LAI HAU PING v. POWER TAKE LTD

HCA 573/2016

[2023] HKCFI 2367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 573 OF 2016

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BETWEEN

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JUDGMENT

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Table of Contents

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A. INTRODUCTION

1.  In this action, the Plaintiff (“P”) issued a writ on 2 March 2016 for adverse possession of a piece of land known as Lot No 2249 in DD 129 (“Lot 2249”) coloured pink on a survey plan dated 4 January 2016 prepared by a Mr Raymond John King and attached to the amended statement of claim (“2016 Survey Plan”). The defendant (“D”) is currently the registered owner of Lot 2249.

2.  The actual area of the part of the land in Lot 2249 allegedly occupied by P (“Land”) is one of the disputed issues. The experts have agreed that the boundary of Lot 2249 is that delineated on the Lot Index Plan prepared by the District Survey Office (“Lot Index Plan”)[1]. Lot 2249 consists of two different shaped portions, a triangular shape part on the west, and an oblong shape part on the east[2] (respectively “West Portion” and “East Portion”)[3]. It is not disputed that the West Portion is on a platform higher than the East Portion, which is itself on a platform higher than the neighbouring government land.

3.  As seen in the Lot Index Plan, there are some 8 lots adjoining Lot 2249, which shall be simply referred to in this judgement as Lot 2253, Lot 2252, Lot 2251, Lot 2250, Lot 2273, Lot 2276 S.B. ss1, Lot 2276 S.B. RP, Lot 2276 S.A. ss1 RP and also government land, as follows:

East Portion

(1) On the north-western boundary of the East Portion – Lot 2253 (about 2/5 of the north-western boundary), Lot 2252 (about another 2/5 of the north-western boundary), and Lot 2251 (the remaining of about 1/5 of the north-western boundary)

(2) On the south-western boundary of the East Portion – Lot 2250 (almost the entire south-western boundary)

(3) On the north-eastern boundary and south-eastern boundary of the East Portion – government land

West Portion

(1) On the north-western boundary of the West Portion – Lot 2250 (a large part of the north-western boundary) and Lot 2273 (remaining part of the north-western boundary)

(2) On the southern boundary of the West Portion – Lot 2276 S.B. ss1, Lot 2276 S.B. RP and Lot 2276 S.A. ss1 RP and also government land

4.  The total area of Lot 2249 on the 2016 Survey Plan produced by P is of 1886.1 sq m (or about 20,302 sq ft)[4]. The total area of Lot 2249 on a survey plan carried out by a Mr Lau Chi Kwong (“LCK”) instructed by D in June 2010 (“2010 Survey Plan”) is about 1966.9 sq m (or about 21,171.50 sq ft)^[5].

5.  P’s pleaded case in her amended statement of claim (“ASOC”) is that, amongst other things, without the consent of the registered owner/s of Lot 2249[6]:

(1) from 1950 onwards, she had been using the Land for growing fruit trees and vegetables;

(2) In about mid 1980s, she and her husband had installed metal wire fencing along the perimeter of the Land with a metal gate with a lock and enclosing the Land making the same only accessible by P or her licencees;

(3) P has been paying for the expenses for maintaining the above installations

6.  By reason of the above, it is P’s pleaded case that she had acquired the rights and interests in the Land for a continuous period of not less than 20 years prior to the commencement of this action and D’s title, rights and interests in the Land, if any, had prior to this action be extinguished under the Limitation Ordinance, Cap 347.

7.  D became the sole registered owner of Lot 2249 on 23 December 2005. Briefly, in D’s amended defence and counterclaim (“AD&C”), D puts P to strict proof of her claim and D has denied that the Land was occupied or exclusively occupied by P at all material times. D further pleaded he had re-entered the Land and/or P had abandoned the Land. D counterclaims amongst other things for (1) vacant possession of the Land; (2) an order that all illegal structures built on the Land be demolished; (3) an injunction against P and/or her agents and/or servants for any trespass of the Land; (4) damages.

8.  Counsel Mr Kelvin Leung appeared for P during the trial, and counsel Mr Stanley CK Siu appeared for D.

B. THE LEGAL PRINCIPLES

9.  To start with, the relevant provisions in the Limitation Ordinance, Cap. 347 are as follows:

“Section 7(2)

No action shall be brought by any other person to recover any land after the expiration of 20 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.

Section 8(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.

Section 13(1)

No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

Section 17

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.”

10.  As said by the then Chief Justice Li in in Wong Tak Yue v Kung Kwok Wai David and Anor (No 2) [1998] 1 HKLRD 241; (1997-98) HKCFAR 55, FACV No 1/1997:

“35. The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R. v. Secretary of State for the Environment Ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v. Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade, J. in Powell v. McFarlane (1979) 38 P & CR 452.

36. ……

37. As Nourse, LJ pointed out in Buckinghamshire County Council v. Moran at 644, adverse possession can be described as “possession as of wrong” and with limitation it is the intention of the squatter that is essential.

38. 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. McFarlane at 471-472, 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’.

39. 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.

40. 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 scepticism. The courts would scrutinize the circumstances in which they were made and would give 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.”

11.  As further added by Litton PJ in paragraph 48 in the case of Wong Tak Yue:

“The law is clear. The owner of the land with the paper title is deemed in possession of the land. If the law is to attribute possession to a person who can establish no paper title to possession, and claims to be a mere trespasser, the burden is upon him to establish his intention to exclude the whole world: including the owner of the land. Only in this way can he establish “adverse possession” in terms of s13(1) of the Limitation Ordinance, Cap 347.”

12.  What is clear is that there are two elements necessary, namely (1) a sufficient degree of physical custody and control (factual possession); and (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (intention to possess), and the burden is on the trespasser who asserts adverse possession over land to prove in respect of his exclusive factual possession of the land and his intention to possess the land.

13.  There was no dispute over the above general legal principles.

C. THE WITNESSES

14.  P and her daughter Wong King Yuk (“WKY”) had each submitted a witness statement, and had attended the trial to be cross examined. It was not really disputed that WKY and her husband Chow Tak Wah[7] had been assisting P in preparing her case. WKY had been working in a solicitors firm as a clerk for 20 odd 30 years, and her husband had been working in a bank[8].

15.  There were three factual witnesses called by D, namely its director Mr Wong Yiu Wing (黃耀榮) (“Mr Wong”), a Mr Lau Ka Wai (劉嘉偉) (“Mr Lau”), and a Mr Lee Kwan Leung (李軍樑) (“Mr Lee”) who had each submitted witness statements and attended the trial to be cross examined.

16.  The parties each called a professional land surveyor as their respective expert witness. P’s expert is Dr Conrad Tang (“Dr Tang”) and D’s expert is Mr Helicon Ma Yung Kong (“Mr Ma”). They had each submitted an expert report and submitted a joint statement (“Joint Statement”).

17.  The two experts Dr Tang and Mr Ma agreed that the study period was from 1960 to the date of their respective reports, ie 2019. Both experts had produced various aerial photographs (“Aerial Photographs”) and survey sheets or extracts (“Survey Sheets”) obtained from the Lands Department.

D. THE DISPUTED ISSUES

18.  It was common ground that:

(1) D signed an agreement for sale and purchase in Chinese dated 28 November 2005 (“Chinese SPA”) to purchase Lot 2249 from its predecessor-in-title Sik Hop China Limited (“Sik Hop”), and a formal assignment was later entered into on 23 December 2005, since when D has been the registered owner of Lot 2249.

(2) P’s husband was the uncle of D’s director Mr Wong.

(3) There was a metal wire fence along the boundary between Lot 2249 and Lot No 2250, which was installed by the owner/occupier of the latter and there was also a metal wire fence along the boundary between the Land and Lot 2276 S.B. ssl which was installed by the owner/occupier of the latter[9].

19.  According to P’s amended reply and defence to D’s AD&C (collectively “Reply”), these two sections of fences were installed before P and her husband installed the fence along the remaining part of the perimeter of the Land. The parties had agreed to a list of 10 disputed issues (respectively “Issue (1)” to “Issue (10)”).

E. ISSUES (1) TO (5)

20.  Issues (1) to (3) are as follows.

Issue (1) – Whether P had farmed on the Land and if so, when did she do so?

Issue (2) – Whether P had installed wire mesh fence with locked doors along the perimeter of the Land, and if so, when did she do so?

Issue (3) – Whether P had exercised a sufficient degree of physical control of the Land for the requisite period of time.

21.  Issue (4) is on P’s animus possidendi, namely whether P had the intention to possess the Land on her own behalf and for her own benefit. Issue (5) is whether the lack of wire mesh fence along one part of the perimeter of the Land vitiated P’s exclusive possession of, and/or intention to possess, the Land ( if any).

22.  I will consider the above 5 Issues together in respect of different periods of time.

E.1 Period between 1950 onwards until about mid 1980s

E.1.1. P’s and WKY’s factual evidence

23.  According to P, she was born in Mainland China in 1933 and she had not received any formal education. She moved to Hong Kong in 1949 with her parents and her two brothers, and initially, they all lived in a wooden hut in Homantin.

24.  P and her husband Wong Yuk Ming (黃旭明) married in 1950. P’s husband was born in about 1925, and he was about 8 years older than P.

25.  P and her husband had 7 children, namely[10]:

(1) Tin On, a son, born in 1952

(2) King Hang, a daughter, born in 1955

(3) Tim Cho, a son, born in 1958 (“Tim Cho”)

(4) WKY, a daughter, born in 1961

(5) Lin Yuk, a daughter, born in 1964

(6) King Yuk, a daughter, born in 1967

(7) Lai Sheung, a daughter, born in 1970

26.  P’s evidence in her witness statement was that after her marriage, she and her husband lived together in an old house in San Hing Tsuen (新慶村) in Lau Fau Shan, Yuen Long, which is now no 91, San Hing Tsuen. Later in about 1980, she and her husband moved to house no 97, San Hing Tsuen where she now lives.

27.  Further, according to P, at the time of her marriage, her husband was working at the Kai Tak airport, and that her husband’s brothers and family were already farming on a piece of land, namely the Land which she only found out in recent years that the Land was on Lot 2249.

28.  P’s evidence was that after her marriage, she joined in the farming of the Land. Initially, they grew vegetables to supply to the market and also for self use, and that after about a year, her husband resigned from his job at the airport and returned to Lau Fau Shan to farm, and that after a few years, her husband’s brothers retired or passed away, but she and her husband had continued to farm on the Land.

29.  It was P’s evidence that when the children started to attend school, after school, they would go to the Land to help their parents farm. Later, after the children grew up and started to work, they did not have time to help their parents, and as P and her husband did not have enough man power to grow vegetables, they started to grow other plants and fruits such as corn (粟米), “Huang Pi” (黃皮), Longan (龍眼) and papayas (木瓜) etc. Apart from keeping some of these for self use and family use, P would sell the rest at the Lau Fau Shan market to earn a living. Although P held no legal hawker’s licence, she had a fixed location in the Lau Fau Shan market where she had been hawking for over 40 years.

