ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN

DCCJ1154/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1154 OF 2010

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is a case of adverse possession.  The plaintiff has since 24 November 1978 been the registered owner of a piece of land in Lantau Island known as the Remaining Portion of Lot 552 in Demarcation District No 3, Mui Wo (“the Land”) Lantau Island, Hong Kong. For identification purpose, the defendant’s surveyor has divided the Land into four parts which he calls Sites A, B, C and D respectively.  Sites B (1157 sq m) and C (331.6 sq m) are adjacent and are respectively the middle and southern parts of the Land.  In the southeastern end of Site B where it abuts Site C, there stands a squatter house (“the Squatter House”) where the defendant’s family previously resided.  A plan of the Land is annexed to this judgment for ease of reference.

2.  By the present action, the plaintiff seeks (i) an order for possession of that portion of Site B on which the Squatter House stands (“the Portion”) and (ii) damages for trespass.  On the other hand, the defendant asserts that his family have since 1950s been in successive exclusive possession of the Land.  The defendant therefore counterclaims by seeking a declaration that he was and is in adverse possession of Sites B and C and has the possessory title thereto.  The defendant also seeks a declaration that the title of the plaintiff or its predecessor in title to Sites B and C has been extinguished and that the plaintiff does not have any title thereto.  As regards Sites A and D, the defendant makes no claims and therefore they are not relevant for the present purpose. 

THE ISSUES

3.  Since the defendant alleges that the plaintiff and its predecessor in title had been dispossessed of Site B and Site C before 1 July 1991, the parties agree that the relevant limitation period applicable to the present case is one of 20 years: see s 38A, the Limitation Ordinance, Cap 347. 

4.  In the Agreed Statement of Issues, the parties put the issues as follows:-

(1) Whether the defendant’s occupation of the site of the Squatter House or any parts thereof amounts to a trespass by the defendant (subject to the defendant’s defence of adverse possession as pleaded in the Defence and Counterclaim)?

(2) Whether the defendant has been in adverse possession (ie factual possession coupled with the requisite intention to possess (animus possidendi)) of Site B of the Land (as defined in the Defence and Counterclaim) or any parts(s) thereof for a period of not less than 20 years before the issuance of the writ herein?

(3) Whether the defendant has been in adverse possession (ie factual possession coupled with the requisite intention to possess (animus possidendi)) of Site C of the Land (as defined in the Defence and Counterclaim) or any parts(s) thereof for a period of not less than 20 years before the issuance of the writ herein?

(4) If the plaintiff succeeds on issue (1), what remedies should be granted to the plaintiff including whether the plaintiff is entitled to claim any damages against the defendant; and if so, how much?

(5) If the defendant succeeds on issue(s) (2) and/or (3), what remedies should be granted to the defendant including whether the defendant is entitled to claim the declarations as sought in the Counterclaim?

5.  However, I note that:-

(a) As regards (1) above, since it is admitted that the plaintiff is the registered owner of the Land and the defendant’s occupation of the Land has been without the consent of the plaintiff or its predecessor in title, there can be no dispute that the defendant’s occupation of Site B and Site C in general and the Portion in particular, subject to the defendant’s assertion of adverse possession, amounts to a trespass.  In fact, it is on this basis that the trial was conducted.

(b) As regards (4) above, Mr Shum, counsel for the plaintiff, has helpfully informed that the plaintiff is only seeking a nominal sum, namely $100.  

(c) As regards (5) above, apart from the declarations sought, Mr Lam, counsel for the defendant, does not suggest that there are any other remedies available to the defendant.

6.  Therefore, the live issues in this trial are within the narrow compass of whether the defendant has been in adverse possession of any of Site B and Site C for a continuous period of not less than 20 years.  The burden is on the defendant to prove his case Wong Tak Yue v Kung Kwok Wai & Anor (No 2) (1997-98) 1 HKCFAR 55, 70E, as per Litton PJ.  For the purpose of establishing his claim, the defendant relies not only on his own possession but also that of his deceased parents.  On the other hand, the plaintiff’s case, which Mr Shum submits is supported by the aerial photographs and the expert evidence, is that there had been lengthy breaks in the defendant’s occupation so that he has not been in adverse possession of any part of the subject land continuously for 20 years.

THE RELEVANT LEGAL PRINCIPLES

7.  The Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire (2007) 10 HKCFAR 588 adopted the principles set out in Powell v McFarlane (1979) 38 P&CR 452 on adverse possession  as follows:-

“……

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. …. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances …. 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 area must, however, be a matter of degree …. is that the alleged 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.

(4) …. the animus possidendi 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 processes of the law will allow.

…

The position, however, is quite different from a case where the question is whether a trespasser has acquired possession.  In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world.  If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.  (pp470-472)”

The above dictum has recently been followed by the Court of Appeal in Lee Theatre Realty Limited v Tong Wah Jor & Ors, CACV 279/2009 (unreported)

8.  In J A Pye (Oxfored) Ltd v Graham & Anor [2003] 1 AC 419, the House of Lords discussed the nature of animus possidendiwhich a squatter in possession must demonstrate.  Lord Browne-Wilkinson said:-

“35. …. Paragraph 8(1) in Schedule 1 to the 1980 Act defines what is meant by adverse possession in that paragraph as being the case where land is in the possession of someone in whose favour time ‘can run’. It is directed not to the nature of the possession but to the capacity of the squatter. ….

36. Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner.  It is said that he has to ‘oust’ the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; …. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts.  The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”

Lord Hope of Craighead said:-

“71. The nature of the intention that has to be demonstrated to establish possession was controversial, particularly among jurists in Germany …. But it is reasonably clear that the animus which is required is the intent to exercise exclusive control over the thing for oneself …. The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor. The word ‘adverse’ in the context of section 15(1) of the Limitation Act 1980 does not carry this implication. The only intention which has to be demonstrated is an intention to occupy and use the land as one's own. …. So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough.”

