CHOY HON KI AND ANOTHER v. 林家強
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DCCJ 631/2018
[2024] HKDC 432
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 631 OF 2018
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BETWEEN
| CHOY HON KI（蔡漢佳） | 1st Plaintiff | |
| CHOI SHING CHAU（蔡成就） | 2nd Plaintiff | |
and | ||
| 林家強 | Defendant | |
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| Before: | Deputy District Judge Damian Wong in Court |
| Dates of Hearing: | 18, 19, 20 and 27 October 2023 |
| Date of Judgment: | 27 March 2024 |
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JUDGMENT
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A. INTRODUCTION
1. The present dispute concerns a piece of land known as Lot No 1919 in Demarcation District No 76, Pak Tin New Village, North District (“Lot 1919” or “Land”).
2. The Land was acquired by Madam Tsoi Man Shi (蔡文氏), alias Man Chiu Hei (文照喜) (“Madam Man”), on 20 January 1941. Madam Man was the mother of the 1st Plaintiff (“P1”). After Madam Man’s death in 1982, Lot 1919 was transferred to P1 and his brother Choy Hon Wai on 20 December 1983. After division of family assets[1] (分家), P1 became the sole owner of the Land on 17 October 1990. On 4 May 2015, P1 transferred Lot 1919 to himself and his son, i.e. the 2nd Plaintiff (“P2”), as joint tenants.
3. There is no serious dispute that the parents of the Defendant (“D”) started occupying Lot 1919 in around 1960s. Since then, D’s family has been living thereon. At present, D is still occupying a substantial part of the Land.
4. The main dispute is whether D’s family occupied the Land as tenant as alleged by Ps (of which the tenancy has been terminated with effect from 29 December 2017) or as squatter as alleged by D.
B. THE PARTIES’ CASES
B1. The Plaintiffs’ case
5. According to Ps, Lot 1919 is called “龍仔水田”. Prior to 1961, it was let to a tenant named Ng Tong Bor (吳湯波) (“Ng”).
6. By a written Chinese tenancy dated 8 October 1961 of lunar calendar between 蔡祖勝 (“Tsoi Senior”) on behalf of Madam Man as landlord, and D’s father 林超 (“Lam Senior”) and one 沈根 (“Shum”) as tenants, Lot 1919 was let to Lam Senior and Shum for a period of 10 years from October 1961 to 1970 of the Chinese Lunar Calendar (“First Tenancy”). Tsoi Senior was the husband of Madam Man and father of P1.
7. Upon expiry of the First Tenancy, another Chinese written tenancy was entered between Tsoi Senior on behalf of Madam Man as landlord and Lam Senior as tenant under which Lot 1919 was let to Lam Senior for another period of 10 years from 30 December 1970 to 29 December 1980 (“Second Tenancy” and, together with the First Tenancy, collectively referred to as the “Two Tenancies”).
8. After the expiry of the Second Tenancy, Lam Senior and his family continued occupying Lot 1919 and became the yearly tenant by paying rent to Tsoi family on yearly basis covering the period from 30th December of the year to 29th December of the following year.
9. Initially, leasing of Lot 1919 were handled by Tsoi Senior. In 1970s, P1 and his family emigrated to the Netherlands. After the death of Tsoi Senior in 1978 and Madam Man in 1982, Madam Lam Kam Yin (林金賢) (“Madam Lam”), P1’s wife and P2’s mother, was responsible for handling leasing of Lot 1919. According to Madam Lam, save for two years where she was sick, she returned to Hong Kong every year to worship ancestors (拜祖先) and collect rents. At first, Madam Lam collected rent from D’s mother, nicknamed 燒臘婆. After the death of D’s mother, other members of Lam family continued paying rent to her, either directly or through her sister who was living in the vicinity.
10. At one stage, it came to Madam Lam’s notice that Lam family had sub-let a small portion of Lot 1919 to another family surnamed Leung (“Leung Family”). Madam Lam did not object to the sub-letting and continued collecting rent from Lam family for the whole of Lot 1919. Adopting the colours used in the Lot Index Plan annexed to the Statement of Claim, the portion of Lot 1919 occupied by Leung Family is referred to as the “Pink Part” and the portion occupied by Lam family is referred to as the “Green Part”.
11. In 2001, P1 and Madam Lam returned to Hong Kong for good. At that time, the rent of Lot 1919 was $2,400 per annum.
12. In around 2009, P1/Madam Lam requested Lam family to sign a written tenancy agreement in respect of Lot 1919. There was discussion between P1/Madam Lam and 林家寶 (“Ka Bo”), one of D’s elder brothers, and a written draft tenancy was prepared by Ka Bo (“2009 Draft Tenancy”). The parties could not agree on the duration of the tenancy and no agreement was signed. However, Lam family continued paying rent every year by depositing it into Madam Lam’s Hang Seng Bank account no 233-092659-888 (“Madam Man’sAccount”).
13. According to Ps, 林家龍 (“Ka Lung”), another elder brother of D, transferred $3,000 from his HSBC Bank account no 036-668713-833 (“Ka Lung’s Account”) to Madam Man’s Account on 19 November 2009 and 2 October 2010 (“Two Payments”) for payment of rent covering the years of 2010 and 2011 respectively.
14. In the meantime, Madam Lam approached Leung Family directly. Leung Family agreed to sign a written tenancy agreement. Since 2010, written tenancy agreements have been entered between P1 and members of Leung Family every two years.
15. After P2 became one of the registered owners of Lot 1919 in May 2015, P2 took over the leasing of the Land.
16. In October 2015, Ps asked D (who was occupying the Green Part) to sign a written tenancy agreement again. According to Ps, D refused to sign written tenancy agreement but agreed to continue paying $5,500 per annum for rent. Subsequently, a sum of $5,500 was transferred to Madam Lam’s Account on 17 November 2015 covering the period up to 29 December 2016. It was the last payment of rent received by Madam Lam.
17. By the letter dated 12 October 2016 from Messrs Leung Kin & Co (“Leung Kin”), Ps informed D that the tenancy in respect of the Green Part of Lot 1919 would terminate on 29 December 2017.
18. On 20 April 2017, Ps and D met in Tai Po to discuss the leasing of the Green Part. According to Ps, D indicated that he would sign a written tenancy if Ps agreed to compensate him for the structures erected on the Green Part in the event that D was required to surrender the Green Part. Once again, no consensus was reached between the parties.
19. Subsequently, Leung Kin issued another letter dated 10 May 2017 to D repeating that the tenancy in respect of the Green Part of Lot 1919 would terminate on 29 December 2017.
