CHUNG LOI KIU by her next friend, LAU CHING MAN v. LAU YIP HUNG

DCCJ 3999/2021

[2025] HKDC 1565

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3999 OF 2021

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JUDGMENT

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INTRODUCTION

1.  The present case concerns a piece of land known as Lot No. 224 in Demarcation District No. 137 (“Lot 224” or “Land”) at Pak Long Village, Lung Kwu Tan, Tuen Mun (“Village”). Unless stated otherwise, all lot numbers referred to in this Judgment are in the same Demarcation District.

2.  The Plaintiff (“P”) seeks a declaratory relief that she has acquired possessory title to a substantial portion of Lot 224 (“Pink Area”) by adverse possession. The Defendant (“D”) is the registered owner of Lot 224. He defends P’s claim and counterclaims for an injunction restraining P from trespassing on the Pink Area, an order for vacant possession of the same and mesne profit.

3.  For easy reference, a site plan [1] (“Site Plan”) showing the location of the Pink Area as well as the Yellow Area and Indigo Area (as defined at §8 below) is attached to this judgment.

4.  At the trial, P was represented by Mr. Erik Shum and Ms. Michelle Wong whereas D was represented by Mr. Jonathan Tai.

5.  Before the commencement of the trial, I dealt with P’s summons dated 5 March 2025 for appointing Ms Lau Ching Man as the next friend of Madam Chung Loi Kiu (“Madam Chung”). A medical report dated 4 March 2025 from Dr. Li Cheuk Wing (“Dr. Li”), a specialist in psychiatry, was produced in support of the application. According to Dr. Li, an assessment was conducted on 21 February 2025 and he was satisfied that Madam Chung was mentally incapacitated for the purpose of the Mental Health Ordinance (Cap. 136).

6.  The application did not concern D. In any event, there was no objection from Mr. Tai. Based on Dr. Li’s assessment, I was satisfied that Madam Chung was mentally incapacitated and made an order in terms of the summons. To avoid confusion, I will from now on use “P” when I refer to the Plaintiff as a party to the proceedings and “Madam Chung” when I refer to Madam Chun Loi Kiu.

OVERVIEW

7.  Lot 224 was previously owned by Lau Sz Ching Tso [2] (“Tso”).

8.  It is P’s case that, in 1945, with the Tso’s consent, Mr. Lau Tak Yung (“Manager”), manager of the Tso, “agreed to give” the Land to Madam Chung’s late husband, Mr. Lau Yung Wah (“Lau Senior”). Since then, Lau Senior and his family have been occupying the Land. They first grew crops on it. In around 1987 to 1988, they changed to plant lychee trees. In addition to Lot 224, they also farmed on other lots in the vicinity including:-

(a) Lots 225, 226 and 230 (collectively referred to and shown in the Site Plan as the “Yellow Area”) at the north of the Pink Area; and

(b) Lots 215 to 218 (collectively referred to and shown in the Site Plan as the “Indigo Area”) at the south of the Pink Area.

A fence was erected to surround the farming area and only members of their family had the keys to the gate at the fence.

9.  On 5 November 1990, the Tso sold Lot 224 to LWF Company Limited (“LWFC”). On 12 August 2014, LWFC sold Lot 224 to D. It is not disputed that Lau Senior and Madam Chung were not aware of these two transactions.

10.  In the Amended Statement of Claim (“ASOC”), P did not specify the commencement date of the adverse possession. P only averred that Madam Chung had been in adverse possession of the Pink Area for more than 20 years or 12 years, depending on the Court’s finding on the commencement date of the adverse possession.

11.  P’s case was only made clear in the Reply in which P averred that the occupation from 1945 onwards was pursuant to the Tso’s consent. When the Tso sold the Land to LWFC on 5 November 1990, the consent was automatically revoked by operation of law. Since then, P had been in adverse possession of the Land. P referred to this as the “primary case” but no alternative case was pleaded. In the opening, Mr. Shum confirmed that it was P’s only case and the applicable limitation period was 20 years from 5 November 1990 to 4 November 2010.

12.  D became the registered owner in 2014 when, according to P’s case, the 20-year limitation period had already expired. D has little knowledge on events allegedly happened before 2014 and did not plead any positive case. At the trial, D essentially put P to strict proof of her claim. D denies that the Pink Area was enclosed by fence and alleges that he and his other family members were free to enter the Pink Area without interference by Madam Chung from 2015 until 2021. D also argues that Madam Chung’s use of the Pink Area to plant lychee trees from 1987 or 1998 is at best occasional and insufficient to establish factual possession for adverse possession.

13.  As P admits that Madam Chung was not aware of the change of ownership of the Land in 1990 and 2014 until 2021, an argument was raised on whether Madam Chung had the animus possidendi.

14.  It is Mr. Shum’s argument that the test for animus possidendi is purely objective which can be inferred from the effective or exclusive occupation and control of the Land and the fact that Madam Chung was not aware of the sale of the Land and revocation of licence on 5 November 1990 is irrelevant.

15.  On the other hand, Mr. Tai submits that the test for animus possidendi has both subjective and objective aspects. Since P did not know the sale of the Land and the revocation of licence in 1990 and her use of Lot 224 remained unchanged after 1990, she was unable to prove the animus possidendi.

16.  In other words, the present case involves both factual and legal disputes.

LEGAL PRINCIPLES

17.  The legal principles on adverse possession were helpfully set out by Mr. Shum and Mr. Tai in their respective openings. Save for the test for animus possidendi, these principles are not in dispute and can be summarized as follows:-

(a) A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess; Wong Tak Yue v Kung Kwok Wai (No. 2) [3] at 68E

(b) The elements of factual possession and animus possidendi are two separate requirements in law though the proof of both elements can be deduced and supported by inferences from the same physical acts of possession: JA Pye (Oxford) Ltd v Graham [4] at §40;

(c) The possession should be “exclusive, continuous, open and visible and notorious”. It must not be “equivocal, occasional, or for a special or temporary purpose”; Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy [5] ;

(d) Adverse possession can be described as “possession as of wrong” and with limitation it is the intention of the squatter that is essential; Wong Tak Yue (No.2) at 68H;

(e) The intention to possess required for adverse possession “involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow”; Wong Tak Yue (No.2) at 68I-J citing Powell v McFarlane [6] ;

(f) The question of intention to possession, as with any other question of intention is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case; Wong Tak Yue (No.2) at 69A;

(g) Where the occupier has made self-serving statement as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with skepticism. The courts would scrutinize 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; Wong Tak Yue (No.2) at 69B-C;

(h) The burden of proof of adverse possession rests on the squatter. The evidence required must be “compelling” in light of the serious consequence of displacing the title of a paper owner by an adverse possessor. Nevertheless, the standard of proof remains the normal civil standard, i.e. on a balance of probabilities; Tsang Foo Keung; and

(i) A squatter’s conduct after the expiration of the relevant limitation period may be relevant to a proper determination of whether the squatter had the requisite intention to possess during the limitation period; Fung Yuk Luen v Wong Fung Lan [7] .

P’S EVIDENCE

18.  At the trial, P called:-

(a) Mr. Lau Yun Ming (“Ming”), Madam Chung’s son;

(b) Ms. Lau Yuk Ying (“Ying”), Madam Chung’s daughter; and

(c) Mr. Tang Wai Kit (“Tang”), son-in-law of Ming.

19.  P did not call Ms. Lau Yuk Tai, another daughter of Madam Chung. Upon the parties’ agreement, her witness statement is excluded from evidence.

The witness statement of Madam Chung

20.  As Madam Chung was mentally incapacitated, she was not able to give evidence at the trial. Mr. Shum sought to adduce her witness statement dated 22 May 2023 as hearsay evidence under sections 47 and 47A of the Evidence Ordinance (Cap.8) and a hearsay notice in respect of Madam Chung’s witness statement was filed on 24 February 2025 (“Hearsay Notice”). The admission was opposed by Mr. Tai. After discussion, the parties agreed to deal with the issue of admissibility at the end of the trial. In the closing, both Mr. Shum and Mr. Tai made further submissions on this issue.

21.  Section 47(1) of the Evidence Ordinance provides that evidence shall not be excluded on the ground that it is hearsay unless (a) a party against whom the evidence is to be adduced objects to its admission; and (b) the Court is satisfied, having regard to the circumstance of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.

22.  The weight to be given to the hearsay evidence is relevant to the question of admissibility. In Cheung Wei Man Vivien v Centaline Property Agency Limited [8] , Lam J said at 696H:-

“Although section 49 primarily deals with weight to be given to hearsay evidence, it does have an indirect bearing on the assessment as to whether the exclusion of a piece of hearsay evidence would be prejudicial to the interest of justice. If the Court finds it possible to conclude that irrespective of what shall happen at the trial, no weight could be attach to a piece of evidence after taking into account the matters set out under section 49, its exclusion would not be prejudicial to the interests of justice.”

23.  The burden falls on the party objecting to hearsay evidence to satisfy the Court that the exclusion of such evidence is not prejudicial to the interest of justice; Lau Kwai Ping Joyce v Fulland International Limited [9] .

24.  Mr. Shum explains that, as shown in Dr. Li’s report dated 8 May 2023 [10] , Madam Chung was of sound mind when she prepared her witness statement in May 2023. However, her physical and mental condition subsequently deteriorated and became mentally incapacitated before the trial.