Lord Hutton reached a similar conclusion by saying:-

“76. I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”

9.  In Wong Tak Yue v Kung Kwok Wai & Anor (No 2), supra, Li CJ, giving the judgment of the Court of Final Appeal, said (at p 69A) that 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.

THE EVIDENCE

Plaintiff’s witnesses

10.  The plaintiff called three witnesses to testify at the trial, namely:-

(1) Chan Kin Kwong (PW1), Assistant Management of the Valuation Department, Knight Frank Petty Limited, who visited the Land on 19 December 2005;

(2) John Henry Barrett (PW2), Authorized Land Surveyor, who conducted two visits to the Land in December 2007 and in December 2009; and

(3) Kwok Chi Hung (PW3), Property Manager of the plaintiff, who visited the Land thrice respectively on 12  January 2008, on or about 29 February 2008 and on or about 8 April 2008. 

11.  It is apparent from their evidence that the plaintiff did not know until 2005 at the earliest that the Land had been occupied by others.  The combined effect of their evidenceis that in 2005 when PW1 visited the Land neither Site B nor Site C was enclosed, although the rear (north) side of the Squatter House, which was a single storey structure erected next to a footpath between the two sites, was fenced up by some rough fence.  At the time, the Squatter House showed no sign of being inhabited.  There was no real obstacle or difficulties for anyone to enter Site B and Site C or to walk through the whole open land which was barren with the presence only of the Squatter House and scattered fruit trees which did not seem to have been taken care of.  When PW2 first visited the Land in 2007, the fruit trees still appeared to have been abandoned.  The Squatter House, however, showed signs of recent renovation or reconstruction.  It was in 2009 when PW2 visited the Land again that the trees appeared to have been trimmed.  Before that, in February 2008 PW3 caused a notice to be posted at the Squatter House saying that it was private property.  A few days later, PW3 received a phone call from a Mr Chow (DW4) who made inquiries with him.  None of PW1, PW2 and PW3 had been stopped by anyone during their visits to the Land and they had not met anyone either. 

Defence witnesses

12.  The defendant gave evidence and he also called the following witnesses to give evidence for him:-

(1) Kwok Tai Cheung (郭帝祥) (DW2), the defendant’s first elder brother;

(2) Kwok Tai Yat (郭帝日) (DW3), the defendant’s second elder brother;

(3) Chow King Wah (周景華) (DW4), the defendant’s half younger half brother; and

(4) Yuen Kin Fai (袁見輝) (DW5), the defendant’s childhood friend and neighbour. 

13.  DW2 came to Hong Kong in 1954 at the age of 7 with his maternal grandmother to reunite with his parents.  At the time, the household of four lived in what is now called the Ruined House shown in the Plan in Site B which was in the northwest of the Squatter House.  In 1959, DW2 graduated from primary school and he moved out of Mui Wo to Hong Kong Island to work.  His witness statement, which he adopted as his evidence-in-chief, is very brief and does not give much information about the condition of the Land back in the 1950s.

14.  DW3 was born in Hong Kong in 1955.  He said that in 1959 his eldest brother DW2 moved out of the family to work on Hong Kong Island.  In 1961, his father passed away, leaving behind the maternal grandmother, his mother, himself and the defendant living on the Land.  The family continued to cultivate the Land by planting fruit trees and vegetables. In 1962, the Ruined House was damaged by Typhoon Wanda.  After that, the family turned the Squatter House, which had previously been used as a store, into a residence and moved in there.  In 1963, his mother remarried and moved out to live in Tai Tei Tong Village.  The maternal grandmother, DW3 and the defendant continued to live in the Squatter House.  In 1972, the maternal grandmother returned to Zhongshan, the Mainland.  In 1973, DW3 also moved out to Kowloon to work and he only returned to the Squatter House on holidays.  Therefore, from 1973 onwards there was only the defendant who lived in the Squatter House.  DW3 admitted that his memory of the event before 1962 was very vague and that he had never farmed as a work and only farmed at leisure. 

15.  The defendant was born in 1958. He was the major witness for the defence.  Naturally, he could only give hearsay evidence as to what had happened before he was born and when he was very young.  In gist, his evidence consists of the following:-

(a) His mother remarried in 1963 to a Mr Chow who was also a farmer when she was about 35.  Their home in Tai Tei Tong Village was close to the Squatter House.  There are two children born out of that wedlock, one is DW4’s elder sister who was born in 1963 and the other is DW4 who was born in 1966.

(b) When asked whether his maternal grandmother had farmed before 1958, he said that he had not seen her farming.  The defendant was unable to give the exact age of his maternal mother when she returned to Zhongshan in 1972 but said that she was about 70 to 80 years old then.

(c) As aforesaid, between 1973 and 1978, he lived in the Squatter House alone.  The defendant said that his mother had not been in good health since 1973.  Since then, the defendant’s mother gradually reduced planting of vegetables and melons which was more labour intensive.  Instead, she continued to grow fruit trees and she would take the fruits to Mui Wo for sale.  In 1978, the defendant moved to his mother’s home in Tai Tei Tong Village to live with her.  The mother died in the following year in 1979.  In 1981, his step-father returned to the Mainland to visit relatives and subsequently died on the Mainland. 

(d) He graduated from primary school in 1971.  After that he received secondary education at a school on Caine Road and for that purpose he had to travel from Mui Wo to Central every day.  After his graduation from secondary school in 1977, he had worked as a construction site worker in Mui Wo for a short spell and then as a salesperson in Central for about a year before he became employed by Hong Kong Telephone (later became PCCW) in 1978, an employment which he keeps up to the present.

