TANG SUI CHING AND OTHERS v. LEUNG WAI FUK AND ANOTHER

HCA 1896/2014

[2018] HKCFI 1263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1896 OF 2014

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J U D G M E N T

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Background

1.  The subject matter of this trial is a piece of land known as Lot 175 RP in DD 38 North New Territories (“Lot 175 RP”).  Lot 175 RP is situated at Fanling near Sha Tau Kok Road.  The Plaintiffs are the registered owners of Lot 175 RP who acquired the paper title in May 2014. 

2.  By this action, the Plaintiffs seek vacant possession of Lot 175 RP and mesne profits thereof against the 1^st Defendant and all occupiers of Lot 175 RP (“the 2^nd Defendant”).  In November 2014, interlocutory default judgment was entered against the 2^nd Defendant as no one came up to defend apart from the 1^st Defendant.

3.  The 1^st Defendant’s pleaded case is that he and his family have been in occupation of Lot 175 RP since 1963 and hence, the Plaintiffs’ action is time barred under sections 7, 8 and 17 of the Limitation Ordinance, Cap 347.  In his counterclaim, the 1^st Defendant seeks a declaration that he has acquired the title of Lot 175 RP by way of adverse possession. 

4.  As part of the background, the 1^st Defendant was also a Defendant in an action (“HCA 1573/2012”) taken out by the Plaintiffs as Managers of Tang Tsap (or Chap) Tso (“the Tso”) in 2012 for possession of a piece of land known as Lot 106 in DD 38 (“Lot 106”).  Lot 106 is adjacent to Lot 175 RP.  The 1^st Defendant had pleaded in HCA 1573/2012 a defence and counterclaim similar to his case in the present case.

5.  In HCA 1573/2012, judgment was entered against the 1^st Defendant by consent. As a result, the 1^st Defendant delivered possession of the portion of land he occupied in Lot 106 to the Tso. 

6.  The sole issue in the present trial is whether the 1^st Defendant can establish adverse possession to Lot 175 RP against the Plaintiffs.

Lot 175 RP

7.  Lot 175 RP is a long narrow strip of land parallel to Sha Tau Kok Road with a total area of approximately 210.2 m². According to the Block Government Lease, the permitted user of Lot 175 RP is for “Padi” use, which means that the land is for agricultural use.  Lot 175 RP is directly accessible from Sha Tau Kok Road.

8.  On a Lot Index Plan[1] ( “Lot Index Plan”) drawn by the Lands Department depicting the vicinity of Lot 175 RP, a cluster of “Temporary Structures” can be found situated on the lands surrounding Lot 175 RP.  Those surrounding lands include Lot 106, Lot 144, Lot 145, Lot 146, Lot 147, Lot 175 and Lot 176 SB RP of DD 38.

9.  The Lot Index Plan was exhibited by attachment to the 1^st Defendant’s first witness statement and the 1^st Defendant referred to the “Temporary Structures” on the plan as Houses 1 to 7 respectively.  In his first witness statement, the 1^st Defendant stated that those houses were built by his father for accommodation of the family.  On the Lot Index Plan it can be seen that part of House 1, House 5 and House 7 were situated within Lot 175 RP.  House 1 was partly on Lot 106 and House 5 and House 7 were partly on Lot 147.

The 1^st Defendant’s case

10.  The 1^st Defendant’s case can be summarized as follows.

11.  The 1^st Defendant’s father, the late Mr Leung Chau Shing (“the Father”), had been working in one Hei Lau Kin Brick Factory (“the Factory”) since 1962.  The Factory was located at Lot 144.

12.  In 1963, the Father purchased two wooden houses near the Factory.  During the period between 1970 and 1982, the Father built a number of quarters and structures in the vicinity for his family to live in. 

13.  Over the years, from 1982 until the present time, new structures have been constructed by the Father, the 1^st Defendant and their tenants.  The structures had eventually been developed into the present situation.  Those structures include wooden or metal houses, containers for residential use, canopies, fences and gates. 

