CHENG YIP CHI v. CHAN CHUN FAI

DCCJ 4702/2017

[2022] HKDC 1283

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4702 OF 2017

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JUDGMENT

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INTRODUCTION

1.  This is a claim of adverse possession by the 2^nd defendant against the plaintiff as the registered owner of Tsoi Kang Lot Nos 2, 3, 4, and 5 in Demarcation District No 100 (the “Land”) together with the messusages, erections and buildings thereon collectively known as 2 Tsiu Keng Lo Wao North, New Territories, Hong Kong (the “Premises”).

2.  The plaintiff has since 30 June 2015 been the registered owner of the Land. By a tenancy agreement dated 23 November 2016 entered into between the plaintiff as landlord and the 1^st defendant as tenant, the plaintiff let the Land and the Premises to the 1^st defendant for a fixed term of 5 years from 24 November 2016 to 23 November 2021 at a monthly rent of HK$10,000. In breach of the tenancy agreement, the 1^st defendant had failed to pay rent since 24 March 2017. The plaintiff thus commenced the present action against the 1^st defendant on 24 October 2017. Final judgment was obtained on 15 March 2019 in default of the 1^st defendant’s notice of intention to defend.

3.  The remaining dispute is as between the plaintiff and the 2^nd defendant, who was, by an order of 6 February 2018 joined as the 2^nd defendant upon his own application made on 28 November 2017 counterclaiming for adverse possession that he has been in exclusive possession of the Land since 1987.

4.  The 2^nd defendant’s case is as follows:-

(1)  At all material times, the 2^nd defendant and his family have been the registered owner of, and in exclusive possession and enjoyment of Tsiu Kang Lot No 1 in Demarcation District No 100 (“D2’s Land”) and the house erected thereon (“D2’s House”).

(2)  D2’s Land is adjacent to the Land.

(3)  In about 1986, the then registered owner or occupant of the Land moved out of the Premises, and since about 1987 the 2^nd defendant and his family had entered into, have continuously been and still are in exclusive and uninterrupted possession and enjoyment of the Land and the Premises as part of their residence and for the 2^nd defendant’s tortoise rearing purpose.

(4)  All the water and electricity supplies to the Premises are and were connected from D2’ House.

(5)  The use of the Land was maintained and improved from time to time by the 2^nd defendant’s repairing and furnishing of the Premises.

(6)  The Premises is and was guarded by doors with locks and windows with grids.

(7)  Only until early or mid-2016, a lady subsequently known to be the plaintiff told the 2^nd defendant that she was the owner of the Land.

(8)  There was an incident in which someone set a fire on the Premises by Molotov cocktail (氣油彈) on 1 April 2017.

5.  The plaintiff’s case is as follows:-

(1)  The plaintiff obtained vacant possession of the Land and the Premises at the time of completion of the assignment on 30 June 2015.

(2)  At the time of taking vacant possession, the plaintiff was free to enter the Premises, and observed that the entrance and windows of the Premises were broken, the interior was aged and worn, and there was no electricity and water supply.

(3)  In or around April 2016, the plaintiff and the lender advancing a loan to her inspected the Premises which was to be charged under the legal charge created on 18 May 2016. The inspection was carried out without any interference.

6.  Further, it is not in dispute, as confirmed by Mr Tony Chow, counsel for the plaintiff and Mr Tony Ko, counsel for the 2^nd defendant, that between D2’s House and the Premises sitting on the Land is a lane or a strip of land. On both sides of the lane have been walls erected with a gate or gantry on one side for entry. The door to D2’s House does not face the lane. Thus, to enter D2’s Premises from the lane, one has to walk out of the lane (and thus the Land) through the gantry first.

7.  From the parties’ respective expert reports, there is no dispute that at latest since 1986, there were indeed walls on the lane between D2’s House on D2’s Land and the Premises on the Land. In other words, the whole Land has since been enclosed by the walls and the Premises. Thus, the usual factual issue of whether the subject land in an adverse possession claim has been enclosed is not a live issue here.

8.  The issue here is whether the 2^nd defendant and his family did enter into and has been in exclusive use and occupation as alleged at least since 2004 (12 years before the plaintiff allegedly inspected the Land without interference in 2016 thereby exercising her right as the owner) or at least since 2005 (12 years before the 2^nd defendant joined as a defendant herein, assuming that there was no inspection carried out by the plaintiff in 2016 as alleged). Since the 2^nd defendant alleges that he started exclusive use and occupation since 1987, I should add that the relevant period would be 20 years (instead of 12 years) for exclusive use and occupation that started before 1991.

9.  The 2^nd defendant carries the burden to prove with compelling evidence that he and his family had been in exclusive use and occupation of the Land as alleged.

