KWOK CHOI NGO as the next friend of LUI LIN SHUN v. SHEEN MAN LUN (aka SIN MAN LUN) AND OTHERS

DCCJ 5626/2017

[2024] HKDC 1961

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5626 OF 2017

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BETWEEN

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AND BETWEEN

(By Order to carry on dated 29th October 2019)

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JUDGMENT

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I. INTRODUCTION

1.  The plaintiff claims adverse possession:

(a) against the 6^th defendant of part of Lot 124 Remaining Portion in Demarcation District No 3 Mui Wo; and

(b) against the 1^st, 2^nd and 4^th defendants of part of Lot 125 in Demarcation District No 3 Mui Wo

as delineated in a plan marked Annexure 2 (“Annexure 2”) attached to the Re-Re-Amended Statement of Claim (being “Lot 124RP” and “Lot 125” respectively, and, together, the “Subject Land”). A copy of the plan is annexed to this Judgment below. The area colored yellow shows Lot 124 RP and the area colored red shows Lot 125.

2.  The plaintiff has discontinued its claims against the 3^rd, 5^th, and 7^th defendants.

3.  According to a medical report dated 7 September 2020, the plaintiff has become mentally incapacitated. Upon the parties’ joint application, and pursuant to HHJ MK Liu’s order dated 13 September 2021, the plaintiff’s wife Kwok Choi Ngo (“Mrs Lui”) was appointed as the plaintiff’s next friend to carry on the present proceedings.

4.  The 1^st, 2^nd and 4^th defendants are brothers. The 1^st and 2^nd defendants have been the registered owners of Lot 125 since 12 May 1980, each holding a one-third interest in Lot 125.

5.  They have also since 18 July 2008 been the registered owner of the remaining one-third interest in Lot 125, holding the same on trust for the 4^th defendant.

6.  The 6^th defendant has been the registered owner of Lot 124RP since 13 August 2019.

7.  The 6^th defendant confirmed in its Form of Acknowledgement of Service that it does not intend to contest the plaintiff’s claim against it. It has not filed any defence.

8.  By a Notice of Motion dated 21 October 2024, the plaintiff seeks inter alia:

(a) A declaration that the title of the 6^th defendant in Lot 124RP has been extinguished by virtue of sections 7, 10 and 17 of the Limitation Ordinance (Cap 347); and

(b) A declaration that the plaintiff having been in adverse possession of Lot 124 RP for a period in excess of 20 years before the commencement of these proceedings, has acquired good possessory title to the same.

9.  In this judgment, I will first deal with the plaintiff’s claim in relation to Lot 125 before dealing with the plaintiff’s application for default judgment against the 6^th defendant in relation to Lot 124RP.

II. LOT 125

A. THE PARTIES’ RESPECTIVE CASE

A1. The plaintiff’s case

10.  The plaintiff’s case is that on or about 4 December 1973, the plaintiff and a Lam Ping entered into a written agreement in Chinese for sale of the pigsty erected on Lot 125 and all the pigs and equipment therein, for a consideration of HK$9,000 (the “1973 Agreement”).

11.  Pursuant to the 1973 Agreement and the discussions between the parties, Lam Bing sold Lot 125 to the plaintiff, and the plaintiff should pay an annual rent of HK$65 to Lam Bing for the exclusive possession of Lot 124RP.

12.  Since around 1973 until March 2016, the plaintiff had been in exclusive, open, continuous and uninterrupted physical possession of Lot 125.

13.  Further, the plaintiff had had the intention to possess Lot 125 and to exclude the world at large.

A2. The defendants’[1] case

14.  The defendants dispute that the 1973 Agreement was an agreement for the sale and purchase of Lot 125. They also put the plaintiff to strict proof of the alleged physical possession and intention to possess Lot 125.

15.  Further, the defendants contend that when the they went to the Subject Land between March 2010 and April 2015, the Subject Land had been abandoned, had no one using it, had no fence or lock, and was covered with weed, vegetation, rotten leaves and rubbish.

16.  On 29 November 2013, when the 2^nd and 4^th defendants went to the Subject Land, they discovered that the smaller temporary structure was locked up. Shortly thereafter, on 13 December 2013, they destroyed the said lock.

17.  On 29 January 2016, the defendants applied for electricity supply for the Subject Land.

18.  On 20 March 2016, the defendants removed certain fences in the south of the Subject Land which had been built without their consent and enclosed the Subject Land with hoarding to prevent other people from going in.

B. APPLICABLE LEGAL PRINCIPLES

19.  The following provisions of the Limitation Ordinance are relevant:

(a) Section 7(2):

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

(b) Section 8(1):

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

(c) Section 13(1):

“No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

(d) Section 17:

“Subject to the provisions of section 10, 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.  In respect of limitation period, if the registered owner’s cause of action against the squatter accrued after 1 July 1991, the applicable limitation period is 12 years. If the cause of action accrued before 1 July 1991, the application limitation period is 20 years: see Tang Moon Lam, the person appointed to represent the estate of Tang Shau Ki v Tang Ying Yeung [2019] 5 HKLRD 556, §§26-50.

21.  It is trite law that a person claiming adverse possession has to prove two elements:

(a) physical possession or control; and

(b) the requisite intention to possess, ie animus possidendi.

22.  The legal principles are summarized by Li CJ in Wong Tak Yue v Kung Kwok Wai David & Anor (1997-1998) 1 HKCFAR 55 at §§35-42:

“35. The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment Ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v. Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade, J in Powell v McFarlane (1979) 38 P & CR 452.