(e) Between 1981 and 1984, he let his friend Tai Kwai Keung (戴貴強) and Tai’s family live in part of the Squatter House.  Tai’s family carried out some farming in the northwest of the Squatter House for self-consumption.

(f) He got married in 1988 and his wife became a full time housewife after that.  His wife was not familiar with farming.  Their first son was born in 1989 followed by their second son in 1991.  Between 1994 and 1996, the wife had moved out of Tai Tei Tong Village to live in town for the sons’ education.  They returned to live with him in 1996.

(g) His wife also liked farming and therefore they planted more fruit trees in Site B and Site C.  He said that he and his wife had to get water from a small water pond at the west north boundary of Site B to water the fruit trees before the installation of a water tap in 1998.

(h) He said that only young trees required watering daily and those full-grown trees required watering when needed in dry seasons only.

16.  DW4 adopted his witness statement as his evidence-in-chief.  He said in his statement that his mother had planted many fruit trees and vegetables on the Land and therefore they used to pick up fruits from there for food.  However, his witness statement is brief as to this aspect of the case and no details have been given.  He agreed that he had made a phone to PW3 for inquiry in relation to the notice at the request of the defendant. 

17.  DW5 adopted his witness statement as his evidence-in-chief.  In brief, he said that he had seen DW3 and the defendant planting on the Land at the time when both of them were living there.  His witness statement is also brief and devoid of details.

The experts

18.  The plaintiff and the defendant have each engaged a surveyor to give expert evidence on their behalf and joint expert statements also have been prepared. 

19.  Although the defendant is unable to give clear evidence about the geographical boundaries of the Land, the areas of Site B and Site C are relatively well-defined.  In particular, I note that:-

(a) the eastern boundary of Site B and Site C is marked by a straight footpath; and

(b) the western side of Site B is marked by a row of trees.  Furthermore, Mr Wong, the defendant’s expert witness, explained in court that based on his inspection of the Land, the western side of both Site B and Site C is higher than the adjoining land by about 0.6m to 1.5m. 

20.  The two experts, Mr Leung for the plaintiff and Mr Wong for the defendant, based their evidence primarily on their observations made of the aerial photographs obtained from the Lands Department, although they have also studied the survey sheet of the Lands Department as supplementary evidence to the aerial photographs.  The Court has been provided with the aerial photographs of the Land for 1945, 1956, 1962 to 1963, 1968, 1973 to 1974, 1982, 1984, 1986, 1991 to 1994, 1996, 1998, 2001 to 2002, 2004, 2006 and 2009 to 2010.  It is worthy to note that the Lands Department does not have any aerial photographs of the Land for the period between 1969 and 1972.  The significance of this “missing link” will be seen in due course.

21.  The two experts agree on most of the issues in their joint expert statement.  Mr Shum has helpfully summarized what is said by the experts in their joint statement in the following table which I gratefully adopt:-

Year	Site B	Site C
1945	There were no cultivation activities. Only trees and shrubs were observed and there were no building structures.	There were no cultivation activities. Only trees and shrubs were observed.
1956	Farming patterns and cultivation activities took place. A group of building structures appeared at the northern portion which is believed to be subsequent Ruined House later. Small huts were also found in the southeast end which is believed to be the Squatter House later.	Some farming patterns and cultivation activities were seen. A small hut was found which is believed to be the pig shed.
1962	Farming patterns and cultivation activities were observed and a ruin was found at the northern portion. A Squatter House was found at the southeastern end.	Farming patterns and cultivation activities were seen. Cannot confirm existence of the small hut.
1963 and 1968	Farming patterns and cultivation activities were seen. A ruin was found at the northern portion. A Squatter House was found at the southern end.	Farming patterns and cultivation activities were seen. A small hut; which was believed as the pig shed was found at the western corner.
1973	Cultivation activities ceased and weeds covered the site. A network of footpath was vaguely seen. Squatter House remained unchanged.	The plaintiff’s expert opined that farming patterns have become less prominent and cultivation might have ceased. The defendant’s expert agreed that farming patterns were less prominent but cannot conclude cultivation was ceased.
1974	The network of footpaths become more apparent and other villagers might use this footpath to access other farming lands at the west from the main footpath located between Site A and Site B. No fences were observed.	The plaintiff’s expert opined that farming patterns were barely visible and cultivation might have ceased.  Farmlands were less attended. The defendant’s expert agreed that farming pattern barely visible but cannot conclude it has ceased.
1982	Ruined House covered by trees and weeds while the Squatter House remained unchanged. A farmland was observed at the northwest of Squatter House. Cultivation activities were resumed but was reduced by half. The area alongside the footpath was covered with dense trees; which it was believed that the footpath was opened up by the villagers to access the farmlands in the west.	Same as 1974
1984	Farmlands fully restored and cultivation activities area has increased northwards. Footpath seemed to be existing but it was obscured by trees.	Same as 1982
1986 and 1991	Weed covered the whole site and the Squatter House remained unchanged. The plaintiff’s expert opined that cultivation has ceased. The defendant’s expert opined that farming has ceased and cultivation has not ceased.	Same as 1984
1992 and 1993	Some weeds grown over the roof of the Squatter House and also surrounded by weeds and shrubs. Footpath became a prominent feature and no fences were observed.  The plaintiff’s expert opined that it was not well maintained but the defendant’s expert cannot come to the same conclusion that it was not well maintained.	Same as 1986
1994	Situation was the same as the above except the footpath appeared as a faint line suggesting that it has not been frequently used. Weeds on the roof top have disappeared.	Same as 1986
1996	Portion of land located at the northwest of the Squatter House was cleared. Footpath was fully grown with trees and shrubs which it is believed that it was no longer been used.	Same as 1994
1998, 2001, 2002 and 2004	Most of the weeds had disappeared and small trees were found at the western portion. Farming patterns were observed at the northwest of the Squatter House.	Same as 1996
2006 and 2009	Roof of the Squatter House was changed from a darker colour to a lighter colour. Farmland is seen but seemed to have been less attended. Small trees at the western portion have grown denser.	Same as 2004
2010	Fully covered by tall trees an cultivation activities no longer seen.	Same as 2009

