CHAN SUET YAN, the person appointed to represent the estate of PANG HO TONG, deceased v. TSUI LOK HEI AND ANOTHER

DCCJ 3407/2019
DCCJ 6227/2019

[2025] HKDC 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3407 OF 2019 AND 6227 OF 2019

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(By Original Claim)

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(By Counterclaim)

(Actions consolidated by the Order of Registrar Lui dated 14 April 2021)

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JUDGMENT

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A.  Introduction

1.  This is the Plaintiff (“P”)’s claim for adverse possession against the 1^st Defendant (“D1”), the registered owner of the land known as Section A, Section B and The Remaining Portion of Taxlord Lot No 279 in DD 89 (“Lot 279”), and the 2^nd Defendant (“D2”), the registered owner of the land known as Section B of Taxlord Lot No T42 in DD 93 (“Lot T42SB”). The two plots of land are adjacent to each other. I refer to them collectively as the “Suit Land”.

2.  D1 and D2 counterclaim to recover possession of the Suit Land. D1 further claims nominal damages of HK$100 against P and 楊麗娟 (the 2^nd Defendant by counterclaim in DCCJ 6227/2019) and all other occupiers of Lot 279 for trespass.

B.  The Trial

3.  Trial commenced on 3 June 2024. P was admitted to hospital in the course of giving evidence. He was later discharged and completed his oral testimony by 13 June 2024.

4.  The Court was subsequently informed that P passed away on 4 July 2024. On 20 November 2024, the Court granted an order to P’s wife, Madam Chan Suet Yan, to carry on these proceedings.

5.  The part-heard trial resumed on 2 January 2025. D1 and D2 informed the Court that they would not be calling any factual witness and would place no reliance on the witness statements filed on their behalves. Those witness statements were expunged as a result.

6.  The Court proceeded to hear evidence from the expert witnesses of P (“Mr Wootten”) and of D1 and D2 (“Mr Wong”), both registered professional land surveyors, on 23, 24 and 28 January 2025, and oral closing submissions on 2 June 2025.

C.  Issues in Dispute and Applicable Principles

C1.  On Adverse Possession

7.  The core issue here is whether P is able to establish adverse possession of the Suit Land. The parties agree that the applicable limitation period is 20 years. If P’s claim succeeds, D1 and D2’s counterclaims for recovery of the Suit Land will fail. Conversely, if P’s claim fails, P would have no defence to D1 and D2’s counterclaims.

8.  The law is clear that the owner of the land with the paper title is deemed in possession of the land: Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55 at 68E-F (Li CJ) and 70D-F (Litton PJ). The person claiming in adverse possession bears the burden to prove by compelling evidence that he (and his predecessor) had (1) factual possession of and (2) the requsite intention to possess the land to the exclusion of the world at large (animus possidendi) for the relevant period: Luckway Properties Limited v Liu, Chi Kong & Ors [2024] HKCA 1069 (Au JA) at paragraph 12.

9.  Factual possession signifies an appropriate degree of physical control. The question as to what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Broadly speaking, what must be shown as constituting factual possession is that the squatter 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: Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at paragraph 7 (Nazareth PJ), citing Powell v McFarlane (1979) 38 P & CR 452.

10.  There is no presumption of continued possession in favour of the person claiming in adverse possession. As Cheung CJHC (as he then was) observed in On Yip Property Development Co Ltd v Kwok Tai Kuen Alan (HCMP 3192/2013, 15 April 2014) at paragraph 8:

“In our view, the judge was correct in rejecting the contention of a presumption of continued possession in favour of the defendant’s family after the commencement of adverse possession back in the 1950s. Whether, at any material time, there was adverse possession, and whether any such adverse possession once begun continued unbroken for 20 years, are questions of fact to be established by evidence, the burden being on the squatter. He has to discharge the burden of proof by cogent and sufficient evidence. Whilst such evidence can take many forms, including direct oral evidence, documentary evidence and inferential evidence, and the parties’ cases must be considered in light of inherent probabilities and commonsense, there is no place for any presumption, whether legal or evidential, in favour of the squatter. Everything must naturally depend on the facts of each case. The situation of a squatter who has enclosed the land in question and that of one who seeks to establish a case of continuous adverse possession of open land must, by the nature of things, be rather different.”

11.  The requisite intention“involves the intention, in one’s own name and on one’s own behalf, to exclude the whole world at large, including the owner with the paper title if he be not himself the possessor, so far is reasonably practicable and so far as the process of the law will allow”. The question of intention to possess is one of fact, and whether it can be established depends on an assessment of all the circumstances in a particular case: Wong Tak Yue at 68H-J, 69A (Li CJ).

