CHAN KWAN v. WELL LOYAL LTD AND ANOTHER

HCA 186/2015

[2026] HKCFI 3709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 186 OF 2015

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(By Original Action)

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J U D G M E N T

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1.  The Plaintiff (“Madam Chan”) commenced action to claim adverse possession of the disputed land (“Land”) against the registered owners, the 1^st Defendant (“Well Loyal”) and the 2^nd Defendant (“Everstand”) (collectively “Defendants”) in 2015.

2.  The Land comprised of 2 lots: Remaining Portion of Sub-section 1 of Section A of Lot No. 3677 in Demarcation District (“DD”) 104 registered in the name of Well Loyal (“Property 1”) and Remaining Portion of Section A of Lot No. 3677 in DD 104 registered in the name of Everstand (“Property 2”).

3.  The Defendants counterclaimed recovery of possession of the Land against Madam Chan, with damages to be assessed until recovery of possession of the Land.

4.  In 2019, Madam Chan’s daughter Ms So Fung-Ling (“Ms So”) filed a witness statement for Madam Chan, stating, inter alia, that she was also in occupation of the Land.

5.  In 2021, the Defendants also counterclaimed recovery of possession of the Land against Ms So.  In turn, Ms So counterclaimed against the Defendants that she was in adverse possession of the Land with Madam Chan.

6.  Madam Chan passed away on 31 July 2024.  On 24 December 2024, Madam Chan’s grandson Mr So King-Fung (“KF So”) applied for an order to carry-on the action for Madam Chan under Order 15, rule 7(2) of the Rules of High Court.  In February 2025, upon will search with the Law Society, it was discovered that Madam Chan had made a will and Ms So was the executrix.

7.  At the 2^nd Pre-trial Review (“PTR”) on 23 April 2025, KF So indicated not to apply for a carry-on order, and Ms So did not apply to represent Madam Chan at the trial.

8.  Madam Chan’s claim was treated as dismissed at the first day of the trial, and Ms So was counterclaiming adverse possession in her own right.

9.  Madam Chan’s action is hereby formally dismissed, and the only matter is costs.

Background

10.  On 1 January 1967, Madam Chan’s husband Mr So Muk-For (“Mr So”) entered into a tenancy of the Land with the owner Mr Ng Chun-Lam (“Mr Ng”) for 15 years from 1 January 1967 to 31 December 1982 at the rent of $400 per year.

11.  Mr So also rented the adjacent lands from the other owners, and the Land and adjacent lands were converted into a fish pond (“Related Lands”).

12.  On 19 December 1967, a Modification of Tenancy (“MOT”) for the Land was entered into with the District Commissioner, New Territories for the erection of certain structures (for agricultural purpose and not for domestic or industrial purposes and not for human habitation) for the period 1 September 1967 to 31 December 1967.

13.  Under the MOT, Mr Ng was stated as the Registered Land Owner, and it was signed by Mr So as the Permittee on behalf of the Registered Land Owner.  The initial MOT Permit Fee was $5 per year, but further payments were made.

14.  Three MOT Permit Fees Receipts were produced.  They were dated 2 April 1997, 9 March 1998 and 5 February 2001, in the sum of $10 for the period of 12 months for 1997, 1998 and 2001.  The name of Mr So were hand written on them without description of his capacity.

15.  On 25 November 1973, Ms So was born.

16.  On 7 December 1978, Mr Ng assigned Property 1 to his younger son Mr Ng Kam-Chiu (“KC Ng”), and Mr Ng assigned Property 2 to his elder son Mr Ng Yuk-ming (“YM Ng”).

17.  On 3 October 1984, Mr So passed away.

18.  In around 1984 to 1987 and intermittently until 1996, Mr So and/or Madam Chan paid “tea moneys” in respect of the Land.  At the trial, it was conceded by Ms So that such payments were rent.  Hence, the title of the registered owner(s) was acknowledged up to 1996.

19.  YM Ng passed away on 8 February 2001.  On 19 December 2005, Property 2 was assigned to Mr Ng Pui-tong and David Ng in equal shares in the administration of YM Ng’s estate.

