WONG CHONG KWAI YIN v. TANG LAN FONG AND ANOTHER

HCA 939/2005

[2022] HKCFI 1367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 939 OF 2005

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DECISION ON COSTS

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I.  Introduction and Background

1.  By a judgment dated 9 June 2020, after an 8-day trial of the action, I found in favour of the Plaintiff against the 1^st Defendant and made various orders and declarations as between them (see [2020] HKCFI 1153)  (the “Judgment”). This Decision should be read together with the Judgment, and for convenience, unless otherwise stated, I adopt the abbreviations used in the Judgment in the remainder of this Decision.

2.  As to costs, I held on a nisi basis at paragraph 102(1)  of the Judgment that:

“As between Madam Wong and TLF’s estate, as Madam Wong has not been wholly successful in her claims, an appropriate costs order would be that Madam Wong have 85% of her costs, to be taxed on a party and party basis, if not agreed, with certificate for two counsel.”

3.  By a Summons dated 22 June 2020 (the “Summons”), Madam Wong applied to vary the costs order nisi as follows:

(1)  Sky Trinity be joined as a party to these proceedings for the purposes of costs only (paragraph 1).

(2)  Madam Yu be joined as a party to these proceedings for the purposes of costs only (paragraph 2).

(3)  The Costs Order nisi be varied and replaced in the following manner:

(a)  The 1^st Defendant and/or Tsang Hau Ling personally do pay Madam Wong 85% of her costs of this action, to be taxed on a party and party basis, if not agreed, with certificate for two counsel.

(paragraph 3.1)

(b)  Sky Trinity be jointly and severally liable for:

(i)  The costs which Madam Tsang in her capacity as the executrix of TLF’s estate and/or personally is liable to pay Madam Wong.

(ii)  Alternatively, such percentage of the costs which Madam Tsang in her capacity as the executrix of TLF’s estate and/or personally is liable to pay Madam Wong as the Court thinks fit.

(paragraph 3.2)

(c)  Madam Yu be jointly and severally for:

(i)  The costs which Madam Tsang in her capacity as the executrix of TLF’s estate and/or personally is liable to pay Madam Wong.

(ii)  Alternatively, such percentage of the costs which Madam Tsang in her capacity as the executrix of TLF’s estate and/or personally is liable to pay Madam Wong as the Court thinks fit.

(paragraph 3.3)

4.  Mr Andrew Mak[1], counsel for Madam Wong, had earlier invited the Court in his closing submissions at the trial to make the third-party costs orders now sought in the Summons against Sky Trinity and Madam Yu. At paragraph 103 of the Judgment, I indicated that it was for Madam Wong, having regard to my findings and reasons in the Judgment, to make such applications as she thought appropriate under RHC Order 62 r.6A.

5.  At the first adjourned hearing of the Summons on 5 August 2020, in respect of paragraphs 1 and 2 of the Summons, I applied the two-stage process contemplated in RHC Order 62 r.6A and made an order in terms of the paragraphs, having been satisfied that the joinder application was not a plain or obvious abuse of process (see e.g. Sun Focus Investment Ltd v Tang Shing Bor & Anor (No 2)  [2013] 2 HKC 54 at §§12, 19). I was also of the view that this was also not a straightforward application where I would have been able to determine the substantive applications against Sky Trinity and Madam Yu in a rolled-up hearing with the joinder applications (see e.g. my decision in Chu Po Ling v Chung Chun Shing & Anor (unreported)  DCCJ 32/2012, 24 November 2014). I therefore gave directions to Sky Trinity and Madam Yu for the filing of evidence in response to paragraphs 3.2 and 3.3 of the Summons. I also directed on 18 August 2020 that deponents to any affidavits or affirmations filed in respect of paragraphs 3.2 and 3.3 of the Summons should attend the Court for cross-examination, failing which their evidence could not be relied upon.

Paragraph 3.1 of the Summons

6.  As to paragraph 3.1 of the Summons, on 18 August 2020, I heard submissions from Mr Albert Chan, counsel for Madam Wong, and Madam Tsang (acting in person).

7.  As submitted by Mr Chan, in hostile litigation with outsiders (as in the present case), the starting point is that the representative of an estate is personally liable for costs, whether he or she acts as claimant or defendant. As explained by the authors of Williams Mortimer Sunnucks on Executors, Administrators and Probate (21^st Ed)  at §63-01:

“In hostile litigation with outsiders, whether brought by the representative as claimant or brought against him as defendant, the representative will be in the position of any other litigant. The costs will be in the discretion of the court but the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. The representative will be personally liable to the other party for any costs order made against him, and his liability will not be limited to the assets of the estate even if his liability on the rest of the judgment debt is limited to the assets. The judge making such a costs order will not be concerned as to whether the representative will be entitled to be indemnified against that order out of the estate...” (emphasis added)

8.  Further, in Lewin on Trusts (20^th Ed)  at §48-091:-

“In general, the position is this. A trustee who actively defends proceedings against the trust or the trust property, even if there are reasonable prospects of success, is seriously at personal risk as to costs if his defence is unsuccessful, and cannot count on any right of indemnity which entitles him to defend. Unless arrangements are made which sensibly enable the trustee to take a neutral role in the proceedings, or the trustee is able to meet his costs without recourse to the property claimed in the proceedings, the best available course is for the trustee to make a Beddoe application.” (emphasis added)

9.  Mr Chan submits that in the present case, Madam Tsang actively defended Madam Wong’s claim against the said Lots:

(1)  As I had noted in paragraph 39 of the Judgment, after Madam Tsang’s substitution as the 1^st defendant, on 24 August 2016, she amended and “deleted in its entirety” TLF’s Original Defence (which was filed in September 2005)  and advanced a new case against Madam Wong which I described as “a substantial and irreconcilable shift”.

(2)  Madam Tsang also made clear in her affirmation dated 17 March 2016 that, “I shall vigorously challenge the Plaintiff’s claim and allegations without hesitation, should a trial be inevitable in the end.”

10.  On the principles above, I accept as a starting point that the proper person liable for 85% of Madam Wong’s costs should be Madam Tsang personally. It is unclear whether Madam Tsang (who was legally advised and represented at the time)  obtained an indemnity from the beneficiaries of TLF’s estate or a Beddoe order from the Court for the costs of this action, either prior to or after she obtained an order from the Court on 5 June 2015 to carry on these proceedings on behalf of the estate (the “Carry On Order”). In any event, these are matters between her and estate’s beneficiaries and not something which I need to be concerned here.

11.  In the course of the hearing, I raised with Mr Chan whether it was an immutable rule that, in a case where the action was commenced during the lifetime of the deceased, a personal representative becomes personally liable for the costs of the entire action from inception once he or she decides to adopt the prosecution or defence of an action, or that the Court has a discretion to apportion costs, say, from a particular point in time such as from the time of adoption, leaving the earlier costs to be merely a liability of the estate.

12.  Mr Chan’s primary stance was that Madam Tsang should be personally liable for the costs of the entire action. Alternatively, as a fall-back, Mr Chan submits that Madam Tsang should be personally liable for all costs incurred from the dated of the Carry On Order, whilst TLF’s estate should be liable for all costs before that date.

13.  As to a personal representative’s liability for costs prior to his or her involvement in any proceedings, the authors of Williams Mortimer Sunnucks (supra)  explained at §59-10:

“An executor who has obtained an order to continue an action, even after judgment, becomes liable for costs from the start (ab initio)  in the same manner as if he had commenced the action, though without prejudice to his having an indemnity out of the estate.” (emphasis added)

citing inter alia Boynton v Boynton (1879)  4 App Cas 733

14.  In Boynton, Lady Boynton commenced proceedings to set aside a deed of appointment which disposed of two of her properties in favour of one of her sons, George, on the ground of George’s undue influence. She succeeded at first instance, with the court declaring that George should pay the costs of all parties. Shortly thereafter, Lady Boynton passed away. She had, however, appointed her other son, Charles as the executor of her will, and which Charles proved. George then served a notice of appeal on Charles, as Lady Boynton’s legal representative, and Charles then obtained an order authorising him to continue the suit (in the manner as Lady Boynton might have had she not died)  as the respondent to George’s appeal.

15.  The English Court of Appeal reversed the decision at first instance, dismissed the suit and unanimously ordered that Charles personally pay both the costs of the suit and the appeal.

16.  James LJ (with Brett and Cotton LJJ concurring)  held in the Court of Appeal’s judgment on costs at 251-252:

“It seems to me that the general principle is this, that if a party to a litigation dies at any stage of it, his legal representative must then consider whether he will or will not adopt the litigation. It does not signify in what stage the litigation is – whether the death takes place before the original hearing or before the rehearing in the Court of Appeal: it is for him to say whether he will or will not further prosecute the matter. If he elects to go on, it is impossible to draw a distinction as to the stage at which the suit has arrived when he elects so to continue it. If he elects to continue it, he must pay the costs like any other litigant, without prejudice to any right which he may have to get his costs out of the estate which he represents... He adopted the suit, in my opinion, as completely as a legal personal representative could do. He has adopted with it all the consequences and must pay the costs.” (emphasis added)

17.  The decision of the Court of Appeal both as to the appeal and the issue of costs was upheld by the House of Lords at 735-736:

In this state of things Charles Boynton obtained the order of the 19^th November, 1877, analogous to the old order to revive, and he was thereby ordered, as legal personal representative of Lady Boynton, to be at liberty to carry on and prosecute the suit against the other Defendants in like manner as Lady Boynton might have done if she had not died. This order virtually made him the Plaintiff, and in the title to the order of the Court of Appeal dated the 19h of June, 1878, he was ordered to be at liberty to carry on the suit as the Plaintiff might have done. He thus adopted the suit and adopted it ab initio. Had he been successful on the appeal he would have retained the cancelled deed, and received the costs ordered to be paid to Lady Boynton, together with the costs of the appeal, and as he has failed, he must, according to the well-settled practice of the Court, submit to an order for payment of the costs personally.” (emphasis added)

18.  With respect, it is not immediately obvious from the brief reasons of the English Court of Appeal and the House of Lords why, even if a personal representative adopts a suit ab initio, it must follow that he should be necessarily be personally liable for the costs of the action ab initio. It seems to me that there is at least an argument that had the suit not been adopted by the personal representative, the deceased’s case (whether it was a claim or defence)  would likely have failed by default, leaving the opposing party to enforce any costs orders against the estate in the usual manner. The mere fact that a personal representative decided to carry on the action should not necessarily result in a windfall for the opposing party, particularly in a case where the deceased (and thus his or her estate)  was impecunious.

19.  Boynton should of course be accorded with the greatest respect, but it is, after all, a 19^th century decision, where the courts then were generally less flexible in the exercise of their discretion as to costs. For instance, the apportionment of costs by issue is a relatively recent practice following Lord Woolf’s Reforms in England towards the end of the last century (see e.g. AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507). It seems to me that the modern approach of the Court as to costs, especially after the Civil Justice Reform in Hong Kong, is to abhor any absolute rule or straitjacket on the Court’s exercise of discretion. The Court is entitled to take into account a wide range of circumstances, including the conduct of the parties, to achieve a just and fair result.

20.  Further, I note that the Supreme Court in the United Kingdom has more recently taken a similar view on an analogous rule in Gabriel v BPE Solicitors and Anor [2015] AC 1663. The context of that decision was that of a trustee in bankruptcy adopting proceedings previously conducted by the bankrupt, and hence, the statutory background and considerations necessarily differ to some extent. Nonetheless, Lord Sumption’s observations at §15 are illuminating:

“Where an action in progress at the time of the trustee’s appointment is adopted by the trustee, one issue now open for reconsideration is whether there is any reason in principle why the trustee should necessarily be required, simply by virtue of his adoption of the action, to pay the other side’s cost of legal proceedings including those incurred at a time when he was not a party and the action was being conducted by the bankrupt for his own account...I think there can no longer be any absolute rule to that effect. The most that can be said is that it may be appropriate as a matter of discretion to make such an order... Equally, it will be for the court, in the exercise of its discretion to decide whether a non-party order should be made against the bankrupt himself in respect of some part of the costs incurred while he was conducting the litigation before bankruptcy supervened...”

21.  Although the above passage was strictly obiter, I respectfully agree with it. I do not see why the hands of the court should be tied in cases such as the present. Mr Chan has not been able to find any reported decision in Hong Kong binding upon me applying the principle in Boynton. In the circumstances, it is open to exercise my discretion without the strict constraints laid down by that principle.

22.  That said, given the longstanding history of the principle, it should nonetheless serve as a starting point for the Court’s consideration, and the burden would be on the party seeking to depart from it to justify such a departure. In the absence of legal representation on the part of Madam Tsang, I do not think it right to venture to lay down any definitive guide as to specific factors to be considered by the Court in the exercise of its discretion in such circumstances. I would merely note that the Court has a wide discretion in this regard and each case must turn on its own specific facts.

23.  In the present case, however, I do not find any matters to warrant a departure from Boynton.  It appears that Madam Tsang was legally advised when she adopted this action by way of the Carry On Order (see below), or at least shortly thereafter. She would (or at least should have been)  advised as to her potential personal liability for the costs both before and after the Carry On Order, and she should have obtained the necessary indemnities from TLF’s estate and its beneficiaries, or an order from the Court. Of course, any costs order against her personally in this action is without prejudice to her seeking an indemnity out of the estate if she has not done so already.

24.  For the reasons above, as to paragraph 3.1 of the Summons, I make an order that Madam Tsang do pay Madam Wong 85% of her costs of this action (without prejudice to her having an indemnity out of TLF’s estate), to be taxed on a party and party basis, if not agreed, with certificate for two counsel.

Paragraphs 3.2 and 3.3 of the Summons

25.  As mentioned above, Madam Wong seeks orders that Sky Trinity and Madam Yu be jointly and severally liable for the costs which Madam Tsang is liable to pay Madam Wong. The substantive hearing of these paragraphs of the Summons took place on 22 and 23 February and 2 March 2021. I should mention that in relation to these paragraphs, Madam Tsang elected not to participate as the orders sought by Madam Wong were directed primarily against Sky Trinity and Madam Yu.

26.  Madam Yu, on the other hand, appeared as a litigant in person and strongly opposed paragraph 3.3 of the Summons. She was also cross-examined on her evidence by Mr Mak. Joanna also attended the hearing and gave evidence on behalf of Madam Wong, although Madam Yu opted not to cross-examine her.

27.  As for Sky Trinity:

(1)  Although Madam Yu was a director and shareholder of Sky Trinity, no leave was obtained by her to represent Sky Trinity as a director pursuant to RHC Order 5 r.6(2)(b). Sky Trinity also did not file any evidence in opposition to paragraph 3.2 of the Summons.

(2)  The Court did, however, receive a letter from one William Pun Nai Kwong (“Mr Pun”)  dated 16 July 2020. In that letter, Mr Pun, who is also a director of Sky Trinity, made it clear that he had not been authorised by Sky Trinity’s board of directors to represent the company in this matter. He explained that he had a financial dispute with two other directors and shareholders of Sky Trinity, namely, one Lo Chi Chuen (“Mr Lo”)  and one Cheung Shing Tai (“Mr ST Cheung”). He also enclosed an earlier letter dated 22 June 2020 he had sent to Madam Wong’s solicitors stating that he had no personal knowledge of this action and its subject matter and that he had no knowledge that Sky Trinity had authorised Madam Yu’s involvement at the trial.

(3)  I shall therefore treat Sky Trinity as opting not to oppose paragraphs 3.2 and 3.3 of the Summons. That said, Madam Wong still has the burden of satisfying me that an order should be made against it.

Background

28.  It may be helpful to begin by recapping briefly how Sky Trinity and Madam Yu came to feature in this action:

(1)  It is not in serious dispute Madam Yu has been acquainted with Madam Tsang and TLF for many years, and in around 1992, Madam Yu became TLF’s goddaughter.

(2)  Sky Trinity was incorporated in Hong Kong on 18 March 2013. Madam Yu became a director of Sky Trinity on 30 April 2014 and shortly thereafter became a 20% shareholder of Sky Trinity (at least up to 18 March 2020, being the latest annual return in the evidence).

(3)  The other directors and shareholders of Sky Trinity are (again, up to at least 18 March 2020): Mr Pun, who has been a director since 31 October 2013 and is a 30% shareholder; Mr Lo, who has been a director since 30 April 2014 and is also a 30% shareholder; and Mr ST Cheung, who has been a director since 30 April 2014 and is a 20% shareholder.

(4)  On 5 May 2014, Madam Tsang as executrix of TLF’s estate assigned the estate’s possessory interest in the said Lots under the 1999 Judgment to Sky Trinity for a consideration of HK$2,000,000 (the “2014 Assignment”). The parties do not appear to have entered into a written sale and purchase agreement prior to the assignment.

29.  Another entity that featured briefly in the Judgment (see §52 of the Judgment)  and more prominently in this application is San Tong Lee, a company closely connected to Madam Yu:

(1)  Madam Yu was a majority shareholder of San Tong Lee until she transferred her shareholding to her daughter, Song Kai Lan Olivia, and a British Virgin Islands company known as Elite Aspect Holdings Limited, in 2011.

(2)  Madam Yu was also a director since San Tong Lee’s incorporation in Hong Kong on 30 November 2009 until she was replaced by Elite Aspect Holdings Limited in 2011. She was re-appointed a director on 25 May 2020.

(3)  Pursuant to a sale and purchase agreement dated 3 July 2010 (the “STL SPA”), San Tong Lee purchased from Madam Tsang as executrix for TLF’s estate 16 lots for a total consideration of HK$7,000,000 (the “STL Lots”). Possessory title to the STL Lots had, similar to the said Lots, been obtained by TLF by the 1999 Judgment. Madam Tsang assigned the STL Lots to San Tong Lee pursuant to an assignment dated 4 January 2011 (the “STL Assignment”).

(4)  In Clause 22 of the STL SPA, San Tong Lee acknowledged Madam Tsang’s disclosure that the STL Lots were occupied by a third party. San Tong Lee agreed to assume all liability to recover possession of the same, and Madam Tsang agreed to assist San Tong Lee “at the sole costs and expenses of [STL] to recover possession of the [STL Lots]”. On 22 June 2012, San Tong Lee commenced HCA 1081/2012 to recover possession of the STL Lots (the “STL Action”). As far as the Court is aware, there is no reported judgment on the outcome of that action.

30.  It will be recalled from the Judgment that up to a few days before the first day of trial, Madam Tsang was legally represented in this action by Messrs Ong & Chung (“O&C”):

(1)  Prior to her death, TLF defended the present action as a litigant in person. After she passed away on 23 November 2006, Madam Tsang was granted probate and appointed as executrix of TLF’s estate on 20 August 2007. She did not, however, take any steps in this action until the Carry On Order on 5 June 2015.

(2)  On 21 September 2015, Madam Tsang formally instructed O&C to act for her in this action, although she appears to have consulted them informally since November 2014.

(3)  There is no dispute that it was Madam Yu who had introduced O&C to Madam Tsang. O&C has had a longstanding relationship with Madam Yu and her associated companies, including, inter alia, acting for San Tong Lee in the STL SPA and the STL Assignment, representing Sang Tong Lee in the STL Action, acting for Sky Trinity in relation to the 2014 Assignment and handling various company secretarial and financial management matters for Sky Trinity and its shareholders.  

Applicable Principles

31.  Pursuant to Section 52A(2)  of the High Court Ordinance (Cap 4)  and RHC Order 62 r.6A, the Court has the jurisdiction to award costs against persons who are not parties to the proceedings if it is in the interests of justice to do so. See e.g. Hong Kong Civil Procedure 2022 at §§62/6A/5-6.

32.  Significantly, the courts have emphasised that an application for an order under this rule is a summary procedure and is therefore appropriate only in plain and straightforward cases (see e.g. Sun Focus (supra) at §11).