WITNESSES

10.  The 2^nd defendant himself gave evidence. In addition, one Tang Ping Kuen, who allegedly lived near the Land for 35 years, gave evidence for him. The plaintiff only had herself giving evidence.

11.  Of course, each of the witnesses had prepared their written witness statements for the present action. For the 2^nd defendant, he also filed an affirmation dated 24 November 2017 in support of his joinder application mentioned above.

12.  In addition, because of the Molotov cocktail attack to the Premises in April 2017, the plaintiff and the 2^nd defendant made statements to the police respectively on 7 April 2017 and 1 April 2017 (the “plaintiff’s statement to the police” and the “2^nd defendant’s statement to the police” respectively). As always, both statements to the police contained the clause at the end near the signature of the statement makers reminding the statement makers that they could correct, amend and/or supplement the statements.

ANALYSIS OF THE 2^ND DEFENDANT

13.  The 2^nd defendant was born in 1970. He started to work in 1986 or 1987, but has ceases working since 1989 when he suffered from a traffic accident.

(A) Circumstances where the 2^nd defendant allegedly took up the Land and the Premises

14.  In his Witness Statement dated 5 November 2020, the 2^nd defendant alleged that back in 1985, lightning struck the Premises and thus severely damaged the Premises. As a result of the severe damage, the then registered owner Li (or Lee) Wai Ying and his family moved out of the Premises and left it vacant. The 2^nd defendant and his family then moved in in 1987. During the evidence, by “his family” he meant his elder brother who stored his construction materials on the ground floor of the Premises, while he alleged that he had since 1987 lived on the first floor.

15.  The 2^nd defendant’s account of how the 2^nd defendant and his family (that is, his brother) took up the Premises in the Witness Statement prepared in 2020 is inconsistent with his account made in the 2^nd defendant’s statement to the police back in 2017. In the 2^nd defendant’s statement to the police, he alleged that he was very close to the occupant of the Premises, and the occupant was named “泰盧” (transliteration: Tai Lo), not anyone surnamed Li or Lee. He alleged that in 1986, Tai Lo aged 70, told him that Tai Lo had to leave and would not come back, and thus Tai Lo would allow the 2^nd defendant to move in. He further alleged that because the 2^nd defendant and Tai Lo were close as “brothers in the same village” (同村兄弟), there were no documents signed with Tai Lo. He could not locate Tai Lo anymore.

16.  The 2^nd defendant gave another version of the event during the cross-examination. He alleged that he did not know the name of the occupant of the Premises. He just addressed the occupant of the Premises as “uncle Li” (李叔叔), “uncle” because of he being in the same generation as the plaintiff’s father. The 2^nd defendant also said that he was not any “brother in the same village” to “uncle”. The 2^nd defendant said that “uncle Li” told him that because of the lightning strike that caused a hole on the roof leading to water leakage, uncle Li had to leave the Premises. Uncle Li told the 2^nd defendant that if he would like to take up the Premises, he could do so as he wished, but there was water leakage.

17.  This account clearly is inconsistent with his account made in the Witness Statement and with his account made in the 2^nd defendant’s statement to the police.

18.  First, the registered owner of the Land and the Premises was a person surnamed Li or Lee, but neither Tai nor Lo, nor anyone whose name contained Tai or Lo. In fact, I tend to agree with the plaintiff’s explanation that 泰盧 was the name of the house rather than of a person, as it is well known that people in the old days liked to name their houses with the Chinese character “盧” meaning house. I, however, do not have to make a finding on this. The more salient point here is that the name of the registered owner or the occupant whom the 2^nd defendant described in the 2^nd defendant’s statement to the police as his “brother in the same village” was not right as he described to the police. It is inherently improbable that if he were really so close with the registered owner or the occupant, he would remember the name completely wrong, even wrong on the surname. It seems that in his Witness Statement (as well as his affirmation), he described the registered owner or occupant’s name as Li Wai Ying because his solicitors did the land search for him in preparing the witness statement (as well as his affirmation).

19.  Second, worse, he disowned the 2^nd defendant’s statement to the police. He said that he did not mean to say that the owner or the occupant of the Premises was his “brother in the same village” because he was his “uncle”, not of the same generation. The 2^nd defendant alleged in the cross-examination that he actually meant that he played with his “brothers in the same village” in uncle Li’s Premises.

20.  Third, the reason why the registered owner or the occupant (whoever he was) had to leave the Premises described in the 2^nd defendant’s statement to the police is materially different from that in his Witness Statement (as well as his affirmation). In the 2^nd defendant’s statement to the police, he said that the registered owner told him that the former had to leave for good, without really explaining why and without referring to any lightning strike. However, in his Witness Statement (as well as his affirmation), the 2^nd defendant alleged that the occupant had to leave because of the lightning strike and the damage caused by it in 1986. Further, in his Witness Statement (as well as his affirmation), it was not mentioned that the registered owner’s departure was expressly made known to the 2^nd defendant. No conversation between the 2^nd defendant and the registered owner was referred to at all, as has now been in the trial for the first time.

