MAN KWOK KEUNG TONY v. 馬德松

DCCJ 4385/2020

[2025] HKDC 1942

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4385 OF 2020

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BETWEEN

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JUDGMENT

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1.  This is the action commenced by the Plaintiff (“P”) against the Defendant (“D”) for, inter alia, vacant possession of a portion of the property, ie Lot No 2679 in Demarcation District No 102, Yuen Long (the “Occupied Land”) grounding in breach of the Tenancy Agreement dated 2 May 2014 (the “TA”). The Occupied Land is shown and identified as the area coloured blue on the plan annexed to the P’s Amended Statement of Claim (the “ASoC”).[1]

2.  D defends the action by contending, in essence, the following:-

(a)

(i) Since in or about 1973, D has enjoyed undisturbed, exclusive and continuous adverse possession of the Occupied Land for a period of more than 20 year before the commencement of the present action; (ii) D has acquired a good possessory title to the Occupied Land; (iii) P has by virtue of section 7(2) of the Limitation Ordinance (Cap 347) (“LO”) lost his rights to bring any action to recover any interest in the Occupied Land or any part(s) thereof; and (iv) P’s title to the Occupied Land or any part(s) thereof had been extinguished prior to the commencement of the present action by virtue of section 17 of LO.

(b)

(i) D had never entered into any oral or written tenancy agreement with P; (ii) Neither had D paid any rent to any person in relation to the Occupied Land; (iii) D had never seen the T/A prior to receiving the letter dated 9 March 2020 sent by P to D (the “9/3/20 Letter”); (iv) The signature on the T/A is not that of D; and (v) On 22 October 2020, D reported the suspected forgery of D’s signature on the T/A to the Hong Kong police.

3.  D, therefore, counterclaims for a declaration, inter alia, that D has acquired a indefeasible possessory title to the Occupied Land.

THE P’S CASE

4.  P’s case is simple and straightforward which is as follows:-

(a) P is and was at the material time the registered owner of Lot No 2679 in Demarcation District No 102, Yuen Long, New Territories (“Lot 2679”).

(b) By the T/A, P let the Occupied Land to D for a 5-year term from 2 May 2014 to 1 May 2019, at a yearly rent of HK$100.

(c) D paid the rent of HK$100 for the first year from 2 May 2014 to 1 May 2015 upon signing the T/A.

(d) In breach of the T/A, D has failed and/or refused to pay the rent from 2 May 2015 to 1 May 2019 and to deliver vacant possession of the Occupied Land to P upon the expiry of the T/A.

(e) By the 9/3/20 Letter, P demanded D to deliver vacant possession of the Occupied Land to him on or before 2 March 2020, failing which P would take out legal proceedings to recover the Occupied Land.

(f) Despite repeated requests and demands, D still failed and/or refused to pay the outstanding rents and to deliver vacant possession of the Occupied Land. P thereby suffers loss and damage.

5.  P therefore claims:-

(a) vacant possession of the Occupied Land;

(b) total rent arrears in the sum of HK$400 from 2 May 2015 to 1 May 2019;

(c) mesne profits at HK$100 per annum from 2 May 2019 until delivery of vacant possession of the Occupied Land; and

(d) interest.

THE D’S CASE

6.  D does not dispute that P is the registered owner of Lot 2679.

7.  D’s case[2] on adverse possession is that since in or about 1973, D has been in open, adverse, continuous and exclusive occupation of the Occupied Land without the consent of P or his predecessors-in-title of Lot 2679. The particulars are as follows:-

(a) In or about the 1950s, D came to Hong Kong from Mainland China by himself when he was about 14 years old.

(b) In about 1973, D rented Lot No 2680 in Demarcation District No 102, Yuen Long, New Territories (“Lot 2680”) from representatives of its registered owner. Also, about the same time. D began to occupy:-

(i) a portion of Lot No 2680;

(ii) a portion of government land;

(iii) the Occupied Land.

(the “1973 Occupied Area”)

(c) In about 1973, D caused to be built on the 1973 Occupied Land (i) a stone house structure for residential purpose[3] (“House 64B”) and (b) a pig shed for pigs breeding. D also caused fencing to be erected along the boundaries of the overall area of Lot 2680 and the 1973 Occupied Area.

(d) Between 1973 and 1985,

(i) D resided at the 1973 Occupied Area with his girlfriend. Madam Chan (陳金燕) and their four children[4];

(ii) D used the 1973 Occupied Area partly as agricultural land and for pig breeding and partly for his residence; and

(iii) The Occupied Land was used for agricultural purposes and plantation of trees.

(e) In 1985,

(i) D was asked by District Lands Office Yuen Long to relocate the entrance to the 1973 Occupied Area to a new location due to the Vehicular Border Link at Lok Ma Chau (Phase II) project;

(ii) The Occupied Land was not affected and continued to be occupied by D and his family;

(iii) House 64B was also not affected as it was built on a portion of the government land; and

(iv) the pig shed was demolished and D ceased to engage in pigs breeding.

(f) D continued to rent Lot 2680 between 1985 and 2006.

(g) Between 1985 and 2014, the Occupied Land was used for (i) storage of tools; and (ii) car parking.

(h) In around 1988, D finished erecting a gate on part of the southern boundary of the 1973 Occupied Area (the “Gate”) as the entrance to the 1973 Occupied Area, resulting in the 1973 Occupied Area being completely enclosed by fencing and the Gate.

(i) In the 1990s, the first 3 children of D moved out of House 64B.

(j) In 2006, Madam Chan moved out of House 64B.

(k) In about 2006, D ceased renting Lot 2680.

(l) In around 2009,

(i) D made changes to the fencing to exclude Lot 2680 from the enclosed area so that the fencing would enclose only a portion of government land and the Occupied Land; and

(ii) since then, D and his family[5] have continued to reside on the Occupied Land.

(m) In and since around 2014 to 2016, D placed 3 containers in the northern corner of the Occupied Land for storage purposes.

8.  By reason of the foregoing, D has been having exclusive possession of the Occupied Land since about 1973 and has openly treated the Occupied Land as his own, to the exclusion of the world including the legal and registered owners of Lot 2679.

9.  The nub of D’s counterclaim has been referred to in paras 2 and 3 hereinabove.

P’S SUMMONS TO RE-AMEND REPLY AND DEFENCE TO COUNTERCLAIM

10.  The trial of this action took place on 7, 8, 9 and 13 May 2025. At trial, P was represented by Mr Joshua Choy and Mr Harrison Yang whilst D was represented by Mr Johnny CM So and Mr Eric Chau Hin Chung.

11.  Two days prior to the trial, P took out a Summons (the “Re-Amendment Summons”) without any affirmation/affidavit in support, seeking leave of this Court to re-amend his Reply and Defence to Counterclaim. I fully agree with Mr So submission that the P’s application was an eleventh-hour application amounting to an ambush against D.

12.  After reading the P’s Supplemental Opening Submissions dated 2 May 2025[6] and D’s Supplemental Opening Submissions dated 6 May 2025[7] and hearing Mr Choy, I dismissed the Re-Amendment Summons with costs of and occasioned by the Re-Amendment Summons be to D in any event. My reasons for Decision would be handed down together with the Judgment of this trial. This I now do.