12.  An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. Where the question is whether a squatter has acquired possession, the court will require clear and affirmative evidence that the squatter, 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 intention to possess and consequently as not having dispossessed the owner. See IO of San Po Kong Mansion at paragraphs 7 and 16 (Nazareth NPJ), citing Powell v McFarlane.

13.  The self-serving statements by an occupier of his intention are “hardly ever likely to be of assistance”: Tsang Foo Keung & Key Kwong Development Ltd v Chu Jim Mi Jimmy [2015] 6 HKC 200 at paragraph 44 (Chow J), citing Bolton Metropolitan BC v Musa Ali Qasmi (1998) 77 P&CR D36 at 37. Similarly, Li CJ stated in Wong Tak Yue at 69A-C that:

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinise the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight”.

14.  The above are the general and well-established principles for determining P’s claim for adverse possession. I shall refer to other relevant principles in my analysis of particular issues below.

C2.  On Assessing Factual Evidence and Witness’ Credibility

15.  I am guided by the following principles in my approach to the factual evidence and assessment of witness’ credibility:

(1)  Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2)  In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)  Regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement;

(4)  Caution should be had against too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’ character.

See Hui Cheung Fai v Daiwa Development Ltd (HCA 1734/2009, 8 April 2014) at paragraphs 77-81 (DHCJ Eugene Fung SC, as he then was).

D.  Assessment of Evidence and Findings

16.  Having considered all the factual and expert evidence and the parties’ submissions, I come to the conclusion that P has failed to prove his case of adverse possession of the Suit Land.

17.  As I will analyse below, P’s evidence on material aspects of his case is unreliable and replete with inconsistencies and contradictions. It falls far short of the clear and compelling evidence required to establish factual possession and animus possidendi.

18.  The Court is mindful that P was in ill health in the course of trial. But his health conditions cannot really account for the unsatisfactory aspects of his evidence, as counsel suggested. In any event, the Court and counsel for D1 and D2 (who cross-examined P) were careful to ensure that P had breaks from time to time during his oral testimony. P was also repeatedly reminded to let the Court know whenever he needed such breaks, or if he was not well enough to continue. There was no request for adjournment from P or his legal representatives on medical grounds, save as the occasion when P was admitted to hospital (for which the trial was adjourned and only resumed upon P’s discharge and his confirmation that he was able to carry on with giving evidence).

19.  P’s primary case is that he had been in continuous and exclusive possession of the Suit Land to the exclusion of the paper owners since at least 1981 for more than 20 years.

20.  P’s alternative case is that he and his uncle, Lo Chue (“Lo”) were successive squatters of the Suit Land, such that Lo’s period of possession could be aggregated to that of P’s. Lo and his family were said to have been residing and rearing pigs at the Suit Land since 1974.

21.  I should note at the outset that, apart from P’s assertions, there is no evidence (let alone compelling evidence) that Lo was in adverse possession of the Suit Land. I am unable to ascertain the nature and duration of Lo’s occupation. I do not accept P’s alternative case.

22.  The following analysis therefore focuses on P’s primary case.

D1.  Alleged 1^st Agreement and 2^nd Agreement

23.  In P’s Statement of Claim, it was pleaded that he came to Hong Kong from Mainland China in the late 1970s. After moving to Hong Kong, he began residing with Lo on the Suit Land and made a living rearing pigs together with Lo until around 1987. This was repeated in P’s affirmations made in 2019 and 2020.

24.  However, in P’s oral evidence at trial, he said that after arriving at Hong Kong, he worked and resided in Wanchai and then stayed in rented accommodation in Ma Hang Village, Stanley. He only began residing at the Suit Land after he entered into an alleged agreement with Lo (“alleged 1^st Agreement”).

25.  On P’s pleaded case, the alleged 1^st Agreement was an oral agreement entered into in around 1981 and by which he acquired half of the proprietary interests of and in the Land from Lo.

26.  In his affirmations filed in 2019 and 2020, P stated that the alleged 1^st Agreement was an oral agreement made in or around 1981 by which Lo assigned half of all his interests in the Suit Land (including the pigsties, farms and other structures) to P “upon the maturity of Lo’s youngest child”.