25.  Mr. Shum submits that Madam Chung’s witness statement was disclosed in 2023 and P’s reliance on its contents would not take D by surprise. Further, Madam Chung was the key witness to P’s case, particularly on events since 1945 until her children matured. Excluding her witness statement would be detrimental to P’s case and unfair.

26.  Moreover, as Madam Chung was mentally incapacitated, it was impossible to call her to testify under section 48 and admitting her witness statement as hearsay was the only viable course to take. Mr. Shum emphasizes that P has all along been acting in good faith without delay and the deterioration of Madam Chung’s health conditions is beyond the control of any party.

27.  On the other hand, Mr. Tai is skeptical as to the timing of P’s attempt to adduce Madam Chung’s witness statement as hearsay. Mr. Tai points out that P expressly informed the Court at the Pre-Trial Review hearing on 7 January 2025 (“PTR”) that Madam Chung would be called to testify at the trial and there was no indication that Madam Chung was unfit to give evidence. The sudden claim in P’s Opening Submissions dated 20 February 2025 (filed 14 days before the trial) that Madam Chung’s mental condition had deteriorated is inconsistent with P’s earlier position and raises serious concerns whether the attempt to adduce her witness statement as hearsay is merely a trial tactic.

28.  According to the medical report dated 25 February 2025, Ming informed Dr. Li at the assessment on 21 February 2025 that Madam Chung’s health had deteriorated significantly over the past 2 years. Mr. Tai queries that, if Ming’s allegation were true, P must have been aware of Madam Chung’s declining health and should have ample time to secure her evidence by deposition under Order 39 but P has failed to do so. P shall not now be allowed to rely on Madam Chung’s witness statement as hearsay and unfairly deprive D of the right to cross-examine her. Further, Ming would give evidence at the trial and Madam Chung’s witness statement adds little to it.

29.  I do not query the fact that Madam Chung was mentally incapacitated when the trial commenced on 6 March 2025. My concern is on the timing of the application for appointment of next friend and the consequential attempt to adduce Madam Chung’s witness statement as hearsay evidence. As noted above, P confirmed at the PTR that Madam Chung would give evidence at the trial. The first indication that Madam Chung was “unfit to attend court to give evidence” was made in P’s Opening Submissions dated 20 February 2025[11]. The Hearsay Notice was filed on 24 February 2025 and the summons for appointment of next friend was filed on 5 March 2025. In other words, everything happened within 2 weeks before the trial.

30.  According to the Affirmation of Ms. Lau Ching Man, Madam Chung was admitted to hospital in August 2024 because she was feeling unwell but the treating doctor did not make any remark on her mental capacity. She personally was not aware of any mental health issue concerning Madam Chung. On 3 February 2025, Madam Chung was admitted to hospital again when she was feeling unwell. This time “the health condition of [Madam Chung] raised concern as to whether she is fit to attend court to give evidence at the trial” and arrangement was made to visit Dr. Li on 21 February 2025 for assessment.

31.  In my view, Ms. Lau Ching Man’s affirmation has failed to address my concerns on the timing. Firstly, it is noted that P arranged Madam Chung to be examined by Dr. Li in May 2023 to confirm her mental capacity when her witness statement was prepared but there is no explanation why examination was not carried out before P confirmed at the PTR that Madam Chung would testify at trial. This omission is particularly significant given that confirming Madam Chung’s capacity to give evidence at trial is no less important than ensuring her capacity to make a witness statement. Secondly, there is no indication from Ms. Lau that the treating doctor made any comment on Madam Chung’s mental capacity when she was admitted to hospital on 3 February 2025 and it is unclear from Ms. Lau’s affirmation what prompted the concern about Madam Chung’s mental capacity after this admission. Finally, it is noted that P had already indicated in her Opening Submissions dated 20 February 2025 that Madam Chung was “unfit to attend court to give evidence” even though Dr. Li’s assessment was only conducted on 21 February 2025 and his report was not available until 25 February 2025.

32.  Further, having considered the factors set out in section 49, I would have given no weight to Madam Chung’s witness statement even if it had been admitted as hearsay. Firstly, her witness statement was made in 2023 which is long after the events starting from 1945. Secondly, it was made for the specific purpose of present case and is an edited account. Thirdly, Madam Chung is not an independent witness. She is a party to the present case and is claiming adverse possession of the Pink Area. She has a substantial interest in the outcome of the case and has the motive to conceal or misrepresent truth. Lastly, the circumstance where P suddenly had concern on Madam Chung’s casts doubt on whether the decision to adduce her witness statement as hearsay was an attempt to prevent proper evaluation of its weight.

33.  More importantly, I agree with Mr. Tai that Madam Chung’s witness statement does not add anything to Ming’s evidence. It is P’s case that the 20-year limitation period for adverse possession started in 1990 and expired in 2010. Ming was born in 1960 and has direct knowledge on events happened during the said limitation period. He was also the person who, on behalf of Madam Chung, liaised and negotiated with D on matters relating to the Pink Area in 2021. For events before 1960s, his knowledge came from Madam Chung and Lau Senior which is hearsay. Since Madam Chung is unable to attend the trial, what she said in her witness statement about the events before 1960s would also become hearsay if the witness statement is adduced. In other words, evidence on events before 1960s would be hearsay in any event regardless of whether Madam Chung’s witness statement is admitted or not.

34.  On the other hand, I am of the view that it would be unfair to deprive D of the opportunity to cross-examine Madam Chung.

35.  By reason of the aforesaid, I am satisfied that D has demonstrated that the exclusion of P’s witness statement is not prejudicial to the interest of justice. Accordingly, I would refuse to admit Madam Chung’s witness statement as hearsay evidence, save for paragraphs 32 and 33 which were referred to during cross-examination of Ming and the admission of these two paragraphs as hearsay evidence is agreed by the parties.

Lau Yun Ming (Ming)

36.  Ming is the second son of Madam Chung. He was born in 1960. He lived in the family house on Lot 843 (known as House 257) at the north of the Yellow Area until he built his own house in around 1996.

37.  Lau Senior and Madam Chung have six children, namely:-

(a) Lau Yuk Tai (born in 1945 and moved out in 1970);

(b) Lau Yuk Ying (born in 1948 and moved out in 1969);

(c) Lau Yun Keung (born in 1957 and moved out in 1980);

(d) Lau Yun Ming (i.e. Ming);

(e) Lau Yun Yin (born in 1963 and moved out in 1994); and

(f) Lau Tsz Shan (born in 1967 and moved out in 1991).

38.  According to Ming, Madam Chung told him that, after the end of World War II, the Manager orally gifted Lot 224 and Lot 225 to Lau Senior as a reward for his services to the Tso and the family started to farm on these two pieces of land. Subsequently, they extended the farming area to other lands.

39.  Madam Chung also told Ming that, in 1950s, they erected a bamboo fence to surround the farming area to prevent trespassing. The gate of the bamboo fence was locked and only their family had the key. In addition to growing crops, they also raised pigs, chickens and cattle. Ming recalled that he assisted in farming when he was about 6 or 7 years old.

40.  In late 1960s, Lau Senior and Ming gradually replaced the bamboo fence with wire fence. The replacement was completed in 1970.

41.  When Ming’s siblings moved out one by one, Lau Senior and Madam Chung surrendered some of the farming areas and only farmed on the Yellow, Pink and Indigo Areas.

42.  In around 1987 to 1988, Lau Senior and Madam Chung decided to change from growing crops to planting lychee and longan trees because planting fruits trees was easier than growing crops. Fruit trees absorbed dew at night and they only needed to water the trees in hot weather. Except the first few years of planting, the fruit trees harvested every summer, usually in July. After Chinese New Year, Ming helped Madam Chung to apply fertilizer and salt to the soils. Ming also recalled that his two sisters came back in July to assist in picking lychee and longan.

43.  In 1988, they mainly occupied the Yellow and Pink Areas, which they referred to as “Lychee Garden”.

44.  In 1994, Ming started to build his own small house on Lot 872, which is adjacent to the western bound of the Indigo Area. The construction was completed in 1995 and the house is known as House 266. Ming construed a concrete wall with iron rods around his small house. At the same time, an iron fence of 4 feet high was erected to replace the wire fence to surround the Lychee Garden and a gate was set at the southeast corner of the Garden.

45.  In around 2010, Madam Chung ceased using Lot 215. In around 2017, Madam Chung surrendered Lots 216 to 218 to the owners, keeping only the Yellow and Pink Areas.

46.  In around June 2021, Mr. Lau Chi Sang (“Village Head”), the Village head, informed Madam Chung that the Pink Area belonged to D and asked her to remove the trees thereon. According to Ming, it was the first time that someone alleged to be the owner of Lot 224. Madam Chung indicated that she needed time to understand and investigate. Later in June 2021, Ming sent a fax to D asking about the amount of compensation for removal of trees and the date of removal [12] .

47.  On 5 July 2021 at about 2 to 3 p.m., the Village Head and one Mr. Lau came to House 266 to meet Madam Chung and Ming. At the meeting, the Village Head offered to pay $2,000 for each tree. Ming said they needed to consider the offer. The Village Head took out a settlement agreement [13] which had been signed by D (as the owner) and the Village Head (as the witness) but Ming did not sign it.

48.  In August 2021, Ming found that the iron fence was damaged and a vehicle bearing registration number UL876 (“UL876”) was parked in the Yellow Area. Ming reported the case to the Police. Vehicle search showed that the owner of UL876 was Lau Yip Wai, who is D’s brother.