13.  Upon a reading of the draft Re-Amended Reply and Defence to Counterclaim annexed to the Re-Amendment Summons, P sought to introduce 3 specific pleas[8]:-

(a) D’s possession of the Occupied Land was an encroachment for the benefit of the Lot 2680 rented by D from its registered owner. It is presumed by law that the Occupied Land would be an addition to the Lot 2680 rented by D. Upon expiry of the Lot 2680 lease in about 2006, the landlord of Lot 2680 would obtain the possessory title to the Occupied Land. As such, D’s possession of the Occupied Land for his own benefit could not have begun earlier than the expiry of the Lot 2680 lease.[9] (the “Encroachment Plea”)

(b) The T/A was an acknowledgement of P’s title to the Occupied Land by D. Thus, time for limitation shall run afresh.[10] (the “Acknowledgement of Title Plea”)

(c) By entering the T/A, D is estopped from denying the title of P as landlord.[11] (the “Estoppel Plea”)

14.  Mr Choy’s stance was that P did not need to re-amend his Reply and Defence to Counterclaim to argue the foregoing 3 pleas. But he submitted that he was overly careful and the Re-Amendment Summons was taken out ex abundanti cautela. Mr Choy also submitted that P would not pursue the Re-Amendment Summons if this Court allowed the Re-Amendment Summons but adjourned the trial to give D the opportunity to answer the 3 specific pleas.

15.  I do not agree with Mr Choy on his stance taken. He should have taken the view either that the 3 specific pleas are important and necessary for him to engage this Court in investigating and considering the 3 specific pleas at trial and therefore he should argue strenuously for leave to be granted or that the 3 specific pleas are immaterial and therefore P should not have taken out the Re-Amendment Summons at the outset and wasted this Court’s time in considering the same. Furthermore, Mr Choy should not have adopted the impermissible half-way house by testing the water of this Court by submitting that P would not pursue the Re-Amendment Summons if this Court allowed the Re-Amendment Summons but adjourned the trial. Mr Choy should have made up his mind in the interests of P and should not have lavishly expected this Court to help him make his decision. If the 3 specific pleas are material and important for P to defend D’s claim for adverse possession, Mr Choy should have taken instructions from P and proceeded with his argument notwithstanding the likely result of an adjournment with serious costs consequence.

16.  It is trite that post-CJR, a late interlocutory application has a high threshold to pass and may be dismissed based on delay alone[12] and that the applicant must establish, by way of affirmation, what might be described as exceptional circumstances to explain and justify the delay[13]. The Court would not grant any indulgence (even on terms as to costs) without a satisfactory explanation from the applicant.[14]

17.  If the delay is the applicant’s own fault, for example as a result of inactivity when the need for amendment was or should have been evident at an earlier stage of proceedings, the court will unlikely grant indulgence to allow the late application. This is in part because the Court expects parties conscientiously to consider the pleadings before filling out the listing questionnaire and setting the matter down for trial. Disobeying rules of court and court-imposed timetables without good reason makes a mockery of the case management system envisaged by the CJR.[15]

18.  In the present case, there is substantial and inordinate delay in raising these 3 specific pleas. These 3 specific pleas were just dawned on D when the full-blown trial was about to take place and had disrupted the preparation for the trial on the part of D and this Court. P has neither made an affirmation in support nor given any justification for such delay. On this ground alone, I would dismiss the Re-Amendment Summons.

19.  Furthermore, I would like to say a few words on the 3 specific pleas:-

(a) If the Encroachment Plea is allowed, it would entail a myriad of new factual issues for the trial to investigate. For example, whether or not P can engage the presumption of encroachment and if P can engage such a presumption, the next question would be whether the presumption can be rebutted by words or conduct on the part of the tenant making it clear that he occupies the land encroached on for his own benefit. No doubt, if this Court allows P to raise the Encroachment Plea, it would only be fair to D by adjourning the trial and giving D an opportunity to raise and adduce evidence on the foregoing 2 factual issues.

(b) The Acknowledgement of Title Plea is bound to fail. The purpose of raising this plea is to enable P to argue that the limitation period starts to run afresh from the date of the acknowledgement of the owner’s title, ie 2 May 2014 (the date when the T/A was entered into by D).[16] This argument would carry the effect of extending the period for suing on an existing cause of action. However, it is established law that acknowledgement of title made after the expiry of the limitation period will not suffice to revive the owner’s title as the owner’s title has been extinguished by the statue.[17] D’s case here is that since in or about 1973, he has been in adverse possession of the Occupied Land for a period of more than 20 years before the commencement of the present action. In other words, prior to the T/A, the limitation period for the recovery of the Occupied Land had expired. D is entitled to argue that he has acquired a good possessory title to the Occupied Land by adversely possessing the same for more than 20 years, counting from a time in or about 1973, or from a later time which is before 1 July 1991.[18] On this pleaded case, the Acknowledgement of Title Plea is bound to fail.

(c) The Estoppel Plea is a red herring and is also doomed to fail. It is a general principle of the law of landlord and tenant that neither party to a tenancy may deny the title of the landlord to grant the tenancy. The estoppel lasts so long as the tenant remains in possession under the tenancy. It does not, however, prevent him from challenging the landlord’s title in respect of a period after the expiry of the tenancy.[19] It is undisputed that at the time of commencement of the present action, the T/A has long expired by effluxion of time since 1 May 2019. When D raised his adverse possession claim in his Defence and Counterclaim, the estoppel was no longer in operation to estop D from denying P’s title to the Occupied Land.

20.  So much for my reason for Decision on the Re-Amendment Summons, I now turn to the issues of this case.

THE ISSUES

21.  I understand that the parties have filed their Joint Statement of Issues on 13 September 2023 (the “Joint Statement”).[20] Instead of adopting the Joint Statement verbatim, the following are the issues culled from the pleadings:-

(a) Whether D had factually been in continuous and exclusive possession of the Occupied Land for a period of more than 20 years since in or about 1973, but before 1 July 1991[21];

(b) Whether D had the requisite animus possidendi[22] during the relevant more than 20-year period[23];

(c) (i) Whether D has entered the T/A with P[24];

     (ii) Whether D was liable to pay rent to P under the T/A; and

     (iii) Whether D has paid any rent to P under the T/A.

     (d) What is the effect of the T/A (if any) on D’s claim for adverse possession.

22.  I shall return to my resolution of the aforesaid issues in the later section “Analysis of the Evidence” of this Judgment.

THE APPLICABLE LEGAL PRINCIPLES

Adverse Possession

23.  Section 17 of LO provides that at the expiration of the period prescribed by LO for any person to bring an action to recover land, the title of that person to the land shall be extinguished. The current relevant period of limitation to bring an action to recover land is 12 years. This has been the position since 1 July 1991 by reason of the Limitation (Amendment) Ordinance 1991. Prior to that, the period was 20 years.

24.  The principles concerning adverse possession are well established. A useful summary can be found in Tsang Foo Keung v Chu Jim Mi Jimmy[25], in which Harris J (with whom Cheung JA and Yuen JA concurred) held:-

“22. Before explaining the Judge’s reasons for rejecting the 1^st defendant’s case 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. …” [26]

25.  In an adverse possession case, the registered owner is entitled to take the position of requiring the squatter to prove the adverse possession claimed by him. The registered owner is entitled to rely upon the paper title. The registered owner may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof required in establishing a possessory title, see Birkenhead Properties and Investments Ltd v Lam Kai Man[27].

26.  The fact that the claimant for a possessory title has proved that he has exclusive possession of the land in question has significance in relation to both the requisite possession and the requisite intent to possession. Having physical barriers to exclude others from entering the land is the classic way of establishing exclusive possession. In Gotland Enterprises Ltd v Kwok Chi Yau and Others[28], Lam VP (as he then was) said:-

“29. [counsel] referred us to Powell v McFarlane, supra, in particular what Slade J said on the factual aspect of possession:

“Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor 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.”

