HUI WING SZE v. CHIU KA KEUNG

CAMP 10/2025, [2026] HKCA 198

On Appeal from [2024] HKDC 685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 10 OF 2025

(ON AN INTENDED APPEAL FROM DCCJ NO 441 OF 2021)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A. INTRODUCTION

1.  This is the Plaintiff’s (“P”) renewed application for leave to appeal against the Order dated 30 April 2024[1] (“the Order”) made by Deputy District Judge Alfred Cheng (“the Judge”).

2.  P is the registered owner of Flat 3503 (“Flat 3503”) and the corresponding roof above (“Roof 3503”) in Block L of Amoy Gardens in Kowloon Bay (“the Building”).  The Defendant (“D”) is the registered owner of the adjoining flat (“Flat 3502”) and the corresponding roof above (“Roof 3502”).  The subject matter of dispute concerned a portion of Roof 3503 (“the Trespassed Area”)[2].  By the action below, P claimed against D for vacant possession of the Trespassed Area and mesne profits, whilst D defended on the basis, and counterclaimed for, possessory title by adverse possession.  P also claimed damages for trespass and D’s alleged breach of the DMC[3].

3.  After a two-day trial, by the Order, the Judge dismissed P’s claim and allowed D’s counterclaim with costs.  His reasons were set out in the written judgment of the same date (“the Judgment”) ([2024] HKDC 685).

4.  By a decision dated 31 December 2024 ([2024] HKDC 2169) (“the Leave Decision”), the Judge further refused P’s application for leave to appeal.[4]

5.  After reviewing the parties’ respective written submissions, we are of the view that it is proper to dispose of this application on paper pursuant to Order 59, rule 2A(5) of the Rules of the High Court (Cap 4A) (“the RHC”).  This is our decision.

B.     BACKGROUND

6.  The factual background of this case has been set out in detail at [5] ‑ [24] of the Judgment and need not be repeated here.  For the present purpose, we will highlight the following.

7.  In brief, D’s case was that prior to P’s claim, he always thought that the Trespassed Area was part of Roof 3502.  He claimed that when he purchased Flat 3502 and Roof 3502 in May 2004, two fences separated Roof 3502 together with the Trespassed Area from Roof 3503.[5]  The Trespassed Area had always been paved in tiles consistent with those on Roof 3502.  Since mid-2004, D had been continuously occupying and using the Trespassed Area by causing various plants and chattels to be placed thereon.  He further claimed that P’s predecessor-in-title (“Mr Li”) agreed to allow him to use Roof 3503 for gardening, and in return, D agreed to pay a few hundred dollars every month as “tea money” for Mr Li’s mother (“Licence Agreement”).  See [14] ‑ [18] of the Judgment.

8.  On the other hand, P’s case was that D breached various clauses of the relevant Deed of Mutual Covenant dated 26 March 1985 (“DMC”) and trespassed over Roof 3503.  D also lacked exclusive, continuous and sufficient factual possession over the Trespassed Area with the requisite intention.  In support, relevant to the present purposes, P relied on the following various specific facts to rebut D’s case of adverse possession:[6]

(1)     The Trespassed Area was only fenced off by a long side fence on the roof as described in the Judgment[7].  The northwestern side was never fenced off.  There was therefore no complete fencing off of the area by D.

(2)     As to the Trespassed Area, nothing was placed there between 6 November 2017 to 9 December 2017.  Since 10 January 2018, only various houseplants and moveable chattels had been placed by D there at various times, including some moveable Styrofoam box, moveable empty pots and plants or moveable rack.

(3)     P claimed that anyone could access the common roof of Roof  3502 and Roof 3503 and the only door to the common roof was not locked.  Although the door was installed with an alarm, the owners of 35^th floor of the Building and the building manager each has a common alarm key to the said door.  P also said the fact that cigarette ends had been found on the ground of the common roof showed that outsiders could gain access to the roof.

(4)     D was using the Trespassed Area as part of Roof 3503 pursuant to the Licence Agreement, and thus could not have intended to occupy the Trespassed Area to the exclusion of its paper owner.

C.     THE JUDGMENT

9.  The trial before the Judge was essentially a trial of D’s case of adverse possession.  Both parties were represented by counsel.[8]

10.  At the trial, P’s fiancé Mr Yeung (“Mr Yeung”) gave evidence in support of P’s case.  D and his cohabitee Mr Lau (“Mr Lau”) gave evidence in support of D’s case.

11.  By way of his Judgment, the Judge allowed D’s adverse possession claim over the Trespassed Area and dismissed Ps’ claim.

12.  The Judge first reminded himself of the well-established principles in adverse possession, noting that there is no bright-line rule and it is a fact-sensitive question as to what may constitute sufficient factual possession in relation to a roof top of a multi-storey building.  See [25] ‑ [32] of the Judgment.

13.  After carefully evaluating all the evidence, the Judge found on the totality of the evidence that D had proved his case on the necessary factual possession and animus possidendi in support of his case of adverse possession of the Trespassed Area.  Relevant to this application, the Judge held in essence:[9]

(1)     Given that the DMC had assigned exclusive occupation of the part of the roof to the owners without any physical barrier erected, the Judge found that the paving of floor tiles was an important factor to show that D intended to reserve the use of the Trespassed Area to himself exclusively and it was not absolutely necessary in the circumstances of the present case for D to completely enclose the Trespassed Area to establish the requisite factual possession and intention.