20. On 9 October 2017, Ps and D met again in a Chinese restaurant in Tai Po (“9/10/2017 Meeting”). It is Ps’ case that D expressly admitted at the meeting that Lam family had all along been a tenant and paying rent to Tsoi family. D proposed to buy around 1,500 square feet of Lot 1919 at $500 per square feet.
21. Upon D’s request, Ps and D met again in the same restaurant on 10 October 2017 (“10/10/2017 Meeting”). At that meeting, D offered to purchase around 2,500 square feet of Lot 1919 at $350 per square feet. D also proposed to pay the purchase price by 3 installments to be paid in 2 to 3 years. Ps indicated that they needed time to consider D’s offer.
22. On 11 October 2017, P2 replied to D by WhatsApp that his offer was not accepted.
23. As D had failed to surrender the Green Part, Ps commenced the present proceeding against D on 13 February 2018.
24. Ps seek to recover the possession of the Green Part. They also claim arrears of rent from 30 December 2016 to 29 December 2017 at $5,500 per annum and mesne profit at the same amount from 30 December 2017 until delivery of possession.
B2. The Defendant’s case
25. D has been living on Lot 1919 with his family since his birth in 1975. Lam Senior had 13 children and D was the youngest amongst them. His elder brothers and sisters moved out gradually from 1980 to 2000 and he is now the only person occupying the Green Part.
26. D denied that his family was a tenant of Lot 1919. Prior to the death of his parents, he had never heard that Lot 1919 was rented or that they needed to pay rent in respect of the Land.
27. According to D, Lot 1919 is called 竹坑邊田地 and Lam Senior acquired it from Ng in 1962 at a consideration of $4,500. The transaction was evidenced by a receipt dated 30 March 1962 (“1962 Receipt”) and a deed of transfer dated 8 April 1962 (“1962 Assignment”). It is D’s case that 龍仔水田 is the name of Lot 1918 and the Two Tenancies concerned Lot 1918, not Lot 1919.
28. D admitted that the Two Payments were made by Ka Lung but denied that they were rent for Lot 1919. D also admitted that he met Ps at the 9/10/2017 Meeting and 10/10/2017 Meeting (collectively referred to as the “Two Meetings”) to discuss the matters relating to the Land. According to D, there were many people from Ps’ side and he was only on his own. The situation at the Two Meetings was very chaotic and he might have said something which was inconsistent with his knowledge or the truth.
29. In short, it is D’s case that Lam Senior and he have been in continuous and exclusive occupation of Lot 1919 since 1960s with the intention of possessing the same as if they were the sole owners of the Land. D seeks a declaration that Ps’ title to Lot 1919 has been extinguished.
C. ISSUES IN DISPUTE
30. Based on the parties’ cases, the main disputes concern the following:-
(a) What was the name of Lot 1919? Whether the Two Tenancies concerned Lot 1919 (as alleged by Ps) or Lot 1918 (as alleged by D)?
(b) If the Two Tenancies concerned Lot 1919 and Lam Senior was a tenant to start with, whether Lam Senior and members of Lam family paid any rent to Tsoi family throughout the years? When was the last payment of rent?
(c) Whether Lam Senior and D had the intention to dispossess the paper owner of Lot 1919?
D. HOUSEKEEPING MATTERS
31. There are two housekeeping matters that I need to mention for record purpose.
32. The first is about D’s application on 10 July 2023 to exclude all records of communications between Ps and D from 2016 to 2020 which include the audio recordings of the Two Meetings on the ground of “without prejudice” privilege. On 11 October 2023, Deputy District Judge Alexander Tang handed down the Decision[2] directing that evidence relating to communications from 24 May 2018 onwards be expunged (“Expunged Evidence”). Pursuant to the Decision, the Expunged Evidence was removed from the trial bundles. For avoidance of doubt, I confirm that I have not read the Expunged Evidence.
33. The second is about another application, of D taken out on the same day of the Decision, for leave to file and serve his 2nd Supplemental Witness Statement to “briefly explain the situation of his three brothers”, namely 林家達 (“Ka Tak”), Ka Bo and Ka Lung. On the first day of the trial, upon Mr Lee’s confirmation that Ps had no objection to the application, I granted leave to D to file and serve his 2nd Supplemental Witness Statement.
E. WITNESSES
34. Madam Lam and P2 gave evidence at the trial. In addition, Ps also called Ms Lam Tim Mui, who is Madam Lam’s niece, to testify.
35. On the other hand, D was the only factual witness from his side. D also called Mr Tang Sze Kin Eric, a land surveyor, to give expert evidence which focused on occupation of the Land.
36. Sadly, two witnesses (one from each side) had died before the trial and were unable to give evidence. As a result, their witness statements are excluded as evidence.
F. APPLICABLE LEGAL PRINCIPLES
37. The legal principles on adverse possession are well-settled and not in dispute which can be summarized as follows:-
(a) A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess; Wong Tak Yue v Kung Kwok Wai David (1997-98) 1 HKCFAR 55 at 68E per Li CJ;
(b) The owner of the land with the paper title is deemed in possession of the land. If the law is to attribute possession to a person who can establish no paper title to possession, and claims to be a mere trespasser, the burden is upon him to establish his intention to exclude the whole world: including the owner of the land; Wong Tak Yue at 70E per Litton PJ;
(c) Possession is never adverse if it is enjoyed under lawful title. A person occupies or uses land by licence of the owner with the paper title and his licence has not yet been determined, he cannot be treated as having been in “adverse possession” as against the owner with the paper title; Adverse Possession by Jourdan and Radely-Gardner, 2nd edition (2011) at §6-16;
(d) Where the occupier has made self-serving statements as to what his intention was, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what his intention was and such statements are against his interest, the courts would usually accord to them considerable weight; Wong Tak Yue at 69B per Li CJ; and
(e) Where a squatter acknowledges the true owner’s title, the acknowledgment, whether oral or in writing, may show, when taken with the other circumstances of the case, that the squatter did not have the animus possidendi; or it may show that the squatter was in possession with the licence of or as agent for the true owner; Adverse Possession (supra) at §9-102.
38. When assessing credibility, the Court takes into account the inherent plausibility of a witness’ testimony and considers whether any part of it is, in a material way, contradicted by other undisputed or indisputable evidence (such as contemporaneous documents). Where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest. See Hua Tyan Development Ltd v Zurich Insurance Co Ltd [2012] 4 HKLRD 827, §27, per Chung J.
G. THE TWO TENANCIES
39. The Two Tenancies were handwritten and signed in duplicate in two books entitled “立批水田合約部” (collectively as “Agreement Books” or individually as “Agreement Book”) which were produced by Ps and D respectively[3]. Save for some very minor discrepancies, the content of the Two Tenancies in the two Agreement Books is identical.
