CHEUNG SOON CHUNG v. THE OCCUPANT(S) of Lot No. 452 in D.D. 87 AND ANOTHER

DCMP 2702/2017

[2022] HKDC 46

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2702 OF 2017

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J U D G M E N T

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Introduction

1.  The plaintiff is the registered owner of a piece of land in Ta Kwu Ling, New Territories known as Lot 452 in D.D. 87 (“Lot 452”).

2.  In May 2017, he and the registered owners of the adjoining lots – Lots 451, 454 and 456 – received notifications from the Government of an unauthorized development on their land.[1] The Government demanded them to discontinue any material change in the use of their land. 

3.  Upon inspection, the plaintiff discovered that his land had been used for storage without his consent but was unable to identify the occupants.  His solicitors posted up a notice to quit in August 2017 to demand all occupants to leave but to no avail. 

4.  In September 2017, the plaintiff commenced this action under Order 113 of the Rules of the District Court against the occupants (as the 1^st defendant)  for possession of his land.

5.  The 1^st defendant did not enter an appearance, but Mr Ng Hung Yin applied to join in these proceedings and was added as the 2^nd defendant.  By an order dated 2 November 2017, the court gave directions for pleadings and ordered this action to proceed as if it had been begun by a writ.

6.  According to the Statement of Claim, the plaintiff is seeking, inter alia, vacant possession, mesne profits and damages (representing cost of reinstatement, cost for removal of any unauthorized development, and fines that may be imposed on the plaintiff by reason of the unauthorized development).

7.  According to the Amended Defence and Counterclaim (“AD&CC”)  filed by the 2^nd defendant: -

(a)  he denies the claim on the ground that he has come to occupy Lots 451, 452, 454 and 456 (collectively called “the Four Lots”)  since around the 1960s for accommodation, farming and cultivation without the permission of the land owners and without paying any rent, and been in adverse possession of the Four Lots including Lot 452 for a period exceeding 20 years; and

(b)  he counterclaims for a declaration that the plaintiff’s title in respect of Lot 452 has been extinguished by reason of sections 7(2)  and 17 of the Limitation Ordinance, Cap 347 (“LO”)  and that he has established a possessory title to the lot.

The trial

8.  Only the plaintiff and the 2^nd defendant took part in the trial.

9.  According to the plaintiff’s counsel (Mr Francis Yip), his client is not seeking any relief against the 1^st defendant.  The 2^nd defendant’s counsel (Ms Eugenia Yang)  confirms that her client is not disputing the plaintiff’s title. The main issue for trial is therefore whether the 2^nd defendant can establish by evidence adverse possession of Lot 452 for not less than the applicable limitation period.

10.  The plaintiff testified at the trial and leave was granted for him to adduce the expert reports of his land surveying expert (Mr Eric Tang)  and his land valuation expert in evidence.  Pursuant to the direction of the court, Mr Tang also attended the trial to be cross-examined on the issue of fences prior to 2007.

11.  On the part of the defence, the 2^nd defendant testified and he called his nephew (“nephew”)  and the former Chief Vice Chairman of Ta Kwu Ling District Rural Committee (Mr Wong Wai Yim)  to give evidence.  The 2^nd defendant elected not to call his remaining witness Mr Siu Kwok Wah, and Mr Siu’s statement has been expunged.  There is no expert evidence from the 2^nd defendant.

12.  The parties have no dispute over the documentary evidence in the trial bundles (“Bundle”).  In particular, the 2^nd defendant does not challenge the aerial photos and survey sheets included in Mr Tang’s report.

13.  On day two of the trial, Ms Yang applied to amplify the 2^nd defendant’s witness statement.  As Mr Yip would have to cross-examine the 2^nd defendant on those issues anyway and bearing in mind the court’s primary objective to secure just resolution of disputes in accordance with the substantive rights of the parties, leave was granted for the 2^nd defendant to elaborate on the fences erected and the vegetation planted on Lot 452 by means of a supplemental witness statement.