14.  As at 2016, part of a wooden house (“S1”), part of a container (“S3”), part of a canopy, part of a fence (“FX1”), a gate (“Gate”) and part of a gate (“GA1”) were situated within the boundary of Lot 175 RP.  The abbreviations used above are adopted from the joint report of the parties’ experts dated 18 November 2016 (“Joint Report”). On the “Identification Plan”[2] used in the Joint Report, the respective positions of the above mentioned structures were marked.

15.  S1 and S3 are indeed House 5 and House 1 on the Lot Index Plan.

16.  As agreed by the experts, S1 was first existed in 1979, S3 was first existed in 2000, and FX1 and GA2 were both first existed in 1995. 

17.  It is the evidence of the 1^st Defendant that S1 was built by the Father, S3 was built by himself and FX1 and GA2 were built by the tenant of S1 who rented S1 from firstly the Father and then the 1^st Defendant.

18.  It is the 1^st Defendant’s case that he and his family members have been in occupation of a portion of Lot 175 RP exclusively and continuously since 1963 and therefore the causes of action by the Plaintiffs are time-barred.

19.  The fall-back position of the 1^st Defendant is that even considering only the time of construction of the respective structures situated within the boundary of Lot 175 RP, the causes of action of the Plaintiffs against him are still time-barred.  That is, for S1, counting 20 years from 1979, the limitation period should end in 1999; for S3, FX1 and GA2, counting 12 years from 2000 and 1995, the limitation periods should end in 2012 and 2007 respectively.

Ps’ case

20.  Regarding the allegation of adverse possession, the Plaintiffs say that since 1980, they had been inspecting Lot 106 from time to time by going through Lot 175 RP and no fishpond or fruit trees could be found on it. 

21.  Prior to 2005, there was no container or entrance gate placed or erected on Lot 175 RP.  In 2005, Lot 175 RP was vacant with scattered wild vegetation and was open to the public who could go pass freely. Up till 2006, no unauthorized use of Lot 175 RP was recorded or found.  As of 2014, Lot 175 RP was not fenced off from others and people could enter the land freely.

22.  Mr Tang Sui Ching of the Plaintiffs gave evidence that on his observations it was only after 2006 that the 1^st Defendant had started to move from his occupation of Lot 106 to Lot 175 RP.

23.  It is the Plaintiffs’ case that there has not been continuous occupation of Lot 175 RP since 1963 as alleged.  At most, any occupation by the 1^st Defendant was started from 2006 only and, in any event, it was not exclusive.

Experts’ evidence

24.  In the joint expert report dated 18 November 2016, the parties’ experts[3] made reference to the aerial photos and survey sheets of the relevant areas and come up with certain agreed observations. 

25.  Among other things, they have agreed as follows:

“(a) In 1961, the Subject Lot was mostly vacant land. Agricultural activity was found at adjoining Lot No. 147. A track (T1) was found running through the eastern portion of the Subject Lot to the inner Lot Nos. 145, 146 and 147;

(b) In 1969, the south-western portion of the Subject Lot and the southern adjoining lot were found to be used for agricultural purpose. Rows of cultivations could be identified. However, track T1 was found disappeared.

(c) In 1971, from Survey Sheet No 3-NW-25B, signs of cultivation activities at the eastern portion of the Subject Lot was observed.

(d) In 1973, the rows of cultivation seemed to be disappeared within the Subject Lot. A track (T2) was found running through the eastern portion of the Subject Lot. The position of Track T2 was at about the same position of Track T1. More structures were found erected on the southern adjoining lot Nos. 145, 146 and 147. Other than Track T2, the remaining area of the Subject Lot remained vacant.

(e) In 1979, a new structure (S1) was found erected on the southern adjoining Lot No. 147. The north-western corner of Structure S1 was very close to the boundary of the Subject Lot. Track T2 seemed to be disappeared whilst another track (T3) which was at the south-western side of T2 was found running through the Subject Lot to the inner Lot nos. 145, 146 and 147. Another track (T4) was found at the eastern end of the Subject lot.