21.  His oral evidence in the cross-examination that it was the lightning strike that caused the hole on the roof and thus water leakage and therefore “uncle” told the 2^nd defendant that he would leave and would let the 2^nd defendant move into the Premises is, in my view, a desperate attempt to reconcile his witness statement with the statement to the police. This attempt has failed because:-

(1)  It must be remembered that in an adverse possession claim, how the subject land is taken up is one of the most material aspects to establish the claim.

(2)  Thus, one would expect reasonable details in this aspect, and one would expect that such details would be given with extreme caution to make sure the events would be as accurately described as possible.

(3)  If there were indeed a conversation between the 2^nd defendant and “uncle Li” as alleged, this would have been mentioned in the 2^nd defendant’s witness statement rather than as late as in the trial only.

22.  For the inconsistency between the 2^nd defendant’s statement to the police and his Witness Statement as well his oral evidence, he explained that because of the Molotov cocktail attack in the early hours of 1 April 2017, he was very shocked and thus was very confused when making the statement to the police. I reject this explanation as absurd and dishonest. It would be understandable and forgivable that when in shock, one may be confused about the dates and times of events or even the sequence of events. However:-

(1)  I cannot understand in any sense how one would say something totally different like “brother in the same village” would actually mean “uncle” of the generation as his father, or how the “brothers” actually was meant to be brothers with whom the 2^nd defendant played together, when in the context, it clearly referred to the owner or occupant. Further, the context of the statement to the police clearly tried to show that because of the close relationship between the 2^nd defendant and the owner, the owner was willing to leave the Premises to the 2^nd defendant and leave it to him without any documents. All that said, I accept that in the same statement to the police, Tai Lo was described as aged 70 when leaving the Premises. So, it seems that there was indeed confusion over this area. Nevertheless, substitution of “brother in the same village” with “uncle” still cannot explain why an uncle of the same generation as the 2^nd defendant’s father would talk direct to the 2^nd defendant of a younger generation (aged 16 years old only at that time), not through his father, telling the 2^nd defendant that he could take up the Premises as he wished. It also cannot explain why there was no document prepared.

(2)  In the statement to the police, the 2^nd defendant in effect said that “uncle Li” expressly left the Premises to him, in stark contrast to his Witness Statement which was silent on this point at all. For this part, the 2^nd defendant stands by the version in the statement to the police, and did not say that he was shocked and confused when giving this bit of the evidence. The 2^nd defendant simply was cherry-picking up those that he thinks would help him, and disowning those that he thinks would be against him in the name of “shock” and “confused”.

(3)  When it came to the assessment of loss in the statement to the police, the 2^nd defendant was adamant about his estimates. He could even clearly tell the Court his thought-process – he remembered, and named a few examples of, what were stored and installed by himself and by his elder brother in the Premises and thus, he said, he made the estimates on these items. He did not make any assertion that these estimates may be inaccurate because of the shock and confusion he had.

(4)  Mr Ko submits that the 2^nd statement to the police was prepared for the other of investigation into the Molotov cocktail attack but not for the adverse possession claim. Underlying this submission is an argument that because the statement was not prepared for adverse possession, the accuracy of the contents in relation to how he took up the Land and the Premises may be compromised. I do not see any logic in these submissions. In giving the 2^nd defendant’s statement to the police, the 2^nd defendant should have well known that he had to state the truth, especially when he was reminded at the end of the statement that he could amend and supplement the statement as he thought necessary. I do not see how he could somehow be less than accurate as to other matters than the Molotov cocktail attack. I reject Mr Ko’s such submissions.

23.  When asked about what damage was done by the lightning strike, the 2^nd defendant alleged, along the line of his version orally given in Court, that it was a hole on the roof causing water leakage. He also alleged that with his elder brother’s assistance, and with him picking tiles from the ground around Premises and buying some more tiles himself, he managed to mend the roof. He alleged that he spent only a little sum of money to mend the roof. In the circumstances, I do not think that such damage was “severe” as alleged in his Witness Statement. It is also inherently improbable that the registered owner or the occupant of the Land would leave the Premises for good simply for such damage. His evidence in this respect is unbelievable.