30.  In around mid 1980s, according to P, when her husband was about 60 years old, he wanted to retire from farming. Before he retired, he and P jointly enclosed the Land with iron wire for them to continue farming and the purpose was not to allow other people to enter the Land. At that time, the owners/occupiers of some neighbouring lots had already enclosed their respective lots with iron wire fence, and all she and her husband needed to do was to enclose the rest of the Land, except one part of the Land which borders a rather steep slope which was at that time fully covered with wild vegetation. They did not erect an iron wire fence over that part of the Land as no one could gain entry to the Land from there and also they had a shortage of funds. According to P, they had installed an iron gate along the iron wire fence on the northern side with a lock, to which only P held the keys (“Northern Gate”), and thereafter, only P and her family could farm there. P’s written evidence was thereafter, she and her husband installed another gate on the southern side with an iron chain and lock, to which only P held the keys (“Southern Gate”). Then after a while, P said as the route from her house to the Southern Gate passed through other people’s lots, and there had been a change there which made it no longer possible for her to enter the Land from the Southern Gate, she then reverted to using the Northern Gate for entry to and exit from the Land.

31.  By the time of the trial, P was 90 years old. She had a stroke in March 2019[11]. However, she recognised Mr Wong in court and acknowledged that Mr Wong is her nephew (堂侄) and that Mr Wong would address P’s husband as “Uncle Ming” (明叔) and her as “家嬸”, and that Mr Wong and P’s children are cousins (堂兄弟姊妹).

32.  It was not disputed that the Wongs were indigenous villagers in Lau Fau Shan. Although on the birth certificate of P’s 2^nd son Tim Cho (who was born in January 1958)[12], P’s address was stated to be Ngau Hom Tsuen (鰲磡村), Ping Shan. P’s evidence was that she lived with her husband in San Hing Tsuen after their marriage. In fact this was not disputed by Mr Wong[13]. As Mr Wong himself had said, the two villages are very close to each other.

33.  Under cross examination, P confirmed that after her marriage, her husband’s brothers were also farming on the Land and that they had allowed her to farm there as well. She maintained that at some stage, her husband’s brothers all left and abandoned farming on the Land or had died, although she could not recall when.

34.  When asked whether she believed she was authorised by her husband’s brothers to continue farming on the Land between 1950 to 1980, P had said they let her and her husband to continue farming on the Land after they told her they would not farm there anymore, and so she took over the Land and started farming there until now. When it was put to her that she had no right to evict her husband’s brothers from the Land, P replied that as they did not return after leaving, she could not “evict” them. P was also asked what if her husband’s brothers were to take back the Land, P’s response was that as they had given the Land to her for her to farm, it belonged to her.

35.  P’s only other factual witness was her daughter WKY, whose evidence concerned events after the commencement of this action.

E.1.2. D’s factual evidence

36.  Mr Wong gave factual evidence as one of D’s directors. He was born in June 1949 and was an indigenous villager of Ngau Hom Village where he had always been residing, and that he had been the head of the village for some 42 years, ie since about 1981.

37.  As D only acquired Lot 2249 in December 2005, there was no factual evidence given by Mr Wong or any of D’s factual witnesses in relation to the occupation of Lot 2249 prior to his acquisition.

E.1.3. The expert evidence

38.  The earliest Aerial Photograph available before the Court was the 1963 one obtained by Dr Tang in an electronic form from the Lands Department[14]. The next one was one of 23.10.73 (5193) Aerial Photograph produced by Mr Ma, followed by 29.12.75 (12140), 18.3.77 (17811), 3.2.81(36485), 8.9.88 (A14302) and 11.10.89 (A18779)[15]. Dr Tang had produced those of 03.02.81 (36485), 25.05.86 (A05038, A05039), 25.11.87 (A10764, A 10765)[16].

39.  As for Survey Sheets, Dr Tang had produced two of January 1979 (2-SW-22A, 2-SW-22C), one of May 1986 (2-SW-22C) and one of June 1986 (2-SW-22A)[17]. Mr Ma produced a Survey Sheet of 1963[18], and one of 1978[19], and one of 1986[20].

40.  There was no expert evidence prior to 1963. In the Joint Statement, the two experts had agreed that for the period between 1963 and 1981, agricultural activities were seen on Lot 2249, and that dense tree canopies and vegetation were seen along the eastern and southern boundary of Lot 2249 in the 1981 Aerial Photo[21].

41.  There were no disagreed issues between the experts over the period between 1963 and about mid 1980s.

E.1.4. Analysis and conclusion

42.  Although P never answered directly whether she would evict her husband’s brothers if they were to return, she maintained that the Land was given to her to continue farming and belonged to her. When asked why she did not call any of her husband’s brothers’ family members as witnesses, she had said they needed to work and were not interested. In any event, Lot 2249 appears to have been owned by a “Li Tun Yan Tong” and “Li Ki Tong” as trustee prior to 15 November 1962 and thereafter until 27 March 1997, Lot 2249 was owned by persons surnamed “Li” or “Lee”[22]. There was no evidence that the Land had been owned by anyone surnamed “Wong” or from the “Wong” family. There was no evidence that P’s husband or his brothers were tenants or permitted by the owner/s to occupy the Land. I accept P and her husband were trespassers on the Land with no legal title thereof.

43.  Although the burden of proof was on P to prove her occupation of the Land, there was no reason why Mr Wong could not himself also call witnesses to give evidence in relation to occupation of Lot 2249, in particular his aunt Madam Chan Kam Heung (陳錦香) (“Madam Chan”), the widow of his uncle (叔父) Wong Ka Fat (黃家發又名黃嘉發). According to Mr Wong, he would visit Madam Chan regularly. Madam Chan was in fact the woman Mr Wong spoke to briefly in a video produced by Mr Wong as evidence in the trial. This video was said to be taken when Mr Wong went to visit Lot 2249 on 18 May 2020 (“May 2020 Video”). Madam Chan’s house is on Lot 1747, which is very close to Lot 2249. Mr Wong admitted during the trial that his relationship with Madam Chan was quite a good one, and yet, Mr Wong did not call her as a witness about the occupation of the Lot 2249. When asked, Mr Wong’s explanation was she was elderly and not clear in her speech.

44.  Mr Wong could also have called his other relatives Wong To Kwong (黃土光), the registered owner of Lot 2250 since 28 March 1963[23] and also Wong Che Chiu (黃子超), one of the beneficiaries of Lot 2276 S.B. ss1 since 30 April 1970[24]. Both these lots are adjacent to Lot 2249 and it was through enquiries from the owners/family members of the owners in about March 2016 that Mr Wong learnt that the fences around part of Lot 2249 were in fact erected by owners/occupiers of those neighbouring lots[25].

45.  As set out earlier, it was P’s pleaded case that she and her husband had in about mid 1980s installed a metal wire fencing along the perimeter of the Land with a metal gate with a lock, the key of which was kept by P, and that thereafter, P had continued to use the Land for growing fruit trees and vegetables[26]. According to her witness statement, it was when her husband was about 60 years old that he wanted to retire from farming and that prior to her husband’s retirement they installed the iron wire fence, and at that time, the owners/occupiers of some of the adjoining lots had already installed iron wire fences. As her husband was born in about 1925, he would be about 60 years old in about mid 1980s.

46.  Although very often, P’s answers were that she could not recall, this was understandable because of her age. In fact, considering her age, she was quite lucid in most parts of her evidence. Her evidence was also consistent with those Aerial Photos which the experts had agreed showed cultivation on Lot 2249. Her husband’s occupation on Tim Cho’s birth certificate was stated to be a farmer, and there was really no sufficient evidence to contradict P’s evidence that she and her husband had been farming on and/or occupying the Land since about 1950, and that they had continued occupying the Land after her husband’s brothers had left or abandoned farming on the Land. In any event, I find P a reliable witness despite her age and health, and accept her evidence that she and her husband had farmed on the Land since 1950s and had continued to occupy and farm on the Land, and intended to possess the Land after his brothers abandoned farming on the Land and/or died.

47.  Having said this, prior to P and husband allegedly installed an iron wire fence on the Land, there was no evidence of any fence having been installed by P and/or her husband to enclose the Land or any part thereof, and/or any other physical barriers set up by P and/or her husband to exclude others from entering the Land.

E.2 Period from about mid 1980s onwards until about November/December 2005

E.2.1. P’s factual evidence

48.  As said, it was P’s own evidence that in about mid 1980s when she and her husband erected a fence, some of the neighbouring lots had already been enclosed with iron wire fences by her neighbours, and her case was that they only needed to erect iron wire fences over the rest of the Land. It was also P’s evidence that one part of the Land bordering a steep slope was not fenced and she had said in her witness statement that this was because of lack of funds.

49.  When asked during the trial, P had explained that it was mainly because there being a slope there full of wild vegetation and no one could gain entry to the Land from there, and that they had wanted to save money.

50.  It was also P’s evidence during the trial that she and her husband installed the iron wire fences as she was worried that people would go to the Land to steal her fruits. She had said that before that, she was growing vegetables and did not see the need to install a fence.

51.  There was no mention of P in her witness statement of any temporary structures (“TS”) on the Land. When P was asked during cross examination about the two blocks of TS in the 1986 (A05039) Aerial Photograph which was mentioned by her expert Dr Tang in his report, she said she could not recall. When it was pointed out to her that the two blocks of TS had been removed as they were no longer seen in the 1987 (A10764) Aerial Photograph, she then suddenly said that the two blocks of TS were chicken sheds which were erected by her tenants and that later after her tenants moved out, everything was removed and she then fenced off the Land and grew fruits.

52.  When asked why she never mentioned in her witness statement that the two blocks of TS were chicken sheds erected by her tenants, or that she had rented out part of the Land, P’s response was that she had forgotten to mention the chicken sheds due to her age.

53.  As said earlier, it was P’s written evidence that the Northern Gate was installed first and that sometime later, the Southern Gate was installed. P’s evidence during the trial was however that both gates were installed at the same time when she erected the iron wire fence to enclose the Land. When pointed out to her that this was not what she said in her witness statement, she appeared to be somewhat confused and said according to her recollection, the two gates and the fence were all installed at the same time.

54.  When asked about a footpath seen in the 1987 (A10764) Aerial Photograph (“Footpath”), P had said the Footpath was for people to walk along. When asked about a photograph taken by P’s son in law (WKY’s husband) on 14 February 2015 (“14.02.15 Photograph”) when P was seen tying a string/wire and the Northern Gate was shown with a black plastic covering over it, she had confirmed that there was an iron wire fence to the left of the Northern Gate and that there had been no change to the position of the Northern Gate and the fence throughout from about mid 1980s until when the 14.02.15 Photograph was taken, and that no one had ever removed the fence although the fence had fallen down on some occasions, and she would restore it back to its original position.

55.  As mentioned earlier, WKY’s evidence was mainly in relation to events after the commencement of this action.

E.2.2. D’s factual evidence

56.  As mentioned earlier, the evidence from D’s witnesses as to the occupation of Lot 2249 mainly concerned events at about the time and/or after D’s purchase of Lot 2249 in December 2005.

E.2.3. The expert evidence

57.  For the period between about mid 1980s until about December 2005, apart from those Aerial Photographs of 1980s mentioned earlier, Dr Tang had produced the May 1993(CN 3451 & CN3452), July 1999(CN23776), July 2002(CW46280 & CW46281), November 2004 (CW61809) and April 2005 (CW 64098) Aerial Photographs, and Mr Ma had produced the 18.08.90 (A22225), 16.07.91 (A26399), 23.06.94 (CN7351), 01.06.00 (CN26489), 02.01.02 (CW37493), 03.04.05 (CW64097) Aerial Photographs.