…

31. … [counsel] also referred us to the dicta of Lord Hutton in JA Pye (Oxford) v Graham [2003] AC 419 at paragraph 76:-

“Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. 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. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”

32. Though the issue that Lord Hutton addressed there was intention to possess (and Lord Browne Wilkinson did explain why it was necessary to have two elements in the concept of possession as a matter of common law in JA Pye (Oxford) v Graham, supra at paragraph 40), it should also be recognized that the two elements are inter-related. Legal possession could only be established when both elements are present. In our judgment, the exclusion of other persons has significance both in relation to the character of the physical occupation and the requisite intent. Thus, in Powell, Slade J alluded at the end of the paragraph cited above to no-one else had done so. Likewise, Lord Hutton in JA Pye referred to using the land in a way in which the owner was excluded.

33. This is not to re-introduce the concept of ouster disavowed by Lord Browne-Wilkinson in JA Pye at paragraph 38. Rather it stems from the undoubted proposition that possession is single and exclusive. As said by His Lordship in that paragraph:-

“Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have ‘dispossessed’ the true owner …”

34. After rejecting the notion that the squatter must have a positive intention to exclude the owner, at paragraph 43 of JA Pye Lord Browne-Wilkinson endorsed the formulation by Slade J in Powell:-

“… Slade J reformulated the requirement (to my mind correctly) as requiring an ‘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 processes of the law will allow.”

35. The significance of physical exclusion of the owner was further alluded to by His Lordship at paragraph 45, after rejecting the dicta of Bramwell LJ in Leigh v Jack 5 Ex D 264:-

“The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.” (our emphasis)

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.”

27.  Evidence of sufficient fencing or enclosure of the Land and evidence of sufficient control of access by the public to the Land are of particularly relevance to establishing continuous and exclusive possession of the Land.[29]

28.  It is also trite that erecting a building or paving or cultivating land is evidence of possession.[30]

29.  A party can establish adverse possession through occupation by his licencee.[31]

30.  The test of animus possidendi is objective and to be inferred from the act of possession. The subjective view of the squatter at the time is not important.[32]

31.  Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would 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.[33]

A Pleading Point

32.  At the Opening, I raised a question with the parties as to whether, on the pleadings now stand, D was entitled to advance his adverse possession claim on any 20-year period since in or about 1973 or D’s claim for adverse possession is confined to the 20-year period starting from in or about 1973.

33.  I have been helpfully assisted by the parties on this pleading point. Both parties referred me to Chan Ching Mui v City Breeze Limited [2018] HKDC 16 where HH Judge MK Lui at [18]-[25], having been referred to Yu Siu Cheuk v Realray Investments Limited, CACV 181/2009 (Unreported) 10 November 2009, Lee Theatre Realty Limited v Tong Wah Jor and Others, CACV 207/2009 (Unreported) 2 May 2013, Law Bing Kee v Person(s) in occupation of RP & Anor, HCMP 2270/2009 (Unreported) 8 March 2013 and On Yip Property Development Co Ltd v Kwok Tai Kuen Alan, HCMP 3192/2013 (Unreported) 15 April 2014, held that “the plaintiff is entitled to argue that she has acquired a possessory title to the Subject Area or any part thereof by adversely possessing the same for more than 20 years, counting from a time in or about 1961, or from a later time which is before 1 July 1991 …” but that “[t]he plaintiff is not entitled to argue that she was not in adverse possession of the Subject Area or any part thereof prior to 1 July 1991, and the adverse possession only began on or after 1 July 1991.”

34.  It all depends on how D’s adverse possession claim was framed in his Re-Amended Defence and Counterclaim. In his Re-Amended Defence and Counterclaim, D has pleaded to rely on the requisite more than 20-year period [7] and D’s exclusive possession of the Occupied Land since about 1973 until the present [5]. D has not confined the requisite more than 20-year period to any particular time-frame after about 1973.

35.  Viewed thus, D is entitled to argue that he has acquired a possessory title to the Occupied Land by adversely possessing the same for more than 20 years commencing from a time in or about 1973, or from a later time which is before 1 July 1991. D, however, is not entitled to argue adverse possession commencing on or after 1 July 1991 which, as a matter of law, only requires a shorter period of continuous adverse possession.

36.  Mr Choy has rightly withdrawn the submission that D’s claim will fail simply if this Court finds the commencement of running of the limitation period to be not in or about 1973, but sometime after about 1973.[34]

General Approach to Evaluating Evidence

37.  In respect of evaluating the evidence given by witnesses, guidance can be found in Lee Fu Wing v Yau Po Ting Paul[35], in which DHCJ Au (as he then was) said:-

“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations (sic) the following:

(a) Whether the party’s case is inherently plausible or implausible;

(b) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(c) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility; and

(d) The demeanour of the witnesses.”

38.  In Taishin International Bank Co Ltd v QFI Ltd [2020] HKCFI 2116, DHCJ Paul Lam SC set out the general principles that the court should apply in assessing the credibility of a witness; in particular, citing one English Chancery case and one English Court of Appeal case at [13] and [14] respectively:-

“13. The credibility of both Ko and Huang is in issue. There is no dispute on the general principles that the Court should apply in assessing the credibility of a witness (see e.g. Progetto Jewellery Co Ltd v Lau Chiu Ying [2020] HKCFI 209 at §§28-31, per DHCJ M K Liu, cited by the Plaintiff). I also found the following summary of principles set out in Northampton Borough Council v Cardoza and others [2019] EWHC 26 (Ch) instructive:

“36. As to the considerations applicable to evaluating evidence, a useful starting point is Goff J’s (as he then was) observation as to resolving conflicts of evidence in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 LL Rep 1 at p.57

‘… Where there is a conflict of evidence … reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth’.

37. Factors relevant to the evaluation of a witness’s evidence were identified by Lewison J (as he then was) in Painter v Hutchinson [2007] EWHC 758 (Ch) at [3] when addressing the unsatisfactory nature of the defendant’s approach to giving evidence. These included : evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleading, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure. This was not intended to be an exhaustive list, but it is important and very helpful.

38. A useful recent reminder or guidance on the approach to the evidence of factual witnesses, and expanding on the guidance given by Goff J in The Ocean Frost, was given by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm). After noting that human memory is fallible and that the process of litigation and preparing for trial tends to interfere further with the reliability of human memory, particularly where a lawyer has had a hand in drafting a witness’s evidence and the witness’s memory has been refreshed by reading documents, Leggatt J concluded that the best approach for a judge to adopt at the trial of a commercial case is to base factual findings on documentary evidence and known or probable facts and the inferences to be drawn therefrom. Witness evidence, written and oral, is not without purpose; but, its principal uses are to subject the documentary record to scrutiny and to evaluate the witness’s motivations, personality and working practices.

39. In similar vein, in the recent case of Freemont (Denbigh) Ltd v Knight Frank LLP [2014] EWHC 3347 (Ch) reference was made to an article written by Bingham J (as he then was) entitled “The Judge as Juror: The Judicial Determination of Factual Issues” published in Current Legal Problems 38 in 1985. Bingham J considered the approach to deciding upon the reliability of a witness’s evidence and regarded the following to be helpful indicators of where the truth lies: the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred; the internal consistency of a witness’s evidence; and, the consistency of a witness’s evidence with what (s)he has said or deposed on other occasions. Bingham J considered that the credit of a witness in matters not germane to the litigation was of less assistance, and that the demeanour of a witness was on the whole not a reliable pointer to a witness’s honesty.”