20.  On 3 October 2009, a payment of $800 was made by Mr So Wai-man (“WM So”), the son of Madam Chan and elder brother of Ms So, to Mr KC Ng or his representative.  The fact of payment of $800 is not disputed, but there are issues as to whether such payment was rent in respect of the Land or other lands, to whom it was paid, and whether WM So had authority to pay rent for Madam Chan.

21.  On 5 November 2009, Property 1 was assigned to Well Loyal subject to the tenancy.

22.  On 14 January 2010, Property 2 was assigned to Everstand subject to the tenancy.

23.  On 16 June 2020, Mr KC Ng passed away in Germany.  KC Ng’s witness statement was admitted as hearsay evidence.

Pleadings and Amendments

24.  In the Statement of Claim of Madam Chan, it was pleaded that Mr So was named as the registered owner of the Land in the MOT, and the MOT fees were paid by Mr So and Madam Chan, and the original MOT was kept by Mr So.

25.  When Ms So was joined as a party by the Defendants, she adopted Madam Chan’s assertion that Mr So was the Registered Owner named on the MOT, and she added that she had also paid the MOT fees.

26.  At the 1^st PTR on 20 March 2025, an Unless Order was made for the disclosure of the MOT by Madam Chan through her former solicitor.  Thereafter, a copy of the MOT was produced.  The MOT was stated in the manner referred to in paragraph 13 above.

27.  On 29 April 2025, Ms So filed the first amendment to her Counterclaim to the Counterclaim to withdraw the allegation that Mr So was named as the registered owner of the Land in the MOT.

28.  At the first day of trial on 16 June 2025, Ms So filed the re- amendment to withdraw the allegation that she had paid the MOT fees.

Defendants’ case

29.  A major part of the Defendants’ case was that rent was paid for the Land as late as on 3 October 2009, in that KC Ng had received $800 from Madam Chan’s son as rent for himself for Property 1, and on behalf of the owners of Property 2.

30.  Mr Fung Ying-Cheung (“YC Fung”), Village Representative of Pok Wai Village where the Land was situated, gave evidence for the Defendants.  YC Fung said on 3 October 2009, KC Ng, the owner, and Mr Man Yiu-Mo (“YM Man”), former Village Representative of Pok Wai Village asked him to help collect rent for the Land.

31.  YC Fung said this was the first time KC Ng has asked him to help collect rent.  YC Fung knew WM So as he was a senior of WM So at school.  YC Fung said the day in question was Mid-Autumn Festival and people should be having meal at home.  Hence, the three of them went direct to Mr So’s house at the fish pond.

32.  They saw WM So at the foreground of house.  YC Fung introduced KC Ng as the son of Mr Ng who had come to collect rent.  WM So paid $800 to KC Ng.  YC Fung wrote up the original receipt and gave it to WM So.

33.  Receipt No. 0012643 dated 3 October 2009 stated receipt from WM So $800 being payment of rent for Property 1 and Property 2 and it was signed by KC Ng (“Receipt 1”).

34.  After leaving the house, KC Ng asked YC Fung and YM Man to sign as witnesses.

35.  When YC Fung returned to the village, he typed out the note “Mr So’s son WM So paid the rent for Property 1 and Property 2 on 3 October 2009 at 5:40pm at the foreground of WM So’s house on Property 1” and YC Fung and YM Man signed as witnesses on the note.  YC Fung then photocopied the carbon copy of Receipt 1 and the typed note together.  The original of this record was given to KC Ng.  The carbon copy of the receipt was not retained because it was incorporated into the photocopy.

36.  YC Fung said he had also collected rent from Madam Chan and WM So on behalf of other land owners in Pok Wai Village.  4 other rental receipts were produced:

(1)     Receipt No. 650927 dated 14 February 2007 stated receipt from “Ah For” for $1,000 being payment of rent for 2006 for DD 104 Lot 3679 (“Receipt 2”);

(2)     Receipt No. 650928 dated 12 January 2008 stated receipt from “Ah For” for $1,000 being payment of rent for 2007 for DD 104 Lot 3679 (“Receipt 3”);

(3)     Receipt No. 650930 dated 9 August 2009 stated receipt from WM So for $1,000 being payment of rent for 2008 DD 104 Lot 3679 (“Receipt 4”);