33.  In Leung Chung Ching Edwin & Anor v The Estate of Leung On Mei Amy, Deceased [2019] 1 HKLRD 109, the Court of Appeal (following Dymocks Franchise Systems (NSW)  Pty Ltd v. Todd & Ors [2004] 1 WLR 2807)  summarised at §74 the principles for making third party costs orders under this rule:

“(1)  Non-party costs orders are exceptional in the sense that they are outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question is whether in all the circumstances it is just to make the order, and it must be recognised that this is inevitably to some extent a fact-specific jurisdiction and there will often be a number of different consideration in play.

(2)  Generally speaking, the discretion will not be exercised against pure funders, meaning those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course.

(3)  Where the non-party not only funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs.

(4)   Generally speaking, where a non-party promotes and funds proceedings by an insolvent company solely or substantially for his own financial benefit, he should be liable for the costs if his claim or defence or appeal fails. This is not to say that orders will invariably be made in such cases, particularly where the non-party is himself a director or liquidator who can realistically be regarded as acting rather in the interests of the company (and more especially its shareholders and creditors)  than in his own interests.”

Discussion

34.  In respect of funding, Madam Wong’s case is that Madam Tsang’s costs of instructing O&C to represent her in this action up to the trial must have been funded in whole or in part by Sky Trinity and/or Madam Yu.

35.  This was firmly denied by Madam Yu. Madam Yu contended, rather, that Madam Tsang would have been able to utilise the HK$2,000,000 in sale proceeds of the said Lots to instruct O&C to defend the action. This sum of HK$2,000,000 was of course money belonging to Madam Tsang and TLF’s estate even if it had originated from Sky Trinity. If Madam Yu is correct, then it cannot be said that Madam Tsang’s defence was “funded” in the true sense by Sky Trinity (or Madam Yu). Madam Wong therefore needs to show that O&C’s costs were somehow financed by Sky Trinity and/or Madam Yu above and beyond the HK$2,000,000.

36.  Mr Mak seeks to cast doubt upon Madam Yu’s assertion that the source of funding was from the sale proceeds of the said Lots. In particular, he submitted that, inter alia:

(1)  It was inherently improbable that Madam Tsang would be motivated to use the purchase money received from Sky Trinity for the said Lots to pay for legal fees to litigate this action, which concerned rights in relation to the said Lots that she had already assigned to Sky Trinity on 5 May 2014. From that point onwards, Madam Tsang no longer had any interest in the said Lots, and the outcome of this action had no bearing on her position.

(2)  On the other hand, Sky Trinity and Madam Yu had a “direct personal financial interest” in the outcome of the action. Indeed, Madam Yu accepted that Sky Trinity purchased the said Lots from Madam Tsang with knowledge of this action and the underlying dispute with Madam Wong.

(3)  As evidenced by Clause 22 of the STL SPA, Madam Tsang was unwilling to be liable for any costs and expenses in relation to the recovery of possession of the STL Lots she had sold to San Tong Lee. Although no sale and purchase agreement appears to have been entered into between Madam Tsang and Sky Trinity for the said Lots, there was no reason why Madam Tsang would have treated the said Lots any differently from the STL Lots.

(4)  As Madam Tsang had received HK$7,000,000 from San Tong Lee following the STL 2011 Assignment, she would have had sufficient funds to consult or engage solicitors to represent her in this action by that time. However, she did not do so and only started consulting O&C nearly 4 years later in November 2014, 6 months after she assigned the said Lots to Sky Trinity on 5 May 2014.

37.  Mr Mak therefore invited the Court to infer on a balance of probabilities that O&C’s costs must have been funded by Sky Trinity and/or Madam Yu.

38.  Further, Mr Mak relied upon, inter alia, the following matters to contend that Madam Yu and/or Sky Trinity must have exerted significant control over Madam Tsang’s defence of the action:

(1)  As I had explained in §39 of the Judgment, there was “a substantial and irreconcilable shift in the case advanced in TLF’s Original Defence and [that] now advanced by Madam Tsang”. Mr Mak notes that the new case advanced by Madam Tsang in this action was in numerous respects similar to that advanced by San Tong Lee in the STL Action, including in particular the contention that TLF had leased the said Lots to Cheung Hei. The statement of truth in San Tong Lee’s pleadings in the STL Action was signed by Madam Yu.

(2)  As mentioned above, Madam Tsang did not take any steps in this action for a number of years after she was granted probate for TLF’s estate in August 2007. She only obtained the Carry On Order on 5 June 2015, about a year after the 2014 Assignment.

(3)  Madam Tsang’s decision to instruct O&C, with its longstanding connection to Madam Yu and Sky Trinity, to represent her in the action was curious, given TLF and Madam Tsang’s relationship with Messrs Wong Hui (“WH”), another firm of solicitors. WH assisted and represented TLF to obtain the 1999 Judgment, and a solicitor from WH interpreted the contents of the STL SPA and the STL Assignment to Madam Tsang and witnessed her signature.

(4)  The decision to engage Mr Leung as her expert witness at the trial (see §59 of the Judgment)  also suggests possible influence or control by Madam Yu. Mr Leung was previously acquainted with Madam Yu as she had engaged him to prepare a surveyor’s report in respect of the said Lots prior to Sky Trinity’s purchase of the same in 2014.

(5)  Madam Yu was present at the mediation session of this action, and she admitted to liaising with O&C’s paralegal in relation to the mediation. Further, it was Madam Yu that collected the Judgment from the Court. She also admitted to consulting legal advisers and various other individuals on the meaning and effect of the Judgment.

(6)  Finally, Madam Yu’s conduct during the trial of the action, which I had noted in §96(4)  of the Judgment, including repeated attempts to give instructions to Madam Tsang on lines of questioning whilst Madam Tsang was conducting her cross-examination, interrupting witnesses when they were giving evidence and attempting to volunteer answers for Madam Tsang during her cross-examination, suggested control by Madam Yu.

39.  Despite Mr Mak’s persuasive submissions, I am not satisfied that this is a sufficiently plain and straightforward case to make the orders he seeks in the context of the summary procedure in RHC Order 62 r.6A.

40.  First of all, there is no direct evidence before the Court that O&C’s costs were paid by Sky Trinity or Madam Yu. Similarly, there is no direct evidence that Madam Wong or anyone else at Sky Trinity gave any or any significant directions to O&C on the conduct of Madam Tsang’s defence in the action. As I pointed out to Mr Mak in the course of his submissions, such evidence must, presumably, be available from O&C. However, no attempt has been made by Madam Wong to obtain such evidence, whether from Madam Tsang or by way of third-party discovery against O&C.

41.  Whilst I accept that Sky Trinity (and indirectly, Madam Yu)  had a financial interest in the outcome of the action after the 2014 Assignment, it is far from plain and straightforward that Sky Trinity and/or Madam Yu must therefore have funded the defence of the action:

(1)  In contrast to the position in respect of the STL SPA, there is no evidence of any agreement between Sky Trinity and Madam Tsang that Sky Trinity would assume the costs of recovering possession of the said Lots from Madam Wong. The situation between the STL Lots and the said Lots was different in that there was already ongoing litigation in respect of the latter.

(2)  It is at least possible that Madam Tsang’s continued defence of the action may have been reflected in the HK$2,000,000 purchase price. After all, Madam Tsang’s interest in the said Lots would have been completely worthless in the event that her defence to the action failed, which it did.

(3)  Moreover, Madam Wong does not seriously challenge the fact that Madam Yu had a close personal relationship with TLF and Madam Tsang, and therefore, Madam Tsang may have had personal reasons to ensure that she had passed a good possessory title to Sky Trinity. Although I ultimately rejected Madam Tsang’s defence in the action, my impression of her evidence was that she held a genuine belief (even if misguided)  that the said Lots properly belonged to TLF and her family.

42.  As to control by Sky Trinity or Madam Yu of Madam Tsang’s conduct of the action, again, I am not prepared to draw the inferences sought by Mr Mak in these summary proceedings:

(1)  The fact that Madam Tsang’s defence in this action bears similarities to San Tong Lee’s case in the STL Action does not necessarily mean that Madam Yu was the one who was exercising control in both actions. Rather, San Tong Lee’s stance in the STL Action may have been based on the knowledge and understanding of Madam Tsang.

(2)  Madam Tsang’s choice of O&C as solicitors in this action also does not mean that Madam Yu or Sky Trinity exerted control of the action through O&C. There may have been a number of reasons why Madam Tsang engaged O&C rather than WH to represent her in this action. This is especially so given that WH was responsible for obtaining the 1999 Judgment for TLF, which was one of the issues in dispute. Indeed, one can foresee potential conflicts of interest on the part of WH in acting for Madam Tsang in this action.

(3)  Given Madam Yu’s close relationship with TLF and Madam Tsang, it would not have been unusual or surprising for Madam Tsang to engage a firm of solicitors with which Madam Yu was familiar.

(4)  Similarly, Madam Tsang’s decision to choose Mr Leung as her expert witness does not necessarily point to Madam Yu or Sky Trinity having control of the action. Given that Mr Leung already had some familiarity with the said Lots due to his preparation of a survey report for Sky Trinity, it would not have been unreasonable for Madam Tsang to engage him.

(5)  Finally, Madam Yu’s interest in the Judgment is understandable given Sky Trinity’s interest in the outcome of this action. However, it does not follow that either she or Sky Trinity exerted any control over its conduct.

43.  I do not doubt that Madam Yu provided assistance to Madam Tsang in this action, including during the mediation process and at the trial, or that such assistance was rendered not only because of their personal relationship but also that Madam Yu, through Sky Trinity, had a personal financial interest in its outcome. However, providing assistance is not the same as exerting control. As mentioned above, there is no evidence before the Court of actual control or funding by Madam Yu or Sky Trinity.

44.  Whilst Madam Yu had undoubtedly overstepped her role as Madam Tsang’s McKenzie friend at the trial, I do not believe that her conduct, whether by itself or taken together with the other circumstantial evidence relied upon by Mr Mak, is sufficient to evidence any or any sufficient control by Madam Yu (or Sky Trinity)  over Madam Tsang’s conduct of the action such as to warrant a third-party costs order.

45.  I should mention here that Mr Mak invited the Court to draw adverse inferences against Madam Yu and Sky Trinity for failing to call Madam Tsang or the handling solicitors from O&C as witnesses in this application, or for failing to adduce as evidence “…bills as to the work done by O&C… to show what was or was not done for Sky Trinity, Madam Yu and/or the other shareholders of Sky Trinity.” I respectfully disagree.

46.  First, the burden is firmly on Madam Wong to satisfy the Court in this summary procedure that Madam Yu or Sky Trinity funded or exerted control in the conduct of the action, as alleged by her – it is not for Madam Yu or Sky Trinity to satisfy the Court that they had not done so. The fact that Madam Yu or Sky Trinity had a relationship with O&C or that they had an interest in the outcome of the action is insufficient to shift the evidentiary burden on Madam Yu or Sky Trinity to disprove Madam Wong’s allegations. I also bear in mind here that Madam Yu is a litigant in person.

47.  Moreover, O&C were solicitors on the record acting for Madam Tsang. There is nothing to suggest that Madam Yu or Sky Trinity is entitled to any documents relating to Madam Tsang’s retainer with O&C. There is also nothing to suggest that the handling solicitors at O&C would have been willing to give evidence on behalf of Sky Trinity or Madam Yu on this issue. Madam Yu also cannot compel Madam Tsang to give evidence or to provide such documents to her without an order of the Court.

48.  For the reasons above, I decline to exercise my discretion to make a third-party costs order against either Madam Yu or Sky Trinity under the summary procedure in RHC Order 62 r.6A. It follows that paragraphs 3.2 and 3.3 of the Summons are dismissed. For the avoidance of doubt, my decision here is without prejudice to any separate proceedings that Madam Wong may wish to bring against Madam Yu or Sky Trinity on the subject matter.

Costs

49.  As to the costs of paragraph 3.1 of the Summons, I note that Madam Tsang, who was a litigant in person, adopted a relatively neutral position to the application. In the circumstances, I make an order nisi that there be no orders as to costs of that paragraph.

50.  As to the costs of paragraphs 3.2 and 3.3, while costs should normally follow the event, I again make an order nisi that there be no orders as to costs of the application.

51.  As mentioned above, Sky Trinity did not participate in the application, and Madam Yu acted as a litigant in person.

52.  More importantly, however, the Court must again record its disapproval in the strongest terms of Madam Yu’s rude and disruptive conduct throughout the hearing of the application. On numerous occasions during the hearing, she shouted personal insults and expletives at Madam Wong and her legal representatives, which were wholly unwarranted and unjustified. This was plainly unacceptable, and I issued repeated warnings to Madam Yu on her behaviour. Regrettably, such warnings were not heeded and nearly resulted in an order for her to be forcibly removed from the courtroom. I should also express my gratitude to Mr Mak for his patience and fortitude in the face of such behaviour from Madam Yu.

Mr Andrew Mak and Mr Albert Chan, instructed by Chung & Kwan, for the plaintiff

The 1^st defendant appeared in person (being present on 22-23 February 2021 only)

The 1^st respondent (for costs)  appeared in person

The 2^nd respondent (for costs)  was not represented and did not appear

HCA 939/2005

[2020] HKCFI 1153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 939 OF 2005

________________________

________________________

______________

JUDGMENT

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I. Introduction and Background

1.  The dispute in this action, which was commenced back in 2005, concerns two connecting parcels of rural land, or more particularly, the whole of Lot No 1976 and a portion of Lot No 1978 in Demarcation District (DD) No 116 (the “said Lots”), situated near Chuk San Tsuen (竹新村), Yuen Long.  A map of the area with the said Lots coloured yellow (Lot 1976) and green (portion of Lot 1978) is set out in Annex 1 of this Judgment (“Map 1”).

2.  In 1935, two brothers, the late Tsang Hoi Fan and the late Tsang Hon Kam (respectively, “THF” and “THK”, and together, the “Tsang Brothers”), acquired the said Lots together with numerous other lots in the vicinity in DD No 116.  As at the date of the trial, the said Lots remain registered in the names of THF and THK.  Although the estates of THF and THK were joined as 3^rd and 4^th defendants respectively in the action on 19 May 2006, the plaintiff (“Madam Wong”) subsequently discontinued the action against them on 9 April 2015.

3.  Madam Tang Lan Fong (“TLF”), originally the 1^st Defendant, was the wife of the late Tsang Chun Wai (曾晋渭) (“TCW”), one of THK’s sons and an adopted son of THF.  TLF died on 23 November 2006.  Her estate has since been represented in this action by her daughter, Madam Tsang Hau Ling (“Madam Tsang”).  Although Madam Tsang, in her capacity as executrix of her mother’s estate, had been legally represented by Messrs Ong & Chung, a few days before the trial, her solicitors ceased to act, and she appeared as a litigant in person.  This has resulted in a slight prolongation of the trial, primarily due to short adjournments being given to Madam Tsang to have witness statements (including her own) in English interpreted to her by the court interpreter. Mr Andrew Mak[1], counsel for Madam Wong, submits that this is a matter which should be reflected in costs.  I shall come back to this at the end of this Judgment.

4.  TLF’s connection to the said Lots arose in the following way.  On 28 October 1999, Master Barnes entered judgment in HCA 10749/1999, which was an action commenced by TLF against TCW, the latter having been appointed to represent the respective estates of the Tsang Brothers (the “1999 Judgment”).  The 1999 Judgment provided that:

(1)     A declaration be granted that the rights of the Tsang Brothers to recover all those pieces or parcels of ground situate lying and being at Yeung Uk Tsuen, Yuen Long, New Territories, Hong Kong, known as Lot Nos 1314, 1316, 1317, 1318, 1841, 1842, 1843, 1844, 1845, 1846, 1847, 1848, 1849, 1850, 1857, 1858, 1865, 1970, 1972, 1976 and 1978 (collectively, the “1999 Judgment Lots”) all in DD No 116 have become statute barred and the title of the Tsang Brothers thereto has been extinguished by virtue of Section 7(2) and Section 17 respectively of the Limitation Ordinance (Cap 347);

(2)     A declaration be granted that TLF has acquired a possessory title to the 1999 Judgment Lots for the residue of the terms of years expiring on 30 June 2047;

(3)     Costs of the action to be taxed if not agreed.

5.  On 29 March 2000, the 1999 Judgment was registered with the Land Registry as incumbrances to the 1999 Judgment Lots, which included the said Lots.

6.  By an assignment dated 1 February 2002 and registered with the Land Registry on 26 February 2002, TLF as vendor assigned to the 2^nd Defendant (“Mr Tang”) as purchaser her possessory title to 5 of the 1999 Judgment Lots, namely, the said Lots and 3 other lots in the vicinity (namely, Lot Nos 1865, 1970, 1972) (collectively, the “Five Lots”) for a stated consideration of HK$1,856,200.00 (the “2002 Assignment”).

7.  On 23 May 2005, Madam Wong commenced the present action against the TLF and Mr Tang, seeking inter alia declaratory and injunctive reliefs on the grounds that she, and not TLF, was and had at all material times been the true possessor of the said Lots.

8.  On 13 July 2009, Madam Wong became incapacitated by an acute stroke.  By a carry-on order of Master K H Hui dated 15 June 2015, the present action has been carried on by her daughter, Wong Joanna Ying Mei (“Joanna”), as her next friend.

II     The Plaintiff’s Claims

9.  As pleaded in her Re-Amended Statement of Claim (“RASOC”) dated 17 December 2015, Madam Wong’s case may be summarised as follows:

Claims for Declaratory Relief

(1)     Since around 1967, and in any event for not less than 20 years prior to the commencement of this action, Madam Wong had undisturbed possession of a number of lots near Chuk San Tsuen, Yuen Long, New Territories (the “Possessed Land”)[2], which included the said Lots, to the exclusion of TLF, Mr Tang and the registered owner or owners, and had exercised acts of ownership over such land using the same for farming and by erection of fencing and support structures as part of such use;

(2)     Madam Wong had no knowledge of the 1999 Action and the 1999 Judgment was never served on or sent to Madam Wong or posted up on the said Lots;

(3)     The 1999 Judgment was obtained or procured by TLF falsely representing to the Court, inter alia, that TLF had been in exclusive possession of the said Lots adverse to the Tsang Brothers for more than 20 years, when in fact it was Madam Wong who was in possession of the said Lots.  In fact, TLF admitted as much in her original defence in this action dated 12 September 2005 (“TLF’s Original Defence”) before she died.  Accordingly, the 1999 Judgment, insofar as it relates to the said Lots, “is liable and ought to be set aside.”

(4)     Madam Wong had at all times prior to the 2002 Assignment and still has “a better title and right to possession” of the said Lots than TLF.  Further, as the purported title (if any) of Mr Tang to the said Lots was derived from TLF by the 2002 Assignment, Mr Tang’s title, if any, was no better than that of TLF.  Accordingly, Madam Wong also had a better title to and right to possession of the said Lots than Mr Tang.

(5)     Hence, Madam Wong sought a declaration in the RASOC (subsequently amended in the course of the trial – see paragraph 32 below) that:

(a)     As between her on the one hand and TLF and Mr Tang on the other, she has a better title to and right to possession of the said Lots; and

(b)     She has acquired a possessory title to the said Lots for the residue of the terms of years expiring on 30 June 2047 by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347).