…

37. As Nourse, LJ pointed out in Buckinghamshire County Council v Moran at 644 adverse possession can be described as ‘possession as of wrong’ and with limitation it is the intention of the squatter that is essential.

38. The requisite intention to possess has been referred in various authorities under its latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade, J observed in Powell v McFarlane at 471-472, the intention to possess requisite 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.’

39. The question of intention to possess, 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.

40. Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with scepticism. The courts would scruntinize 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.

…

42. The 14^th defendant’s intention to pay rent if the owners had requested payment demonstrated that he was not intending to exclude the owner with the paper title but showed that he was treating himself as enjoying possession under a lawful title from the owners. His intention to possess was not ‘as of wrong’ but was ‘as of right’ Such intention is similar to the occupier’s offer to pay rent in R v Secretary of Statement for the Environment Ex p Davies which was held to be inconsistent with the intention to claim possession for the purposes of adverse possession.”

23.  Similarly, in Tsang Foo Keung v Jimmy Chu [2017] 3 HKC 527, the Court of Appeal held at §22:

“ …it will be helpful to summarise the basic principles of adverse possession:

(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.”

24.  In Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588, the Court of Final Appeal cited with approval in §16 Yuen JA’s dicta in the Court of Appeal:

“Yuen JA added that the need for acts to be unequivocal was set out in Powell v McFarlane (p 472) as quoted and referred to in JA Pye (Oxford) Ltd v Graham(paras.76–77):

‘76. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. …

77. The conclusion to be drawn from such acts by an occupier is recognized by Slade J in Powell v McFarlane, at p.472:

“If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.””

C. AGREED ISSUES

25.  The parties agreed that the following issues have to be decided by this court:

(a) Whether the plaintiff has continuous and factual exclusive possession of the alleged area of Lot 125 for the requisite period of time (“Issue 1”);

(b) Whether the plaintiff has the requisite intention to possess the alleged area of land in Lot 125 (“Issue 2”);

(c) What is the extent of the alleged area of land in Lot 125 allegedly possessed by the plaintiff (“Issue 3”); and

(d) If the plaintiff has ever occupied the alleged area of land in Lot 125 or any part thereof, whether the plaintiff had abandoned the same (“Issue 4”).

D. THE WITNESSES

D1. Factual Witnesses

The plaintiff’s witness

26.  As mentioned above, the plaintiff has become mentally incapacitated. Although he filed a witness statement dated 14 February 2019, he could not and did not give evidence in court.

27.  On 4 May 2022, the plaintiff filed hearsay notice with a view to adducing the plaintiff’s witness statement as hearsay evidence. No notice of objection was filed by the defendants.

28.  Following Lau Kwai Ping Joyce, the Execturix of the estate of Tsang Fung Ying (deceased) v Fulland International Limited [2020] HKCFI 1501, §62, I will give such weight to the plaintiff’s witness statement as appropriate after taking into account the factors in s 49 of the Evidence Ordinance (Cap 8) and the totality of the evidence. I will assess such hearsay evidence against other factual and expert evidence before accepting any aspects thereof.

29.  Mrs Lui was the only factual witness called by the plaintiff. I find her an incredible, unreliable and unbelievable witness. Her evidence is inconsistent and she was clearly making up some of her answers as she went along. When the inconsistencies in her evidence were pointed out to her, she would resort to saying that she did not understand the questions. In general, I do not believe in her evidence.

30.  The following areas of her evidence, amongst others, demonstrate how inconsistent and incredible she is:

(a) In her supplemental witness statement, she stated that when her family moved into the Subject Land, they lived in the structure labelled TS-3 (“TS-3”) in Annexure 2, while the structure labelled TS-2 in Annexure 2 (“TS-2”) was used as a kitchen and also for storage.

(b) However, during cross-examination, she said that their family lived in TS-2, ie the small house, and TS-3 was used for cooking and making bean curd sheets.

(c) Had she and her family lived in the Subject Land for so long as alleged, it would be highly unlikely for her to mix up the two structures. This casts serous doubt on her evidence.

(d) Whilst she was adamant throughout her cross-examination that she and her family lived in the small house TS-2 in the period between 1981 and 1989, according to her expert witness, TS-2 was not in existence in 1982 based on the aerial photos, and did not reappear until around 1983 and 1984. It was therefore impossible for her to live in TS-2 at least in 1982 as alleged.

(e) In her supplemental witness statement, she stated that in around 1989, her brother and sister-in-law moved into the Subject Land. During cross-examination, she informed the court that her sister-in-law actually only came to Hong Kong from the Mainland in 1992 and only moved into the Subject Land by then. She also informed the court that in fact her brother and sister-in-law’s son also moved into the Subject Land when he came to Hong Kong alongside his mother in 1992.

(f) In her two witness statements, she stated that after her family moved out of the Subject Land in 1989, she and her husband would go to the Subject Land on foot or by bike two to three times a week “for cultivation and weeding”. When it was pointed out to her that her earlier evidence was that her husband had a stroke 30 years ago and has become wheelchair-bound since then, and it was impossible for him to walk or bike to the Subject Land, or to cultivate and weed, she accepted that her evidence in her supplemental witness statement was unreasonable.

(g) Whilst her evidence is that she had lived in the Subject Land, ie No 67 Tai Tei Tong, from 1981 to 1989, when she made a statutory declaration on 23 December 1982 (the “Statutory Declaration”), she declared that she was then living in No 25 Tai Tei Tong, which she admitted was not the Subject Land.