27.  Yet, in his witness statement (dated 11 April 2022), P stated that the alleged 1^st Agreement was entered into in about 1982 and was a written agreement prepared by Lo, which provided (among other things) that Lo and P jointly operated a farm and all income and expenses were to be split between them equally（“本人盧柱和外甥共同經營農場，所有收入和支出2人半分”）.

28.  Then, in his oral evidence, P said the version in his affirmations was untrue, and he in fact acquired half of the interests in the Suit Land from Lo under the alleged 1^st Agreement immediately when he moved to the Suit Land, which was in around 1983. He also said the alleged 1^st Agreement did not provide for his acquisition of interest only upon Lo’s youngest child reaching maturity.

29.  Further still, he said in the witness box that the alleged 1^st Agreement was both an oral and a written agreement. He claimed to be able to recite its written contents as follows: “本人盧柱先生將羅湖得月樓5號A農場之一半股權畀我侄仔彭浩棠 -- 我外甥彭浩棠擁有我農場一半股權”.

30.  It is apparent just from the above summary that there were significant contradictions in P’s evidence on the timing, form and contents of the alleged 1^st Agreement. While the Court can see why there might well be mistake or confusion as to the exact year of the purported agreement given the lapse of time, the stark changes in P’s case on the form (whether oral, written or both) and terms of the purported agreement are concerning and inexplicable.

31.  P was given the opportunity to explain the discrepancies but was unable, in my view, to offer any credible answer. For example, at one point P said he made no mention of any written agreement in his Statement of Claim because his lawyer had not asked. This is incredible, as his lawyer must have taken instructions from him as to the mode of the alleged 1^st Agreement before they were able to plead that it was an oral agreement. Later on, P claimed that he did tell his lawyer that the alleged 1^st Agreement was in writing, but his lawyer might not have recorded that. This is also implausible, and contradictory to his earlier explanation.

32.  Similar difficulties beset P’s case on a further purported agreement between him and Lo (“alleged 2^nd Agreement”). In P’s Statement of Claim, this was pleaded as an oral agreement in or about 1989 by which P acquired the remaining half of the proprietary interests of and in the Suit Land from Lo. The same account was maintained in P’s affirmations filed in 2019 and 2020.

33.  However, in P’s witness statement, the alleged 2^nd Agreement was said to be a written agreement signed by him and Lo in about 1985 or 1986. The background was said to be that P and Lo decided to cease operating their pigsty to obtain compensation from the government, and P gave up his half share of the compensation (HK$60,000 out of HK$120,000) in exchange for Lo’s remaining half interest in the Suit Land.

34.  During cross-examination by D1’s counsel, P confirmed that the alleged 2^nd Agreement was purely in writing. Yet, when cross-examined by D2’s counsel, P suddenly said that the alleged 2^nd Agreement was both oral and in writing. The different versions are irreconcilable.

35.  P’s account as to how the alleged 1^st Agreement and alleged 2^nd Agreement (assuming they were in writing or partly in writing) came to be lost is also unsatisfactory. In his witness statement, he said there was flooding between around July and September 1989, causing a backflow of rainwater into his house. When he took stock of his properties and cleaned up the place, he discovered that the two alleged agreements had disappeared. There was no mention then of where he had put them in the first place.

36.  Then, in cross-examination, P said for the first time that the alleged agreements were placed inside the drawer of a TV cabinet. If this were true, it is unclear why the documents would be lost (as opposed to just damaged) as a result of the flood. In any case, it is hard to see why this key and specific fact (of P storing the two alleged agreements inside a cabinet drawer) only emerged at trial.

37.  I note P’s oral testimony that Lo’s son and daughters (whom he was able to name) were present when the alleged 1^st Agreement was signed. P claimed that he had maintained contact with them, and even approached some of them for the alleged agreement which was kept by Lo, but they could not find the same.

38.  None of these was mentioned in P’s witness statement. When asked why he had called none of Lo’s son and daughters to give evidence, P initially accepted that his lawyer had advised him on the need to find them as witnesses, but he considered it unnecessary because their evidence would just be similar to his own. This is hardly a good explanation, when that is the whole point of having corroborating evidence. When subsequently asked by D2’s counsel why he did not call Lo’s son, P said his lawyer sometimes said he should do that and yet sometimes said it was unnecessary. This deviated from his earlier account, and is in any event inherently improbable.

39.  The two alleged agreements are an important plank of P’s case as to how he came to be in possession of the Suit Land. Yet his evidence in relation to them is incoherent, confusing and uncorroborated by any objective evidence.