Claims for Injunctive Relief

(6)     On a number of occasions between late 2004 and mid 2005, TLF and Mr Tang or their agents and/or representatives, molested, harassed, caused nuisance and/or annoyance, intimidated and/or interfered with Madam Wong with a view of coercing her to give up possession of the said Lots and/or otherwise acknowledge Mr Tang’s alleged title and right to possession of the said Lots:

(a)     In or around late 2004, TLF, together with her son and her daughter, and a villager of Chuk San Tsuen entered the Possessed Land without Madam Wong’s permission or consent.  They loitered in the Possessed Land for a short while and then left (the “Late 2004 Incident”);

(b)     In “around early 2005” (which Madam Wong specified in her witness statement to be 1 February 2005 – see below), TLF and two men, who identified themselves as her son and nephew, entered into the Possessed Land without Madam Wong’s permission or consent and approached Madam Wong at Madam Wong’s house at Lot Nos 1961 and 1962.  TLF claimed to be the owner of the said Lots and demanded Madam Wong to acknowledge the same by entering into a tenancy agreement with her at a nominal annual rent of HK$10 per year.  Madam Wong rejected the demand (the “February 1 Encounter”);

(c)     Thereafter, TLF continued to contact Madam Wong on numerous occasions by telephone regarding the said Lots, notwithstanding repeated refusals by Madam Wong to discuss such questions with TLF (the “Telephone Call Incidents”);

(d)     In the morning of 20 May 2005, two men, without the consent or permission of Madam Wong, entered the Possessed Land, entered the footpath leading to Madam Wong’s house and loitered at around the gate outside Madam Wong’s house at Lot Nos 1961 and 1962.  One of them identified himself as Mr Lee.  They indicated that they wanted to look at the said Lots, but Madam Wong refused.  Mr Lee then indicated that they wanted to enter Madam Wong’s house and discuss with her about the said Lots, but Madam Wong again refused.  Mr Lee then wrote on a piece of paper his mobile telephone number and the land that he was interested in, namely, Lot Nos 1970, 1972, 1976 and 1978, and gave it to Madam Wong, asking Madam Wong to contact him to discuss such lots.  They then left (the “May 20^th 1^st Incident”);

(e)     Shortly after the two men left and still in the morning of 20 May 2005, a gang of 6 persons, some with their hair dyed blond, entered the Possessed Land without the consent or permission of Madam Wong, and was found loitering and discussing amongst themselves about the said Lots outside the 1^st Gate at Lot No 2001.  The Plaintiff was then down on her knees weeding the field nearby and was not noticed by the 6 young persons.  Madam Wong heard one of the men say in Cantonese, “大不了收唔到，一把火燒曬佢!” [“No big deal if cannot repossess.  Just burn the whole place down!”] (the “May 20^th 2^nd Incident”);

(f)     In the afternoon of 20 May 2005, one man and one woman entered in the Possessed Land without Madam Wong’s consent or permission.  Madam Wong recognised the woman’s voice as that of TLF’s daughter (the “May 20^th 3^rd Incident”).

     (collectively, the “Alleged Incidents”)

10.  Further, by reason of the matters above, TLF and Mr Tang have by themselves, their agents and/or representatives, without Madam Wong’s licence or consent, wrongfully entered the Possessed Land and are therefore liable to Madam Wong for trespass.

III     TheInterim Injunction Orders

11.  On 21 May 2005, two days prior to the issue of the Writ, Madam Wong made an ex parte application before Tong J, and was granted an interim injunction restraining each of TLF and Mr Tang, whether by themselves or their representatives, from “assaulting, intimidating, threatening and/or engaging in other conduct which would reasonably cause [Madam Wong] to be concerned about her personal safety and well-being” (the “ex parte Injunction Order”).

12.  On the return date of the ex parte Injunction Order on 27 May 2005, Johnson Lam J (as he then was) accepted an undertaking of TLF in lieu of injunction and, after a contested hearing, continued the injunction against Mr Tang, save that the wording was revised such that it was confined to “assaulting, intimidating, threatening or harassing [Madam Wong]”.

IV     TLF’s Original Defence

13.  In September 2005, some 4 months after the commencement of the action and 14 months prior to her death, TLF filed two documents in Chinese.  The typewritten documents, entitled, “第一被告人抗辯詞” and “第一被告人第二次抗辯詞” (collectively, “TLF’s Original Defence”) were both signed by TLF.  TLF was unrepresented at the time, although the documents were coherently drafted and appear to have been prepared with the assistance of someone with at least some legal knowledge.

14.  Some 10 years after TLF’s death, Madam Tsang as the executrix of her estate, filed an Amended Defence and Counterclaim on 24 August 2016 (“AD&CC”), which was then re-amended on 2 August 2017 (the “RAD&CC”).  The AD&CC was filed pursuant to leave granted by G Lam J on 18 August 2016, who at the same time dismissed Madam Tsang’s application to strike out the action for want of prosecution (the “Striking Out Application”). The AD&CC deleted and substituted TLF’s Original Defence in its entirety.  Both the AD&CC and RAD&CC were settled by counsel with a statement of truth signed by Madam Tsang.

15.  As TLF was originally the 1^st defendant and had first-hand knowledge of at least some of the matters complained of in this action, it is important to set out in detail her position as stated in her original defence.  I bear in mind, of course, that she may not have had the benefit of proper legal advice at the time, although as mentioned above, the document is coherent and her position reasonably articulated.  Whilst it is contended in the RAD&CC that TLF’s Original Defence should be given no or little weight because, “the whole circumstances giving rise [as to] how [TLF’s Original Defence] was prepared and finalised still remains obscure”, it is not suggested that the signatures appended to the document were not those of TLF or that the documents were not drafted in accordance with her instructions.

16.  In the circumstances, I set out excerpts from TLF’s Original Defence, using her original words.

17.  In the preamble of TLF’s Original Defence, she stated that, inter alia:

「本人現年74歲，於18歲嫁給曾晋渭，22歲開始在銅鑼灣賣魚，28歲後在九龍賣菜數年，再遷往荃灣居住和賣菜至70… 數十年來，本人極少回元朗，對曾爺爺田地的管理和出租事宜是由我丈夫晋渭及其弟忠良負其全責，如果遇有較大的問題，才由我本人或請律師幫助解決。」

[English translation: I am currently 74 years old. Having married Tsang Chun Wai at the age of 18, I started selling fish in Causeway Bay at 22. After turning 28, I sold vegetables in Kowloon for several years before relocating to Tsuen Wan where I lived and sold vegetables until I was 70… Throughout the decades, I hardly ever returned to Yuen Long. My husband Chun Wai and his younger brother Chung Leung were fully responsible for the management and lease matters of Grandpa Tsang’s farmlands. It was only when bigger problems were encountered that I myself would or lawyers would be hired to assist in solving them.]

18.  In “Section 1”, she described Madam Wong’s expansion of her farming activities since 1967 and her exchanges with Madam Wong during the February 1 Encounter:

「莊女士 [Madam Wong’s maiden name] 於1967年從上水遷到元朗,其農塲生涯的發展是從無到有,至今發展至25個地段 (見莊氏誓章),把一幅一幅的水田從種稙稻谷的環境中改造過來,其成功的要素無疑是勤勞老實、與人為善。如果沒有很好的人際關係,在陌生的地主和農民的村中立足, 談何容易,更遑論發展?

我初識的莊女士，果然是個一見如故的善人。2005年2月1日我和我兒曾國業聘請測量師鄧先生一起去116約1978號等地段了解地界情況。行到地邊，巧遇莊女士出來，她問明情況後，客氣地叫我們到她家裡閒話家常，無所不談…

她帶我們去看園內土地，毫無顧慮地坦言：有個村民叫林保的把這兩块地 (1976、1978號) 轉租給她，她又問我「有沒有納粮」。她那時并沒有說早在1967年已經佔用這兩地段，也沒有說她已決定做『霸地行動』。所以我就說，這兩地段你可以長期一直用下去，但希望每年交十元租金給我。她的回答是：我已不想再搞種植了，因為附近的養猪塲有大量肥水留到田裡，連荔枝樹都肥死了，而且我快去美國與夫同住…」

[English translation: Ms Chong [Madam Wong’s maiden name] relocated to Yuen Long from Sheung Shui in 1967. Her farm life developed from nothing to having 25 lots at present (see Chong’s affirmation), with the rice-growing paddy fields being transformed piece by piece. Diligence, honesty and willingness to help were undeniably key elements to her success. If not for good interpersonal relationships, it would have been easier said than done for her to find her feet in a village with unfamiliar landowners and farmers, let alone develop.

When I first came to know Ms Chong, she was indeed a kind person and we hit it off right away. On 1 February 2005, my son Tsang Kwok Yip and I, together with a Mr Tang, a surveyor we hired, proceeded to Lot 1978 in DD 116 to gain an understanding of the boundary situation. When we got to the edge of the land, Ms Chong happened to come out. Having enquired what it was about, she courteously invited us to her home for a casual chat, and we talked about everything …

She took us to see the land on the farm and said frankly without hesitation that a villager called Lam Bo had transferred the lease of the two lots of land (Nos 1976, 1978) to her.  She also asked me, “Any payment of grain tax?” She did not say at that time that as early as 1967, she had already occupied the two lots for her use.  Nor did she say she had decided to carry out an “unlawful occupation of land operation”.  Therefore, I said, (“) You can keep using these two lots on a long-term basis, but I hope an annual rent of 10 dollars will be paid to me.(“)  Her reply was, (“)I no longer want to do cultivation because large amounts of nutrient-rich water flowed to the fields from the pig farms nearby, so nutrient-rich that even the lychee trees have died.  What’s more, I will soon be moving to the United States to stay with my husband…”]

19.  In “Section 2”, she said that it was difficult and unlikely for anyone to possess land adversely in the 1960s due to the value of farmland at the time and the lack of knowledge of the concept of adverse possession:

「所謂1967年開始『霸佔』或『佔用』上述兩地段，是《天方夜談》式的隹作，她在05年2月1日才毫無拘束地主動說過是從林保手上租得的！人們都知道在六十年代的元朗，水田仍是原居民業主和農民的金飯碗、鐵飯碗，莊女士也種過水稻。那時農民文化低，不懂法律，更不知道有所謂『霸地』的天恩，如果早知道，農村械鬥必多，政府的可耕地早被霸光了。外來農民初到貴境，有胆量去霸地主的田地？…莊氏本來做人正直，而率直的她，有自知之明，故首先就主動問我「有沒有納粮」？而且作出中規中矩的回應。希望她還是回復生平做人的率直心態為好。這兩段地，我願聽從測量師的勸告，租給她25年，每年只收租金拾元，期滿可照舊續租。」

[English translation: The claim that beginning in 1967 the two lots were “unlawfully occupied” or “occupied for use” is a masterpiece in the style of The Arabian Nights. It was on 1 February 2005 that on her own initiative, she said without any inhibition that they were leased from Lam Bo! Everyone knows that in the sixties in Yuen Long, paddy fields were still the “gold rice bowl” or “iron rice bowl” for indigenous landowners and farmers. Ms Chong had also cultivated rice paddies. At that time, farmers were poorly educated and ignorant of the law. They even had no idea of the heavenly grace of the so-called “unlawful occupation of land”. Had they known about it early, there would certainly have been many instances of armed fighting in villages, and arable lands belonging to the government would all have been unlawfully occupied. Would a farmer newly arriving as an outsider dare to unlawfully occupy the landowner’s land? … Chong was originally a person of integrity, and out of her frankness and self-knowledge, she took the initiative to ask me, “Any payment of grain tax?” And the replies made were within bounds. It would be desirable for her to hopefully revive the frank attitude with which she has lived her life. On the advice of the surveyor, I was willing to lease the two lots to her at an annual rent of only 10 dollars for 25 years to be renewable upon expiry.”]

20.  In “Section 3”, she explained how the Tsang Brothers acquired, inter alia, the said Lots and how she and her brother-in-law, Tsang Chung Leung (曾忠良), were entrusted by THK in 1964 to recover the Tsang Brothers’ land:

「曾漢金兄弟跟從祖輩定居元朗楊屋村，是原居民，也是從印尼回鄉的歸僑，我是曾公第二兒媳婦。曾公於1943年買得一批物業，并獲准在其中的三個地段建造萬呎屋宇。屋建成後，他就重往印尼，繼續創業，生意越做越大，在當地置業不少。

1964年3月18日，他寄信給元朗理民府，授權由他的幼子曾忠良和我『二人共同處理收回業權，澄清一切非法手續』

那時確是有人已經做出損害曾家物業的『非法手續』，幸好由我和忠良及時處理而徹底解決。……不久我們曾家管業事務回復正常，我不負家公的在其授權書裡的『飭囑』。」

[English translation: Tsang Hon Kam and his brother settled down in Yeung Uk Tsuen, Yuen Long with their grandparents. They were indigenous villagers as well as overseas Chinese returning from Indonesia. I am the wife of Grandpa Tsang’s second son. Grandpa Tsang purchased a batch of properties in 1943 and was given approval to construct buildings with an area of 10000 square feet on three of the lots. After the completion of the construction, he returned to Indonesia where he continued to build up his business, which grew bigger and bigger. He purchased a substantial number of properties there.

On 18 March 1964, he sent a letter to District Office, Yuen Long authorising his youngest son Chung Leung and me “both to jointly handle the recovery of title and sort out all unlawful procedures”.

By that time, someone had indeed already carried out “unlawful procedures” to the detriment of the Tsang family’s properties.  Fortunately, having been dealt with by Chung Leung and me in time, they were thoroughly resolved. …Not long afterwards, matters relating to the management of the Tsang family’s properties returned to normal.  I had lived up to my father-in-law’s “entrustment” in his letter of authorisation.]

21.  In “Section 4”, she explained the difficulties and delays she encountered recovering or inheriting the Tsang Brothers’ land, and how, on the advice of solicitors, Messrs Wong Hui, a claim of adverse possession was ultimately used as an expedient device:

「在五、六十年代的一段長時問裡，印尼排華，我家公在授權給我後不久就遭遇不幸，其他親人死的死，失踪的失踪了。我曾經幾次去印尼找尋他們，最後無功而回，最可惜連忠良也都失踪了。

黃許律師行幫我搞繼承手續，白費了三十年的功夫…我的身世和努力感動了他，我已不知欠下他多少律師費，但他一直勸我不用掛心。

我患過肺病，割過肺，我夫曾晋渭和我都有多種老病纏身，已到了最後的階段，再加上親人都找不到了，故不能不用僅餘的生命和『霸地』辦法求神賜幸福，把遺產接過來，不然的話，曾公最後剩下的三個孫兒也許會失去勤勞一生的祖父的餘蔭……上天果然保佑：在『霸地』成功後，晋渭才蒙主寵召。這是在特定條件下的、用非常手續取得的、事實上的繼承，是正當的權宜之計，是繼承和霸地二者在特殊情況下的矛盾統一，而且完全符合家公的『飭囑』精神和他為子孫創業的本意。這是合理、合法、無可非議的。這才是『霸地』的最高精神境界和法治的正義所在。本人受權維護曾公物業，『收回業權』，無須先經別人同意，高院判准即是合法。

要順便交代清楚的，是曾晋渭在『霸地』活動中的角色。我家公原有四個男孩子，前面已說過，只剩晋渭一人在世，但他那時已臨近長期入院治療的時候，所以他只有出庭表示没有爭議就完了。」

[English translation: For a prolonged period in the fifties and sixties, there was an anti-Chinese movement in Indonesia. My father-in-law died from misadventure shortly after giving me the authorisation. Other relatives either died or went missing. I went to Indonesia on several occasions to look for them but in vain. Most unfortunately, even Chung Leung had gone missing.

Wong, Hui & Co assisted me with the inheritance procedures. Thirty years of effort were wasted… He was touched by the story of my life and my effort. I had already lost track how much I owed him in legal fees, but he kept advising me not to worry.

I had lung disease and had undergone pneumonectomy. My husband Tsang Chun Wai and I both suffered from multiple chronic diseases at their terminal stages. This, together with the fact that relatives were nowhere to be found, left me with no other alternatives but to resort to “unlawful occupation of land” in the remainder of my life to pray for God’s blessings for the success of the inheritance. Otherwise, Grandpa Tsang’s three remaining grandchildren would stand to lose the protection their grandpa had put in place for his descendants by a lifetime of hard work… I was indeed blessed with heavenly grace. It was only after the “unlawful occupation of land” succeeded that Chun Wai was recalled by the Lord. This was a de facto inheritance obtained through extraordinary procedures under specific conditions. It was a measure of legitimate expediency, a contradictory unification of inheritance and unlawful occupation of land under specific conditions, which was fully consistent with the spirit of my father-in-law’s “entrustment” and his original intention of building up his business for his children and grandchildren. It was reasonable, lawful and beyond criticism. This and this alone is the ultimate spirit of “unlawful occupation of land” and where justice lies in the rule of law. I was authorised to safeguard Grandpa Tsang’s properties. No prior consent needed to be obtained from anyone to “recover the title”. It was lawful given the approval from the High Court.

In passing, Tsang Chun Wai’s role in the “unlawful occupation of land” operation needs to be clarified.  My father-in-law originally had four boys.  As stated in the foregoing, Chun Wai was the only surviving son.  However, at that time, he was already about to be hospitalised for long-term treatment.  As such, he only attended court where he indicated he did not challenge anything and that was the end of it.]

22.  In “Section 5”, she explained the reasons the circumstances in which the said Lots were assigned to Mr Tang:

「我兒國業為了盡最後的努力，籌款辦理繼承曾公遺產，特以其樓契 (香港鰂魚涌康生花園某樓) 作押、於1997年12月開始向被告II借款，至01年10月共借款三次。債主從不哼聲叫我們還債，怕的是我夫和兒孫無家可歸。所以等到『霸地』成功，債主 (被告II) 同意我們以地折價清債，而且不要我們的屋地或連成一片的大幅地，只要那各自分散的五小塊。當時雙方只看舊約份地圖、而沒去實地察看，更不知道有YOHO TOWN的計劃。上述事實証明，他相信親人，以親情為重，為親情着想。借款期過了又再過了；借款額加了又再加了…」

[English translation: In order to raise funds for the application for inheriting the estate of Grandpa Tsang, my son Kwok Yip made a last-ditch effort by using his title deed of [the Kornhill Flat] as security to borrow money from [Mr Tang]. Up to October (20)01, money had been borrowed for three times. The creditor has never asked us to repay the debt as he was afraid that my husband and our son(s) as well as our grandchild/children would have no place to live. Therefore, after “unlawful occupation of land” became successful, the creditor [Mr Tang] agreed that we could pay off the debt by land in lieu of money. He did not want land for building or a big piece of land, but only those five small dispersed pieces of land. At that time, both parties only looked at the old demarcation district sheet without any site inspection and had no idea at all about the plan of YOHO TOWN. The above facts prove that he trusted his relatives and he thought kinship was the most important. The repayment deadline has been extended again and again; the amount of loan has been increased again and again…”]

23.  In “Section 6”, she denied Madam Wong’s allegations of harassment and intimation, and in “Section 7”, she concluded:

「据上詳述的陸大情節和所附的18頁証据，可析出三大結論如下：

(一) 鄧蘭芳有權以任何合法手段處理和承受曾漢金、曾凱凡的土地和房產 (曾晋渭是曾凱凡的過繼子)。

(二) 黃莊女士直至05年2月1日從無霸佔蘭芳土地的意圖。

(三)    所謂『逐步升級』的『恐嚇』事件，是捕風捉影、無中生有的捏造和鋪謀，『終兇』之象也。」

[English translation: “Based on the abovementioned six circumstances and the attached evidence consisting of 18 pages, three conclusions can be drawn and they are as follows:

(1) [I was] entitled to, by any legitimate means, deal with and inherit the land and premises of Tsang Hon Kam and Tsang Hoi Fan [Tsang Chun Wai is the adopted son of Tsang Hoi Fan].

(2) Madam Wong, up to 1 February 05, never had any intent to unlawfully occupy the land of Lan Fong.

(3)     The so-called “gradually elevated” “threatening” incidents are groundless accusations, fabrications and conspiracies, implying an unpleasant (homonym) ending (to all parties).]