49.  On 12 August 2021, Madam Chung made a complaint to the Transport Department and asked it to tow away UL876. On the same day, Madam Chung posted a notice on Lot 224 demanding the removal of UL876 within one week.

50.  On 13 August 2021, Madam Chung posted two more notices on Lot 224 stating that she was the owner of Lot 224 and warning that any trespassing or damage to the Land would be reported to the Police.

51.  On 12 September 2021 at 10:30, someone claiming to be the owner’s agent cut through the iron fence. Madam Chung asked them to stop and reported the case to the Police. Ming carried out the repair immediately and incurred a cost of $2,500.

52.  Ming denies D’s allegations (see below) that:-

(a) Staff of Helicon Ma Surveying Limited (“HMS”) was able to enter the Land to conduct surveying in around 2014 and 2015;

(b) There was communication between Madam Chung and D back in 2015; and

(c) Tuen Mum District Lands Office (“DLO”) posted a notice on the Land in 2020 in respect of D’s small house application.

Ms. Lau Yuk Ying (Ying)

53.  Ying is the second daughter of Madam Chung and Lau Senior. She was born in 1948. She started working in Tsuen Wan in 1963 and moved out from the Village in 1969. She visited her parents once every one or two months. She was aware of the erection of fence.

54.  She recalled that her parents were still growing crops on the Yellow and Pink Areas in 1980s. As her parents were growing old, they changed to plant lychee and longan trees in late 1980s or early 1990s. She also confirmed that the farming area had been fenced off at all material times.

Tang Wai Kit (Tang)

55.  Tang is Ming’s son-in-law. He first visited Lychee Garden in 2018 and observed that it was surrounded by fence. After he married Ming’s daughter in 2019, he visited Madam Chung once every two to three weeks. He usually parked his car on a concrete road outside the Lychee Garden.

56.  On 23 May 2021, he and his family arrived at the Village at around 10 to 11 a.m. and parked his car as usual. Later, there was an accusation that his car caused an obstruction and a dispute arose between Madam Chung’s family and D’s family. The matter was reported to the Police. Upon the Police’s request, Tang moved his car to another location.

D’S EVIDENCE

57.  D filed witness statements for 7 factual witnesses and all of them gave oral evidence at the trial, namely:

(a) Mr. Lau Yip Hung, i.e. D;

(b) Mr. Lau Yip Hang (“Hang”), D’s brother;

(c) Ms. Chau Wing Yan (“Chau”), Hang’s wife;

(d) Mr. Lau Yip Wai (“Wai”), another brother of D and owner of UL876;

(e) Mr. Lau Chi Shing, i.e. the Village Head;

(f) Mr. Lau Ip Hing, a villager and resident of House 273; and

(g) Mr. Lau Yuk Ping (“Ping”), a member of the Tso.

Their evidence can be summarized as follows.

58.  Prior to the purchase of Lot 224, D’s father visited the Land. He told D that there were 5 lychee trees on the Land and it was not enclosed by fence.

59.  After the purchase, D visited Lot 224 in 2015 and was able to enter the Land without any restriction. It was his observation that:-

(a) The northern bound of Lot 224 adjoined Lot 225 and there were some very old and dilapidated iron fence at the northern bound of Lot 225;

(b) The western bound of Lot 224 adjoined a small house in Lot 254;

(c) There was no iron fence at the eastern and southern bounds of Lot 224;

(d) There was no gate or lock;

(e) There was no sign indicating the identity of the occupier.

The above conditions remained unchanged until around August 2021.

60.  In about December 2014, D engaged HMS to survey Lot 224. The surveying was carried out on 14 January 2015 and no one prevented HMS’s staff from entering Lot 224. According to the survey plan prepared by HMS [14] , there was no fence at the eastern and southern bounds of Lot 224. Following the survey, D submitted his small house application in February 2015.

61.  Later, D found out that the trees on Lot 224 were planted by Madam Chung. In around May 2015, D and his father contacted Madam Chung. They told Madam Chung that D was the owner of Lot 224 and asked her to remove the trees. Madam Chung asked for D’s permission to continue growing fruits thereon and promised to remove the trees when D needed the Land to build a small house. As D’s small house application was still being processed and D had no plan to use the Land for other purposes, he allowed Madam Chung to continue growing fruits trees on the Land upon her promise.

62.  Whilst D was waiting for the outcome of his small house application, he also allowed his family members (such as Hang, Chau and Wai), friends or villagers to park their cars on Lot 224. No one prevented them from doing so before August 2021.

63.  On 9 December 2020, DLO issued a notice informing the villagers of D’s small house application and requested the villagers to reply by 23 December 2020 if there was any objection [15] . According to DLO’s notice, it was distributed to, inter alia, the “Application site”, i.e. Lot 224. D himself saw the said notice at the Village’s office, the Village’s bus stop and the tree on the Lot 224. As DLO received no objection, D’s application was approved on 18 May 2021.

64.  In March 2021, Wai started to park UL876 on Lot 224 occasionally. According to Wai, no one prevented him from doing so and the condition of Lot 224 at that time was the same from what D had observed in 2014 (see §59 above).

65.  In around April 2021, D was informed that his small house application would soon be approved and sought assistance from the Village Head to recover the Land. Later, the Village Head told D that Madam Chung had orally promised to remove the trees after that year’s harvest. Relying upon Madam Chung’s oral promise, D allowed her to continue using the Land.

66.  In May 2021, Wai purchased a new car and parked UL876 on Lot 224 on a long-term basis. Once again, no one prevented him from doing so.

67.  On 23 May 2021, there was a dispute between the family of Madam Chung and the family of D over the parking of Tang’s car and Police was called.

68.  On 13 June 2021, Ming sent a letter to D asking for compensation for removal of trees and the deadline of removal.

69.  On 5 July 2021, the Village Head and Hang met Madam Chung and Ming. Prior to the meeting, Ming told the Village Head that Madam Chung was willing to accept $2,000 per tree on Lot 224 and Chau prepared a settlement agreement so that Ming could sign at the meeting.

70.  At the meeting, Ming confirmed the acceptance of the compensation of $2,000 per tree. But when he was asked to sign the settlement agreement, Ming said he wished to consult his family members first.

71.  Thereafter, Madam Chung failed to sign the settlement agreement or to remove the trees on Lot 224. D tried to contact Ming by phone or at House 266 but to no avail.

72.  On 9 August 2021, it was found that wire fence was erected on Lot 224 but the Land was not completely enclosed and remained accessible by UL876. D tried to contact Ming but again to no avail.

73.  On 12 August 2021, D posted a notice on the wire fence demanding Madam Chung to remove it within a week. In the meantime, Madam Chung posted notices on the Land asserting for the first time her right on the Land. As D could not reach Ming, he sought assistance from the Police.

74.  On 6 September 2021, Lot 224 was completely fenced off and UL876 was trapped inside.

75.  On 12 September 2021, after seeking legal advice, D arranged to remove the wire fence on Lot 224. Madam Chung called the Police. After mediation by the Police, D temporarily restored the wire fence. D denies that he instructed anyone to remove the wire fence before 12 September 2021.

EXPERTS’ EVIDENCE

76.  Pursuant to the leave granted by the Court, P and D engaged Mr. Ian Wootten and Mr. Eric Tang respectively.

77.  The experts conducted a site inspection on 26 October 2022 and a meeting was held on 21 February 2023. They confirm that there is no significant difference in their observation over the aerial photos and survey sheets.

78.  In the Joint Statement dated 20 April 2023, the experts set out their agreements and disagreements. I shall refer to their opinions when I address the issues in dispute.

ISSUES TO BE DETERMINED

79.  In essence, the Court needs to determine the following two issues:-

(a) The first issue is on factual possession, i.e. whether Madam Chung had sufficient control of the Pink Area for adverse possession from 1990 to 2010? The disputes focus on whether the Yellow and Pink Areas were completely enclosed during this period and whether the act of growing lychee trees on the Pink Area constituted sufficient control for adverse possession; and

(b) The second issue is on animus possidendi, i.e. whether Madam Chung had the requisite intention to possess when she was not aware of the revocation of licence in 1990. Apart from the dispute on the legal principles, the outcome of this issue may also depend on the findings on factual possession because it is Mr. Shum’s argument that Madam Chung’s intention can be inferred from the factual possession of the Pink Area.

ALLEGATION OF COLLUSION BY D’S WITNESSES

80.  Before I address the issues to be determined, I shall first deal with Mr. Shum’s submissions on the alleged collusion by D’s witnesses.

81.  In the closing, Mr. Shum complains that the witness statements of D’s witnesses are almost identical on many aspects such as:-

(a) Their observation on Lot 224 at different points in time;

(b) Whether there were fences around Lot 224;

(c) The removal of fences on Lot 224 by D;

(d) The letter dated 13 June 2021 from Ming;

(e) The meeting on 6 July 2021; and

(f) Madam Chung asserting her right over Lot 224 in August 2021.

Mr. Shum summarizes the relevant parts of their witness statements in Appendix 4 to his closing submissions.

82.  During cross-examination, D’s witnesses admitted that all of them attended a meeting at the office of D’s solicitors to prepare their witness statements and they discussed the present case at the meeting to ensure the consistency of their witness statements. Later the same day, their (or their first) witness statements were typed up and they signed it accordingly. They denied the allegation of collusion and maintained that what they said in their witness statements were true and accurately reflected their observations.