D2.  Purported Acts on or in respect of Suit Land

40.  P’s case is that he and Lo ceased their pig rearing business in 1987 and Lo moved out of the Suit Land in 1989. P worked as a truck driver until 1992. In 1991, he married his wife, who resided in the Mainland and only officially relocated to Hong Kong in 2000. From 1992 to 2013, P worked as a cross-border truck driver. He said no longer resided on the Suit Land daily, and instead lived in both the Mainland and Hong Kong. In 2001 to 2002, P and his wife moved out from the Suit Land to東方村.

41.  On P’s evidence, his address at the Suit Land was No 22 Tak Yuet Lau or Tak Yuet Lau 5-C6 or Tak Yuet Lau 4B. Lo’s address at the Suit Land (before Lo moved out) was 5A Tak Yuet Lau.

42.  P claimed that he did the following acts on or in respect of the Suit Land over the years: (1) growing plants and/or fruit trees; (2) erecting structures, renovating the metal gate and metal mesh fences built by Lo, and later erecting a further metal gate on Lot 279; (3) storing properties and personal belongings; (4) paying utility bills for occupation, use and maintenance; (5) building a hand pump well outside Lot 279 and two artesian wells near the main road west to both Lot T42 and Lot 279 in around 1982; (6) renting part of the Suit Land to another uncle of his, Pang Heung Tat; (7) entering into a written agreement dated 8 August 2017 (“2017 Agreement”) to license the 2^nd to 4^th Defendants by Counterclaim to use and occupy part of the Suit Land.

43.  As I shall explain below, there is no or no sufficiently cogent evidence in support of these various purported acts.

44.  I should mention at this juncture that I have considered the various photos produced by P with a view to showing the activities he and/or his family had purportedly carried out on the Suit Land. But I have had difficulty drawing any clear conclusion from the photos, when they are undated. Where they appear to show P and/or his family in some indoor or outdoor spaces, it is not possible to verify that those spaces were indeed located within the Suit Land, absent any clear and objective corroborating evidence. Where they appear to show certain structures erected or works done on some land, again I am unable to ascertain whether the location was the Suit Land and (even if so) whether such structures or works were done by or on behalf of P, absent any clear and objective corroborating evidence.

D3.  Frontier Closed Area Permits

45.  It is common ground that the Suit Land forms part of the Frontier Closed Area, entry to which requires Frontier Closed Area Permit (“FCAP”). The existence of FCAPs should therefore be useful contemporaneous evidence shedding light on the frequency with which (and possibly the purpose for which) P accessed the Suit Land.

46.  P produced only three FCAPs:

(1)  The first was issued on 12 March 1988 and valid for 6 months until 12 September 1988. The address of P was stated as 22 Ma Hang Village, Stanley HK. The words “Temp worker” were handwritten at the top of the permit, and the condition for the permit was “Employed by Lo Chu….at 5A Tak Yuet Lau”;

(2)  The second was issued on 13 November 1995. It was a one-month-long permit to “take care of property”, with no address of the property specified;

(3)  The third was issued on 31 December 2008, with a validity of 4 days only. The following was stated on the permit: “VISIT PANG HEUNG TAT, 22 TAK YUET LAU TKL NT”.

47.  These permits do not support P’s case that he resided at the Suit Land to operate pig rearing business with Lo, and regularly stayed at the Suit Land whenever he was in Hong Kong between 1992 to 2001 or 2002. At trial, P gave inconsistent answers as to whether he had applied for or obtained any resident permit, and whether he had requested the government authority for records of any other permits issued to him in support of this litigation. At one point, P claimed that he had instructed his lawyers to issue a letter for such request to the government authority, but no such letter was produced on behalf of P upon D1’s specific discovery application for the same (which this Court granted during trial).

D4.  Utility Bills

48.  P produced a few statements issued by Hongkong Telecom in 1994 or 1995, a letter from a paging company dated May 1995, and a Notice Demanding Payment of Fixed Penalty dated February 1995 from the Chief Inspector of Police, all addressed to “Pang Ho Tong” at “5A Tak Yuet Lau”. However, 5A Tak Yuet Lau was, on P’s testimony, the address of Lo rather than P himself. In any event, the scanty documentary evidence does not sustain P’s case as to his alleged occupation of the Suit Land.

49.  P has also produced several electricity bills issued in 2018 or 2019 in respect of “No 22 Tak Yuet Lau”. They were addressed to “Pang Kit Sun”, who is P’s son. In his witness statement, P explained that after his tenant, Pang Heung Tat, passed away in 2015, the name in which the utility accounts were registered was changed from Pang Heung Tat to his son, because P has been suffering from illness.