She also decided to revoke the sale of the said Lots to Mr Tang, and that she would bear full and sole responsibility for defending this action:

「最後請允許我說明：原屬於我的第1970、1972兩地段，最近測量師告知：都被他人佔用了部分，第1865號地段還沒去查查看看。因此我現在鄭重決定：我『出售』給第二被告人的五個地段全都收回，(他已同意，註冊手續即將跟進) 有關這五個地段的指控，完全由我本人應訊和負責，我不能損害待我以德的人，不能損我的晚節， 不能給後代留下錯誤的榜樣。敬請法庭批准…」

[English translation: “Lastly, please allow me to explain: recently I was told by the surveyor that the two lots that originally belonged to me, namely, Lots nos 1970 and 1972, had been partly occupied by others for use while Lot no 1865 had not been inspected. Consequently, I now make a solemn decision: I would recover all five lots which I have “sold” to D2 [he has agreed, the registration formality would soon be followed up].  Regarding all the accusations arisen from these five lots, I would shoulder all the responsibilities and attend court hearings because I cannot harm people who have been good to me; I cannot damage my integrity in the later years of my life; and I cannot set a wrong role model for my offspring.  I invite the court to grant me leave …”]

Madam Tsang’s RAD&CC and Madam Wong’s Reply

24.  As mentioned above, Madam Tsang, in her capacity as the executrix of TLF’s estate, filed the AD&CC on 24 August 2016 and subsequently the RAD&CC on 2 August 2017.  In summary, Madam Tsang’s pleaded case in the RAD&CC may be summarised as follows:

Nolocusor basis to setasidethe 1999 Judgment

(1)     TLF had, with the knowledge of her husband, TCW, adversely possessed the said Lots at least 20 years before 1999, and thereby lawfully obtained the possessory title thereof, as pronounced by the 1999 Judgment;

(2)     Madam Wong was not a party to the 1999 Judgment and hence has no locus standi to challenge or dispute the judgment.  In any event, Madam Wong never factually possessed the said Lots;

(3)     Upon a proper interpretation and understanding of TLF’s Original Defence, TLF did not assert or admit that she did not adversely possess the said Lots.  Rather, she only claimed, inter alia, that by virtue of the 1999 Judgment, she practically achieved what she in her eyes should be entitled to inherit out of the estate of the Tsang Brothers;

TLF’s factualpossessionof the said Lots

(4)     Even if TLF herself did not factually possess the said Lots, she could and did adversely possess the same by her agents, servants and/or other family members.  TCW did not oppose or defend the 1999 Action on the ground that TLF’s claim as stated in the 1999 Judgment was factually correct;

(5)     Madam Wong never factually possessed the said Lots;

(6)     During the period from the late 1970s and early 2000s, one Cheung Hei (張喜) (“Mr Cheung”) occupied the said Lots with the permission of the senior family members of TLF initially and later with TLF’s permission, of which TCW was aware;

(7)     Mr Cheung had been a servant of TLF’s senior family members since about 1950s and had resided (with his family members) at a storage room of Madam Tang’s family home situated in an area known as “樹德圍” (“Shiu Tak Wai”) (comprising Lots 1846, 1847 and 1848 in DD 116);

(8)     Mr Cheung paid rent to TLF’s senior family members with her consent when possessing and using the storage room as his own home and also, inter alia, the said Lots for farming since the late 1970s.  The rent covered some other lands belonging to TLF’s family members and where Mr Cheung also carried out farming activities.  Prior to the late 1970s, Mr Cheung’s father (“Mr Cheung Senior”) had farmed the said Lots since about the 1960s or earlier.

(9)     In or about 2002, Mr Cheung ceased to pay any rent and his permission to use the storage room and the said Lots was thereby terminated.  However, Mr Cheung still resided at the storage room until his death in 2004.  Thereafter, the said Lots were unattended and unoccupied;

(10)     Madam Wong and her family never occupied or resided on the said Lots or their vicinity.  Rather, Madam Wong falsely and wrongly brought this action seeing that Mr Cheung passed away and that the said Lots were therefore apparently unattended;

(11)     In any event, the said Lots were seriously flooded in around the late 1970s to early 1980s and the Government had relocated all occupiers, including Madam Wong and her family, if they were there (which was denied);

(12)     She had no personal knowledge and made no admission as to the alleged harassment and intimidation against Madam Wong.

25.  By way of counterclaim, Madam Tsang also sought an injunction restraining Madam Wong from trespassing on the said Lots and damages for trespass.

Madam Wong’sReply

26.  In reply to the RAD&CC, Madam Wong pleaded that, inter alia:

(1)     She was in fact in possession of the said Lots.  She does not dispute that Mr Cheung existed, nor that Mr Cheung lived in Shiu Tak Wai.  However, Shiu Tak Wai was in a different location from the said Lots or the Possessed Lands; and

(2)     She did not rent the lots from TLF or any other person.  Moreover, neither Mr Cheung nor his father was ever in possession of the said Lots, which was some distance away from Shiu Tak Wai.

VI     Mr Tang’s Defence

27.  By his Amended Defence, Mr Tang pleaded that:

(1)     He had no knowledge and made no admission as to Madam Wong’s allegations concerning the basis of the 1999 Judgment;

(2)     In or about October 2001, at TLF’s request, he agreed to accept the Five Lots to set off against debts owed by TLF to him;

(3)     He acquired the Five Lots for capital appreciation purposes hoping that they would eventually be resumed by the Government or acquired by developers;

(4)     At no time did he intend to occupy, use, enjoy or develop the Five Lots, whether by himself, his family members, servants or agents;

(5)     He never conducted any inspection of the Five Lots, save that he was informed of their lot numbers and areas, and had been roughly shown and/or pointed to their locations;

(6)     At all times until 25 May 2005, when he received notice of Madam Wong’s claim, he was given to believe that the said Lots were vacant land and not subject to any claims for adverse possession;

(7)     By the 2002 Assignment, the Five Lots were assigned by TLF to him for a consideration of HK$1,856,200;

(8)     By a subsequent assignment dated 5 July 2005 (the “2005 Re-assignment”) after he received notice of Madam Wong’s claim, he reassigned the said Lots to TLF for a consideration of HK$930,000;

(9)     On 13 September 2005, Mr Tang’s solicitors informed Madam Wong of the 2005 Re-assignment. Further, on 6 April 2006, Mr Tang’s solicitors further declared and gave an undertaking that he would not assert any claim, right, interest or benefit of, in or over the said Lots, including any right of possession or occupation; and

(10)     He denied any prior knowledge of or involvement in, whether by himself or through his agents or representatives, the Alleged Incidents.

VII     Further Assignment of said Lots

28.  By an assignment dated 5 May 2014, Madam Tsang, as executrix of TLF’s estate, assigned the estate’s possessory interest in the said Lots under the 1999 Judgment to a Hong Kong incorporated company known as Sky Trinity Enterprises Limited (“Sky Trinity”) for a consideration of HK$2,000,000. I shall come back to Sky Trinity at the end of this Judgment.

VIII    Discontinuance against Tsang Brothers and declaratory reliefs

29.  As mentioned above, on 9 April 2015, Madam Wong discontinued the action against the respective estates of the Tsang Brothers.

30.  On the first day of the trial, I raised with Mr Mak how Madam Wong could seek to “set aside” the 1999 Judgment in the absence of the respective estates of the Tsang Brothers, who were of course parties to the 1999 Judgment.

31.  Moreover, as Madam Wong was not a party to that action, the 1999 Judgment is not binding on her, and therefore, it was difficult to see how Madam Wong has locus standi to set aside the judgment.  In any event, notwithstanding the obvious artificiality of the 1999 Judgment, it would be wrong in principle to disturb it without all the parties to the judgment being present before this Court.  No authorities were cited by Mr Mak in support of the relief sought in such circumstances.

32.  In response to my reservations, Mr Mak made an application to re-re-amend the prayer in the RASOC, seeking as follows:

(1) A declaration that [Madam Wong] is not bound by the 1999 Judgment; 

(2) A declaration that notwithstanding the existence of the 1999 Judgment, [Madam Wong] was actually in physical and exclusive occupation of [the said Lots] instead of [TLF] and / or his lessees and / or licensees, from the year 1967 to the date of this Order; 

(3) A declaration that [Madam Wong] has a better right to possession of the said Lots than [TLF’s estate and Mr Tang]; 

(4) An injunction restraining [TLF’s estate and Mr Tang] (and each of them), whether by themselves or by their employees, nominees, agents and/ or representatives or otherwise howsoever, from: 

(a) Harassing, molesting, annoying, intimidating, causing nuisance to or otherwise interfering with [Madam Wong]

(b) Interfering with the possession, use, occupation and/ or enjoyment by [Madam Wong] of the [said Lots]; and

(c) Entering or using the [said Lots]  

(5) Damages for harassment, intimidation and/or molestation (including aggravated damages);

(6) Damages for trespass (including aggravated damages);

(7) Interest pursuant to Sections 48 and 49 of the High Court Ordinance (Cap 4)

(8) Costs; and

(9) Further and/ or other relief  

The body of the RASOC remains unaltered.

33.  After hearing Madam Tsang and Mr Jeffrey Sham, counsel for Mr Tang, I allowed the re-re-amendment of the prayer of the RASOC, with the usual order that the costs of and occasioned by the amendments be to the defendants.  As the amendments were relatively technical and did not impact upon the evidence before the Court, I did not see any prejudice caused to the defendants.

34.  I should mention here that in the RASOC, the said Lots were defined to include the entirety of Lots 1976 and 1978. However, in the course of the trial, Mr Mak informed the Court that Madam Wong’s claim in respect of Lot 1978 would be confined to only a portion of that lot that was enclosed (coloured green in Map 1).

35.  I should also say a few words concerning the declaratory relief sought by Madam Wong that she has “a better right to possession of the said Lots” than TLF:

(1)     One of the fundamental principles of English and Hong Kong land law is that possession by itself is capable of giving a good title against the rest of the world except someone having a better legal right to possession.  As explained by Jessel MR in Rosenberg v Cook (1881) 8 Q.B.D 162, at 165:

“Now the title of the disseisor is in this country a freehold title, and therefore, although the vendor had a very bad title, and a title liable to be defeated, he had still a title good against all the world, except against those who might be proved to have a better one.”

(2)     Title and right of possession are relative rather than absolute.  If a squatter’s possession is disturbed by trespass or nuisance, he can sue on the strength of his own possession and does not have to prove his title to the subsequent trespasser.  The squatter has priority over the subsequent trespasser simply because prior possession gives rise to an older and, therefore, better right.  Successive possession generates its own form of title capable of barring an earlier title in time.  Trespass has thus been referred to as, “…a wrong against possession, not against ownership”: see e.g. Simpson v Fergus (2000) 79 P & C R 398, at 401, per Robert Walker L J.  See also Megarry & Wade, The Law of Real Property, (8^th Ed), §4-008 to 4-009; Harrow London Borough Council v Quazi [2004] A C 983;

(3)     As mentioned above, there is no dispute that Madam Wong was not a party, nor was she given notice of the 1999 Action.  Hence, the 1999 Judgment, which was a contest between TLF and the Tsang Brothers, is not binding upon Madam Wong.  On the other hand, the present action is solely a contest between Madam Wong and TLF (or, rather, her estate) as to who was in fact in possession of the said Lots at the relevant time;

(4)     Madam Wong’s case as pleaded in the RASOC is that she had been and remains in possession of the said Lots since 1967 or at least for a period of not less than 20 years prior to the commencement of this action, without the consent of either the registered owners or any other party. On the other hand, Madam Tsang’s case as pleaded in the RAD&CC is that since the late 1960s, it was she who was in possession (through Mr Cheung and Mr Cheung Senior) of the said Lots up until 2002 when the lease with Mr Cheung terminated or 2004 when Mr Cheung died;

(5)     Hence, depending on who succeeds (as between Madam Wong and Madam Tsang as executrix of TLF’s estate) in showing factual possession of the said Lots for the requisite period, the successful party would be entitled to the right to possession of the said Lots as against the other;

(6)     However, as the registered owners, namely, the estates of the Tsang Brothers, have not been joined as parties to this action, any findings or result in this action would not be binding on them.  Hence, even if Madam Wong were to succeed against TLF’s estate, that would be no defence to any claims against her by the estates of the Tsang Brothers.  Madam Wong would have to prove afresh her possession of the said Lots and to establish a possessory title as against the registered owners.

IX     Issues

36.  I adopt the list of issues from Mr Mak’s Opening Submissions with some modifications, having regard to the re-re-amendments to the prayer.

37.  The main factual issues are:

(1)     Who had been in occupation of the said Lots for at least 20 years prior to the date of the writ on 23 May 2005?  In particular, whether:

(a)     As contended by Madam Wong, she has been in exclusive possession since 1967, or in any event, not later than 23 May 1985, up to the date of the writ, having used the said Lots for farming, including the erection of fences; or

(b)     As contended by Madam Tsang, Mr Cheung had been in occupation from the late 1970s (and prior to that, Mr Cheung Senior since the 1960s) to 2002 for farming purposes with the consent of TLF and/or her family members.

(2)     Whether the Alleged Incidents and alleged acts of trespass took place, and if so, whether such acts were performed, caused and/or directed by TLF and/or Mr Tang.

X     Preliminary Observations

38.  At the outset, I note that the respective cases advanced by Madam Wong and now by Madam Tsang are diametrically opposed to each other.  Each contends a different person or persons to have been in occupation of the said Lots for at least the 20-year period leading up to the date of the writ.

39.  In this regard, it will not have escaped the reader that there has been a substantial and irreconcilable shift in the case advanced in TLF’s Original Defence and now advanced by Madam Tsang.  In both TLF’s Original Defence and a further document signed by her and dated 3 November 2005 in reply to Madam Wong’s original Reply dated 21 October 2005, TLF did not seriously dispute Madam Wong’s case that she had been in occupation of the said Lots since the 1960s.  Rather, TLF’s case was that Madam Wong “never had any intent to unlawfully occupy the land” as she represented to TLF that she occupied the said Lots as transferee of a lease from (or was the sub-lessee of) one林保 (“Lam Bo”). It is unclear from TLF who this Lam Bo was, his entitlement (if any) to transfer the lease or sub-lease the land to Madam Wong, or how TLF was (if at all) connected to him.

40.  However, in the case now advanced by Madam Tsang as pleaded in the RAD&CC settled by counsel, there is no mention of Lam Bo or that Madam Wong occupied the said Lots as the transferee of his lease or his sub-lessee, or with his consent.  Rather, Madam Tsang’s case is that Madam Wong never occupied the said Lots at all, the same having been occupied by Mr Cheung until 2002 or 2004.  It is also not suggested, for instance, that Madam Wong occupied the said Lots as a licensee or sub-lessee of Mr Cheung.  Hence, the question before the Court on this issue (subject to Madam Tsang’s allegation of relocation due to flooding “in late 1970s to early 1980s”) is a straightforward one: who was in fact in occupation of the said Lots at the material time – was it Mr Cheung and/or his father, or Madam Wong and her family?

41.  The immediate difficulty for Madam Tsang on this question is that, as mentioned above, TLF had in effect admitted, or at least not disputed, Madam Wong’s factual occupation of the said Lots since the 1960s in TLF’s Original Defence.  The only issue raised by Madam Tsang then was whether Madam Wong had the requisite intention to possess (animus possidendi).

XI     The Evidence

Witnesses unable to attend the trial

Madam Wong

42.  It is convenient to start with Madam Wong’s witness statement dated 3 October 2006.  As mentioned above, she was incapacitated due to a stroke and was unable to attend the trial.  I bear in mind, therefore, that her statement is hearsay and treat it accordingly.

43.  In summary, her evidence as contained in her witness statement was as follows:

(1)     She was born in Shenzhen in 1939, married her husband, Wong Kan Lam (黃錦蘭), in 1955 and had 5 daughters, including amongst others Wong Lin Ying (黃蓮英) (“Lin Ying”) (her eldest - born 1956), Joanna (黃英媚) (her third – born 1963) and Wong Yat Ling (黃一玲) (“Yat Ling”) (her fourth – born 1965).  In or around 1959, she moved with her husband and Lin Ying, to Sheung Shui to live with her husband’s relatives;

(2)     In the winter of 1967, she and Wong Kan Lam were told by his friend, who was at the time the village chief of Wong Uk Tsuen (黃屋村), that there was some vacant farmland in nearby Chuk San Tsuen.  She and Wong Kan Lam were then introduced to the owner of Lot 1962, who leased the lot to them for a term of 25 years.  She subsequently renewed the lease, and as at the date of her witness statement, she remained a tenant on Lot 1962.  (Copies of leases and various rental payment receipts up to 2004 were produced);

(3)     She also rented 3 nearby lots in the year 1975, namely, Lots 1956 and 1958 from Tai Wong Temple (大皇廟) and Lot 1977 from one Lam Fo (林伙) in the year 1977.  She continues to be a tenant on Lot 1977 until the date of her witness statement.  (A copy of a recent lease of Lot 1977 from the period from 2004 to 2009 was produced);

(4)     As can be seen from Map 2 in Annex 2 to this Judgment (defined in paragraph 64 below), Lots 1956 and 1958 lie to the north of Lot 1962, separated only by Lot 1959 in between.  Lot 1977 lies directly south of Lot 1962, separated by a road in between, and is sandwiched between the said Lots.

(5)     After she moved into Lot 1962 in the year 1967, she engaged a contractor to build a small brick house (the “Brick House”) and a wooden pigsty on Lot 1962.  She and her children lived in the Brick House, which was later renovated in the year 1977.  Whilst her children have all left, she continues to live in the Brick House.  (Various permits from the Government allowing Madam Wong to erect and repair structures on Lot 1962, including a cow shed, pigsty and a storeroom, were produced).

(6)     In addition to the rented lots, lots in the vicinity of Lot 1962 (including the said Lots) were vacant and unused, and after she moved into the Brick House, she took possession of a number of them^[3] as she expanded her farming activities, which included growing vegetables (including among other things green vegetables, yams and pumpkins) and raising pigs and chickens for the family’s livelihood;

(7)     In respect of the said Lots and Lot 1977, she started her farming activities shortly after she moved into the Brick House in 1967 near the stream that flowed south of the said Lots, Lot 1977 and Lot 1975 (which was also occupied by her).  Over time, she expanded northwards towards the Brick House.  She also dug a number of wells, including a well in Lot 1977 (as can be seen in Map 2), and in the late 1970s, built water pumps to pump water from the well to the said Lots;

(8)     In the year 1977, she also built a small structure on Lot 1976;

(9)     In the late 1980’s, she converted the said Lots as well as lots 1956, 1957, 1959, 1963, 2003, 2004, 2005 and 2006 into fruit tree orchards;

(10)     She also erected wire fences and gates at different points in time enclosing the Brick House as well as various lots occupied by her.