58.  As for Survey Sheets, apart from those mentioned earlier, Dr Tang had produced some of those from April 1991 and until November 2002, and Mr Ma had produced some of those from 1986 to 2007.

59.  The experts agreed that for the period between about mid 1980s to about November/December 2005[27] that:-

(1) Between 1986 and 1991 – 2 large blocks of TS were seen in 1986 and were gone by 1987. In 1991, a small portion of cultivation fields were seen in the northern tip of the Lot 2249 and spots of cleared ground were seen in the southern and western portion of Lot 2249.

(2) Between 1993 and 1994 – Lot 2249 was used as an orchard by 1993. In the 1993 and 1994 Aerial Photographs, a group of evenly distributed saplings were seen in the eastern portion, spots of cleared ground under the tree canopies were observed in the western portion.

(3) Between 1999 and 2006 – Lot 2249 was surrounded by dense tress and vegetation. Spots of cleared ground under tree canopies were partly seen on the Lot 2249.

(4) In the 2007 Aerial Photograph, the vegetation in the north-western edge of Lot 2249 was cleared, and a portion of fence was seen in the northern edge of Lot 2249.

60.  The experts did not agree to the each other’s interpretation set out in Items 6.1 to 6.5 of the Joint Statement[28] :

Items	Dr Tang’s interpretation	Mr Ma’s interpretation
6.1 1986 Aerial Photograph	Linear features were seen in the south entrance and western edge of the Lot 2249	The fence erected at the western edge was erected by the adjoining Lot 2250
6.2 1987 Aerial Photograph	A linear feature was seen in the northern edge of the West Portion of Lot 2249	The fence at the northern edge was erected by Lot 2252 and the fence at the western edge was erected by Lot 2250
6.3 1993 Aerial Photograph	A gate like linear feature was seen at the northern end of a path in East Portion of Lot 2249 from 1993 stereo pair Aerial Photograph	The object was not seen linked up with any fence like materials in the 1993 Aerial Photograph
6.4 1999-2007 Aerial Photographs	Lot 2249 was surrounded by dense trees and vegetation. Sections of fence features can be partly seen in the vicinity of Lot 2249. No residential structure was seen on Lot 2249, cleared ground under tree canopies were observed. This pattern indicated maintenance works were continuously conducted on Lot 2249. The position of the gate like feature seen in 1993 Aerial Photograph was covered by dense vegetation in the 1999 Aerial Photograph and 2000-2002 Aerial Photographs. The occupation pattern of Lot 2249 in the Survey Sheets were not updated. The existence of the gate like feature and other fence features under those dense tree canopies could not be satisfactorily proved by Aerial Photographs.	This gate-like object was not found in the 1999 Aerial Photograph. No residential structures seen inside Lot 2249. Sections of fence erected by adjoining lots at the western and south-western sides of Lot 2249. It appeared that free access by peopled entered Lot 2249 from northern eastern and southern directions. 2000-2006 Aerial Photographs – dense tree leaves covered most areas of Lot 2249 except a small area through leaves gap near the location of the Northern Gate, no gate-like and fence objects were seen. On 2007 Aerial Photograph- portions of fence and gate like features at the location of the Northern Gate were seen while the other areas were blocked by dense tree leaves.
6.5 2010 Survey Plan and 2016 Survey Plan	With reference to the site topography along the boundary, a self contained agricultural state of Lot 2249 encompassing by fences, two gates and the sloping topography can be interpreted.	From the 2010 Survey Plan and the 2016 Survey Plan, a gap of about 43 meters (141 feet) wide along the eastern boundary line of Lot 2249 was not fenced. People could enter Lot 2249 through this gap freely. From the 2010 Survey Record Plan, survey station nos IS5 to IS11 were place on ground within Lot 2249 for surveying work. This reflected the survey team could get into Lot 2249 for surveying works with heavy equipment freely inside for quite a long period without interference. The notes for “hoardings over 10 years and fence over 10 years on the 2010 Survey Record Plan indicated the materials for hoardings/fence looked over 10 years. It may be erected by using old material instead of erecting the hoarding/fence for over 10 years. Also, those fences erected by adjoining lots with portion fence common with bounder of Lot 2249 at the western and south-western side of Lot 2249 were over 10 years.

61.  In relation to the “western edge” of Lot 2249 in Item 6.1, Mr Ma relied on the 1986 Survey Sheet in Appendix 13 of his report[29]. The 1986 Survey Sheet indicated the fence on the western boundary of the East Portion of Lot 2249 was along the boundary of the adjoining Lot 2250 and would appear to have been erected by the adjoining 2250, which was by then enclosed by a fence.

62.  As to the “linear fence feature” pointed out by Dr Tang in paragraph 13 of his report at the south entrance of Lot 2249[30] in Item 6.1, there appeared to have been no comments/disagreement from Mr Ma. Nor was Dr Tang appeared to have been cross examined in relation to the above “linear fence feature” pointed out by him at the south entrance of Lot 2249.

63.  In relation to Item 6.2, Mr Ma relied on the 1986 Survey Sheet and also the 08.09.1988 (A14302) Aerial Photograph in Appendix 14[31] to say that the fence “at the northern edge” of the East Portion of Lot 2249 was erected by the owner/occupier of the adjoining Lot 2252. However, there appeared to be no fence or linear fence features seen on the 1986 Survey Sheet along any part of the boundaries of Lot 2252, save that on its boundary with Lot 2253 there appeared to be a “wall” installed by the owner/occupier of Lot 2253.

64.  In any event, what Dr Tang was referring to in the 25.11.87 (A10764) Aerial Photograph was the northern edge of the West Portion, and not the northern edge of the East Portion, and the part circled red by him[32] appeared to be that part of the boundary of Lot 2249 adjoining Lot 2250. I accept that the fence there would appear to have been erected by the owner/occupier of the adjoining Lot 2250. As mentioned earlier, it was not disputed by P that prior to she and her husband installing the iron wire fence on parts of the Land, there were already iron wire fences on some of the adjoining lots.

65.  One of the major disputes between the two experts during the trial was in relation to Item 6.3 and Item 6.4 in relation to what Dr Tang described as a “gate like feature” in the Aerial Photographs. Dr Tang opined that the 28.05.93 (CN 3451 and CN 3452) Aerial Photographs[33] showed there was a “black rectangle” at the northern end of a path in the East Portion of Lot 2249, which Dr Tang described as the shadow of a “gate like feature”, whereas Mr Ma strongly disagreed that the feature was “gate like”, or that it was a gate.

66.  Dr Tang had explained during examination in chief that the difference in thickness in the “black rectangle”/“gate like feature” in the two photographs CN 3451 and CN 3452 was due to the shadow cast from the angle when CN 3452 was taken. It was further Dr Tang’s evidence that the “gate like feature” could be seen by overlaying the 2010 Survey Plan over 6 of the Aerial Photographs, ie 1993[34], 1994[35], 2000[36], 2004[37], 2014[38] and 2015[39], namely 4 of which were prior to November/December 2005. I understand from Dr Tang, that it was the 14.02.15 Photograph which showed a black plastic covering over a gate which led him to say that the “gate like feature” was a gate. His evidence was that if the gate was only of transparent iron wire, it might not show up in the Aerial Photograph and there needed to be something there which was not transparent for it to show up in the Aerial Photograph, such as the black plastic covering seen on the 14.02.15 Photograph[40].

67.  It was further Dr Tang’s evidence at the trial that the position of the “gate like feature” was exactly the location of the Northern Gate on the 2010 Survey Plan produced by D. He also explained that he had deduced the “gate like feature” was a gate as it was at the end of a footpath, and also it was flat.

68.  Dr Tang’s evidence at the trial was further that in April 2019 when he went to inspect Lot 2249, the position of the Northern Gate was where the “gate like feature” was in the 1993 Aerial Photographs, although he admitted that he did not carry out any actual survey when he went to inspect the site.

69.  When it was pointed out to Dr Tang during cross examination that he never mentioned any “gate like feature” in the 2004 Aerial Photograph in the Joint Statement, Dr Tang admitted that it was only about 2 weeks before attending the trial when he was reviewing all the documents and the photographs in the trial bundles and when he placed the 2010 Survey Sheet in a transparent plastic sheet over the 1993 (CN3452) Aerial Photograph, he observed that the “gate like feature” was at the exact position of the Northern Gate and he opined that the “gate like feature” was in fact at the location of the Northern Gate, and that as mentioned earlier, it was his evidence that this “gate like feature” could also be seen in 4 out of 6 Aerial Photographs prior to 2005 including the 2004 Aerial Photograph. He had further pointed out during the trial where the “gate like feature” appeared on the 2004 Aerial Photograph.

70.  As also pointed out by Dr Tang during the trial, in the 1993 (CN 3451) Aerial Photograph, there was a disjointed black linear line along the northern boundary of the adjoining Lot 2250, from which one could deduce there was a fence there, but even for a fence, not the entire fence could be seen. Dr Tang then pointed out that next to the “gate-like feature” in the 1993 CN3451 Aerial Photograph, one could also see part of a similar black line, which he deduced was part of a fence.

71.  Dr Tang admitted that in his report, he did not mention any fence or “linear fence feature” in the 1993 Aerial Photographs. However, Dr Tang had said in his examination in chief that there were some black linear dots seen in the 28.05.93 (CN3452) Aerial Photograph[41] and when he placed the plastic transparent sheet of the July 2015 (CW115934) Aerial Photograph over the 28.05.93 (CN3452) Aerial Photograph[42], he opined that there was a “linear fence feature” along the northern boundary of the East Portion of Lot 2249, to the east of the “gate-like feature”, as marked by him on Exhibit P-6[43], although he agreed during cross examination that no “linear fence features” were seen at other places marked “a” and “b” along the northern boundary on Exhibit D-2 which was shown to him by Mr Siu. It was his evidence that if “the 2010 Survey Plan was overlaid those 6 Aerial Photographs mentioned by him, one could see both the “gate” and the “fence” over those 6 Aerial Photographs.

72.  Dr Tang had explained that as he was giving evidence as an expert, he was under an overriding duty to help the court impartially and independently on matters relevant to his experience, and he saw no reason why he could not also rely on relevant circumstantial evidence, such as the 14.02.15 Photograph. I agree with Dr Tang and see no reason why Dr Tang, as an expert, could not tell the Court his further opinion after reviewing the documents and photographs in the trial bundles. I do not agree with Mr Siu that Dr Tang was changing his expert evidence. Dr Tang had in his expert report already mentioned the “gate like feature” on the 1993 Aerial Photographs. In my view, he was entitled to supplement his evidence in his report after he had further reviewed all the documents and photographs in the trial bundles. Dr Tang’s oral evidence was in the afternoon of the 4^th day of the trial and until almost lunch on the 5^th day. There had been sufficient time for Mr Ma to consider Dr Tang’s further evidence and to respond. In any event, no further time was sought for taking instructions or for Mr Ma to consider Mr Tang’s evidence in chief.

E.2.4. Analysis and conclusion

73.  In the Joint Statement, Mr Ma had disagreed that the “black rectangle” in the 1993 Aerial Photographs was a “gate like feature” or a gate, and his reason was mainly that the object was not seen linked up with any fence like materials in the 1993 Aerial Photographs.

74.  During the trial, Mr Ma had also said if the “black rectangle” was a gate, it would not be so thick. When pointed to him that the “thickness” was due to the angle of the photograph was taken, Mr Ma maintained that a gate would not be so thick.