83.  Mr. Shum submits that, based on the admissions of D’s witnesses, there is a clear breach of the fundamental principle of witness independence and their evidence is colluded. As the Court cannot tell which part of the witness statement comes from the witness’s own memory and which part is copied from other witnesses, he invites the Court to give no weight to all the evidence of D’s witnesses.

84.  Mr. Shum refers me to Ho Sing Yin v Chan Yiu Ling [16] where Deputy Judge Saunders said that:-

“58. This is not the first time that I have seen witness statements from two witnesses in which the majority of the paragraphs are precisely identical. I accept Mr Leung’s submission that where witness statements are presented to the court which are substantially identical, it will often be unlikely that the court will be able to place any weight at all on either witness.

59. It is right that Yau Man said that she did not have any discussion with Yau May before making her witness statement, and denied having read Yau May’s witness statement before signing her own witness statement. If that was the case the only inference that can be drawn from the fact that 64% of her witness statement was precisely identical to another witnesses statement is that the solicitors who have prepared her witness statement have slavishly copied that of another witness. It is simply unbelievable that two witnesses, even sisters, could have used precisely the same words and punctuation in telling their story.

60. Too often solicitors forget that the purpose of a witness statement is for the witness to “tell their story” to the court. The pre-prepared, pre-filed, witness statement is a substitute for the evidence in chief of a witness. The only proper way in which such a witness statement can be taken is for a solicitor to sit with the witness and question the witness, in the same way as evidence would have been elicited in the past in chief. From the answers to the questions the narrative, or “the story”, is built up in the form of a witness statement.

61. The fact that our system now requires full disclosure of a party’s case, in part by the exchange of witness statements prior to the trial, is not a license to solicitors to tailor or engineer witness statements in order that they may corroborate each other. If they do so, it will be transparent, as it is in this case, and it is likely that the court will reject the evidence of the witnesses.

62. Mr Chong sought to justify the identical paragraphs by saying that:

“It is common in the legal profession that witness statements are prepared by solicitors upon the instructions given by the witnesses. The presentation of one’s evidence in a witness statement such as the choice of words, phrases, expressions and formatting preferences is usually a matter of style determined by solicitors who know much better than the witnesses as to the relevance and weight of different events and matters.”

63. With respect to Mr. Chong, that is no answer. It is right that solicitors know better than witnesses the relevance and the weight of different events and matters. That knowledge will define the questions that are asked of the witness in the course of the preparation of the witness statement. I accept that a solicitor may determine the formatting of a witness statement.

64. But it is not for a solicitor to “choose” the words, phrases, or expressions in a witness statement. Those are all matters for the witness. Where witness statements are identical it is difficult if not impossible to believe that the witnesses have independently provided, what Mr Chong correctly described as, the “raw materials” for the preparation of the witness statement.”

85.  Mr. Shum also refers to Au Yeung Pui Chun v Cheng Wing Sang [17] where Godfrey Lam J made similar comments as follows:-

“35. In the present case, the striking similarities cannot, in my view, be accounted for by the fact that the plaintiff, Queenie and Lydia lived together. They suggest that the witnesses either conferred together about their evidence, or that they made their statements with reference to each other’s account, or that the drafter had prepared all 3 statements out of a common template. Indeed, the plaintiff admitted in cross-examination that before giving instructions to the lawyers, she, Queennie and Lydia had fully discussed their evidence (“商量過晒”). Lydia unconvincingly denied that there was any discussion. In all the circumstances, while I do not reject the statements altogether on this ground alone, the court must be very cautious in approaching them and the weight that can be placed on them has been greatly diminished.

37. It should be recalled that a witness statement is supposed to be a written statement “of the oral evidence which the party intends to adduce on any issues of fact to be decided at the trial”: Order 38 rule 2A(2). It should only contain evidence that the witness would be allowed to give had he been examined in chief orally, and evidence that the witness is personally able to give. For various reasons which I have set out in this judgment, the plaintiff’s statement cannot be accepted with any confidence as her independent recollection of the facts and events.”

86.  On the other hand, Mr. Tai submits that the mere fact that there are identical paragraphs in the witness statements or that the witnesses discussed the case when they prepared their witness statements does not necessarily mean that no weight should be given to them. The weight to be given should be considered after taking into account their answers given during cross-examination. Mr. Tai observes that Mr. Shum’s cross-examination on D’s witnesses focused primarily on the preparation of their witness statements and there was minimum cross-examination on the substantive contents of their witness statements.

87.  Further, Mr. Tai argues that the identical paragraphs in their witness statements are not referring to events but rather describing the condition of Lot 224 at different points in time. When the Land’s condition remained unchanged, it is entirely reasonable for the witnesses to use similar wording in giving instructions to D’s solicitors who then used similar wording to draft their witness statement. There is no plausible alternative way to describe it.

88.  Mr. Tai refers to Shum Wing Lok v Shum Man [18] . In that case, the plaintiff’s counsel made similar submissions on the breach of witness independence by the defendant’s witnesses and invited the court to give no weight to their evidence. Deputy Judge H Au-Yeung (as he then was) said that:-

“64. I agree that a witness should not have read the witness statements of others before making his/her own statement, because there is a possibility that his/her own memory would be tainted by others’ recollection of the matters concerned. This may well be unavoidable even if the witness genuinely intends to tell the Court what he/she believes to be the truth, because, as stated by Coleman J in Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923, “memories are fluid and malleable, being constantly rewritten whenever they are retrieved”. Therefore, if it is evident that the witnesses have discussed among themselves about the matters to be covered by their respective evidence before they prepared their own witness statements, the Court must be more cautious when considering the weight to be given to such statements. Having said that, I do not agree with the approach suggested by the plaintiff’s counsel that the Court may simply disregard all such statements and attach no weight thereto. In my view, the Court still has to consider the evidence carefully and decide whether any weight, and if so, how much weight, should be given. The usual yardsticks, such as the inherent probability of the matters concerned, and the consistency between the content of the witness statement and the contemporaneous documents, are of great importance in the weighing process.” (emphasis added)

89.  The learned Deputy Judge referred to Chan Chung Yee v Chan Wah Cho [19] and Integrity Financial Advice Network Company Limited v Chu Yau Shun [20] where the approach of not dismissing the “problematic” witness statements automatically was also adopted and agreed that that was the correct approach. The learned Deputy Judge further said that:-

“70. In my view, even in the situation where witnesses had discussed the subject matters concerned before they gave their witness statements, that does not necessarily mean that they intended to create a consistent story among themselves so as to deceive the Court. This is particularly so when family members (especially close family members) are involved. In such a situation, the weight to be given to the evidence of such witnesses should be considered after taking into account their answers given during cross-examinations, on, among other matters:

(1) Areas covered by the discussions;

(2) Reasons for the discussions;

(3) The subject matters covered by the witness statements.”

90.  I agree with Mr. Tai that I shall not automatically disregard D’s evidence simply because their witness statements contain almost identical paragraphs or they admitted that they discussed the case at a conference when they prepared their witness statements. The cases of Ho Sing Yin and Au Yeung Pui Chun should not be read as laying down any rigid rules that the Court must not give any weight to the witnesses’ evidence in such circumstances. I am of the view that the learned Deputy Judge’s approach in Shum Wing Lok is the correct one and I would respectfully adopt it.

91.  In other words, I need to consider their answers given during cross-examination on not only their discussion for preparation of their witness statements but also the substantive matters relating to the issues in dispute. In addition, when assessing the credibility of witnesses, I bear in mind the following principles set out by Deputy Judge Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd [21] :-

(a) Contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(b) 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;

(c) Regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence;

(d) Care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness' character;

(e) Witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be paid to their motives and to the overall probabilities;

(f) The credibility of a witness in matters not germane to the litigation may be of less assistance in the overall evaluation of credibility, and that it is important to have regard to the entirety of the evidence of a witness.

92.  Further, if a witness has told lies on a central issue, that may have a significant adverse impact on the credibility of his or her evidence as a whole; Swallow Kingdom Holdings v Lo Kok Shing Leo [22] .

FACTUAL POSSESSION

93.  In the closing, Mr. Tai challenges almost every aspect of P’s evidence on factual possession.

Initial occupation and use of the Land

94.  Mr. Tai first submits that P’s evidence on when and how Madam Chung started occupying the Pink Area is inconsistent and does not support P’s pleaded case:-

(a) Whilst P relies on the existence of a licence in the opening, Ming’s evidence is that Lot 224 was a gift from the Manager (on behalf of the Tso) to Lau Senior;

(b) Ming’s evidence on the alleged gift is inconsistent with, inter alia, the Letters of Administration of his estate dated 7 September 2018 and the Deed of Family Arrangement dated 4 January 2018 where Lot 224 is not mentioned as one of Lau Senior’s properties;

(c) P’s case on licence is also inconsistent with the notice dated 13 August 2021 (“13/08/2021 Notice”) where Madam Chung stated that Lot 224 had been abandoned for many years and she had fenced off the area with barbed wires and planted dozens of lychee trees [23] .

