YIP YAN CHEUNG GARY also known as YIP YAN CHEUNG v. CHOW TIN CHOI

DCCJ 2645/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2645 OF 2012

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JUDGMENT

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Introduction

1.  This action concerns the following three pieces of land situated in Tsuen Wan, New Territories:-

(1) Lot No 105 in DD 360 (“Lot 105”);

(2) the Remaining Portion of Lot No 106 in DD 360 (“Lot 106 RP”); and

(3) the Remaining Portion of Lot No 108 in DD 360 (“Lot 108 RP”)

(Hereinafter collectively referred as “the Subject Lands”).

2.  The plaintiff became and still is the registered owner of the Subject Lands since 1976.  There is no dispute that the defendant was and still is occupying the Subject Lands without the permission of the plaintiff.  The plaintiff now commenced this action to seek:-

(1) An order for vacant possession of the Subject Lands and demolition of various fencing structures erected thereon;

(2) An injunction to restrain the defendant from obstructing the access to the Subject Lands; and

(3) Mesne profits at the rate of $5,000 per month since August 2002 until vacant possession is delivered.

3.  On the other hand, the defendant’s case is that he and his family have been in possession of the Subject Lands since 1960s.  They have been using the land without permission or consent of the land owner.  Therefore it is the defendant’s case that the title of the registered owner and his predecessor has been extinguished under section 17 of the Limitation Ordinance, Cap. 347 (“the Ordinance”).  The defendant therefore counterclaims:-

(1) A declaration that the rights of the plaintiff to recover the Subject Lands has become statue-barred under section 7 of the Limitation Ordinance and that his title to the Subject Lands has been extinguished; and

(2) A declaration that he was and is in adverse possession of the Subject Lands and has thus acquired possessory title of the Subject Lands.

The plaintiff’s case

4.  The plaintiff gave evidence at trial and called one witness, Mr. Tsang Hong (“Mr. Tsang”).  It is the plaintiff’s case that the Subject Lands originally belonged to his aunt, Madam Cheng Kwan Ying (“Madam Cheng”).  In or about 1964, Madam Cheng leased the Subject Lands at the rate of $200 per annum to the defendant’s parents for farming purpose. 

5.  Madam Cheng passed away in 1976.  The Subject Lands were transferred to the plaintiff as a testamentary gift and the plaintiff became the registered owner.  At first, the plaintiff intended to recover the Subject Lands for his own use. However, the defendant’s parents pleaded to the plaintiff that they needed to use the Subject Lands for farming so as to support the family.  In the end, by an oral licence, the plaintiff agreed to permit them to continue to use the Subject Lands.  Out of sympathy, the plaintiff did not charge the defendant’s parents any rent and the only condition to the licence was that they had to deliver vacant possession upon the plaintiff’s request.

6.  In or about 1981, the government commenced road works in the area surrounding the Subject Lands.  Some portions of the Subject Lands were reclaimed by the government and excavation works led to the suspension of fresh water supply to the Subject Lands.  In or about the same time, the defendant’s parents contacted the plaintiff and told him that they no longer needed to use the Subject Lands.  As a result, the plaintiff resumed the Subject Lands but the Subject Lands remained vacant since then.

7.  During the years that the Subject Lands remained vacant, the plaintiff had visited the Subject Lands when he and his family paid tribute to ancestors every year.  The plaintiff observed that the Subject Lands were remained vacant all along. There were only natural vegetations found on the Subject Lands.

8.  The plaintiff became aware of the defendant’s occupation of the Subject Lands in or about 2002.  He noticed that a fence and an iron gate were erected around the Subject Land.  The plaintiff tried to discuss with the defendant about the situation.  The defendant maintained that he was the owner of the Subject Lands and asked the plaintiff to leave. 

9.  In gist, it is the plaintiff’s case that the defendant only started to adversely possess the Subject Lands in about 2002 and therefore failed to accrue the requisite time period of 12 years.

10.  Mr. Tsang’s evidence is that he is a friend of Madam Cheng for many years.  He recalled Madam Cheng mentioned to him that she had leased the Subject Lands to the defendant’s father at the annual rent of $200.  Mr. Tsang also recalled that he once met the defendant’s father when he came to pay the rent to Madam Cheng.