75.  The “black rectangle”/“gate like feature” on the 28.05.93 (CN3451) Aerial Photograph was clearly not as thick as the same object on the 28.05.93 (CN 3452) Aerial Photograph. I find no sufficient evidence to contradict Dr Tang’s evidence that the “thickness” of the “gate like feature” in the latter Aerial Photograph was due to the shadow and/or the angle from where that photograph was taken. Further, that the “gate like feature” or “linear fence feature” along the northern boundary of the East Portion could not been seen in the some of the Aerial Photographs due to dense tree canopies would not necessarily mean that the gate and fence were not then physically in existence.

76.  Mr Ma accepted that portions of the fence and gate features at the location of the Northern Gate were seen in the 03.08.07 (CS07925) Aerial Photograph while other areas were blocked by the dense tree leaves[44]. He had earlier opined in paragraph 5.16 of his report that the system of fence and gate on the north-western end of Lot 2249 was not seen in the 03.04.05 (CW64098) Aerial photograph, but as the “system of fence and gate” was seen in the 03.08.07 (CS07925) Aerial Photograph along the north western end of Lot 2249, he then opined that the “system of fence and gate” was erected sometime between 2006 and 2007.

77.  Although P had said during the trial she knew Mr Wong bought the Land but she could not recall when she knew. There was no sufficient evidence that P knew in December 2005 that Mr Wong purchased Lot 2249 or that it was because she knew, she then erected the fence and gates between 2006 and 2007.

78.  In my view, the fact that a transparent copy of the 2010 Survey Plan produced by D and placed over the May 1993 Aerial Photograph, and also in particular the November 2004 Aerial Photograph would show that the position of the Northern Gate on the 2010 Survey Plan to be the position of the “gate like feature” in the May 1993 Aerial Photographs and November 2004 Aerial Photograph would tend to support the fact that there was already a gate in existence at the location of the Northern Gate from May 1993 onwards to end of November 2004. Further, the line marked “fence over 10 years” on the 2010 Survey Plan was along the same positions of the “linear fence feature” in the 1993 Aerial Photographs and later Aerial Photograph in particular the November 2004 one would also tend to support the fact that there was a fence, or at least part of a fence at same location in May 1993 and also in November 2004.

79.  As for the two large blocks of TS seen on 25.05.86 (A05039) Aerial Photograph[45], which were then not seen in the 25.11.87 ( A10764) Aerial Photograph[46], it was in fact P’s own expert Dr Tang who drew attention to the TS in his report of 17 April 2019 which was about 5 months prior to P’s witness statement. P herself had very little education, and was illiterate. P would not be able to read English, or to read/interpret any Survey Plans/Survey Sheets/Aerial Photographs. As said earlier, it was not really disputed that P’s daughter WKY and WKY’s husband had been assisting P in this action. It was not clear as to why there was no mention in P’s witness statement about the two blocks of TS. However, even if initially under cross examination, P did not seem to understand or recall what the two blocks of TS were, I find it unlikely that P would be able to make up an answer then and there under cross examination, that those were chicken sheds.

80.  P’s evidence under cross examination was that she fenced off the Land and started to grow fruits after her tenants had moved out and after everything, ie the chicken sheds, were removed. In light of the 25.05.86 (A05039) and the 25.11.87 (A10764) Aerial Photographs, it would appear that based on her evidence during the trial, P and her husband would only have erected the fence and gates and started to grow fruits sometime after 25 May 1986 and prior to 25 November 1987.

81.  As for the Footpath, P was asked whether it was for the residents of the neighbouring houses to walk along, P did not understand what houses Mr Siu was referring to. In any event, I do not find that there was sufficient evidence that the Footpath was for public use, as opposed to be for P’s own use and/or use by any one authorized by her.

82.  In his own report, Mr Ma had opined from the 08.09.88 (A14302) and the 11.10.89 (A18779) Aerial Photographs[47], cultivation within Lot 2249 had ceased leaving the Footpath passing through from north-western end to the south-eastern end with dense vegetation on both sides, but that the 18.08.90 (A22225) Aerial Photograph[48] showed a small portion of Lot 2249 was cultivated with furrow lines and the rest were covered with dense vegetation[49].

83.  It was also agreed by the two experts in the Joint Statement that in 1991, a small portion of cultivation fields were seen in the northern tip of Lot 2249 and that spots of cleared ground were seen in the southern and western portion of Lot 2249. They had agreed that between 1993 and 1994, Lot 2249 was used as an orchard. It was also Mr Ma’s evidence that from the 2000 and 2002 Aerial Photographs, the whole site was blocked by dense tree leaves and it was probably the fruit trees grew larger with dense leaves blocking the aerial view. Then it was observed by Mr Ma that the 2006 Aerial Photograph showed fewer fruit trees.

84.  What was clear in the 18.08.90 (A22225) Aerial Photograph[50] was that the cultivation field in the northern part of the East Portion appeared to be almost one third of the East Portion, and that spots of cleared ground seen in the southern end of the Eastern Portion was also almost one third of the East Portion. Further, it was agreed by the experts that, as seen in the 1993 and 1994 Aerial Photographs, Lot 2269 was used as an orchard and a group of evenly distributed saplings were seen in the East Portion and spots of cleared ground under the tree canopies were observed in the West Portion.

85.  Dr Tang further observed that there was a cluster of banana trees seen at the north-western edge of Lot 2249 in the 1999 CN23776 Aerial Photograph[51].

86.  Having considered all those Aerial Photographs and the experts’ agreed evidence in the Joint Statement, I find P’s evidence that after her husband reached 60 they ceased farming and started to grow fruit trees instead was supported by those Aerial Photographs and the agreed evidence of both Dr Tang and Mr Ma, and I accept P’s such evidence. The fact that P’s recent photograph taken on 31 May 2015 of her selling items other than fruits at her stall in the market would not contradict P’s evidence that she started to plant fruit trees after her tenant/s had left and chicken sheds removed in late 1980s.

87.  Further, having considered all the evidence, I find, more probable than not, that latest by 25 November 1987, the tenant/s had left and chicken sheds were removed and thereafter, P and her husband did erect an iron wire fence over parts of the Land not already fenced by neighbours, save part of the boundary which borders a steep slope and that she had erected two gates with locks to which she held the keys. In my view, the gates and fence were erected in any event latest by May 1993 and had been in existence thereafter since then. I accept P’s evidence that there was no fence erected over part of the eastern boundary of the East Portion due to wild vegetation over the steep slope along that part of the boundary which made it not possible, in her opinion, for access to the Land from that side. In fact, the 1987 Aerial Photographs did show dense vegetation over part of the eastern boundary of the East Portion beyond which there appeared to be a pond, according to the 1986 Survey Sheet[52]. The dense vegetation was seen over that part of the eastern boundary of the East Portion in most, if not all the Aerial Photographs after the 1987 Aerial Photographs.

E.3 Period from about November 2005 onwards

E.3.1. P’s and WKY’s factual evidence

88.  As said, P’s written evidence was that she reverted to using the Northern Gate for access to the Land when she was not able to use the Southern Gate. It was also her evidence that after fencing the Land, in 1980s, she had not noticed that there had been any unauthorised entry to the Land.

89.  P’s written evidence was also that in 2008, as she was growing older, it was not that easy for her to cultivate the Land. Under those circumstances, her daughter suggested to buy an old container to be placed on the Land which would provide a place for P to rest, and that was why a container (“Container”) was moved to the Land at about end of 2008. P’s son Tim Cho, also known as Wong Tim Chau, had applied to China Light and Power (“CLP”) for electricity supply on 18 November 2008[53] and that a deposit of HKD 980 was paid on 15 December 2008 and supply was connected from 23 December 2008[54], that Wong Tim Chau was the registered account holder.

90.  In P’s witness statement, she had said she had no knowledge as to when Mr Wong /D bought the Land. Although P had said during the trial, she knew but could not recall when she knew, I have found there was no sufficient evidence that P knew in December 2005. It was also P’s evidence that if any fence or poles were blown about, she would have put them straight again. P said she had noticed that after the commencement of this action, there had been unauthorised persons entering the Land, and that she had reported the matter to the police, and that she was told by her solicitors that those persons were from the surveying firm Winner Surveying Consultants Co (冠軍測量顧問發展工程公司) (“Winner”) instructed by D who had entered the Land in her absence to carry out a survey of Lot 2249.

91.  WKY’s evidence was that she and P believed that those unauthorised persons had entered the Land through the 3m to 4m unfenced part of the north eastern boundary of the East Portion bordering the slope, and that WKY and her husband then helped P in adding an iron wire fence along that 3m to 4m originally unfenced part of the north eastern boundary. WKY had produced a photograph of the new fence taken on 2 May 2016[55]. WKY said later the iron wire fence was damaged by someone, she and her husband then helped P to erect a low “barbecue net fence” (“Barbecue Net Fence”) along that part of the boundary. WKY had produced a further photograph taken on 17 March 2020[56].

E.3.2. D’s factual evidence

92.  According to an annual return of D made up to 1 September 2015, there were only two shareholders and two directors of D, namely Mr Wong whose address was given to be No 91 of Ngau Hom Tsuen and one Yeung Dong Nei of an address in Shenzhen. They each held one share of HKD 1.00 each and the total share capital was HKD 2.00[57].

93.  Mr Wong’s evidence was that he was a businessman dealing in properties, and that he started to buy agricultural land in the New Territories and around Lau Fau Shan area since 1988 and that he would develop the land into open air warehouses to rent to others. He would buy the land using limited companies of which D was one. It was Mr Wong’s evidence that he purchased Lot 2249 through the introduction of his friend Mr Lau.

94.  According to Mr Lau’s witness statement, in about early November 2005, he learnt that Lot 2249 was for sale from a casual conversation with a representative of the then registered owner of Lot 2249, Mr Lam, and that Mr Lam had sought Mr Lau’s help in finding a buyer.

95.  Mr Lau said during the trial that before 2002, he was in the food and beverage business and that he did not work due to ill health between 2002 and 2008, and that after 2008 until now, he was helping his brother-in-law in managing warehouses. According to Mr Lau’s oral evidence, he met Mr Lam through a friend called Yim Wah (now deceased) who was a good friend of Mr Lau for 10 odd years. Mr Lau claimed that he met Mr Lam when having tea with Yim Wah. Mr Lau’s evidence was that he understood Lot 2249 belonged to Mr Lam, who wanted to leave Hong Kong and wanted to sell Lot 2249. When asked whether he knew that Lot 2249 did not belong to Mr Lam personally, Mr Lau said Mr Lam told him he could control the purchase and sale of Lot 2249. When asked how many pieces of land Mr Lam wanted to sell, Mr Lau responded only one piece, ie Lot 2249.

96.  According to Mr Lau, Mr Lam then drove him to inspect the site and the two of them entered the site from the south eastern side of Lot 2249 coloured blue on a copy of the Lot Index Plan of 16.03.16 (“Blue Line”)[58].

97.  Mr Lau’s written evidence was that there was a broken iron wire fence on the ground along the Blue Line, which was covered by plants. After he and Mr Lam entered the site, Mr Lam gave him a copy of the Lot Index Plan, and showed him the actual area of the site and they also walked to the northern boundary of the site which was coloured pink on the copy of the 16.03.16 Lot Index Plan (“Pink Line”)[59]. According to Mr Lau, he clearly recalled that there was no iron wire fence or any gate along the Pink Line.