14.  On day three, the 2^nd defendant took out a summons for leave to adduce the supplemental witness statement of the nephew.  That was met with strong opposition. 

15.  Mr Yip submitted that the supplemental witness statement went beyond the 2^nd defendant’s pleading and the nephew’s witness statement already filed in that the nephew alleged for the first time in his supplemental statement that he had been paying rent to the 2^nd defendant. 

16.  As recently pointed out by Coleman J (in the context of a late application to amend the pleadings), the courts generally frown upon late applications especially applications that may derail a milestone date or disrupt a trial: -

“It is well known that, post-CJR, a late interlocutory application may be dismissed on the basis of delay alone. Therefore, late applications to amend pleadings and file late witness statements will be closely scrutinised by the court. The applicant must establish, by way of affirmation, what might be described as exceptional circumstances to explain and justify the delay. The delay itself might ground justifying refusal of leave, especially if a milestone date will likely be affected. Further, even if the trial date might be maintained, it is recognised that last-minute pre-trial applications disrupt the preparation for the trial on the part of the parties and the trial judge. Attention and time and effort may have to be diverted to deal with such an application, instead of trial preparation proper.”[2]

17.  No explanation – let alone exceptional justification – was proffered by the 2^nd defendant for the delay.  In my view, it would be quite unfair to the plaintiff to admit the new evidence of the nephew without discovery and proper enquiry. The summons was therefore dismissed with costs.

The applicable law

18.  The law on adverse possession is well settled. 

19.  Section 7(2)  of the LO is in these terms: -

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person…”

And section 17 provides that: -

“… at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

20.  Section 7(2)  was amended in 1991.  The transitional provision relating to that amendment (at section 38A(1))  provides that where the cause of action accrued before 1 July 1991 and if it had not already expired at the time of action, the previous limitation period of 20 years should apply.

21.  As the 2^nd defendant alleges to have started to possess the Four Lots (including Lot 452)  in 1960/1961, both counsel agree that the applicable limitation period is one of 20 years.[3]

22.  Counsel have referred me to well-known authorities such as Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007)  10 HKCFAR 588 at para 7, Gotland Enterprises Limited v Kwok Chi Yau, unreported, CACV 260/2014, 19 January 2016 at para 37 and Megarry & Wade on The Law of Real Property, 9^th edition (2019)  at paras 7-030 to 7-032.  For present purposes, the following principles may be noted: -

(a)  Adverse possession is a question of fact to be established by evidence. In the absence of evidence to the contrary, the owner of a piece of land with the paper title is deemed to be in possession of his land.  The burden is on the squatter claiming adverse possession to show that he has both factual possession and the requisite intention to possess (animus possidendi).

(b)  Factual possession requires an appropriate degree of physical control.  It must be a single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly.  Thus, a squatter cannot be in possession at the same time as the dispossessed owner.  Whether there is a sufficient degree of physical control of the land must depend on the circumstances of each case, including the nature of the land and the manner in which land of that nature is commonly used or enjoyed.  What must be shown is that the squatter has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.  Whilst acts of possession on parts of land to which a possessory title is claimed is evidence of possession of the whole, whether such acts on parts do establish title to the whole must be a matter of degree.

(c)  The squatter must also show that he intends, in his own name and on his own behalf, to exclude the world at large from the land in question, including the owner with the paper title, so far as is reasonably practicable and so far as the processes of the law will allow.  There must be clear and affirmative evidence that he, claiming that he has acquired possession, not only had the requisite intention to possess but manifest such intention clear to the world. 

(d)  When a claim is made over a piece of open or agricultural land, the issue of fences invariably becomes a material issue.  Whilst it is not absolutely essential to have the land fenced off, that is the classic way of establishing exclusive possession and the strongest possible evidence of adverse possession.  In the absence of any physical barriers, the court must examine what steps had been taken by the squatter to exclude others. 

Discussion

23.  In her closing submissions, Ms Yang focused on the following arguments in support of the 2^nd defendant’s claim of adverse possession: (i)  enclosure and fencing off of the Four Lots; (ii)  farming and cultivation on the Four Lots; (iii)  building and use of a hut on Lot 456; and (iv)  the nephew’s use of the Four Lots.