(2)     Leaving a passageway for the management office’s inspection in the Trespassed Area did not affect that reasoning, as the owners agreed under the DMC to allow the manager to enter for inspection.

(3)     Given the restriction imposed by the DMC on the use of the roof, and that the plants and rack took up a significant portion of the Trespassed Area, the way in which D had been using the Trespassed Area must be considered as sufficient possession.

(4)     Given that there was an alarm system and that only a handful of people holding the key could get access to the roof, P could not demonstrate that the roof was frequently accessed by outsiders.

(5)     As to the Licence Agreement, P failed to show that the Licence Agreement granted the use of the entire Roof 3503 (including the Trespassed Area) as contended by P as she had adduced no evidence[10] to show what D and Mr Li knew the boundary of the roof was when they entered into the agreement.  On the contrary, the Judge accepted D’s evidence as to how the roof looked like in May 2004 and found that D and Mr Li both proceeded on the mistaken basis that the Trespassed Area belonged to Roof  3502, and that it was Roof 3503 less the Trespassed Area that Mr Li had granted the licence for D to use.

14.  As to P’s claim for damages based on D’s alleged breaches of the DMC, the Judge noted that P “has confirmed at trial that her claim under the DMC must stand or fall together with her defence against D’s claim for adverse possession” (“the Concession”).  Accordingly, the Judge further rejected P’s damages claim for breach of the DMC given his finding that D had established adverse possession of the Trespassed Area.[11]

15.  The Judge therefore dismissed P’s claim and allowed D’s counterclaim with costs.  The Judge thereby declared that (a) D has obtained possessory title over the Trespassed Area; and (b) P’s title, interest and rights in the Trespassed Area have been extinguished by virtue of the Limitation Ordinance (Cap 347) (“the LO”).[12]

16.  As mentioned above, P subsequently applied for leave to appeal which was refused by the Judge.

D.     THIS APPLICATION

17.  By summons dated 13 January 2025 (“the Summons”), P reapplied to this court for leave to appeal.[13]

18.  In essence, P advanced the following four proposed grounds in her draft Notice of Appeal (“Draft NOA”) (referred to as “Ground 1” to “Ground 4” respectively) seeking to challenge most of the material findings of the Judge:

(1)     The Judge erred in law and in fact in concluding that the Licence Agreement did not cover the Trespassed Area as (a) he wrongly required P to discharge the burden in showing that the Licence Agreement covered the Trespassed Area, (b) he failed to consider various undisputed facts and live evidence elicited from D[14].

(2)     The Judge erred in considering irrelevant evidence, failing to consider and/or misunderstanding relevant evidence, and was in any event plainly wrong in concluding that there was sufficient factual possession and animus possidendi.  In particular, the Judge failed to consider whether D was able to prove “ouster” of P and all the other co-owners of the Building as an additional requirement[15].

(3)     The Judge erred in failing to appreciate the effect of section  9(1) of the LO in that time does not run against a revisioner[16].

(4)     The Judge erred in regarding P’s trial counsel’s submissions as the Concession.  As a matter of law, P was not precluded from enforcing the covenants in the DMC against D even if adverse possession was established[17].

E.     LEGAL PRINCIPLES

19.  Under section 63A(2) of the District Court Ordinance (Cap 336), leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice that the matter should be heard by the appellate court.

20.  To meet the threshold of reasonable prospect of success, it must be shown that the prospect of succeeding is more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125 at [17].  In other words, the applicant is required to show more than just an arguable case, although he does not have to demonstrate that the appeal will probably succeed[18].

21.  The principles governing an appeal against a trial judge’s findings of fact are also well-established.  In gist, the appellate court will only interfere when it is satisfied that the judge had erred in principle and/or that the findings are “plainly wrong”.  Under the “plainly wrong” test, the court has to be satisfied that the trial judge had fallen into palpable error in his finding of fact, such as where the finding was one (a) which there was no evidence to support; (b) which was based on a misunderstanding of the evidence; (c) where the judge had taken into account irrelevant evidence or failed to take into account relevant evidence; or (d) which no reasonable judge could have reached.  The threshold faced by an appellant is very high[19].

22.  In this respect, it is also trite that the assessment and weight of evidence is generally and primarily a matter for the trial judge, and it is neither a proper ground of appeal nor the purpose of an appeal to allow a second attempt by the appellant to re-run submissions on the evidence with the hope that the appellate court may come to a different view.  In reviewing the findings of fact by a trial judge, the Court of Appeal’s role is limited and it will not conduct a re-assessment of the evidence simply because the appellant submitted that more weight should be given to one piece of evidence as opposed to another.[20]

23.  Bearing these principles in mind, we now turn to consider the various grounds of appeal.

F.     DISCUSSION

F1.    Ground 1

24.  This ground challenges the Judge’s finding that the Licence Agreement did not cover the Trespassed Area as asserted by P.

25.  The Judge set out his reasons for finding that the scope of the Licence Agreement did not cover the Trespassed Area at [42] and [46] ‑ [51] of the Judgment:

“42. In my judgment, the way in which the defendant has been occupying the Trespassed Area shows he has physically possessed the same to the exclusion of all persons (including the plaintiff and her predecessors-in-title) with the requisite intention. My reasons are as follows:-

42.1. The DMC assigns exclusive occupation of part of the roof to the top floor owners without any physical barrier erected on the roof itself. There is no evidence before me that owners (particularly the parties and their respective predecessors-in-title) habitually disrespected the exclusive occupation of the roof assigned to their neighbours. Hence, I do find the paving of floor tiles an important factor to show that the defendant intended to reserve the use of the Trespassed Area to himself exclusively.