98.  According to Mr Lau, he then thought of Mr Wong, a villager in a neighbouring village, and he then contacted Mr Wong, who had expressed interest in buying Lot 2249. About 3 days later, he went again with Mr Wong to the site and entered the site again through the Blue Line area and inspected the site and they also walked to where the Pink Line was, and the condition was the same as before. Further, according to Mr Lau, no one had prevented them from entering, nor did they see any person there occupying Lot 2249 or cultivating/farming the site. Later, Mr Wong bought Lot 2249 through his company D. It was Mr Lau’s evidence that he had not seen Mr Lam after the transaction, and that he did not have Mr Lam’s address or telephone number.

99.  Mr Wong’s own written evidence was also that in early November 2005, he learnt that Lot 2249 was for sale through Mr Lau and that Mr Lau took him to inspect the site. On Mr Lau’s instructions, they entered the site from the south eastern side, ie the Blue Line area and that he noticed that there were at least one to two “angle iron” (角鐵) and a 4m x 5 m iron wire fence fallen onto the ground, which was covered by plants and that the “angle iron” and iron wire fence were all rusty. Upon entry, he saw that there were some “Huang Pi” trees (黃皮樹), Longan trees (龍眼樹) some rubbish and tree branches, with no signs of cultivation/farming or that the site being looked after and there was also no gate or fence erected along the Pink Line area. Mr Wong’s evidence was Lot 2249 had been abandoned for a long period of time[60].

100.  It was further Mr Wong’s evidence that after completion of the purchase, he would go to inspect the site at least once every year, and he would enter from Blue Line area, and sometimes he would go to visit Madam Chan and her family, and he would walk along a small path coloured green (“Green Path”) on the Lot Index Plan and entered the site from the north, and then he would walk to the Blue Line in order to inspect the site. He had never encountered any obstruction[61].

101.  According to Mr Wong, a few years after his purchase of Lot 2249, he noticed that someone had gradually placed some miscellaneous objects and to erect some old broken fence along the north western side of the site, but such did not affect him from entering the site from the north[62]. According to Mr Wong, he just ignored these miscellaneous objects and broken fences/wire fences. It was only one day in April 2010 that when he entered the site as usual from the south eastern side ie Blue Line area, he discovered that there was an abandoned container (ie the Container referred to earlier) placed in the south eastern side of the site, close to the road[63], and that the fallen iron wire fence had been re-erected and further a gate (with no lock) was erected, and that this was possibly done in 2009 or 2010. He also noticed that from the northern entrance, there was also iron wire fence and a gate (with no lock). Mr Wong said he then felt the need to conduct a survey and to enclose the site, to prevent persons to occupy the site and to place rubbish there. Thereafter, Mr Wong said he instructed the surveyor firm Winner to survey the site.

102.  The person in charge of Winner since 2000 is Lee Kwan Leung (ie Mr Lee). He himself is not a registered surveyor. According to Mr Lee, Winner was appointed by D in May 2010 to survey Lot 2249, and that on 3 June 2010, he and 3 other staff of Winner, namely 林錦田, 劉展麟, and 劉偉健, drove to the site in two cars and they parked along Deep Bay Road (深灣路). They entered along the Green Path and entered Lot 2249 from the north western side without any obstruction, nor did they see any fence. Mr Lee said he remained on the site for about 20 minutes and he left first leaving his staff there to carry out the surveying work. The survey plan was the 2010 Survey Plan, namely (Survey Record Plan No SRP/YL/058/2584D/D1) which was filed with the Land Survey Office. Later, on 19 March 2016, D again appointed Winner to place the survey pegs and Mr Lee said he then instructed 劉偉健 to carry out this work and told him to enter the site along the same previous Green Path and Mr Lee did not receive any report from his staff about any interference or obstruction. According to Mr Lee, as all 3 of the above mentioned staff had left Winner, he was unable to arrange for them to give evidence.

E.3.3. The expert evidence

103.  The following observations on the Aerial Photographs between 2007 and to date[64] were agreed^[65]:

(1) the 03.08.07 (CS07925) Aerial Photograph showed that the vegetation in the north-western edge of Lot 2249 was cleared, and a portion of fence and gate like features were seen at the location of the Northern Gate agreeable with those shown in the 2015 Aerial Photograph^[66];

(2) Between 23.12.09 Aerial Photographs^[67] and 01.07.15 (CW115934) Aerial Photograph^[68], a piece of cultivation field was seen in the western edge of Lot 2249;

(3) spots of cleared ground under tree canopies were seen in Lot 2249.

104.  As for the Survey Sheets, both experts agreed that no enclosing fence features were mapped in Lot 2249 from 1980s to date , but they also agreed that Survey Sheets were not always be updated and could only be treated as supplement to Aerial Photographs^[69]

E.3.4. Analysis and conclusion

105.  First of all, I have to say I do not find Mr Lau a reliable or credible witness for reasons including the following:

(1) It was not clear why Mr Lau was involved in the transaction. This was during a period when he said he was unemployed due to his ill health. According to him, he was not a property agent and did not receive any remuneration out of the transaction, and he had never bought any land before the Lot 2249 transaction, nor was he ever asked by anyone/vendors to introduce customers for purchase of land whether before or after the Lot 2249 transaction. Yet he seemed to be keen and willing to go and inspect the site at the suggestion of Mr Lam, whom he had only met casually through his friend Yim Wah.

(2) Mr Lau’s evidence was that he had not kept any contact details of Mr Lam, nor had he seen Mr Lam after the transaction. Anyway, Mr Lau’s evidence as to the identity of Mr Lam was extremely vague. He did not even provide Mr Lam’s full name.

(3) Mr Lau’s evidence as to the capacity Mr Lam in which he was selling Lot 2249 was also inconsistent. Initially in his witness statement, Mr Lau had said that Mr Lam was a representative of the owner of Lot 2249, but during the trial, he then said he had understood Lot 2249 belonged to Mr Lam, and when it was pointed out to him that Lot 2249 was not owned personally by Mr Lam, Mr Lau then changed again and said he was told by Mr Lam that he could “control” the purchase and sale of the land (佢話佢可以控制買賣).

(4) Mr Lau’s evidence was that Mr Lam wanted to sell the land because he wanted to leave Hong Kong. As mentioned earlier, D purchased Lot 2249 from Sik Hop on 23 December 2005. However, Lot 2249 was acquired by Sik Hop on 27 March 1997 as part of a transaction involving some 30 lots of land at a consideration of HKD 8m[70]. It was not clear as to how those 30 lots came to be acquired as part of the same transaction, but they did not seem to be within the vicinity of Lot 2247 on the Lot Index Plan. The directors of Sik Hop who signed on the assignment were a Mr Chan Hon Wing and a Mr Chan Wai Sing and not any Mr Lam. The agreement for sale and purchase was executed by Sik Hop on 21 March 1997 (“21.03.97 SPA”) and the assignment was executed by Sik Hop less than a week later, on 27 March 1997 (“27.03.97 Assignment”). As no mortgage loan required, Sik Hop appeared to be “cash rich” and was to pay the consideration of HKD 8m in full within a short period of time. In light of this, Mr Lau’s evidence that the Mr Lam or the owner wanted to sell Lot 2247 because he/the owner wanted to leave Hong Kong did not seem probable.

(5) As mentioned earlier, Mr Lau’s evidence in his witness statement was that when he first went with Mr Lam to inspect the site in November 2015, they entered from the Blue Line Area, and that there was a broken wire mesh fence on the ground and covered by vegetation. During the trial, when asked, he had described that the fallen fence to be about 8 to 10 feet long, and he said he did not walk over the wire mesh fence. However, if it the fallen fence was covered by vegetation, it did not seem probable that Mr Lau would have noticed the broken wire mesh fence at all or its length.

(6) Mr Lau also said during the trial that he and Mr Lam walked along a straight line inside Lot 2249 from the Blue Line Area to the north-western end, ie the Pink Line Area, and then returned to the initial location, ie the Blue Line Area along the same path. Although in his witness statement he said he recalled clearly that there was no fence or gate along the Pink Line Area, it was his oral evidence that there was no fence on all sides of the lot boundary. However, as pointed out by Mr Leung on behalf of P, this could not have been right, as it was not disputed that there had been a fence on the west side of the Eastern Portion of Lot 2249 which was erected by the owner/occupier of Lot 2250. There was no mention of this by Mr Lau.

(7) As Mr Lau was not a property agent, there was no reason why Mr Lam would want to take him to inspect the site. According to Mr Lau, Mr Lam parked his car near some graves, and Mr Lau indicated 3 spots marked “G” on a copy of the 16.03.16 Lot Index Plan[71]. When it was pointed out to him that the closest area to Lot 2249 for the car to be parked was to the north of the site, Mr Lau’s response was that he was only led by Mr Lam and they walked along the graves and that they walked up a rather steep slope to arrive at their entry point along the Blue Line. He said there was a straight path from the Blue Line to the house in front towards the northern most area or the Pink Line, and that they returned along the same path to the Blue Line. He also said Mr Lam did not describe the boundaries of Lot 2249, and only pointed out to him on the Lot Index Plan. He only saw the fallen rusty fence of about 8-10 feet. When asked about the condition of the site, he claimed that there were wild trees (雜樹) along the East Portion and wild grass (雜草) along the West Portion. His impression was the site did not appear to be looked after by any one. He did not take any photographs.

(8) In his witness statement, Mr Lau did not mention that Mr Lam told him about any asking price or area of the site. Yet, Mr Lau said he contacted Mr Wong who indicated interest in buying the site. It did not really seem probable that anyone would indicate interest in buying a big piece of land without knowing the asking price or its exact area. It was only when asked during the trial, Mr Lau then said Mr Lam did tell him the price was approximately HKD40 per square feet, and that Mr Lam had said the site was about 20,000 sq ft.

(9) In his witness statement, Mr Lau claimed that he telephoned Mr Wong as he recalled he was a village head, and as Mr Wong was interested, about 3 days later he went with Mr Wong to inspect the site. During the trial, when asked, Mr Lau admitted that he did not know any personal information of Mr Wong other than he was a village head, such as whether he was married or had any children. Also Mr Lau claimed that he did not know anything about Mr Wong’s job or business. There was no reasonable explanation as to why Mr Lau would call Mr Wong, rather than any other villagers or his friends from nearby villages, since it was Mr Lau’s evidence that he was from one of the villages.

(10) It was not clear why it was Mr Lau who took Mr Wong to inspect the site. Mr Lau could have simply asked Mr Lam to contact Mr Wong to take Mr Wong to inspect the site, or at least to ask Mr Lam to accompany Mr Lau and Mr Wong to inspect the site. There was no reasonable explanation as to why Mr Lau had to be involved as the middleman.

(11) Anyway, according to Mr Lau’s witness statement, when he and Mr Wong went to inspect the site, they entered the site from the same spot he entered with Mr Lam, namely where the Blue Line was, and he showed the Lot Index Plan to Mr Wong, and they also walked to where the Pink Line was, and that the situation was the same as he went to inspect with Mr Lam. According to Mr Lau, they walked along the same route he did on his first visit with Mr Lam, to walk in and out, and that he and Mr Wong were there about 10 minutes. However, his evidence was not consistent to Mr Wong’s as Mr Wong said they had walked all over the site.

