W. 1180 (Stay Bundle p. 36) reserved the right of re-entry by the government upon breach of this covenant, among others.  The residential user by the defendant is and was in breach of this covenant.  The government may re-enter at any time unless this user discontinues;

My view

5. Ms Yeung’s has no idea why there was never any application for appeal.  She proposes filing it if stay is granted.  I regard it obvious that the defendant does not intend to appeal but just wants to stay on as long as possible.  As the matter stands, whatever decision pronounced by the Court of Final Appeal cannot benefit the defendant.

6. Given the present state of events, I have to consider whether to grant a stay so as to avoid injustice, prevent abuse, preserve the dignity of the court or to facilitate the administration of justice (per Ma CJHC in Credit Lyonnais, at 107). 

7. The defendant has lived there for over 40 years.  He has no alternative residence.  He stated (in para. 3 of his 2nd affirmation, dated 27 July 2005, Order 14 Bundle p. 125) that his son could only earn a living for his own family at the very most.   The son’s couple operated the shop, earning a yearly salary of $144,400 and a yearly net profit of $36,788 (Stay Bundle p. 13).  Mr. Chong comments that the defendant or his son should have provided more information.  But I think he had already provided basically what I have to know.      

8. I do not see any reason to deprive the plaintiff of a valuable property right on the grounds of the defendant’s long history of occupation and limited means.  It is a sad situation but not one for which the plaintiff’s right should be sacrificed.     

9. I think that a stay will also subject the plaintiff to grave hardships.  There is a real risk of the government’s re-entry due to the defendant’s breach of the user of the Short Term Waiver.  The Court should not make an order countenancing a breach of the covenant.   

Conclusion

10. I dismiss the defendant’s application for stay of execution.  There is no apparent reason why costs should not follow the event.  I order costs nisi to the plaintiff with one certificate for counsel (as Mr Chong so indicates).  The order will become absolute after 14 days from today. 

Dated this 19 December 2005

DCCJ5488/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

Coram: H H Judge C B Chan in Chambers

D E C I S I O N

1.  In this application, the plaintiffs apply under Order 14, Rule 1 of the Rules of the District Court that there be final judgment for an order for possession in favour of the plaintiffs against the defendant of the land set out in paragraph 1 of the statement of claim; and (2), there be judgment in favour of the plaintiffs against the defendant for damages for trespass to be assessed by the Master in chambers; and under 14A, Rule 1 of the Rules of the District Court that the issues of law set out in the schedule to the summons be determined by this court, and consequential upon determination of the said issues of law that judgment be entered against the defendant; (3) that pursuant to Order 18, Rule 19(1) of the Rules of the District Court, the amended defence and counterclaim of the defendant be struck out on the ground that the same (i) does not disclose a reasonable defence and/or cause of action; or (ii) may prejudice, embarrass or delay the fair trial of the action; and/or (iii) is otherwise an abuse of the process of the court, and that judgment in terms of the statement of claim be entered.  The plaintiff also applies for costs.

2.  The two questions of law to be determined under Order 14A,  Rule 1 of the Rules of the District Court are:

(1)      whether the plaintiffs have been re-granted a new lease in respect of the remaining portion of lot No. 994 in DD115 (hereinafter referred to as “the said landlord”) by the government on 1 July 1997 by virtue of the New Territories Leases (Extension) Ordinance (Cap. 150) whereby a new estate and interest of or in the said land lot is created and granted to the plaintiffs;

(2)      whether as at the date of issue of the writ herein, the plaintiffs’ title to the said land lot referred to in paragraph 1 above has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (Cap. 347) and the defendant is entitled to a possessory title to the said land lot deriving from the adverse possession of the said land lot as pleaded in paragraph 2 of the amended defence and counterclaim.

3.  In relation to the two questions posed in the Order 14A, Rule 1 application, the plaintiffs’ counsel relies on the authority Chan Tin Shi v Li Tin Sung& Others CACV71 of 2003 handed down on 19 November 2004 and also Chan Suk Yin v Wong Yam Taiv Harvest Good Development Limited CACV101 of 2004. 

4.  The defendant’s counsel concedes that based on the authorities aforesaid, the answer to the first question posed should be “yes” and the answer to the second question posed should be “no.”  As stated in the judgment Chan Suk Yin & Wong Yam Taiv Harvest Good Development Limited, paragraph 13 thereof referred to by the plaintiffs’ counsel, the learned Vice President of Appeal, the Honourable Rogers VP, stated that:

“The judgment in the case of Chan Tin Shi v Li Tin Sung & Others CACV71 of 2003 held that the effect of the New Territories Leases (Extension) Ordinance Cap. 150 was that a new estate was created in respect of land in the New Territories, and that for the purposes of limitation of actions, time should begin to run again from the date of the creation of the new estate.”

5.  The defendant’s counsel stated that she conceded that point, but as the Court of Appeal decision in Chan Tin Shi would be heard on appeal in the Court of Final Appeal, she wished to reserve the right to argue should the Chan Tin Shi decision be reversed in the Court of Final Appeal.  Otherwise, the defendant’s counsel conceded that on the basis of law, the defence and counterclaim be struck out and that the plaintiffs be granted judgment as claimed. 

6.  I therefore strike out the amended defence and counterclaim and grant judgment for an order for possession of the land set out in paragraph 1 of the statement of claim by the defendant to the plaintiff.  And I also grant that the defendant do pay the plaintiffs costs of the action including costs of the application, to be taxed if not agreed, with certificate for counsel. 

7.  And I also grant judgment in favour of the plaintiffs against the defendant for damages for trespass to be assessed.

Representation:

Mr K M Chong, instructed by Messrs Liu, Choi & Chan, for both Plaintiffs

Miss Vivian Yeung, instructed by Messrs Wong, Kwan & Co., for the Defendant