42.2. Since the roof could only be accessed by the owners and the staff from the management office, I do not find it absolutely necessary for the defendant to completely enclose the Trespassed Area to signify his intention to exclusively use it. There was no need to install any drastic measures to keep out outsiders, as the chance for them to come to access the roof should be nothing more than minimal. I accept that the paving of tiles would be an important way to show to the neighbour what the defendant considered to be the space under his exclusive occupation.

42.3. In this regard, I further accept the defendant’s evidence that he had to leave a passageway next to the long side fence on the 3502 Roof to allow the management office to check the utilities meter installed on the external wall. I think his evidence is unshaken under cross examination, and the plaintiff does not have any evidence to suggest otherwise. Since all owners agreed under the DMC to allow the manager to enter the areas under their exclusive occupation for inspection and maintenance of common facilities, I do not think this affects my reasoning above. Indeed, I find it to be reinforcing the defendant’s intention that the space covered by the tiles to the south of the long side fence (as per the direction of the floor plan) should be used exclusively by him. This includes the Trespassed Area.

42.4. And given the restriction imposed by the DMC as to the use of the roof, I think the way in which the defendant has been using the Trespassed Area must be considered as sufficient possession. It seems unrealistic to expect more substantial enclosure of the Trespassed Area, as illegal structures are liable to be removed. In fact, without deciding the point, it seems to me that the long side fence itself may be considered to be a breach of the DMC, as it was not erected to assist any escape from fire or other emergency.

42.5. Apart from the space left as passageway, the plants and rack took up significant portion of the Trespassed Area. I think the reasoning spelt out in The Incorporated Owners of San Po Kong Mansion v Shine Empire Limited is distinguishable.

…

46. The plaintiff next argues that the Licence shows that the defendant could not have intended to occupy the Trespassed Area to the exclusion of its paper owner.

47. I do not accept the plaintiff’s argument that the Licence must have covered the Trespassed Area, such that the defendant was not in wrongful occupation of the same. My reasons are as follows:-

47.1. The plaintiff has no direct evidence as to the terms of the Licence Agreement. She also adduces no evidence to show what the defendant and Mr Li knew (or otherwise) as to the boundary of the roof. I do not think she has discharged the burden to persuade me that the Licence Agreement must be interpreted in the way she proposes.

47.2. Mr Yeung’s evidence is at best double hearsay. The plaintiff has not called either Mr Hung or Mr Li to corroborate Mr Yeung’s understanding of the effect of the Licence Agreement. There is no evidential basis for me to assess how accurate this double hearsay might have been.

47.3. Therefore, I do not accept that Mr Yeung has correctly described the Licence Agreement as granting the use of the entire 3503 Roof (including the Licence Agreement) to the defendant.

48. Based on the above reasoning, I do not agree that the defendant fails to prove his occupation of the Trespassed Area has been wrongful.

49. As a matter of completeness, I accept the defendant’s evidence as to how the roof looked like when he purchased Flat 3502 in May 2004. I find his evidence credible and unshaken under cross examination. His evidence is not contradicted by any objective evidence. Based on how the roof objectively looked since May 2004, I find that when the defendant and Mr Li reached the Licence Agreement, they both proceeded on the mistaken basis that the Trespassed Area belonging to Flat 3502, and it was the 3503 Roof less the Trespassed Area that Mr Li granted a licence to the defendant to use.

50. Mr Shum submits that the defendant never pleads the particulars of the Licence Agreement, and so he should not be allowed to positively say what ought to be the true interpretation of the same.

51. The plaintiff raises the existence of the Licence by way of the Reply and Defence to Counterclaim: see §4(b)(i) thereof. The plaintiff specifically avers that the Trespassed Area was included under the Licence. Therefore, the plaintiff carries the evidential burden to prove the existence and the terms of the Licence Agreement, and this court has to decide whether the plaintiff has discharged such burden. As I see it, there is no unfairness in this court finding that the Licence Agreement did not include the Trespassed Area as the space licensed to the defendant. In any event, I do not need to resort to the defendant’s evidence as to how the Licence Agreement was formed to come to my findings above.” (Emphases added)

26.  Under this ground of appeal, P principally complained that the Judge erred in effectively requiring her to discharge the burden of proof to show that the Licence Agreement covered the Trespassed Area:

(1)     Insofar as legal burden is concerned, P submitted that the Judge’s approach is contrary to the principle laid down in Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498 that the burden lies on the squatter to adduce compelling evidence that he was neither a tenant nor licensee.

(2)     Insofar as evidential burden is concerned, the Judge omitted and/or failed to take into account various undisputed facts and D’s live evidence as to the scope of the Licence Agreement and whether it covered the Trespassed Area.  In particular, P argued that there was no evidence suggesting that Mr Li held the same mistaken belief when he purchased Roof 3503 in February 1994 or any time later.  The Judge erred in relying upon how the roof looked like when D purchased Flat 3502 in May 2004, when during that time Roof 3503 was possessed by Mr Li’s tenant but not Mr Li.