50.  Even taking this explanation into account, the Court is still unable to infer from the sparse evidence that P had been in possession of the Suit Land for the periods he alleged. The electricity bills referred to above show zero electricity consumption. In any event, it is P’s case (to which I will refer further below) that since the 2017 Agreement, it was his “licensees” who have been in occupation of the Suit Land. It is unclear why the electricity account was still registered in his son’s name in 2018 and 2019. P did not call his son to give evidence.

51.  In cross-examination, P said that some utility bills were kept in the drawer of the cabinet and were destroyed by the flood in 1989. This was not mentioned in his witness statement. P said that he did not keep utility bills after 1989 as he had not envisaged the need to use them in these proceedings. When asked, P initially said he made no enquiries with utility providers for copies of utility bills, but later changed his account and said that his wife actually made enquiries on his behalf for water, electricity and telephone bills. P did not call his wife to give evidence.

52.  At one point in his oral testimony, P said that the water and electricity consumptions of the Suit Land were charged to the utility meters belonging to his neighbours, who allegedly invited P to use their utility meters. This did not feature in P’s witness statement and strikes me as inherently incredible.

D5.  Structures on and Access to the Suit Land

53.  Part of P’s case is that he had erected and/or maintained fencing and gates on the Suit Land, which evinced his intention to exclude others from entry. P placed reliance on expert evidence to the effect that a gate and some fencing could be observed at some parts of the Suit Land at some points in the material time.

54.  While the experts have identified the whereabouts, the existence (and duration thereof) of certain structures, gates, fences and the spread of vegetation in and near the Suit Land, and the changes in land use and tracks over the years, this case does not ultimately turn on expert evidence. The crux of the matter is whether these structures, fences and gates were built, erected and maintained by or on behalf of P to enclose the Suit Land as alleged with the intention of keeping out the world at large.

55.  The experts (with no disrespect to them) could provide limited assistance in this regard from observing the aerial photographs and survey sheets. They would not be able to tell, for example, who carried out the human activities observed.

56.  To further illustrate the point, one of the major differences between the experts was whether the fence/hoarding at the southeastern boundary of the Suit Land existed since 2001 (according to Mr Wootten) or 2004 (according to Mr Wong). The timing was said to be significant, because the southeastern side was covered by dense vegetation before 2001, but a large area was excavated with construction activities from 2001 to 2004. Had there been an owner/occupier on the Suit Land, he would probably not have left the southeastern side without any fence/hoarding in those years, or the excavation would have created open access to the Suit Land.

57.  In support of his view that there was a barrier at the southeastern boundary since 2001, Mr Wootten referred to the different colours on the ground on the two sides of the supposed barrier. However, as a matter of common sense, the colour difference could be readily explained by other possible factors, including (as Mr Wong pointed out) a difference in the materials on the ground. It would not in any event be possible for this Court to conclude that there was a barrier erected by or on behalf of P based on his expert’s evidence, when there is no clear and compelling evidence from P himself in this regard (such as objective proof as to when and what works were done by him or on his behalf of erect the barrier).

58.  In the circumstances, while I have been apprised of all the experts’ evidence and the parties’ submissions thereon, I do not consider it necessary or fruitful to deal with each and every point of disagreement between the experts. I do not regard the experts’ evidence as providing the clear and compelling proof of P’s adverse possession which is lacking from his factual evidence.

59.  For completeness, I do not accept that P is entitled to rely in his closing submissions on the natural barrier of a slope on the northeastern side of the Suit Land and government fences on the top of the northern slope. These matters were not pleaded. As such the other parties did not have the opportunity to address them in their factual or expert evidence.

D6.  Alleged Rental Arrangement

60.  P’s pleaded case is that since around 1983 to 1984, his uncle Pang Heung Tat had rented a room on the Suit Land and paid rent to himself and Lo. After the alleged 2^nd Agreement in 1989 through which P purportedly acquired the remaining half of the interests in the Suit Land, Pang Heung Tat paid rent to P alone until the former passed away in 2015.

61.  However, in his affirmations and witness statement, P made no mention of Lo having ever received any rent. In his oral testimony, P insisted that he was the sole recipient of the rent, and neither Lo nor Lo’s family had received any. According to P’s witness statement, the rent was HK$500 at the outset. It was increased to HK$4,000 in 2000 and to HK$6,000/annum in 2006.