The defendant’s case

11.  The defendant gave evidence and called two witnesses, namely his wife, Madam Yiu Wai-fun (“Madam Yiu”) and his neighbour and childhood friend, Mr. Chung Leung-shan (Mr. Chung”).  The defendant said his father came to Hong Kong in about 1950 and started to reside in a house situated on the Remaining Portion of Lot No 109 in DD 360 (“Lot 109 RP’) which is adjacent to the Subject Lands.  Thereafter, the defendant’s parents started to use the Subject Lands together with Lot 109 RP for farming purpose.

12.  It is the defendant’s case that his family had been occupying the Subject Lands together with Lot 109 RP since then.  Various structures were built on Lot 109 RP and the Subject Lands were used for farming to support the living of his family.  Over the years, different kinds of vegetables and fruits were being cultivated on the Subject Lands by the defendant’s family. 

13.  In about 1986, the defendant moved out to live in a public housing unit while his parents continued to reside in Lot 109 RP and to farm on the Subject Lands. The defendant would come back for two to three times a week to help his parents to do the farming work.  In 2008, the defendant’s father passed away.  The defendant and his wife continued to farm on the Subject Lands.

14.  Madam Yiu came to know the defendant in 1986 and they got married in 1991.  She testified that she saw the defendant and his family carried on farming work on the Subject Lands since 1986 and they have continued to occupy the Subject Lands for farming after the defendant’s father passed away.

15.  Mr. Chung testified that he has been living next to the Subject Lands since birth and has known the defendant since primary school days when they were schoolmates.  He said he often visited the defendant over the years and saw the defendant’s family carried out farming work on the Subject Lands for many years. 

16.  In gist, it is the defendant’s position that his father never rented the Subject Lands from anybody.  His father had been occupying the Subject Lands for farming since about 1950 and he carried on occupying the Subject Lands after his father passed away.  The occupation has been continuous and was done without the consent or permission of anybody.

The experts’ evidence

17.  Both parties have instructed land surveyors to conduct surveying on the Subject Lands.  The expert reports are admitted into evidence by consent without calling the experts to testify. 

18.  Expert for the plaintiff, Mr. Leung Chi Yan George (“Mr. Leung”), opines that according to the aerial photographs, the Subject Lands were continuously used for agricultural purposes from 1961 to 1973.  The condition of Lot 105 and Lot 106 RP in 1986 could not be ascertained because the lands were covered by heavy vegetation.  However, Lot 108 RP appeared to be abandoned since 1990 as no agriculture activities was observed.  It is further observed that some site clearance exercises were carried on various parts of the Subject Lands in 2002 and various structures were built on the Subject Lands since 2003.

19.  On the other hand, Mr. Chan Hon Kwan (“Mr. Chan”), expert for the defendant has the following observations.  He observed that the Subject Lands were under cultivation between 1956 and 1982.  For Lot 105 and Lot 106 RP, no sign of cultivation was observed between 1985 and 2000 except vegetation.  In 1989, it was observed that clearing of vegetation had been carried out on Lot 108 RP.  In or around 2000 and 2001, it was observed that clearing of vegetation was carried out on various parts of the Subject Lands.  Finally from 2001 onwards, it was observed that agricultural activities were carried out and structures were erected on the Subject Lands.

Issues

20.  The ultimate issue of course is whether the defendant and his family have been in adverse possession of the Subject Lands for a period of not less than 20 years or alternatively 12 years before this action was commenced.  In this connection, the court has to make the following findings of fact:-

(1) Whether the oral lease between Madam Cheng and the defendant’s father did exist in 1964 to 1976?

(2) Whether the plaintiff did grant an oral licence to the defendant’s parents between 1976 and 1981?

(3) Whether the plaintiff did repossess the Subject Lands since 1981?

(4) If the plaintiff did repossess the Subject Lands after 1981, whether at any point in time the defendant started to adversely possess the Subject Lands or any part thereof after 1981?

The law

21.  The starting point to determine whether a piece of land has been adversely possessed is by looking at the relevant provisions of the Limitation Ordinance.  Section 17 of the Ordinance provides that:-

“17. Subject to the provision 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.”

