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Wong Pui Wan v Wong Wing Kwong And Others

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date12 February 2018
Neutral Citation[2018] HKDC 160
Year2018
Judgement NumberDCCJ118/2014
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ118/2014 WONG PUI WAN v. WONG WING KWONG AND OTHERS

DCCJ 118/2014

[2018] HKDC 160

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 118 OF 2014

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BETWEEN
WONG PUI WAN（王佩雲） Plaintiff
and
WONG WING KWONG（王永光） 1st Defendant
WONG WING MING（王永明） 2nd Defendant
WONG SAU PING（王秀萍） 3rd Defendant

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Before: Deputy District Judge Mak in Court
Date of Hearing: 1-4, 7-11, 14 November 2017 and 22-23 December 2017
Date of Judgment: 12 February 2018

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JUDGMENT

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INTRODUCTION

1. Both the plaintiff and the defendants belong to the same clan in Sai Kung. The plaintiff is the uncle of the defendants. By inheritance, their houses are adjacent to each other, both facing the unquestionably beautiful sea off Tai Mong Tsai Road, Sai Kung. At any rate, they should be considered the lucky ones. Yet, they are entangled in this litigation, the stake of which is no comparison to what they already have.

ISSUE RESOLVED DURING THE COURSE OF THE TRIAL

2. By the plaintiff’s claim, he sought a relief, inter alia, an order against the 1st and 2nd defendants to remove the large water pipes on the wall of their modified house.

3. On the 4th day of the trial, the parties reached an agreement on this issue and as a result, an order was made by consent in the form of a Tomlin Order.

SITE VISIT

4. At the request of the parties, a site visit was conducted on the 2nd day of the trial.

5. Additional photographs were taken at various locations of the site. Together with the plans indicating the routes taken at the site visit and the location of the 3 access points in issue, those photographs were produced as evidence.

THE PLAINTIFF’S CASE

6. Back in the 1960s, Section B of Lot 611 in Demarcation District 216, Tai Wan, Sai Kung, New Territories (“Lot 611B”) was co-owned by the plaintiff’s father, Mr Wong Kai Fung (王啟峰) (“Wong KF”) and Mr Wong Koon Yung (王觀容) (“Wong KY”), the defendants’ father. In 1977, Wong KF acquired the Remaining Portion of Section B of Lot 611 (“Lot 611BRP”) solely by way of division of property. Wong KF passed away in or about 1978. The plaintiff became the owner of Lot 611BRP by an Assent in or about 1998.

7. The 1st and 2nd defendants are the registered owners of Lot 856 in Demarcation District 216, Tai Wan, Sai Kung, New Territories (formerly Sub-section 2 of Section B of Lot 610, hereinafter “Lot 856”), the address of which is known as No 23 Tai Wan Village, Tai Mong Tsai Road, Sai Kung, New Territories.

8. A small hut (“the disputed hut”) was built on Lot 611BRP in or about 1960. It was rented to Mr Chin Chun Shing (“Chin”) by Wong KF on a monthly basis in which Chin ran the business of soaps production until the end of the 1970s.

9. On or about 6 December, 2013, the 1st and 2nd defendants or their agents or sub-contractors unlawfully entered the hut and placed unknown items therein.

10. The plaintiff denied that the defendants have any right of way or easement at Point 1, Point 2 and Point 3 as identified in Plan 2 attached to the re-re-amended defence and counterclaim as alleged. Point 1 was blocked by the owner of the Remaining Portion of Lot 614 (“Lot 614RP”). The gate at Point 2 was for the purpose of preventing dogs from entering the plaintiff’s house and land. It was not secured by lock. Point 3 was not blocked. Anyone including the defendants could pass through freely.

THE DEFENDANT’S CASE

11. The defendants said that their parents had exclusively occupied the portion of Lot 611BRP that was at the same ground level as Lot 856 as identified in plan 1 annexed to the re-re-amended defence and counterclaim (“the disputed land”) since the early 1960s. The disputed hut was built by Wong KY, their father, in the early 1960s. Between the 1960s and 1990, it was used by Wong KY as a cow shed and a chicken shed respectively. Between the 1980s and the 2000s, the defendants’ mother used the disputed land for cutting sugarcanes, drying pickled vegetables and hanging clothes. They were the successive possessors thereof of their parents. Therefore, the defendants said “any title or interest the plaintiff or the plaintiff’s predecessor-in-title has in the disputed land has been extinguished since in or about 1980 by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347)”.

12. Wong KY acquired Sub-Section 1 of Section B of Lot 611 in Demarcation District 216, Sai Kung, New Territories (“D2’s land”) in or about 1977 by way of a Division of Property. After his passing, the 1st and 2nd defendants and their brother Mr Wong Wing Ching (“Wong WC”) became the owner of the D2’s land in 1994. On 22 May 2011, the 2nd defendant purchased D2’s land from his brothers. The defendants said their family used D2’s land for the purposes of growing sugarcane and beekeeping. Prior to 2009 or 2010, they could have access of D2’s land through Point 1, Point 2 and Point 3. The plaintiff had since 2009 or 2010 blocked the right of way at Point 1. And since August 2012 also blocked the right of way at Point 2 and Point 3 by fence and/or gate which were built in late 2011.

ISSUES

13. Counsel for both parties have formulated a statement of issues which consists of 13 pages (including the drainage issue which does not concern this trial). In my view, however, the following broad issues are for the determination by this trial:-

(1) whether the parents of the defendants and the defendants had acquired possession of the disputed land since the early 1960s;

(2) if so, whether the defendants were in successive possession of the disputed land;

(3) if so, whether they have the requisite intention to possess;

(4) whether the defendants have a right of way or easement at Point 1, Point 2 and Point 3; and

(5) if so, whether the plaintiff had blocked the said right of way at Point 1, Point 2 and Point 3.

LEGAL PRINCIPLES ON ADVERSE POSSESSION

14. To establish adverse possession, the plaintiff 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.

15. 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 …”

16. 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.”

17. 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.

18. 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.”

19. 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.”

20. 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...

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