YEUNG KAM WING v. WONG KWAN MUI

bjbj G M E N T ------------------------ Introduction AUTONUMOUT This action concerns Wang Chau House Lot Nos.176, 177 and 178 in Demarcation District No.123, Yuen Long, New Territories ( the Lots collectively, Lot 176 Lot 177 Lot 178 respectively and DD123 ). The area where these lots of land located is known as Yeung Uk Tsuen ( JiK\Qg) Jix[hTVy) y'Y) Rt^) vp nuary 1996, Shing Loy acquired Lot 177, Lot 178 and Lot 1288 from Wing Fai for HK$290,000. With such acquisition, Shing Loy became the registered owner of the Lots. It is the plaintiff s case that Shing Loy intended to build a house at the Lots. In Nove , he averred that in about 1998, it was discovered that the defendant had wrongfully trespassed onto the Lots by dumping unused materials and keeping chicken on part of the Lots, planting trees on Lot 177 and Lot 178 and placing wasted timbers on the entrance outside Lot 177. Despite repeated demands, the defendant failed to return vacant possession of the Lots to the plaintiff. Alternatively, the plaintiff alleged that the defendant caused nuisance to the Lots which accordingly suffered a loss and/or diminution in value. He therefore claimed for, inter alia, an injunction to restrain the defendant from remaining on the Lots, an order of delivery up, mense profits and damages. AUTONUMOUT In the Re-Amended Defence and Counterclaim, the defendant denied trespass or nuisance on Lot 176. She further alleged that pursuant to the line of succession in accordance with the village rules and/or convention of the local residents of the Village, Shing Nin would have become the rightful owner of Lot 177. No evidence has, however, been adduced by the defendant to make good this bare allegation at trial. As I understand Mr Hung, counsel for the defendant, he was not running this line of defence at all. This plea is relied on merely to support the defendant s alleged state of mind at the material times when she trespassed on Lot 177 and Lot 178. The only substantive defence raised was one of adverse possession. The defendant averred that she had been in adverse possession of Lot 177 and Lot 178 for no less than 36 years before the action commenced. She therefore counterclaimed for a declaration that she has obtained possessory title in those Lots and that by reason of her adverse possession, the plaintiff s title in those Lots had been extinguished. AUTONUMOUT This case essentially turns on findings of factual disputes and hence credibility of witnesses. I therefore ordered that the witnesses should give their evidence viva voce. Their witness statements do not stand as evidence chief. They are but statements made outside court. By consent, the witness gave their oral evidence in Punti while counsel made their submissions in English. The legal principles AUTONUMOUT Before going into the evidence, I first set out the legal principles on adverse possession. AUTONUMOUT There is a presumption that the owner of the land with the paper title is in possession of the land. To establish adverse possession, a squatter must prove that he has both factual possession of the land and the requisite intention to possess (animus possidendi). The squatter must demonstrate that by his acts he has taken a sufficient degree of exclusive physical control. Whether he has done so is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed. The type of conduct which indicates possession must vary with the type of land : see Megarry & Wade on The Law of Real Property, 6th edn, paras.21-016 and 21-017. AUTONUMOUT As to the requisite intention to possess, the principles had been authoritatively stated by the Court of Final Appeal in Wong Tak Yue v. Kung Kwok Wai David & another [1998] 1 HKC 1 where Li CJ expounded at pp.12E-13C thus As Nourse LJ pointed out in Buckinghamshire County Council v Moran (op cit) at 644 (Ch), 238h (All ER), adverse possession can be described as possession as of wrong and with limitation it is the intention of the squatter that is essential. The requisite intention to possess has been referred in various authorities under its Latin tag animus possidendi . I shall refer to it simply as the intention to possess. As Slade J observed in Powell v Mcfarland at 471-471, the intention to possess requisite for adverse possession involves the intention, in one s own name and on one s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow. The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case. Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinize the circumstances in which they were made and would given them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight. AUTONUMOUT The requisite intention to possess can be established even if the trespasser mistakenly believes himself to be the owner of the land : Tsun Wai Man, the sole executor of the estate of Tsang Kam Chuen alias Tsang Kam Tsun, deceased v. Cheung Yung, HCA14202/1999, 9 August 2001, per Cheung J at paras.38-39; Viva Steamship Co. Ltd v. Chow Choy, HCA1722/2001, 7 May 2002, per Kwan J at paras.23-24; Chan Tin Shi v. Li Tin Sung, HCMP4191/1998, 14 January 2003, per Cheung DJ (as he then was) at paras.67-68. Evidence AUTONUMOUT With these principles in mind, I now turn to consider if the defendant has made out her case of adverse possession of Lot 177 and Lot 178. (1) Conditions of the Lots AUTONUMOUT It is not seriously in dispute that in the past, a house was erected on and occupied the entirety of each of the Lots. However, the houses were in a state of disrepair. By the early 1960s, they had become so dilapidated that they were simply not inhabitable. Only rubbles were found on Lot 176. At Lot 177 and Lot 178, only broken walls remained. The entrances and roofs of the two houses originally there had long collapsed over the years. (2) The plaintiff s evidence AUTONUMOUT The main thrust of the plaintiff s evidence is that it was not until after 1996 did the defendant begin to trespass on the Lots by keeping chickens and putting wood and other items there. His evidence may be summarized thus. Born in 1962, the plaintiff was the eldest son of Shing Loy. Before 1969, he resided with his family at House No.129K at the Village. In 1969, House No.129K underwent renovation. His family then moved to a wooden hut built temporarily on Lot 176. They stayed there for slightly more than a year. At that time, Lot 177 and Lot 178 were not occupied. After the renovation work was completed, they moved back to House No.129K. The plaintiff had lived there until some time after 1996 when he moved to his current address at 1/F, 48 Yeung Uk Tsuen, Wang Chau, Yuen Long. House 129K was about one minute walking distance from the Lots. He had passed by the Lots from time to time over the years. Before 1996, he had not seen the defendant keeping pigs or chicken or planting trees or putting up iron meshes there. AUTONUMOUT In chief, the plaintiff gave the impression that before he moved to his current address, he had all along resided at House No.129K. This is, of course, to bolster his assertion that he had often passed by the Lots and did not see the defendant trespassing on the Lots until 1996. Under cross examination, the plaintiff admitted that his father ran a tyre shop at Shop 1, Ground Floor, Tai Fook G & S Building, No.71 Kin Tak Street, Yuen Long ( the Yuen Long Address ). He had been helping his father s business ever since he was a secondary school student. He denied that he lived for most of the time at the Yuen Long Address. But he admitted, without giving any satisfactory explanation, that in his affirmation filed with the court on 21 August 2001 in support of his application for summary judgment ( the Affirmation ), he gave the Yuen Long Address as his residential address. By then, he had already moved to his current residential address for some years. He nevertheless stated the Yen Long Address as his residential address. It is certainly arguable that he might have stayed in the Yuen Long Address in the past, thus diluting his assertion that before 1996 he had all along resided at House No.129K. AUTONUMOUT The plaintiff acknowledged, as it is common ground, that trees grew along the border of Lot 177 and Lot 178. But he suggested that the trees might have been seeded by wind. His suggestion is contrary to common sense, if not absurd. I reject it completely. AUTONUMOUT As noted above, the plaintiff had earlier on applied for summary judgment. In paragraph 9 of the Affirmation, the plaintiff said that Wing Fai and his family had occupied Lot 177 and Lot 178 since 1980 until several years ago. To support his application, he exhibited a witness statement of Wing Fai dated 15 January 2001 (Exhibit YKW-4). There, Wing Fai said that he had since 1980 occupied and used Lot 177 and Lot 178 for many years. This is inconsistent with the plaintiff s own evidence now that those Lots were not inhabitable at all material times. I agree with Mr Hung s submission that it was just an