62.  The only available documentary evidence before the Court on the subject was a handwritten receipt dated 1 January 2000, which stated“玆收到彭香達交來2000年租金共HK$4000元正”and“收租人：盧永發”. 盧永發 is Lo’s son.

63.  P claimed that盧永發only collected rent on his behalf. But it is unclear why盧永發should have to do so, when it was P (rather than盧永發) who resided in the Suit Land along with Pang Heung Tat in 2000. It is also unclear why (according to P) 盧永發 would pass this document to P, when it was supposed to be a receipt issued to Pang Heung Tat. P did not call盧永發 to give evidence to clarify any of these matters.

64.  The Court is unable to accept P’s case that he had possessed the Suit Land via a tenant, on the basis of P’s account (which is internally inconsistent) and the receipt (which on its face does not support P’s case).

D7.  After 2001 or 2002

65.  As noted above, P’s case is that he and his family moved out of the Suit Land to reside at東方村 in around 2001 or 2002. His evidence is that he and his wife nevertheless returned to the Suit Land a few times per month for maintenance, cleaning, upkeep, taking care of plants, growing vegetables and letting his children play there.

66.  As noted earlier, the undated photos produced by P do not really provide much assistance. In any event, insofar as the acts of taking care of plants and growing vegetables are concerned (which some of the photos appear to show P’s family to be doing), I would respectfully echo the observations of DHCJ Mimmie Chan (as she then was) in Wai Wah Traders Ltd v Wong Yim trading as Creative Advertising Design Company (HCMP 965/2000, 8 December 2011):

“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 as 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 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…” (emphasis added)”

D8.  2017 Agreement

67.  The 2017 Agreement, called“協議書”, was typewritten in Chinese. The parties were P, the 2^nd Defendant by Counterclaim, and the 3^rd and 4^th Defendants by Counterclaim (who were both minors at the time). These persons were also signatories to the document, along with four other individuals who variously signed as“見證人”or“監管人”.

68.  The document contains the phrase“永久使用屋及空地（以圖為正）”. However, in response to a request from D1’s solicitors for the plan/photo referred to in the document, P’s solicitors stated that they were “instructed to confirm that the said plan/photo did not exist”. The document further refers to“將羅湖得月樓農場坐西向東”. It then sets out the respective areas of“地下”,“上蓋”and“屋前空地”, and the amount of HK$680,000, stated to be payable by two instalments.

69.  It is P’s case that by the 2017 Agreement, he granted a licence to the 2^nd to 4^th Defendants by Counterclaim as licensees for their use and occupation of a portion of the Suit Land. These licensees would purportedly help P take care of the Suit Land when he was absent. I note, however, that the document does not contain any provision to the effect that the so-called licensees would help P take care of the Suit Land. It is also unclear why these persons should have to do so, if (as per the document) they had been given“permanent”（永久）usage of a portion of the Suit Land (which the Court is unable to identify absent any plan/photo).

70.  At trial, P admitted in cross-examination that he no longer had any interest（業權）in the portion of the Suit Land that was transferred to the so-called licensees, and that he had no control over that portion. This was a fundamental deviation from his written evidence that the licensees were supposed to take care of the Suit Land for him.

71.  Hence, to the extent that P runs the case that he has continued to control the Suit Land via purported licensees, I reject the same as it is not supported by his own evidence – whether the 2017 Agreement or his oral testimony at trial.

D9.  Adverse Inference against D1 and D2?

72.  Finally, I do not agree with P that an adverse inference should be drawn against D1 and D2 for not calling their supposed witnesses or other persons identified in P’s closing submissions.

73.  The short answer is that D1 and D2, as paper owners, are entitled to rely on their legal titles without having to run a positive case or adduce evidence in support: Birkenhead Properties and Investments Limited v Lam Kai Man (HCMP 1588/2012, 12 January 2016) at paragraph 20 (To J).

E.  Disposition and Costs

74.  For all the above reasons, I order that:

(1)  P’s claims against D1 and D2 in this action be dismissed;

(2)  Judgment be given for D1’s counterclaim for nominal damages of HK$100 from P and楊麗娟 (the 2^nd Defendant by counterclaim in DCCJ 6227/2019);

(3)  There be a costs order nisi that P pay D1 and D2’s respective costs of this action, with certificate for two counsel, to be taxed on a party to party basis if not agreed; and that P’s own costs be taxed in accordance with the Legal Aid Regulations.

75.  I thank counsel for their assistance.