  (i)  Enclosure and fencing off of the Four Lots

24.  It is the 2^nd defendant’s evidence that when he sneaked into Hong Kong from mainland China at the age of 19 in about end of 1960 and beginning of 1961, Ta Kwu Ling was rather barren and not many people resided there.  Seeing no one occupying, using and/or living in the Four Lots, he enclosed and fenced off the entire area and started making a living there by farming and cultivation.  At the trial, he identified on the Lot Index Plan at page 158 of the Bundle the area that he had enclosed and fenced off, which is basically around the outer perimeter of the Four Lots. 

25.  According to him, he hacked off bamboos from the neighborhood and erected them (at 6-8 feet apart)  around the Four Lots.  Each bamboo was about 7 feet long, and he inserted about 1 foot of it into the ground.  He used metal wires to join the bamboos horizontally at 3 levels to prevent cows and sheep from straying into the enclosed area. 

26.  Both the nephew and Mr Wong confirm that the Four Lots were enclosed and fenced off.

27.  To start with, the 2^nd defendant only mentioned for the first time in November 2019 that he had enclosed and fenced off the Four Lots since about the time when he came to occupy the land.[4] Prior to that, there was no mentioning of any enclosure or fences when he applied to join in in November 2017[5] or in his Defence and Counterclaim filed in August 2018.  It took him 2 years to mention that.

28.  More fundamentally, the 2^nd defendant’s case is contradicted by the aerial photos and the survey sheets in evidence: -

(a)  No enclosure or fences could be observed from the aerial photos taken between 1961 and 2007.[6]

(b)  The earliest photo that shows any sign of enclosure around the Four Lots was taken on 5 March 2008.[7] As observed by Mr Tang from the photo, the Four Lots had been paved and turned into a storage area with fences (in terms of metal sheet hoarding)  surrounding the paved area. 

(c)  Likewise, the survey sheets dated between 1968 and 2008 did not record any fences around the Four Lots.[8]

(d)  The earliest survey sheet that records any fences around the Four Lots was dated 29 January 2009. [9]  Mr Tang observed from the survey sheet that there were fences to the north, east and south of the Four Lots but the north-western side was left open.  

29.  Mr Tang was cross-examined on the issue of fences and he stood by his opinion as highlighted above.

30.  Ms Yang refers to the reservation noted in Mr Tang’s report that: “… the photo images may be subject to distortions due to the angle of photo-shooting and the variation of the terrain heights. Minor and/or vertical features such as fence may not be discernible unless under favourable conditions.”  She submits that the fences alleged by the 2^nd defendant were not apparent because of the poor quality of the photos and the fact that some of them are in black and white.  I do not think so. 

31.  Whilst the earlier photos may be a bit blurred (eg the photo taken in 1961 on page 225 of the Bundle), the resolution of the latter photos are good and they are in colour.  By way of illustration, Mr Tang referred to the aerial photo taken in 2007 where one can clearly see the shadows of some poles erected on the Government Land that was surrounded by the Four Lots.[10] Given the 2^nd defendant’s evidence, there would have been many 6-foot tall bamboos erected along the outer rim of the Four Lots since 1960/1961.  It is unbelievable that none of the aerial photos taken between 1961 and 2007 captured their shadows and that the surveyors preparing the survey sheets could have missed them throughout such a long period of time. 

32.  I also agree with Mr Yip that there was no discernable reason for the 2^nd defendant to spend so much effort (on the bamboos)  and money (on the metal wires)  to enclose the entire area of the Four Lots in 1960/1961 when he (initially)  only cultivated a relatively small portion of it.

33.  The nephew admitted under cross-examination that given his age he only had a rough memory of his uncle (ie the 2^nd defendant)  prior to 1990.  Whilst Mr Wong claimed to have known the 2^nd defendant for over 40 years, he confessed that much of what he had stated in his certificate[11] and his witness statement was hearsay that came from the 2^nd defendant out of their casual conversations in a local tea house.  Given that and the objective evidence of the aerial photos, I do not find their evidence on the fencing of the Four Lots reliable.