THE APPROACH TO THE EVIDENCE

22.  The main issue in this case is whether the defendant and his family had at any stage been in continuous physical possession of Site B and Site C in general and the Portion in particular for a period of 20 years with the requisite animus possidendi.  The major evidence for the defence in this regard comes from the defendant. Bearing in mind that the burden of proof rests on the defence, I remind myself that I should be careful in considering the defendant’s evidence when it is not supported by objective independent evidence.  This is not to say that the evidence of a squatter can never be accepted without supporting evidence.  This is simply to recognize the naivety of accepting at face value what one says was his own intention many years before when he is giving evidence in a contested trial with his interest at stake.  There is also another reason to view the evidence of the defendant with a healthy dose of scepticism in that the defendant is (at least in part) relying on the alleged adverse possession by his deceased parents when he is not able to give direct, non-hearsay evidence of their intention.  Compared with Wong Tak Yue v Kung Kwok Wai & Anor (No 2), supra, at p 69A-C. 

23.  As to the evidence of DW2 to DW5, I note that their evidence can only provide indirect, peripheral support to the defence case on the main issue.  In the case of DW2, he had left home since 1959.  In the case of DW3, he also moved out in 1973 and, like the defendant, is unable to give direct, non-hearsay evidence of the intention of his parents.  As regards DW4, he was born in 1966 and was still of a very young age in early 1970s.  As regards DW5, he did not live on the Land and his evidence was briefed and devoid of details as to what was being done on the Land during the material period of time.  Therefore, I too will consider their evidence carefully when deciding what weight, if any, should be placed on their evidence, especially when their evidence is not supported by objective independent evidence.

24.  The defendant produced certain family photographs showing that the family had lived on the Land.  That much is not in dispute.  However, I do not consider that the photographs take the defence case of adverse possession very far.  The defendant also produced a letter from the Lands Department which shows that he was the registered resident of the Squatter House.  However, I agree with Mr Shum that being a squatter resident in the context of Government registration is not the same as a squatter in the context of adverse possession: see Lin Jian Chun v Lin Xiumei, DCCJ 2491/2008. 

25.  In my judgment, the objective independent evidence in the present case comes from the two experts and the aerial photographs, supplemented to a limited extent by the survey sheet.  In case what an expert says in his own report is inconsistent with he later says in the joint expert statements, I will place more weight on the latter and not the former, especially in relation to those areas where the experts have subsequently expressed agreement in the joint statements.  

WHEN THE TIME STARTED TO RUN

26.  Having considered all the relevant evidence as a whole, I accept the evidence of DW2 that when he came to Hong Kong to reunite with his parents, his parents had already been living and farming on the Land.  I note that DW2 was aged 7 at the time.  DW2 remembered the year of his coming to Hong Kong to be 1954.  His recollection of the year was assisted by the fact that he graduated from primary school in 1959.  His evidence in this regard is also supported by the aerial photograph taken in 1956 and the expert evidence that there had already been farming patterns and cultivation activities in both Site B and Site C then and the presence of building structures on both sites.  From what can be seen in the aerial photographs taken between 1956 and 1963, the farming patterns and cultivation activities in both Site B and Site C were clear and extensive and they covered almost the whole of the two sites in question.  Presumably, the farming patterns, cultivation activities and the building structures must have already been in existence prior to 1956.  From these, a reasonable inference can be drawn, which I do, that the defendant parents occupied and used the Land as their own and that they had the intention to possess it to the exclusion of the world.  In fact, the Land, including Site B and Site C, was then their home and their livelihood depended on it. 

27.  Therefore, I find that the defendant’s parents had been in adverse possession of the Land, including Site B and Site C, starting from 1954 when the limitation period started to run against the plaintiff and his predecessor in title.  Of course, only Site B and Site C are relevant for the present purpose.   

THE PLAINTIFF’S CLAIM

28.  It would be more convenient to deal first with the plaintiff’s claim which is restricted to the Portion.  The evidence of DW3 and the defendant is that the structure which was later converted into the Squatter House had previously been used by the family as a store.  It was after the destruction of the Ruined House by Typhoon Wanda that the family converted the store into a residence.  They said that that happened in 1962. They also said that DW3 and the defendant lived in the Squatter House until 1973 and after that the defendant continued to live there until 1978.  What DW3 and the defendant said about their occupation of the Squatter House is supported by the joint expert statement:-

(a) in 1956, at the southeastern end of Site B were a few small huts which seemed to fit the location of the Squatter House in later years; and

(b) in 1962, a Squatter House was first observed at the southeastern end of Site B.  

29.  Based on the above and in the absence of any contrary evidence, I find that the defendant’s parents had occupied and used the Portion in or prior to 1956; otherwise they would not have built the small huts there.  I also accept the defence evidence that the store was later converted into a residence in 1962 and was used as such up to at least 1978. Therefore, I find that the defendant’s parents and the defendant had been in successive and continuous possession of the Portion for more than 20 years.  I also draw the inference from all the circumstances that the defendant’s parents and the defendant had the requisite intention to possess the Portion to the exclusion of other people.  This is based on the extensive farming patterns then existing and the finding that the Portion had first been used as a store by the family prior to 1962 and then as the family home from 1962 through to 1978.