95.  I am unable to accept Mr. Tai’s submission by reason of the following:-

(a) Firstly, although the word “gift” is not used in the ASOC, P’s case therein is that the Manager “agree to give” Lot 224 to Lau Senior as a reward for his services to Tso which is an alternative way of saying that it was a gift. In fact, the term “贈送” was expressly used in the original version of P’s homemade Statement of Claim [24] . There is no inconsistency between P’s pleaded case and Ming’s evidence;

(b) Secondly, when the Manager made the oral gift of Lot 224 to Lau Senior, the Tso must have consented to let Lau Senior and his family occupy and use the Land. The fact that the oral gift was never perfected would not affect the consent to occupy given by the Tso. When the gift was not perfected, the consequence was that Lau Senior and his family occupied the Land pursuant to a licence granted by the Tso. There is no conflict between the pleaded case of oral gift and the reliance on a licence in the opening;

(c) Thirdly, it is common ground of the experts that there was cultivation in the Pink Area from 1945 onwards. The cultivation must have been known to the Tso. However, there is no evidence to show that the Tso had taken action to evict the occupier or restrain the cultivation thereon. It can be reasonably inferred that the cultivation (and hence the occupation) was consented by the Tso;

(d) Fourthly, also because of the experts’ common opinion that there was cultivation in the Pink Area from 1945 onwards, Madam Chung’s assertion in the 13/08/2021 Notice that the Land had been abandoned for many years must be wrong;

(e) Fifthly, as Lot 224 was never registered in Lau Senior’s name, it is not unreasonable that it was not included in the Letters of Administration or Deed of Family Arrangement as one of Lau Senior’s properties;

(f) Sixthly, I do not agree with Mr. Tai’s suggestion that the Tso would not gift the Land to Lau Senior who was not a member of the Tso. There is no evidence to show any rule requiring that the transferee must be a member of the Tso;

(g) Lastly, it is difficult to believe that the allegation of the oral gift is a complete fabrication as it is against P’s interest. If the occupation was not under the Tso’s consent at the beginning, it would mean that the adverse possession would have started much earlier in 1945. There would have been no revocation of licence in 1990 and Mr. Tai’s submissions on animus possidendi based on Madam Chung’s lack of knowledge of the sale in 1990 would have been inapplicable.

96.  Based on the evidence available, I find on balance that Lau Senior and Madam Chung started occupying the Pink Area in 1945 under the consent of the Tso pursuant to a licence.

Planting of trees

97.  Mr. Tai then submits that, although the aerial photos show that trees were planted in the Yellow and Pink Areas, P has failed to establish that Madam Chung was the one who planted the trees. Mr. Tai even challenges that the lychee trees now exist on the Land were planted by Madam Chung.

98.  It is the experts’ common opinion that:-

(a) From 1945 until 1995, the Yellow, Pink and Indigo Areas were under cultivation;

(b) Starting from 1996, the Yellow and Pink Areas were no longer cultivated with furrowed lines but were occasionally planted with rows of sapling or young trees; and

(c) During 2011 to 2022, no saplings or young trees could be seen as the Yellow and Pink Areas were covered by trees.

99.  It is D’s own evidence that he was told in 2015 that the trees on Lot 224 were planted by Madam Chung. Since then, he had contacted Madam Chung or Ming from time to time on matters relating to Lot 224. During the years, no other persons claimed to be the owner of the trees on the Land and D never queried that the trees thereon belong to Madam Chung.

100.  In light of the agreed opinions of the experts and D’s own evidence, I find on balance that the lychee trees on Lot 224 were planted by Madam Chung and belong to her.

101.  In any event, it is trite law that it is not necessary for the adverse possession to be made by one person for the whole of the limitation period and a squatter can rely on the occupation of the previous squatters to establish adverse possession; Lau Kwai Ping Joyce §17. In my view, Madam Chung can still claim adverse possession even if the trees were not planted by her.

102.  Mr. Tai also argues that, even if P can establish that the trees were planted by Madam Chung, it does not necessarily amount to adverse possession. Mr. Tai submits that mere tree planting, without acts of exclusion, does not establish adverse possession. Mr. Tai relied on Gotland Enterprises Limited v Kwok Chi Yau [25] where Lam VP (as he then was) held that:-

“36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. 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.” (emphasis added by Mr. Tai)

103.  Mr. Tai also relies to Wai Wah Traders Ltd v Wong Yim t/a Creative Advertising Design Company [26] where Deputy Judge Mimmie Chan (as she then was) said that:-

“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. … Land in Hong Kong is and was always been valuable, and even in the 1960s until the 1980s, it cannot be said that cutting branches and shoots, and picking lychees from the trees was the only or main advantage accruing from the Land.

53. As for any cultivation on the Land as the Leung family claim, in the nature of planting trees, clearing dead trees, weeding or fertilizing the trees or the Land, on the facts of this case, I consider that there should at the same time be some other act on the part of the Leungs of excluding the owner and the world at large, to the extent of exerting exclusive possession and control …” (emphasis added by Mr. Tai)

104.  Mr. Tai points out that there are other Hong Kong authorities where the Court held that, where planting of trees was equivocal, the Court would examine what further steps were taken by a squatter to exclude others; e.g. The personal representative of the estate of Chan Chuen v Forestside Ltd [27] , Wong Pui Wan v Wong Wing Kwong [28] , and Chan Tin Bo v The estate of Ng Cheong [29] .

105.  Mr. Shum disagrees that there is any legal proposition that mere planting trees could never establish adverse possession. He refers to Powell v. McFarlane where Slade J said that “There are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerns. The ploughing and cultivation of agricultural land is one of such act” [30] . Mr. Shum submits that the authorities relied on by Mr. Tai were just examples of unsuccessful reliance on tree planting alone to establish adverse possession. They are not authorities to rebut the proposition that tree planting could be a possessory act of adverse possession.

106.  In my view, the disagreement between Mr. Tai and Mr. Shum is, in substance, not as significant as it first seems. The fundamental principle remains that possession must be single and exclusive; Gotland §33. There is no fixed or absolute rule to determine what constitutes “single and exclusive” possession. Rather, it is a question of fact to be determined in each individual case. The act of planting trees is simply one way of using the land and whether this act alone constitutes adverse possession depends on its degree and extent, just as with any other form of land use. As held by Deputy Judge Marlene Ng (as she then was) in Lau Kwai Ping Joyce (supra), whether planting trees can be evidence of exclusive possession depends on the facts of the case.

107.  According to Ming, the process of planting and cultivating trees on the Pink Area was much simpler and attention was required during two specific periods each year, i.e. (a) after Chinese New Year, when fertilizer was applied to the soil; and (b) during the summertime, when the trees were watered and lychee was harvested. There is no suggestion from Ming that any additional work or attention was required outside these two specific periods.

108.  Considering the undisputed evidence, I agree with Mr. Tai that, after changing to tree planting in 1987 or 1998, Madam Chung’s use of the Pink Area was intermittent and occasional which, without additional acts of excluding others, insufficient for adverse possession.

109.  In any event, it is not Mr. Shum’s submissions that Madam Chung’s act of planting trees on the Pink Area alone is sufficient to establish factual possession. In addition to planting trees, Mr. Shum relies on the setting up and existence of fence made of bamboos and wires, planting of vegetation as hedges to form barriers to establish the possession.

Erection of fence

110.  As this is perhaps the most important issue in the present case, it is necessary to set out P’s pleaded case first. In the ASOC, it is pleaded that:-

(a) At the same time when Lau Senior and Madam Chung began to farm on Lot 224 in 1945, they erected wire fence surrounding the areas they farmed. As shown in Annex A of the ASOC [31] , the wire fence surrounded the Yellow, Pink and Indigo Areas; and

(b) Over the years, Madam Chung and her family had continuously maintained, repaired and improved the fence. In about early 1990s, Ming erected an iron fence, of four feet in height in place of the previous fence (“Iron Fence”). As shown in Annex B of the ASOC [32] , the Iron Fence surrounded the Yellow and Pink Areas and there was a gate at the southeast corner of the Pink Area;

(c) The Iron Fence was maintained until it was damaged by D in August 2021. As shown in Annex C of the ASOC [33] , the Iron Fence at the western, southern and eastern bounds of the Pink Area were all damaged by D in August 2021.

111.  As Madam Chung was unable to attend the trial, evidence on fence mainly comes from Ming. However, I am of the view that his evidence is not entirely satisfactory:-

(a) It is Ming’s evidence that the family erected bamboo fence in around 1950s. They started to replace the bamboo fence with wire fence in 1960s and the replacement was completed in 1970s. This is inconsistent with P’s pleaded case that, at the time when Lau Senior began to farm on the Land in 1945, they erected wire fences surrounding the areas where they farmed;

(b) Ming’s evidence is also inconsistent with Madam Chung’s affirmation filed in HCAL 1151/2021 in which she said there was nothing uneventful throughout for many decades since 1945 and the fence was erected only when people started stealing lychees [34] ;

(c) In the Annex A of the ASOC [35] , the areas enclosed by wire fence from 1945 to early 1990s included only the Yellow, Pink and Indigo Areas but in Exhibit “LYM-8” of Ming’s witness statement ^[36], the enclosed area extended to Lots 256, 257 and 872 to the west of the Indigo Area;

(d) Similarly, in the Lot Index Plan attached as Annex B of the ASOC [37] , the area enclosed by the Iron Fence from early 1990s onwards included only the Pink and Yellow Areas but in Exhibit “LYM-15” [38] , the enclosed area covered the Indigo Area as well;

(e) During cross-examination, Ming was asked why it was necessary to erect fence between the Pink Area and the Indigo Area if the Yellow, Pink and Indigo Areas had been fully enclosed as one piece. Ming’s answer was that he liked eating lychees. In my view, his answer is non-sensical;

(f) Further, there was only one gate at the southeast corner of the Pink Area in Exhibit “LYM-15” but Ming’s oral evidence is that there were two gates at the southern bound of the Pink Area;

(g) Ming’s evidence on the existence of fence at the southern bound of the Pink Area is directly contradicted by the experts who agree that there was no fence there at all material time.