14. In Simetra Global Assets Ltd & Another v Ikon Finance Ltd [2019] EWCA Civ 1413, Males LJ of the English Court of Appeal stressed the importance of contemporaneous documents at §48:

“In this regard I would say something about the importance of contemporary documents as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party's internal documents including emails and instant messaging. Those tend to be the documents where a witness's guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence. The classic statement of Robert Goff LJ in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at p.57 is frequently, indeed routinely, cited:

‘Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the Judge did not pay sufficient regard to these matters in making his findings of fact in the present case.’”

39.  It was held by the Hong Kong Court of Appeal in Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at [7] (per Rogers V-P) and [134]-[135] (per Stock JA (as he then was)) that for the events in question that took place a long time ago, contemporaneous documentation is usually of the highest importance.[36] The reason is obvious: Due to the unreliability and fallibility of human memory, it may be difficult for witnesses to recall clearly what happened in relation to events which took place a long time ago and this prompts judges to place little if any reliance at all on witnesses’ recollection of events.[37]

ANALYSIS OF THE EVIDENCE

40.  The crux of this case is whether D can establish his claim for adverse possession of the Property.

41.  At trial, P, D and D’s youngest son (馬楚超) have given viva voce evidence.

The Topography of the Occupied Land

42.  The Occupied Land is located on the western side of Lot 2679. Lot 2679 is bounded by the Government Land to its southwest, Lot 2680 to its northwest, Lot 2693RP to its north, Lot 2699 to its northeast and Lot 2676 to its east.

43.  Lot 2679 and the Occupied Land were cultivation lands.[38]

44.  According to Mr Choy in his oral Opening, the Occupied Land is about 1,000 square feet.

The Expert Reports

45.  Pursuant to the Orders made by Madam Registrar M Song and Master Timon Shum dated 13 December 2022 and 24 April 2023 respectively, leave was given to P and D to appoint land surveyors Mr Lionel Tang (“Mr Tang”) and Mr Chan Tat Wing Ted (“Mr Chan”) as their respective experts for the purpose of:-

(a) identifying the boundary line of the Occupied Land; and

(b) the occupation history of the Occupied Land from 1973 to 2021.

46.  Mr Tang and Mr Chan have compiled their respective Expert Reports on 13 June 2023 and 23 June 2023 respectively (respectively “Tang’s Report” and “Chan’s Report”).[39] They also jointly compiled their Joint Expert Report on 28 September 2023 (the “Joint Report”)[40] after a joint meeting held on 21 August 2023.

47.  At trial, Mr Choy and Mr So agreed that they did not require Mr Tang and Mr Chan to be cross examined. Tang’s Report, Chan’s Report and the Joint Report have been admitted in evidence for my consideration, and I rule that Mr Tang and Mr Chan are witnesses having enough relevant qualification and expertise to render their assistance to this Court.

48.  Mr Tang and Mr Chan agreed to take the period from 1973 to 2021 as the period for them to study the aerial photos and survey sheets. They both agreed and accepted the source materials listed in their respective Expert Reports. Except for one matter, the evidence of Mr Tang and that of Mr Chan is ad idem. The disagreement is about the southern boundary of the Occupied Land. Mr Tang followed and adopted the barrier (fence and gate) on the southern side of the Occupied Land recorded on the survey sheet SRP/YL/046/2129/D1[41] as the southern boundary of the Occupied Land on the ground that the Occupied Land should be defined according to the features which could separate the Occupied Land from the public. If the lot boundary line (N-P-Q) was adopted as the southern boundary of the Occupied Land, the Occupied Land would include part of the track which was open to public. Whereas Mr Chan followed and adopted the lot boundary line (N-P-Q) as the southern boundary of the Occupied Land on the ground that the portion of land between the gate and the southern lot boundary was seen covered with concrete paved by D.

49.  I agree with Mr Tang for 2 reasons. Firstly, both parties agreed that the Occupied Land claimed by D in his adverse possession plea was that shown and identified as the area coloured blue on the plan annexed to the ASoC. The barrier (fence and gate) has been adopted as the southern boundary of the area coloured blue. Secondly, there is no evidence supporting Mr Chan’s statement that the portion of land between the gate and the southern lot boundary was concreted and paved by D.

50.  On a reading of Tang’s Report, Chan’s Report and the Joint Report, the following are the important observations/findings of the features on the Occupied Land and the nearby areas.

Between 1972 and 1987

(a) Between 1972 and 1987, the Occupied Land was covered with vegetation. The vegetation clearance took place in 1977, 1980 and 1984.[42]

(b) In 1978, a temporary structure was found on the adjoining land to the west of the Occupied Land (“TS2”) and a temporary structure on Lot 2680 (“TS3”).[43]

(c) In 1981, a new block of TS2 was found, forming a group of temporary structures 2 (“TS2 Group”).

(d) Since 1981, a fence was found separating the Occupied Land into 2 portions until 1987.[44] The fence started from the southern side of TS2 Group and reached the southwestern corner of the Occupied Land, then separated the Occupied Land into 2 portions, further reached the northeastern corner of the Occupied Land, then went along the eastern boundary of the Occupied Land towards the southeastern corner of the Occupied Land (the “Fence”).[45]

(e) In 1985, some construction work on TS3 was found.[46]

(f) In 1986, 2 blocks of TS3 were found, thereby forming a group of temporary structures 3 (“TS3 Group”).[47]

Between 1987 and 2008

(g) In 1987, a track was found at the south of the Occupied Land[48] and part of the Fence located on the eastern boundary of the Occupied Land was replaced by a hoarding whilst the other part of the fence remained intact.[49]

(h) In 1988, the vegetation on the Occupied Land was cleared.[50] Part of the Fence was removed, and a new fence and gate were found and aligned with the southern boundary of the Occupied Land. The new fence and gate connected the fence on the southern side of the TS2 Group with the hoarding on the eastern side of the Occupied Land (the “Eastern Hoarding”), thereby semi-enclosing the Occupied Land (separately as the “New Fence” and the “Gate” and collectively the “New Fence and Gate”).[51] The Occupied Land was used as an entrance to the TS3 Group until 2008.[52]

(i) From 1988 to 2008, the Occupied Land was used as entrance and open space for the TS3 Group.[53]

(j) In 1993, a series of linear features was found along the northern and eastern sides of the Occupied Land.[54]

(k) In 1999, a rectangular shape object (the “Rectangular Object”)[55] was seen on the northern side of the Occupied Land with part of it located on Lot 2680.[56]

(l) In 2001, the TS2 Group and the RS3 Group were found merged into one group of temporary structures.[57]

(m) In 2002, the Rectangular Object was removed.[58]

(n) In 2003, the Rectangular Object re-appeared.[59]

(o) In 2004, the Rectangular Object was removed and could no longer be seen.[60]

Between 2009 and 2015

(p) In 2009, the TS3 Group was demolished. A new hoarding was found located just outside the northern boundary of the Occupied Land (the “Northern Hoarding”) and linked to the Eastern Hoarding of the Occupied Land. The Occupied Land was not used as the entrance to the TS3 Group anymore and became an open space.[61] A car was seen near the northern side of the Occupied Land.[62]

(q) Between 2009 and 2011, a vehicle was found parking in the Occupied Land.[63]

(r) Between 2012 and 2015, the Occupied Land was an open space without any building or temporary structure.[64]

Between 2016 and 2021

(s) In 2016, 2 blocks of temporary structures were found in the Occupied Land with one block on the northern side thereof (the “Northern TS4”) and another block on the southwestern side thereof (the “Southwestern TS4”).[65] The Occupied Land was still semi-enclosed by the Northern Hoarding, the Eastern Hoarding and the New Fence and Gate.[66] The TS2 Group remained unchanged.[67]

(t) In 2019, the Southwestern TS4 was demolished and a new temporary structure was found on Lot 2680 (the “New TS3”).[68]

51.  Mr Chan also took photos of the Occupied Land in June 2023.[69] Photos 1, 2, 5, 7 and 10 show that the southern boundary of the Occupied Land stood not only the New Fence and Gate but also some hoarding as well.