44.  She also recounted the allegations pleaded in the Statement of Claim concerning her encounters with TLF and other individuals starting at the end of 2004 (these allegations remain in their original form in the RASOC), which I have already summarised above.  For completeness, as to the February 1 Encounter, I set out her version of events of that meeting in her own words:

「...在2005年2月1號，鄧蘭芳和兩名男子，進入該土地並走近該房子附近的第2001號地段的鐵閘。當時我正在第1956號地段上耕作，看見那兩名男子各自走開剩下第一被告人在閘前守候。因天氣寒冷，我出於一番好意下 邀請第一被告人進入該房子喝茶，我遂向第一被告人詢問其來意。她告訴我她擁有兩塊在我圍欄以內的土地。我當時並不知道第一被告人所指的是那兩個地段，但我向她指出我已在該土地住了超過三十年，但她從沒有出現過或要求我交租，因此我無須向任何人交租。我亦問第一被告人，既然她聲稱是兩塊土地的業主，為何她這麼多年來都沒有出現要求我交租。她卻回答說她住在荃灣並在荃灣街市賣菜，所以從沒有來過收租。

跟著第一被告人提出與我簽定一份租約，並要我每年向她繳交象徵式的港幣10元租金。我拒絕了她的要求。

…

我亦強調，我從沒有向任何人租用第1976號及第1978號地段，亦沒有如第一被告人抗辯詞中…所指，在上述當日向她說是一名叫林保的村民把第1976號及第1978號地段轉租給我。我亦從沒有問她『有沒有納粮』，及說『我不想再搞種植』或『我將快去美國與夫同住』。這些指控均非真確。至今我還住在該房子，亦在使用著該土地，包括第1976號及第1978號地段，並如這證人口供…所述種植果樹。」

[English translation: “…on 1 February 2005, [TLF] and two men entered the Land and walked near the metal gate in Lot no 2001 in the vicinity of that house. At the time, I was farming in Lot no 1956. I saw the two men walk away respectively, leaving [TLF] waiting alone in front of the gate. I invited [TLF] to enter the house to have tea out of kindness because it was cold on that day. I then asked [TLF] why she came here. She told me that she owned two pieces of land which was within my fence. At the time, I had no idea as to which two Lots [TLF] was talking about. However, I pointed out to her that I had been living on the Land for more than 30 years, but she had never shown up or requested me to pay rent, so there would be no need (for me) to pay rent to anyone. I also asked [TLF] why she had never shown up and requested me to pay rent for so many years since she claimed to be the owner of two pieces of land. She replied that she was living in Tsuen Wan and selling vegetables in Tsuen Wan Market, so (she) had never come to collect rent.

[TLF] then suggested that I enter into a tenancy agreement with her, and (she) also requested me to pay a nominal rent of HK$10 per annum. I refused her request.

I also stressed that I had never rented Lot nos 1976 and 1978 from anyone, and I did not, as …pointed out by [TLF] in her defence, tell her on the abovementioned day that it was a villager called Lam Bo who had transferred the lease of Lot nos 1976 and 1978 to me. I did not ask her “any payment of grain tax?” and (I) did not say “I no longer want to do cultivation” or “I will soon go to the United States to live with my husband”. These accusations are not true. Now I am still living in that house, and also using the Land, which includes Lot nos 1976 and 1978, to plant fruit tree(s) as mentioned by this statement”]

45.  It can be seen that there is no serious dispute between TLF and Madam Wong that (1) the February 1 Encounter took place; (2) TLF requested Madam Wong to enter into a lease for the said Lots with an annual rent of HK$10; but (3) no lease was entered into between them.  The main issue that divides their respective versions of events is what was said at that meeting.

46.  However, Madam Tsang’s pleaded case now in the RAD&CC is that the said Lots had all along been occupied by Mr Cheung (and his father) and that Madam Wong and her family never occupied the same.

TLF

47.  TLF also filed a 7-page manuscript Chinese witness statement dated 24 July 2006, some 10 months after TLF’s Original Defence and largely echoing the same.  For completeness, I set out in her original words how she described the February 1 Encounter, as follows:

「2005年2月1日我和我兒曾國業聘請測量師鄧先生一起去116約1978號等地段了解情況。行到地邊，巧遇莊女士出來，一如久別的鄉里連關乎私隱的事都說了，而且自豪地說，她一個人帶大多個兒女，還供他們上學讀書。

她毫無顧慮地坦言：有個村民叫林保的把這兩個地段 (1976，1978號) 轉租給她，她又問我有沒有納粮，她那時並沒有說早在1967年已經霸佔這兩地段，也沒有說她已決定做『霸地行動』，所以我就說這地妳可以長期一直用下去，但希望每年交十元租金給我。她的回答是：要先徵求孩子們的意見，稍後才答覆，又說孩子們很孝順常請求她遷出市區住在一起，臨別時彼此高興互留電話號碼，以便今後聯絡之用。

見此情況，測量師對我們說：『我看沒有必要量地劃界建議多作聯絡協商，給予長期租約。』我認為這個建議很好，跟著我和女兒打過幾次電話給莊，但她不願意再談…」

[English translation: “On 1 February 2005, my son [Tsang Kwok Yip] and I employed a surveyor Mr. Tang to go to Lot no 1978 in DD 116 to gain an understanding of the situation. When (we) walked to the edge of the Land, (we) came across Ms Chong who coincidentally walked out. She talked like a fellow villager who met again after a long period of separation, that she even said something in relation to privacy. She also said proudly that she raised her several children on her own and even supported them to study.

She said frankly without hesitation that there was a villager called Lam Bo who had transferred the lease of Lot nos 1976 and 1978 to her. She also asked me if I made any payment of grain tax. At that time, she did not mention that she had already occupied these two lots since 1967, nor did she mention that she had decided to carry out the “unlawful occupation of land operation”. Therefore, I said (“)You can use this piece of land on a long-term basis, but (I) hope (you) can pay me an annual rent of ten dollars(“). Her reply was that she had to consult her children before she could give me a reply later. (She) also said (her) children were so filial and always begged her to move to the city to live together with them. When (we) pleasantly bid farewell, (we) exchanged telephone numbers to facilitate further contact in future.

Upon seeing this, the surveyor said to us “I think there is no need to do any land survey and enclose the land, (I) suggest (you) can communicate and negotiate more (with the other party) and give (her) a long-term lease”.  I considered it a very good suggestion.  Afterwards, my daughter and I had tried to call Ms Chong several times, but she was not willing to discuss (the matter) any further…” ]

48.  It is unclear whether attempts have been made by Madam Tsang to ask this surveyor surnamed Tang, being a neutral third party, to give evidence in this action. There is also force to Mr Mak’s submission that TLF’s son, Tsang Kwok Yip (曾國業) (“TKY”), who Madam Tsang has confirmed is alive and currently retired, could and should have been called by Madam Tsang to give evidence to the court on this and other matters.

49.  I note also that there is at least a slight change between TLF’s recollection of events in her witness statement and TLF’s Original Defence.  In her defence, TLF recalled that Madam Wong said that she did not wish to farm anymore and intended to move soon for the United States to join her husband, whereas in her witness statement, she said that Madam Wong told her she needed to consult her children first and her children wished for her to move to the city.

Witnesses who attended the trial

Joanna and Yat Ling

50.  Joanna and her sister Yat Ling each filed a witness statement and gave evidence at the trial on behalf of Madam Wong.  As their evidence is broadly similar, I will address it together.  Both of them confirmed the contents of the RASOC. Their evidence was as follows:

(1)     Since Joanna and Yat Ling were small children, they lived with their mother and sisters in the Brick House.  Their father, Wong Kam Lan was a sailor, often overseas, and also resided at times in the United States.  Both Joanna and Yat Ling attended the local primary and secondary school in Yuen Long;

(2)     In 1968, their mother applied for electricity supply from China Light and Power (“CLP”) to the Brick House.  However, as the Brick House did not have an address and Chuk San Tsuen was still relatively unknown at the time, CLP assigned an address for billing purposes to the Brick House in nearby Yeung Uk Tsuen.  It was not until 1986 that there was water supply to the Brick House;

(3)     Much of the land surrounding the Brick House, including the said Lots, was not used by anyone apart from their mother, and she and her children roamed around freely on the land.  Both Joanna and Yat Ling gave details of life growing up in and around the Brick House and how they assisted their mother planting vegetables and raising livestock throughout the years, with some of the vegetables and crops brought to be sold on weekends and holidays in the Yuen Long city centre;

(4)     A series of family photographs from the 1970s to the 1990s have been produced.  Most of them showed Madam Wong and her family, including Joanna and Yat Ling, working and relaxing in the Brick House and surrounding areas, some of which were identified to be on or near the said Lots;

(5)     In certain years, crops were damaged by floods or typhoons, and Madam Wong would apply to the Agriculture, Fisheries and Conservation Department (AFCD) for financial subsidy and AFCD officers visited the area. Joanna recalls being present during some of these visits, including in particular after a strong typhoon in 1975 when she was in Form 1;

(6)     Shortly after they moved into the Brick House, Madam Wong and Lin Ying erected some simple fencing around parts of the lots occupied by her to keep out unauthorised persons from stealing and damaging vegetables and crops (the “1960s Fencing”); 

(7)     In 1977, Madam Wong saved enough money to engage contractors to renovate and expand the Brick House into a 2-storey brick structure.  Leftover building materials from the renovation works were used to build a small structure for storing farm tools on Lot 1976 (the “Small Cottage”), which still stands and can be seen on Map 2;

(8)     A year later, a young man named Chan Yuet Ping (陳月平) (“YP Chan”), who later married Yat Ling in 1982, built and operated a chicken farm with his friends on Lot 1974, which was adjacent to the east of Lot 1976.  After they married, Yat Ling and YP Chan moved to live in Fu Tei Tsuen, Tuen Mun, some 20 minutes away by car from the Brick House;

(9)     Joanna married as well in 1983 and moved to another village in 1983, and she and Yat Ling visited their mother at the Brick House on holidays and weekends;

(10)     Between the late 1970s to the mid 1980s, Madam Wong expanded her farming and agricultural activities on the Possessed Land, including the said Lots.  During this period, Madam Wong had the assistance of a man known as Uncle Lok, as well as YP Chan, who was courting Yat Ling at the time.  Uncle Lok and YP Chan also assisted her in erecting more extensive fencing around the land used by her, including the said Lots (the “1980s Fencing”).  Part of the reason for the fencing around the said Lots was to prevent the chickens on Lot 1974 from running onto the said Lots;

(11)     Around this time, Madam Wong also purchased a ploughing engine to assist her.  A photograph has been produced showing the ploughing engine still being stored in the Small Cottage;

(12)     In 1984, Yat Ling and YP Chan started a chicken farm of their own on Lot 1977 and operated it in conjunction with the existing chicken farm owned by YP Chan and his friends.  The chicken farm ceased operations in or around 1994 when the Government tightened regulations on the keeping of poultry and livestock;

(13)     In the mid to late 1980s, Madam Wong changed from growing vegetables and crops on inter alia the said Lots to planting orchards, as fruit trees required less attention and also chickens from Yat Ling and YP Chan’s chicken farm, which were allowed to roam onto the said Lots during the daytime, damaged some of the crops.  A receipt from AFCD dated 7 April 1988 has also been produced showing Madam Wong’s purchase of HK$5,200 worth of lychee and orange seedings;

(14)     In or around 1987, Yat Ling and YP Chan moved back with their children to the Brick House after his mother died.  In 1994, after Madam Wong’s husband, Wong Kan Lam, came back from the US to live at the Brick House, Yat Ling and YP Chan bought a property in Yuen Long and moved there with their children. Yat Ling and YP Chan divorced in 2002;

(15)     Joanna and Yat Ling also recalled that around late May 2005, Madam Wong told them about the Alleged Incidents.  After Madam Wong contacted the police, Joanna contacted solicitors for legal advice.  Upon their advice, Joanna hired and arranged a contractor to construct further fencing around the said Lots and the Brick House in order to provide greater security (the “2005 Fencing”).  Madam Wong further commenced the present action and applied for the ex parte Injunction Order.  Since the injunctions were granted, Madam Wong made no further mention to them of unwanted visits from TLF or other individuals;

(16)     Both Joanna and Yat Ling said that they had never seen TLF and had not heard of her or her family members until around the end of 2004, when TLF visited Madam Wong.  They had also not heard of the Tsang Brothers.  However, they had heard of Mr Cheung and knew that he passed away around 2004.  Mr Cheung had several children of similar age and some of them had gone to school together with Joanna and Yat Ling.

(17)     Mr Cheung lived in Shiu Tak Wai located on Lots 1846, 1847 and 1848, about 5-10 minutes’ walk from the said Lots.  They denied that Mr Cheung ever possessed the said Lots or that the said Lots were unattended after Mr Cheung died.

Madam Tsang

51.  Madam Tsang also filed a 6-page witness statement on 28 July 2017, when TLF’s estate was still represented by Messrs Ong & Chung. In summary, her evidence was as follows:

(1)     She explained that her late grandfather, THK, who had settled in Indonesia, returned to Hong Kong in the 1930s and purchased lands in Yuen Long and built a large house in Shiu Tak Wai, situated at Lots 1846, 1847 and 1848.  THK returned to Indonesia during the Japanese invasion of Hong Kong but disappeared and was presumed to have died from the anti-Chinese campaigns there during the 1970s.

(2)     In the late 1960s, at THK’s request, her mother handled THK’s “land issues for decades before her death but seemed not very successful”.

(3)     Although she has never lived on the said Lots or at their vicinity, “I do know well the history and occupation thereof, apparently because this is the core of our family matters…”.

(4)     Since the 1960s, the lands at the vicinity of Shiu Tak Wai were let to Mr Cheung Senior for farming purposes.  Mr Cheung Senior retired in 1976, and Mr Cheung inherited his father’s farming job. Mr Cheung rented some parcels of land belonging to THK, including the said Lots. At the time, her parents handled the rental matters, but she “vividly recalled” that the said Lots were let to Mr Cheung.  The rental amount was HK$250 per annum in and before April 1982, and thereafter it was revised to HK$450 per annum. In April 1998, it was revised to HK$400 per annum;

(5)     Mr Cheung rented the said lands until 2002, whereupon he ceased to pay rent, and hence, her mother terminated the tenancy.  Mr Cheung’s rent included also his dwelling in Shiu Tak Wai, where he and his family members resided in a large storage room.  After his death in 2004, Shiu Tak Wai was occupied by squatters.

(6)     Mr Cheung was assisted by his four sons when they were young in farming his parcels, including the said Lots.  Her parents did not specify the type of farming to be conducted by Mr Cheung, as long as he was able to provide “some reasonable harvestings or money.”

(7)     The said Lots were within walking distance of Shiu Tak Wai, and it was common for farmers to walk around to farm different lots.  She was able to locate rental receipts issued by her mother to Mr Cheung “for his occupation and use at Shiu Tak Wai and the lands including the said Lots.”.  Since the early 2000’s or earlier, however, the said Lots “were abandoned with no farming activities” and “wild grass grew up everywhere to such an extent that it became no longer accessible for many years.”

(8)     Madam Wong is making a false claim to take advantage of Mr Cheung’s death in 2004 and to misappropriate the said Lots from TLF.

(9)     She does not accept that the 1999 Judgment was improperly obtained.  She and her mother were present when a solicitor gave his advice about the 1999 Judgment and they believed that her mother was entitled to obtain possessory title over the said Lots and the lands nearby owing to “our actual and exclusive possession via Mr Cheung and his father over the decades.”

52.  I note here that although Mr Cheung was said to have been assisted by his four sons in farming the said Lots, no evidence has been called from Mr Cheung’s sons to support her case that it was Mr Cheung rather than Madam Wong who had been in occupation of the said Lots over the years. In her affirmation evidence filed in support of the Striking Out Application, Madam Tsang deposed that she was no longer able to locate Mr Cheung’s family due to the passage of time. However, Mr Mak casts doubt on this assertion as Mr Cheung’s family are involved in litigation with San Tong Lee Co. Ltd (“San Tong Lee”) in HCA 1081/2012, an adverse possession dispute concerning certain lots in Shiu Tak Wai which Madam Tsang had sold to San Tong Lee in 2011. San Tong Lee’s solicitors were Messrs Ong & Chung, Madam Tsang’s previous solicitors in this action. I will come back to San Tong Lee’s further connection with Madam Tsang below.

53.  Although Madam Tsang produced rental receipts between TLF and Mr Cheung, the receipts merely referred to the payment of rent for Shiu Tak Wai, and makes no mention of the said Lots, or indeed, any lot numbers.  There is no dispute that although the said Lots are within walking distance from Shiu Tak Wai, they are not in fact situated in Shiu Tak Wai.

54.  On Madam Tsang’s own evidence, she never resided on or in the vicinity of the said Lots. In her answer to requests for further and better particulars of the AD&CC dated 18 January 2017, she contended that before 2002, when the said Lots were still being rented to Mr Cheung, she and TLF would visit the said Lots around once per week, and thereafter, “a few times per months irregularly”. In cross-examination, however, she retreated to saying that she visited the said Lots only a few times per year. Indeed, Madam Tsang’s assertions are inconsistent with TLF’s own case in her original defence that she “hardly ever” returned to Yuen Long.

55.  I have considerable doubts, therefore, whether she knew what lots she had visited or had even visited the said Lots at all on those occasions she did return to Yuen Long. As she accepted in cross-examination, the main purpose of her visits to Yuen Long was for family gatherings during festive occasions rather than to inspect the said Lots. Moreover, her visits would primarily be made to her ancestral home in Shiu Tak Wai, where she said she and TLF were taken by Mr Cheung to see the lots he attended to. She was unclear precisely where she was brought by Mr Cheung, and she merely followed her mother and Mr Cheung. Given that the 1999 Judgment Lots comprised a large number of lots, it is unlikely that Madam Tsang would have been able, or indeed needed to make any effort, to identify the said Lots. From her oral evidence in Court, it was clear that she was unfamiliar with the location and the physical features of the said Lots. Her recollection of the state of the said Lots was also inconsistent with the undisputed expert evidence (which I shall come to below). This is unsurprising since rental matters concerning the Tsang Brothers’ lands were handled not by her but by her parents.

Mr Tang

56.  Mr Tang filed a witness statement dated 29 May 2006. His evidence may be summarised as follows:

(1)     He is a distant relative of TLF, both of them being from the well-established Tang clan and indigenous villagers of Ping Shan in Yuen Long.  TLF was from his father’s generation and therefore an elder, but she moved out of Ping Shan a long time ago;

(2)     He did not know Madam Wong or her family members, and no one had informed him that Madam Wong was allegedly occupying the said Lots, which he learned of only upon receiving the ex parte Injunction Order;

(3)     He received his education in the United Kingdom and in Guangzhou, and since 1996, he has been employed by a manufacturer of giftware which operates a factory in Dongguan in Mainland China.  He therefore spent most of the working days of the week at the Dongguan factory;

(4)     In late 1997, he was approached by TLF for a personal loan in the sum of HK$800,000.  He was told that she needed the money to redeem the mortgage on her son’s home at Kornhill, Quarry Bay (the “Kornhill Flat”) and to deal with her inheritance of various pieces of land from her ancestors.  She said that the matter should take no longer than 2 years and she would repay him after she acquired the land;

(5)     At TLF’s request, he was taken by her son-in-law, whose name he could not remember (but was, presumably, Lee Fat Choi), to have a brief look at the lots she was said to be inheriting.  He pointed out to Mr Tang various pieces of land, but he “…did not pay much attention to their lot numbers, or their actual boundaries or areas, but I noticed that, apart from the “house land” on which it was built with small houses or huts, all the land was vacant and grown with wild grass, and none of them was enclosed.”

(6)     He agreed to lend the sum to TLF for a term of two years - “as she was of an elder generation than me, I felt uneasy if I declined to help her”.  However, as TLF was of elderly age and in poor health, it was decided that TKY would be named as the borrower on the loan agreement.  Hence, upon receipt of the HK$800,000, TKY signed an acknowledgement in Chinese;

(7)     In the middle of 2000, when the loan was due to be repaid, TLF approached him for a further loan and further time to settle the previous loan.  Although he had some hesitation, he agreed and lent a further sum of HK$300,000.  Again, TKY was named as the borrower, and as security for the loans, TKY and his father, TCW, executed a mortgage of the Kornhill Flat in Mr Tang’s favour.