22.  Section 7(2) of the Ordinance provides for a limitation period of 12 years in an action to recover land.  The transitional provision, section 38A, provides for a limitation period of 20 years in respect of a cause of action which accrued before 1 July 1991.  In the present case, both sections are relevant depending on the finding of facts by the court.

23.  The law concerning adverse possession is well settled.  The leading cases on this topic are Powell v McFarlane (1979) 38 P & CR 452 and Buckinghamshire Country Council v Moran [1990] Ch 623.  These two cases have been affirmed and applied in a Hong Kong case of Wong Tak Yue v Kung Kwok Wai David & Another (No 2) (1997-1998) 1 HKCFAR 55. 

24.  Wong Tak Yue reaffirmed the well established principle that a person claiming to be in adverse possession of a piece of land must show factual possession and the requisite intention to possession.  Intention to possession, or animus possidendi in Latin, means the intention to exclude the world at large, including the owner of the land, so far as is reasonably practicable and so far as the process of the law will allow.  The question of intention to possess is one of fact.  Whether it can be established depends on an assessment of all the circumstances of the case.

Whether the oral lease did exist?

25.  Concerning this issue, after careful consideration, I find the evidence of the plaintiff and Mr. Tsang more convincing than the evidence of the defendant.  At the trial, the plaintiff gave very detailed evidence about his knowledge of the oral lease.  Though he was recounting events that took place many decades ago, he was sincere and forthcoming all along.  He was totally unshaken under very thorough cross-examination.  His evidence is supported by Mr. Tsang who is in fact an independent witness on this issue.  I cannot think of any reason why he should come to court to lie.

26.  On the other hand, the defendant’s knowledge about the existence of an oral lease mainly came from his late father.  He was too young to have any first-hand information as to how his late father came to possess the Subject Lands.  It appears that the defendant’s late father never told the defendant in great details as to how he came to move to the area and how he came to start farming on the Subject Lands.  Therefore what the defendant said in court on this issue is vague and unconvincing.

27.  In the circumstances, on the issue whether there was an oral lease between Madam Cheng and the defendant’s late father, I prefer the evidence of the plaintiff. I find as a matter of fact that Madam Cheng did lease the Subject Lands to the defendant’s late father between 1964 and 1976.

Whether there was an oral licence?

28.  For similar reasons given at paragraphs 25 and 26, on this issue, I also prefer the evidence of the plaintiff.  About the circumstances leading to his granting of the oral licence to the defendant’s parents, the plaintiff gave very detailed evidence and was unshaken under thorough cross-examination.  His evidence is consistent, reasonable and logical. 

29.  On the other hand, the defendant’s case is that he was never told by his parents about the oral licence so he concluded that there was never any oral licence granted to them.  The defendant was born in 1964 so he was above 12 years old when the alleged licence was granted.  I find that it is not inconceivable if the defendant’s parents did not tell a 12-year-old boy about the granting of the licence.  The fact that no one in the family talked about the licence does not prove there was no licence.

30.  Base on the above reasons, on this issue, I also prefer the evidence of the plaintiff. I find as a matter of fact that the plaintiff did grant an oral licence to the parents of the defendant in 1976 and he did orally terminate the licence in 1981.

Whether the plaintiff repossessed the Subject Lands in 1981?

31.  Following my finding that the plaintiff is a credible witness, I believe he did terminate the oral licence with the defendant’s parents.  According to various aerial photos and the opinions of the experts, although cultivation could still be observed in 1982, it seems that cultivation had ceased on various parts of the Subject Lands since mid 1980s.  This observation is generally consistent with the version of the plaintiff.  I find as a matter of fact that the plaintiff did terminate the oral licence with the defendant’s parents and repossess the Subject Lands in 1981.

Did the defendant start to adversely possess the Subject Lands after 1981?

32.  This is the most important issue of all.  Even if I found against the defendant on the previous issues, if the defendant is able to prove that he did start to adversely possess any part of the Subject Lands after 1981, he might still be successful in his counterclaim.

33.  On this issue, the plaintiff’s evidence is that after repossessing the Subject Lands, he did not use the land for any particular purpose and the land was left vacant.  The plaintiff said he visited the Subject Lands twice every year with his family when he went to pay tribute to ancestors.  Every time he only observed natural vegetation covering the Subject Lands and he was certain that no agricultural activities were being carried out on the Subject Lands.