(12) During the trial, Mr Lau had explained that it was Mr Wong who drove to pick up Mr Lau and that Mr Wong parked his car near the entrance of the slope near the “rectangle” side (ie the East Portion). He gave to Mr Wong the copy of the Lot Index Plan which Mr Lam had given to him, and told Mr Wong the price Mr Lam told him, namely about or not more than HKD40 per square feet, and that Mr Lam had said the site was about 20,000 sq ft. It seemed from Mr Lau’s evidence that Mr Wong did not have any prior knowledge of the site or its location. This however was again inconsistent with Mr Wong’s own evidence set out below, that he knew the location of Lot 2249 well.

(13) It was Mr Lau’s evidence in his witness statement that after inspection by Mr Wong, and after negotiation of price (經議價後), Mr Wong decided to buy Lot 2249 through a company held by him, ie D[72]. However, this was not consistent with Mr Lau’s oral evidence during the trial. Under cross examination, Mr Lau’s oral evidence was that he told Mr Wong the price would not be more than HKD 40 per sq ft and that Mr Wong agreed with no negotiation/discussion on the price and that he gave Mr Lau the name of his solicitors for Mr Lau to pass on to Mr Lam.

(14) In his witness statement, Mr Lau did not disclose that he was a witness to Mr Wong’s signature on the Chinese SPA. It was only during cross examination that Mr Lau said that after Mr Wong agreed to buy Lot 2249 and gave him the name of his solicitors, Mr Wong later made an appointment for him to go to the solicitors’ office to sign a document and that he was a witness to Mr Wong’s signature on the Chinese SPA.

(15) According to Mr Lau, after witnessing Mr Wong’s signature on the Chinese SPA at the solicitor’s office, thereafter, there had been no contact between him and Mr Wong, save at social occasions. It was not clear why Mr Lau needed to be a witness to Mr Wong’s signature on the Chinese SPA if it was signed at a solicitor’s office[73].

106.  Having considered Mr Lau’s evidence and for reasons and inconsistencies including the above, as said earlier, I do not find Mr Lau a reliable or credible witness. In my view, Mr Lau’s evidence has in fact called into question and cast doubt as to how Mr Wong came to know about Lot 2249 was for sale and why he decided to buy it.

107.  Further, Mr Wong’s own evidence was also full of inconsistencies:

(1) Mr Wong is an experienced businessman in buying and selling agricultural land in the New Territories, and that according to him, he had bought many pieces of land to develop for use as open air warehouses. There was no reasonable explanation however as to why he would want to buy Lot 2249 or what he had intended to use the site for, in particular, with the site being on two levels, the West Portion being about 2m higher than the East Portion, and the East Portion being about 2 m higher than the neighbouring government land. Mr Lau had denied that he was waiting for the government to resume the land. All he had said was he would gradually develop the site, but on his own evidence during the trial, he still had about 3 or 4 lots of green belt land left vacant/abandoned with no development. The fact was he did not develop the site into any open air warehouses or use it in any way from the time he bought it in December 2005 until the commencement of this action in 2016.

(2) Being an experienced businessman, it did not make commercial sense for Mr Wong not to find out exactly the price and the area before buying, or that he did not even negotiate on the price before buying, in particular when his evidence was that he did not know the vendor and that Mr Lau was merely someone he knew casually during social occasions, and that Mr Lau was not an agent. Mr Wong’s evidence during the trial was that normally there would not be any negotiation on the price of land, but there was no evidence to support what he said. Anyway, he later then seemed to change his evidence and said it was very seldom that there would be negotiation, as usually “the brothers” in the same village would ask for a price lower than the market price and therefore there was no need for negotiation. However, there was no evidence as to what the then market price was in respect of a similar lot such as Lot 2249 and in any event, Mr Lam or Sik Hop was not what Mr Wong would describe as a “brother” from the village. As mentioned, Mr Wong’s evidence that there was no negotiation on the price was not consistent with Mr Lau’s initial written evidence. Mr Wong’s evidence that he only came to know the price at the date of completion was in my view inherently improbable, nor was it supported by evidence, as it turned out prior to completion, Sik Hop and D had signed the Chinese SPA, on 28 November 2005, in which the price and area of Lot 2249 was clearly stated.

(3) During the trial, Mr Wong had said that the final price for Lot 2249 was less than HKD 40 per sq ft, as the site was about 20,000 sq ft. However, Clause 1 of the Chinese SPA had clearly stated that the area was about 19,602 sq ft, and that the consideration was HKD 784,080, and therefore the price was in fact exactly HKD 40 per sq ft.

(4) Mr Wong had also said Mr Lau knew about his business and that was why Mr Lau told him about Lot 2249, but this was inconsistent with Mr Lau’s own evidence that he did not know Mr Wong’s job or business.

(5) During the trial, Mr Wong had also said that he knew the location of Lot 2249 well, as his uncle Wong Ka Fat and Madam Chan whom he regularly visited were living close by, and yet on the day of inspection with Mr Lau, instead of parking near Madam Chan’s lot, and entered Lot 2249 from the Pink Line area, he drove to a spot on the south-eastern side of the site and entered from the Blue Line area. When he was asked during the trial why he chose to park on the south eastern side, he said there was a temporary road/path which led directly from the spot he parked his car to the Blue Line Area. He then claimed that when he went to inspect the site after the purchase, he would mostly park on the south-eastern side and then after inspection of the site, he would walk to visit his aunt, and then returned along the same route back to his car. However, in the May 2020 Video produced by him, he was seen walking past his aunt’s house first before visiting the site. In fact, he had also mentioned in his witness statement that sometimes when he went to visit his aunt, he would walk along the Green Path to enter the site, and walk towards the Blue Line area to inspect the site. As Mr Wong said he knew the location of Lot 2249 well, in my view, it would seem the nearest spot to the site where he could park his car would be close to the Deep Bay Road and near his aunt’s house and the more direct route to enter the site would be from the Pink Line if according to him, there was no gate or fence there, rather than the roundabout route from where Mr Wong claimed he parked on the day of inspection with Mr Lau.

(6) In fact, the Blue Line was more or less along the position of the Southern Gate was and the Pink Line was more or less along the position of the Northern Gate, as indicated on the 2010 Survey Plan. If there had been no fence or gate at all on Lot 2249, and no hindrances as alleged by Mr Lau and Mr Wong when they went to inspect the site in December 2005, they could have entered and exited the site from various points, and there was no reason why Mr Lau and Mr Lam would need to enter the site from Blue Line area, ie the position of the Southern Gate and then walked to the Pink Line area, namely the position of the Northern Gate, and then returned to the position of the Southern Gate.

(7) During the trial, Mr Wong’s oral evidence initially was that he did not see Mr Lau again before completion of the transaction and further after the transaction, they had not seen each other although there had been telephone contact. Later, he seemed to change his answer and he then said he might not have recalled clearly. The fact is, as mentioned earlier, Mr Lau had signed as a witness to Mr Wong’s signature on the Chinese SPA and they must have seen each other at the time of signing. When asked about this, Mr Wong’s answer was he could not recall. In fact, neither Mr Lau and Mr Wong had even mentioned the signing of the Chinese SPA in their respective witness statements and had at one stage disagreed to the Chinese SPA being included in the trial bundles.

(8) According to Mr Wong, he had never met the vendor, and that he only knew that the vendor was a limited company during the course of this action. When Mr Wong was shown a copy of the Chinese SPA, his response was that the vendor and he had signed at different times at their respective solicitors’ office, or words to that effect, and therefore they did not meet. Anyway, I find no sufficient evidence that the Chinese SPA was signed by Sik Hop and D at different times/dates and/or at different locations.

(9) As to how he knew the area of Lot 2249 was about 20,000 sq ft, Mr Wong said he said he asked his staff to conduct a search at the Yuen Long Land Registry. It was not clear what documents were relied on by Mr Wong or his staff to calculate the area of Lot 2249. As stated on the Lot Index Plan, the information shown on the plan “MUST” be verified by field survey. There was no field survey carried out by Mr Wong prior to his signing of the Chinese SPA.

(10) When Sik Hop purchased the 30 lots, Sik Hop signed an agreement for sale and purchase dated 21 March 1997 (“1997 SPA”). D appeared to have at one stage also disagreed to this document being included in the trial bundles. It was clearly stipulated in Clause 25(c) that those lots were sold on an “as is” basis[74]. Clause 26 (a) of the 1997 SPA also stipulated that all those lots were sold, amongst other things, subject to all rights and interests (if any) of all occupiers and squatters and/or unauthorised constructions/erections/developments (if any) on those lots and other encumbrances on the title of those lots[75]. It was stipulated in Clause 26(b), amongst other things, that the vendor gave no warranty and made no representation to all matters in relation to the said encumbrances, and that Sik Hop was to be personally responsible for making its own inquiry and investigations in respect of all matters in relation to the said encumbrances[76]. In light of these provisions, D could not have acquired a better title to Lot 2249 than Sik Hop, and D being an experienced businessman in dealing with land transactions must have been aware of those provisions in the 1997 SPA, which were in fact reflected in Clauses (4), (5) and (6) of the Chinese SPA. In particular, Clause (4) of the Chinese SPA stipulated that at time of completion, it was not necessary for vendor to deliver vacant possession of Lot 2249 to D.

(11) According to Mr Wong’s written evidence , after completion, he would go and inspect the site at least once a year and would normally enter from the Blue Line area, and that sometimes he would also enter through the Green Path from the northern corner and walk over to the Blue Line area and he did not notice any change, although he found someone had gradually placed rubbish along the Pink Line and erected some old broken fence which did not affect his entrance from the Green Path, and that it was only in April 2010 that he noticed the Container when he entered from the Blue Line area, and that the previous fallen fence had been re-erected and a gate (without lock) was also erected, and that he also noticed first time that someone had erected an iron wire fence and a gate (without lock) along the Pink Line area. Mr Wong’s such evidence did not appear to be even consistent with what the two experts had agreed in the Joint Statement that in the 03.08.07 (CS07925) Aerial Photograph, a portion of fence was seen in the northern edge of Lot 2249[77], which would be where the Pink Line area was, and that in fact was also not consistent with the evidence of D’s own expert Mr Ma who opined that the system of fence and gate on north-western end of Lot 2249 was erected sometime between 2006 to 2007[78].

(12) It was Mr Wong’s evidence that the two gates were not locked and that he and staff from Winner could enter freely. It was his evidence that he did not see any one cultivating on Lot 2249. In my view, it did not seem to make sense that one would go to the expense of erecting a fence and two gates, and yet not to place locks on the gates. In any event, Mr Wong’s evidence that he did not see any one cultivating the land again was not supported by what the two experts had agreed in the Joint Statement, that a piece of cultivation fields was seen in the western edge of Lot 2249 between the December 2009 and July 2015 Aerial Photographs[79].

(13) What was clear was that notwithstanding his evidence that in April 2010, he felt that there was a need to survey and enclose Lot 2249[80], apart from the survey, throughout the period up until the commencement of this action, there had been no attempts on his part to enclose or fence off the site. In fact, when he received the 2010 Survey Plan, he must have known there was a hoarding/fence “over 10 years” over various parts of Lot 2249, save the eastern boundary of the East Portion which borders the slope, and there were two gates, the Northern Gate and the Southern Gate.