40. In the Amended Defence and Counterclaim[4], D alleged that the signatures of “林超” on the two Agreement Books in respect of the First Tenancy were not signed by Lam Senior and therefore the First Tenancy were invalid (無效). However, save for a bare assertion in his witness statement that the two signatures of Lam Senior in the Agreement Books are strikingly different, D has failed to adduce evidence, let alone credible evidence, to support his allegation.
41. Conversely, it is D’s own evidence that the Agreement Book produced by him was obtained from Ka Tak, his eldest brother, after the commencement of the proceedings. According to D, when Ka Tak knew about the present proceedings, he told D that Lam Senior had left some documents with him and he gave the documents to D which included an Agreement Book. In other words, the Agreement Book produced by D had been kept by Lam Senior during his lifetime and then passed on to Ka Tak after his death. It is inherently improbable that Lam Senior would have kept the Agreement Book for so many years if his signature thereon was forged by someone else as alleged by D. In my view, D’s challenge on the authenticity and validity of the Agreement Books is totally groundless. It is not surprising that the challenge was not pursued by Ms So at the trial.
42. The First Tenancy started with the following:-
“立批水田契人嶺仔村蔡祖勝兹將名下禾田土名龍仔水田兩塊種籽壹斗八升租與林超沈根耕種” (emphasis added)
43. Ps’ case is that “龍仔水田” was the name of Lot 1919. D’s case is that the name of Lot 1919 was “馬尾下竹坑邊” and “龍仔水田” was the name of Lot 1918.
44. It is D’s argument that:-
(a) In the 1962 Receipt[5], Ng acknowledged receipt of $4,500 from Lam Senior and the land referred therein was called “馬尾下竹坑邊田地”;
(b) In the 1962 Assignment[6], Ng transferred the structures, tools, etc. on the land known as “馬尾下嶺仔村竹坑邊水田” to Lam Senior and Shum, together with a Modification of Tenancy No 32102 (“MOT”);
(c) The subject land referred to in the MOT[7] was Lot 1919;
(d) Putting these documents together, it is clear that the name of Lot 1919 was “馬尾下竹坑邊田地”; and
(e) As it is illogical for one land to be known by two different names, “龍仔水田” could not be the name of Lot 1919.
45. It is also D’s argument that:-
(a) By a written Chinese lease entered in October 1970 of Chinese Lunar Calendar (“1970 Lease”)[8], Tsoi Shu Lun (蔡樹麟) (“TSL”) let the land known as “水田土名龍仔大小五塊” to Lam Senior;
(b) According to land search, TSL was the registered owner of Lot 1918 at the material time;
(c) Once again, putting these documents together, it is clear that “龍仔水田” was the name of Lot 1918; and
(d) As it is equally illogical for two lands in the same vicinity to be known by the same name, “龍仔水田” could not be the name of Lot 1919.
46. I am unable to accept D’s argument because of the following:-
(a) Firstly, there is no evidence to show that TSL had authorized Tsoi Senior to enter into a lease in respect of Lot 1918 on his behalf in 1961. On the contrary, it was Madam Lam’s evidence, which was not challenged, that Tsoi Senior was the person who handled the leasing of Lot 1919 at the material time;
(b) Secondly, if the Two Tenancies related to Lot 1918 which belonged to TSL, why one of the Agreement Books was kept by Tsoi family, instead of by TSL’s family?
(c) Thirdly, there is no dispute that the term “壹斗八升” in the First Tenancy refers to the area of the land. In the 1970 Lease, the area of the land was “二斗” which is larger than the area stated in the First Tenancy. If both the First Tenancy and the 1970 Lease concerned the same piece of land (i.e. Lot 1918) as alleged by D, there is no reason why the size of the land is different. On the contrary, the area of the land stated in both the 1962 Receipt and the 1962 Assignment (collectively referred to as “1962 Documents”) was “壹斗八升” which is exactly the same as the area stated in the First Tenancy. This supports the conclusion that the land referred to in the First Tenancy is the same land referred to in the 1962 Documents (i.e. Lot 1919);
(d) Fourthly, the land referred to in the First Tenancy Agreement is “龍仔水田兩塊” whereas the land referred to in the 1970 Lease is “龍仔大小五塊”. Once again, if the First Tenancy and the 1970 Lease concerned the same land, there is no reason why there is a difference in the number of portions that the land consisted of;
(e) Fifthly, if the First Tenancy concerned Lot 1918, it means that the lease of the said Lot had been renewed in October 1970 by the 1970 Lease. Why then Lam Senior needed to sign the Second Tenancy in the Agreement Books to renew the lease of the same Lot again? This strongly suggests that the 1970 Lease and the Second Tenancy, which were entered into at around the same time, concerned two different pieces of land;
(f) Sixthly, the rent stated in the 1970 Lease was $250 per year whereas the rent stated in the Agreement Books (which applied to both the First Tenancy and the Second Tenancy) was “租谷一千斤”. It is impossible that the rent to be paid in two different ways for the same land;
(g) Seventhly, D’s argument is premised on the assumption that two lands in the same vicinity cannot be known by the same name and one land cannot be known by two different names. However, there is no evidence on how the lands in the village were named. There is nothing to show that, before naming the land, the owner would ask around to make sure his proposed name would not duplicate the existing name of other villagers’ lands;
(h) Although Madam Lam agreed under cross-examination that one land would not be called two different names, I do not think her answer would assist D because the name of Lot 1919 was not given by her. It was named by Madam Man and Madam Lam’s evidence was that she did not even bother to know what other villagers’ lands were called.
47. A document that can shed light on this issue is the 2009 Draft Tenancy[9]. Under cross-examination, D agreed that the document was prepared in 2009 when the parties were negotiating the tenancy of Lot 1919. There was no serious challenge to Madam Lam’s evidence that the document was prepared by Ka Bo. It is particularly noted that the land in the 2009 Draft Tenancy was described as “新界粉嶺嶺仔村龍仔第76約第1919地段農地壹塊” (underlining added). This shows that members of Lam family also called Lot 1919 as “龍仔”.
48. D further argued that it was inherently improbable for Lam Senior to have spent $4,500, which was a substantial amount in 1962, to acquire Lot 1919 from Ng if he were already a tenant of the Land under the First Tenancy.
49. I do not accept D’s argument. It is important to note that, in the 1962 Documents, Ng expressly referred to Tsoi Senior as landowner (田主). In the 1962 Assignment, Ng even acknowledged that the subject land was rented (承租) from Tsoi Senior. It was also expressly provided in both of the 1962 Documents that the rent book (租簿) was to be delivered, amongst other items, to Lam Senior and Shum upon completion. If the land was not subjected to tenancy, why was it necessary for Ng to deliver the rent book relating to the land to them?