(h) When this was pointed out to her, she said that the address she herself stated in the Statutory Declaration was incorrect. The court then asked her what would have been the correct address, she answered “29C”, ie her mother-in-law’s address. This contradicts her crucial evidence that she lived in the Subject Land with her husband and their two older children from 1981 to 1989.

(i) Whilst she tried to explain this away by saying that someone had asked her to write the address in which she and her son lived when they arrived in Hong Kong, she could not identify the person who allegedly asked her to do so. Further, that is clearly contrary to what is stated in the Statutory Declaration, ie her then current address was No 25 Tai Tei Tong.

(j) Another crucial area in her evidence is the period in which she and her husband had paid rent allegedly for Lot 124RP. In her supplemental witness statement, she stated that they passed the rental payment to a Mrs Yau, who helped them pay the rent to a Mr Ho, until 1980, and only stopped paying rent in 1981.

(k) However, during cross-examination, she explained that she came to Hong Kong in 1979, and she remembered very clearly that she had paid rent (by passing the money to Mrs Yau) twice, ie in 1980 and 1981, and did not pay any rent thereafter. So she remembered clearly that she had paid rent until 1981, which is different from what is stated in her supplemental witness statement.

(l) When being asked if she had seen her mother-in-law pay rent to Mrs Yau, she said she saw her mother-in-law pay rent to Mrs Yau eight to ten times. She also said that those are the times when she actually saw her mother-in-law pay rent, and there may be other times when she did not witness the payment of rent. This would mean that their family had paid rent for at least ten to twelve times since she came to Hong Kong in 1979.

(m) When it was put to her that given the above, their family did not stop paying rent in 1981 as alleged, she responded absolutely incredibly that the rent had to be paid monthly, at the rate of $65/month. This is the first time in the whole proceedings in which it was suggested that the rent was to be paid monthly. It is also contradictory to:

(i) what is stated in the 1973 Agreement, ie the rent is HK$65/year;

(ii) her earlier evidence during cross-examination that she knew they stopped paying after 1981 because she had paid twice after coming to Hong Kong; and

(iii) her supplemental witness statement stating that the rent was paid annually.

I do not accept that Mrs Lui and her family had paid rent monthly.

(n) In any event, her evidence that the rent was for Lot 124RP is not supported by the 1973 Agreement, which only referred to Lot 125. This will be further elaborated below.

(o) Further, whilst it is her evidence that when Lam Bing and her husband entered into the 1973 Agreement, Lam Bing had occupied Lot 125 for many years, there is no evidence that Lam Bing owned, occupied or possessed Lot 124RP as well. In the premises, it makes no sense for her husband to agree to pay rent to Lam Bing for his use of Lot 124RP.

(p) Finally, and importantly, during cross-examination, she was being asked why paragraph 5 of her supplemental witness statement, which contained important information about Lam Bing’s occupation of Lot 125 and the “negotiate and resolve” with the land owner in the 1973 Agreement means that Lam Bing would refuse any demand by the land owner to take back the land because Lam Bing had been in occupation of the land for many years, was not stated in her first witness statement. She answered that it was because that was not stated in her first witness statement, so when she was being asked by her lawyers, she went back to ask her husband about it in around 2021, who told her the matters stated in paragraph 5 of her supplemental witness statement.

(q) This is incredible because, as mentioned above, in August 2021, Mrs Lui applied to be appointed as the next friend of the plaintiff on the ground that he was mentally incapacitated as defined in the Mental Health Ordinance (Cap 136) and certified by a doctor to be so. An order to appoint Mrs Lui was made by HHJ MK Liu on 13 September 2021. It is therefore impossible for the plaintiff to be able to explain those complicated and important matters stated in paragraph 5 of her supplemental whiteness statement to Mrs Lui in around 2021. I do not accept Mrs Lui’s evidence in paragraph 5 of her supplemental witness statement.

31.  All in all, I find Mrs Lui an incredible, unreliable and unbelievable witness.

The defendants’ witnesses

32.  Each of the 1^st, 2^nd and 4^th defendants gave evidence at the trial.

33.  I find the 1^st defendant very forthcoming. If there is something that he was not certain about, he would tell the court so. If there is something that he did not know, he would also inform the court accordingly. When he did not inspect a certain area in the Subject Land, he frankly said so as well.

34.  I find him an honest and trustworthy witness. I accept his evidence in full, including inter alia that:

(a) When he first went to the Subject Land in 2010, there was no fence enclosing the Subject Land. The only wire meshes he saw was those enclosing Lots 122SA and 123 next door;

(b) When he went to the Subject Land between 2010 and 2016, TS-2 and TS-3 were not locked;

(c) In the period between 2010 and 2016, the gate, rubble walls and wire meshes did not make it difficult for anyone to enter into the Subject Land.

35.  The 2^nd defendant is an honest and reliable witness. He had tried his best to assist the court and had given honest answers. When he was not present when a certain photo was taken, he frankly admitted it, and when he could not remember something, he would inform the court so.

36.  I accept his evidence generally, including inter alia that:

(a) The rubble wall was only present in part of the west boundary of the Subject Land, but not the entire boundary, and that it was not difficult to enter into the Subject Land in the period between 2010 and 2016.

(b) Between 2010 and 2013, TS-2 was not locked and he could go inside the structure. Although there was one instance in 2013 when he went to the Subject Land with his surveyor that TS-2 was locked, he broke the lock the next month.

(c) In the period between 2010 and 2016, the gate, rubble walls and wire meshes did not make it difficult for anyone to enter into the Subject Land.