afterthought to defeat the defendant s claim for adverse possession. Second, Wing Fai said in his witness statement that before the sale, he and Shing Loy inspected those Lots many times but did not see any trees or chicken there. This is again inconsistent with the plaintiff s own evidence now that at the material times there were trees on Lot 177 and Lot 178. Third, the plaintiff had at trial adduced photographs taken of the Lots in about 1996, which showed the trees along the border of Lot 177 and Lot 178. He chose not to exhibit them in the Affirmation apparently because they clearly contradicted his case for the summary judgment application. Lastly, in paragraph 10 of the Affirmation and paragraph 5 of Wing Fai s statement, it was alleged that Wing Fai and Shing Loy inspected Lot 177 and Lot 178 several times before the sale. Neither did the plaintiff nor Wing Fai say that the plaintiff himself had also carried out the inspections. The plaintiff now said in his oral testimony that he had. AUTONUMOUT These are material inconsistencies between the evidence then presented before the court in support of the application for summary judgment and the plaintiff s oral testimony. They have not been satisfactorily accounted for. The way the plaintiff had conducted himself in the application for summary judgment showed that he was prepared to portray an incorrect picture to suit his case. A similar attitude at trial is demonstrated by his wild assertion that the trees along the border of Lot 177 and Lot 178 might have been seeded by wind. AUTONUMOUT For the above reasons, I find the plaintiff an unreliable witness. I reject his evidence that the defendant had not trespassed on Lot 177 and Lot 178 until after 1996. AUTONUMOUT That said, it does not necessarily follow that the defendant has discharged the burden of proving adverse possession. I now turn to examine her evidence. (3) The defendant s evidence AUTONUMOUT The defendant is now 63. She married Shing Nin in 1960 when she was 20. They had seven sons and one daughter. She had little education and used to work as a cleaner. She retired in about 1998. AUTONUMOUT When the defendant married Shing Nin, he told her that as he was the eldest son, he had succeeded to Lot 177 and Lot 178. It should be noted that her pleaded case is that her husband had only succeeded to Lot 177 pursuant to the village rules. At that time, the couple lived at House No.70 in the Village. They initially kept pigs and chickens somewher gK\Qg) ouse at the Pigsty, which then became House No.88. It was about 300 square feet in size. The family then moved to House No.88. The couple then kept pigs again at the place near Lam Uk Village. AUTONUMOUT Ever since her marriage, she had put wood and agricultural tools and reared chickens at Lot 177. She also put some wood and her husband s old bicycle at Lot 178. She had not reared any chicken at Lot 178 but she had grown fruit trees there along the border with Lot 177 to provide shades to the chickens kept at Lot 177. It is not clear from her evidence when exactly she planted those trees although she said it was more than 10 odd years ago. She also put wooden planks to block the entrance at Lot 177 to prevent her children from going in. She was afraid that debris there might fall down and hurt them. She also put up an iron mesh at Lot 177 to fence off the chickens. She had not put anything at Lot 176 as she knew from her husband that it belonged to Shing Loy. She had occupied Lot 177 and Lot 178 ever since her marriage up to now. AUTONUMOUT A number of points emerged from her cross-examination. AUTONUMOUT First, she admitted that she had not fenced off or locked up Lot 177 or Lot 178. Nor had she carried out any renovation work there. AUTONUMOUT Second, in paragraph 8 of her witness statement filed on 6 November 2002, she said that in about 1973, Lot 177 had become too dilapidated and she put some wooden planks at the entrance to prevent children from going inside. Under cross-examination, she said it was not 1973 and she did not know who put 1973 in her witness statement. She repeated that she put the wooden planks at the entrance of Lot 177 for the children s safety. AUTONUMOUT Third, she went on to say in paragraph 8 of her witness statement that the condition at Lot 178 was safer. Hence she did not block the entrance there. In her oral testimony, she agreed that one could enter Lot 178 without difficulty. She had not locked up the place, she said. AUTONUMOUT