27.  There is no substance in these submissions.

28.  It is important to note that as observed by the Judge, it was P who asserted and raised the issue in her Reply and Defence to Counterclaim that the Licence Agreement covered the Trespassed Area and thus D was a licensee in his occupation of the disputed area.  Generally, the party who asserts carries the legal burden of proof.

29.  In this respect, it is also pertinent to note the observations by this court in Tsang Woon Ming v Tsang Hing Tat Heidi [2024] 1 HKLRD 316 at [25] per Chu VP that once a squatter had discharged the legal burden that “he is in factual possession with the intention to possess and the paper‑title owner carries the evidential burden that the occupation is with his permission and consent”[21].

30.  Further, the Judge was also clearly aware of the relevant legal principles on adverse possession that, among others, the party asserting a claim of adverse possession of a piece of land needs to establish factual possession of that land together with the requisite animus possidendi: [25] of the Judgment.

31.  Once so considered, it is plain that the Judge had not erred in principle as contended by P in his above findings:

(1)     The Judge first accepted at [42] of the Judgment that after considering the relevant evidence in [37] ‑ [41], D had shown that he had physically possessed the Trespassed Area to the exclusion of all persons (including P and her predecessor-in-title) with the requisite intention.  In other words, the Judge was first already satisfied that D had discharged his legal burden to prove that “he is in factual possession with the intention to possess”[22].

(2)     It was only after that, the Judge then went on at [46] to consider P’s case and assertion that D was in fact occupying the Trespassed Areas as a licensee as that area was covered by the Licence Agreement, and explained at [47] why P failed to discharge his evidential burden to establish that assertion.

(3)     This approach is entirely consistent with the principles as respectively summarized in [28] ‑ [30] above.

32.  Wu Yee Pak does not assist P.

33.  In that case, the plaintiff/appellant squatter claimed against the registered owners adverse possession of a piece of land in the New Territories.  The squatter’s claim was dismissed by the trial judge as the judge found on the facts that the possession was not adverse.  In so dismissing the squatter’s claim, the judge preferred the owners’ evidence to that of the squatter’s evidence, which findings were upheld by the Court of Appeal.  The squatter appealed to the Court of Final Appeal (“CFA”) challenging again the judge’s finding that he had failed to prove the necessary elements of adverse possession in preferring the owners’ evidence to his.  In this respect, as noted by the court at [8], in that case, the owners had already adduced evidence that the squatter was either a tenant or license.

34.  It is in this context that Chan PJ stated at [5] as follows:

“5. Since possession by the appellant of the land through occupation is accepted, the key issue is whether his possession was adverse in that he was neither a tenant nor a licensee of the respondents. The burden of proof admittedly lies with the appellant and the evidence he has to adduce must be compelling. Powell v McFarlane & Another (1979) 38 P & CR 452; and Wong Tak Yue v Kung Kwok Wai & Another (1997-98) 1 HKCFAR 55.”

35.  Once understood in such context, the observation at [5] of Wu Yee Pak is consistent with the principles summarized in [28] ‑ [30] above.  In the premises, the Judge’s above approach in his finding in relation to the scope of the Licence Agreement is therefore also entirely consistent with Wu Yee Pak.

36.  Second, insofar as P’s arguments as to “the omitted evidence”[23] is concerned, those submissions are equally without merits for the following reasons.

37.  P first submitted that the Judge had failed to consider the evidence that: (a) there was no discussion between D and Mr Li as to the scope of the Licence Agreement; (b) the estate agent never mentioned to D that the Licence Agreement was “excluding the Trespassed Area”; and (c) it was only D’s subjective belief that Mr Li had the understanding that the Licence Agreement excluded the Trespassed Area.

38.  However, such evidence was all highlighted at paragraphs 53 and 89 of P’s closing submissions[24] in relation to D’s evidence and the Licence Agreement.  Clearly, the Judge must be well aware of and had considered those evidence before reaching his findings.  It is also trite that the a judgment is not supposed to be a transcript of the trial, and it is not the function of a judgment to address each and every point in arguments or evidence without regard to the significance of the same in the overall exercise in assessment of facts and evidence[25].  The appellate court will not entertain an appeal simply because an applicant wishes to regurgitate arguments already considered below with the hope that this court may come to a different assessment of the situation: Symphony Partners Ltd v Fullerton Bay Investment Ltd [2018] 4 HKLRD 264 at [33].

39.  P further complained that there was no direct evidence that Mr  Li was being mistaken as to the correct boundary as the “transaction records” clearly showed that D and Mr Li were well aware of what they had purchased, and that D signed the assignment of Flat 3502 on 14 May 2004, where the description of the property purchased referred to the pink area in the plans annexed to Memorial No 2869665.

40.  There is nothing in such complaints as we entirely agree and adopt the Judge’s following reasons at [7] ‑ [11] of the Leave Decision in finding them not arguable:

“7. The plaintiff submits that I erred in finding that the defendant and Mr Li (acting for the previous owners of Flat 3503) proceeded on the mistaken basis that the Trespassed Area belonged to the 3502 Roof. The plaintiff’s submissions can be summarized as follows:

7.1 The assignment by which the defendant purchased Flat 3502 specifically referred to the plan annexed to the first assignment back in 1985 for the roof he purchased with Flat 3502. As the plan only gave the defendant exclusive occupation of the 3502 Roof, he could not have mistakenly thought that he also owned the Trespassed Area.