(d) When he went to the Subject Land in March 2010, he found a water bill of the Subject Land dated 5 March 2009 in TS-2. In this regard, I find that this supports the defendants’ allegation that TS-2 was not locked and they could go into it because:

(i) it is unlikely that the water bill could be found by the defendants had it been left outdoor on the ground for one whole year; and

(ii) it is unlikely that the water bill would remain largely legible as it is now had it been left outdoor for one whole year.

37.  The 4^th defendant also appears to be a reliable and honest witness. Most of his evidence is consistent with his brothers’. For example, he said that:

(a) Between 2010 and 2016, the three structures were not locked. There was only one instance in 2013 when he went to the Subject Land with his surveyor that TS-2 was locked, he said he broke it the next month. Although both the 2^nd and 4^th defendants said they were the one who broke the lock, I find this immaterial and nothing turns on who was the person who actually broke it. In fact, both of them might have been involved in the process of breaking the lock as pleaded in the Re-Amended Defence. It does not affect my finding that throughout the time when the defendants went to the Subject Land, the temporary structures were not locked, except the one instance in 2013 mentioned above.

(b) In the period between 2010 and 2016, the gate, rubble walls and wire meshes did not make it difficult for anyone to enter into the Subject Land.

38.  Although the 4^th defendant’s evidence in relation to the encounter with Mrs Lui on 13 December 2013 appears to be slightly different from the 2^nd defendant’s evidence, this aspect of the witnesses’ evidence is not crucial and does not affect their credibility in general.

39.  The plaintiff tried to attack the defendants’ evidence by relying on their failure to disclose their WhatsApp communications with Mr Presley, being the tenant in Lot 122, in breach of their discovery duties. However, I find that such failure to disclose is inadvertent and does not affect the defendants’ credibility. In any event, for reasons explained below, nothing turns on Mr Presley’s observations as to whether the plaintiff had abandoned the Subject Land.

D2. Expert Witnesses

40.  The plaintiff called Mr Joseph Wong as his expert witness, and the defendants called Mr Eric Tang as their expert witness. Each expert filed their respective expert report and a Joint Expert Statement dated 14 October 2019.

41.  The experts are largely in agreement in relation to their observations of the aerial photos and survey sheets.

42.  The main dispute between the experts is whether there was a gate, I do not think the existence or non-existence of the gate is determinative of whether there was the requisite factual possession or intention to possess in these proceedings. This is because there is no dispute that many of the fences enclosing the Subject Land had fallen down since 1973, and Mrs Lui admitted that the fences could not keep people out in the entire period between 1973 and 2015. The presence of a gate (if any) therefore would not prevent other people from entering through other parts of the Subject Land. Its presence is neither here nor there.

43.  As to the rubble wall shown in the plan prepared by Mr Tang. I accept his evidence that it is a two to three feet tall embankment, ie field bund. Its use was to separate the cultivation fields or mark the boundary of a land lot. In fact, Mrs Lui never mentioned the rubble wall in her evidence nor relied on it has a means of keeping people out from the Subject Land.

44.  As stated below, there were many instances when people had entered the Subject Land without the plaintiff’s or Mrs Lui’s consent and destroyed the trees, broke the lock on the temporary structure, tampered with the electricity meter or dumped construction waste into it. I find that the field bund or rubble wall (which Mr Tang said was the same thing) was not intended to exclude, and did not serve the purpose of excluding, other people from the Subject Land; nor does its presence (whether considered on its own or in the totality of all the evidence) demonstrates that the plaintiff had been dealing with the Subject Land as an occupying owner might be expected to deal with it.

E. ANALYSIS

E1. Issue 1: Factual Possession

45.  The plaintiff‘s case is that he was in factual possession of the Subject Land from around 1973 until March 2016. On the plaintiff’s case, this is divided into four stages:

(a) 1973-1980: The plaintiff and Mrs Lui (since she came to Hong Kong in 1979) allegedly resided in the plaintiff’s mother’s home nearby while using the Subject Land;

(b) 1981-1989: The plaintiff and Mrs Lui allegedly resided in TS-2 of the Subject Land with two children;

(c) 1989 – 2001: The plaintiff allowed Mrs Lui’s brother to reside in the Subject Land, while he and Mrs Lui returned frequently to the Subject Land;

(d) 2001 – 2016: Mrs Lui returned to the Subject Land two to three times a week.

(1) 1973-1980

46.  In the first period between 1973 to 1981, the plaintiff’s family did not live in the Subject Land. In fact, only the plaintiff himself was in Hong Kong. It is the plaintiff’s case that the Subject Land was used as a pigsty (in Lot 125) and for farming (in Lot 124RP).

47.  The pigsty is shown as TS-1 in Annexure 2 (“TS-1”). It had no gate.

48.  There is no evidence as to any usage or occupation of TS-2 or TS-3 during this period.

49.  Although the experts’ evidence is that no fence can be seen during this period, it is Mrs Lui’s evidence that when she first came to Hong Kong in 1979, there were wire meshes enclosing the Subject Land, but some of them were broken. Therefore, in 1979, she and her husband “erected and maintained fences and a locked entrance gate around the Subject Land”.

50.  Mrs Lui also accepted that in the period between 1973 and 2015, the fences could not effectively perform their function of preventing third parties from entering into the Subject Land.

51.  It was held in Gotland Enterprises Ltd v Kwok Chi Yau & ors (unrep, CACV 260/2014, 19 January 2016), §37, that, “[i]n 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”.