(4)     Receipt No. 211851 dated 9 August 2009 stating receipt from WM So for $600 being payment of rent for 2008 for DD 104 Lot 3680 Section B signed by Mr Man Wai-Cho (“WC Man”).  A photocopy of the receipt together with the typed note stating “Mr So’s son WM So paid the rent for DD 104 Lot 3680 on 9 August 2009 at 4 pm to WC Man (son of Man Kwai) at Fu Dou Restaurant, Yau San Street, Yuen Long.”  The photocopy was signed by YC Fung and YW Man, Village Representatives of Pok Wai Village as witnesses.” (“Receipt 5”).

37.  YC Fung said rent were usually collected in arrears for the previous year.  “Ah For” was the nickname of Mr So, and after his death the payments were made by Madam Chan.  The receipts were made out to “Ah For” because only male persons were regarded as householders, and the renting was not changed to Madam Chan as she was female. 

38.  In Receipt 5, YC Fung collected the rent from WM So instead of Madam Chan because she had moved away from the village to Palm Springs in Yuen Long in 2009.

39.  Mr Hui Tin-Lap, a director of the Defendants, was called to be cross-examined the circumstances of the contracts and assignments to the Defendants.  However, he practically could say nothing at all.

Ms So’s case

40.  Ms So alleged that she had been living on the Land ever since she was born, and she had been in adverse possession with Madam Chan since 1996 where no further rent was paid.

41.  Ms So said ever since the expiry of the 1967 Tenancy (i.e. in 1983), the Land were occupied exclusively by Mr So and Madam Chan, and also by herself after she was born in 1973.  The regarded themselves as owners.

42.  Since 1983, the Related Lands had been fenced off, and she had helped put up wired fences around the boundaries.  A sign was erected to prohibit unauthorized entry since 1996.  Dog were kept to oust the trespassers.

43.  Ms So said she had accompanied Madam Chan to pay rent since she was in primary school.  Also, since 1991, she had given money to Madam Chan to pay rent.

44.  Ms So said since 1993, the landlord could not be found and no rent was paid.  When asked why in her witness statement she said the landlord could not be located in 1996, Ms So said the landlord was found for payment of rent in 1994, and then could not be located again in 1995 and in 1996, and she told Madam Chan not to pay rent.

45.  Ms So said she could not produce the accounts for the fish and poultry farming because they were washed away in floods from time to time before 2007.  In 2007, she rebuilt the house and there was no more flooding. Still, no recent documentary proof of any expenditures or utilities bills was produced.

46.  WM So gave evidence to explain the payment in 2009.  WM So said he was born in 1960.  He left home in 1979 and had returned home infrequently.  He was never responsible for the payment of rent for either his father Mr So or mother Madam Chan save in 2009.

47.  In October 2009, he received a phone call from a former schoolmate YW Man (the one in Receipt 5).  YW Man said Madam Chan had not paid rent for the fish pond without referring to any specific lot.  He asked how much and YW Man said $800.  They appointed to meet at the fish pond.

48.  He waited for YW Man at the access road to the house.  There was no one in the house and he did not know where Madam Chan had gone.  YW Man came with YC Fung, a village official, whom he did not know personally. He did not know the third person.  YW Man asked him to pay $800 to YC Fung. He was not given any receipt.

49.  He never alleged Receipt 1 was a forgery because his name on it was wrongly written.  His name was “蘇惠文” instead of “蘇偉文” on Receipt 1.

50.  When cross-examined, WM So said at first that he did not know there were different lots of land belonged to different owners.  Later, he said Madam Chan must have paid rent to more than one owner.

51.  WM So said there was no need to ask for which plot or what year since he trusted YW Man.  As it was just a small sum, he paid it for Madam Chan. He never told Madam Chan about this payment.

52.  He said that as the payment of rent was all along handled by Madam Chan and not Ms So, he did not tell Ms So either.

53.  Around 2009, Madam Chan was in ill health and would sometimes stay with his younger brother at Palm Springs Estate.

54.  WM So was shown Receipt 2.  At first, he said he had no memory of it, then he said he definitely never paid it.  He was also shown Receipt 5. He said he knew Man Kwai was a villager, but not knew his son WC Man, and of course he knew YW Man.  He also denied paying it.