(B) Alleged arrangement of use of the Premises and D2’s House among the 17 members of the family

24.  Also inherently improbable, contrary to common sense and without any good reason, is the allegation that of the 17 family members, the 2^nd defendant alone lived in the Premises, while the remaining members lived in D2’s House, which is about 1/3 in size of the Premises. When asked why, the 2^nd defendant alleged that the other members were worried that the Premises were haunted. No proper reason could be given as to why they were so worried, in particular in the light of the odd evidence of the 2^nd defendant that none of the family members asked him about the basis for his taking up the Premises and that he did not explain to them the basis either. In the circumstances, I do not accept that the worry about haunting was the reason. There is no good reason for this strange arrangement of one member living in a house 3 times bigger than D2’s House where the remaining 16-17 members were squeezed in.

25.  Further, the 2^nd defendant alleged that he had rented a small room from D2’s House in about 2004 for his wife and children to live in, because he found the Premises unsafe allegedly due to lack of moorings on the first floor of the Premises. Yet, he had allegedly reconstructed and fixed the roof in 1987, allegedly built tortoise pool with concrete walls, and allegedly connected wires and pipes from D2’s House. This is implausible in my view. Thus, I reject the 2^nd defendant’s such allegation as incredible that he had to live alone but leaving his children to a small room.

26.  In connection with the 2^nd defendant’s allegation that his elder brother stored some construction materials in parts of the ground floor of the Premises, his brother did not give evidence. The 2^nd defendant seemed to suggest that his brother (as well as his other family members) did not give evidence because they were frightened and worried about the plaintiff’s aggressive behaviour towards their personal safety. However, the 2^nd defendant joined himself to the present Acton in 2017 and defended the plaintiff’s claim since 2017 till now for five years. I do not see any evidence of any such aggression against him for the past five years.

27.  I have also considered the 2^nd defendant’s oral allegation in his cross-examination, for the first time, that there has been such aggression from time to time from unknown persons and the matters have been reported to the police. I have no hesitation in rejecting such allegation because such allegation was made for the first time and if it were true, the same would have been made earlier. Further, there is no evidence of reports to the police of the alleged aggression.

28.  Further, for the 2^nd defendant’s brother, he suffered a significant loss as a result of the Molotov cocktail attack (estimated to be HK$60,000 by the 2^nd defendant in his statement to the police, an estimate he still stood by in his cross-examination with explanation, without shock and without confusion). Although he would not be able to tell who was behind this attack, he had all the reason to assist the 2^nd defendant in having the adverse possession claim succeed because otherwise, he would suffer further loss as he would have to look for other storage space as substitution of the ground floor of the Premises which allegedly he had used for decades. However, while the 2^nd defendant has proceeded with the present Action all the way up to the trial for the past five years, his brother did not even make a written statement. In my view, there is no good reason for not calling his brother to give evidence. In the circumstances, I am entitled to and do draw an adverse inference that the 2^nd defendant’s brother did not store or use any part of the Premises as alleged or at all: see Cheung Ka Shing v Bonus Plus Co Ltd [2020] HKCFI 277 at §68 per Ng J, in drawing adverse inference, stating:-

…given the dearth of contemporaneous documents to corroborate the Plaintiff’s case and given the little weight accorded to a squatter’s self-serving statements, it seems to this court reasonable to expect him to call other witnesses, independent or otherwise, who have personal knowledge of the relevant facts to support his case. But this was not done—the only explanation from the Plaintiff, when asked in court, was that he did not think there was a need.” (emphases added)

(C) Alleged pool for tortoise

29.  In his oral evidence, the 2^nd defendant alleged that he built a pool for rearing tortoises on the ground floor of the Premises, and reared tortoises also on the ground floor. However, in his affirmation, he deposed that “I also converted part of ground of the Premises to a tortoise pool and I have been rearing tortoises on the first floor of the Premises…” When the 2^nd defendant was asked about the accuracy of this sentence in cross-examination, Mr Ko had to intervene to point out that in Chinese, the ground floor would usually be referred to as the first floor. However, if Mr Ko were correct, one would expect that the same Chinese floor numbering system would be adopted within the same sentence, which currently shows clearly that the pool was on the different floor for rearing tortoises. In any event, at the end of the day, the 2^nd defendant had to concede in the cross-examination that it was wrong. When asked why he did not correct it, he could not give any explanation at all, because in fact moments ago before his admission that it was wrong, in his oral evidence, he had affirmed to this Court that if he discovered mistakes in the affirmation (as opposed to lack of details), he would have corrected them.

30.  Further, in his oral evidence, he attempted to point out some short walls as the walls of the pool in the photos of the ground floor of Premises and in a video clip. However, both photos were taken after the present Action commenced. The probative value, if any, is very limited. In any event, from the photos and the video clip, I could only see there were some short walls on the ground floor of the Premises. Neither the photos nor the video showed whether the walls were old or new. On such evidence, I am not convinced that there were any pools for tortoises.