52.  However, unlike in Li Pui Yin Helen v Yeung Kwon Yan trading as Yan Yan Organic Farm & ors (unrep, DCMP 2932/2020, 27 September 2024) where HHJ Alan Kwong found that the squatter had established the requisite factual possession notwithstanding the land was not enclosed, in the present case there is no evidence of any steps taken by the plaintiff to exclude others in this period, especially when no one lived in the Subject Land; nor is there any evidence that the surrounding locality rendered physical barriers or other steps to exclude others unnecessary.

53.  I find that the manner in which the plaintiff dealt with the Subject Land in this period is contrary to what an occupying owner might be expected to deal with it. Accordingly, the plaintiff was not in factual possession of the Subject Land in this period.

(2) 1981 to 1989

54.  In the period between 1981 to 1989, Mrs Lui said that she and her family lived in the Subject Land and there is evidence showing that her son’s address in the school record was changed to the Subject Land.

55.  However, first, this is contradicted by:

(a) the Statutory Declaration she made in 1982 mentioned above; and

(b) the fact that according to her expert, TS-2 where she said she lived in, was non-existent in 1982.

56.  Secondly, whilst Mrs Lui said that before her family moved into the Subject Land in 1981, she had cleared up the ruins and vegetation on the Subject Land by weeding, cutting the trees and spraying herbicides, this is a self-serving allegation not supported by evidence.

57.  On the contrary, the experts stated in the Joint Expert Statement that “other areas at the north were covered by trees and vegetation” in 1982 to 1986, “structure at Ruin 1 was not seen and the area was covered with trees” in 1982, “structure at Ruin 2 was barely seen, majority of the structure was covered by trees” in 1984, and “structures at the location of Ruin 2 were barely seen under the trees” in 1986.

58.  Further, the plaintiff’s suggestion during closing submissions that the plaintiff and his family had renovated or rebuilt TS-2 or TS-3 on the Subject Land and paved the area therein is also not supported by any evidence.

59.  Thirdly, whilst it is Mrs Lui’s evidence that she and the plaintiff had “erected and maintained fences” in 1979, as can be seen from the nine photos taken in 1986 and 1987 produced by Mrs Lui, some of the wire meshes were broken or had fallen down and there was no fence on the left hand side of all the photos.

60.  During cross-examination, Mrs Lui accepted that in around 1986 to 1987, other than those fallen wire meshes shown in the nine photos she produced, there were other wire meshes enclosing the Subject Land which had fallen down. The fallen wire meshes were around one to two feet tall. Such condition remained the same until 2015 when she and her family finally rebuilt the wire meshes because she had no time nor ability to do so in the 36 years before that.

61.  I find that the wire meshes were in such dilapidated condition that if other people had wanted to, they could stride over the meshes to go into the Subject Land. Whilst Mrs Lui said that that was not possible, she clarified with the court that she did not mean that one could not enter the Subject Land through the areas where the wire meshes had fallen down, what she meant was that one could not stride over the entire fallen meshes which were lying on the floor in one step.

62.  What is not in dispute is that people could go into the Subject Land through the areas where the wire meshes had fallen down or was broken. As mentioned above, Mrs Lui accepted that in the period between 1973 and 2015, the wire meshes could not effectively perform its function of preventing third parties from entering into the Subject Land.

63.  Had the plaintiff’s family resided in the Subject Land with two young children, it is inherently improbable that the plaintiff and Mrs Lui would allow the wire meshes to remain in such disrepair for so many years. They did not even attempt to repair any part of the fallen wire meshes.

64.  Fourthly, although Mrs Lui said that she and her family had planted papaya trees, banana trees and other vegetables in the field, there is no dispute that all those planting activities happened in Lot 124RP. Moreover, whilst banana trees outside the Subject Land can be seen in the aerial photos, the plaintiff’s own expert confirmed that he could not see any banana trees on the Subject Land from the aerial photos.

65.  Whilst there is a possibility that the banana trees planted by Mrs Lui might have been blocked by other vegetation, on balance, I find it more likely than not that she did not plant the trees as alleged given (a) her credibility, (b) the lack of independent evidence, (c) other banana trees could be seen from the aerial photos, and (c) had there been such banana trees in the Subject Land as alleged, it will be unlikely that none can be seen in any of the aerial photos taken throughout the years.

66.  Fifthly, although the plaintiff applied to the Water Authority for water supply in 1983, no water bills were produced for this period other than one for May to September 1989, which shows that water consumption was zero.

67.  According to Mrs Lui, although they could use mountain water, they applied to the Water Authority for water supply because weather was not stable, and if they used too much water, they would not have water enough for the pigsty. If that was the case, I find it incredible that the amount of water consumed in five months in 1989 was zero, especially when a family of four lived there, cultivating plants in Lot 124RP, maintaining a pigsty and making bean curd sheet at the material time.

68.  Although the plaintiff had produced some electricity bills and telephone bills in 1988 and 1989, in light of all the other evidence, I find that such bills only show some human activities in the Subject Land, but are insufficient in the totality of evidence to demonstrate a sufficient degree of exclusive physical control by the plaintiff over the Subject Land.

69.  The same applies to the squatter control registration in 1981. Being an occupant of a temporary structure on the Subject Land does not necessarily equate to having factual possession with exclusive physical control over the Subject Land. It is also unclear from such registration how long the plaintiff’s occupancy was or where exactly the temporary structure(s) was/were.

70.  For the reasons above, I find that the plaintiff did not deal with the Subject Land as an occupying owner might be expected to deal with it and was not in factual possession of the Subject Land in this period.

(3) 1989 – 2001

71.  In the period between 1989 to 2001, according to Mrs Lui, her brother lived in the Subject Land, who was later joined by his wife and son in 1993. None of them was called as a witness.