Expert evidence

55.  Both sides called surveying evidence.  They were mostly on common grounds except for minor discrepancies in the maps and aerial photographs as to the positions of the wall or fencing and other spots.

56.  The Defendants queried that as the Related Lands was a fish pond, there was no physical barriers to exclude others on part of the land with open water. In any case, Ms So also accepted that the gate would be open at times to allow deliveries.

57.  In view of the nature of the dispute as analyzed below, the discrepancies as to the expert evidence are not of much significance.

Legal Principles

58.  A person may claim adverse possession to defeat the title of the paper owner by invoking the Limitation Ordinance (Cap. 347):

“7. Limitation of actions to recover land

(1) …

(2)   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…”

“23. Fresh accrual of action on acknowledgment or part payment

(1) Where there has accrued any right of action (including a foreclosure action) to recover land or any right of a mortgagee of personal property to bring a foreclosure action in respect of the property, and—

(a) the person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued; or

(b)     … the right shall be deemed to have accrued on and not before the date of the acknowledgment or payment.”

59.  A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess, animus possidendi (Wong Tak Yue v Kung Kwok Wai David & anor (No.2) (1997-1998) 1 HKCFAR 55, approving Powell v McFarlane (1979) 38 P & CR 452 per Slade J).

60.  Factual possession signifies an appropriate degree of physical control.  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 possessory title is sought may be evidence of possession of the whole.  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 (Powell v McFarlane op cit;approved in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588).

61.  Animus possidendi involved 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, so far as is reasonably practical and so far as the process of the law will allow, and made such intention clear to the world (Powell v McFarlane, op cit; Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd, op cit).

62.  The burden of proof lies with the claimant of adverse possession and the evidence must be compelling (Wu Yee Pak v Un Fong Leung & ors (2004) 7 HKCFAR 498 per Chan PJ at §5).

63.  In the case of open land, absolute physical control is normally impossible, because it is generally impossible to secure every part of a boundary so as to prevent intrusion.  Acts of possession done on parts of the land to which a possessory title is sought may be evidence of possession of the whole.  It is impossible to generalise with precision as to what acts will or will not suffice to evidence factual possession.  Everything must depend on the particular circumstances.

64.  In Gotland Enterprises Ltd v Kwok Chi Yau & ors CACV 260/2014 (19 January 2016, unrep), neither the land nor the ponds were fenced off.  Lam VP (as he then was) giving the judgment of the Court of Appeal held at §37 that:

“Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”

65.  In Yu Kit Chiu & Yu Hon Chiu & ors v Chan Shek Woo t/a as 陳潮昌士多 CACV 137/2010 (18 February 2011 unrep), the Court of Appeal held that the squatter who signed the MOT on behalf of the Registered Land Owner was acknowledging that he was possessing the land on behalf of the registered owner and not to his exclusion.  Cheung JA who gave the judgment of the Court stated at §§43-45:

“43. The issue that calls for determination narrows down to the fine point whether by signing the MOT ‘On Behalf of Registered Land Owner’, Mr. Chan had, in the words of the authorities, the ‘intention, in his own name and on his own behalf, to exclude the world at large, including the deceased if he himself was not the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.’

44. …I am of the view that the signature of Mr. Chan on behalf of the deceased did not merely acknowledge the deceased’s ownership of the land but was also an acknowledgment of the deceased’s possession of the land. The erection of four structures on the land together with their use clearly were matters concerning possession of the land and not simply ownership. The head lessor’s permission to allow the four structures to be maintained continuously was also related to the issue of possession because they related to how the land was to be used and not merely ownership of the land. By acknowledging that he agreed to the terms of the modification on behalf of the deceased, Mr. Chan was acknowledging that he was possessing the land on behalf of the deceased and not to his exclusion...

45.  In Lam Ngok Ching and others v. Tsang Yuk Ming (HCA 1192/2004) Suffiad J reached a similar conclusion on the effect of a Modification of Tenancy.”