112.  By reasons aforesaid, I do not think I can accept on Ming’s evidence on this important issue without reservation. In such regard, I would resort to the expert evidence.

113.  For the northern bound, as there was no fence between the Yellow and Pink Areas, the focus is on the northern bound of the Yellow Area. The experts agree that:-

(a) A hedge could first be observed in 1973 aerial photo which tallied with the fence they observed during site visit in 2022 (which they refer to as “Broken Fence”);

(b) After the ground vegetation was cleared, a linear feature could be observed along the northern bound (as well as the eastern bound) of the Yellow Area in the 1998 aerial photo. The linear feature tallied with the Broken Fence

(c) In 2006 survey sheets, a cultivation field line previously shown across the northern portion of the Yellow Area was turned into part of a new segment of fence connected to the fence along the western bound of the Pink Area and the Yellow Area (which was first depicted in 1999 survey sheets). This segment of fence was depicted extending further southerly along the western edge of the concrete footpath;

(d) A segment of fence could be observed at the similar location after the vegetation was cleared in 1998 and 2006;

(e) After 2006, the area was covered by trees and the fence could no longer be observed. Regarding the findings from the survey sheet, the northern and eastern bounds of the Yellow Area wee depicted as fence in 2006 survey sheet; and

(f) Regarding the survey sheet prepared by HMS, a fence was depicted along the northern bound and one third of the eastern bound of the Yellow Area.

114.  I note that it is D’s evidence that, when he visited the Land in 2015, he observed that there was very old and dilapidated iron fence at the northern bound of the Yellow Area.

115.  For the western bound of the Pink Area, the experts agree that:-

(a) In 1963, a structure adjacent to the western bound of the Pink Area can be observed;

(b) In 1997, the said structure was demolished in 1997. A house and its paved garden were seen at the adjourning Lot 254 and the western bound of Lot 224;

(c) In 1999, a fence was first depicted along the western bound of the Yellow and Pink Areas. The fence enclosed part of Lot 224 and part of Lot 254 as the garden of the house on Lot 254; and

(d) In 2021, the fence along the western bound of the Pink Area was replaced by an open-sided structure and a free-standing wall.

116.  The experts seem to agree that access to the Pink Area from the western bound was restricted after the construction of a house and its paved garden in 1997 even though the fence was erected in 1999. What the experts cannot agree is whether access to the Pink Area from the western bound was restricted before 1997. Mr. Tang suggests that it was not restricted, but Mr. Wootton disagrees.

117.  For the southern bound of the Pink Area, the experts agreed that:-

(a) In 2011 and 2014, no fence was depicted at the southern bound of the Pink Area;

(b) In 2015, no fence was depicted at the southern bound of the Pink Area;

(c) In 2021 survey sheet, a new cultivation field line was depicted generally along the southern bound of the Pink Area, which is where the line of the present fence.

118.  Mr. Wootton is of the view that the “present photos” show that there is little clearance above the ground to the bottom of the tree foliage on the southern bound and this means access was restricted throughout that side.

119.  For the eastern bound of the Yellow and Pink Areas, Mr. Wootton is of the view:-

(a) The records showing the fence on the eastern bound of the Yellow and Pink Areas are not consistent with the notes. By looking at the extra survey sheets and the survey record plan of 2015, it could be presumed that fences along the northern bound and part of the eastern bound existed from 2006 and was there continuously;

(b) From 1988 to 2017, there was a line of unbroken vegetation along the eastern and northern bounds of the combined Yellow and Pink Areas with no obvious breaks in the line;

(c) He is unable to conclude whether this unbroken vegetation was a fence or not. However, he is of the view that the vegetation was manmade as it appeared to be organized.

120.  Mr. Tang is of the view that:-

(a) He can only observe a linear feature at the eastern bound of the Yellow Area in 1996 aerial photo. He cannot see this linear feature further southward and along the eastern bound of the Pink Area until 2003, as its shadow is projected on the footpath. This feature can still be observed in 2006 aerial photo but it cannot be observed from 2011 aerial photo when that area became a part of the track;

(b) Regarding 2011 aerial photo, the fence cannot be clearly observed at the Yellow Area since the Area was covered by overgrown. At the eastern bound of the Pink Area, no sign of fence can be observed;

(c) Regarding 2015 survey record plan, a fence depicted around the Yellow Area tallies with the depiction over the survey sheet published in 2016. Both fences ended at a similar location. These 2 surveys were independent and probably undertaken by different survey methods, i.e. ground survey and aerial survey, and it is unlikely that the same error occurred in both plans. Thus, he is confident that the fence ended at the north-east bound of the Yellow Area, rather than enclosing the entire site of the Pink Area;

(d) The fence along the eastern bound of the Pink Area along the said footpath was probably erected around 2003, and it was probably demolished in 2011 when the said footpath was widened as a vehicular access which is shown in 2011 aerial photo;

(e) The line of vegetation grew along the footpath naturally, rather than being intentionally planted as a hedge.

121.  In summary, it is agreed by the experts that:-

(a) The fence at the northern bound of the Yellow Area existed during the whole limitation period from 1990 to 2010;

(b) The fence at the western bound of the Pink Area only came into existence in 1999 and continuous to exist until after 2010;

(c) There was no fence at the southern bound of the Pink Area from 1990 to 2010; and

(d) The fence at the eastern bound of the Pink Area existed from 2003 to 2011.

122.  In the closing, Mr. Shum appears to accept the Yellow and Pink Areas were not completely fenced off. However, he argues that complete enclosure is not necessary, and the need and degree of setting up fences and barriers depends on the risk of trespassing. If there was no or very low risk of trespassing, there is no need to enclose, let alone complete enclosure. Mr. Shum submits that:-

(a) At the western bound, the existence of structure before 1999 was sufficient to prevent trespassing;

(b) At the southern bound, as there was little clearance above the ground to the bottom of the tree foliage, access from that side was restricted. Further, the Indigo Area also served to restrict access to the Pink Area before 2017 before the Area was surrendered;

(c) As the eastern bound, the unbroken vegetation served as a fence or hedge.

123.  Unsurprisingly, Mr. Tai objects to Mr. Shum’s submissions on the ground that they amount to complete departure from P’s pleaded case. Mr. Tai refers to P’s pleadings and points out that P only relies on the cultivation and the complete enclosure as the basis for factual possession. P has not pleaded any other act of possession by, say, structure, tree, unbroken vegetation, etc.

124.  In reply, Mr. Shum argues that Mr. Tai’s complaint is wrongly placed and unjustified. It is Mr. Shum’s submissions that:-

“21. D’s complaints go to details of the facts already pleaded by P. They are not primary facts but subsidiary particulars and evidence of how the P’s pleas are to be proved. P has already pleaded the concise summary of the material facts P relies. D could not be said to be taken by surprise by the evidence contained in PWs’ statements which were exchanged long ago in 2023.

22. The primary facts of AP are sufficiently pleaded. The rest is evidence relating to all the particulars of acts of possession, namely, cultivation, erection of fences and gate to prevent trespassers. The details of the type of vegetation and the materials of the fences (whether hedges or wires) are evidence. Had D wished to know those details further and better particulars should be requested long before trial. Yet, D knew those details/particulars from PW’s statement and there was no complaint whatsoever until the trial.”

125.  With my greatest respect to Mr. Shum, I am afraid that I cannot agree with his submissions:-

(a) This is not a case where P only made an assertion of exclusive control and occupation of the Pink Area without providing particulars on how it was achieved. This is a case where P pleaded a positive case that the exclusive control and occupation was achieved by the Iron Fence which completely enclosed the Pink and Yellow Areas;

(b) Factual possession is one of the essential elements that P must establish for an adverse possession claim. How the factual possession was achieved is a material fact rather than particulars. If P’s case is that the factual possession was achieved through a combination of fencing, trees, vegetation, and structures (as now suggested by Mr. Shum), it should have been clearly and expressly pleaded in the ASOC. Since P’s pleaded case is that there was a complete enclosure by the Iron Fence (of 4 feet high), it is difficult to see what kind of particular that D was expected to ask;

(c) P’s argument that D knew those details and particulars from the witness statements of P’s witnesses is also misplaced. As noted above, Ming’s evidence is that the Iron Fence was erected in around 1996 to completely enclose the Pink and Yellow Areas. He specifically referred to the erection of fence at the southern bound of the Pink Area at §§47 and 48 of his witness statement. Nowhere in his evidence that he refers to the trees at the southern bound and the unbroken vegetation at the eastern bound as a barrier to prevent trespassing;

(d) As pointed out by Mr. Tai, because P only referred to the Pink and the Yellow Areas as “the area occupied by the Plaintiff and her family members since 1990s”, the expert direction expressly excluded any study of the Indigo Area after early 1990s [39] . If P wishes to rely on Madam Chung’s occupation of the Indigo Area to establish the factual possession of the Pink Area, P should have pleaded it so that the experts would have been instructed to comment on the Indigo Area, such as its occupation status, physical ground features and structure, existence or otherwise of fencing, etc. Without expert evidence on the Indigo Area after 1990, I agree with Mr. Tai that it is unfair and prejudicial to D to allow P to rely on the alleged occupation of the same to establish factual possession; and

(e) It is Mr. Shum’s submissions that “the need and degree of setting up fences and barriers and the degree or chances of intrusion are two matters which are very interactive, and each case is dependent on own facts”[40]. However, it is noted that, in §30 of his opening, Mr. Shum still referred to P’s case as one of complete enclosure. The submissions that complete enclosure was not required was only briefly made at §44 “[i]n response to the points of D’s expert which focus on the lack of complete enclosure” and there was no indication that “the degree or chances of intrusion” was a relevant factor to be considered in the present case. Thus, it is not surprising that the issue of trespassing to the Pink Area was not or not fully explored at the trial. In my view, it is unfair to D to allow Mr. Shum to take this point.