34.  The defendant’s case is that his family never stopped cultivating on the Subject Lands.  From 1950s to 1980s, they were growing vegetables, mainly water crest. However, since early 1980s, there was water shortage problem with the Subject Lands and the family was forced to grow other kinds of crops and fruits.  After 2000s, the defendant mainly grew different kinds of fruit trees on the Subject Lands.

35.  I believe the aerial photos are the best evidence to resolve this issue, in particular the enlarged photos used by Mr. Chan, the defendant’s expert. According to aerial photo No.43093 taken in 1982, it is obvious that cultivation was still ongoing on all three portions of the Subject Lands.  The next aerial photo No 67245 taken in 1985, though it is less obvious for Lot 105 and Lot 106 RP,  it is very clear that the cultivation was still carried out in the middle part of Lot 108 RP.  This observation directly contradicts what the plaintiff observed.  The aerial photos taken in the years of 1988 and 1989 seem to show that at least there were human activities on Lot 108 RP.  The situations in the 1990s are less clear as the aerial photos can only show heavy vegetation covering the Subject Lands.  However, various human activities such as clearing of land were observed in the aerial photos taken in the years of 2001 and onward.

36.  The aerial photos do not lie or make mistake.  Therefore, although I accepted that the plaintiff had terminated the oral licence and thought that he had repossessed the Subject Lands, in fact the defendant and his family continued to cultivate on the Subject Lands throughout the 1980s. It does not necessarily mean that the plaintiff was not telling the truth.  The plaintiff’s evidence is clear.  He only visited the Subject Lands briefly twice a year.  The Subject Lands are of considerable size.  There is every possibility that the plaintiff might mistakenly think that the Subject Lands were vacant but in fact the defendant’s family continued to cultivate on them.

37.  The situation of the Subject Lands in the 1990s was less than clear according to the aerial photos.  However, if one accepts that the defendant and his family continued to possess the Subject Lands after the plaintiff terminated the oral licence and the aerial photos clearly show that there were human activities after 2001, then the possibility that the defendant had been possessing the Subject Lands between these two period of time throughout the 1990s becomes a real possibility.

38.  The defendant gave evidence that various kinds of fruit trees were planted on the Subject Lands in the 1990s.  The aerial photos cannot rule out the possibility that the heavy vegetation shown in the photos taken in the 1990s were in fact fruit trees.  Therefore, the defendant’s version is at least possible.

39.  Putting all of the above analysis together, I find that the defendant’s version about his family being in possession of the Subject Lands since 1982 to be more probable than the plaintiff’s version about the Subject Lands being left vacant since 1981.  The aerial photos show there were human activities on the Subject Lands throughout the years when the plaintiff believed the land was left vacant.  The plaintiff may be telling the truth according to his knowledge.  He might genuinely think the Subject Lands were left vacant, but unknown to him, the defendant’s family carried on using the Subject Lands.  It is the only logical explanation to explain why human activities were found on the Subject Lands in mid 1980s when the Subject Lands were supposed to be vacant.

Conclusion

40.  Base on the above analysis, I find on balance that the defendant and his family have been in adverse possession of the Subject Lands since 1981 after the oral licence was terminated by the plaintiff.  By virtue of section 38A of the Ordinance, the title of the plaintiff to the Subject Lands had already extinguished after 2001.

41.  Therefore, I would dismiss the plaintiff’s claim and enter judgment for counterclaim in favour of the defendant against the plaintiff:-

(1) A declaration that the rights of the plaintiff and/or that of his predecessor in title to recover the Subject Lands have become statue-barred and that their titles to the Subject Lands have been extinguished by virtue of section 17 of the Limitation Ordinance; and

(2) A declaration that the defendant was and is in adverse possession of the Subject Lands and has thus acquired a possessory title thereto.

42.  Costs should follow the event.  I make order nisi that the plaintiff do pay the defendant’s costs of this action, with certificate for counsel, to be taxed if not agreed.  This costs order nisi shall become absolute unless application is made with 14 days of this judgment to vary.

43.  Lastly, I thank counsel for their helpful assistance.