66.  The principle of encroachment and locus standi are no longer relied on by Mr Mak.

Discussions

67.  The issue is whether Ms So can prove exclusive possession with the requisite intention of possession.

68.  Mr Chan, counsel for Ms So, accepted that each case of adverse possession would depend on its own facts.

69.  Mr Mak, for the Defendants, submitted that as this was a case of adverse possession by a “tenant” rather than third party not privy to the registered owner(s), exclusive possession had been given by the original owner, hence, the main issue is the animus possidendi or intention to possess.

70.  I consider that all efforts of fencing the perimeter of and expenditures in occupying the Related Lands would equally be indicative of excluding the world qua a lawful tenant especially when the bulk of the Related Lands were still under lawful tenancies.

71.  As to intention of adversely possession, it must depend on the credibility of Ms So and WM So, especially when Madam Chan was not available to testify and be cross-examined about her case.

72.  Ms So’s case was that she was in joint adverse possession with her mother Madam Chan.  Mr Chan submitted that Ms So understood that she lacked the legal capacity and intention to partake in joint adverse possession with Madam Chan until she attained full age, which was in 1991.  In any case, since Ms So conceded the payment of tea money was rent, the last of which was in 1996, she was effectively claiming to have been in joint possession in 1996.

73.  By contrast, Mr Mak pointed out the contradiction that Madam Chan only pleaded adverse possession by Mr So and herself, and never pleaded she was in joint adverse possession with Ms So, save that Ms So had been living with her.

74.  Mr Mak queried why apart from Ms So’s oral evidence and assertion of truthfulness, there was no documentary evidence such as receipts for her expenditures on the Land, utilities bills or photographs of daily living, etc.  Ms So explained that some documents were washed away in flooding, and the utilities bills were there but just not produced.

75.  As such, the credibility of Ms So is crucial, especially there has been substantial changes in her case after the discovery of a clear copy of the MOT.

76.  Mr So originally pleaded that (1) her father Mr So was the Registered Land Owner in the MOT, and (2) she had paid the MOT Permit Fee(s), the last of which was in 2001.  However, those pleadings were later amended with the withdrawal of those two assertions.

77.  By virtue of Yu Kit Chiu & Yu Hon Chiu v Chan Shek Woo, the payment of the MOT fees by Mr So and Madam Chan with Mr Ng as the named Registered Land Owner must be taken as an acknowledgment of Mr Ng’s ownership and possession up to 2001.  Adverse possession, joint or otherwise, could not start earlier than 2001.

78.  Ms So made her counterclaim against the Defendants on 11 September 2021. Hence, the period of adverse possession of 12 years should count from 10 September 2009. This is a date earlier than the alleged payment of rent on 3 October 2009. If the payment were in relation to the Land, then the effluxion of time would run afresh from the date of last payment.  There is of course the issue of credibility of WM So and also Ms So.

79.  While the fact of payment of $800 is not disputed, there are issues as to whether such payment was rent for the Land and whether WM So had authority to pay rent for Madam Chan.

80.  For the sake of repetition, Ms So originally pleaded that: (1) Mr So was the registered owner in the MOT; and (2) she herself had also paid for the MOT fees, but those allegations were eventually withdrawn.

81.  Ms So explained that she was in fear because there were triad activities to harass the tenants and occupiers in 2014 or 2015, and it lingered in her mind when she was sued.  Further, it was the first time she was ever sued, and she feared that she had no money for the lawyer.  Hence, when the Legal Aid lawyer asked her whether she would adopt Madam Chan’s case, she readily said yes.

82.  Mr Mak pointed out that Mr So being the registered owner named in the MOT and Ms So having paid the MOT fees were separate matters.  If Ms So was merely adopting Madam Chan’s case, she should at most have included the point that Mr So was the registered owner, but not that she had also paid the MOT fees herself because Madam Chan had only pleaded that Mr So and herself had paid the MOT fees, and never mentioned any payment by Ms So.

83.  Ms So said she claimed payment by herself based on receipts for the MOT fees.  Yet, there was nothing on them to suggest that she had paid for those fees.

84.  Mr Mak made like criticisms that Ms So conveniently leapt on Madam Chan’s allegations that Madam Chan and Mr So only had paid for the other expenditures on the Land without mentioning Ms So.