Fourth, she agreed that some time in 1996, the plaintiff had caused one of the trees she planted in Lot 178 to be cut down. But she had not made any complaint or taken any action. AUTONUMOUT Fifth, in about 1982, she had two houses, namely House No.70 and House No.88. The houses were not big enough to accommodate the entire family. She built a temporary wooden hut at the pigsty near Lam Uk Village to house her sons. It was obviously more convenient to simply build the temporary hut at Lot 177 or Lot 178, which were just next to House No.88. She said she did not do so because she did not have the money. (4) The evidence of the defence witnesses AUTONUMOUT The defendant called two witnesses to testify on her behalf. The first witness is Ms Wong Kam. She was a classmate and friend of the defendant s daughter, Ms Yeung Nan. Her evidence did not take the defendant s case any further. She recalled that between 1971 and 1977, she had visited Ms Yeung Pui Nan on several occasions. She confirmed the Lots were in utter disrepair. It was the defendant who planted trees at Lot 178 and put wooden planks at the entrance of Lot 177 for the children s safety. AUTONUMOUT The next defence witness is Ms Yeung Pui Nan. She said that when she was very young, her father told her that Lot 177 and Lot 178 belonged to him. But he had not mentioned about rebuilding the houses there. When asked if the defendant had told her that those Lots belonged to her father, she said it was not necessary for her mother to do so. She corroborated the defendant s evidence on her usage and occupation of the land. Exclusive possession? AUTONUMOUT To establish adverse possession, the defendant needs to prove exclusive physical possession of Lot 177 and Lot 178. Mr Hung submitted that her occupation of the land was sufficient to establish exclusive possession. He argued that given the nature of the land in a remote village where there are seldom strangers around, it was not necessary to lock up the place. He relied on the plaintiff s own evidence that in the Village, people would not take others things or place and that it was not necessary to lock up houses even if deserted. The defendant believed, albeit mistakenly, that the land belonged to her husband. The things stored there were of little value. It was therefore not necessary to lock up the place. Mr Hung also urged me to accept the defendant s explanation that because she did not have money, she did not build houses on Lot 177 and Lot 178. AUTONUMOUT I have carefully considered the defendant s evidence. Mr Hung urged me to and I do take into account her age and her humble background when assessing her evidence. In my view, the way she had used and occupied Lot 177 and Lot 178 does not establish exclusive physical possession. Putting at its highest, she had merely used and occupied the land in the way as she had described since her marriage and nothing more. In other words, she was just a trespasser. AUTONUMOUT I reject her evidence that she laboured under a mistaken belief that her husband had succeeded to those Lots by virtue of village rules. If true, I see no reason why when the family was in need, she or her husband did not conveniently build a temporary wooden hut at Lot 177 and Lot 178, which was just next to House No.88 but chose to do so somewhere in Lam Uk Village. Lack of funds is but an excuse made up by her when she went along. At that time, she had the money to build a temporary hut at Lam Uk Village. Why not simply use the money to build the hut at Lot 177 or Lot 178 instead? Her evidence on her husband s succession to the land (for both Lot 177 and Lot 178) also went beyond her pleaded case (for Lot 177 only). No explanation has been given on this glaring inconsistency. AUTONUMOUT I accept that Lot 177 and Lot 178 were situated at a remote village and that they were at a dilapidated state. I also take into account what the plaintiff had said as highlighted by counsel above. But I am unable to accept that what the defendant had done was sufficient to establish exclusive possession. It can be hardly disputed that any person could go into the two lots at any time without any restriction or difficulty. Some years ago, the defendant placed wooden planks to block the entrance at Lot 177. That was for the children s safety, not for the purpose of excluding outsiders. In fact, despite what she had done, one could still easily go inside Lot 178 by, say, climbing over the broken walls. More recently, the