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Civic Ltd v 余綺妙 And Others

Judgment Cited authorities 17 Cited in Precedent Map Related
Vincent
Judgment Date28 March 2014
Subject MatterCivil Action
Judgement NumberHCA225/2011
CourtHigh Court (Hong Kong)
HCA225B/2011 CIVIC LTD v. 余綺妙 AND OTHERS

HCA 225/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 225 OF 2011

_________________________

BETWEEN

CIVIC LIMITED Plaintiff
and
余綺妙 1st Defendant
ALL OTHER OCCUPIERS OF LOT NO 2061 IN DD 104
YUEN LONG NEW TERRITORIES		 2nd Defendant
TSE MAN YU (謝民裕) 3rd Defendant
TSE MAN FU (謝民富) 4th Defendant
_________________________
Before: Deputy High Court Judge Marlene Ng in Court
Dates of Hearing: 7, 8, 9,12 and 13 August 2013
Date of Handing Down Judgment: 28 March 2014

________________________

J U D G M E N T

________________________

I. LAND

1. Since May 2008, the plaintiff was/is the registered owner of the land situated at and known as ALL THAT piece or parcel of ground known and registered at the Land Registry as Lot No 2061 in Demarcation District No 104 (“DD104”) Together with the messuages erections and buildings thereon (“Land”). The Land was an Old Schedule Agricultural Lot registered with an area of 0.09ac under the relevant Block Crown Lease.

2. At all material times, a two-storey brick house[1] (“Hon House”) was erected on the Land with an open area in front of the house. Its address used to be House No 60, Fuk Tin Lane, San Tin Road, San Wai Tsuen (“Village”), Yuen Long, New Territories, but since the end of 1961 it was changed to House No 61. There was also a smaller one-storey building with an open-sided structure erected between such building and Hon House. There was dense vegetation on the eastern and southern side.

II. PARTIES

3. The present action concerned two families, ie the 黃/謝 (Wong/ Dare) family and the 謝 (Tse) family, going back to the 1930s. The Wong/Dare family tree started with黃禮漢 (Wong Lai Hon) also known as 謝滿 (Moon Dare) (“Wong Snr”) and his wife 謝余娣 (Yee Hai Dare or Yee Dare or Yee Shee Dare) (“Yee”). Their son was 黃啓明 (Wong Kai Ming) also known as 謝黃啓明 (Kai Ming Wong Dare) or 謝啓明 (Kai Ming Dare) (“Wong Jnr”). In 1946, Wong Jnr married李金英 (Rose Lee Dare or Rose Dare) (“Rose”) in the United States. They have a daughter Yolanda Wong Lum also known as Yolanda Wong Dare (“Yolanda”) and a son Earnest Wong Dare (“Earnest”). Wong Snr, Yee and Wong Jnr had passed away.

4. The Tse family tree started with the 1st defendant 余綺妙 (Yu Yee Miu or Yu Yi Miu) (“Madam Yu”) and her husband 謝福祿 (Tse Fuk Luk or Tse Fook Lok) (“Mr Tse”). Madam Yu revealed under cross- examination that Mr Tse was also known as 黃國強 (Wong Kwok Keung). Mr Tse told the villagers at the Village (“Villagers”) he had two names, so some Villagers called him Wong Kwok Keung and some called him Tse Fuk Luk. Likewise, some Villagers addressed Madam Yu as Mrs Tse and others called her Mrs Wong or 強嫂 (Auntie Keung). Mr Tse and Madam Yu have six sons, the 4th defendant 謝民富 (Tse Man Fu) (“1st Son”), 謝民兆 (“2nd Son”), 謝民康 (“3rd Son”), 謝民健 (“4th Son”), 謝民偉 (“5th Son”) and the 3rd defendant 謝民裕 (Tse Man Yu) (“6th Son”). Madam Yu’s third sister 余綺夢 (“Yu Sister”) was married to 黃進 (“Mr Wong”). Mr Tse, Yu Sister and Mr Wong had passed away.

III. PAPER TITLE

5. The original owner of the Land was Tang Lai Pan as trustee for Tang Kwong U Tong. In 1917, Tang Yuan Hing and Tang Tim Hing were appointed as trustees for Tang Kwong U Tong in place of Tang Lai Pan deceased. On 22 March 1922, further trustees were appointed for Tang Kwong U Tong in place of Tang Yuan Hing deceased. On 16 September 1927, further trustees were appointed for Tang Kwong U Tong in place of Tang Tim Hing deceased.

6. On 22 November 1930, Tang Kwong U Tong sold the Land and various other lots in DD104 to Wong Tsun Tsoi. On/about 25 September 1931, Wong Tsun Tsoi sold the Land and Lot 2061 of DD 104 to Wong Snr, 周道輝 (Chau To Fai or Chow To Fai) also known as 周金悅 (Chow Kam Yut), and 林祝平 (Lam Chuk Ping or Chuk Ping Lam or Den Lim or Lim Den or Den Lim Chok Ping) in joint names. The various aliases of the three co-owners of the legal title to the Land and their descendants[2] can be found in various title documents registered at the Land Registry.