30.  As such, the title of the plaintiff’s predecessor in title and hence that of the plaintiff, as far as the Portion is concerned, would have been extinguished as early as 1974 (which was 20 years after 1954 when the defendant’s parents came in adverse possession) or 1976 at the latest (which was 20 years after 1956 when the small huts were first shown in the aerial photographs).   

31.  For the purpose of dealing with the plaintiff’s claim, I do not need to consider whether the defendant had abandoned the Portion after his moving out of the Squatter House to live in his mother’s home in 1978.  This is because at the commencement of the trial Mr Shum confirmed that he had instruction not to argue that the title of the lawful owner, once extinguished by adverse possession, could “resurrect” after the abandonment of the subject land by the squatter.  

32.  Therefore, the plaintiff’s claim against the defendant must fail.

D’S COUNTERCLAIM – SITE B

33.  I now turn to the defendant’s counterclaim concerning Site B.  In the following discussion, I will restrict myself to the part of Site B not including the Portion.  In my view, the situation of the Portion is different from the other part of the site and I will deal with it in a separate section later in this judgment. 

Ceasing of farming activities between 1973 and 1982

34.  Given my finding that the defendant’s family had been in adverse possession of the Land commencing in 1954, I only need to consider whether the defendant’s family or the defendant himself had subsequently abandoned Site B, an issue raised by the plaintiff: see Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078.  Whether a squatter had abandoned his possession is a question of fact to be decided in each case.  That question is not conclusively answered by showing that the squatter may for a short period of time have ceased to be in actual physical occupation of the land.  Moreover, mere non-user of the land for a time is not conclusive evidence of abandonment of possession: see Nicholas v Andrew (1920) 20 SR (NSW) 178, 184.  I remind myself that the burden of proof rests not on the plaintiff but on the defendant.  Although the civil standard of proof is applicable, there is clear authority that the defendant is required to provide “clear and affirmative evidence that he, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world”: see Powell v McFarlane, supra, at p 472. 

35.  I begin with the expert evidence by noting the following:-

(a) In 1973, as can be seen from the aerial photograph, weeds covered all of Site B.  The experts agreed that the cultivation activities on it had ceased.  The condition remained basically the same until 1982 when a small patch of farmland was observed at the northwest of the Squatter House.  However, the size of the cultivation area was largely reduced. 

(b) The experts also agreed that a network of footpaths, which could be seen only vaguely in 1973, became more apparent in 1974.  I note that the network of footpaths cut across Site B from north to south and also from east to west.  The experts said that the footpath running from east to west enabled other villagers to access other farming lands at the west from the main footpath which was located between Site A and Site B.  In 1982, the network of footpaths reduced back to one path running from east to west.  The area alongside the footpath was covered with dense trees.  I note that the footpath ran across Site B in the middle.  The experts believed that the footpath was opened up by the villagers to access the farmlands in the west.  In 1984, the footpath was further obscured by trees, but seemed to be existing as before.

36.  As mentioned above, there are no aerial photographs taken of the Land between 1969 and 1972.  As a result, there is no direct evidence as to the condition of the Land during that period. However, the change between 1968 and 1973 was significant.  Whilst two patches of farmland could still be seen in Site B to the north and northwest of the Squatter House in the aerial photograph taken in 1968, the experts said that Site B was all covered by weeds in 1973.  The change could not have occurred overnight. 

37.  The agreed expert evidence about the change in Site B tallies with the changes in the defendant’s family:-

(a) The defendant’s father died in 1961 and the mother remarried and moved out in 1963, leaving the maternal grandmother, DW3 and the defendant living in the Squatter House. 

(b) I found that it is inherently improbable that the defendant’s mother could have spent much time on the Land after her re-marriage.  Mr Chow, her new husband, was also a farmer and one would expect her to assist Mr Chow in his own farming.  Moreover, she gave birth to a daughter in 1963 and then a son in 1966 and therefore she would have to spend considerable time nurturing the new born babies.  She had been in bad health in 1973 and she died in 1979.  On the other hand, it is unlikely that Mr Chow could spend much time farming the Land as well as doing his own, especially during the time when the defendant’s mother was sick.

(c) The maternal grandma who returned to Zhongshan in 1973 was of advanced age and there was little evidence that she had taken part in any farming prior to her departure.  DW2 had already moved out and lived apart.  Both DW3 and the defendant were of very young age when their mother re-married and they also had to attend school. 

(d) Only the defendant lived in the Squatter House between 1973 and 1978.  Since 1971, he had to travel to Hong Kong Island everyday during school term for his secondary education.  After his graduation in 1977, he was engaged full time employment.  He moved out of the Squatter House in 1978.

(e) The emergency of the network of footpaths in 1973 shows that other villagers had since been crossing Site B to reach their own farmlands in the west.

38.  Based on the above, I draw the interference that farming activities in Site B had gradually reduced since 1963 and ceased altogether sometime before 1973. 

Emergence of footpaths between 1973 and 1982

39.  Mr Shum relied on the expert evidence about the emergency of the network of footpaths to show that the defendant did not have the exclusion possession of Site B and/or the intention to exclude others from the land. 

40.  In this regard, I have considered the two cases authorities relied upon by Mr Lam, namely J Alston & Sons Ltd v BOCM Pauls Ltd [2009] 1 EGLR 93 and Chambers v Havering London Borough Council [2012] 1 P & CR 17 373, which stands for the proposition that the walking over of the subject land by other people is not necessarily inconsistent with the squatter’s possession of the land. 