The Parties’ Evidence

52.  I now summarize the evidence given by the witnesses.

53.  A synopsis of P’s evidence is as follows:-

(a) About early 2013, P, through the introduction of his friend, approached the previous owner of Lot 2679[70] with a view to purchasing Lot 2679. When P inspected Lot 2679, the previous owner introduced his tenant, who was carrying on car-repair business in Lot 2679, (the “Tenant”) to P. After negotiation, the sale and purchase of Lot 2679 was completed on 19 February 2013. P also signed a tenancy agreement with the Tenant.

(b) When P studied the Lot Index Plan of Lot 2679, he discovered that a small portion of Lot 2679 had been enclosed (subsequently identified as the Occupied Land by referring to the part coloured yellow in the Plan of Lot 2679[71] at trial). Thereafter, he attended the Occupied Land and met D for the first time there.

(c) When P had spare time, he would go to Lot 2679 and chit-chat with the Tenant and D to cultivate friendship. During the chit-chat, P obtained D’s telephone no. and D had expressed thanks to the people surnamed Man in San Tin as they allowed him to live there.

(d) About April 2014, P began to negotiate with D on entering into a tenancy agreement. P proposed to let D the Occupied Land at a yearly rent of HK$100 for a term of 5 years. D agreed. On 1 May 2014, P telephoned D, appointing 2 May 2014 as the date to sign the tenancy agreement at Lot 2679 and explaining the portion of Lot 2679 rented to D.

(e) On 2 May 2014, P filled in the proforma tenancy agreement in the presence of D and asked D for his ID no. D told P his ID no without showing P his ID card. After P completed filling in the proforma tenancy agreement, P and D signed the proforma tenancy agreement. The signed proforma tenancy agreement is the T/A[72]. D also paid P HK$100 as the rental payment for the first year. P recorded the event of the signing of the T/A by a recording pen and produced a DVD[73] (the “DVD”) and the agreed transcript of the recording[74] (the “Transcript”) as evidence.

(f) After the T/A was signed, P contacted文振賢[75], the registered owner of Lot 2680, who had leased Lot 2680 to D, and asked 文振賢 for his tenancy agreement with D (the “2680 T/A”). 文振賢 gave P the 2680 T/A to read and P copied D’s ID no from the 2680 T/A to the T/A. P did so to expedite the process of paying stamp duty for the T/A.

(g) After signing the T/A, P would go to Lot 2679 to chit-chat with the Tenant whenever he had spare time. When he was chit-chatting with D, he would press D for payment of rent if it crossed his mind that D had not kept up with the payment of rent. However, P had not followed up with D’s rent arrears proactively as the sum outstanding was not large. D has failed to pay the 2^nd to the 5^th years rental.

(h) At about the end of 2014, D placed 2 containers on the northern side of the Occupied Land. Installed in the containers were furniture and an air-conditioner. P requested D to remove the containers since they were illegal structures. D only removed the furniture inside the containers.

(i) When the T/A was about to expire in 2019, P requested D to sign a new tenancy agreement. D refused and asked P to find lawyers to handle the matter.

(j) P decided not to renew the T/A with D and issued a notice to quit by posting up the 9/3/20 Letter[76] at the entrance of the Occupied Land.

(k) In cross examination, P said the following:-

(i) He was not an indigenous inhabitant but lived in San Tin. He had other real properties and had experience in handling tenancy matters.

(ii) After he purchased Lot 2679, he inspected Lot 2679 one week later and discovered that someone had adversely possessed the Occupied Land as pavement. The Gate was shut and there was no car parking or storage of items. Two to three weeks later, he knew that D adversely possessed the Occupied Land. Around that time, he knew that唐叔had let Lot 2680 to D.

(iii) D lived in House 64B located not on Lot 2679 but adjoined Lot 2679.

(iv) P proposed to let the Occupied Land to D at a yearly rent of HK$100 because it was the normal rent. The amount of rent collected from a tenant would depend on the user and commercial value of the land.

(v) He obtained the proforma tenancy agreement for signing from a registered owner of the neighbouring land. He no longer remembered who the registered owner was.

(vi) On 1 May 2014, he filled in the following information in the proforma tenancy agreement and signed the same:-

(aa) P’s name;

(bb) the land lot no;

(cc) the period of the lease;

(dd) the annual rental sum;

(ee) the rental due date;

(ff) the sum of deposit; and

(gg) P’s ID no.

(vii) He did not fill in D’s name, D’s ID no or the date of the proforma tenancy agreement. He was in the habit of asking the intended tenant face-to-face for the latter’s ID no.

(viii) At 02:04-02:15 in the Transcript[77], he gave the proforma tenancy agreement to D to read at the entrance of House 64B located on the government land. D read the proforma tenancy agreement at 02:15-02:18 in the Transcript[78].

(ix) At 08:11-08:26 in the Transcript[79], D signed the proforma tenancy agreement.

(x) At 08:38-09:18 in the Transcript[80], he asked D for his ID no and knew that D had given him the wrong ID no. P did not ask D for his ID card because D had told him that he would find him. P guessed that D would bring his ID card to him. They had not talked about it in detail.

(xi) There was no mention of the HK$100 yearly rental in the Transcript. After D signed the T/A and P left the Occupied Land, P remembered that he had not collected the first-year rental from D, and so he turned back to collect the rental from D. That part of the event was not recorded by P.

(xii) No one taught him to use the recording pen to record the signing of the T/A. But he was in the habit of using recording pen for the purpose of protecting his interest notwithstanding that D was in a good relationship with him.

(xiii) He signed the T/A with D one year after he first met with D. He explained that at the beginning, he needed to foster connections with D to cultivate a good relationship with D and to understand D’s intention. During the dialogues, P and D talked about the history of San Tin and D expressed thanks to the people surnamed Man in San Tin who gave a place for him to live in. The chairman of San Tin Rural Committee told him that he would only be given a place to live in, but he could not adversely possess the land he lived in.

(xiv) Later, he gave a further reason why he did not ask D to sign the T/A immediately. At that time, the Occupied Land was vacant and it did not occur to him that someone had adversely possessed the Occupied Land[81]. He felt D was nice and friendly and he had told D that a tenancy agreement would be signed sometime later, and D gave an affirmative response.

(xv) Later, he gave another reason why he waited until May 2014 to sign the T/A. Prior to May 2014, he was busy because when the car-repair garage was renovated, he was responsible for erecting hoarding, building toilets and doing the filling and drains.

(xvi) Up to the time of signing the T/A, he was in good relationship with D.

(xvii) He had not given a copy of the T/A and a receipt of HK$100 to D.

(xviii) He asked文振賢for the 2680 T/A to read and copied D’s ID no from the 2680 T/A to the T/A because he did not want to trouble D and did not want D to tell him his ID no not seriously.

