Mo Sung Loi Also Known As Mo Chung Wah v Tse Man Fu

CourtDistrict Court (Hong Kong)
Judgement NumberDCCJ4125/2013
Subject MatterCivil Action
DCCJ4125/2013 MO SUNG LOI also known as MO CHUNG WAH v. TSE MAN FU

DCCJ 4125/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4125 OF 2013

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BETWEEN

MO SUNG LOI also known as Plaintiff
MO CHUNG WAH

and

TSE MAN FU Defendant

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Before: Deputy District Judge Mak in Court
Date of Hearing: 17-18 & 21 November 2016 and 3 January 2017
Date of Judgment: 20 December 2017

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JUDGMENT

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Introduction

1. This case concerns a piece of land in the New Territories, known as Lot 759 in Demarcation District 9 (“the disputed land”).

The plaintiff’s case

2. The plaintiff’s case is simple. The disputed land was used by someone other than the defendant prior to July 2008. After the unauthorized development thereon was cleared, the defendant wrongfully occupied the disputed land by erecting authorized structures thereon.

The defendant’s case

3. The defendant said the plaintiff had abandoned the disputed land and/or dispossessed by the defendant since around the end of 1976.

4. It is the defendant’s case that his parents rented the adjacent Lot 757 from the end of 1976 until 2007. The defendant’s family (which includes the parents, the defendant, 2 elder brothers and 3 elder sisters of the defendant) then enclosed the disputed land and the rented part of Lot 757 (“the combined land”) by erecting barbed wires mesh.

5. Apart from using the combined land as residence, the defendant’s family also used it as a chicken farm from 1976 to 1990. Thereafter, the defendant’s family turned the combined land to a pig farm until 1997. In the 1990s, members of the defendant’s family started to move out of the combined land but the defendant continued to reside there.

6. Around 2006, the defendant granted a licence to a person whose name he can no longer remember to use the combined land for the purpose of organizing war game. At the request of the landlord of Lot 757, the defendant evicted the licensee and reinstated the combined land.

7. The landlord of Lot 757 then recovered possession of Lot 757 on 31 December 2008. Before he delivered possession of Lot 757 to the landlord, the defendant built a new house on the disputed land and moved to reside therein. Since then, he occupied the disputed land exclusively and enclosed the disputed land by erecting corrugated sheets.

Issues

8. The following issues are for the determination by this trial:-

(1) whether the defendant’s family had entered into exclusive possession of the disputed land:-

(a) between 1976 and 1979;

(b) between 1980 and 2008; and

(c) between 2009 and 2014;

(2) if so, who were the possessors;

(3) whether they were in successive possession of the disputed land;

(4) whether each of the possessors had the requisite intention to possess;

(5) whether the defendant is liable to the surveying fees of $7,000; and

(6) whether the defendant is liable to pay the plaintiff damages, and if so, how much.

Legal principles on adverse possession

9. To establish adverse possession, the squatter must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E.

10. Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person …”

11. Section 8(1) of LO provides:-

“(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

12. Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33.

13. Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

14. Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

15. Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“… What is really meant, in my judgment, is that the animus possidendi 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 processes of the law will allow … The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner … A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass … In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner … I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

Whether the defendant’s family had entered into exclusive possession of the disputed land :-

(a) Between 1976 and 1979

16. The defendant said around the end of 1976, his parents rented part of the land of Lot 757 from the landlord Man Sui Tso Kung (文遂祖公) (which is a Tso or Tong) (“the landlord”) orally at the annual rent of $2,000. He can only locate the rent receipts between 19 November 1985 and 16 March 2002 and 5 tenancy agreements from 1 January 1999 to 31 December 2008.

17. The disputed land was surrounded by Lot 757 on its 3 sides with its remaining side facing a footpath. The defendant said when his family moved into Lot 757, the disputed land was vacant with overgrowth of weed and...

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