41.  With respect, I do not understand the two cases to mean that the use of the subject land by other people, either as a means of access or otherwise, can never be relevant either to the issue of physical possession or to the intention to exclude others.  In my judgment, the relevancy or otherwise of other people passing through the subject land is a case specific question to be considered in particular circumstances of each case. Also, in Lee Theatre Realty Limited v Tong Wah Jor, supra, Cheung JA, giving the judgment of the Court of Appeal, has this to say, at para 28 of the judgment:-

“In the present case if pedestrians could use and actually used the Land for access throughout the day, then this is certainly material upon which the Judge could find that the defendants had not exclusive possession to the while area that they had claimed adverse possession. The judge also did not say that the right of way in the Land would preclude adverse possession.”

42.  In the present case, I draw the inference that villagers and other people had not been excluded from accessing and passing through Site B since sometime before 1973.  My reasons are as follows:-

(a) A footpath running through the middle of Site B from east to west was first observed from the aerial photograph taken in 1963.  Mr Wong initially said that it was more likely to be a field bund. However, on cross-examination Mr Wong agreed with Mr Leung that it was a footpath.  Then, both experts agreed that there was a network of footpaths observed in 1973 which became more apparent in 1974.  The network was later reduced into one footpath in 1982 (running from east to west).  That footpath could still be seen in 1984.  

(b) The defendant seemed to have suggested in his evidence that the footpaths were the result of the usage by and the work of himself and his family.  This, I reject.  The defendant was the only person living on Site B between 1973 and 1978.  During that period he was engaged first as a full time student and then as a full time employee.  He eventually moved out of Site B since 1978. 

(c) The defendant admitted that he would not know if villagers walked through the footpaths.  He also said that he would not stop them. 

(d) I accept the agreed evidence of the experts.  I find that it is more likely than not that the footpaths were routes taken by villagers and that they were opened up by villagers to access the farmland in the west of Site B. 

43.  Based on the above, I agree with the submission of Mr Shum that the emergence of the footpaths show that villagers had treated them as public pathways and this, in turn, is an important piece of evidence relevant to the issue of the “exclusiveness” of the alleged possession and animus possidendi on the part of the defendant and/or his mother during the relevant period. 

Planting of trees by D’s mother

44.  The defendant relies on his and his parents’ cultivation of fruit trees as evidence of their adverse possession.  There were 93 trees in Site B and 23 in Site C.  According to Mr Wong, about 20 of those trees grew alongside the west-northern boundary of the site at regular intervals and they seemed to have been planted by people.  As regards the other trees, no discernable pattern was observed.  It is not entirely clear as to who planted the boundary trees and when that happened. The defendant said when his father was using Site B and Site C, the fruit trees were already there.  As the boundary trees can be seen in the aerial photos taken in 1960s, I draw the inference that they were planted by the defendant’s parents.  However, I note that Mr Wong was unable to tell what the boundary trees were and in what way they needed to be attended to. 

45.  As regards planting of trees, I agree with what was said by Deputy High Court Judge Mimmie Chan (as her ladyship then was) in Wai Wah Traders Limited v Wong Yim trading as Creative Advertising Design Company & Ors, HCMP 965/2000, as follows:-

“51.   I do not accept that the mere picking of lychee fruit from trees on the Land, or the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, can constitute continuous and exclusive possession or control of the Land.  It is mere trespass, at most persistent trespass, and unauthorized destruction and appropriation of property.

52.   The present case is distinguishable from Cadija Unna v. S Don Maris Appa [1939] AC 136 which is relied upon by Counsel for San Fat and Mr. Cheng. In Cadija Unna, the cutting and selling of grass from land in Ceylon which was to a great extent swampy and on which lotus and wild grass grew was held to be an act of possession, in circumstances where the grass was the only, or at least the main advantage accruing from the land.  Land in Hong Kong is and was always been valuable, and even in the 1960s until the 1980s, it cannot be said that cutting branches and shoots, and picking lychees from the trees was the only or main advantage accruing from the Land.

53.   As for any cultivation on the Land as the Leung family claim, in the nature of planting trees, clearing dead trees, weeding or fertilizing the trees or the Land, on the facts of this case, I consider that there should at the same time be some other act on the part of the Leungs of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.  As Slade J put it succinctly in the passage of his judgment in Powell v. McFarlane quoted in paragraph 6 above, "what must be shown as constituting factual possession is that the alleged 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 (my emphasis)."  Following on from that, it has been said that on the question of physical possession, there must be open, single and effective exclusive control by the squatter.

54.   I am not satisfied that the acts of the Leung family in their tending the Land from 1965 to 1982 or 1984, constitute open, single and effective exclusive control of the Land.”

Thus, in an unfenced field, the planting of trees, the gathering of branches and the harvesting of fruits alone may not be a sufficient act of possession. This is not to say that planting of trees on the subject land can never amount to physical possession of the land or a manifestation of the intention to exclude others. Its relevancy and weight depends on the particular circumstances of each case. See Chow Tin Sang also known as Chau Tin Sang as manager of Chau Fuk Tso v Citihero International Limited, CACV 121/2012, at para 33 of the judgment.