7.2 Since the layout of the roof tracked the layout of the flats below, the defendant and Mr Li could not have misunderstood about who was the true owner of the Trespassed Area, as it fell within the layout of the Flat 3503 below. In any event, there was no evidence showing Mr Li was indeed so mistaken.

8. I do not accept the plaintiff’s submissions that the defendant could not have been mistaken about the correct ownership of the Trespassed Area based on what he purchased in 2004. The copy of the assignment in 2004 in the trial bundles shows that the plan was not reproduced as an annexure; the copy plan included in the trial bundles was stated to be an annexure to the first assignment in 1985. The defendant was not cross examined on his knowledge about the details shown in the plan when he purchased Flat 3502 in 2004; nor whether he appreciated that the layout of the 3502 Roof (together with the Trespassed Area) did not correspond to the layout of Flat 3502.

9. Based on the above, I cannot agree with Mr Adrian But, counsel for the plaintiff, that the correct inference ought to be that the defendant knew the Trespassed Area did not form part of the roof he purchased.

10. I also disagree with Mr But that there was no sufficient evidence to support an inference that Mr Li was similarly mistaken as to the correct ownership of the Trespassed Area. In my view, the circumstantial evidence strongly supports such an inference. The following could not have happened if the plaintiff’s predecessors-in-title did not mistakenly think that the Trespassed Area belonged to Flat 3502 rather than Flat 3503: (i) the floor tiles of the Trespassed Area followed those of the 3502 Roof; (ii) the long side fence and the short side fence separated the Trespassed Area from the rest of the 3503 Roof; and (iii) after the defendant moved into Flat 3502 but before the conclusion of the Licence Agreement, there was no complaint from the then owners of Flat 3502 about the defendant’s occupation of the Trespassed Area.

11.  I cannot detect any error in my factual finding about the mistaken belief held by the defendant and Mr Li. I do not find this ground of appeal reasonably arguable.”

41.  Ground 1 is plainly not arguable.

F2.    Ground 2

42.  There are two complaints under this ground.

43.  First, P contended that the Judge was plainly wrong in finding that there was sufficient factual possession and animus possideni as he had considered irrelevant evidence, and/or misunderstood or failed to consider relevant evidence.

44.  Insofar as irrelevant and/or misunderstood evidence is concerned, it is submitted that the Judge erred at [42.4] of the Judgment in taking into account the restriction under the DMC on the use of the roof as a factor lowering the threshold for D to prove the necessary actual possession (“the Lower Threshold Factor”)[26].

45.  Insofar as the failure to take into account relevant evidence or the error in misunderstanding those evidence is concerned, P submitted that the Judge ought to have properly taken into account the following evidence which, when properly understood, is clearly inconsistent with D’s factual possession and requisite adverse intention[27]:

(1)     The management office held a key to gain access to the roof and could freely access the Trespassed Area, accordingly there could be no exclusive possession (“Evidence 1”);

(2)     D left a passageway next to the long side fence to allow the management office to check the utilities meters installed on the external wall demonstrates D’s intention and willingness to be bound by the DMC, defeating the requisite exclusive possession and intention to dispossess as against the whole world (“Evidence 2”);

(3)     The Judge failed to take into account D’s own admission at trial that sometimes plants and rack were not placed at the Trespassed Area, and were in any event moveable (“Evidence 3”);

(4)     The Judge failed to consider that D paid “tea money” (of $500) as licence fee for the use and occupation of a major part of Roof 3503, which was not owned by him and thereby acknowledged P’s predecessors’ title for such part.  The Judge ought to have found that had D been informed about the registered ownership of the Trespassed Area at the material time, D would have agreed with P’s predecessors to extend the Licence Agreement to cover the Trespassed Area as well, therefore lacking the requisite intention to possess the Trespassed Area (“Evidence 4”).

46.  Second, P argued that the Judge failed to consider whether D was able to additionally prove “outster” of P and all the other co-owners of the Building to establish adverse possession.  See: Tang Tak Sum v Tang Kai Fong [2015] 1 HKLRD 286 at [34] ‑ [40] per P Cheung JA.

47.  There is also no arguable merit in this ground.

48.  Insofar as to Evidence 1 to 4 is concerned, this complaint is again in substance a challenge on the facts and the weight accorded by the Judge to those evidence he relied on in finding that D had the requisite factual possession and requisite animus possidendi for adverse possession over the Trespassed Area.

49.  The Judge had considered the above evidence and did not find it sufficient to rebut D’s evidence of actual possession and necessary intention as explained at [42] of the Judgment.  So, the Judge did not fail to take these matters into account.

50.  In relation to the complaint that the Judge had misunderstood such evidence, we further agree with and respectfully adopt the Judge’s analysis at [20] ‑ [28] of the Leave Decision as follows in rejecting this complaint:

“20. Going to the specific evidence identified by the plaintiff, she first submits that the defendant could not have exclusive possession of the Trespassed Area because the management office held the key to gain access to the roof; and the Trespassed Area could be freely accessed by the staff from the management office. She points to §§7, 42.2 and 42.3 of the Judgment.

21. Secondly, she submits that there could be no exclusive possession because the defendant had to leave a passageway next to the long side fence to allow the management office to check the utilities meter installed on the external wall.