50. In my view, there is no conflict between the First Tenancy and the 1962 Documents. After entering the First Tenancy with Tsoi Senior, it was up to Lam Senior and Shum to negotiate with the former tenant (i.e. Ng) for handing over of the Land together with the structures, chattels, MOT, etc. The 1962 Documents represented the deal between the out-going tenant and in-coming tenants for handing over of the Land and the items thereon when there was a change of tenants.
51. Ps’ case that Lam Senior was a tenant of Lot 1919 is also supported by a consent letter dated 15 March 1979 signed by Madam Man[10] (“1979 Consent Letter”). The 1979 Consent Letter was submitted to Tai Po District Office in relation to Lam Senior’s application for reconstruction of existing structures on Lot 1919. In the 1979 Consent Letter, Lam Senior was repeatedly described as “tenant” (租用人).
52. I appreciate that Lam Senior did not sign on the 1979 Consent Letter. However, one can infer from the circumstances that it was Lam Senior who asked Madam Man to sign the 1979 Consent Letter to facilitate his application for reconstruction and he must have known the content of the document. It was inherently improbable that Madam Man would have agreed to sign the 1979 Consent Letter if the Land had been trespassed by Lam Senior since 1960s as alleged. The 1979 Consent Letter was produced by D and he could not give any explanation why Lam Senior was described as tenant therein.
53. By reasons of the aforesaid, I find on balance that:-
(a) “龍仔水田” was the name of Lot 1919;
(b) The subject land of the Two Tenancies was Lot 1919; and
(c) Lam Senior was a tenant under the Two Tenancies.
H. PAYMENT OF RENTS
H1. Madam Lam’s evidence
54. It is Ps’ case that Lam Senior and his family had been paying rent since 1960s until the last payment on 17 November 2015 (covering the period up to 29 December 2016). This was denied by D. It is D’s case that his family had never paid rent to Tsoi family since 1960s.
55. According to Madam Lam, it was Tsoi Senior who managed the leasing of Lot 1919 until he died in 1978, and then it was Madam Man. After Madam Man’s death in 1982, the responsibility fell on Madam Lam. It was Madam Lam’s evidence that, save for two years where she was sick, she came back to Hong Kong from the Netherlands every year to visit Madam Man, worship ancestors and collect rents. After P1’s retirement, she and P1 returned to Hong Kong in 2001 and she continued collecting rent from Lam family every year. She recalled that the rent in late 2000s was $2,400 per year.
56. In 2009, she and P1 asked Lam family to sign a written tenancy. She explained that, as they were getting old, they wanted a black-and-white record of the tenancy of the Land so that it would be easier for their children to deal with the Land after they died. They once went to Lot 1919 to visit Lam family. They met three members of Lam family, namely Ka Bo, either Ka Lung or Ka Lung’s twin brother (Madam Lam could not be sure), and D. Ka Lung or Ka Lung’s twin brother agreed to sign a written tenancy but D objected. Ka Bo told P1 and Madam Lam that the family members needed to discuss the matter amongst themselves.
57. Subsequently, Ka Bo went to P1’s residence in Tai Po and brought with him the 2009 Draft Tenancy. Ka Bo proposed a term of 8 years at the yearly rent of $3,000 and the lease would be automatically renewed for another 8 years upon expiry. Ka Bo asked P1 to sign the 2009 Draft Tenancy but P1 said he needed time to consider the terms. After consulting a friend, Madam Lam and P1 were of the view that the period of 16 years was too long and they proposed to reduce it to 5 years. They had no objection to the rent of $3,000. Their proposed amendments were marked in red on the 2009 Draft Tenancy and the revised draft was returned to Ka Bo. Ka Bo did not accept their proposed amendments and no written tenancy was signed.
58. Thereafter, Lam family continued paying rent to Madam Lam by depositing it into Madam Lam’s Account. The first two deposits into Madam Leung’s Account were made by Ka Lung on 19 November 2009 and 2 October 2010 through Ka Lung’s Account (i.e. the Two Payments). Thereafter, the rent was deposited into Madam Lam’s account in cash and there is no evidence as to who made the payments. The rent increased gradually from $3,000 to $5,500 and the last payment was made on 17 November 2015.
59. Due to old age, Madam Lam handed over the leasing of the Land to P1 in around 2009. In 2015, P1 transferred the Land into Ps’ names and P2 started to manage the leasing of the Land.
60. Ms So submits that Madam Lam’s evidence was not credible.
61. Firstly, Ms So criticized that Madam Lam was prone to reciting some catchphrases such as “年年交租” which were helpful to Ps’ case.
62. I do not find that Madam Lam was particularly prone to reciting the catchphrases as alleged. The so-called “catchphrases” were said by Madam Lam when answering Ms So’s questions and I do not find any absurdity in Madam Lam’s answers. The fact that Madam Lam’s answers are helpful to Ps’ case does not necessarily mean that they are not credible. The question is whether her evidence makes sense in the circumstances of the case and whether it sits well with other undisputed or undisputable evidence. I will come to that in due course.
63. Secondly, Ms So criticized that Madam Lam’s answers on the yearly tenancy after 1981 were confusing. For instance, whilst the First Tenancy provided that the rent was one thousand catties of grain, Madam Lam said that it was 12 piculs (擔), i.e. 1,200 catties, but they only received 10 piculs.
64. Ms So also criticized Madam Lam’s evidence on the amount of rent received from 1980s to 2000s. It was Madam Lam’s evidence that the rent was calculated by reference to the prevailing market price of grain and paid in cash. Madam Lam said that the market price of grain in 1980s was around $30-$40 per picul, so the rent was about $300 to $400 per year. She continued using the same method to calculate the rent until late 2000s and the rent at that time had increased to $2,400. Ms So submitted that there is no evidence to support Madam Lam’s allegation that the price of grain had increased by more than five-fold during the 20 years from 1980s to 2000s. It was also inherently improbable that, even by 2000s, the yearly rent was still calculated based on a process where Madam Lam would go and find out the market price of grain at the given time.
65. I accept that there are some inconsistencies in Madam Lam’s evidence in this aspect. However, one need to bear in mind that Madam Lam was 87 years old at the time of the trial and those events happened many decades ago. It was not surprising that Madam Lam’s memory might fade and she might get confused with some of the matters. Some mistakes in details are understandable. After all, assessment of credibility is not a test of memory.