(8)     In 2001, Mr Tang learned from TLF that that “the inheritance matter had already been completed.” However, TLF told him that she did not have enough cash to settle the debts and proposed to sell to him the Five Lots to discharge the debts;

(9)     He was taken again by Lee Fat Choi supposedly to the vicinity of the Five Lots from where the lots were pointed out to him, and he only had a distant view.  The lots did not appear to have any house or structure built upon them and appeared to be “vacant and… mainly grown with grass”.  Mr Tang was also shown a “rent-roll” regarding the Five Lots which set out the lot numbers as well as areas of each lot, which totalled about 0.83 acres;

(10)     After some discussion, it was agreed that TLF would sell and transfer the Five Lots to him in consideration of the loans being set off and an additional HK$550,000 to be paid by him to TLF.  On 29 October 2001, he paid her the HK$550,000, and on 30 October 2001, TLF, TKY and him executed an agreement setting out the relevant terms.  The Five Lots were then assigned to him by the 2002 Assignment;

(11)     He did not have any intention initially to purchase any land from TLF, but rather, it was because of TLF’s inability to repay the loans that he agreed to accept the Five Lots.  Before purchasing the Five Lots, he worked out the price to be around HK$51 per square foot, which he believed to be reasonable;

(12)     He did not intend to farm, occupy or develop the Five Lots, but merely to hold them for capital appreciation, in the hope that they would be resumed by the Government or acquired by developers in the future.  Hence, he did not set foot on or conduct any site inspection of the lots.

(13)     In 2005, shortly after the Lunar New Year, TLF again approached him to borrow HK$100,000 for the purpose of engaging a land surveyor to conduct a survey of her lands and enclosing them to safeguard them against encroachment (the “2005 Loan”).  Although he lent her the sum for a period of two years, he never requested TLF to engage any surveyor or to conduct a survey of the said Lots.  He also did not have any further communication with TLF until after he received the ex parte Injunction Order;

(14)     When he received and learned of Madam Wong’s allegations in respect of the said Lots, he was “very shocked”, and contacted TLF and inquired with her about the situation.  He then told TLF that she should be responsible for Madam Wong’s claim against him as he knew nothing about Madam Wong’s possession of the said Lots.  TLF then agreed to repurchase the said Lots from him at the price of HK$930,000;

(15)     Hence, by the 2005 Re-assignment, the said Lots were reassigned to TLF.  At the trial, Mr Tang told the Court that he had not yet received the consideration of HK$930,000 from TLF.

(16)     Finally, Mr Tang denied any knowledge or involvement in the Alleged Incidents.

Expert Evidence

57.  By an Order dated 3 January 2017, Master Hui granted leave by way of Consent Summons to the parties to adduce expert evidence on the following issues: (1) the boundaries and areas of the said Lots; and (2) the matters pleaded in paragraph 1 of the RASOC, including features (if any) showing use of the Lots between 1967 and 2005.  

58.  As mentioned above, paragraph 1 of the RASOC pleaded that, inter alia, Madam Wong has since 1967 and in any event for not less than 20 years prior to the commencement of the action, undisturbed possession of the said Lots to the exclusion of TLF and Mr Tang and has exercised acts of ownership over the said Lots. There is no real dispute between Madam Wong and Madam Tsang that the said Lots were in fact occupied, farmed and cultivated during this period, the issue dividing them being by whom – whether it was Madam Wong and her family (as contended by Madam Wong) or Mr Cheung and his family (as contended by Madam Tsang).

59.  Madam Wong appointed Chan Tak Hing (“Mr TH Chan”) MRICS, of T.H. & Associates (“THA”) and Madam Tsang appointed Leung Shou Chun (“Mr Leung”), Authorised Land Surveyor of Leung Shou Chun Land Surveying Consultants Ltd as their respective experts. I should mention that pursuant to the Order of Deputy High Court Judge Leung dated 11 July 2018, leave was given to Madam Wong to appoint Mr TH Chan as her expert witness in substitution of Mr Ng Jor Choi (“Mr Ng”), who was also a surveyor at THA. Prior to that, Mr Ng and Mr Leung each produced a report as well as a Joint Expert Report (with Mr TH Chan adopting Mr Ng’s evidence).

60.  Mr TH Chan and Mr Leung both relied on reference plans, survey sheets and aerial photographs obtained from the Government’s Survey and Mapping Office (“SMO”) to ascertain the changes in ground features and occupation of the said Lots over the years. A joint site inspection had also been conducted on 24 November 2016 (the “Joint Inspection”).  Mr Ng in his report and Mr TH Chan also referred to and relied upon two occupation surveys – being maps of the said Lots and surrounding areas drawn up from surveys conducted by THA on 15 January 2009 and 3 October 2016 respectively.

61.  Having considered the expert issues and the reports, I was of the preliminary view that as the expert evidence was not particularly controversial, it may be more efficient and effective for Mr Leung and Mr TH Chan to give their evidence concurrently (a procedure sometimes referred to colloquially as “hot-tubbing”) rather than having each of them examined and cross-examined in turn.  Although I am not aware of any reported decision in Hong Kong showing the adoption of such a procedure in court, the procedure is well-established in arbitration proceedings and increasingly used in appropriate cases in English and Australian courts (see e.g. English CPR Practice Direction 35.11).  I therefore inquired with the parties whether they would consent to such a procedure – that is, for Mr TH Chan and Mr Leung to be sworn in as witnesses and to go into the witness box together, whereupon each of the parties would then be given opportunities to direct questions at one or both of them. Mr Mak, Mr Sham and Madam Tsang all agreed to such a course.

62.  The respective expertise of Mr TH Chan and Mr Leung was not challenged, and in any event, I am satisfied that each of them is qualified to give expert evidence on the directed issues to this Court.  I should add that I found both Mr TH Chan and Mr Leung professional, knowledgeable and candid witnesses, and there were only slight differences between their evidence (as one would expect in expert evidence of this nature).

63.  I have considered the respective reports and the oral evidence of Mr TH Chan and Mr Leung, and in the light of the issues that divide the parties, I do not think it necessary to set out their evidence in great detail.  Insofar as the cultivation and ground features of the said Lots are concerned, there is no serious dispute between the experts, and I find as follows:

(1)     In the period from 1967 to 1990, both of the said Lots were cultivated to varying extents over the years;

(2)     In 1977 or 1978, a small structure was erected on the north-western corner of Lot 1976 (i.e. the Small Cottage); and

(3)     From 1990 onwards, trees had been planted in rows and their canopies grew to cover almost the entirety of the said Lots.

64.  As to fencing of the said Lots, 3 layers of fences built at different periods can be seen from the SMO records and the occupation survey drawn up by THA on 15 January 2009.  A copy of the occupation survey drawn up on 15 January 2009 is reproduced in Annex 2 of this Judgment as “Map 2”.

65.  In the witness box, Mr Leung did not seriously dispute Map 2 as being consistent with the surveys and photos from SMO and what he observed during the Joint Inspection:

(1)     Map 2 shows 3 layers of fencing, erected during different periods.  The fencing shown in blue is the most recent, the fencing shown in red is older and the fencing shown in green is the oldest;

(2)     There is no serious dispute that the fencing shown in blue is the fencing I have referred to above as the 2005 Fencing and which can be ignored for present purposes as it was built by Madam Wong after disputes had arisen between her and TLF;

(3)     As to the green and red fencing, aerial photographs (although not entirely clear) and survey sheets from SMO also show their erection over the years.  The green fencing was likely to have been erected in the 1970s, and the red fencing was likely to have been erected in the 1980s.

66.  The only minor difference between the experts was whether line features seen in aerial photographs along (a) the eastern perimeter of Lots 1976; and (b) the southern perimeter of the southern portion of Lot 1978 were fencing as interpreted by Mr TH Chan. Mr Leung accepted that the lines could be fencing although he could not positively confirm the same, saying it was also possible that they could be paths or a dense row of knee high plants. Taking into account their evidence as a whole, including the occupation survey, I accept Mr TH Chan’s evidence that the line features in question are likely to be fencing.

67.  I therefore find that Map 2, insofar as it indicates the existence and location of 3 layers of fencing enclosing the said Lots (I need not be concerned with other lots), is accurate.  I also find that the green fencing to have been erected in the 1970s and the red fencing to have been erected in the 1980s.  The only issue then is who built the fencing, at least such portions as are situated on the said Lots - whether it was Mr Cheung (as contended by Madam Tsang) or Madam Wong (as contended by her).

XII     Discussion

Possession and Occupation of the said Lots

68.  There can be no serious dispute that since 1967, Madam Wong occupied as a tenant Lot 1962, where she built and maintained the Brick House and related structures.

69.  At the trial, I found both Joanna and Yat Ling to be sincere and candid witnesses.  Their recollection of life during their childhood and adolescent years growing up with Madam Wong in the Brick House and the surrounding areas, including Lot 1977 and the said Lots, was detailed, convincing and true-to-life.  Their evidence was also supported by the various family photographs in the evidence taken at or in the vicinity of the Brick House, including on or near the said Lots. On the whole, I accept their evidence concerning their occupation of the said Lots. Although Madam Wong moved into the Brick House in or around 1967, it is not entirely clear when exactly she occupied the whole of the said Lots, which on Joanna and Yat Ling’s own evidence was a gradual process as Madam Wong expanded her farming activities northwards from the stream to the south of the said Lots. It is clear, however, that from at least 23 May 1985 (being 20 years prior to the commencement of this action on 23 May 2005), Madam Wong had exclusive occupation of the said Lots.

70.  On the other hand, there is little if any concrete evidence other than Madam Tsang’s bare assertion to show that the said Lots had ever been occupied by Mr Cheung:

(1)     Notwithstanding TLF’s explanation as to the background of the 1999 Judgment Lots, she made no mention of Mr Cheung at all in her original defence, her reply, or her witness statement;

(2)     This would be surprising if Mr Cheung had been occupying the said Lots for decades until at least 2002 (when he allegedly stopped paying rent) or 2004 (when he died).  On Madam Tsang’s own evidence, her parents handled rental matters, and therefore, TLF would have been well aware of Mr Cheung’s tenancy and occupation of the said Lots;

(3)     On the contrary, TLF’s description of Madam Wong and the February 1 Encounter in Section 1 of TLF’s Original Defence and her witness statement give the distinct impression that she accepted that Madam Wong had all along been in occupation of the said Lots;

(4)     Rather, her case was that Madam Wong allegedly told her that the said Lots had been transferred or sub-leased to her by Lam Bo. TLF gave no indication in her pleadings or witness statement whether she knew who Lam Bo was and whether he was her family’s representative or a tenant of the said Lots.  It is possible that TLF mistook Lam Bo for Lam Fo, who, according to Madam Wong’s witness statement, leased Lot 1977 to her but had nothing to do with the said Lots.  In any event, neither Lam Bo nor Lam Fo features in Madam Tsang’s case now;

(5)     As mentioned above, the rental receipts which Madam Tsang issued to Mr Cheung do not assist, as they refer to Shiu Tak Wai, and not the said Lots. Madam Tsang’s own evidence was that she never resided on or in the vicinity of the said Lots. Similarly, TLF in her original defence said she “hardly ever” returned to Yuen Long. Given the large number of lots owned by the Tsang Brothers in the area, it is entirely possible that Madam Tsang confused the said Lots with other lots and was mistaken as to where the said Lots were situated. This was my distinct impression of her evidence when she sought to describe the said Lots and their location in cross-examination;

(6)     As mentioned above, in her witness statement, she said that since the 2000s or earlier, the said Lots “were abandoned with no farming activities” and “wild grass grew up everywhere to such an extent that it became no longer accessible for many years.”  This is wholly inconsistent with the undisputed expert evidence and aerial photographs that, around that period, the said Lots were planted with trees in rows. Viewed in the best light, Madam Tsang may well have misapprehended the said Lots with other lots;

(7)     Indeed, Mr Tang is likely to have laboured under a similar mistake when he described the Five Lots that were pointed out to him by Lee Fat Choi in 2001.  Mr Tang recalled that the lots were “vacant and…mainly grown with grass”, which is again inconsistent with the expert evidence and aerial photographs taken at the time. It is likely that he was pointed to lots other than the said Lots;

(8)     Finally, as mentioned above, no evidence was obtained by Madam Tsang from Mr Cheung’s children, who were said to have assisted their father in farming the said Lots and would have been able to assist the Court as to Mr Cheung’s alleged occupation of the said Lots.

71.  I should also mention here briefly that much time was spent at trial by Madam Tsang on the issue of the address on CLP’s electricity bills for the Brick House. It is unnecessary to delve into the matter in detail:

(1)     As mentioned above, it is Joanna and Yat Ling’s evidence that in 1968, when Madam Wong applied for electricity supply to the Brick House, CLP assigned an address for billing purposes to the Brick House in nearby Yeung Uk Tsuen, as Chuk San Tsuen was still relatively unknown at the time;

(2)     The address shown on the electricity bills was “47E (Hill) Yeung Uk Tsuen”. On this basis, Madam Tsang argued that the bill did not in fact relate to the Brick House, and therefore Madam Wong never resided at the Brick House but rather at an address known as “47 Yeung Uk Tsuen”. In the middle of the trial, Madam Tsang produced photographs of a building with an address of 47 Yeung Uk Tsuen, which is situated in DD 116 Lot 13 (as opposed to DD 116 Lot 1962), and is a considerable distance away from the Brick House and the said Lots;

(3)     In response, Joanna produced a photograph of the electricity meter installed on the external wall of the Brick House with a matching meter number to the CLP electricity bills;

(4)     It suffices to say that there is no substance to Madam Tsang’s contentions, and I find that CLP’s electricity bills did in fact relate to the Brick House.

72.  As to the February 1 Encounter:

(1)     As mentioned above, it is not in dispute that such an encounter took place.  There is a difference between who was present at the encounter – according to Madam Wong, TLF was accompanied by her son and nephew, whereas according to TLF, she was accompanied by a surveyor surnamed Tang;

(2)     What is not in dispute between Madam Wong and Madam Tsang’s evidence, however, is that TLF requested Madam Wong to enter into a lease for the said Lots with an annual rent of HK$10, but no lease was entered into between them (Madam Tsang did not plead to, inter alia, the February 1 Encounter in the RAD&CC on the grounds that she had no direct knowledge of the encounter);

(3)     As noted above, there was also a slight change in recollection by TLF between TLF’s Original Defence and her witness statement - she originally said that Madam Wong told her she did not wish to farm anymore and intended to move soon to the United States to join her husband, but later she said that Madam Wong told her she needed to consult her children first and her children wished her to move to the city. Nothing much turns on this;

(4)     As I have explained above, on the cases as presently pleaded, it is no longer necessary for me to make a finding as to what exactly was said between the two of them during their encounter for the purposes of the possession claim.  That said, I find Madam Wong’s version inherently more likely than that of Madam Tsang:

(a)     It is at least odd that if Madam Wong had really told TLF that Lam Bo had transferred or sub-leased the said Lots to her, unless Lam Bo was a tenant or her representative, TLF would at least have been surprised that a third party purported to have the right to transfer or had been receiving rent for the said Lots.  However, TLF does not appear to have made any inquiries as to who Lam Bo was, and indeed, she said little about him.  There is simply no evidence of anyone named Lam Bo, if he existed at all.

(b)     On the other hand, according to Madam Wong, she merely told Madam Tsang that she had been living on the enclosed land, which included the said Lots, for over 30 years, and no one had ever come to collect rent.  This is consistent with the fact that TLF made no mention of having collected any rent for the said Lots in the past. TLF made no mention of Mr Cheung in her pleadings or her evidence, the existence of Mr Cheung having been raised for the first time by Madam Tsang.

73.  Finally, as to the allegation in the RAD&CC that the said Lots were seriously flooded in or around the late 1970s to early 1980s and the Government had relocated all occupiers, including Madam Wong and her family, there is no evidence to substantiate such an allegation.  Moreover, such an allegation is also inconsistent with the evidence of Joanna and Yat Ling, which I have accepted. I therefore reject the allegation.

74.  For all of the reasons above, I find that it was Madam Wong who has had factual possession of the said Lots, and not TLF, whether through Mr Cheung or otherwise.

Claims of Trespass

75.  As mentioned above, Madam Wong seeks injunctive relief and damages (including aggravated damages) against TLF’s estate and Mr Tang for, inter alia, trespass.

76.  The principles on the tort of trespass are well established and for present purposes may be summarised as follows:

(1)     The tort consists of any unjustifiable intrusion by one person upon the land in the possession of another. Possession means generally the occupation or physical control of the land;

(2)     The slightest crossing of the boundary is sufficient;

(3)     It is no defence that the trespass is due to a mistake of law or fact, provided the physical act of entry was voluntary.  A negligent incursion on to a claimant’s land or property can in law be a trespass;

(4)     Trespass is actionable per se, and to support an action of trespass, it is not necessary that there should have been any actual damage.  Where entry is threatened, a quia timet injunction may be granted; and

(5)     It is a defence to an action of trespass to show that the defendant is on the land with the leave and licence (express or implied) of the owner.

     See eg Clerk & Lindsell on Torts, 22^nd Edition at §§19-01, 19-06 and 19-09

77.  To establish a claim of trespass, Madam Wong must prove as a starting point possession of the land said to have been intruded.

78.  The plea of trespass is contained in paragraph 12 of the RASOC:

“Further, by reason of the matters pleaded in paragraph 10 above [which sets out the Alleged Incidents], the Defendants have, by themselves and/or their agents and/or representatives, without the licence or consent of the Plaintiff wrongfully entered the Land, and are liable to the Plaintiff for trespass to the Land.” (emphasis added)

“The Land” (which I have referred to in this Judgment as the Possessed Land) is defined in paragraph 1 of the RASOC as “comprising at least the lots more particularised in the Schedule”.  The schedule identifies some 24 lots of land, including the said Lots. Although in the original prayer to the RASOC, Madam Wong sought injunctive relief against the defendants for trespass of “the Land”, this has now been amended to refer only to the said Lots. The claim for damages for trespass, however, remains (whether advertently or inadvertently) a general plea, and thus, having regards to paragraph 12, presumably refers to damages for trespass to “the Land” and not just the said Lots.

79.  At the outset, I bear in mind that Madam Wong is the only person with direct knowledge supporting her case on the Alleged Incidents.  As she was unable to attend the trial to be cross-examined, her evidence is hearsay and I must therefore exercise caution in considering the weight to be given to her evidence.

80.  The Late 2004 Incident refers to TLF, her son and her daughter (i.e. Madam Tsang) and a villager of Chuk San Tsuen entering and loitering in the Possessed Land.  There are no specifics as to when this happened or which part of the Possessed Land was being intruded. It is not specifically alleged that TLF and her companions had trespassed onto the said Lots on that occasion. In cross-examination, Madam Tsang herself claimed that she purportedly visited the said Lots in December 2004. As mentioned above, however, I have doubts as to whether Madam Tsang was in fact aware of the precise location of the said Lots on the ground. Given the lack of particularity of the claim, I am not prepared to make any finding of trespass. In any event, even if I were wrong, any trespass would have been minor, and I would not have been prepared to award anything other than nominal damages.

81.  As to the February 1 Encounter, the RASOC alleges that TLF and her son and nephew entered the Possessed Land without Madam Wong’s permission and approached the Brick House.  Leaving aside the difference between the parties as to who accompanied TLF on that occasion, there is no dispute that Madam Wong invited TLF into the Brick House and had a conversation with her there.  The invitation by Madam Wong plainly constituted an express licence. For this reason, I am not prepared to make any findings of trespass. In any event, it is again not alleged that TLF and her companions had trespassed onto the said Lots on that occasion.