22. I do not accept the plaintiff’s submissions on these points. As against the whole world except the management office and the owners of Flat 3503, the defendant must have intended to possess the Trespassed Area to their exclusion on the basis of the covenant that they do not have access to the roof. As against the management office and the owners of Flat 3503, the act of encircling the Trespassed Area by the fences (and later by other objects) must have signaled to them that they could not gain access to the Trespassed Area, even when the management office carried out any inspection of common facilities on the roof as allowed under the DMC. As I see it, the plaintiff’s argument conflates the possession of the whole roof with that of the Trespassed Area.

23. It seems to me perfectly open to construe the intention of erecting the long side fence and the short side fence in the way I proposed in the Judgment. I made the finding that that was the interpretation I preferred. Mr But has not shown how such finding could be said to be wrong.

24. Thirdly, the plaintiff argues that the defendant admitted that he did not place objects on the Trespassed Area at all times; and those objects were in any event movable. Hence, there could not have been sufficient possession of the Trespassed Area.

25. This was a matter I pondered with for some time in the preparation of my Judgment. Hence, I deliberately set out the permitted use of the roof according to the DMC, and my reasoning stemming from that in §42 of the Judgment. I do not consider myself wrong in the way I approached this factually sensitive question.

26. Fourthly, I was said to have erred because the defendant must be willing to include the use of the Trespassed Area in the Licence Agreement, if he were told the correct ownership of the same. I was said to have failed to take that into account when I found that the defendant had the requisition intention.

27. I disagree. I do not think the requisite intention should be ascertained through hypotheticals. The fact was that the defendant possessed the Trespassed Area thinking he was the owner. This was sufficient.

28.     Finally, Mr But argues that there was no ouster because the defendant admitted that the plaintiff’s predecessors-in-title were allowed entry through the Trespassed Area to the 3502 Roof to view flowers. With respect, I see no substance in this argument. Given the existence of the Licence Agreement, the plaintiff’s predecessors-in-title must have entered the Trespassed Area as guests of the defendant, but not as the co-owner exercising their rights to enter the same. This cannot be taken as evidence rebutting ouster.”

51.  Further, as rightly submitted by Mr Co for D, it was held that the extinguishment of title by way of adverse possession does not extinguish the restrictive covenants running with the adversely possessed land, and the squatter remains bound by such restrictive covenants[28]. Hence, animus possidendi cannot be defeated simply by reason that the squatter observes the restrictive covenants (as those in the DMC in the present case) in relation to the land.

52.  It was against this factual backdrop that the Judge placed weight on the paving of floor tiles as an important factor.  It was entirely open for the Judge to arrive at those findings as he did on the totality of the evidence he accepted.

53.  Insofar as the Lower Threshold Factor is concerned, it relates to the Judge’s reasoning at [42.4] of the Judgment as follows:

“42.4. And given the restriction imposed by the DMC as to the use of the roof, I think the way in which the defendant has been using the Trespassed Area must be considered as sufficient possession. It seems unrealistic to expect more substantial enclosure of the Trespassed Area, as illegal structures are liable to be removed. In fact, without deciding the point, it seems to me that the long side fence itself may be considered to be a breach of the DMC, as it was not erected to assist any escape from fire or other emergency.” (Emphasis added)

54.  The mentioned restriction is related to clause 2 of Section IV Subsection B of the DMC:

“2. No Owner except the Owners having the exclusive right to occupy any Roof or part of a Roof shall have the right to use the Roof or part therefore except only for escape in the event of fire or emergency. No Owner shall erect or place or cause or permit to be erected or placed any advertising sign or illegal structure on any of the Roofs or any part thereof and the Manager shall have the right to remove anything erected or placed on any Roof in contravention of this provision at the costs and expense of the Owner.” (Emphases added)

55.  Properly read, the Judge’s finding did not suggest any “lowering of the threshold for possession”.  What the Judge did was only that based on the facts of the present case, considering the various restrictions of the DMC (in particular that the illegal structures are liable to be removed, and the restriction of using the roof except only for escape from fire or other emergency), he found that the way D had been using the Trespassed Area amounted to sufficient possession, and that it would be unrealistic to expect more substantial enclosure.  This is entirely open to the Judge to do so.

56.  In relation to the complaint (relying on Tang Tak Sum)that the Judge had failed to consider whether additionally D had further proved ouster of all the other co-owners of the Building, this contention is also misplaced.

57.  Tang Tak Sum is clearly distinguishable.  That is a case about a claim of adverse possession by a co-owner against another over a piece of land, and the court held that as between co-owners, the adverse possession claimant must prove he had intended and in fact ousted the other co-owner because in law each of them as co-owner is entitled to freely possess and make use of the entire land without excluding the other from doing so. However, the present case involves a multi-storey building, where the relevant DMC[29] has granted exclusive possession and right to use and occupy Roof 3503 and the Trespassed Area to the paper‑title owner of Roof 3503 (but not the other co-owners of the Building).  In the circumstances, there is no additional requirement as contended by P that D must also specifically prove that he had ousted the other co-owners of the Building on top of what is required under the general principles of adverse possession that he had possessed the Trespassed Area with the intention to exclude the world.  See also the Judge’s similar observation at [19] of the Leave Decision.

58.  In the circumstances, as noted at [18] of the Leave Decision, the Judge had accepted D’s case and evidence that he had mistakenly thought that he owned the Trespassed Area and used it as such, and therefore found that D had established sufficient factual possession as required.  The Judge was plainly entitled to so find on the facts.