66. For the increase of rent from 1980s to 2000s, there is no evidence on the price of grain during these years and there is no basis for the Court to make any finding on whether the more than five-fold increase in the price of grain is reasonable or not. Further, I do not find it inherently improbable for Madam Lam to adopt the same methodology in calculating the rent even in 2000s, when it had been used since the commencement of the First Tenancy in 1960s.
67. Thirdly, Ms So submitted that it was not believable that Madam Lam would come back almost every year to collect the rent which ranged from a few hundreds to at most $2,400 as it was unreasonably disproportionate to the air fare and other travelling cost. Ms So also criticized Ps for failing to produce Madam Lam’s passports for proof.
68. I am unable to accept Ms So’s submissions. It was not Madam Lam’s evidence that she came back to Hong Kong every year only for collecting rent. Her evidence was that, save for two years where she was sick, she came back to Hong Kong every year during Chung Yeung festival to visit Madam Man, worship ancestors and collect rent. According to Madam Lam, the family emigrated to the Netherlands in 1970s and they operated a restaurant in Chinatown. They had three children who were very young at that time. It was impossible for both P1 and Madam Lam to come back at the same time because one of them had to stay behind in the Netherlands to operate the restaurant and take care of the children. Considering the family background, I do not find it incredible that Madam Lam came back almost every year to Hong Kong for those purposes.
69. Madam Lam also explained that she used her Hong Kong Identity Card to enter into Hong Kong when she came back and one could not find any record of her entrance into Hong Kong in her Netherland passports. In my view, Madam Lam’s answer makes perfect sense and I accept her evidence.
70. When assessing Madam Lam’s evidence, I have considered the following circumstantial evidence:-
(a) Firstly, Lam Senior must have paid rent during the tenure of the First Tenancy, otherwise Madam Man would not have agreed to renew the lease when the First Tenancy expired;
(b) Lam Senior must also have been paying rent when Madam Man signed the Consent Letter in 1979 as it was unlikely that Madam Man would have agreed to sign the document to help his reconstruction application if there was any default in rental payment;
(c) There seems no dispute that the two families enjoyed very good relationship in the past. There are photos showing P1 and Madam Lam attending the wedding of Ka Bo. It was Madam Lam’s evidence that they were also invited to attend the wedding of one of Lam Senior’s daughters in Fanling. I agree with Mr Lee that this is more consistent with Ps’ case that Lam Senior had been paying rent to Tsoi family; and
(d) The rent of Lot 1919 was just a few thousands per year at the most. This amount was insignificant when compared with the money spent by Lam Senior and his family on the Land throughout the years. Unless Tsoi family ceased collecting rents, it is unlikely that Lam Senior would stop paying rents on his own violation.
71. There was suggestion that P1 had abandoned the Land after Madam Man’s death in 1982 because he was in the Netherlands and he only picked up the interest in the Land in around 2009. It was also suggested that the reason why P1 suddenly asked Lam family to sign a written tenancy in 2009 was because he realized that the Land might have been adversely possessed by Lam family.
72. In my view, these suggestions are not supported by any evidence. On the contrary, evidence shows that the Land was transferred to P1 and his brother Choy Hon Wai on 20 December 1983, not long after the death of Madam Man in 1982. The Land was further transferred to P1 on 17 October 1990 as a result of division of family assets. I find it difficult to believe that P1 would have taken all the troubles to divide the family assets with his brother and arrange to transfer the Land to himself if he had abandoned it as suggested.
73. Further, there was no serious challenge to Madam Lam’s evidence that the 2009 Draft Tenancy was prepared by Ka Bo. According to Madam Lam, Ka Bo brought the said document to their residence and asked them to sign it immediately. It was P1 and Madam Lam who wanted more time to consider the terms. If P1 was really concerned with the possible adverse possession of the Land by Lam family in 2009 as alleged, it was only logical for him to immediately sign the 2009 Draft Tenancy when being requested by Ka Bo regardless of the terms contained therein in order to protect his interests in the Land. On any view, a long lease of 16 years with a fixed rent of $3,000 per year was still better than losing the title to the Land.
H2. D’s evidence
74. On the other hand, I have serious reservation on D’s evidence that his family had never paid rent in respect of Lot 1919.
75. Firstly, D’s evidence does not sit well with the 2009 Draft Tenancy. There was no serious dispute that the 2009 Draft Tenancy was prepared by Ka Bo when P1 requested Lam family to sign a written tenancy in 2009. If Lam family had never paid rent in respect of Lot 1919 since 1960s as alleged, they must have found P1’s request to be unreasonable and offensive. One would naturally expect members of Lam family to have either ignored P1 or flatly refused the request. There was no reason why Ka Bo would need to prepare the 2009 Draft Tenancy and gave it to P1 for consideration. It is also clear from the amendments on 2009 Draft Tenancy that Ka Bo’s concern at that time was on the tenure of the tenancy, rather than whether Lam family should sign a written tenancy.
76. Secondly, D’s explanation on the Two Payments is highly unsatisfactory. The evidence in relation to the Two Payments comes as follows:-
(a) In P2’s witness statement filed on 28 May 2020, he listed out the rents allegedly received from Lam family through Madam Lam’s Account from 2009 to 2015. P2 produced letters from Hang Seng Bank confirming that the Two Payments were transferred from a HSBC Account no 036-668-713-833;
(b) To find out the account holder of the said HSBC account, P2 asked his nephew Raymond Kong to input the said account number into an ATM machine and the screen showed the name “Lum K* L***”. P2 produced the photo showing the screen of the ATM machine and said that he verily believed that account holder was Ka Lung;
(c) In the supplemental witness statement filed on 7 February 2022, D did not address the issue relating to the Two Payments and P2’s suggestion that the Two Payments were made by Ka Lung; and
(d) It was not until one week before the trial that D took out an application for leave to adduce his 2nd supplemental witness statement to adduce evidence on the Two Payments (see paragraph 33 above). Upon Ps’ consent, I granted leave to D to file the 2nd supplemental witness statement.
77. In his 2nd supplemental witness statement, D said that:-
(a) Ka Lung had been based in Japan since in or around 1997;
(b) D “recently” discussed this action with Ka Lung. Ka Lung informed D that he was the holder of the HSBC Account no 036-668-713-833 (i.e. Ka Lung’s Account);
(c) Ka Lung confirmed that the Two Payments were made by him to Madam Lam by ATM transfer. Ka Lung said that they were “payment for meals which he had had with, amongst other people, [Madam Lam]”. Ka Lung also said they were not payment of rent; and
(d) Because Ka Lung was based in Japan, he told D that “it would be inconvenient to fly back to Hong Kong to give evidence”.