34.  All in all, I reject the 2^nd defendant’s case that the Four Lots had been enclosed and fenced off by him since 1960/1961.

  (ii)  Farming and cultivation on the Four Lots

35.  It is the 2^nd defendant’s evidence that he started farming on the Four Lots at the end of 1960 and the beginning of 1961.  He got married in 1966 and his wife joined him in farming the land.  They were later helped by their children.  The family ceased all farming activities in mid-2007 due to the advanced age and poor health of the couple and the fact that their children had moved away. Instead, he gave permission to his nephew to use the Four Lots for the nephew’s storage business.

36.  I find his evidence as to the timing and extent of his cultivation doubtful.

37.  First, his claim that he had started farming on the Four Lots in 1960/1961 is at variance with the aerial photos.  There is no sign of any farming activities in the photo taken in October 1961, and Lot 452 was then covered by vegetation.[12] The earliest aerial photo that captured any farming activity on the Four Lots is dated 16 May 1969.[13]  Thus, it is doubtful whether the 2^nd defendant had started farming as early as in 1960/1961 as claimed. 

38.  Secondly, it can be seen from the aerial photo taken in May 1969 that only Lot 452 and parts of Lot 451 were under cultivation.  The remainder of Lot 451 and the entire Lots 454 and 456 remained uncultivated.  As at December 1973, the area under cultivation remained more or less the same.[14] Subsequently, the area of cultivation expanded northeasterly to cover Lots 454 and 456 as well as the eastern part of Lot 451.[15]  Thereafter, the area under cultivation remained more or less the same until about 2004.[16]  Thus, the 2^nd defendant’s evidence that he had farmed on the Four Lots right from the beginning cannot be true. 

39.  Thirdly, Mr Tang could not observe any cultivation on Lot 452 between December 2004 and July 2007 and the land was recovered by vegetation.[17] The next aerial photo dated 13 November 2007 shows that the Four Lots had been cleared up to make way for the nephew’s storage business.[18]

40.  The absence of any cultivation on the Four Lots between 2004 and 2007 is clear sign of abandonment.  I reject Ms Yang’s bold submission that the 2^nd defendant continued to occupy the land although he had chosen not to use it.[19] It is the 2^nd defendant’s evidence that his wife was taken ill in around 2004 which was followed by his own hospitalization in 2006.  There is nothing to show that he continued to occupy the land when they were attending medical treatment.  I find it more likely than not that the 2^nd defendant abandoned the Four Lots in about 2004.

  (iii)  Building and use of a hut on Lot 456

41.  It is the 2^nd defendant’s case that soon after he had occupied the Four Lots, he built a hut on Lot 456 for accommodation as well as to facilitate his farming activities. 

42.  But his evidence in court on the location of the hut was confusing: - 

(a)  At the beginning of his evidence, he identified the structure at the northern tip of Lot 456 in the aerial photo adduced by him at page 170 of the Bundle as his hut.[20] But that hut was marked with squatter control no.28-B4 on the photo, which is different from the number assigned to his hut according to his pleading and witness statement (which was no.24-B4).[21] 

(b)  Further in his evidence, he marked on Exhibit D4 the location of his hut which is on the Government Land surrounded by the Four Lots.  This is contrary to his pleaded case that his hut is situated on Lot 456.[22]

(c)  The 2^nd defendant was not re-examined on his inconsistencies. 

43.  Whilst there is other documentary evidence that tends to confirm the existence of a hut bearing squatter control no.24-B4,[23] I am at a loss as to the actual location of the hut. 

44.  The plaintiff has confirmed with the Lands Department that there is no record of the 2^nd defendant’s squatter occupant registration on the Four Lots.[24] The Lands Department’s record was not challenged at trial. 