59.  For all the above reasons, Ground 2 is unarguable.

F3.    Ground 3

60.  This ground can be disposed of shortly.

61.  P argued that the Judge erred in law in finding that D’s adverse possession against P started in May 2004. In essence, it is submitted that as Roof 3503 was let to and possessed by Mr Li’s tenant until at the least mid‑2006, and under section 9(1) of the LO time does not start to run against a leasehold interest until the reversioner took back possession of the land upon the expiry of the leasehold interest, D could not have adversely possessed the land vis-à-vis the paper-title owner from May 2004.

62.  There is nothing in this ground as the section 9(1) LO point is new and not raised during trial and thus rightly rejected by the Judge at [30] ‑ [31] of the Leave Decision to grant leave to appeal:

“30. The plaintiff submits that I erred in law in failing to appreciate the effect of section 9(1) of the Limitation Ordinance (Cap.347), in that time only accrues against a leasehold interest (i.e. a tenant) and not a reversioner (i.e. the plaintiff’s predecessors-in-title) until such leasehold interest has been determined and that the reversioner has taken back possession of the land.

31.     I do not think this ground is reasonably arguable.  The short answer is that there is no evidence showing the true relationship between the plaintiff’s predecessors-in-title, and what the defendant in his witness statement describes as the tenant of Flat 3503.  This issue was simply not explored at trial to see whether the defendant’s understanding is accurate.  In my decision, it is now unfair for the plaintiff to turn around to suggest that the plaintiff’s predecessors-in-title only had a reversionary interest during the period when there was a tenant in Flat 3503.”

63.  The Judge was entirely right to observe that it would be unfair for P to now suggest that P’s predecessors-in-title only had a reversionary interest during the relevant period as there was no evidence showing the true relationship between P’s predecessors-in-title.[30]

64.  In this respect, it is trite that the Court of Appeal will almost invariably expect an explanation to be given why new points raised on appeal (whether on facts or law) were not raised in the court below, as this is an important facet of the Court’s discretion.[31] Yet P has given no reason as to why this issue was not raised or argued before the Judge.

65.  In the premises, given the fact-sensitive nature of the matter, it is not permissible for P to rely on this new point in the intended appeal.  Ground 3 fails.

F4.    Ground 4

66.  This ground challenges the Judge’s dismissal of P’s claim against D for damages for D’s breach of the DMC on the basis of the Concession.  In this respect, the Judge held in the Judgment as follows:

“55.6 Issue 6: Whether the defendant has breached any covenants in the DMC?

Answer: Yes, but see my answer for issue 7 below.

55.7 Issue 7: If the defendant has breached the DMC, whether any action by the plaintiff for such breach is time-barred by virtue of section 4 of the Limitation Ordinance (Cap 347)?

Answer: Yes. The plaintiff has confirmed at trial that her claim under the DMC must stand or fall together with her defence against the defendant’s claim for adverse possession. Therefore, based on my findings above, the plaintiff also fails under the DMC.” (Emphases added)

67.  Under this ground, P contended that:

(1)     The Judge had erred in treating P’s trial counsel’s certain submissions as a concession that P’s claim against D for breach of the DMC stood and fell together with her defence against D’s claim for adverse possession.  There was no such concession when the submissions were properly understood: P’s trial counsel was merely submitting that the calculation of damages for trespass equalled to that of breach of DMC, and that this could be clearly shown from the parties’ pleadings, witness statements, and Agreed Statement of Issues in Dispute that the issue of breach of the DMC was independent from the issue of adverse possession.

(2)     Further and in any event, as a matter of law, even if adverse possession was established, P was still entitled to enforce the DMC against D and claim for damages as it is trite a squatter is still bound by the restrictive covenants over the land: Nisbet and Potts’ Contract, supra.

(3)     In the premises, even if there was the Concession, it is a concession in law and thus this court could and should grant leave to P to withdraw the Concession for the purpose of the appeal: Deng Minghui v Chau Shuk Ling [2007] 1 HKLRD 905 at [17] ‑ [18] per Cheung JA.

68.  This ground is equally unarguable.

69.  First, P’s trial counsel’s relevant submissions and conduct of the trial plainly amounted to an acceptance (or concession) that P’s alternative damages claim for D’s breach of the DMC stood and fell together with the finding of adverse possession in D’s favour:

(1)     As rightly noted by the Judge at [36] of the Leave Decision, D’s closing submissions read:

“As P’s counsel acknowledged at §1 of P’s Skeleton Opening Submissions, the claim for breach of the DMC adds nothing to P’s claim. These submissions will therefore be focused on the possession claim and adverse possession.” (Emphasis added)

(2)     P’s closing submissions (which was filed subsequent to D’s closing submissions) also adopted her opening submissions and focused solely on adverse possession.  Further, nowhere did P’s trial counsel mention, let alone argue, her case as to breach of the DMC (whether separately from its defence to adverse possession or at all) or contradict D’s closing submissions in that aspect.

70.  In the premises, we respectfully agree and adopt the Judge’s reasons at [32] ‑ [38] of the Leave Decision to reject P’s contention that there was no concession made at trial:

“32. The plaintiff complains that I misunderstood the plaintiff’s counsel at trial, and treated him as having confirmed that the plaintiff’s claim under the DMC must stand or fall together with the plaintiff’s defence against the defendant’s claim for adverse possession.