31.  The value of these photos taken after the present Action commenced is indeed very doubtful. As shall be seen below, the plaintiff was directed to some of such photos for Mr Ko’s suggestion that there were some bricks or obstacles behind the door to the Premises, and thus the door could not be opened in 2015 as the plaintiff alleged. However, if the 2^nd defendant did live in the Premises as alleged, then one would ask why there were such bricks or obstacles all along to inconvenience his entry into the Premises, when allegedly the door had a lock and he keys to the door.

(D) Alleged usage of electricity and water

32.  The 2^nd defendant alleged that both water and electricity to the Premises were supplied from D2’s House with pipes and cables connected from D2’s House. However, unlike what one would usually see in an adverse possession claim where the squatter would be able to produce years of electricity and water bills, in the present case, the 2^nd defendant produced only one electricity bill dated 21 October 2019, which contained a chart showing daily average of usage of electricity only from August 2017 to 21 October 2019.

33.  On the 2^nd defendant’s evidence, the plaintiff had already in 2016 approached the 2^nd defendant, and said that she had acquired the Land and would like to recover the possession of the Land. Thus, the evidence of the usage of electricity since 2017 is of less value than any evidence of the usage (if any) before 2016. In any event, there is no evidence of usage of electricity and water for the relevant periods even in respect of D2’s House, let alone any evidence of usage of electricity and water supplied to the Premises from D2’s House.

34.  Although the bill was a bill in respect of D2’s House only, because allegedly electricity and water had been supplied from D2’s House, the usages shown in the bills would still be the best documentary evidence of usages in D2’s House.

35.  When asked whether or not he had attempted to retrieve more records from the electricity company and any records from the Water Supplies Department, his answer was that these utilities bills were all kept by his sister-in-law (that is, wife of his second elder brother). He explained that because they were frightened by the Molotov attack and worried that the same would happen to them, they were unwilling to produce the bills. I reject this explanation. I repeat my analysis of such explanation in paragraphs 26 to 27 above. Further, if this explanation were true, no bills (instead of a single bill now produced) would have been produced at all. It would be absurd to say that such worry would increase with the number of the documents produced. In any event, if one document would be produced, then there is no reason why an earlier bill would not be produced.

36.  The 2^nd defendant also explained that although he could ask the electricity company and Water Supplies Department for the past records, he had not done so because he did not want to pay the charges. I also reject this explanation. Relative to the legal costs, such charges would be insignificant. I cannot understand why the 2^nd defendant, not on legal aid, would be willing to pay legal costs for the litigation (including engagement of Mr Ko counsel of such seniority) but not for such relatively small charges to produce relevant evidence to assist the Court.

37.  In his oral evidence, the 2^nd defendant also attempted to refer to the photos in his Witness Statement to show the connection of pipes from D2’s House to the Premises. However, first, as the 2^nd defendant himself confirmed, the photos were taken after the present Action commenced. Second, I note that the pipes looked relatively new in the photos. The 2^nd defendant alleged that the pipes were maintained recently by his elder brother and so they looked new. But without any evidence from his elder brother, I do not accept the 2^nd defendant’s mere say-so. Third, the 2^nd defendant was unable to locate any electricity cables that connected D2’s House to the Premises.

(E) Jim & Co’s unissued letter of 17 May 2016

38.  The costs reason that he did not want to pay more costs and expenses was also given in his attempt to explain why allegedly he did not request solicitor Jim of Jim & Co to correct a simple mistake in a letter prepared by solicitor Jim for him to claim adverse possession, which has never been issued. That letter is dated 17 May 2016. In that letter, it was stated that the adverse possession started since about 1982, contrary to the 2^nd defendant’s current claim that it started in 1987. The 2^nd defendant alleged that the mistake was due to a misunderstanding or miscommunication between him and solicitor Jim. However, nothing eventful in the 2^nd defendant’s evidence took place in 1982, when the 2^nd defendant was merely 12 years old. I fail to understand how 1982 would come up if the 2^nd defendant did say 1987.

39.  In any event, it was a simple mistake. It would take less than a few seconds to correct it, simply changing “2” to “7”. Allegedly because of this simple mistake, the 2^nd defendant did not issue the letter. When asked why he did not ask solicitor Jim to correct this simple mistake, his answer was preposterous – he did not want to pay more legal fee. First, he did not even ask solicitor Jim to correct it. His such worry, if any, may well turn out to be unwarranted. Second, I fail to see why a client asking his solicitor to correct such a simple mistake made by the solicitor himself would charge any or any significant amount of legal fee, so much as to deter the 2^nd defendant from asking the solicitor to correct a mistake made by the solicitor himself.