(xix) After D failed to pay rent to P, P has seldom gone to House 64B to chit-chat with D.

(xx) In the 9/3/20 Letter, P did not mention that D owed him any rentals.

(xxi) The 2 containers placed by D on the northern side of the Occupied Land about the end of 2014 were red containers. He did not pay attention to when the white container was placed on the Occupied Land. The white container was placed on the Occupied Land sometime after the 2 red containers.

(xxii) The 2 red containers were intended to be used as office. Because they obstructed the road and was not lawful use of the Occupied Land, P asked D to remove them. D, however, only removed the air-conditioner and the furniture inside the containers.

(xxiii) Apart from letting part of Lot 2679 to the Tenant for his car-repair business at a monthly rental of HK$6,000, P had not put Lot 2679 to other use. The monthly rentals of other garages in the vicinity were more or less the same. The monthly rental had been increased to HK$25,000 when the Tenant ceased renting the portion of Lot 2679 as car-repair garage. Thereafter, he let that portion of Lot 2679 to another tenant at a monthly rental of HK$25,000.

54.  Briefly, D gave the following evidence:-

(a) In mid-1950s, D came to Hong Kong from Mainland China at the age of about 14.

(b) After D came to Hong Kong, he has worked as an apprentice at a restaurant and later a public light bus driver in Yuen Long. In 1973, he set up a pig shed. After the government resumed land, he opened “好運來” restaurant in Yuen Long and “松記” grocery store in Tuen Mun District. He is now a retiree.

(c) About 1973, he rented Lot 2680. In 1985, the government resumed land and after land resumption, part of Lot 2680 became government land.

(d) Apart from renting Lot 2680, D also occupied the Occupied Land. At the beginning, he did not know who owned the Occupied Land. Since 1973, he has adversely possessed the Occupied Land and regarded the Occupied Land as his own land.

(e) In about 1973, D built on the 1973 Occupied Area (i) House 64B for residential purposes and (ii) a pig shed for breeding pigs. D also caused fencing to be erected along the boundary of the 1973 Occupied Area. Only D and his family members could enter the enclosed area through an entrance at the present location of Kwu Tung Road. The relic of fencing still exists.

(f) Between 1973 and 1985,

(i) D resided in the 1973 Occupied Area with his girlfriend Madam Chan and their four children[82];

(ii) D used the 1973 Occupied Area partly for agricultural and pig breeding purposes and partly for residential purposes; and

(iii) the Occupied Land was used for agricultural purposes and plantation of trees.

(g) D also annexed some photos with description[83] and some documents in late 1970s regarding the supply of electricity and water to House 64B[84] as evidence.

(h) In 1985, due to the Vehicular Border Link at Lok Ma Chau (Phase II) project, D was notified to demolish the pig shed[85] and to clear young crops and other miscellaneous items with an entitlement of an ex-gratia allowance. D annexed some relevant documents[86] as evidence.

(i) After the construction of Kwu Tung Road, the size of the 1973 Occupied Area was reduced[87] and D was asked by District Lands Office Yuen Long to relocate the entrance to the 1973 Occupied Area to a new location. After negotiation and inspection, the government allowed D to erect the Gate[88] as another entrance[89] for the reduced 1973 Occupied Area. The Gate has been used since then.

(j) Since 1985, House 64A was situated on government land.

(k) Between 1985 and 2009, D continued to rent the remaining part of Lot 2680.

(l) In the 1990s, the first 3 children of D moved out of House 64B.

(m) In about 2004, Madam Chan moved out of House 64B.

(n) In 2009, D ceased renting the remaining part of Lot 2680. As a result, D changed the fencing to exclude the remaining part of Lot 2680 from the enclosed area; D only enclosed a portion of the government land and the Occupied Land.

(o) Since 1973,

(i) D and his family members have been residing at House 64B[90];

(ii) the Occupied Land has remained intact and continued to be occupied by D and his family members as part of their family home;

(iii) D has regarded the Occupied Land as his own property;

(iv) the Occupied Land has been enclosed by the fence and wire mesh erected by D and only D and his family members had the keys to enter the Occupied Land;

(v) D and his family members have been in exclusive possession of the Occupied Land;

(vi) D’s occupation of the Occupied Land has never been approved by the truthful owner;

(vii) D has regarded himself as the registered owner of the Occupied Land; and

(viii) D had never been asked by the truthful owner to return the Occupied Land until the commencement of the present action.

(p) D has paid for the electricity and water charges covering the Occupied Land.

(q) D has incurred a lot of money to repair, maintain and improve the Occupied Land.

(r) In 1973, D planted a Longan tree in the Occupied Land. The Longan tree has thrived and grown up strong and sturdy.

(s) From 1973 to 1985, the Occupied Land was used as agricultural land and for the purpose of breeding pigs.

(t) From 1985 to 2014, the Occupied Land was used for storage of tools and car parking.

(u) Since 2014, D has placed three containers at the northern part of the Occupied Land for the purpose of storing things. Two were stacked up together and the other stood alone on the Occupied Land.

(v) D has never had the intention of signing the T/A.

(w) Under cross examination, D testified the following:-

(i) He also ran a noodle stall between 1973 and 1985. The noodle stall was in the middle of the pig shed.

(ii) He later said that he only ran a noodle stall selling teas, noodles and rice in 泰祥街 Yuen Long after the pig shed was demolished in 1985. Before 1985, he reared pigs full time and did not run any noodle stall.

(iii) Although he did farming in Mainland China, he has not done any farming since he came to Hong Kong.

(iv) In early years, he used the address of his aunt’s noodle stall (炳記麵檔) at San Tin wet market (新田街市) as his correspondence address. His aunt’s noodle stall was closed down in about 1982 and thereafter, he applied for and successfully obtained a Post Office letter box in 1984-1985. Since then, he has used the Post Office letter box as his correspondence address.

(v) Prior to 1973, he lived with his aunt. In 1973, his aunt introduced文炳南 (Chairman of San Tin Rural Committee) to him. At that time, 文炳南was the registered owner of Lot 2680 and he rented Lot 2680 from文炳南. He and文炳南signed a tenancy agreement on a piece of silk.

(vi) Later, he said that he occupied the 1973 Occupied Area for several months first and文炳南later approached him to let Lot 2680 to him. When he started occupying the 1973 Occupied Area, the 1973 Occupied Area was vacant. The registered owner of Lot 2680 appeared and said that Lot 2680 was grandfather land (太公地). Hence, he rented Lot 2680.

(vii) He paid rent to文炳南.

(viii) He used wire mesh to enclose the 1973 Occupied Area. He had not subdivided the 1973 Occupied Area. He was clear about the boundary of Lot 2680 he rented from文炳南because Lot 2680 was made up of 7 pieces of terraced fields (田基) with clear steps like demarcation. Less than half of the terraced fields (田基) had weeds.

(ix) Later, he said that Lot 2680 included not only the 7 pieces of terraced fields (田基) but also included some other areas. Although there were no other features to signify the boundary of Lot 2680, he was nevertheless clear about the boundary of Lot 2680.

(x) He erected House 64B in 1973 and the government granted the no “64B” to House 64B in 1975. Part of House 64B was in Lot 2680 and another part of it was on government land.[91] In 1978, House 64B was also located partly in Lot 2680 and partly on government land.