(14) It was Mr Wong’s evidence that after the 2010 survey, as he had to urgently deal with his investments in Hainan Island, he did not take any further step in relation to the enclosing of Lot 2249. There was however no reasonable explanation as to why Mr Wong could not have simply instructed his staff to arrange for enclosing/fencing of Lot 2249.

(15) According to Mr Wong, about 2 or 3 years after the survey by Winner, he discovered that the gates along the Blue Line area and the Pink Line area were locked but he claimed he could still enter the site along a small path coloured orange on the Lot Index Plan, from the north eastern side (“Orange Path”). It was his evidence that after he was served with P’s originating summons herein in 2016, he had continued to enter Lot 2249 from the Orange Path and that he had instructed Winner again to carry out survey in March 2016 and that he had accompanied staff from Winner to enter the site from the Orange Path without encountering any interference. According to Mr Wong, it was in May 2016, that he then discovered that the Orange Path area was also fenced, and he could no longer gain access to the site. It was only then that he instructed D’s solicitors to write to P’s solicitors on 24 May 2016 demanding P to demolish and remove the fence[81].

(16) However, according to Mr Wong, on 9 October 2019, he walked along the Orange Path and he discovered that a part of the fence of about 3m to 4 m along the Orange Path (marked “XXX” on the Lot Index Plan) had been removed, and that he was able to gain entry. He had produced photographs taken by him upon gaining entry to the site. There was no date on the photographs and one simply cannot tell where the photographs were taken save what Mr Wong said.

(17) On 18 May 2020, Mr Wong said he and his solicitor went to the site. According to Mr Wong, he said he noticed someone had erected a new fence of 3m to 4m at the XXX area. It was on this occasion that the May 2020 Video was taken of him entering the site[82]. Mr Wong’s written evidence was that day, he and his solicitor drove to the Blue Line area where same as previously, it was full of overgrown grass and rubbish[83], and that he walked along the fence along the Blue Line towards north west and that after about 10 odd meters, he came to a wooden electricity pole (“South Electricity Pole”) and he had produced the photographs taken by him[84]. The South Electricity Pole appeared to be outside the fence in the photograph produced by Mr Wong. He and his solicitor then drove to Deep Bay Road, and walked past Madam Chan’s house on Lot 1747 towards the Pink Line, past another wooden electricity pole, “9M SYP USCCA B414” (“North Electricity Pole”)[85], and then arrived at the XXX area, and that he then climbed over the low fence and entered the site. The North Electricity Pole also appeared to be outside the fence in the photograph.

(18) What the above evidence seemed to show was that whenever one entry point to the site was blocked, Mr Wong then went to seek another entry point to the site.

108.  Having considered Mr Wong’s evidence and in light of the various inconsistencies, I do not find him a reliable or credible witness.

109.  As for the survey carried out by Winner, Mr Lee was not the one who prepared and signed on the 2010 Survey Plan. The Authorised Land Surveyor who signed on the 2010 Survey Plan was LCK. Mr Lee admitted that he only visited the site once which was on 3 June 2010. During the trial, he had said from where he parked the car, it was only about 5 minutes walk to the site, following the Green Path. He claimed to have stayed about 20 minutes, and he was there to just take a look at the site to see whether there were any difficulties in surveying and he then left. He admitted that he did not walk over the entire site, but according to him the whole site was full of wild grass of 1 to 2 m high. He noticed some broken iron wire fence and the Container. According to him, the words “fence over 10 years” on the 2010 Survey Plan were so marked by his 3 staff who conducted the survey in accordance with the then physical condition of the fence, and that such description would also be used if the material of the fence was some second hand, rusty or broken material. Mr Lee claimed that his then 3 staff had left his employment and joined the Government and were unwilling to give evidence. However, there was no reason or explanation as to why D could not have sought leave to serve a subpoena on Winner’s then 3 former staff.

110.  Mr Lee’s evidence that when he entered the site in June 2010, the whole site was covered by wild grass of 1 to 2m high did not appear to be consistent with, in particular, the 23.12.09 CW 84894 and CW 84895 Aerial Photographs. Further, the two experts had agreed that there was a portion of fence seen in the northern edge of Lot 2249 in the 2007 Aerial Photograph.

111.  Anyway, as said, it was LCK who signed on the 2010 Survey Plan on 19 November 2010, some 5 months after Winner visited the site. LCK was not an employee of Winner. According to Mr Lee, Winner prepared the survey and then they would report to LCK for LCK to check and that after checking, LCK would then sign on the 2010 Survey Plan. However, there was no reasonable explanation as to why LCK himself could not be called to explain the survey and the words “fence over 10 years” or “hoarding over 10 years”. When asked whether any photographs were taken during the survey, Mr Lee said he did not take any photographs, but if any were taken by his staff, they should be placed in the file or kept in the computer. He later then claimed that when he reviewed the file, there were no photographs.

112.  D’s expert Mr Ma had also opined that the words of “fence over 10 years” and “hoarding over 10 years” on the 2010 Survey Plan only indicated that the materials for hoardings/fence appeared to be over 10 years, and they could have been erected by using old materials.

113.  However, the description of “fence over 10 years” appeared to have also been applied to the fence along the south eastern boundary of Lot 2250, and it was not disputed that the along the boundary of Lot 2250 was erected over 10 years ago. No distinction in relation to different sections of the fence was marked on the 2010 Survey Plan. There was no sufficient evidence that “fence over 10 years” or “hoarding over 10 years” would only mean that the materials used for the fence or hoarding were over 10 years. In any event, in my view, the natural meaning of the words is that the fence or the hoarding was over 10 years old.

114.  Further, the two gates, namely the Northern Gate and Southern Gate were clearly marked and plotted on the 2010 Survey Plan, and they must have been in existence by June 2010. Yet, there was no mention of any gates seen by Mr Lee in his witness statement. Having considered Mr Lee’s evidence, I do not find his evidence satisfactory. He had not produced the file and record which Winner should have kept since there was a further visit by his staff to place survey pegs on 19 March 2016, which was after the commencement of this action.

115.  In light of the above, it is my finding that more probable than not when D purchased Lot 2249 in December 2005, D or Mr Wong was fully aware that there was unauthorised occupation by occupiers/squatters on Lot 2249.

116.  P’s evidence during the trial was that the first time she discovered there had been unauthorised entry onto the Land was in 2016, and she did not appear to be aware of the survey in 2010.

117.  Although P was not able to produce a copy of her police report, she had explained in her witness statement that she was told by the police that if there was any intruder again, then P would be required to make a written statement. During the trial, P maintained that it was she who called “999” and that she reported someone had placed some “pegs” on the Land and painted them red. According to P, the police came to her house and she opened the door for them and that she told the police that she did not know who did it. She said she did not give Mr Wong’s name to the police as she did not witness Mr Wong doing it himself. P said she could not recall the police report number. WKY confirmed during the trial that it was P herself who made a report to the police. WKY had confirmed that there was a report number which should be on a small piece of paper at home, and that it was not produced as there had been no statement taken from P. I find no sufficient evidence to contradict P’s evidence that she had made a report to the police.

118.  As said, P admitted during the trial that she knew Mr Wong bought Lot 2249 but could not recall when she found out. I have found no sufficient evidence that it was in December 2005 that P learnt of Mr Wong’s purchase of the Land. P also disagreed that when she and her family found out that Mr Wong had bought Lot 2249, they then placed the Container there to try to get some compensation, and that P was asked by her family to be the plaintiff in this action. It was also put to P that it was after placing the Container there then P erected the iron wire fence. P denied what was put to her and maintained that the iron wire fence or those parts thereof erected by her had been erected for several tens of years. P also maintained that it was she who had cultivated on the Land and that her children and son in law only helped. When asked what help they rendered, she replied that they helped to pick up the fruits and to sell them.

119.  P had produced a number of photographs, namely 7 taken on 14 February 2015 (including the 14.02.15 Photograph), 4 on 31 May 2015 (showing the roundabout entrance to Lau Fau Shan and the market), 13 taken on 14 July 2015 , and one taken on 26 July 2015[86].

120.  P admitted that it was her son in law, ie WKY’s husband who took the photographs. When asked why there was a black plastic covering over the Northern Gate, she was it was to scare off the dogs. P admitted that the photographs were taken for the purpose of showing them to the Court. When asked why in 2015, she had not posted up any notice to indicate that the Land was private property and there was to be no unauthorised entry, she said she had but could not recall the exact date when such was posted up, and she had said that all the villagers knew that the Land was hers.

121.  The notice ( in blue) (“Blue Notice”) was seen in a photograph produced by Mr Wong in his supplemental witness statement and allegedly taken by Mr Wong on 18 May 2020[87]. It was thus suggested to P by Mr Siu that the Blue Notice was only put up in 2020. However, in D’s expert Mr Ma’s report , he had produced photographs of his site visit to Lot 229 on 12 December 2018, including one of the Southern Gate (which Mr Ma referred to as the south-eastern gate)[88] and one of the Northern Gate (which Mr Ma referred to as the north-western gate)[89] and that there was a notice also in blue) which was clearly seen on the Southern Gate, and another what appeared to be slightly torn blue notice seen on the Northern Gate. Having considered those photographs, I find that there had been a notice in blue placed on both gates sometime prior to 12 December 2018. P had said during the trial that that it was her idea to post up the Blue Notice but admitted that it was her family members who posted it up for her, and that it was her son in law who wrote the words on the Blue Notice.

122.  There was an electricity pole marked “E” on the extracts of the 1986, 1999, 2004, 2007, 2010[90], 2012[91] Survey Sheets provided by Mr Ma at more or less the same position outside the northern boundary of the East Portion of Lot 2249. This was what was earlier referred to as the North Electricity Pole. The Northern Electricity Pole (marked “E”) appeared to have been moved inside the northern boundary as seen in the 2013 Survey Sheet[92], 2016 Survey Sheet[93] and also in the 22.02.19 Lot Index Plan[94].

123.  However in the 2010 Survey Plan produced by D, the Northern Pole marked “E” was indicated to be situated along/on the “fence of over 10 years” to the east of the Northern Gate[95]. Thus, the 2010 and 2012 Survey Sheets did not seem to have been updated by the Lands Department. The two experts had agreed under item 5.7 of their Joint Statement[96] that Survey Sheets might not always be updated.

124.  Anyway, when P was asked during the trial, she said could not recall how long the Northern Electricity Pole had been there. She also said it was erected by the Electricity Company and had nothing to do with her, and she maintained throughout that it was not within or on the Land and that it was on the path next to the fence outside the Land when she was shown the photograph taken on 14 July 2015 and produced by her (“14.07.15 Photograph”)[97].

125.  It was suggested to P that the May 2020 Video showed the Northern Electricity Pole to be outside the fence, because P had moved the fence inward when she discovered the Northern Electricity Pole there. P maintained that she did not move the fence inward or outward. She had however clarified on re-examination that if any part of the fence had fallen down, she would re-erect it.

126.  As said earlier, Dr Tang’s evidence was that the “gate like feature” and the “linear Fence feature” in the 1993 Aerial Photographs coincided with the position of the Northern Gate and fence in the 2010 Survey Plan, and also in the 2015 Aerial Photographs. Thus, the area fenced by P never coincided exactly with the boundaries of Lot 2249 as indicated in the 2010 Survey Plan. As said, the 2010 Survey Plan showed the Northern Electricity Pole to be inside the boundary of Lot 2249 and east of the Northern Gate along on the “fence over 10 years”. What seems clear is that by June 2010, although the Northern Electricity Pole was inside Lot 2249, it was really along or very close to the fence erected by P.