(F) Conclusion

40.  Given the above, I find the 2^nd defendant an unreliable witness.

ANALYSIS OF TANG PING KUEN’S EVIDENCE

41.  Tang Ping Kuen was a witness for the 2^nd defendant. He alleged that he had lived in Tsiu Keng Lo Wai Village since his birth, and has known the 2^nd defendant for 35 years. He did not live near the Premises. He could not see from his own house what was happening in the Premises. He alleged that he remembered entering the Premises to borrow some device from the 2^nd defendant. All these are mere say-so evidence from him. Thus, I have to assess his credibility as a whole in order to see whether such say-so evidence is reliable.

42.  There are three areas of his evidence that can assist my assessment:-

(1)  His allegation that when passing by the Land, he could see what happened on the first floor of the Premises.

(2)  His outburst of the allegation in the cross-examination, never mentioned in his Witness Statement, though foreshadowed by Mr Ko’s putting case to the plaintiff in his cross-examination, that he had told the plaintiff prior to her purchase in 2015 that the Land and the Premises had been used and occupied and asked the plaintiff not to purchase the Land.

(3)  His outburst of the allegation towards the end of his evidence that the plaintiff had a track record of using improper means to get possession of the lands she purchased and thus she was a bad person.

43.  In relation to his ability to see what happened on the first floor of the Premises, in his cross-examination, initially, Tang Ping Kuen said, without reservation, that he could see what happened on the first floor. But when asked how he could see what happened inside the first floor, he then said that he could see the lights and what the 2^nd defendant did near the window. I think Tang Ping Kuen had a tendency to exaggerate.

44.  As regards his outburst of the allegation that he had told the plaintiff prior to her purchase in 2015 that the Land and the Premises had been used and occupied and asked the plaintiff not to purchase the Land, I have no hesitation to find that this allegation was an afterthought and a fabrication. Tang Ping Kuen, on his own evidence, had been well aware of adverse possession. He said that he had in the past won an adverse possession claim against the big developer Henderson, and that he had from time to time educated villagers about adverse possession. It is unbelievable that with his such knowledge of adverse possession, he would have omitted such important evidence of his such communication to the plaintiff. This evidence, if true, would be corroborating evidence at least in 2015 of use and occupation of the Land and the Premises by the 2^nd defendant. Obviously, Tang Ping Kuen knew the importance of such evidence; otherwise, he would not have burst this out in the cross-examination. However, if the evidence is true, this would have been mentioned in his Witness Statement much earlier on.

45.  Why would he be so eager to help the 2^nd defendant? This question takes me to the third area of evidence, namely, he burst out towards the end of his evidence that the plaintiff had a track record of using improper means to get possession of the lands she purchased and thus she was a bad person. It seems that he took the present Action quite personal against the plaintiff as if the Action is a means to vindicate himself. I would not go so far as to say that all his evidence is deliberate lie to the Court, but I do not regard him as an impartial witness and his evidence may be tainted, deliberately or not, by his partiality (as well as tendency to exaggerate, as I found above).

46.  In his closing submissions, Mr Ko argued on Browne v Dunn that Mr Chow did not put to Tang Ping Kuen various matters including that Tang Ping Kuen lied. It is trite that Browne v Dunn is not to be applied mechanically: see Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605; HKSAR v Chan Hoi Tat (2013) 16 HKCFAR 34. The important point of Browne v Dunn is to ensure fairness to the witnesses. Certain matters which Mr Ko argued should have been put to Tang Ping Kuen are in my view unnecessary because in the context, Tang Ping Kuen had already stated his positions clearly. For example, it is clear that right after Tang Ping Kuen mentioned (for the first time) that his conversation with the plaintiff prior to her purchase of the Land, and right after he was asked why he did not mention this conversation earlier on, putting to him that he was lying to the court would just be met with an answer “I disagree”.

47.  In the circumstances, I find Tang Ping Kuen’s evidence unreliable.

ANALYSIS OF PLAINTIFF’S EVIDENCE

48.  The plaintiff was a real estate agent in the New Territories. She is no longer a licensed real estate agent. She has purchased a lot of lands in the New Territories, some as nominee for others and some for herself. She told this Court, which is not challenged, that she purchased the Land for herself.

49.  The plaintiff alleged that through a person called “Ah Chai” (introduced to her by a friend of hers), he was introduced to the Premises in March 2015. She alleged that the Premises were not locked. Ah Chai and she entered the Premises without any keys. She alleged that when they were in the Premises, she observed that the staircase to the first floor was dilapidated and some of the stairs had fallen off. As a result, she did not walk up the stairs to the first floor. She also observed that the interior of the Premises was very old, and some parts of the ceilings were damaged. There was neither electricity nor water supply. In short, she thought that the Premises had been left vacant for a long time. She, however, did not take any photos. When asked why she did not do so, so that she could negotiate for a better price from the vendor, her answer was that she did not think about that. On balance, I accept this answer because the vendor would usually know well the conditions of the property he was selling. Further, I note that at that time there was no litigation on the Land.