82.  Insofar as it is alleged that TLF and her companions may have trespassed onto the Possessed Land (which Madam Wong said in her witness statement to be Lot 2001) in approaching the Brick House:

(1)     First of all, whilst there is a general averment that Madam Wong has had “undisturbed possession of [the Possessed Land] to the exclusion of the Defendants and the previous registered owner or owners of the said Lots (as well as to the exclusion of the registered owners of other lots comprised in the [Possessed Land])”, the focus of the action and the evidence has been on the said Lots.  Other than showing that she had built fences enclosing a number of lots, including the Lot 2001, there is little other evidence as to her possession of Lot 2001, which lies west of the Brick House;

(2)     In any event, even if Madam Wong had possession of Lot 2001, it is unclear from the RASOC or Madam Wong’s witness statement whether TLF and her companions merely entered Lot 2001 to walk up to the Brick House.  If that was the case, and there is nothing to suggest that they had climbed over or broken through any locked gates, there would likely have been an implied licence for them to do so.  As Diplock LJ held in Robson v Hallett [1967] 2 QB 939 at 953-954 that:

“…when a householder lives in a dwelling-house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to inquire whether he may be admitted and to conduct his lawful business.  Such implied licence can be rebutted by express refusal of it, as in this case the Robsons could no doubt have rebutted the implied licence to the police officers by putting up a notice on their front gate “No admittance to police officers”; but that was not done in this case…”

(3)     Given that Madam Wong is now unable to provide further details as to what happened prior to her inviting TLF into her home, I am not prepared to find that there has been any trespass into Lot 2001.

83.  As to the May 20 1^st Incident:

(1)     It is not alleged that either TLF or Mr Tang was present during that incident, which involved two men, one of whom identified himself by the surname Lee.  Rather, it is alleged (presumably) that the men were agents and/or representatives of TLF and Mr Tang. It is not alleged however that the two men held themselves out as being agents or representatives of TLF and Mr Tang. There is in fact no evidence that this was the case, and I decline so to find;

(2)     In any event, all that they are alleged to have done was to approach the Brick House and to speak to Madam Wong expressing their interest in some lots.  It is not alleged in either the RASOC or Madam Wong’s witness statement that the men exhibited any hostile or unlawful intention or that they refused to leave after Madam Wong told them she was not interested.  My observations above on implied licence apply equally here.

84.  As to the May 20^th 2^nd Incident:

(1)     Assuming that Madam Wong’s allegations concerning the incident are proven, and that Madam Wong was in possession of Lot 2001 at the time, the “gang of 6 young persons, some with their hair dyed blond” entering into Lot 2001 would plainly amount to trespass.  Even if they were simply loitering outside the gate, there can be no question of implied licence, since they had no lawful business being there.  A number of difficulties with Madam Wong’s claim remain, however.

(2)     As mentioned above, there is little evidence of Madam Wong’s actual possession of Lot 2001 other than that there was fencing enclosing a portion of the lot.  Moreover, it is said that the alleged trespassers were loitering outside the gate on Lot 2001, and therefore, outside of any enclosed portion of Lot 2001.  On this ground alone, I would not be prepared to find that there has been trespass.  In fact, Madam Wong did not specify in her witness statement where the individuals were at the time, but merely that they had “entered”.

(3)     Again, Madam Wong would have to prove that these persons were agents or representatives of TLF and Mr Tang.  There is no evidence that this was the case.  Again, none of them is alleged to have held themselves out as agents or representatives of TLF and/or Mr Tang or that they were even there in relation to the said Lots.  I bear in mind that on Madam Wong’s own case, she was in possession of a large number of lots, belonging presumably to a number of different paper owners;

(4)     It is entirely possible that these individuals were there on behalf of other paper owners and referring to other lots.  Notwithstanding the apparent coincidence in timing, and the fact that there were apparently no further incidents after the injunction orders, there is in my view insufficient evidence to connect these individuals to TLF or Mr Tang.  Moreover, despite Mr Mak’s rigorous cross-examination of Mr Tang, having heard his evidence, I am not persuaded that he had any involvement in either the May 20^th 2^nd Incident (or any of the other Alleged Incidents discussed below).

(5)     In the circumstances, I decline to find that there has been any trespass as alleged.

85.  As to the May 20^th 3^rd Incident, again, there are no specifics as to which part of the Possessed Land was being intruded.  In fact, in Madam Wong’s witness statement, she merely said that two persons appeared “near” (and therefore, not “on”) the Possessed Land, in which case, there can be no trespass at all.  Moreover, it also appears from her witness statement that she did not even see the individuals but merely heard their voices, in that she purportedly recognised the voice of one of them being TLF’s daughter, whom she met some half a year ago in the Late 2004 Incident.  Her hearsay evidence is plainly inadequate even if taken at face value to prove a case of trespass.

86.  For all the reasons above, I find that the claims of trespass against TLF and Mr Tang have not been made out and are dismissed.

Claims of Harassment and Intimidation Etc.

87.  Paragraph 10 of the RASOC pleads:

“On divers occasions on or around the dates specified below [ie the Alleged Incidents], the Defendants have by themselves and/or their agents and/or representatives molested, harassed, caused nuisance and/or annoyance, intimidated, and/or interfered with the Plaintiff with a view of coercing the Plaintiff to give up possession of the said Lots and/or otherwise acknowledge the alleged title and right to possession of the said Lots of the 2^nd Defendant.”

88.  The torts of harassment and intimidation in Hong Kong were recently summarised by Coleman J in Secretary for Justice and Anor v Persons Unlawfully and Wilfully Conducting Themselves in any of the Acts Prohibited Under Paragraphs 1(A), (B) or (C) of the Indorsement of Claim [2019] 5 HKLRD 500 at paragraphs 22-24:

“The tort of harassment under common law, as recognized in Hong Kong, relates ordinarily to a course of conduct by a person by words or action directly or through third parties, sufficiently repetitive in nature that that person ought reasonably to know would cause worry, emotional distress or annoyance to another person. The mental element required is being reckless as to whether the victim would suffer injury from the conduct. Damage to the victim is necessary to constitute the complete tort. Harassment can result in a range of reactions, extending from physical injury at one end of the scale to mere humiliation at the other. The correct balance has to be struck in the particular circumstances. Anxiety is capable of constituting damage, and financial loss would also be recoverable.

Insofar as it might be argued, and has been argued in other cases, that the tort of harassment is not recognized in Hong Kong law, I disagree. In any event, it is at least sufficiently seriously arguable that such a tort does exist as would justify proceeding on that basis when considering the potential grant of interlocutory relief.

The tort of intimidation relates to an unlawful threat made with intention to cause harm to the claimant with that threat, and damage occurring to the claimant.  The requirement for damage may be satisfied if it can be shown that the plaintiff suffered mental distress or other emotional damage.”

89.  Where the alleged harassment and intimidation are tantamount to criminal misconduct, in terms of the standard of proof, the principles of Re H [1996] AC 563 are engaged: see eg Law Ka Yan Thompson v Ho Kang Wing (unreported) HCA 1926/2015, 2 April 2020, per Wilson Chan J at §§41-44. Moreover, inferences of serious misconduct may only be drawn where such inferences are compelling: see eg Nina Kung v Wong Din Shin Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387.

90.  In my judgment, none of the alleged Late 2004 Incident, February 1^st Encounter, the Telephone Call Incidents, the May 20^th 1^st Incident, or the May 20^th 3^rd Incident whether individually or collectively, amounted to harassment or intimidation within the meaning of the torts set out above:

(1)     The Late 2004 Incident, leaving aside the lack of particularity as mentioned above, plainly could not amount to harassment or intimidation;

(2)     The February 1^st Encounter also could not amount to harassment or intimidation.  No threatening conduct is alleged to constitute intimidation.  There was also no repetitive conduct to constitute harassment;

(3)     As to the Telephone Call Incidents, whilst I have no doubt that persistent or repetitive unwanted telephone calls to a person can constitute harassment even if no threatening words are said (none is alleged here), the plea is wholly unparticularised. For instance, there are no particulars as to how many telephone calls were made or when such calls were made.  Madam Wong’s witness statement did not advance matters much further.  In any event, I bear in mind that Madam Wong and TLF are the only persons with direct knowledge of the matter, and neither Madam Tsang nor Mr Tang has had the opportunity to challenge her evidence at trial;

(4)     As to the May 20^th 1^st and 3^rd Incidents, no threatening conduct is alleged.  I also repeat my observations above in relation to these incidents in the context of the trespass claim.

91.  The only incident that could constitute intimidation is the May 20^th 2^nd Incident.  However, in my judgment, the claim is not made out against either TLF or Mr Tang:

(1)     Given the seriousness of the allegation, cogent evidence is required to establish the claim;

(2)     The only witness to the incident is Madam Wong who, unfortunately, was no longer able to give evidence at trial.  The defendants therefore do not have the opportunity to challenge her evidence;

(3)     I repeat my observations above in the context of the trespass claims the lack of evidence as to the connection between TLF and/or Mr Tang the individuals allegedly involved;

(4)     In any event, as mentioned above, I am not persuaded that he had any involvement in either the May 20^th 2^nd Incident or any of the other Alleged Incidents.

92.  I should mention here that I have given careful consideration to Mr Mak’s submissions inviting the court to draw an inference as to the involvement of TLF and in particular Mr Tang in the Alleged Incidents. Indeed, Mr Mak contends that the inference that Mr Tang was ultimately behind the incidents is “overwhelming” or “irresistible”. In summary, he submitted that:

(1)     Mr Tang downplayed his relationship with TLF, describing her as a “distant relative” in his witness statement. On cross-examination, however, he told the Court that his father and TLF were in fact half-blood siblings. Mr Tang and TLF’s close relationship was demonstrated, for instance, by the fact that he was prepared to lend money to TLF on multiple occasions and trusted her to repay the HK$930,000 from the 2005 Re-Assignment and the 2005 Loan of HK$100,000 without any documentation;

(2)     The discussions between TLF and Mr Tang shortly after the Chinese New Year in 2005, which led to the 2005 Loan, were especially important. According to Mr Tang, he was told by TLF that she needed funds to engage a land surveyor to conduct a survey of all her lands and enclose them so as to safeguard them being encroached by others. By 2005, TLF had no further interest in the Five Lots, as she had assigned them to Mr Tang pursuant to the 2002 Assignment. However, the scope of the survey works actually done concerned only the Five Lots, and only Mr Tang had the motive to protect those lots;

(3)     The 2005 Loan was also never repaid, and in any event, the costs of conducting the survey were merely HK$2,000. Moreover, previous loans and agreements between TLF and Mr Tang had all been documented in writing, with formalities such as witnesses, guarantors, solicitors and the involvement of TKY. In contrast, the 2005 Loan did not contain such safeguards, notwithstanding TLF’s history of repeated defaults, that she had no money to settle her previous debts, and her advancing age;

(4)     The court should infer, therefore, that the 2005 Loan was not in fact a loan but a payment by Mr Tang to TLF, presumably, to engage in the Alleged Incidents. But for Mr Tang’s consent and direction, there was no reason for TLF to “borrow money” and to expend money (which she did not have) to investigate and safeguard land which she had no interest in. There was also no evidence from TLF that she had done any fencing work at all;

(5)     Hence, the “irresistible inference” is that Mr Tang was informed by TLF that the said Lots had been occupied, and that action was needed to remove such occupiers. Mr Tang then paid and directed TLF to take such actions. Although Mr Tang claimed that he did not wish to be involved in litigation, he only transferred the Lots back to TLF on 5 July 2005. Indeed, he chose, unsuccessfully, to contest the ex parte Injunction Order before Johnson Lam J, rather than to give an undertaking;

(6)     The “most suspicious” circumstance was Mr Tang’s assertion that he had no further interest in the said Lots. However, it was only after the hearing before Johnson Lam J that Mr Tang assigned the said Lots back to TLF pursuant to the 2005 Re-Assignment on 5 July 2005 for a purported consideration of HK$930,000. Notwithstanding that the assignment expressly stated receipt of the consideration, Mr Tang accepted in cross-examination that he had not yet received the sum. Hence, Mr Tang must have intended to keep a residual interest in the form of a vendor’s lien over the said Lots. The 2005 Re-Assignment was thus “a façade” to conceal his continued interest in the said Lots; and

(7)     Finally, since obtaining injunctive relief against TLF and Mr Tang, Madam Wong never mentioned any more unwelcomed visits to the Brick House or the said Lots. Hence, the Court should draw the inference that TLF and Mr Tang were likely to have been behind the Alleged Incidents.

93.  In my judgment, despite Mr Mak’s able arguments, the grounds upon which he invites the Court to draw the inference that TLF and in particular Mr Tang were behind the Alleged Incidents amount to little more than mere speculation. I do not accept that they, either individually or taken together, meet the requisite threshold of compelling inference required.

94.  In any event, having heard Mr Tang in the witness box in the face of Mr Mak’s vigorous cross-examination, I found no reason to doubt the truthfulness of his evidence. I find that his financial assistance to TLF, including the 2005 Loan, and his acceptance of the Five Lots in lieu of repayment, arose out of a genuine desire to assist an elder member of his extended family. Similarly, his forbearance in pursuing or enforcing repayment of the 2005 Loan and the consideration for the 2005 Re-Assignment was neither sinister nor surprising given their relationship as well as TLF’s financial position and ongoing litigation. The 2005 Loan to enable, inter alia, TLF to conduct a survey of the said Lots was also not unreasonable given TLF’s sense of responsibility to ensure that she had good title to the Five Lots she had assigned to Mr Tang, a theme reflected in her original defence.

95.  In the circumstances, the claims for tort of harassment and intimidation (the complaints of molestation or nuisance do not carry matters further) against TLF and/or Mr Tang are dismissed.

XIII    Madam Yu and Sky Trinity

96.  I should also mention the involvement of Yu Xiao Yan (“Madam Yu”) at the trial:

(1)     On the first day of the trial, Madam Tsang applied for leave to be assisted by Madam Yu on the basis of her advanced age and that she had sight and hearing difficulties;

(2)     Mr Mak and Mr Sham did not object to allowing Madam Yu to act as a McKenzie friend. However, Mr Mak noted that Madam Yu may have a personal interest in the outcome of these proceedings by virtue of her relationship with Sky Trinity. As mentioned above, on 5 May 2014, Sky Trinity acquired from Madam Tsang the possessory interest in the said Lots for a consideration of HK$2,000,000. As at 18 March 2018, Madam Yu was a 20% shareholder and director of Sky Trinity. Madam Yu is also a 60% shareholder and director of San Tong Lee, which had purchased a number of other lots in Yuen Long from Madam Tsang, including lots in Shiu Tak Wai as mentioned above.

(3)     I allowed the application but advised both Madam Tsang and Madam Yu as to the permissible scope of the assistance that could be given by a McKenzie friend, as explained in Hung Tuk Yee v Hong Kong Housing Society [2015] 2 HKLRD 737 at paragraphs 18-19;

(4)     I regret to say, however, that on numerous occasions, Madam Yu not only overstepped her role as a McKenzie friend but was also disruptive at the trial, leading to repeated warnings and reprimands from the bench. For instance, she made repeated attempts to give instructions to Madam Tsang on lines of questioning whilst Madam Tsang was conducting her cross-examination, interrupted witnesses when they were giving evidence, intervened in my exchanges with Madam Tsang and sought to volunteer answers for Madam Tsang during her cross-examination. It is therefore necessary for the Court to record its disapproval of such conduct.

XIV    Conclusion and costs

97.  For the reasons above, I grant a declaration that, as between Madam Wong and TLF’s estate and as at 23 May 2005 (being the date of the writ of this action): (1) for a period of not less than 20 years prior to the date of the writ, Madam Wong had been in physical and exclusive occupation of the said Lots (as shown coloured yellow and green on Map 1); and (2) as at the date of the writ, Madam Wong had a better right of possession of the said Lots than TLF’s estate.

98.  It is strictly unnecessary to grant a declaration that Madam Wong is not bound by the 1999 Judgment as she was never a party to HCA 10749/1999. However, I can appreciate that if this Judgment is to be registered with the Lands Registry, such a declaration may assist future purchasers of the said Lots in resolving any lingering doubts as to the effect of the 1999 Judgment on Madam Wong’s right to possession. In the circumstances, I am willing to grant a declaration that Madam Wong is not bound by the 1999 Judgment.

99.  Insofar as a permanent injunction is sought to restrain TLF (or representatives of her estate) from trespassing into the said Lots, I do not think that that is necessary in the light of the declaratory relief I have granted above.  There is of course no risk that TLF herself will commit any further acts of trespass.

100.  Given that Mr Tang has through his solicitors given an undertaking that he would not assert any claim, right, interest or benefit of, in or over the said Lots, including any right of possession or occupation, it is not necessary for me to make any declaration in this regard.

101.  The claims for damages and injunction for harassment, intimidation and/or molestation, trespass against TLF and Mr Tang are dismissed.

102.  As to costs:

(1)     As between Madam Wong and TLF’s estate, as Madam Wong has not been wholly successful in her claims, an appropriate costs order would be that Madam Wong have 85% of her costs, to be taxed on a party and party basis, if not agreed, with certificate for two counsel.  I have already taken into account Mr Mak’s submission that some additional time has been incurred due to Madam Tsang suddenly becoming unrepresented on the eve the trial. The Court does not, of course, penalise a party in costs merely for acting in person. However, given that Madam Tsang is one of the protagonists in this action, she should have been familiar with the contents of the witness statements, especially her own, long before the commencement of the trial. It would thus be unfair for Madam Wong to have to bear the costs of the adjournments to enable those statements to be interpreted to her. That said, looked at in the round, I do not believe that the time spent contributed very significantly to Madam Wong’s overall costs of the action. Therefore, I have adopted the broad-brush approach above.

(2)     As to costs between Madam Wong and Mr Tang, Mr Mak invites the Court to make a Sanderson order directing that TLF’s estate pay Mr Tang’s costs directly. I do not agree such an order is appropriate given that Madam Wong has failed in her claims in tort against both TLF’s estate and Mr Tang. As to the declaratory relief sought by Madam Wong in respect of the said Lots, Mr Tang in my view maintained a neutral stance. In the circumstances, costs should follow the event, and Mr Tang is to have his costs of the action, to be taxed on a party and party basis, if not agreed;

(3)     The above orders are on a nisi basis.

103.  I should also record here Mr Mak’s submissions that in the event that Madam Wong succeeded in the action, he would be seeking an order that the costs of the action should be borne, at least in part, by Sky Trinity or Madam Yu due to their involvement.  As mentioned above, the costs orders are made on a nisi basis. It is for Madam Wong, having regard to my findings and reasons in this Judgment, to make such applications as she thinks appropriate under RHC Order 62 r.6A.

104.  Lastly, I thank counsel for their assistance.

Annex 1

Annex 2

HCA 939/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 939 OF 2005

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D E C I S I O N

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1.  There is before me an application by summons by the 1^st defendant to strike out the plaintiff’s action on the ground that it is an abuse of the process of the court by reason of the delay in the proceedings that has occurred, and the prejudice that has been caused to the 1^st defendant. There is also an application by the 1^st defendant for leave to amend the defence, which is to be dealt with if the strike-out application is unsuccessful.

2.  This action, which was instituted by Madam Wong Chong Kwai Yin (“Madam Wong”) on 23 May 2005, concerns two pieces of land known as Lot Nos 1976 and 1978 in Demarcation District No 116 (“DD116”), Yuen Long, New Territories (“the two Lots”). 

3.  Madam Wong’s mental condition has deteriorated in recent years and the action is now being carried on by her daughter, Joanna Wong, as her next friend.

4.  The plaintiff alleges that Madam Wong had been in adverse possession of the two Lots (as well as other lots in the region which are not the subject matter of this action) since around 1967. 

5.  The registered owners of the two Lots were originally both Tsang Hoi Fan and Tsang Hon Kam, who were brothers.  They were registered as owners as early as in 1935. 

6.  The 1^st defendant, when the action was commenced, was Madam Tang Lan Fong (“Madam Tang”).  She was the wife of Tsang Chun Wai, who was the son of Tsang Hon Kam. 