(f) In 1981, Track T3 seemed to be widened. The remaining area of the Subject Lot remained vacant.

(g) In 1982, Track T3 was more widened than in 1981. Part of the roof of Structure S1 was collapsed.

(h) In 1983, a new rectangular shaped structure (S2) was found erected along Track T3 and was partially erected over the Subject Lot. The northern portion of Structure S1 was found to be demolished.

(i) In 1985, Structure S2 was found disappeared.

(j) In 1986, the roof of the remaining Structure S1 was re-constructed. Various subjects were found to be located near the eastern portion of the Subject Lot (i.e. the position of the original S1 before the demolishment of the northern portion).

(k) In 1988, more structures were found to have been erected near the south-western portion of Structure S1.

(l) In 1990, the demolished northern portion of Structure S1 was found to be re-constructed. However, the new extend of Structure S1 was found to be encroached onto the eastern portion of the Subject Lot. Track T3 was found to be widened. A lorry was found parking on Track T3. Besides, a new track (T5) was found running through the western portion of the Subject Lot. This track was believed to be the access way to Lot No. 106.

(m) In 1991, track T3 became an open space for accessing to the southern adjoining Lot No. 147. A gate (GA1) which was located with Lot No. 106 was found at northern side of Track T5.

(n) In 1992, clearance exercise was found undertaken at the eastern portion of the Subject lot (i.e. at the northern side of Structure S1).

(o) In 1993, more vehicles were parked at Track T3 and at the northern side of Structure S1. Clearance exercise was found undertaken at the northern side of the Subject Lot, between Tracks T3 and T5. Structure S1 was also clearly shown to have encroached onto the boundary of the Subject Lot.

(p) In 1994, Track T3 was disappeared. The middle portion of the Subject Lot, the northern adjoining Lot No. 176 S.B RP and Government Land were found to be paved by concrete. A vehicle was parked at the middle of the Subject Lot.

(q) In 1995, the site condition remained in similar condition as in 1994. A truck was parked at the middle of the Subject Lot. A new fence (FX1) and a gate (GA2) were found erected at the centre of the Subject Lot.

(r) In 1996, two new planters (PL1 and PL2) were found constructed at the northern side of the Subject Lot. These planters were believed to be constructed by the Government.

(s) In 2000, a new structure (S3) was found erected over the centre of the Subject Lot and the adjoining Lot Nos. 106 and 176 S.B RP. The side condition of the remaining area of the Subject Lot was in the similar condition as in 1997 to 1999.

(t) In 2002, a Fence-off area with Gate G2 located adjacent to the Western part of Structure S1 was also found appeared on Survey Sheet No 3-NW-25B.

(u) In 2006, a new structure (S4) was found erected at the eastern side of Structure S3. This structure was erected over the centre of the Subject Lot, adjoining Lot Nos. 176 S.B RP and the Government Land. However, this structure was found disappeared in 2007.

(v) There was no significant change to the site condition between 2008 and 2009.

(w) In 2010, a new structure (S5) was found at the western side of Structure S3. This structure was erected over the centre of the Subject Lot, adjoining Lot Nos 176 S.B RP and the Government Land.

(x) In 2011, part of the roof at the north-west corner of Structure S5 was found collapsed.

(y) There was no significant change to site conditions after 2011.

(z) In conclusion, structures S1, S3, S5 and Gates GA1 and Fence-off Area (FX1) with Gate GA2 were found to have been erected on the Lot since their first existence from 1979, 2000, 2010, 1991 & 1995 respectively.”

26.  The above observations of the experts tallied with what has been depicted on the aerial photos and survey sketches.  I will refer to them later in the discussion section of this Judgment. 

Relevant law

27.  Section 7(2) of the Limitation Ordinance Cap 347 (“the Ordinance”) provides that:

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

28.  Section 8(1) of the Ordinance provides that:

“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.”

29.  Section 13 of the Ordinance provides that:

“(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.”