50.  The plaintiff was also directed to certain photos taken in 2020 showing that there was some brick or obstacle behind the door to the Premises and thus the door would not be opened as alleged. However, the photos were taken in 2020, and thus are not probative to what happened in 2015 at all. As mentioned above, if the brick or obstacle had been behind the door to the Premises in 2015 or even earlier, one could not sensibly explain why the 2^nd defendant, allegedly living in the Premises, would have such obstacle that would inconvenience him in entering the Premises, when allegedly the door had a lock and he had the keys to the door.

51.  The plaintiff alleged that in May 2016, she engaged surveyors to carry out the surveying of the Land. She alleged that the surveyors attempted to enter the Premises, but were stopped by a group of people. As a result, the police were called, and the plaintiff went to the Land to show the police the land search showing that she was the registered owner of the Land. The plaintiff alleged that surveying then continued. The plaintiff did not question that group of people why they were stopping the surveying because according to the plaintiff’s experience in dealing with New Territories lands, such questioning would lead to demand from them for money.

52.  When asked whether there was evidence showing her engagement of the surveyors (for example, engagement letter, invoice and receipts or the surveying reports or photos taken by the surveyors), her answer was in the negative. However, I note that in the plaintiff’s statement to the police, she did mention the same incident consistently, but she did not mention there about the continuing of the surveying.

53.  It does appear to me inherently improbable that had the surveying continued, there would not have been any photos or reports produced to show that surveying was eventually permitted. In the overall assessment, I accept her evidence that she did engage the surveyors in 2016, but I do not accept her evidence that the surveying continued after being stopped by the group of people around.

54.  On 18 May 2016, the plaintiff borrowed HK$2,000,000 from one Cheung Lik Wan with charge over the Land. Prior to the borrowing, Mr Cheung requested inspection of the Premises. According to her, the plaintiff and Mr Cheung’s legal representative visited the Premises for inspection without difficulty. There was indeed the Legal Charge produced before this Court, the authenticity of which is not challenged. Further, no suggestions were put to the plaintiff that this loan and/or the charge were a sham. I, therefore, take them as they are. In the circumstances, there would be no reason for the chargee not to inspect the security before he would be willing to lend the HK$2,000,000. On balance, I accept the plaintiff’s evidence of this insepction.

55.  There was cross-examination on whether the plaintiff has indeed made an application for rebuilding, as the reason for her purchase of the Land was, according to the plaintiff, for rebuilding. The plaintiff was asked why no document in relation to the application was produced. I think production of such document was not necessary because the application was peripherally relevant only. As mentioned above, the issue is whether the 2^nd defendant had been in exclusive use and occupation as alleged. The reason for the 2^nd defendant’s purchase of the Land and how she eventually used the land are of little relevance. I do not think that failure to produce documents in relation to the application, being a peripheral issue, would have any adverse impact on the plaintiff’s credibility.

56.  As regards the tenancy agreement between the plaintiff and the 1^st defendant dated 23 November 2016, there is no suggestion that this tenancy agreement was a sham. Thus, I can accept is that indeed there was the tenancy under the tenancy agreement, whereby the 1^st defendant did take possession of the Premises. Nevertheless, I am not satisfied with the plaintiff’s evidence as to the reason why she let the Premises to the 1^st defendant. She alleged that she let the Premises to the 1^st defendant so that the 1^st defendant could help to take care of the Premises against the invasive villagers, and she did tell the 1^st defendant that it was one of the purposes of the tenancy. However, contrary to the purpose as told, right after the Molotov cocktail attack in late March 2017, instead of staying there to take care of the Premises, the 1^st defendant was simply gone and did not pay the rent. I think that the plaintiff has not been frank with this Court about what actually was the reason behind the tenancy agreement. That said, for the present purpose, my finding that there was the tenancy under the tenancy agreement suffices.

57.  Lastly, the plaintiff denied the suggestion put to her during the cross-examination that Tang Ping Kuen had told her prior to her purchase of the Land that some other villager had occupied the Premises and asked her not to purchase the Land. In this regard, I have already explained above why I do not accept Tang Ping Kuen’s allegation (made for the first time in Court), and it follows that I accept the plaintiff’s evidence in this respect.

CLEARING OF THE VEGETATION IN 1998 AND 2007

58.  Mr Ko relies on the statement in the joint expert report at §9.2 that “Regarding the southern portion of the roof of S1 (the Premises), vegetation was firstly observed in 1997 but it was cleared in 1998. During 1999-2006, vegetation could be observed again at the location but it was cleared in 2007”. Mr Ko also refers me to Tang Sui Ching v Leung Wai Fuk [2018] HKCFI 1263 for his submissions that where there was evidence of occupation and there was no other evidence adduced to suggest that the area was occupied by anybody other than the squatter, the Court should be ready to find that it was the squatter to occupy the subject land.