46.  In the present case, the defendant said that in or around 1973 or 1974, after his mother got ill, she reduced the planting of vegetables and melons.  Instead, she planted fruits in Site B and Site C and she would take the fruits to Mui Wo to sell.  However, in my assessment the defendant’s evidence is deficient in the following aspects:-

(a) it is entirely unclear as to how many fruit trees had already been in existence before 1973, how many were planted and tended by the defendant’s mother in or after 1973, how many were planted and tended by the defendant and his wife subsequently and how many were grew naturally; 

(b) Site B and Site C together occupied a total area of about 1,500 sq m and there were a total of 116 trees at the time when Mr Wong prepared his expert report in July 2010.  It is unclear how the defendant’s mother had obtained water for the fruit trees back in 1973.  The defendant’s evidence suggest that before 1998 when a water tap was installed, water had to be obtained from a small water pond at west north boundary of Site B.  However, that small water pond cannot be seen from the relevant aerial photograph; and 

(c) it is entirely unclear as to how much and what type of work, if any, the defendant’s mother had carried out during the period between 1973 and 1979 (when she died) in terms of planting and tending the fruit trees. 

47.  I accept that the defendant and his mother might have on occasions after 1973 picked some fruits from the trees which had been in existence on the sites.  However, in view of the unsatisfactory state of the evidence as aforesaid, and given that the defendant’s mother had not been in good health since 1973, I am not satisfied that the defendant and/or his mother had carried out any systematic and regular planting or tending of fruit trees in or after 1973 which may be evidence of their physical possession of the land.  Furthermore, in my assessment the acts, if any, of the defendant and his mother in relation to the trees are open to more than one interpretation and they had not made it perfectly plain to the world at large by their actions or words, if any, that they had intended to exclude the others as best they could.  I find that there is not sufficient evidence that they had the requisite animus possidendi.  

Conclusion – the period between 1973 and 1982

48.  Having considered all the evidence as a whole, I make the following findings of fact:-

(a) any limited activities which might have been carried out by the defendant and his mother during the period between 1973 and 1982 were not sufficient to amount to an open, single and effective exclusive control of Site B (not including the Portion);

(b) it is unlikely that the defendant, who in 1973 was a teenage student living alone, had the intention to possess the land wholly as his own property: see Powell v McFarlane, supra, at p 478, applied in Wong Ka Fai v Wong Tin Choi, DCCJ 1607/2011, at paragraphs 22 to 25; and

(c) since 1973, there had been a long period of voluntary abandonment of the use and control of the land by the defendant and his mother and the limitation period stopped to run against the plaintiff and his predecessor in title.  With the greatest respect to Mr Lam, I do not accept that there was a mere “temporary absence” by the defendant.

The position between 1982 and 1996

49.  According to the experts, farming activities resumed in Site B between 1982 and 1984.  This is consistent with the defendant’s evidence that during that period he let his friend Tai and Tai’s family to live in part of the Squatter House and to carry out farming on the site. 

50.  In 1986, however, farming activities had once again ceased.  Nevertheless, Mr Wong would not rule out the possibility that cultivation activities, in terms of tree planting, might have continued.  However, I note (and there is no dispute) that one cannot tell the types of trees by just looking at the aerial photographs.  Moreover, Mr Wong agreed that even in the case of fruit trees, there were three possibilities, (i) they were wild grown; (ii) they grew naturally after having been planted by people; or (iii) they had been regularly attended to by people.  Mr Wong further agreed that by just looking at the aerial photos, he cannot conclude whether the trees were planted or wild grown.

51.  The defendant’s evidence was that he kept the habit of tree planting after the death of his mother, although he no longer planted for commercial purpose.  However, I do not accept that the defendant and his wife carried out any systematic and regular planting or tending of trees between 1982 and 1996.  My reasons are as follows:-

(a) the defendant has been in full time employment ever since he had graduated from secondary education;

(b) his wife, who had no prior experience of farming, would have to spend considerable time looking after the sons who were born in 1989 and 1991.  Moreover, she and the two sons moved out and lived apart from the defendant between 1994 and 1996; and

(c) the defendant’s evidence that before the installation of the water tap in 1998 his wife would walk 30 to 40 times a day back and forth in an hour to get water from the water pond to water the trees is, in my view, incredible and I reject it.

52.  Whilst I accept that the defendant and his wife might have done some gardening and picking of fruits as leisure activities, I am not satisfied that the defendant has proved that what they did constitutes a sufficient exclusive control and possession of the land and/or evidences an intention to exclude others.  In view of the judgment of Wai Wah Traders Limited v Wong Yim trading as Creative Advertising Design Company & Ors, supra and also the judgment of the English Court of Appeal in Lorna Ellett-Brown v Tallishire Limited, 29 March 1990, unreported, as approved by Hawkes v Howe (2002) EWCA Civ 1136 at para 56 of the judgment, I agree with the submission of Mr Shum that with the evidence of the defendant that very little time and efforts were required to take care of the trees once they were grown and the fact that no one was living on Site B at the time, the presence of fruit trees on the land is not sufficient to establish the two elements of adverse possession.  

53.  I also find as a fact that there was again another lengthy period of voluntary abandonment of the use and control of the land by the defendant at least after 1986.  Again, this was not a mere “temporary absence” by the defendant.

The position after 1996

54.  For the sake of completeness, I should say that the experts agreed that in 1998, farming pattern was observed at the northwest of the Squatter House and also some small trees were observed at the western portion of Site B.  The situation continued and the small trees grew taller until 2006 when the farming lands there seemed to have been less attended.  The experts said that in 2010, Site B was fully covered by tall trees and the cultivation activities could no longer be observed.

55.  The defendant’s evidence was that in 1998 he used part of the land behind the Squatter House to plant vegetable for self-consumption and he continued to tend the fruit trees.  Nevertheless, even assuming that the defendant had re-possessed the land from 1996 onwards, it would not have given him a sufficient length of occupation for the purpose of adverse possession.  

Conclusion on Site B (not including the Portion)

56.  Based on the above, I conclude that the defendant has failed to discharge his burden of proof that he had at any stage been in adverse possession of Site B (not including the Portion) for a continuous period of 20 years. 