30.  Section 17 of the Ordinance provides that:

“… at the expiration of the period prescribed by this ordinance for any person to bring an action to recover land …, the title of that person to the land shall be extinguished.”

31.  It is not in dispute that for adverse possession allegedly commenced before 1^st July 1991, the relevant limitation period is 20 years whereas for adverse possession allegedly commenced on or after 1^st July 1991, the relevant limitation period is 12 years[4].

32.  To establish possessory title based on adverse possession, the person claiming possession must be shown to have both factual possession of the suit land and the requisite intention to possess (animus possidendi) for the whole of the limitation period[5].  The relevant possession must be adverse (in the sense that the occupier has dispossessed the paper owner and has entered into possession without the consent of the paper owner) and continuous[6].

33.  The burden of proving adverse possession lies on the alleged possessor.

Discussion

34.  As can be seen from the aerial photos of Lot 175 RP and the surrounding lands, it is unquestionable that the area has been occupied by someone since as early as 1979.  Cluster of structures similar to what is depicted on the Lot Index Plan can be seen clearly on the aerial photo taken on 30 November 1979.

35.  The cluster of structures was originally built beyond the boundary of Lot 175 RP but during the period between 1988 and 1993, it can be seen from the aerial photos that the structure S1, which is apparently a large wooden or metal house on Lot 147, gradually protruded into the boundary of Lot 175 RP. 

36.  Lot 175 RP is in a position between the cluster of structures and Sha Tau Kok Road. It can be seen clearly that, since at least 1982, the middle part of Lot 175 RP has been used as a pathway (“T3”) between Sha Tau Kok Road and the cluster of structures.  Vehicles were seen occasionally parked on T3 since at least 1992.

37.  In 1994, a large portion of the trees and brushes on Lot 175 RP were cleared away and the area was apparently paved with concrete[7]. The purpose of the clearance would obviously be making space for parking of vehicles.  In the period between 1994 and 2000, container trucks were seen parking on the paved area.  In 2000, S3 was built on part of the paved area. Thereafter, container trucks were seen parking on an area between S3 and Sha Tau Kok Road, which is outside Lot 175 RP.

38.  In 1995, FX1 and GA2 were found erected on Lot 175 RP.

39.  Judging from the above objective evidence, in my view, the evidence from the Plaintiffs that Lot 175 RP was vacant in 2005 must not be true.  If the Plaintiffs had been inspecting Lot 106 from time to time by going through Lot 175 RP since 1980 as they alleged, they should be able to tell the court more about the activities happened on Lot 175 RP and would not merely give us an impression as if there had been nothing happened on the land before 2005.

40.  The continuous existence of the cluster of structures and the developments of the same indicated strongly that the structures and the vicinity had been occupied and used continuously since 1979.  There is no other evidence adduced before the court to suggest that the area was occupied by anybody other than the 1^st Defendant, the Father, and their family members or tenants.

41.  It is exhibited a letter dated 28 April 1976 from the Tai Po District Office to the Father in reply to his application to build a pig house on Lot 147.  The letter was addressed to the Father and sent to Hei Lau Kin Bricks Factory.  There is also a letter dated 2 September 1994 from the District Lands Office, North to the 1^st Defendant in reply to his application to rebuild a structure on Lot 147.

42.  In 1972, the Father applied for an electricity meter from China Light & Power Limited (“CLP”). As can be seen from the deposit receipt·issued by CLP, the relevant address stated thereon is “1-All Loi Tung Vill Shatau Kok, N.T.”  In aletter dated 17 September 2012, the Water Supplies Department (“WSD”) confirmed that the 1^st Defendant has been the registered user (User Number: 13916220000) of the building situated at “DD 38 Lot 175RP, Loi Tung Tsuen, Fanling, New Territories” since 14 March 1997.  The WSD subsequently confirmed by another letter that the 1^st Defendant has been the registered user (User Number: 13916220000) of the building at “DD 38 Lot 175RP, Loi Tung Tsuen, Fanling, New Territories” since 14 March 1997. 