126.  By reasons of the aforesaid, I am of view that P should not be allowed to rely on the unpleaded acts of possession.

127.  In any event, even if P were allowed to run such unpleaded case, I am of the view that it is not supported by evidence:-

(a) As rightly pointed out by Mr. Tai, Mr. Wootton’s opinion that there was little clearance above the ground to the bottom of the tree foliage (which forms the basis of Mr. Shum’s argument that the access from that side was restricted) is based on the “present photos” dated 2022. One cannot simply assume that the condition from 1990 to 2010 was the same as 2022;

(b) There is no expert evidence on the conditions of the Indigo Area (such as how it was used, whether there was any fence along its boundary, etc). There is no evidential basis in Mr. Shum’s submission that Madam Chung’s use of the Indigo Area served to restrict access to the Pink Area from that side before 2017;

(c) It is not Ming’s evidence that, because of the existence of trees and their occupation of the Indigo Area, it was unnecessary to erect any fence along the southern bound of the Pink Area. Instead, Ming’s evidence is that, when he construed his own small house in around 1995, he erected the Iron Fence along the southern bound to separate the Indigo Area (which was used for storage of construction materials) and the Pink Area so that the construction work would not affect the cultivation in the Pink Area [41] ;

(d) As to the unbroken vegetation on the eastern bound, It is not Ming’s evidence that it was deliberately planted by Madam Chung or him or that they used it as a barrier to prevent trespassing;

(e) Mr. Shum’s argument that there is no evidence of any incident of intrusion or trespass to the Pink Area or evidence of any sort of interference with P’s use of the Pink Area before 2010 is directly contradicted by Madam Chung’s affirmation filed in HCAL 1151/2021 where she said that there was trespasser entering the Lychee Garden to steal lychee. It is also inconsistent with Ming’s evidence that Lau Senior and Madam Chung erected bamboo fence back in 1950 because of trespassing [42] .

Conclusion on factual possession

128.  By reasons of above, I find that there was no complete enclosure of the Pink Area from 1990 to 2010 and the access to the Pink Area was not restricted. I accept D’s evidence that he was able to enter the Pink Area when he visited it in 2015 and that, from 2015 to August 2021, D, his family members and friends were able to park their cars on the Pink Area without restriction or interference from Madam Chung and her family.

129.  Coupled with my finding that the Madam Chung’s use of the Pink Area for planting of lychee trees is occasional and intermittent, I am not satisfied that P has demonstrated by compelling evidence that Madam Chung had exclusive control and possession of the Pink Area to the exclusion of others from 1990 to 2010. As P has failed to prove the factual possession, it follows that her claim for adverse possession must fail.

ANIMUS POSSIDENDI

130.  Given my finding that P has failed to prove the factual possession, it is strictly speaking unnecessary for me to deal with the issue of animus possidendi. However, in deference to the submissions made by Mr. Shum and Mr. Tai and in the case that I am wrong in my decision on factual possession, I shall give my views on this issue as well.

131.  Relying on Ho Hang Wan v Ma Ting Cheung [43] , Mr. Shum argues that the test for animus possidendi is purely objective, which is to be inferred from the circumstances and evidence of the squatter’s control and possession of the subject land. It is Mr. Shum’s argument that, where the act of possession is unequivocal, the act of possession itself is sufficient to show the intention to possess and the question of intention to possess is significant only where the act of possession is equivocal.

132.  In Ho Hang Wan, the plaintiff entered possession of the land in 1957. At that time, the land was not fenced. It was the plaintiff and her husband who gradually erected fences and structures over the land and the works were completed by about 1963 or 1964. The landowner died on 21 April 1964 but the plaintiff and her husband did not know it. The plaintiff’s primary case was that she entered into the land in 1957 as an adverse possessor. The trial judge rejected this case and found that she entered into the land originally as a licensee. The plaintiff’s alternative case was that, if she was a licensee, such licence had terminated upon the death of the landowner by operation of law and thereafter the possession by the plaintiff was adverse and being no longer referable to the licence. The trial judge rejected this alternative case as well. In particular, the trial judge found that, upon the basis that the Plaintiff and her husband did not know of the death of the landowner, “nothing suggests that their state of mind was different before or after 1964. They regarded themselves throughout as licensees”. The plaintiff appealed.

133.  On appeal, the Court of Appeal held that a revocable licence is automatically terminated by the death of the licensor and it is not necessary for the licensee to have received notice of the death. On the intention to possess, it was agreed that the plaintiff, having covered the site with structures and used it as a store and a residence, could not more plainly have demonstrated exclusive physical possession to the world. Since the plaintiff denied any licence and asserted actual adverse intent from the outset, the defendant’s argument was based on a notional imputation of an intent to the plaintiff as a hypothetical reasonable licensee who had not forgotten the existence of the original licence and not having known of the death of the landowner. It was argued by the defendant that a person in such state of mind could not show sufficient intention to possess because, if challenged, she would have had to concede the right of the licensor to demand possession at some future date and it mattered not that to the outside world she could be seen to be in exclusive possession if there was no animus to dispossess the licensor.

134.  The Court of Appeal held that the plaintiff’s possession after 1964 was certain and unequivocal, and attributable to no continuing licence. The mental reservation sought to be attributed to her as a hypothetical honest or reasonable licensee, are no more than effective to negative the intention to possess.

135.  Mr. Shum submits that Ho Hang Wan was expressly referred to in Wong Tak Yue (No.2) and Li CJ observed that “there is nothing in that judgment which is inconsistent with the approach I have adopted here”. Therefore, Mr. Shum argues, Ho Hang Wan remains good law and is a binding authority on this Court.

136.  With respect, Mr. Shum is taking Li CJ’s comments in Wong Tak Yue (No.2) out of context. After saying that “there is nothing in [Ho Hang Wan] which is inconsistent with the approach I have adopted here”, the learned CJ continued to say that:-

“ … Intention is a question of fact and in determining it, the court has to assess all the circumstances. Secondly, the decision [of Ho Hang Wan] should be regarded as one on its own special facts. The Court presumed the requisite intention from the occupier’s exclusive possession after the termination of the licence by death of the licensor although the licensee did not receive notice of death. Thirdly, there is nothing on the facts in that case equivalent to the evidence we have here of the 14^th defendant’s intention as regards the payment of rent.” (emphasis added)

137.  Reading the passage as a whole, it is clear that Li CJ did not read Ho Hang Wan as laying down the principle that the test for animus possidendi is purely objective. On the contrary, Li CJ was of the view that Ho Hang Wan was decided “on its own special fact” when the Court “presumed” (not “found”) the requisite intention from the occupier’s exclusive possession after the termination of the licence by death of the licensor although the licensee did not receive notice of death. A similar comment was made by Litton PJ at 71D that Ho Hang Wan “turned upon its own peculiar facts”.

138.  On the other hand, the Court of Appeal made it clear in Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd [44] that “ … the plaintiff has to show (a) physical possession: open, single and effective exclusive control; (b) intention to possess / animus possidendi: subjectively so intended and objectively so manifested” (§33) (emphasis added)

139.  As pointed out by Mr. Tai, Ho Hang Wan was not followed in many subsequent cases. For instance, the issue of whether the test for animus possidendi is purely objective was argued in Lee Siu Fong v Wong Wan Leung [45] , Lok J considered Ho Hang Wan and held that the test is both subjective and objective:-

“21. There is, nonetheless, an issue as to whether the test of determining animus possidendi is purely objective. Relying on authorities such as the Privy Council’s judgment in Ocean Estates Ltd v Pinder, the English decision in J A Pye (Oxford) Ltd v Graham and the local decision in Ho Hang Wan v Ma Ying Cheung, the Plaintiff says that the test is purely objective.

22. I disagree. First, the learned authors in Jourdan & Radley-Gardner: Adverse Possession have stated that there are two aspects to animus possidendi: (i) there must be an actual, subjective intention to possess; and (ii) the intention must be manifested by unequivocal actions.

23. Second, the requirement of a subjective element is consistent with the Court of Final Appeal’s decision in Wong Tak Yue v Kung Kwok Wai (No 2), which held that the subjective willingness to pay rent if asked negated the requisite animus possidendi. …” (emphasis added)

140.  In Cheung Leung Tak v 張秀雯 [46] , the 1^st defendant built a wall on a piece of land (referred to as “Section D” in the judgment) with the consent of the owner. Subsequently, the owner transferred the land to the plaintiff. The 1^st defendant claimed a declaration that she had title to the wall. Recorder Steward Wong SC said:-

“69. The 1^st defendant therefore has the burden to show that she had the necessary animus possidendi after the plaintiff has become the owner of Section D, when, before that, she had been occupying the relevant part of Section D with the consent of the then owner.