59.  Each case depends on its own facts and evidence. Tang Sui Ching v Leung Wai Fuk does not stand for any legal proposition but is an example of how the Court assessed evidence in the specific factual context in that case. In the present case, first, though carrying the burden of proof, the 2^nd defendant himself has never mentioned anything about clearing vegetation. Second, the clearance of the vegetation took place only in 1998 and almost ten years later in 2007. Third, the 2^nd defendant’s case is that he had used and occupied the Land and the Premises since 1987, and the sparing clearance in 1998 and 2007 does not sit well with this case.

60.  In fact, in the absence of the 2^nd defendant’s evidence that he did the clearance, the evidence of clearance may suggest that there was someone else carrying out some activities in the Land, contrary to the 2^nd defendant’s case that it had exclusive possession of the Land. At the very least, this evidence of clearance is not compelling evidence required to prove the 2^nd defendant’s exclusive possession for the purpose of adverse possession.

61.  Further, the same joint expert report also points out that there was a hole on the roof of the Premises since 1997 and the hole had remained there at least up to the experts’ joint inspection in March 2020. Any occupant of the Premises would certainly have noticed, and would have been more troubled by, the hole more than the vegetation outside the Premises.

62.  Thus, I do not think this evidence of clearance has taken the 2^nd defendant anywhere. In my view, it even tends to show that the 2^nd defendant did not live in the Premises.

FACT-FINDINGS

63.  In the light of the evidence as analysed above, I find that:-

(1)  There is no evidence satisfying me that the 2^nd defendant did take up the Land and the Premises as alleged, and that the 2^nd defendant did use and occupy the Land and the Premises as alleged.

(2)  In March 2015, prior to her purchase of the Land, the plaintiff did inspect the Premises without difficulty caused by anyone, and during the inspection, she found the Premises dilapidated.

(3)  In May 2016, the plaintiff did inspect the Premises with the chargee’s legal representative without difficulty caused by anyone.

(4)  In November 2006, the plaintiff did enter into the tenancy agreement with the 1^st defendant.

2^ND DEFENDANT’S COUNTERCLAIM

64.  In the circumstances, the 2^nd defendant has failed to prove his case of adverse possession. His counterclaim shall be dismissed.

PLAINTIFF’S CLAIM ON TRESPASS

65.  It follows that the 2^nd defendant has no defence to the plaintiff’s claim based on trespass.

66.  There is no evidence on the quantum in support of the mesne profit HK$10,000 as claimed. This figure is the monthly rental under the tenancy agreement between the plaintiff and the 1^st defendant only. This cannot serve as a given between the plaintiff and the 2^nd defendant. In the circumstances, I will only award nominal damages, say, HK$100 per month.

MOLOTOV COCKTAIL ATTACK IN 2017

67.  The 2^nd defendant and Tang Ping Kuen, understandably, referred from time to time to the Molotov cocktail attack against the Premises in 2017 that burnt the Premises. Insofar as this incident was used to explain why the 2^nd defendant’s statement to the police was inconsistent with his current evidence, I can see the relevance, although I have rejected the 2^nd defendant’s explanation for the inconsistency.

68.  I can also appreciate that this incident was used to explain lack of family photos which one would usually expect to be produced to show that the squatter and his family did use and occupy the subject land in question. I note, however, that against this allegation that all the belongings were burnt up, the 2^nd defendant was able to produce to the police on 1 April 2017 the Jim & Co’s unissued letter of 17 May 2016, which the 2^nd defendant alleged was kept by his wife separately. If necessary, I reject the 2^nd defendant’s explanation for lack of photos, although as clear from the above, my findings do not depend on the lack of such photos.

69.  For the avoidance of doubt, I make it clear that I place no weight at all on who was or were the culprits behind this deplorable attack. This is not an issue before me because whoever was or were the culprits behind this attack in 2017 would not change the fact of presence or absence of exclusive use and occupation since 1987. At the very most, there may be submissions that if the culprit(s) was or were one of the witnesses, the credibility of his or her or their evidence should be discounted. However, the evidence before me is insufficient for me to come to any finding as to who was or were the culprits.

ORDER

70.  In the circumstances, I make the following order:-

(1)  The 2^nd defendant’s counterclaim be dismissed.

(2)  The 2^nd defendant do deliver vacant possession of the Land and the Premises to the plaintiff.

(3)  Nominal mesne profit of HK$100 per month from the commencement of this action until the delivery of vacant possession of the Land and the Premises to the plaintiff pursuant to paragraph (2) above, with judgment interest at judgment rate thereon.

(4)  The 2^nd defendant do pay the plaintiff costs of this action (including all costs reserved) to be taxed if not agreed, with certificate for counsel.