43.  It is the evidence of the 1^st Defendant that upon his request the WSD sent someone to the site and inspected the water meter with a map and subsequently changed the address.

44.  The Plaintiffs are managers of the Tso and according to their own evidence they had been inspecting Lot 106 from time to time since 1980.  They named the 1^st Defendant as the Defendant in HCA 1573/2012.  In my view, the Plaintiffs must be very familiar with what had happened in the vicinity of Lot 175 RP and if there were occupiers of the area other than the 1^st Defendant, the Father, their family members or tenants, the Plaintiffs would have been able to identify or at the very least describe them in the evidence.

45.  I am aware of Ms Law’s forceful submission on the credibility of the 1^st Defendant’s evidence especially the fact that the 1^st Defendant had shifted his case after having sight of the experts’ reports.  But on balance, taking into account the above mentioned factors, the evidence tends to support the fact that the cluster of structures and the space in between have been occupied and used continuously at least from 1979 by the 1^st Defendant, the Father, their family members or tenants.

46.  Although the 1^st Defendant has changed his version of facts as to which house he was allotted by the Father for his occupation after having sight of the experts’ evidence, I accept his explanation that when preparing his first witness statement he has had a misunderstanding as to the positions of the various structures on the Lot Index Plan. 

47.  The case of the 1^st Defendant is that the whole cluster of structures was occupied by him and his family.  There is apparently no advantage to gain in lying about which house he was initially allotted by the Father.

48.  The history of the Father’s occupation of the area started a long time ago.  As evidenced by the aerial photos, the structures built on the relevant lots had been extended and diminished at different time.  It is understandable that the 1^st Defendant cannot give a perfect account on the details of their occupation of the area.

Findings

49.  I have the following findings of salient facts:

(a)  The Father purchased two wooden huts in 1963 near Lot 144 and started to build structures in the vicinity for occupation of his family members;

(b)  New structures were built by the Father and his family and the structures extended throughout the years towards the direction of Lot 175 RP;

(c)  S1 was built by the Father in 1979 and it has been occupied by the Father or his tenant or the 1^st Defendant’s tenant thereafter;

(d)  The 1^st Defendant has been living in the structures since his childhood;

(e)  In 1990, S1 was extended and encroached onto part of Lot 175 RP;

(f)  S1 was rented out by the Father or his wife to others in or before 1991;

(g)  GA2 and FX1 were built by the tenants of S1 in or about 1995;

(h)  The 1^st Defendant started to participate in the management of the structures as early as in 1994 when he has lodged an application to rebuild the structure on Lot 147;

(i)  The Father, the 1^st Defendant and their family members had been in continuous possession of the cluster of structures and the lands thereon since at least 1979;

(j)  The Father or the 1^st Defendant had applied for electricity and water supplies to the cluster of structures as early as in 1992 and 1997 respectively;

(k)  The Father, the 1^st Defendant and their family members had manifested their intention to adversely possess Lot 175 RP by, inter alia, renting out S1 to others, permitting the tenants of S1 to erect a gate and fences on the land and clearing away the trees and brushes thereon and paved the area with concrete.

Conclusion

50.  The 1^st Defendant has established adverse possession against the Plaintiffs of part of Lot 175 RP as shaded on Appendix III of this judgment.   

51.  The Plaintiffs’ causes of action against the 1^st Defendant are accordingly time-barred.

Dispositions

52.  The Plaintiffs’ claims are dismissed.

53.  A declaration be made that the 1^st Defendant has acquired title to the land as prescribed under paragraph 50 herein by adverse possession.

54.  A declaration be made that the Plaintiffs’ title to the land as prescribed under paragraph 50 herein has been extinguished under section 17 of the Limitation Ordinance.

55.  I make a costs order nisi that costs of the proceedings be to the 1^st Defendant to be taxed if not agreed.  This costs order nisi shall become absolute upon the expiry of 14 days from the date of this judgment unless there is any application from any party for variation of the same.

56.  I thank counsel for their able assistance.

Appendix I

Appendix II

Appendix III