7.  By an action instituted in 1999 (HCA 10749/1999) (“the 1999 action”) against Tsang Hoi Fan and Tsang Hon Kam, Madam  Tang obtained a judgment from Master Barnes (“the 1999 judgment”), apparently without opposition, declaring that she had acquired possessory title to a number of lots in DD116, including the two Lots, and that the title of the two defendants there, as registered owners, had been extinguished. 

8.  On the strength of that judgment, the 1^st defendant assigned the two Lots, in addition to other lots, to Tang Kwong Yin, the 2^nd defendant herein, on 1 February 2002. 

9.  This explains why the plaintiff’s action here before me was brought against Madam Tang and Tang Kwong Yin as the 1^st and 2^nd defendants respectively (although the 2^nd defendant assigned the two Lots back to the 1^st defendant on 5 July 2005, soon after this action was commenced).  For reasons that have not been gone into, at one stage the personal representatives of Tsang Hoi Fan and Tsang Hon Kam were joined in this action as the 3^rd and 4^th defendants respectively, but the action was subsequently discontinued as against them. 

10.  Madam Tang passed away on 23 November 2006.  The action is now being defended by Madam Tsang Hau Ling (“Madam Tsang”), the daughter of, and executrix of the estate of, Madam Tang. 

11.  In support of her claim of adverse possession, the plaintiff alleges that the 1999 judgment obtained by Madam Tang declaring she had obtained possessory title was obtained by fraud and by collusion and should be set aside.  Essentially it is alleged that Madam Tang had not in fact been in possession of the land in question (including the two Lots), but because her husband and his brother, who were successors to the registered owners, had experienced great difficulty in obtaining formal succession to the land, the 1999 action was devised as a means to inherit it, circumventing any necessary formal succession procedures. 

12.  The plaintiff also alleges that the defendants had, by themselves and/or their agents, in 2004 and 2005, entered into the two Lots without Madam Wong’s consent and harassed and intimidated her.  For these acts, the plaintiff claims damages for trespass and harassment. 

13.  The principles guiding the exercise of the court’s discretion to strike out proceedings in this type of application are set out in the Court of Final Appeal’s judgment in Wing Fai Construction Company Limited (in liquidation) v Yip Kwong Robert (2011) 14 HKCFAR 935. They are well-known, and I have borne them in mind and will not repeat them here. 

14.  On this application, Mr Paul Wong for the 1^st defendant argued that there had been inordinate and inexcusable delay and that the 1^st defendant would be prejudiced in a trial.  The alleged delay occurred, it is said, during the continuous period between October 2006 and April 2015. 

15.  To deal with the argument, it is necessary to examine the events during this period more closely.  As suggested by Mr Andrew Mak, who has appeared for the plaintiff, the history may be broken down into five periods: 

(1)   October 2006 to 1 April 2009

The plaintiff’s witness statements were filed in October 2006.  Thereafter Madam Tang died on 23 November 2006 and Madam Tsang obtained probate in August 2007.  Following Madam Tang’s death, the two sides started in 2007 to negotiate for a settlement.  Although Madam Tsang denied having negotiated with the plaintiff, the documents available show that Tsang Kwok Ip, her brother and one of the beneficiaries and executors named in the will (though he did not take up probate), had discussed with the plaintiff’s solicitors in August 2007, and a draft settlement agreement was revised in accordance with his comments, though it was eventually not entered into. 

Another round of negotiations took place between March and May 2008, between the plaintiff and Tsang Kwok Ip, and another draft settlement agreement was produced.  This contradicted Madam Tsang’s assertion that nothing of substance was ever discussed or exchanged, and on this application the 1^st defendant has failed to adduce any evidence from Tsang Kwok Ip, in relation to the course of negotiations. 

For a brief period between July and August 2008, the plaintiff acted in person, followed by a change of solicitors in August 2008. 

In these circumstances, it seems to me that the delay during this period was slight.  The death of Madam Tang was clearly a major event, following which the parties entered into negotiations.  I accept that the existence of negotiations is not necessarily an excuse for prolonged delay, but it is a factor to take into account. 

(2)   2 April 2009 to October 2010

On 2 April 2009 the Civil Justice Reform and the amended Rules of the High Court came into operation.  On 8 July 2009, the plaintiff, again, retained new solicitors, who would need some time to read into the case.  More importantly, on 13 July 2009, Madam Wong suffered an acute stroke, The medical report stated:

“Patient remained chair bound and aphasic. She required long-term foley catheter. She was not mentally fit for consent or making a statement on discharge.”

The evidence was that for about a year, the family was busy tending to Madam Wong’s needs because of her severe illness.  Madam Wong’s health problem also drained the family of financial resources, so that they made enquiries with the Legal Aid Department, but were given to understand that they might not be eligible for legal aid.  It seems to me that the inaction during such a period was, in the scheme of things, excusable. 

(3)   26 October 2010 to October 2011 

I do not think there was any delay during this period.  On 26 October 2010 Joanna Wong filed a notice of intention to proceed and a notice to act in person.  From January 2011 onwards she took various steps, in person, to try to have the proceedings carried on having regard to Madam Wong’s mental condition and Madam Tang’s death.  She instructed solicitors again in June 2011.  In October 2011 the parties were in touch with a view to mediation. 

(4)   October 2011 to 7 November 2014 

From October 2011 onwards steps were taken for mediation.  A legally qualified mediator was appointed.  The first session took place on 12 November 2011.  The subsequent two sessions did not take place until 11 September 2013, and 25 February 2014 respectively.  There is no clear evidence what happened in between, and prima facie it seems to me that there was unexplained delay during this 22-month period. 

A draft settlement agreement was prepared in October 2013 but the 1^st defendant did not comment upon it.  In the end, the mediation was unsuccessful and in July 2014 the mediator issued a certificate. 

(5)   7 November 2014 to April 2015

On 7 November 2014 Joanna Wong issued a summons applying for herself to be appointed as next friend of Madam Wong and for Madam Tsang to represent the estate of Madam Tang.  At the hearing, the Master directed certain medical evidence be filed.  The application was later replaced by another summons dated 9 April 2015.  In the light of the steps taken, I do not think there was delay during this period.

16.  It seems to me, therefore, that relevant delay only occurred to a slight extent during the initial period of October 2006 to 1 April 2009, and during a 22-month interval that fell within the period of October 2011 to 7 November 2014.  Such delay is not to be endorsed with approval but while the lapse of time from the writ of summons to the present is very considerable, clearly this action is far from the worst kind of cases of delay.

17.  In any event Mr Wong accepted that delay alone does not justify an order of striking out on the ground of abuse.  In addition, the 1^st defendant has to show prejudice caused by the delay. I have endeavoured to set out certain principles relating to the question of prejudice in Tsang Foo(also known as Fu) Keung and Key Kwong Development Limited v Chu Jim Mi Jimmy (unreported, HCA 7140/1995, 12 July 2013) at §80, to which I have referred.  I now deal with the matters mentioned in the evidence and argument as giving rise to prejudice and potential prejudice: 

(1)   The 1^st defendant referred to a person called Mr Cheung Hei.  It is said that the two Lots were let to him for farming purposes, and that he might have had relevant evidence to give, contrary to the plaintiff’s case.  However, Mr Cheung died in 2004, even before this action was commenced. The unavailability of his evidence is therefore irrelevant for present purposes.

(2)   The children of Mr Cheung Hei: – Madam Tsang said that the children of Cheung Hei did not live anywhere near the two Lots and no villagers could tell her their whereabouts.  However, there is no basis to suggest that had the action proceeded without delay, these potential witnesses could have been located and procured to give evidence. 

(3)   The evidence also refers to a person called Mr Tang (or Tsang) Lok Man who might have known Mr Cheung Hei personally and who might have been able to give evidence regarding the occupation of the two Lots by Mr Cheung Hei, but he had emigrated to Canada “some years ago” with his entire family.  Madam Tsang was unable to contact him.  Again, there is nothing to show that this was the consequence of any delay on the part of the plaintiff.  Further, it is to be noted that there is no evidence that Madam Tsang took any steps earlier to gather evidence in defence of the proceedings. Indeed, in §28 of her 3^rd affirmation, she said:

“... I did not care to locate or solicit evidence for this utterly non-sense and totally fictitious claim. Also, I was not representing Madam Tang before. I did not see the need to collect evidence not until I was appointed to carry on these proceedings on behalf of the 1^st Defendant in 2015.”

(4)   Madam Tang died on 23 November 2006, only a month after the plaintiff filed her witness statements.  It is accepted by the 1^st defendant that irrespective of any delay in the progress of the action, she could not have attended the trial in any event. 

(5)   Madam Wong’s mental condition had deteriorated, apparently after the stroke in 2009.  Madam Tsang said she would be deprived of her “right” to cross-examine Madam Wong.  With respect, I do not see it in the same way – the fact that Madam Wong could not give evidence is not necessarily prejudicial to the 1^st defendant; on the contrary, it could be to her benefit because if Madam Wong is unable to give evidence, submissions can be made as to the weight that could or should be placed on her statements. 

(6)   As Mr Mak pointed out, apart from Madam Tang, there were two witnesses whose statements had been filed in 2006 on behalf of the 1^st defendant, namely, Cheng Kei Wang and Lee  Fat  Choi.  There is no specific evidence from the 1^st defendant that these witnesses are no longer available.  Mr Wong argued that the general complaint in Madam Tsang’s affirmation that she could not locate witnesses is sufficient, and should be read as covering these two persons and that I should assume that they are both now   unavailable.  I do not agree.  In this situation the 1^st defendant must condescend to particulars with regard to the prejudice she alleges she would suffer.  It is notable that according to their statements, Mr Cheng is Madam Tsang’s husband, and Mr Lee is her sister’s husband.  In the absence of specific explanation, I cannot see why it is said that these two witnesses could no longer be located.

(7)   As to the documents and information from Wong Hui & Co, relating to the 1999 action and judgment, which are said to be unavailable now, in the way I see the action, the more important issue is whether there was the requisite possession and intention for adverse possession on the part of the plaintiff.  Anyway there are two answers to this allegation of prejudice.  First, the allegation that the 1999 judgment was procured irregularly was there in the statement of claim from Day One.  Madam Tang clearly knew that Wong Hui & Co acted in the matter, for she referred to them in her defence.  It was incumbent upon a defendant, even if the plaintiff was not progressing the action, to prepare for his own defence: see Tsang Foo Keung at §34, and the cases cited therein.  The 1^st defendant ought to have gathered any necessary information and documents when she knew the case raised against the 1999 judgment, which, judging from the defence, she did in 2005.  If as a result of her failing to do that in time, the evidence is lost, a defendant cannot put all the blame on the plaintiff.

Secondly, even without any delay, on Mr Wong’s argument, the documents would only have been sought from Wong  Hui  &  Co in around 2009, 10 years after the 1999  judgment.  There is nothing to show that the documents would have been available then and that they had been disposed of or lost only in the last couple of years and not before 2009.

18.  In all the circumstances, I am not satisfied that there is any or any sufficient prejudice caused by such delay in the proceedings as I have found, I am not satisfied that a fair trial has been rendered impossible by any delay attributable to the plaintiff, or consequently, that there has been any such abuse of the court’s process as should warrant the draconian order of a strike-out of the entire action.  For all these reasons, I reject the 1^st defendant’s application to strike out.

19.  Coming to the question of costs on the strike-out, Mr Wong argued that even if the application fails, there should be no order as to costs.  That was the result in certain previous cases but costs is a matter of discretion that depends on the facts and circumstances of each case.  I do not think it would be right in this case to deprive the plaintiff of all her costs.  I think that a fair order is that the 1^st defendant do in any event pay the plaintiff the costs incurred after the date of the filing of Joanna Wong’s affirmation, with certificate for one counsel, to be taxed if not agreed. 

20.  As to the 1^st defendant’s application for leave to amend her defence, what is proposed involved the deletion of the entire defence previously filed, which was apparently prepared by Madam Tang herself in Chinese, and the substitution of a defence and counterclaim prepared in English by the 1^st defendant’s present legal representatives. The only point raised by Mr Mak on this application is that the 1^st defendant should provide an explanation why she is seeking to withdraw the averments in the “home-made” defence, that Mr Mak said amount to admissions that the 1999 judgment was obtained not on a true basis but as a stratagem to bypass proper succession procedures. 

21.  It seems to me in the circumstances of this case we should strive to avoid needless arguments as to whether the averments in question are admissions and so on and so forth.  The plaintiff is not seeking and has not indicated any intention to obtain a judgment on admissions.  The amendments, if allowed, would not alter the fact that the statements in question had been made by Madam Tang before in the original defence.  At trial those statements could still be relied upon by the plaintiff, if appropriate and subject to arguments about their true meaning, as evidence against the 1^st defendant herself, or in support of the plaintiff’s case.  Approaching the matter practically, I think the proper way to move this case forward is to give leave to amend as per the summons. 

HCA 939/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 939 OF 2005

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____________________

HCA 939/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 939 OF 2005

____________

____________

_____________________________________

REASONS  FOR  DECISION

_____________________________________

1.  The Plaintiff claimed to have a good title by way of adverse possession on several pieces of land in the New Territories. She occupied those properties herself. Whether that claim can be made good will have to be litigated in this action. The present application concerns incidents happened on 20 May 2005  which caused the Plaintiff to concern about her personal safety. She made a report to the police but no effective action could be taken by them. She therefore moved to live with her daughter for the time being and sought injunctive relief from the court.

2.  The injunctive relief were sought against the 1^st and 2^nd Defendants because the Plaintiff alleged that they were the ones who procured the incidents to happen. Ex parte injunction was granted by Tong J on 21 May 2005.

3.  At the inter parte hearing, the 1^st Defendant denied that she had procured such acts. However she was willing to give an undertaking to the court that she would not, whether by herself, her son and daughter or other servants or agents, assault, harass, threaten or intimidate the Plaintiff. That was acceptable to the Plaintiff. The injunction against the 1^st Defendant was therefore discharged.

4.  The 2^nd Defendant refused to give a similar undertaking. Instead, through his counsel, he applied for the injunction to be discharged. Mr Lai contended that there is no serious question to be tried as far as the case against the 2^nd Defendant is concerned. After hearing submissions, I dismissed the application to discharge the injunction by the 2^nd Defendant and continued it on revised terms. I now give reasons for my decision.

5.  The land which the Plaintiff alleged to have been in exclusive possession included Lots Nos 1970, 1972, 1976 and 1978 of Demarcation District No.116. The registered owner of those Lots is the 2^nd Defendant. The 2^nd Defendant acquired the Lots from the 1^st Defendant by an assignment dated 1 February 2002. The 1^st Defendant was however never a registered owner of the Lots. Instead, she obtained a declaration on 28 October 1999 from a Master in High Court Action No.10749 of 1999 that the right of the then registered owners to recover the Lots had become statute barred and their title had been extinguished under Sections 7(2) and 17 of the Limitation Ordinance. In other words, in HCA No.10749 of 1999, the 1^st Defendant claimed to be in adverse possession and obtained a declaration of possessory title against the then registered owners. 

6.  The Plaintiff asserted that she had been in possession of the Lots since 1967. If that were true, the 1^st Defendant could not be in a position to obtain the judgment of 28 October 1999. Of course, the Plaintiff was not a party to High Court Action No.10749 of 1999 and therefore the declaration does not bind the Plaintiff. Since the judgment was granted by a Master, it was probably a default judgment. If the 1^st Defendant were not in possession of the Lots in 1999, she could not establish any possessory title. It follows that no title could have been passed to the 2^nd Defendant by the Assignment of 1 February 2002.

7.  However, the dispute on the title is not the focus of the present application. The fact is that on 20 May 2005 the Plaintiff was in occupation of the Lots and the visits on that date had caused her serious concern about her personal safety. On the evidence, I am satisfied that she was justified in her concern and there is a serious issue to be tried that the incidents were occasioned by someone interested in the Lots.

8.  Mr Lai argued that there was no factual basis to connect the 2^nd Defendant with the incidents on 20 May 2005. He referred this court to a number of authorities and he suggested that the test in American Cyanamid had been misunderstood. In my judgment, for present purposes, the correct test is set out in Paragraph 29/1/10 of Hong Kong Civil Procedure 2004 and I will just cite the following extract,

“The prospects of the plaintiff’s success are to be investigated to a limited extent. All that has to be seen is whether he has prospects of success which, in substance and reality, exist. Odds against success do not defeat him, unless that are so long that the plaintiff can have no expectation of success, but only a hope. If his prospects are so small that they lack substance and reality, then he fails; for he can point to no question to be tried which can be called ‘serious’, and no prospect of such success which can be called ‘real’.”

9.  I do not think the authorities cited by Mr Lai take the point further although I noted his emphasis by reference to the  judgment of Slade J (as he then was) in Re Lord Cable, deceased [1977] 1 WLR 7 at p.19-20.

10.  The issue is whether there is any serious question to be tried (as opposed to a hypotheses of fact) that the 2^nd Defendant had procured the incidents on 20 May 2005. The 2^nd Defendant filed an affirmation 26 May 2005 denying any involvement in the incidents. Whilst I agree there is no direct evidence showing that the 2^nd Defendant instigated the events on 20 May 2005, having considered the inherent probabilities of matter, I think there is sufficient circumstantial evidence before this court to support at least an arguable case for inference to be drawn on balance of probabilities that the 2^nd Defendant did have a part to play in the matter. Whether such inference will be drawn is a matter for the trial judge and no doubt more evidence will come to light by the time of trial.  At this stage, the following matters are relevant,

(a)	The 2nd Defendant has an obvious interest in evicting the Plaintiff from the Lots in order to obviate any challenge to his title over them;
(b)	On the other hand, as the 1st Defendant had already received payment under the Assignment, she would not derive any further benefit from the eviction of the Plaintiff. Mr Lai argued that the 1st Defendant could be serving her own interest in avoiding her being sued by the 2nd Defendant for breach of warranty in Paragraph 1 of the Assignment. In my judgment, this is wholly unreal in the absence of any complaint by the 2nd Defendant to the 1st Defendant with regard to the occupation of the Lots by the Plaintiff.  The 1st Defendant had actually moved out of the vicinity since the Assignment. The 1st Defendant is an old lady and it is difficult to see why she would take up the matter with the Plaintiff on her own volition;
(c)	In contrast, the 2nd Defendant still lives in the vicinity and on his own evidence, the 2nd Defendant owns a large number of lots in Yuen Long (see Paragraph 7 of his own affirmation) and he said he bought the land from the 1st Defendant for capital appreciation with a hope that they would be resumed by the Government or acquired by developers;
(d)	Having sold her interest to the 2nd Defendant, the 1st Defendant simply had no right whatsoever to recover the land. The person who could claim to have such a right is the 2nd Defendant.

11.  It is asserted by the Plaintiff in Paragraph 4 of her Affirmation that the 1^st Defendant acted for herself as well as the 2^nd Defendant in contacting the Plaintiff with regard to the occupation of the land culminating in the incidents of 20 May 2005. For the above reasons, I think there is a serious issue to be tried whether she did the alleged acts on behalf of the 2^nd Defendant.

12.  Based on the evidence, there is also a serious question to be tried as to whether the acts committed on 20 May 2005 constituted tortious acts, see Pong Yuen Man Tommy v Dakson Construction Co Ltd HCA 343 of 2005, 28 February 2005.

13.  On the balance of convenience, I have no difficulty in concluding that such balance comes down in favour of continuing the injunction in the modified form. Mr Lai had not pinpointed any prejudice that would suffer by the 2^nd Defendant if such an injunction is continued. On the other hand, the Plaintiff had demonstrated by her conduct that without the protection of an interlocutory injunction, she would be in constant fear for her personal safety. So much so that she had to move away for the time being.

Ms Teresa Wu, instructed by Messrs Kao, Lee & Yip, for the Plaintiff

The 1^st Defendant acting in person (present)

Mr Thomas Lai, instructed by Messrs Chan, Leung & Co., for the 2^nd Defendant