72.  First, there is no dispute that the wire meshes continued to remain in their dilapidated state, and could not perform any function of keeping people out, and that none of the plaintiff, Mrs Lui, her brother or her sister-in-law (the latter two allegedly lived there) had performed any maintenance or repair to the fallen wire meshes.

73.  Although the Water Authority issued a Notice of Inaccessible Meter on 8 October 1998, stating that “passage to meter blocked”. It is unclear how that happened. There can be many reasons why the passage was blocked other than because the Water Authority staff could not enter into the Subject Land.

74.  In any event, this was the only time in which such notice was issued. The Water Authority had no problem in accessing the water meter at all other times.

75.  Secondly, the alleged occupation by Mrs Lui’s brother’s family in this period is not supported by the utility bills. The water bills show that water usage during this period was minimal and the amount billed in all those bills was $0.

76.  Although Mrs Lui explained that her sister-in-law was very careful with her spending and would use candles at night instead of electric lights and mountain water instead of water from the Water Authority, I find it incredible for a family of one to three people to live in Subject Land but had $0 water bills throughout the period.

77.  Whilst there is electricity and telephone usage, again, in the totality of evidence, they only indicate some human activities in the Subject Land, but not a sufficient degree of exclusive physical control by the plaintiff over the Subject Land.

78.  Thirdly, whilst Mrs Lui’s evidence was that when her brother received the demands for Government rates and rent in the Subject Land, he would help them pay it, and that they had paid it punctually, the evidence shows that no one paid the Government rates and rent between 1997 to 2001 for four years. This suggests that no one actually lived there and therefore no one received the demands and did not pay them.

79.  Fourthly, as mentioned above, Mrs Lui’s evidence that during that period, she and her husband either walked or biked to the Subject Land two to three times a week “for cultivation and weeding” is unreasonable and unbelievable given her husband had had a stroke and was wheel-chair bound.

80.  Finally, had they returned to the Subject Land two to three times a week, it would be unlikely for them to not receive the demands for Government rates and rent and allow the same to be left unpaid for four years. This is especially so when Mrs Lui herself said that there would be penalty for late payments.

81.  For the reasons above, I find that the plaintiff was not dealing with the land as an occupying owner might be expected to deal with it and was not in factual possession of the Subject Land in this period.

(4) 2001-2016

82.  In the final period between 2001 and 2016, there is no dispute that no one lived in the Subject Land. Whilst Mrs Lui said that she would visit the Subject Land around two to three times a week and she and her family continued to use the Subject Land for cultivation. I disbelieve such evidence given that (a) her husband was wheelchair bound and could not cultivate the land and (b) it is not supported by any independent evidence.

83.  First, during this period, TS-2 and TS-3 were used for storage purposes.

(a) Mrs Lui said she had used TS-3 to store old tools for the pigsty and for making bean curd sheets that she did not have to use any more. However, when the lock was being destroyed, she did not even bother to repair it.

(b) As to TS-2, she said she had used it to store some winter clothes and blanket and that she had locked it up. However, as explained above, I accept the defendants’ evidence that the main entrance and both TS-3 and TS-2 were not locked when they went to the Subject Land in 2010.

84.  In relation to the storage of items, it was held in Gotland Enterprises Ltd v Kwok Chi Yay & ors (supra), §36, that there mere act of “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”.

85.  Secondly, from 2001 onwards, the electricity bills show zero consumption whereas the water bills show minimal consumption. Consistently, from April 2001 onwards, there was also no telephone bill.

86.  Thirdly, there is no dispute that the wire meshes continued to be in such dilapidated condition that it could not perform the function of keeping people out of the Subject Land. In point of fact, there were a few incidents of people breaking into the Subject Land:

(a) In around 2004, someone went into the Subject Land to tamper with the electricity meter. Mrs Lui said that was why they had decided to close the electricity account altogether in December 2004. However, I find that if the plaintiff were really in possession of the Subject Land, the more likely thing for him to do would be to increase the security level of the Subject Land instead of closing the electricity account. I find his decision to close the electricity account is inconsistent with his having continuous possession of the Subject Land.

(b) In 2007, someone went into the Subject Land and cut the metal lock of TS-3. At the same time, Mrs Lui said the lock of the main entrance metal gate was not broken. This demonstrates how useless the fallen wire meshes were. They were so ineffective in preventing people from going in that people could enter into the Subject Land without having to go through the main entrance.

(c) Mrs Lui said similar events happened four times in total in 2007.

(d) Also in 2007, the construction workers of the plaintiff’s neighbour dumped some construction waste into the Subject Land and destroyed the plants therein. According to her, even for those areas that remained fenced, the wire meshes were so weak and rusted that they could be easily broken by someone pushing a one-wheel barrel into it.

(e) In 2013, someone went into the Subject Land to cut and destroy the trees and plants in it.

87.  For the reasons above, I find that the plaintiff was not dealing with the land as an occupying owner might be expected to deal with it and was not in factual possession of the Subject Land in this period.

E2. Issue 2: Intention to Possess

The 1973 Agreement

88.  It is the plaintiff’s case that he had purchased Lot 125 from a person called Lam Bing as evidenced by the 1973 Agreement.

89.  The 1973 Agreement, even though homemade, is very succinct, yet contains much details. It mentions clearly that the agreement relates to Lot 125, who its owner was, how many female pigs, male pigs and piglets there were respectively, the amount of consideration, the parties should not revoke the agreement, who should be responsible for dealing and resolving with the owner when the owner takes back the land and how much rent to pay.