(xi) The pig shed was partly erected in Lot 2679 and partly in Lot 2680. After D identified the location of the pig shed by drawing red on the aerial photo in Court Documents Bundle (B) at p 131 and exhibited such aerial photo as “D1”, D confirmed that the pig shed was in Lot 2680, not in Lot 2679. To the east of the pig shed in Lot 2679 was for storing equipment and car parking. But D has not said so in his witness statements.

(xii) D also stored pig feedstock and planted 1 to 3 Longan trees in Lot 2679. The trees were planted in 1973 and fully grown in 1978. Later, he said that 2 trees were Longan trees and 1 tree was peach tree and that 1 tree was in Lot 2679, 1 tree on government land and the other one in Lot 2680[92]. The tree in Lot 2679 was the one on the right side of the Gate. When the tree in Lot 2679 was planted, it was outside the initial location of the fencing.

(xiii) D has not felled the trees planted and those trees could still be seen on Lot 2679.

(xiv) Storing equipment and pig feedstock could be said to be for agricultural purposes.

(xv) Lot 2679 was not used for rearing pigs.

(xvi) He agreed that the aerial photos only showed the Occupied Land had fencing erected in 1981. He further said that the fencing on the Occupied Land had not been completed in 1973. Only in 1975 was the erection of the fencing completed, and the government granted the House no. Finally, he agreed that he could not remember clearly when the fencing was erected on the Occupied Land.

(xvii) He spent several months erecting fencing (made of wire mesh and water pipes) to enclose a bigger area including Lot 2680, the Occupied Land and part of government land. Thereafter, he could only erect the fencing step by step progressively because he was poor.

(xviii) He agreed that the survey sheet of 1974[93] did not show that the Occupied Land was fenced at all, that the survey sheet of 1982[94] showed fencing running from west to east across the Occupied Land, that the survey sheet of 1987 showed the same with also fencing running along the structure adjoining the northeast of the Occupied Land and that the Occupied Land was not enclosed by fencing.

(xix) He has not repaired the fencing after they were erected.

(xx) The fencing on the part of Lot 2680 resumed by the government was removed.

(xxi) Only after a lapse of long time from 1985 was the construction of the Gate completed. He could not remember clearly when the building of the Gate was completed.

(xxii) 文炳南asked for HK$4,500 rental. He began having bad blood with文炳南and ceased contacting文炳南in 2008.

(xxiii) In 2009, he ceased renting and returned the remaining part of Lot 2680 to文炳南. As a result, he changed the fencing to exclude the remaining part of Lot 2680. Initially, he said that he did not remember when he moved the fencing back to Lot 2679. Later, he said that it was 2006 to 2008.

(xxiv) One night[95] in 2014, P telephoned him that Lot 2679 was his property. This was the first time P contacted him. Thereafter, P attended Lot 2679 disturbing him many times. On the first occasion when he met P, P told him that he was文國強, the nephew of文振賢, that he had purchased the property and that thing was his. He understood what P meant and replied that P was dreaming and that he had occupied the property for a long time and P had not collected rent from him.

(xxv) He agreed that since then, he had been on the alert and would be wary of being asked to sign a tenancy agreement.

(xxvi) On 1 May 2014, P telephoned him, informing him that he would come to see him.

(xxvii) On 2 May 2014, P came to see him, and he did not know that P had recorded the meeting. When he was referred to 01:58-02:04 in the Transcript[96], he denied that he knew the registered owner of Lot 2679 was文國強

(xxviii) When he was referred to 02:14-02:15 in the Transcript[97], he said that he could not see the paper, that he did not know what the paper was about and that he did not see even one word in the paper. At first, he said that he could not remember whether he had seen the paper. Later, he confirmed that he had not seen the paper. He did not remember why he said “Your no was written wrongly” at 02:15-02:18 in the Transcript[98].

(xxix) He agreed that he was referred to a 5-year tenancy agreement at 03:12-03:17 in the Transcript[99]. At 03:17-03:37 in the Transcript[100], P said the rental was HK$100 and he answered the rental was petty sum and he would invite P to have tea. Thereafter, they went over to the Gate and the Occupied Land.

(xxx) He agreed that he signed the document at 08:11-08:26 in the Transcript[101] and that the signature in the document was his signature.

(xxxi) He agreed he clearly knew that he signed a 5-year tenancy agreement regarding Lot 2679 at a rental of HK$100. He also agreed that since P was the registered owner of Lot 2679, he would do whatever P said.

(xxxii) When he was referred to his signature in the T/A[102], he agreed that the signature was his. Later, he said that P asked him to write his name in the T/A and that he did so, but it was not his formal signature.

(xxxiii) He agreed that at the time, he saw “tenant” above where he wrote his name but did not remember whether he saw “文國強” was the registered owner.

(xxxiv) He was referred to “… 地係永遠係你嘅…” at 03:42-03:46 in the Transcript[103] and gainsaid its meaning as his admission that P had exclusive possession of the Occupied Land.

(xxxv) He denied that he was telling lies to the police when he told the police in the record of interview[104] that the signature in the T/A was not his signature.

(xxxvi) He denied that he had not admitted the truthfulness of the T/A until he received the DVD.

(xxxvii) He denied having paid HK$100 rental to P.

(xxxviii) He denied the Northern Hoarding did not belong to him though he did not remember the Northern Hoarding was erected in 2009.

(xxxix) In 2009, when he ceased renting and returned the remaining part of Lot 2680 to文炳南, he did not change the fencing or hoarding.

(xl) He did not remember when the 3 containers were placed on the Occupied Land as the event happened long time ago. It must have happened after he returned Lot 2680. The 2 red containers were stacked up together and the white container stood alone on the right side.

(xli) The containers were used to store business tools/electrical equipment. He did not stay in the containers for a long time. He installed the air-conditioner in the top red container to prevent molds on the electrical equipment. He also installed a gate to the top red container to prevent people from entering the container to steal things.

(xlii) He agreed that in 2014, people were free to enter the Occupied Land since the Occupied Land was not fenced well. That was why he installed a gate to the top red container.

(xliii) He denied that the Occupied Land was not completely fenced off to prevent outsiders from entering.

(xliv) He did not remember whether文炳南told him that he would only be given a place to live in, but he could not adversely possess the land he lived in. He denied that he expressed thanks to文炳南’s giving a place for him to live in and that he told P about his aforesaid conversation with文炳南.

(x) In re-examination, D clarified the following:-

(i) The 1973 survey sheet[105] showed that in 1973, there was fencing running across the Occupied Land.

(ii) The car (as shown in the 1987 aerial photo[106]) parked in the Occupied Land was his car.

(iii) The Occupied Land was completely fenced off and there was no question that the Occupied Land was not fenced well resulting in him installing a gate to the top red container.

(iv) P had never chased him for payment of rentals.

55.  The evidence of D’s youngest son (馬楚超) is as follows:-

(a) 馬楚超was born in 1978. Since his birth, he has been living in House 64B. He is an air-conditioner engineer by occupation.

(b) 馬楚超married his wife (張家瑩) in 2013 and his daughter (馬詩雅) was born in 2014. He, his wife, his daughter and D are now living in House 64B.

(c) 馬楚超confirmed that the Occupied Land went through 3 stages of occupation by D. When the Occupied Land transited from one stage to another, the fencing and wire mesh were required to be changed, and the changing work was completed in one or two days’ time.

(d) At all relevant times, the Occupied Land was enclosed by the fencing of D and his family.

(e) 馬楚超in cross examination testified the following:-

(i) During his childhood, D told him that “this place is our home (“呢個地方係我哋屋企”). “This place” was understood to be the 1973 Occupied Area.