7. In 1956, Wong Snr passed away in San Francisco, United States. On/about 1 May 1990, ⅓ of the legal title of the Land registered in the name of Lam Chuk Ping passed to and was registered in the name of William Yeung Wo Lim (or William Lim) as executor of the estate of Lam Chuk Ping deceased. On/about 7 June 1990, ⅓ of the legal title of the Land registered in the name of Chau To Fai passed to and was registered in the name of Kenneth Kwok Sui Leung as the executor of the estate of Chau To Fai deceased. On/about 21 September 1992, Rose was granted letters of administration to administer the estate of Wong Snr deceased (“Wong Snr LA”), and ⅓ of the legal title of the Land registered in the name of Wong Snr passed to and was registered in her name as administratrix of the estate of Wong Snr deceased. On/about 20 January 1993, ⅓ of the legal title of the Land was vested in Wong Jnr.

8. In 1997 and 1998, Wong Jnr and Yee respectively passed away in San Francisco. On/about 27 May 1999, Rose was granted letters of administration to administer the estate of Wong Jnr deceased (“Wong Jnr LA”), and ⅓ of the legal title of the Land registered in the name of Wong Jnr passed to and was registered in the name of Rose as administratrix of the estate of Wong Jnr deceased. On/about 17 November 2000, she assigned ⅓ of the legal title of the Land registered in the name of Wong Jnr deceased to Yolanda and Earnest as tenants-in-common in equal shares.

9. On/about 6 March 2003, ⅓ of the legal title of the Land registered in the name of William Yeung Wo Lim as executor of the estate of Lam Chuk Ping deceased was assented to and registered in the name of Mar Se Lim (or Mah Shee Lim). On/about 6 March 2003, ⅓ of the legal title of the Land registered in the name of Mar Se Lim was assigned to William Yeung Wo Lim, Jason Thomas Lim and Jeanette Diane Lim as joint tenants.

10. By an agreement for sale and purchase dated 10 February 2008 (“SP Agreement”), (a) Kenneth Kwok Sui Leung as executor of the estate of Kam Yut Chow (or To Fai Chow or To Fai Chau) deceased, (b) Yolanda and Earnest, and (c) William Lim (or William Yeung Wo Lim), Jason Thomas Lim and Jeanette Diane Lim (collectively, “Vendors”) sold the Land to the plaintiff for the price of $2,000,000. By an assignment dated 9 May 2008 (“Assignment”), the Vendors assigned the legal and beneficial interest ofthe Land to the plaintiff.

IV. PROCEDURAL HISTORY

11. The plaintiff claimed that at about the time when they purchased the Land they came to know a 强嫂/張嬸 (Auntie Keung) (later identified to be Madam Yu) was residing at Hon House and occupying the Land. At/about the end of 2010, the plaintiff further discovered that other people were also occupying the Land and residing at Hon House. On 8 November 2010, the plaintiff’s solicitors wrote to demand such occupiers to deliver vacant possession of the Land within 30 days (“Demand Letter”), but they failed to do so.

12. On 7 February 2011, the plaintiff commenced the present action against Madam Yu (as the 1st defendant) and all occupiers of the Land (as the 2nd defendant) for vacant possession of Hon House and the Land, damages for trespass, interest and costs. On 7 June 2011, the plaintiff joined the 6th and 1st Sons respectively as the 3rd and 4th defendants in the present action. In their pleadings, the plaintiff claimed that Madam Yu, the 2nd defendant, and the 6th and 1st Sons wrongfully occupied and trespassed upon Hon House and the Land, and they thereby suffered loss and damages.

13. On 8 April 2011, Madam Yu and the 6th and 1st Sons (collectively, “Relevant Defendants”) filed their respective home-made Defence claiming that from the time their family moved to Hon House at the end of 1961 until the Demand Letter in November 2010, no one (a) claimed to be the owner of the Land, (b) tried to collect licence fee from them and/or (c) demanded them to vacate the Land, hence they had been in adverse possession of Hon House and the Land for over 20 years.

14. The Relevant Defendants were subsequently granted legal aid. On 26 June 2013, they amended their pleadings to add a counterclaim for inter alia (a) a declaration they had been in adverse possession of the Land for not less than 20 years (before 1 July 1991) or 12 years (on/after 1 July 1991), (b) a declaration that the plaintiff’s title in/over the Land had been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance Cap 347 (“LO”), and (c) costs.

15. On 19 July 2013 just shortly before trial, Suffiad J granted leave for Rose to give evidence by video-link from San Francisco. The Relevant Defendants also gave evidence. By the order of Master R Lai dated 20 April 2012 (“20/4/12 Order”), the signed witness statements shall stand as evidence-in-chief of the witnesses. The 6th and 1st Sons by their witness statements also adopted Madam Yu’s witness statement dated 6 September 2012 (“Yu 1st Statement”).

V. ISSUES

16. There is no dispute the Relevant Defendants had been in factual possession of the Land and Hon House for over 20 years. They claimed to be in adverse possession on the basis set out in paragraph 13 above. On the other hand, the plaintiff claimed their occupation was permissive and therefore not adverse. But the Relevant Defendants denied they occupied the Land and Hon House pursuant to any licence/consent.

17. In the Relevant...

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