defendant had put up an iron mesh at Lot 177, which was about two feet in height. (See the copy newspaper cutting on the case taken in May 1999 at page 58 of Trial Bundle A.) It was, again, not for the purpose of excluding outsiders. In any event, the iron mesh is not an obstacle at all to any person who wished to go inside Lot 177. When she left home for work, she could simply do nothing to prevent others from entering into Lot 177 and Lot 178. The thrust of her evidence was that there was nothing much she could do. In 1996, she had already adversely possessed the land for more than 30 years. But when one of the trees she planted at Lot 178 was cut down in about 1996, which was an act done in direct conflict with her alleged interest in the land, she had done nothing at all. It is a strong pointer against any exclusive possession indeed. AUTONUMOUT Accordingly, I am not satisfied that the defendant has demonstrated that by her acts she had taken a sufficient degree of exclusive control of either Lot 177 or Lot 178. I find that while the defendant has been trespassing on Lot 177 and Lot 178 since the early 1960s, she has failed to establish exclusive physical possession of the land as alleged. AUTONUMOUT As noted above, the evidence of her two witnesses does not take her case any further. Their evidence on the conditions of the Lots and how the defendant had occupied and used Lot 177 and Lot 178 was neutral. Further, I reject Ms Yeung s assertion that her father had told her that he had succeeded to Lot 177 and 178 when she was very young. Apparently, she gave such evidence to corroborate the defendant s version in this respect, which I have already rejected. Requisite intention to possess? AUTONUMOUT In this respect, the defendant relied on her mistaken state of mind as to the ownership of Lot 177 and Lot 178. That I have already rejected. In the premises, the defendant has failed to establish the requisite intention to possess either. AUTONUMOUT In the circumstances, the defendant has failed to prove the case of adverse possession of Lot 177 and Lot 178. Both the defence of adverse possession and the consequential counterclaim must fail. LOT 176 AUTONUMOUT The evidence adduced by the plaintiff on the defendant s trespass on Lot 176 was flimsy. Mr Chu, counsel for the plaintiff, resorted to rely on the newspaper cutting referred to in paragraph 35 above, which showed the defendant standing in Lot 176 and nothing more. That is hardly sufficient for present purposes. Accordingly, I find that the plaintiff has not proved his case. Nuisance AUTONUMOUT In light of my finding above, it is not necessary to address the plaintiff s alternative claim of nuisance. In any event, the plaintiff has not adduced any evidence to support it. CONCLUSION AUTONUMOUT As I have already ruled against the defendant on adverse possession, I will not proceed to consider the effect of the New Territories Leases (Extension) Ordinance, Cap.150 and the relevant authorities. AUTONUMOUT I will enter judgment for the plaintiff for : (1) An injunction to restrain the defendant whether by herself, her servants, agents or otherwise howsoever from trespassing on Lot 177 and Lot 178. (2) An order that the defendant do within 28 days from the handing down of this judgment deliver up vacant possession of Lot 177 and Lot 178 to the plaintiff. (3) An order that the defendant do within 28 days from the handing down of this judgment dismantle, demolish and remove all the structures put up by her or things (alive or otherwise) placed or kept by her at Lot 177 and Lot 178. (4) Mense profit or alternatively damages for trespassing on Lot 177 and Lot 178 to be assessed by a master of the High Court. AUTONUMOUT I will dismiss the plaintiff s claim in respect of Lot 176 and the alternative claim of nuisance. I will also dismiss the defendant s counterclaim in its entirety. Lastly, I will make an order nisi that the plaintiff shall have the costs of this action, including the costs of the counterclaim and any costs reserved, to be taxed if not agreed. (J. Poon) Deputy High Court Judge Mr George Chu, instructed by Messrs Leung Kin & Co., for the Plaintiff Mr Andy Hung, instructed by Messrs K.M. Lai & Li, for the Defendant PAGE - PAGE A B C D E F G H I J K L M N O P Q R S T U V 1udk 1udk H I J K L M N O P Q R S T U V &`#$ &`#$ & 6" CACV Jeannie MY MokSo ABC.dot setup Microsoft Word 9.0 FND] FND] Judiciary CACV Title b U] b U] b U] Microsoft Word Document MSWordDoc Word.Document.8