85.  Mr Mak also queried why the withdrawal of pleadings came in two stages.  After the discovery of the clearer copy of the MOT, Ms So withdrew the registered owner point but not the payment point, and the latter was only withdrawn at the first day of the trial.

86.  Mr Mak pointed out that the receipts for the MOT fees had all along been disclosed by Madam Chan, and as Ms So admitted that she definitely had not paid any such fees, why would it take her 4 years from 2021 to 2025 to notice the mistake.

87.  Ms So tried to explain away the delay by the stating the lack of understanding and missing the point, and also blaming and communication problems with the lawyers.

88.  Ms So was cross-examined that when she made the witness statement for Madam Chan in 2019, she only stated she was living in the Related Lands but did not claim adverse possession.  It was only in 2021 that when the Defendants added Ms So as a party then she claimed adverse possession.  Ms So explained that she had thought of claiming adverse possession herself earlier, but thought if Madam Chan succeeded in her claim, Madam Chan would not kick her out.

89.  Ms So was cross-examined why she did apply for a carry-on order for Madam Chan.  Ms So said they ran different cases, which meant she knew she was not covered for adverse possession in Madam Chan’s case.  When confronted with that she wanted adverse possession by herself to the exclusion of Madam Chan, Ms So’s response was that Madam Chan died in a traffic accident in mysterious circumstances.

90.  Ms So said in her witness statement that the landlord could not be found since 1996 and she told Madam Chan not to pay rent.  During cross-examination, she at first said it was 1993, and later changed to 1995. In any case, Madam Chan stated in her witness statement that she last paid “tea money” (now conceded to be rent) in 1996.  When asked about this discrepancy, Ms So admitted the discrepancy but said she did tell Madam Chan not to pay rent, she could not help it that Madam Chan still paid it in 1996.

91.  It is also telling that his brother WM So said that Ms So was never responsible for the payment of rent.

92.  Ms So was also cross-examined on a letter dated 31 December 2007 by Messrs. Wong, Kwan & Co, solicitors on behalf of Madam Chan and herself to another landlord Mr Ng Charn-Nan (“CN Ng”) of Lot 3677B1 and Lot 3677BRP in DD 104.  The letter stated that the terms in the tenancy agreement should be made through mutual negotiations but not unilaterally raised by the landlord, and Madam Chan and Ms So would be in contact with the landlord to negotiate the tenancy for the coming year.  The tenancy agreement in question was one signed on 1 January 2007 by CN Ng and Madam Chan and witnessed by YW Man for the year 2007.

93.  Mr Mak submitted under cross-examination, Ms So said that she intended to continue to rent the lands for the fish pond in 2007.  There were some ambiguities as to whether Ms So’s answer was she intended to rent the entire fish ponds (including the Land) or just other lots excluding the Land.

94.  Even assuming Ms So did say the “fish pond”, she later changed it to lands excluding the Land.  In any case, Ms So’s case has always been no intention to pay rent for the Land, and I will overlook the discrepancy, if at all, to be a slip of tongue.

95.  Still on the legal letter, Ms So alleged that Madam Chan was cheated into signing the tenancy agreement as Madam Chan knew nothing about the terms, and the witness YW Man was not present.  Ms So said the point was not money but integrity, and there must be a relative to sign or witness the tenancy agreement.  However, none of these points was reflected in the legal letter.  Ms So said the lawyers advised her to be amicable and not to mention them.  It may be another example on discrepancy with instructions to the lawyers, but I will not dwell on this point.

96.  Be that as it may, to say one has made a payment when admittedly one has not is a serious untruth.  It is all the more unsatisfactory to leave it as misunderstanding with the lawyer without any supporting evidence.

97.  I do not find Ms So a credible witness, especially as she pleaded payment of the MOT fees herself when she said she had definitely not done so. Ms So tried to explain that she was in fear because she had no money to retain any lawyer.  But such instructions were given to the Legal Aid lawyer, not why would she still fear that she would have no money for the lawyer.  I find that She merely wanted to tag along and ride on the claims of Madam Chan.