45.  Furthermore, it is Mr Tang’s evidence that the structure at the northern tip of Lot 456 could not have existed prior to April 1980 as the aerial photo dated 18 April 1980 shows that it was then under construction.  This is at variance with the 2^nd defendant’s case that he built “some structures in the form of a hut on Lot 456” at about the time when he came to occupy the Four Lots.[25] Under cross-examination, he claimed that it was initially a makeshift hut made of wooden planks and canvass.  I find that unlikely as Mr Tang could not observe any such structure from the aerial photos dated between 1961 and 1976[26] and the surveyors who compiled the survey sheets dated 1968 and 1975 made no marking of it.[27] 

46.  Thus, I cannot be sure where the 2^nd defendant’s hut is and whether it is within the Four Lots.

  (iv)  The nephew’s use of the Four Lots

47.  According to the 2^nd defendant, he gave permission to his nephew to use the Four Lots to set up a storage business in 2007.  The nephew renovated the Four Lots in 2007/2008 for his storage business.[28] The aerial photo taken in November 2007 captured the renovation works.[29]  The aerial photo taken in March 2008 and the survey sheets dated January 2009 and February 2010 confirm that fences had been installed around the Four Lots.[30]  In about 2011, the nephew received notification from the Government requiring him to reinstate the land and he complied.[31]  The nephew later resurrected his storage business as per the aerial photo taken in May 2014 and the survey sheets dated March and August 2017.

48.  Thus prior to the commencement of this action in September 2017, the 2^nd defendant had been in possession of Lot 452 qua his nephew’s usage for about 10 years.

  (v)  Adverse possession prior to 2004?

49.  I now come to analysis the 2^nd defendant’s claim of adverse possession of Lot 452.

50.  Despite my findings in (ii)  above, there is objective evidence of farming activities on parts of the Four Lots from about 1969 to sometime before 2004. According to Tang’s report, whilst the extent of cultivation on the Four Lots had changed over the years, Lot 452 remained under cultivation during that period of time: -

Bundle	Date of aerial photo	Tang’s evidence
225	26.10.1961	Lot 452 was covered by vegetation
226	16.5.1969	Lot 452 was under cultivation
227	19.12.1973	Lot 452 was under cultivation
228	23.11.1976	Lot 452 was under cultivation
229	18.4.1980	Lot 452 was under cultivation
230	17.2.1983	Lot 452 was under cultivation
231	3.8.1986	Lot 452 was under cultivation
232	7.9.1990	Lot 452 was under cultivation
233	30.6.1994	Lot 452 was under cultivation
234	27.2.1997	Lot 452 was under cultivation
235	9.8.2000	Lot 452 was under cultivation
236	17.12.2004	Lot 452 was covered by vegetation
237	25.10.2005	Lot 452 was covered by scattered vegetation
238	25.7.2007	Lot 452 was still covered by scattered vegetation
239	13.11.2007	Lot 452 and its adjoining lots were cleared up

51.  In Yu Siu Cheuk v Realray Investments Limited, unreported, CACV 181/2009, 10 November 2009, the Court of Appeal observed (referring to the facts of that case)  that:-

“17. For the purpose of establishing his claim, the plaintiff has to establish that for at least 20 years prior to the issue of writ in February 2007 he has been in continuous adverse possession of the property thereby defeating the paper title of the defendant. This means that he must show that he has been on the property since at least 1987. For the purpose of deciding whether the defendant’s title has been defeated by limitation the Court does not need to decide the precise point of time when the plaintiff entered the property so long as it is satisfied that the plaintiff has proved that he has been there for twenty years with the necessary intention to possess. This is what the Court which is seized of the matter should decide. The plaintiff has, of course, stated he was there even earlier in 1979. If that is the case, then the title of the defendant would be defeated at an earlier time in 1999.

18. Even if the plaintiff cannot establish that he first entered in 1979, the Court still has to address the issue of the 20 years’ adverse possession. It is true that the plaintiff had not put forward some other specific alternative date or dates when he entered into possession of the property. He had chosen not to do so but it does not mean that the Court could ignore the plaintiff’s case that he had been in continuous possession since 1979 which encompasses the 20 years’ adverse possession issue.