33. In §55.7 of the Judgment, I noted the plaintiff’s confirmation that her claim under the DMC must stand or fall together with her defence against the defendant’s claim for adverse possession.

34. In this regard, Mr But submits that he went through the audio recording of the trial, but he could not detect his predecessor having so confirmed to the court.

35. According to my own notes, the plaintiff’s confirmation stems from §1 of her opening submissions, which I quote as follows:

‘The Plaintiff claims recovery of vacant possession and damages for trespass … Alternative to the claim of damages for trespass, the Plaintiff claims damages for the Defendant’s breach of the deed of mutual covenant which is concurrent and adds nothing to the claim.’

36. This prompted Mr Co to state the following in §1.6 of his closing submissions:

‘As P’s counsel acknowledged at §1 of P’s Skeleton Opening Submissions, the claim for breach of the DMC adds nothing to P’s claim. These submissions will therefore be focused on the possession claim and adverse possession.’

37. I note that the written closing submissions were filed in sequence, i.e. the plaintiff filed her written closing submissions after considering those filed by the defendant. The plaintiff did not seek to contradict the defendant’s observations on her concession in her closing submissions.

38. Hence, I do not agree with Mr But that the plaintiff never conceded that her claim under the DMC must have the same outcome as the defendant’s claim on adverse possession.”

71.  Second, we also do not think it is arguable that P should be granted leave to withdraw the Concession in the circumstances of the present case as the said Concession had impacted on how D had conducted the trial as rightly observed by the Judge at [39] of the Leave Decision as follows:

“39. I do not think it is fair to allow the plaintiff to withdraw the concession in the context of her intended appeal. Mr But does not appear to seriously suggest that the plaintiff was prevented from making a correct decision regarding how her case should be run at trial. If the plaintiff argued that her claim under the DMC was not co-extensive with the defendant’s claim in adverse possession, the defendant would obviously seek to adduce more evidence, or would adopt a different stance at trial.”

72.  In this respect, it is pertinent to note that the pleas in the Statement of Claim about D’s breach of the DMC and P’s claim for damages for breach of the DMC are at paragraphs 5, 8 and 9 as follows:

“5. The Defendant has acted wrongfully and in breach of the provisions under the DMC as aforementioned by causing and/or permitting (i) a metal gate and its related metal frame, fence and supporting structure (the ‘Metal Gate’) to be installed/erected since 10 January 2018; (ii) tiles (the ‘Tiles’) to be paved since 10 January 2018; (ii a) one to two moveable Styrofoam box(es) since 10 January 2018 to 3 June 2018; (ii b) moveable empty pots and pots of plants and witted plants since 10 January 2018 and (iii) a moveable rack with various pots of plants (the ‘Rack of Plants’) to be placed, left and/or stored since 3 June 2018 occupying and thereby trespassing part of the roof of Flat 3503 (the ‘Roof’) without the Plaintiff’s consent. The occupied part of the Roof is approximately 140cm x 130cm (the ‘Trespassed Area’). ‘Attachment 1’ annexed hereto is a floor plan showing the Roof coloured in pink and a floor plan showing the Trespassed Area coloured in green.

…

8. The Plaintiff has suffered loss and damage in the form of, inter alia, mesne profits arising from the trespass and breach committed by the Defendant.

9.  The Defendant will continue the said trespass and/or breach of the DMC unless restrained by this Honourable Court.”

73.  Thus, the only pleaded facts in support of breach of the DMC are the same as those relied on for a claim that D had trespassed the Trespassed Area, which alleged trespass had been answered by D’s defence and counterclaim of adverse possession.  P also has not specifically pleaded which provisions of the DMC that are said to have been breached by D with reference to which specific facts.

74.  Further, in his Defence and Counterclaim, D had specifically pleaded the defences of acquiescence and/or section 4 of the LO (where any breach of the DMC covenants was time barred as the breach took place over 12 years before the commencement of the action) to this part of the damages claim[32]. In the premises, if P had pursed this part of the damages claim differently from what had been conceded, the Judge was correct to say that D might well have conducted the trial differently and dealt with the evidence, in particular oral evidence, differently.  In the circumstances, it would now be unjust and unfair to D to allow the withdrawal of the Concession for the purpose of the appeal.

75.  Ground 4 is bound to fail.

G.     DISPOSITION

76.  For all the above reasons, all the proposed grounds of appeal have no merit and are not arguable.  There is also no other reason in the interests of justice that this matter should be heard by the appellate court.

77.  Accordingly, we refuse to grant leave to appeal and dismiss the Summons.  There is no reason why costs should not follow the event.  We further order on a nisi basis that P do pay D costs of the Summons, to be assessed summarily.

78.  In this respect, D shall have leave to file and serve a statement of costs (limited to two pages) within 14 days of this decision.  P shall have leave to file and serve a statement of objections (limited to two pages) to D’s costs statement within 14 days thereafter.  Subject to such further directions as may be given, the court will then summarily assess costs without further reference to the parties.

79.  Unless any of the parties applies by summons to vary it, the costs order nisi shall become absolute 14 days from today.

80.  Lastly, since P’s application for leave to appeal is totally without merit, we make an order that no party may request the present determination to be reconsidered at an oral hearing inter partes, pursuant to Order 59, rule 2A(8) of the RHC.