98.  I turn to the credibility of YC Fung and WM So on the 2009 payment.

99.  YC Fung was a retired civil servant dealing with lands in the New Territories, and later a Village Representative.  I find his evidence straight forwards and logical.

100.  WM So was generally not a well-articulated witness, and he fumbled along on whether he entered the house or was only outside on 3 October 2009.

101.  More significantly, he did admittedly pay $800 on the days in question.  It just seems incredible that he would pay the rent without asking which lot of land and what year simply because it was a small amount and he trusted YW Man. It is also incredible that he did not tell Madam Chan afterwards, as Madam Chan would need to account for the payment of a particular lot lest double payment to say the least.

102.  WM So said he was not given Receipt 1 but never alleged it was a forgery, as he just ignored it because his name was wrongly written on it. That explanation is unsatisfactory.  I find WM So denied receiving Receipt 1 because Property 1 and Property 2 were mentioned therein.

103.  WM So said he had only paid rent for Madam Chan once on 3 October 2009. Yet, Receipt 5 was produced where it was witnessed by YW Man, his trusted schoolmate.  I accept Receipt 5 was genuinely made out and vouched for the facts stated thereon, ie payment of rent by WM So in August 2009 prior to the incident on 3 October 2009.

104.  I also find that WM So was authorized by Madam Chan to pay rent in 2009.  Firstly, they are mother and son, objectively a close relationship.  Secondly, WM So went all the way to meet YW Man (if not YC Fung) to make payment.  Thirdly, WM So did not even need to check with Madam Chan or ask YC Fung to find out the what sort of rent before meeting and paying.  There must have been a tacit understanding to pay rent on behalf of Madam Chan.

105.  Even if Madam Chan and Ms So had had adverse possession, it had nevertheless ended on 3 October 2009 when rent was paid on behalf of Madam Chan by her son WM So.

106.  As to Mr Hui, a director of the Defendants, his witness statement chronologised the contracts and assignments to the Defendants, which are self-evident from the documents.  He was cross-examined on the timing and events around the contracts and assignments.

107.  I bear in mind the background of land resumption and likely compensation, and apparently somepress gang activities in relation to repossession, though unknown from whom. 

108.  No doubt Mr Chan would like to explore further into these background surrounding the purchases, but Mr Hui practically could say nothing at all. I say I find his performance appalling.  Though it does not eventually have the effect of bolstering Ms So’s case in view of the overall evidence, such conduct must be born in mind and may be reflected in costs, if necessary.

109.  I do not accept the evidence of Ms So on the fact including the intension of adverse possession, nor WM So in avoiding the 2009 payments.   I find that Ms So was merely tagging along and riding on the claims of Madam Chan, for whatever it is worth.

Quantum

110.  The Defendants counterclaimed damages for non-payment of rent or licence fees.  

111.  Mr Mak submitted that damages for the Land (Property 1 and Property 2) should be calculated at $3,050 per month from July 2010 to the date of closing submission totaling $$558,150 for both Defendants.  Mr Mak submitted there was no evidence contradicting such valuation.   

112.  On the other hand, there was no evidence supporting the valuation especially taking into account that the Land was landlocked amongst other adjacent lands in the Related Lands. 

113.  As such, I shall adopt the rent of $800 per year which was the amount charged and received for the Land by the Defendants’ predecessors in title on 3 October 2009.  Counting from 1 Jan 2010 until 3 Oct 2025 as the date of closing submission is 190 months or 15.83 years, times $800 per year is $12,667.

114.  Interests will be awarded on $12,667 from 29 Apr 2015 (date of the Defendants’ counterclaim) until the date of judgment and at judgment rate from the date of judgment.

Conclusion

115.  The Defendants do recover the Land with damages and interests as stated above, and Ms So’s counterclaim is dismissed.

Costs

116.  The Defendants should recover costs following the event. But because of the matter referred to in §108 about, I make the order nisi that the Defendants shall only recover ⅔ of their costs from Madam Chan and Ms So, to be taxed if not agreed.

117.  Submissions to vary the costs nisi may be lodged within 14 days from the date hereof.

118.  Lastly, may I thank Mr Mak and Mr Chan for their helpful submissions.