19.  The plaintiff certainly did not confine his case that either he had entered in 1979 or he had not entered at all.  To the contrary he had called evidence on the use of the land since he entered into possession: he had converted the structures on the land for domestic use, he had cultivated the land, he had kept domestic animals, he had fenced the land and obtained electricity and water.  Some of these activities were confirmed by contemporaneous evidence such as the aerial photographs on fencing and the connection of electricity and water to the property.  The Recorder has not made specific finding on these matters because he has not addressed the plaintiff’s case on the 20 years’ adverse possession.”

52.  Both counsel agree that the 2^nd defendant is entitled to rely on the aerial photos to claim adverse possession from a date later than 1960/1961.[32]

53.  Be that as it may, Mr Yip argues in his further submissions that “the aerial photos do not establish who did the cultivation on Lot 452 and whether with animus possidendi”.[33]  Two questions arise from his challenge: the identity of the person(s)  who had farmed on the Four Lots; and whether the possession was coupled with the requisite intention.

54.  I accept on balance of probability that it was the 2^nd defendant who had farmed on the Four Lots. 

(a)  There is no one else (apart from the 2^nd defendant)  claiming to have farmed on the Four Lots over that period of time. 

(b)  The earliest available aerial photo (dated 26 October 1961)[34] and survey sheet (dated 1968)[35] show that the Four Lots were divided by field bunds into pockets of land.  Three pockets of land were cultivated in May 1969.[36]  The extent of cultivation gradually expanded to cover other pockets of land. [37]  That is roughly consistent with the 2^nd defendant’s evidence that he had been joined by his wife and later his children in expanding his cultivation.

(c)  The abandonment in 2004, which is apparent from the aerial photos, also coincided with the couple’s failing health and their children moving away. 

55.  The more pertinent question is whether the 2^nd defendant had the requisite intention to possess.  Whilst such intention may be deduced from acts of physical possession, much would depend on the circumstances of each individual case.  The high standard of proof that is required from a squatter who takes possession without the owner’s consent to establish adverse possession cannot be stressed enough.  As Slade J explained in Powell v McFarlane (1977)  38 P&CR 452 at 472:-

“An owner or other person with the right to possession will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment is why the slightest acts done by or on behalf of an owner in possession would be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the Courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly clear to the world at large by his actions or words that he has intended to exclude the owner as best he can, the Courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”

56.  Whilst enclosure is not indispensable or necessarily conclusive, it is the strongest possible evidence of such an intention.  Lam VP (as he then was)  also emphasized in Gotland 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.”

57.  In my view, the 2^nd defendant’s claim of adverse possession of Lot 452 must be viewed in the wider context of his claim that he had been in possession of the Four Lots.  As can be seen from the earliest available aerial photo and survey sheet, the Four Lots had been cultivated before as there were field bunds dividing the land into smaller pockets of land.  By the 1960s, the Four Lots were abandoned.  There is objective evidence that between 1969 and 2004, the 2^nd defendant farmed on some but not all of these pockets of land and the extent of his cultivation changed over the years.  One of the pockets of land he consistently cultivated coincided more or less with the boundary of Lot 452.[38]  Apart from the field bunds, there was nothing to distinguish the pocket of land that resembled Lot 452 from other (cultivated or uncultivated)  parts of the Four Lots.  Significantly, it is not the 2^nd defendant’s case that he built the field bunds to mark off Lot 452 from the rest of the Four Lots.

58.  I have rejected the 2^nd defendant’s evidence in (i)  above that he enclosed and fenced off the Four Lots.  Anyone, including the paper title owners, could venture into and roam freely through the Four Lots.  As I have found in (iii)  above, there is no clear evidence that the 2^nd defendant and his family resided on site.  It is not his case that he had taken any measure to keep others off his cultivation including the pocket of land that resembled Lot 452.  Whilst he might be using parts of the Four Lots for cultivation, he did nothing to manifest an intention to exclude others from his cultivation.  The field bunds that encircled his cultivation as well as the uncultivated parts of the Four Lots did not serve that purpose.  The situation is akin to the example mentioned in Lam VP’s quotation of above – merely planting fruit trees without excluding others from entering the land do not constitute adverse possession.