78. Under cross-examination, D said that Ka Lung went to Japan in 1997. Since then, Ka Lung had only come back occasionally and spent very little time in Hong Kong. He confirmed that he had no difficulty in contacting Ka Lung. However, save for repeating that the Two Payments were for meals, D was unable to provide any further information. There is no evidence on who were those “other people” at the meals, the purpose of the meals, whose share was the $3,000 covered, etc. When D was asked why he had not asked the details, his answer was that it was unnecessary to do so and he only needed to know that the Two Payments were not for payment of rent. When D was asked whether he had met Ka Lung when he came back in 2009 and 2010, his answer was that Ka Lung did not need to see him and D would approach Ka Lung when necessary. Further, D was unable to give any reason as to why it was “inconvenient” for Ka Lung to come back to Hong Kong to give evidence.
79. Mr Lee submitted that whether the Two Payments were rent is clearly a key issue and Ka Lung is the only person who had direct personal knowledge on this issue. D’s explanation of “inconvenience” is hardly sufficient. In any event, D made no attempt to arrange Ka Lung to give evidence through other means, such as video-link. Mr Lee invited the Court to draw an adverse inference against D on the issue of the Two Payments.
80. The legal principles are well settled and were helpfully summarized by Deputy Judge Lam (as he then was) in Ip Man Shan Henry v Ching Hing Construction Co Ltd (No 2) [2003] 1 HKC 256, 307C as follows:-
(a) If a prima facie case is made out, and if there is evidence available to the party against whom the case is established which could displace the prima facie case, and he omits to call such evidence, an inference could be drawn;
(b) However, the inference could be rebutted by a plausible explanation by the party who elected not to call the evidence;
(c) If an inference is to be drawn, it would be an inference that such available evidence, even if adduced, would not displace the prima facie case; and
(d) It is also open to a tribunal of fact, upon the drawing of such an inference, to take it into account in respect of a matter with respect to which the person not called as a witness could have spoken, (i) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party; and (ii) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given.
81. The evidence in relation to the Two Payments was revealed by Ps in 2020 but there is no explanation why D only asked Ka Lung about it “recently”. Being the one who made the Two Payments, Ka Lung was naturally the person whom D was expected to call to give evidence. I do not accept D’s explanation that it was “inconvenient” for Ka Lung to come back to Hong Kong to give evidence at the trial as D was unable to say what had caused the alleged inconvenience. Was it due to work engagement, family reason, health reason or other personal reasons? As rightly pointed out by Mr Lee, D had not made any effort to arrange Ka Lung to give evidence through other means.
82. Without calling Ka Lung, the only evidence concerning the purpose of the Two Payments came from D, which was by way of hearsay. However, his hearsay evidence was extremely vague and lack of particulars. One would expect D to find out more about the alleged meals from Ka Lung when he knew that Ka Lung was unable to come to Hong Kong to give evidence (for whatever reason). It is rather surprising that D was satisfied with the bare assertions that the Two Payments were for meals and did not find it necessary to ask for the details.
83. Furthermore, I am of the view that D’s allegation that the Two Payments were for meals does not sit well with the circumstantial evidence. There was no suggestion from D that Ka Lung was particularly close to Madam Lam. On the other hand, according to D, Ka Lung had helped him handle communication with government departments in relation to the Land from 2003 to 2004. Coupled with the fact that D could still contact Ka Lung shortly before the trial, one can infer that they must have maintained a good relationship. In such circumstances, it is difficult to believe that Ka Lung would take the trouble to have meals with Madam Lam, not just for one year but two consecutive years, during his very limited time in Hong Kong, but chose not to meet his own brother. Also, it is too much of a coincidence that the two alleged meals occurred around the same time of the year and Ka Lung’s shares of the meals happened to the same $3,000 in both years. In my view, the fact that the Two Payments were made around the same time of the year and were of the same amount is more consistent with Ps’ case that they were payments of rent.
84. It is further noted that the rent proposed in the 2009 Draft Tenancy was also $3,000. In my view, this was not a mere coincidence. There must be some basis for Ka Bo to propose the rent at $3,000 and the most probable reference was the prevailing rent of the Land at the time of the negotiation in 2009. This provides a further reason for concluding that the Two Payments were for rent.
85. By reasons of the aforesaid, I would draw adverse inference against D on the issue of the Two Payments and find on balance that the Two Payments were for the rent of Lot 1919.
86. Thirdly, D’s evidence that their family had been a squatter on Lot 1919 since 1960s is inconsistent with what he said at the Two Meetings.
87. The Two Meetings were recorded in secret by Ps without D’s knowledge. The legal principles concerning secret recordings are set out by Deputy Judge To (as he then was) in Cheer Sky Ltd v Chan Yuet Sheung[2019] HKCFI 606 as follows:-
“48. … I am always sceptical about the probative value of such evidence. Such recording is certainly reliable evidence of what was said during the conversations, but not necessarily of its truth. The party taping the conversation must have certain purposes to achieve, including to induce the other party to say things which are advantageous to him or prejudicial to the other side. The other party who does not know that the conversation was being taped, may have unwarily adopted what was put to him without much thought. In assessing the reliability of the conversation, I would adopt the following approach. Anything said by the party taping the conversation which is against his interest would be given more weight. Anything that he said which is to his interest is self-serving and will be given no weight. Anything prejudicial said by the party being recorded would have to be tested against the totality of the evidence before weight is given to that piece of evidence.”
88. Mr Lee did not disagree with the above principles but he submitted that a person was more likely to express his genuine belief and thoughts if he was not aware that what he said was being recorded. In my view, it depends on how the conversation goes and its content.
89. I note the learned Deputy Judge’s comment at paragraph 49 of Cheer Sky that “In assessing weight to be given to a piece of conversation, it is always desirable to listen to the recording than to read the transcript. The intonation and tone of the speaker may give an impression which is very much different from that given by reading a transcript”. Although neither Mr Lee nor Ms So invited the Court to listen to the recordings, I took the liberty to do so. After listening the recordings, my impression was that the intonation and tone of D in the recordings did not give a different impression from reading the transcript.
90. It was also my observation that Ps did not say anything to induce and trap D to make admission that was against his interest. The conversation went smoothly and the parties freely expressed their views on how the matter in relation to Land should be resolved.
91. In the 9/10/2017 Meeting, D repeatedly said that he had no intention to trespass Lot 1919 and had no problem in signing a written tenancy. D simply worried that, if P1 increased the rent drastically or refused to renew the lease when it expired, he would lose the structures on the Land and he was looking for “protection” in the form of a long lease with compensation for the structures when the lease was not renewed. This is actually consistent with what Ka Bo said in 2009 when he negotiated the lease of the Land with P1.