D’S COUNTERCLAIM – SITE C

57.  Site C is a relatively small piece of land and the evidence about it is also relatively straightforward.  There was no much difference in the defendant’s evidence between Site B and Site C, except that he had only allowed Tai to farm in Site B.  What the defendant said about planting of trees applied also Site C.

58.  As regards the expert evidence, farming patterns were observed over Site C between 1956 and 1968.  However, the farming pattern there became less prominent in 1973 and barely visible in 1974.  It was Mr Leung’s opinion that the cultivation activities may have ceased in 1973 or that the farming land had become less attended.  On the other hand, Mr Wong was reluctant to “conclude” that cultivation activities had ceased at the time.  The condition of the site remained basically the same after 1974.  In this regard, I accept the evidence of Mr Leung.  The change of the condition of Site C could not have occurred overnight.  I find that in all the circumstances of the case, including the change in the defendant’s family and the health condition of his mother, it is more likely than not that Site C had fallen into disuse sometime in or before 1973. 

59.  Bearing in mind that the burden of proof lies with the defendant, I find that the defendant has failed to prove that he had at any stage been in adverse possession of Site C for a continuous period of 20 years. 

D’S COUNTERCLAIM – THE PORTION

60.  I have found that the Portion was in the successive adverse possession of the defendant’s parents and the defendant for more than 20 years before 1978.  The situation of the Portion is different from the rest of Site B in that there is a Squatter House standing on it which is a lasting structure with walls, windows and doors.  The Squatter House had also been the defendant’s home for many years before he moved out in 1978 and lived with his mother in Tai Tei Tong Village.  In my judgment, the defendant had established both the factual possession and the intention to possess in respect of the Portion.

61.  The issue then is whether the defendant had subsequently abandoned the Portion after 1978.  Based on the evidence before me, I find as a fact that the defendant has not abandoned the Portion after his moving out.  This is based on the following:-

(a) According to the defendant, although he had moved out of the Squatter House, he had continued to place his ancestral tablet and personal items in it.  In my assessment, there is some credence in it as it is unlikely that the defendant would have abandoned his ancestral tablet or moved it to the home of his step-father Chow.  What the defendant said is also supported by the evidence of PW3 who said that when he peeped through the windows of the Squatter House, he saw a bed with plastic bags on it and also an ancestral worship table.  It is also more likely than not that the defendant would from time to time return to the Squatter House to worship his ancestors.

(b) The defendant also said that he would from time to time refurbish the Squatter House.  He said that he had installed one water tap in 1998 for watering trees and another two water taps in 2006.  According to the experts, it was observed that between 1992 and 1993, some weeds grown over the roof of the Squatter House and the Squatter House was surrounded by weeds and shrubs.  I note that the experts were unable to tell what the interior of the Squatter House was like by just looking at the aerial photographs.  I note also that in 1994, however, the weeds at the roof of the Squatter House disappeared.  There is also some support to the defendant’s evidence in this aspect from the plaintiff’s witnesses.  According to PW2, when he first visited the Land in 2007, the Squatter House had signs of renovation or reconstruction because it looked like it had been painted. 

62.  I have considered whether the defendant’s possession of the Portion would mean that he has also been in possession of the rest of Site B.  As aforesaid, acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole: see Powell v McFarlane, supra, at p 471. 

63.  Nevertheless, I am satisfied that the defendant’s possession of the Portion does not mean that he was in possession of the whole of Site B.  This is because of the follows:-

(a) the area of the Portion (41.3 sq m) consists only of a small portion of Site B;

(b) the Portion situates at the south-east end of Site B;

(c) the access to the Portion is via a footpath on the east boundary of Site B and Site C and there is no need to pass through the other part of Site B before one could enter the Portion; and

(d) whilst the Squatter House had been the defendant’s home up to 1978 and he used the Squatter House to store his belongings after 1978, I have found that only limited activities had been carried out by the defendant and his family on the rest of Site B in and after 1973.

64.  The next issue is what I would call a pleading point, namely whether a declaration can be made in favour of the defendant in respect of the Portion even though he has not specifically prayed for one in his counterclaim.  What he has prayed for is a declaration of adverse possession in relation to both Site B and Site C. 

65.  In this regard, I follow the decision of Recorder McCoy SC in Lau Wing Hong & Ors v Wong Chor Hung & Anor [2006] 4 HKLRD 671, at para 145, where the learned judge held that in an adverse possession case, the pleaded factual issues may permit of several possible variations and permutations as to the boundaries of the disputed land at the material time and it would be unnecessarily demanding to require the party to plead every precise possible variation of the underlying factual dispute that could be ultimately found to be proved.  That judgment was adopted and applied by the Court of Appeal in Lee Theatre Realty Limited v Tong Wah Jor, supra.

66.  In the present case, I find that no genuine prejudice would be caused to the plaintiff if a declaration was granted to the defendant in respect of a lesser amount of land which is included in a larger site.  I note that Mr Shum fairly indicated that he did not take the pleading point.  In view of my factual findings about the defendant’s adverse possession of the Portion, I grant a declaration in favour of the defendant.

ORDERS

67.  I dismiss the plaintiff’s claims against the defendant.

68.  I make a declaration in favour of the defendant that the defendant was and is in adverse possession of the Portion and has the possessory title thereto.  I also make a declaration that the title of the plaintiff or its predecessor in title to the Portion has been extinguished and that the plaintiff does not have any title thereto.  Otherwise, the defendant’s counterclaim in respect of Site B and Site C is dismissed.  

69.  As the plaintiff has failed in its claim and the defendant is only successful in respect of a small portion of land in respect of his counterclaim, I make an order nisi that there be no order as to costs.