90.  In relation to the 1973 Agreement, I make the following findings.

91.  First, notwithstanding how detailed the 1973 Agreement is, there is no mentioning of Lot 124RP. The 1973 Agreement clearly does not relate to Lot 124RP.

92.  I do not accept Mrs Lui’s evidence that the rent mentioned in the 1973 Agreement relates to Lot 124RP. This is not supported by the clear wordings of the 1973 Agreement. There was no such differentiation in the 1973 Agreement, that the sale of the pigsty relates to Lot 125, but the part in relation to the rent relates to Lot 124RP as alleged.

93.  Further, as mentioned above, whilst it is Mrs Lui’s evidence that when Lam Bing and her husband entered into the 1973 Agreement, Lam Bing had occupied Lot 125 for many years, there is no evidence that Lam Bing owned, occupied or possessed Lot 124RP as well. In the premises, it makes no sense for her husband to agree to pay rent to Lam Bing for his use of Lot 124RP.

94.  Secondly, there was no mentioning of any sale and purchase of Lot 125. I find that the 1973 Agreement was not for the sale and purchase of any land. This is because:

(a) First, it says that the owner was someone called 良園. It was therefore made very clear that Lam Bing was not the owner. It makes no sense for the plaintiff to purchase the land from someone who was not even the owner.

(b) Secondly, the 1973 Agreement says if the owner comes to take the land back, Lam Bing would be responsible for dealing with him and resolving the matter. So, again, the 1973 Agreement made it clear that Lam Bing was not the owner and the owner actually might come to take back the land.

95.  I find that when the plaintiff entered into the 1973 Agreement, he did so believing that he was purchasing the pigsty business from Lam Bing. He was not purchasing Lot 125 from Lam Bing, nor did he believe that he was becoming the owner of the land because it was acknowledged that the owner was someone else, and that someone else may come to take back the land.

96.  Thirdly, the plaintiff had to pay rent for the land. As mentioned above, I do not accept Mrs Lui’s evidence that the rent was paid for Lot 124RP as (a) the 1973 Agreement only referred to Lot 125 and (b) there is no evidence that Lam Bing owned, occupied or possessed Lot 124RP. I find that the rent was paid for Lot 125.

97.  Finally, according to Mrs Lui, after moving into the Subject Land, her husband handed her the original 1973 Agreement, saying that she could show them to the District Lands Office if they come to inspect the plaintiff’s licence (查牌). This is consistent with the fact that the licence for the pigsty belonged to Lam Bing. So when the plaintiff told Mrs Lui that the 1973 Agreement would be useful when the District Lands Office come to inspect their licence, I find that to mean that the 1973 Agreement could prove that Lam Bing had transferred his pigsty business to the plaintiff notwithstanding the fact that the letter of approval granted to Lam Bing was stated to be non-transferrable. This is consistent with my finding that the subject matter of the 1973 Agreement was a sale of the pigsty business.

98.  All in all, I find that the plaintiff had no requisite intention to possess in 1973, and that remained the position so long as he and his family had continued to pay rent pursuant to the 1973 Agreement.

Payment of rent

99.  As mentioned above, Mrs Lui had given different versions of evidence as to when they had stopped paying rent pursuant to the 1973 Agreement.

100.  In her witness statement, she said their family had stopped paying rent in 1981 but if the owner had come to collect rent, they would have paid him. She also said that since no one had demanded rent in the following two years, thus in 1983 she considered that the owner had given up the land.

101.  During cross-examination, when being asked whether she was certain that they only stopped paying rent in 1981, she answered that she was very certain. She said this was because she came to Hong Kong in 1979, and she paid rent twice, once in 1980 and once in 1981, and stopped paying thereafter.

102.  According to this version of her evidence, she did not stop paying rent in 1981 as stated in her witness statement, but in 1982.

103.  Worse still, Mrs Lui later said that whilst she had paid rent twice in 1981 and 1982 respectively, she had also seen her mother-in-law pay rent eight to ten times.

104.  Based on her evidence that she had paid rent twice in respectively 1980 and 1981 and her mother-in-law had paid at least eight to ten times, bearing in mind I do not accept her new allegation that the rent was paid monthly, the earliest time in which they could have stopped paying rent was from 1990 onwards.

105.  It is Mrs Lui’s evidence in paragraph 10 of her supplemental witness statement that in the first two years when no one came to collect rent from them, they were actually still willing to pay rent. Thus, following Wong Tak Yue (supra), the earliest time in which the plaintiff could possibly have considered himself to be the owner of the Subject Land as alleged was from 1992 onwards.

106.  However, for reasons explained below, I find that even after 1992, the plaintiff did not have the requisite intention to possess.

The wire meshes, locks and rubble walls

107.  As mentioned above, Mrs Lui accepted that in the period between 1973 and 2015, the wire meshes could not effectively perform their function of preventing third parties from entering into the Subject Land.

108.  She and her family only started building new wire meshes in 2015. Her explanation was that all along she had no time or ability to do so. This was despite the fact that there were at least six incidents since around 2004 of people breaking into the Subject Land and destroying the lock, tampering with the electricity meter, dumping construction waste and destroying her plants.

109.  No action was taken to increase the security level of the Subject Land until 2015, ie after the defendants had indicated that they were the owners of the Subject Land and asked Mrs Lui to pay a nominal rent in 2013.

110.  Further, there is no dispute that TS-1 was never locked. As to TS-3, as mentioned above, in 2007, someone went into the Subject Land and cut the metal lock of TS-3. But the plaintiff did not bother to replace it.