92. The significant parts of the 9/10/2017 are quoted as follows (emphasis added):-
D: 收地呀，又話住左咁多年，咁你都知架喇，由細都大，都係你，爸爸一路照顧住我地，其實一路咁多年都 P1: 我宜家係繼續租俾你，你唔肯，你係繼續想租，但係唔肯簽約就麻煩 D: 你明唔明有一個問題出現左係到，佳叔。我其實簽約真係無問題，但係問題上，保障唔到我哋上蓋，上蓋嘅意思係乜嘢呢，上蓋如果有乜嘢呢，我哋得唔到保障，咁我簡單啦，我簽約冇問題，好啦，兩年後呢？三年後呢？約滿啦，咁點呢？ P1: 咁而家我就係，咪就係傾啲條件咯
D: 問題就係出現咗喺呢度之嘛，佳叔你叫我簽約有咩問題啫，係咪先，簽囉，我簽咗啦，兩年後，十萬蚊一個月啦，你唔得呀，你走啦，合約寫明㗎喎，咁想改點樣呢？ P1: 咁你驚呢啲嘢嘅，咁而家咪諗你想咩條件？ D: 依一樣嘢，係無條件俾我去簽，你依家調返轉，你有個門檻比我簽咗，已有保障到我嘅，或上蓋，得到我應該嘅嘢嘅，好簡單之嘛，你話兩年後要走嘅，十萬唔啱傾嘅，咪唔傾，係咪先？但問題上，喂，如果而家咁樣，撻地好明顯係你嘅，我係冇可能會攞到。
D: 佳叔，你由頭到尾個目的係咩樣呢，都係想清晰個業權係咪 P1: 業權清楚啲同埋調整下啲租金 D: 但其實我地係租地唔係租屋，你咁樣釐定，我地係租田，上蓋其實係一塊爛田，一塊種野嘅田。唔係屋嚟。要咁樣計。 P1: 咁都好，就算，租金調整下，你上次講得太過，租唔俾我哋家，約唔俾我哋簽，嘩！我根本就迫到我哋要做呢一步啫，係咪先，咁而家 D: 當我講錯啦上次，我嘅意思
D: 佳叔你都知喇，咁多年以嚟，我地有無話去，侵占你嘅土地，你老友塊地被人踩過嚟，無呢啲野， P1: 咁又係，以租客嚟講，則係維護左好多 D: 我一路以來都維護佳叔，從來都唔會話因為呢撻地唔係我，而人地有利益，行埋嚟，我會俾佢 P1: 咁唔係，咁唔係， D: 問心呀，依撻地咁大咁計吖，我要嚟做咩，我要嚟住之嘛，你其他地方真係無用，你俾我都無用
D: 你無乜所謂架，撻地係你嘅，有無係到，始終都存在左係到，唔會話我霸左你架…更何況，喂，我都唔會有咁嘅心囉 D: 咁唔係，你自己睇得到我係無咁嘅心。我唔知點解誤會我，話今時唔同往日，我點樣諗，你律師信都有寫喇，81年都宜家，幾多年呀，81, 91, 01, 11，三十幾年，有無違背左，我地租你田嘅承諾。租有交俾你，霸無霸過你，人地埋黎，無埋黎過，30幾年，無合約訂明左，你租俾我喎，我地一路係咁樣住，一路咁樣交租，從來無違背過任何承諾。無去做任何野，你好似人地咁，整左佢，搵人返嚟租呀，各樣呀，搵錢呀，我地係唔會做架喎，則係純粹自己買咗間屋喺度，你有事，阿哥家姐返嚟住，得閒返嚟，唔返嚟，走下走，得閒返嚟，住呀住，一路都係咁，擺喺度之嘛，只不過流落嚟，得返我喺度，就係咁解。我就唔知點解， 你係咪真係想逼我走。真係走投無路 P1: 唔係逼你走，講咗囉，我都話，租係俾你租，租金調整一下，簽過約，咁，就係咁簡單，講條件，個租點樣寫？ D: 冇門檻俾我去簽，冇保障變咗
D: 我都話落，唯一而家問題上就係個上蓋之嘛，你話調整租金，而家加到五千五百蚊一年，同比附近呀，全部都二三千咋，成個白田村
D: 唔駛講喇，如果我做得出呢啲呀，不得好死，唔駛講喇，絕對唔會有呢樣野出現。你唔駛諗我下一代會爭呢撻地，我而家問題上係保留，叫做我而家仲在生，我係度住咁解嘅啫，你話下一代去爭呢撻地，唔駛諗
93. In his witness statement, D said that, at the Two Meetings, he did not admit that Ps were the owners as they failed to produce any proof of title. Ps made several proposals but the parties were unable to reach any agreements. He also said that there were many people from Ps’ side and he was on his own and the situation was very chaotic. Therefore, he might have said something which was inconsistent with his knowledge and did not represent the truth.
94. According to D, he felt compelled to have discussions with Ps about how to resolve the issue concerning the Land and he was very stressed with the threat of legal proceedings after having received several letters from Leung Kin. D also said that his approach at the Two Meeting was to “pick up” on topics mentioned by Ps and referred to Ps’ assertions. For instance, he mentioned the rent of $5,500 because it was the amount referred to in Leung Kin’s letters.
95. Ms So submitted that the Court should give limited weight to the recordings of the Two Meetings because the recordings produced were incomplete and did not cover the whole meetings. On the other hand, Ms So submitted that the Court should give full weight to P1’s admission that he wanted to “clarify the title” (業權清楚啲) which means that there was uncertainty about the title.
96. Despite Ms So’s admirable effort, I am unable to accept her submissions:-
(a) I note P2’s admission that the recordings did not cover the whole of the Two Meetings. According to P2, he used his mobile phone to record the Two Meetings and the recording stopped when the audio file became too big in size. More importantly, there was no suggestion from D that he had said something important to his case at the Two Meeting but they were not recorded. D’s case is that he had said something which was incorrect or untrue;
(b) D’s evidence in his witness statement was that there were many people from Ps’ side at the Two Meetings but, under cross-examination, he admitted that only P1 and P2 attended the Two Meetings. His evidence that the situation at the Two Meetings was chaotic is also inconsistent with the photo showing D walking with P1 with his right hand on P1’s shoulder;
(c) P1’s assertion about “clarifying the title” at the 9/10/207 Meeting should be understood in the context of Madam Lam’s evidence. According to Madam Lam, they wanted to “clarify the title” because there was no written record of the yearly tenancy and they did not want to leave the matters to the next generation. P1’s assertion about “clarifying the title” and “adjusting the rent” (業權清楚啲同埋調整下啲租金) is not inconsistent with Madam Lam’s evidence;
(d) More importantly, I have great difficulty to accept D’s evidence that he simply “picked up” what Ps had said and referred to Ps’ assertions at the Two Meetings. I do not see any sensible reason why D needed to say something which, according to his knowledge, was not true at the Two Meetings. He could have made the same proposal of purchasing part of the Land without admitting that his family had been a tenant and paying rent for many years. If Lam family had never paid rent, why was it necessary for D to specifically make the point at the 9/10/2017 Meeting that the rent of $5,500 was too high when other lands in the vicinity were let at $2,000 to $3,000 only?