59.  This ties in with the curious statement in para 26 of the 2^nd defendant’s Defence and Counterclaim that: “The 2^nd Defendant has been getting along well with individual owner/occupier of the Lot 452.”  The point is that if the 2^nd defendant had got along well with the owner/occupier, his alleged occupation of Lot 452 was unlikely to be adverse.  The plaintiff came to Hong Kong in 1979 and became the registered owner of the land in 2013.  He does not know how his predecessor-in-title (his father)  who died in 1975 had dealt with the land.  Despite the request of the plaintiff, the 2^nd defendant refused to provide further and better particulars on the statement with the excuse that those were matters of evidence.[39] Eventually, the 2^nd defendant deleted that statement when he amended his pleading.

60.  All in all, I am not satisfied that the 2^nd defendant had the requite intention when he was in physical possession of Lot 452 between 1969 and 2004. 

61.  Consequently, as at 2004 when the 2^nd defendant abandoned the Four Lots, he had not acquired title by adverse possession.

  (vi)  Adverse possession prior to the commencement of the action?

62.  It is the 2^nd defendant’s evidence that he gave permission to the nephew to set up a storage business on the Four Lots in 2007.[40] There is objective evidence that the 2^nd defendant returned to the Four Lots between July and November 2007.[41]  Fences were built in early 2008 around the perimeter of the Four Lots which is clear evidence of an intention to keep others out.[42]  I am satisfied that the 2^nd defendant has been in possession of Lot 452 qua the nephew’s storage business with the requisite intention from about 2007. 

63.  In her further submissions, Ms Yang argues that the 2^nd defendant can claim adverse possession in excess of 20 years based on the aerial photos in evidence.[43] I do not think so.  

64.  Since the period of possession must be continuous, the 2^nd defendant may not aggregate his possession before 2004 and his possession after 2007 to make up for the required limitation period given the abandonment between 2004 and 2007 (see (ii)  above). 

65.  During the gap between 2004 and 2007, the plaintiff had possession in law of his land.  There was no person whom he could sue and his land ceased to be in adverse possession.  When adverse possession was taken by the 2^nd defendant again qua the nephew’s use in 2007, a fresh right of action accrued and the plaintiff has the full limitation period of 12 years to enforce his right.[44] Up to the commencement of this action in 2017, the 2^nd defendant had only been in adverse possession of Lot 452 for about 10 years. 

Conclusion

66.  For the above reasons, I am not satisfied that the 2^nd defendant has established adverse possession against the plaintiff.  The plaintiff is entitled to vacant possession of Lot 452 against the 2^nd defendant.

67.  The parties have agreed that in the event where I find for the plaintiff, the 2^nd defendant should pay the plaintiff mesne profits for his wrongful occupation of the land from 14 May 2013 to 14 September 2021 in the sum of $885,200.[45]

68.  The 2^nd defendant should also pay for his occupation from 15 September 2021 onwards at $10,200 per month based on the valuation of the land valuation expert.[46]

69.  Mr Yip has confirmed that the plaintiff is forgoing his claim for further damages.

70.  I therefore enter judgment on the plaintiff’s claim against the 2^nd defendant for: (1)  vacant possession of Lot 452; (2)  payment of the accrued mesne profits agreed at $885,200; and (3)  payment of further mesne profits at $10,200 per month from 15 September 2021 until delivery of vacant possession.

71.  Whilst there is a claim for interest, I do not think the plaintiff should be awarded pre-judgment interest on mesne profits as such an award would overcompensate him.[47] He is however entitled to post-judgment interest as provided in section 50 of the District Court Ordinance, Cap 336.

72.  The 2^nd defendant’s counterclaim is dismissed.

73.  There is no dispute that costs should follow the event.  I order the 2^nd defendant to pay the plaintiff the costs of this action including the costs of defending the counterclaim and any reserved costs, to be taxed if not agreed.

Annex I