70. The question of animus possidendi is one of fact, its establishment or otherwise depending on the assessment of all the circumstances of the particular case. In the circumstances of this case, where the person claiming adverse possession (on the basis that he or she has been a trespasser: if he is a tenant or licensee then he or she cannot have claimed adverse possession: §66 above) has been on the land originally as a licensee, it is a question of fact, to be considered in all the circumstances of the case, whether, on the change of ownership from the licensor to someone else, the continued occupation is with the necessary animus possidendi. The facts would have to show clearly and affirmatively the existence of the animus possidendi. Equivocal acts will not suffice.

74. The position may well be different where, after the licence to occupy has expired, the erstwhile licensee remains and has done acts beyond what has been allowed under the licence. In Topplan Estates Ltd v Townley, Jonathan Parker LJ (with whom Pill and Hooper LJJ agreed) questioned whether the position should be different depending on whether the occupier has done more than allowed under the licence, but in my judgment none of the judges in the cases cited was intending to lay down any hard and fast rules. It is not proper to do so as this is a question of fact. Where the nature and quality of the acts of the occupier go beyond those allowed under the licence, one would more readily find an intention which is different from the one when the occupier is acting under the licence. But when the acts are essentially the same, then it is more likely that the intention has not changed, and the occupier is still acting with the same intention as before, and without the necessary animus possidendi. Clear and affirmative evidence showing unequivocally the existence of the animus possidendi is required, and in my judgment the 1^st defendant has not adduced any such evidence.

75. I am mindful of the judgment of the Court of Appeal in Ho Hang-wan v Ma Ting-cheung as Personal Representative of Ma Sz-tsang, deceased, where a claim of adverse possession was established by the plaintiff who had originally entered the land as a licensee, but was able to rely on the period of possession after the death of the owner whereupon the licence was revoked by operation of law. However, on the “special” or “peculiar” facts of that case, the Court of Appeal found that the unequivocal evidence of exclusive physical possession of the land in question by the plaintiff since the death of the owner established the necessary animus possidendi, which was not attributable to any continuing licence. But I see nothing in that case to compel me to make a finding of fact, namely the existence of the animus possidendi, whenever a licensee held over after the licence had ended. In particular, if and in so far as the Court of Appeal took the view that unequivocal physical exclusive possession necessarily establishes animus possidendi, with respect, that cannot stand with the subsequent authorities including the two Court of Final Appeal cases I refer to above, as factual possession and animus possidendi are separate requirements.” (emphasis added)

141.  Mr. Shum submits that the squatter was unrepresented in Cheung Lai Tak and no full arguments could be advanced to assist Recorder Steward Wong SC. Therefore, it is no authority contradicting Ho Hang Wan.

142.  With respect to Mr. Shum, I disagree with his submissions. The fact that the squatter was unrepresented in Cheung Lai Tak does not mean that the learned Recorder’s decision is incorrect or has less force. As has been repeatedly emphasized in the authorities, intention is a question of fact which is to be determined by taking into account all the circumstances. I respectfully agree with the learned Recorder that there is nothing in Ho Hang Wan that compels me to make a finding of fact that the animus possidendi existed whenever the licence had ended. Each case is to be decided on its own facts.

143.  In a more recent case of Team Success Engineering Limited v Yau Choi Lin [47] , it was the defendants’ case that, with the consent of the original owner, the 1^st defendant caused the whole of a piece of land (referred to as “the Old Lot 256RP” in the judgment) to be paved by concrete in 1987 and then parked cars therein. The licence was revoked on 28 March 1992 when the original owner sold the land to the new owner and since then the defendants had been adversely possessing the land.

144.  Counsel for the defendants relied on Ho Hang Wan to argue that a previous licensee holding over after termination of licence could have intention to possess. Deputy District Judge Adrian Wong referred to Wong Tak Yue and Cheung Leung Tak, and held that Ho Hang Wan was found on its own facts and it does not lay down any principle that adverse possession must automatically start upon termination of the original licence. The question remained one of fact for the courts to determine. I respectfully agree with the view of the learned Deputy District Judge.

145.  Mr. Shum then refers me to Tsang Foo Keung v Chu Jim Mi Jimmy [48] where Chow J (as he then was) said that:-

“63. In so far as “intention to possess” is concerned, as mentioned above, such intention is generally to be ascertained or deduced from the physical acts of the person claiming adverse possession. The subjective intention of that person is unlikely to carry much, if any, weight.” (emphasis added)

146.  With respect, Mr. Shum is taking Chow J’s comment out of context. To fully and properly understand the learned judge’s comment that “the subjective intention of that person is unlikely to carry much, if any, weight”, one needs to consider what was “mentioned above”. The relevant part is at §44 where the learned judge said that:-

“44. In relation to the element of “intention to possess”, the adverse possessor must show that he had a “plain and unequivocal intention to exclude the world at large” (Bolton Metropolitan Borough Council v Musa Ali Qasmi (1999) 77 P&CR 36, at 37 per Peter Gibson LJ). In that case, it was also pointed out that it is not necessary for the adverse possessor to give evidence of his subjective intention. “Such self-serving evidence is hardly ever likely to be of assistance. The ordinary way in which the relevant intention is ascertained is by inference from the actions of the adverse possessor in the light of all the circumstances affecting the land.” (emphasis added)

147.  When reading the judgment in context, it is clear that, when Chow J said that the subjective intention of the squatter is unlikely to carry much weight, he was referring to the self-serving statement made by the squatter. This is in line with the approach of Wong Tak Yue which held that where the occupier has made self-serving statement as to what his intention was, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinize 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 his intention was and such statements are against his interest, the courts would usually accord to them considerable weight. In my view, Chow J’s comment does not support Mr. Shum’s argument.

148.  In my view, P’s evidence that Madam Chung was unaware of the revocation of licence in 1990 is against her interest in the same way as the squatter in Wong Tak Yue (No.2) who said that he would give the land back to the owner when he returned and the Court is entitled to take it into account when assessing the intention to possess.

149.  Mr. Shum also refers me to the Court of Appeal decision in Fung Yuk Luen v Wong Fung Lan [49] where Chow JA approved the trial judge’s decision that “enclosing land by a fence is good evidence to show an intention to exclude the world at large”.

150.  In that case, the trial judge found that the squatter occupied the land pursuant to a licence which was later terminated by notice and therefore his claim for adverse possession failed. On appeal, the Court of Appeal held that the trial judge’s finding on licence could not be supported by evidence. Since the trial judge did not make any finding on animus possidendi, it was thus open to the Court of Appeal to reach a fresh view on this issue on the basis of the existing evidence and the above comment of Chow JA was given in such context.

151.  I agree that the intention to possess can be inferred from the unequivocal act of physical exclusive possession in appropriate cases such as Fung Yuk Lung where the squatter never had the consent of the owner to occupy the land. But it does not mean that the subjective intention of the squatter shall never be considered. As emphasized by Li CJ in Wong Tak Yue (no.2), intention is a question of fact and the court is required to assess all the circumstances.

152.  Mr. Shum further argues that the law requires evidence of subjective state of mind of the squatter defies logic because there are cases where the subjective intention of a squatter cannot be ascertained.

153.  With respect, I believe Mr. Shum confuses between “requiring evidence of subjective state of mind to prove the intention to possess” and “taking into account evidence of subjective state of mind to access the intention to possess”. Whilst I agree that evidence of subjective state of mind of the squatter is not a must in a claim for adverse possession, it does not mean that the Court should ignore those evidence when it is available.

154.  By reason of the above, I reject Mr. Shum’s argument that the test of animus possidendi is purely objective. I am of the view that the Court is entitled to, and in fact shall, take into account the undisputed fact that Madam Chung was not aware of the revocation of licence in 1990 when assessing the intention to possess.

155.  Given my view on the test of animus possidendi, I would have found that P has failed to prove the intention to possess even assuming that P is able to establish the factual possession. I respectfully agree with the learned Recorder in Cheung Leung Tak that, when the acts are essentially the same before and after the termination of licence, it is more likely that the intention has not changed, and the occupier is still acting with the same intention as before, and without the necessary animus possidendi.

CONCLUSION

156.  For the sake of completeness, I confirm that I have considered all the evidence and submissions of the parties. I do not find it necessary to overburden this already long judgment by dealing with each and every argument raised by the parties.

157.  By reason of the aforesaid, I dismiss P’s claim. As P’s claim for adverse possession fails, there is no basis for her to continue occupying the Pink Area. As for the damages for trespass, since there is no evidence on quantum, Mr. Tai seeks nominal damages of $1 and there is no objection from Mr. Shum.

158.  Therefore, I enter judgment in favour of D and make the following order:-

(a) P’s claim is dismissed;

(b) P do remove the trees, the fences and any goods or items on the Pink Area (“Trespassing Items”) and deliver vacant possession of the Pink Area to D within 28 days from the date of this Order;

(c) If P fails to remove the Trespassing Items within 28 days, D is at liberty to remove the same at the costs of P subject to reasonableness of the costs;

(d) Save for carrying out paragraph (b) into effect within the prescribed period of 28 days, P, whether by herself or her servants or agents or otherwise be restrained from trespassing the Pink Area and/or entering the same without the prior consent and knowledge of D;

(e) Damages for trespass be assessed at $1;

(f) There be costs order nisi that P do pay D’s costs of the action, including the costs of D’s counterclaim and any costs reserved, to be taxed if not agreed with Certificate for Counsel; and

(g) P’s own costs be taxed in accordance with Legal Aid Regulation.

159.  Lastly, it remains for me to thank Mr. Shum and Ms. Wong for P as well as Mr. Tai for D for their very helpful assistance to the Court.