97. By reasons of the aforesaid, I do not accept D’s evidence that he had said something which was inconsistent with his knowledge or untrue at the Two Meetings. I find on balance that what D said at the Two Meetings truly represented his knowledge and understandings of the situation in relation to the Land, i.e. his family had been a tenant of the Land and paying rent for more than 30 years.
98. For the sake of completeness, I would deal with other points raised by Ms So.
99. Firstly, Ms So took issue on the fact that P1 did not testify at the trial and invited the Court to draw an adverse inference against Ps.
100. There is no strict rule that a plaintiff must give evidence at the trial. Insofar as Ps’ case is concerned, Madam Lam’s evidence has already covered most of the issues, such as collecting rent and the meeting with Ka Bo in 2009. Although she passed the leasing of the Land to P1 in 2009, the rent was continuously paid through Madam Lam’s Account and Ps had produced the relevant bank statements. The Two Meetings were recorded and there was no dispute on what had been said thereat. I do not see any basis for drawing adverse inference against Ps by reason of P1 electing not to give evidence at the trial.
101. Secondly, Ms So submitted that Ps had failed to produce other bank statements to sufficiently demonstrate the payments of rent and, once again, she invited the Court to draw adverse inference against Ps.
102. It is Ps’ case that the rent was paid once per year into Madam Lam’s Account and they had already produced the bank statements of the months where rent was paid. I fail to see how the bank statements of other months were relevant to the issues in dispute.
103. Thirdly, D alleged that he had never authorized Ka Bo to negotiate for tenancy in 2009 or authorized Ka Lung to make the Two Payments (assuming that they were rent).
104. D’s evidence was that the Land belonged to him after Lam Senior’s death. This was not challenged by Ps.
105. There is no serious dispute that it was Ka Bo who prepared the 2009 Draft Tenancy and negotiated with P1 on the tenancy of the Land. According to D, Ka Bo had already moved out from the Land in 1994. If Ka Bo had moved out and the Land belonged to D, why would Ka Bo bother to negotiate with P1 and even prepared the 2009 Draft Tenancy? Similarly, if Ka Lung had moved to Japan in 1997 and the Land belonged to D, why would Ka Lung need to make the Two Payment in 2009 and 2010? The only logical explanation was that they were asked by someone to do so and, based on D’s evidence that the Land belonged to him after Lam Senior’s death, that person could only be D.
106. Lastly, Ms So argued that there was an uncertainty on the identity of the tenant as Ps had failed to identify who was the tenant after Lam Senior’s death and simply generalized the situation by referring to “Lam family”.
107. As mentioned above, it was D’s own evidence that the Land belonged to him after Lam Senior’s death. In other words, if the Land was subject to yearly tenancy from 1980s onwards, the tenant after Lam Senior’s death in 1994 could only be D. The uncertainty on the identity of the tenant, if any, has been removed by D’s own evidence.
108. Having considered all the evidence available (including the evidence of P2 and Ms Lam Tim Mui) and submissions from Counsel from both sides, I would accept Madam Lam’s evidence and reject D’s evidence insofar as it conflicts with Madam Lam’s evidence.
109. I find on balance that:-
(a) Lot 1919 was subject to tenancy from late 1961 until 29 December 2017, first on a fixed term under the Two Tenancies and thereafter on a yearly term;
(b) During this period, Lam Senior was the tenant until his death in 1994 and thereafter D was the tenant;
(c) Rent was paid to Tsoi family pursuant to the terms of the tenancies up to 29 December 2016;
(d) The possession of the Land (or the Green Part) by Lam Senior and D was under a lawful title as tenant up to 29 December 2017;
(e) During his lifetime, Lam Senior did not have the requisite intention to possess the Land. Insofar as D is concerned, he did not have the requisite intention at the time of the Two Meetings;
110. Even assuming that D started to have the requisite intention to possess the Land after his offer to purpose part of the Land was rejected by P2 on 11 October 2017, the 12-year limitation period had not expired at the time when Ps commenced the present proceedings on 13 February 2018. It follows that D’s counterclaim for adverse possession must fail.
111. In light of my above findings, I do not find it necessary to consider the expert evidence of Mr Tang Sze Kin Eric. In any event, given that it is Ps’ case that Lam Senior and his family was tenant, I do not think Ps can seriously dispute the factual occupation of the Land by them.
I. DISPOSITION
112. To prepare for different outcomes, I asked Ms So at the closing how much time D required to surrender the Green Part if Ps succeeded in their claim. Ms So replied that D would need four months. I agree that a period of four months is reasonable having regard to the fact that D and his family have been living therein for so many years.
113. I would therefore make the following orders:-
(a) D do deliver vacant possession of the Green Part within 4 months from the date of the judgment;
(b) D do pay Ps the arrears of rent in the sum of $5,500 covering the period from 30 December 2016 to 29 December 2017;
(c) D do pay Ps mesne profit at the rate of $5,500 per year from 30th December 2017 until the delivery of vacant possession;
(d) D’s counterclaim be dismissed.
114. Costs should follow the event and I would make an order nisi that D do pay Ps’ costs of these proceedings (including all costs reserved, if any), with Certificate for Counsel, to be taxed if not agreed. The order nisi will become absolute unless an application is made by a party to vary the same within 14 days from the date of the judgment.
115. Lastly, it remains for me to thank Mr Lee and Ms So for the helpful assistance rendered to the Court.
| ( Damian Wong ) | |
| Deputy District Judge |
Mr Lee Chun Hei, Ivan, instructed by Leung Kin & Co, for the 1st and 2nd Plaintiffs
Ms Natalie So, instructed by Cheung, Yeung & Lee, for the Defendant
[1] Madam Man had left 7 pieces of land on her death of which 3 pieces (including Lot 1919) were inherited by P1 and other 4 pieces by Choy Hon Wai.
[3] Ps’ Agreement Book at [C/341-348]; D’s Agreement Book at [D/596-601]
[4] §20(c)
[5] [D/602]
[6] [D/603]
[7] [D/621]
[8] [D/611-615]
[9] [C/312]
[10] [D/623]