Tsang Kwong Kuen v Hau Wai Keung Gaius

Court of Appeal
Civil Appeal No. 1 of 2014
Cheung CJHC, Lam V-P and Barma JA
Land Law
30 September 2014

Land law – adverse possession – hereditary t’ong – person in adverse possession could not extinguish title of t’so or t’ong under Limitation Ordinance unless requisite limitation period against all living members of t’so or t’ong established – no requirement that t’ong must have written document proving its hereditary nature – Limitation Ordinance (Cap. 347)

P claimed relief based on his alleged adverse possession of a lot of land in the New Territories (the “Land”). P’s case was that he (and his father at an earlier stage) had been in possession of the Land since 1963 until he was dispossessed wrongfully by Ds in 2003. The Judge found against P on two bases: (a) on the facts, as he was not satisfied that P or his father had been in possession for 20 years prior to 1991 or 12 years of adverse possession since that year; and (b) he accepted the defence case that the registered owner of the Land was a hereditary t’ong and that three members of the t’ong could successfully resist P’s claim for extinguishment of its title by virtue of the principle in Leung Kuen Fai v Tang Kwong Yu Tong [2002] 2 HKLRD 705 (“Leung”). P appealed, arguing that there was no evidence supporting the existence of the t’ong or its membership.

Held, dismissing P’s appeal, that:

  • The essence of the relevant principle in the Leung case was that due to the peculiar characteristic of a t’so or t’ong, with new equitable interest stemming from each new member being admitted upon birth by reason of his hereditary link with the focal ancestor, a person who was in adverse possession could not extinguish the title of the t’so or t’ong under the Limitation Ordinance (Cap. 347) unless he could establish the requisite limitation period against all the living members of the t’so or t’ong. At all material times when P was allegedly in possession of the Land, there was at least one member of the t’ong against whom the limitation period had not expired. This principle was only applicable to a hereditary t’ong. However, there was no requirement that a t’ong must have a written document proving its nature as a hereditary t’ong. P did not adduce any evidence to contradict the evidence of the defence witness whose oral testimony supported the finding that the t’ong in question was a hereditary t’ong. On such evidence, it would be perverse for a court to reach any other conclusion. Although the Judge did not specifically analyse the nature of the t’ong, he referred to the three members as direct descendants of the focal ancestor in whose name the “family t’ong” existed, thus qualifying as its members.
  • P did not adduce any evidence to challenge the list of members of the t’ong approved by the District Office. That list had been verified by all the managers and basically they knew each other. The Judge could not be criticised for giving weight to it. First, dealing with a customary hereditary institution like a t’ong, it would not be appropriate to expect records to be kept in the same manner as in the case of a register of members for a large commercial corporation. In any event, the presumption of regularity was applicable.
  • Accordingly, the appeal must be dismissed, even if P could establish possession from 1963 to 2003.

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