127.  P had said under cross examination that the Northern Electricity Pole was for electricity supply for the residents in “Man Yuen” (文苑), which appeared to be the house on the neighbouring Lot 2253.

128.  Even if the Northern Electricity Pole may have appeared to be inside the fence in the 14.07.15 Photograph and outside the fence in the May 2020 Video, as said above, the 2010 Survey Plan showed that it was along or very close to the fence erected by P. Even if P did move the fence a little bit inward after the 14.07.15 Photograph, it would not in my view really affect her case that she and her husband had erected a fence and gates on the Land since mid 1980s or as I have found earlier, more probable than not, latest by 25 November 1987.

129.  In any event, Mr Wong who claimed he had visited Lot 2249 in November 2005 and at least once every year after he purchased Lot 2249 did not really notice any change until April 2010 when he noticed the Container. Even though in his 1^st witness statement he had produced photographs allegedly taken on 9 October 2019 to show he was able to gain entry into Lot 2249 notwithstanding the fence, he made no mention of the Northern Electricity Pole seen in his photographs until his supplemental witness statement, or that there had been any change in the position of the Northern Electricity Pole over the years since he purchased Lot 2249, nor did he in fact mention seeing any electricity poles inside Lot 2249. It was also clearly not Mr Wong who erected the electricity pole within Lot 2249.

130.  WKY’s written evidence was that she and her mother believed that the surveyors from Winner and Mr Wong had gained entry to the Land after the commencement of this action through the previously unfenced part of the boundary which borders a steep slope, and therefore, to prevent further unauthorised entry, WKY and her husband had helped P to erect a fence along that part of the boundary and WKY had produced a photograph taken on 2 May 2016 of the newly erected iron wire fence[98]. In short, it was P’s case that after March 2016 and by 2 May 2016, the entire Land had been fenced off, whether by neighbours or P to exclude entry to the Land by unauthorized persons.

131.  As said earlier, later, the newly erected iron wire fence mentioned above was damaged, and it was WKY’s evidence that she and her husband then helped P to erect the Barbecue Net Fence. According to WKY, the rubbish shown in the photographs produced by Mr Wong were outside the fence on the Land, and she and P did not know who placed the rubbish there.

132.  It was also WKY’s written evidence that she believed that Mr Wong and his legal representative were able to enter the Land in May 2020 by climbing over the fallen part of the Barbecue Net Fence was because Mr Wong or his agents had damaged the fence. She had said as that side of the boundary was along a rather hidden top part of a slope and no passers-by along Deep Bay Road would even know that there was a piece of land situated where Lot 2249 is, it was not probable that someone would climb up, and that in fact if anyone wanted to gain unauthorised entry to the Land, it would have been much easier for them to climb over the iron wire fence from the north western or south eastern side. WKY further alleged that the unauthorised entry by Mr Wong and his legal presentative was akin to a burglar breaking into other people’s property.

133.  P admitted that it would now take her 30 minutes to walk from her house in San Hing Tsuen to the Land but she also said it would take others less time. P admitted that she did not build any “stone steps” (石級) between the West Portion and the East Portion which are about 2 m apart in height but said there were “mud steps” (泥級). In any event, as said by WKY, P did not farm or grow fruit trees over the entirety of the Land.

134.  It was suggested to P on behalf of D that the Container was placed there deliberately because a container could be easily removed if P was not able to prove her case. By 2008, P was already 75 years old, and in my view, it was not improbable for P’s children to decide to place the Container on the Land where P could have a shelter to have rest whenever she visited the Land and was tired. P’s evidence during the trial was that there was a fan inside the Container and there was drinking water placed inside, and that she had also placed tools there. The alternative to placing the Container there would seem to be to erect some sort of an enclosed temporary structure with a roof. Whether it was such a structure or a container, in my view, it would have been equally easy for it to be removed if P were not to prove her case and ordered to remove all unauthorised structures.

135.  P had produced a photocopy of the 1^st page of a letter dated 19 December 2008 from CLP (“CLP Letter”) as evidence that there was electricity supply applied for the Container[99], and she was asked during the trial as to the whereabouts of the original complete copy of the CLP Letter. P’s response was as her son in law had been helping her in preparing this case due to her illiteracy, she did not know where the original of the CLP Letter was. There was a drawing attached to the CLP Letter[100] (“Drawing”) to indicate the location of the electricity box which appeared to be on that part of the Container which extends into the government land.

136.  P was asked during the trial whether permission had been obtained from the government or owners of the property as required under item 1 of the CLP Letter, her response was she was the owner of the Land and that she did not know whether government permission had been obtained. WKY’s evidence was that when she found the photocopy of the CLP Letter among the electricity bills produced by P to her, the photocopy was of only one page. She had explained that as she and her husband had previously applied for electricity supply from CLP, she recalled that on the back page of the 1^st page of a similar letter, there was a space for the applicant to sign and indicate acknowledgment and to send back to CLP and that probably the original of the CLP Letter had been sent back to CLP. It was put to WKY that item 4 of the CLP Letter had referred to 3 enclosed drawings and as the Drawing was numbered “08GT0273”, there should be two other drawings, but WKY confirmed that the Drawing was the only one found with the copy of the 1^st page of the CLP Letter. It was WKY’s evidence that she and her husband had provided P’s solicitors with the copy of the CLP Letter and the Drawing. When asked why her husband was not called, she had explained that she would be clearer on matters/events which took place when she was a child rather than her husband. She denied that there had been selective production of evidence by her and/or P.

137.  It was also WKY’s evidence that she found a copy of the 1^st page of the CLP Letter and the Drawing among a bundle of electricity bills which P handed to her. Although no other electricity bills had been produced by P or by WKY and that there was no complete copy of the CLP Letter and only the Drawing was produced, P did produce an electricity bill to show that the deposit of HKD 980 was paid on 15 December 2008 and that between 23 December 2008 and 7 January 2009, a bill for HKD 2.00 was incurred[101]. Further, another photograph produced by P and taken on 14 February 2015 appeared to show an electricity meter box on the Container[102]. Having considered all the evidence, I do not find sufficient evidence to contradict P’s evidence that Tim Cho had applied for electricity supply to the Container and thereafter there was electricity supply to the Container.

E.4 Conclusion on Issues (1) to (5)

138.  As has been set out by Slade J in Powell v McFarlane (1979) 38 P & CR 452[103]:

“(3) Factual possession signifies an appropriate degree of physical control…. 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…. 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 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 aged 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.”

139.  I accept that P’s evidence was not perfect in every respect and that, very often, she could not remember what had happened. However, as said earlier, I am of the view that this was understandable in light of her age and health.

140.  To summarise, for Issue (1), I have earlier accepted that P and her husband had farmed on the Land since 1950s and had continued to occupy and farm on the Land after her husband’s brothers abandoned farming thereon and left/died, and that in between 1986 to 1987, she had let out part of the Land to tenant/s who had erected chicken sheds there, and after her tenant/s had left and the chicken sheds removed latest by 25 November 1987, P and her husband started to grow fruit trees on the Land.

141.  As for Issue (2), I find that after her tenant/s had left and chicken sheds removed latest by 25 November 1987, P and her husband had erected iron wire mesh fences with two gates (with locks) along the perimeter of the Land, and such fences and gates had been erected in any event latest by May 1993 (ie date of the 1993 Aerial Photographs) and had continued to be in existence thereafter throughout the relevant period. I further accept P’s evidence, if any part of the fence had fallen down, she would re-erect it when she found out.

142.  As for Issue (3), I am satisfied that P had exercised a sufficient degree of physical control of the Land since by end of November 1987 and in any event at least by May 1993, and for at least 20 years prior to her commencement of this action.

143.  Notwithstanding that the fences erected by her seemed to have failed to secure every part of the boundary to prevent intrusion, I accept that her intention of erecting the fences and the gates was to exclude the world at large including the paper title owner and all intruders. Thus for Issue (4), I find that she has satisfied this Court that she had the intention to possess the Land on her own behalf and for own benefit. In any event, this did not appear to be a really disputed issue.

144.  Even though P did not build a fence over part of the eastern boundary of the East Portion of the Land, P had explained that there was wild vegetation over that part of the Land which also borders a steep slope. I have accepted her explanation and find that for Issue (5), the lack of wire mesh fence along that part of the boundary of the Land bordering a slope and covered with wild vegetation did not vitiate P’s exclusive possession of, and/or intention to possess, the Land.

F. ISSUE (6)

145.  Issue (6) concerns the extent of the Land allegedly possessed by P at all material times.

146.  As mentioned earlier, the extent which had been fenced off by P did not actually coincide with the actual boundaries of Lot 2249, as seen in the 2010 Survey Plan. I find the area indicated in the 2010 Survey Plan as being fenced around in the north-western side including the unfenced part of the Eastern boundary of the East portion bordering the slope/government land and which falls within Lot 2249 (“Possessed Area”) to be the extent of the Land exclusively possessed by P. In other words the Possessed Area extended from the point “AJ” to “D” passing through “387”, along the Northern Gate and along the “Fence over 10 years”, then from “D” to “E”, from “E” to “J”, from “J” all the way along the southern boundary of Lot 2249 to “S” and from “S” to “V” at the western corner and along the rest of the boundary of Lot 2249 back to “AJ”. The exact area should by surveyed by an Authorised Land Surveyor to be agreed by the parties, failing which there be liberty to apply for further directions.

G. ISSUE (7)

147.  Issue (7) is if P had exclusive possession of the Land, whether she had abandoned it at any time.

148.  I do not find that there was sufficient evidence that P had abandoned the Possessed Area at any time prior to the commencement of this action.

H. ISSUE (8)

149.  Issue (8) is whether if P had exclusive possession of the Land, whether such possession was discontinued by D’s alleged re-entry of the Land, if any, whether by its director, or agent and/or the Land Surveyor.

150.  There was no sufficient evidence that LCK had ever visited the site. The fact that Mr Lee and/or his staff had found their way into Lot 2249 in June 2010 and in 2016 without P’s authorisation would not be sufficient in my view to establish D’s re-entry. In any event, in light of the fact that I have found that the evidence of Mr Wong, Mr Lau and Mr Lee to be unsatisfactory, I do not find that there was sufficient evidence of any re-entry of the Possessed Area on the part of D.

I. ISSUE (9) AND ISSUE (10)

151.  Issue (9) is whether if P had continuous exclusive possession of the Land and had not abandoned it at any time, whether the limitation period for D to recover the Land had expired as on the date of its Defence and Counterclaim.

152.  In light of my earlier findings, the answer to this question is yes but limited to the Possessed Area.

153.  It also follows that P is not liable to D for damages under Issue (10).

J. ORDER

154.  In light of all said above, the effect of my order is that, I grant declarations as sought by P in respect of the Possessed Area (subject to a survey to be carried out by an Authorised Land Surveyor to be agreed of the actual area). I dismiss D’s counterclaim. There be liberty to apply in relation to any directions if the parties are unable to agree to an Authorized Land Surveyor and/or any consequential directions. I order D to pay P the costs of and incidental to this action including any reserved costs, to be taxed if not agreed, on party and party basis and with certificate for counsel.