111.  As to TS-2, as mentioned above, I accept the defendants’ evidence that the main entrance and both TS-3 and TS-2 were not locked when they went to the Subject Land in 2010. Although there was one instance in 2013 when TS-2 was locked, the defendants had no difficult in breaking it.

112.  The main entrance lock was also so useless given that people could go into the Subject Land through areas with fallen down fences without having to break the main entrance lock as evidenced by the incident in 2007.

113.  As to the rubble walls, I refer to my findings in paragraphs 43 and 44 above.

114.  I find the above manner in which the plaintiff dealt with the Subject Land indicates that he did not have the intention to exclude the world at large and is inconsistent with having the requisite intention to possess it.

The Government rates and rent and utility

115.  As mentioned above, the plaintiff decided to close the electricity account altogether in 2004. Since around 2001 onwards, there was zero or minimal water and electricity consumption. There was also no more telephone bill after April 2001.

116.  Had the plaintiff had the requisite intention to possess the Subject Land, it would be inherently improbable for him to close the electricity account altogether. Even if someone had tampered with the electricity meter, the normal thing for an owner of land to do would be to increase the security level of the land, instead of closing the electricity account altogether, which would mean there can be no future use of electricity.

117.  Further, the evidence shows that the plaintiff and his family did not pay for Government rates and rent between 1997 to 2001. Not only does this suggest that no one actually lived there and therefore no one received the demands and did not pay them, it also suggests that no one actually bother to pay them after 1996.

118.  Such behavior in 1997 onwards mentioned above indicates the plaintiff had no intention to possess the Subject Land.

Refusal to pay rent and rejection of the defendants’ offer

119.  Although Mrs Lui refused to pay even nominal rent to the defendants when they approached her in 2013, such refusal only indicates that she was not willing to pay rent to the defendants when asked to do so in 2013. It does not show that she had any intention to possess the Subject Land, whether in 2013 or otherwise.

120.  The same applies to her rejection of the defendants’ offer of payment in exchange of the plaintiff giving up Lot 125 in around 2016. It does not show that she had any intention to possess the Subject Land, whether in 2016 or otherwise.

121.  By reason of all the above, I find that the plaintiff did not have the requisite intention to possess the Subject Land in 1973 to 2016.

E3. Issue 3: The extent of Lot 125 allegedly possessed

122.  By reason of my analysis above, I find that the plaintiff did not adversely possess any part of Lot 125.

E4. Issue 4: Whether the plaintiff had abandoned Lot 125

123.  By reason of my analysis above that the plaintiff has never adversely possessed Lot 125, this issue does not arise.

F. Conclusion

124.  For all the reasons above, I find that the plaintiff has failed to make out his case on adverse possession.

125.  The plaintiff’s claim is therefore dismissed.

126.  I make a costs order nisi that the plaintiff shall pay the 1^st, 2^nd and 4^th Defendants’ costs in this action (including all costs previously reserved) to be taxed if not agreed, with certificate for counsel. Any application to vary such costs order nisi shall be made within 14 days.

III. Lot 124RP

127.  It is the plaintiff’s case in relation to Lot 124RP that pursuant to the 1973 Agreement, Lam Bing and the plaintiff agreed that the plaintiff should pay HK$65 per annum as rent for Lot 124RP.

128.  Since around 1973 to March 2016, the plaintiff had been in exclusive factual possession of Lot 124RP.

129.  Further, since around 1983, the plaintiff has had the intention to possess Lot 124RP to the exclusion of the world at large:

(a) At all material times between 1974 and 1981, the plaintiff through his neighbor Mrs Yau paid rent for Lot 124RP to one Mr Ho.

(b) In 1981, Mrs Yau told the plaintiff that Mr Ho had passed away. Both Mrs Yau and the plaintiff did not know who to pay the rent to.

(c) In the following two years, ie 1981 to 1983, whilst the plaintiff was prepared to pay rent if the landlord had asked for it, no one ever asked him to pay any rent.

(d) In the circumstances, since 1983, the plaintiff believed that he has become the real owner of Lot 124RP.

130.  I find that the plaintiff’s pleaded case shows a case for the order sought to be obtained.

131.  Although the court’s power to grant judgment under O 19 r 7 of the Rules of the District Court (Cap 336H) is discretionary, as submitted by the plaintiff, it is not necessary for the plaintiff to prove its case by evidence, and the court must give judgment according to the pleadings alone. See: Hong Kong Civil Procedure 2025, §§19/7/11 & 19/7/14.

132.  Whilst generally a declaration will not be granted when judgment is obtained in default of defence, this is a rule of practice and not of law, and it will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled.

133.  I am satisfied that there is a genuine need for the declaratory relief sought against the 6^th defendant to be granted, and justice would not be done if such declaratory relief is denied.

134.  I therefore grant the following order sought:

(a) A declaration that the title of the 6^th defendant in Lot 124 RP[2], whether legal or beneficial, was and has been, prior to the commencement of these proceedings, extinguished by virtue of sections 7 and 17[3] of the Limitation Ordinance;

(b) A declaration that the plaintiff, having been in adverse possession of Lot 124 RP for a period in excess of 20 years before the commencement of these proceedings, has acquired a good possessory title to the same;

(c) The 6^th defendant do deliver possession of Lot 124RP to the Plaintiff within 28 days;

(d) The 6^th defendant do pay the Plaintiff costs of this action (including all costs reserved) in respect of Lot 124RP after 29 October 2019[4], to be taxed if not agreed; and

(e) The Plaintiff’s own costs in respect of its claim against the 6^th defendant after 29 October 2019 be taxed in accordance with the Legal Aid Regulations.