(ii) At all relevant times, the Occupied Land was enclosed/fenced by D and his family. His family included D, his mother, his brother and sisters. Since he was born in 1978, D has not disallowed him to live in House 64B and the Occupied Land. Neither had D disallowed his elder brother and sisters to live there until they left House 64B and the Occupied Land.

(iii) The 3 stages of occupation by D were: 1973-1985, 1985-2009 and 2009-present.

(iv) Part of the land of Lot 2680 was resumed in 1985. He could not tell when the Gate was practically erected.

(v) D himself erected the fencing.

(vi) From 1973 to 2009, there were gaps between the pillars of the fencing enclosing the Occupied Land, where animals could pass through and people could go through.

(vii) In 2009 when Lot 2680 was returned to the registered owner, the Occupied Land was fully fenced except the part where House 64B was erected and the part of terraced fields which had elevation difference.

Findings of Fact

56.  The legal wisdom which I can decipher from previous case law is that contemporaneous documentation is more reliable and reflective of the truth and reality than viva voce evidence. This is particularly so when the events in question took place many years ago and human memory per se is inherently fallible for many reasons to recall the events. I shall, as a matter of common sense or pure legal logic, accord more weight to contemporaneous documentation than viva voce evidence.

57.  In the present case, two important categories of contemporaneous documentation are aerial photos and survey sheets. They form part of the public record and record the occupation and land use history of the Occupied Land and its neighbouring surroundings from 1973 to 2021. If there is any variance between the evidence of arial photos and survey sheets of the one hand and the viva voce evidence of P, D and馬楚超of the other, I would no doubt prefer the evidence of aerial photos and survey sheets unless there is an acceptable reason for me to decide otherwise. Between aerial photos and survey sheets, I would prefer aerial photos if there are differences between the evidence of aerial photos and that of survey sheets. Aerial photos are real evidence, and their creation was by machines/devices (i.e. cameras) managed by people acting in the course of their duties whilst survey sheets were created by surveyors acting in the course of their duties. It goes without saying that recording by cameras is more reliable than recording by human surveyors.

Whether D had factually been in continuous and exclusive possession of the Occupied Land for a period of more than 20 years

58.  D said that he started occupying the 1973 Occupied Area in or about 1973 and the 1973 survey sheet shows that there was fencing running across the Occupied Land from west to east. Vegetation clearance, however, only started in 1977 and it was only in 1978 that TS2 was found on the adjoining land to the west of the Occupied Land and TS3 on Lot 2680.

59.  I find as facts the following:-

(a) D and his family started occupying Lot 2680 and the land nearby in or about 1973. D rented Lot 2680 from 文炳南.

(b) House 64B was only erected in 1978 (outside the Occupied Land) to the west of the Occupied Land. D and his family members have been residing in House 64B since then. At that time, the Occupied Land was not completely fenced off. To the northeast of the Occupied Land was Lot 2680 rented by D from 文炳南. There was no fence on the boundary between Lot 2680 and Lot 2679. Neither was there any fence on the western side of the Occupied Land as House 64B was located to the west of the Occupied Land. The only fence was the Fence. The Fence started from the southern side of TS2 and reached the southwestern corner of the Occupied Land, then separated the Occupied Land into 2 portions, further reached the northeastern corner of the Occupied Land, then went along the eastern boundary of the Occupied Land towards the southeastern corner of the Occupied Land. D was the person who erected the Fence.

(c) After House 64B was built, a pig shed was erected on Lot 2680. D also planted 2 Longan trees and 1 peach tree in the 1973 Occupied Area. One longan tree was planted in Lot 2679 within the Occupied Land. However, the longan tree planted in Lot 2679 was outside the initial fencing erected by D.

(d) In 1985, due to the Vehicular Border Link at Lok Ma Chau (Phase II) project, the government resumed part of Lot 2680 and D was notified to demolish the pig shed and to clear young crops and other miscellaneous items.

(e) After the construction of Kwu Tung Road, the 1973 Occupied Area was downsized. D was asked by District Lands Office Yuen Long to relocate the entrance to the 1973 Occupied Area to a new location. Hence in 1988, part of the Fence was removed and the New Fence and Gate were erected by D. The New Fence and Gate connected the fence on the southern side of House 64B with the Eastern Hoarding, thereby semi-enclosing the Occupied Land. The Occupied Land was then used as an entrance to Lot 2680 and House 64B. D and his family members had keys to the Gate.

(f) Between 1985 and 2009, D continued to rent the remaining part of Lot 2680.

(g) In 2009, D returned the remaining part of Lot 2680 to 文炳南, and the Northern Hoarding was erected by D just outside the northern boundary of the Occupied Land and linked to the Eastern Hoarding thereof. The Occupied Land ceased being used as an entrance to Lot 2680 but was used as an open space/pathway leading to House 64B from the Gate. Between 2009 and 2011, D’s vehicle was found parking in the Occupied Land.

(h) In 2016, D placed 3 containers on the Occupied Land, 2 red containers stacked up together with the white container standing alone. The containers were used by D to store furniture and electrical equipment.

(i) D has factually been in continuous and exclusive possession of the Occupied Land since 1988.

60.  I do not accept that the Occupied Land was used for agricultural and pigs breeding purposes. It is the evidence of D that he has not done any farming since he came to Hong Kong and the pig shed was built outside the Occupied Land and Lot 2679. I do not accept D’s evidence that to use the Occupied Land for storing equipment and pig feedstock could be said to be for agricultural purposes. This argument is too artificial.

61.  I also take the view that payments of electricity and water charges in the present case are of peripheral evidential value. Prima facie, those charges were incurred for House 64B, not relating to the Occupied Land. At most, such payments only show that D has been consuming electricity and water which suggest D’s residence in House 64B. Furthermore, D has only produced a scanty no of such payment record as evidence.

Whether D had the requisite animus possidendi; whether D has entered the T/A with P and what is the effect of the T/A (if any) on D’s claim for adverse possession

61.  The question whether D had the requisite animus possidendi during the relevant period of his continuous and exclusive possession of the Occupied Land (between 1988 and 2008) is the most difficult issue in the present case. This issue cannot be looked at without resolving the question as to whether D has entered the T/A with P since if D has signed the T/A, the T/A must have an evidential impact on whether D had the requisite animus possidendi during the relevant period.

62.  On this issue, I bear in mind the trite law that acknowledgement of title made after the expiry of the limitation period will not suffice to revive the owner’s title as the owner’s title has been extinguished by the statue. However, the aforesaid trite law does not prevent this Court from looking at all the circumstances of the present case including the T/A and the circumstances pertinent to the T/A in determining whether D had the requisite animus possidendi during the relevant period of his continuous and exclusive possession of the Occupied Land (between 1988 and 2008).[107]

63.  D’s pleaded case on the T/A is that he did not enter the T/A and that the signature on the T/A was not his signature. D further alleged in his Counterclaim a suspected forgery of D’s signature in the T/A. The suspected forgery aside, D has not pleaded any circumstances which vitiated the T/A if D had signed the T/A.

64.  It is clear from D’s viva voce evidence that he signed on the T/A when P took the document to him for his signature on 2 May 2014 and that he knew what he signed was a 5-year tenancy agreement regarding Lot 2679 at a yearly HK$100 rental. There is no question that D’s signature in the T/A was a forged signature. D’s pleaded case on the T/A must fail.

65.  On the issue of the T/A, I prefer the evidence of P when D’s evidence is at variance with that of P. D said that after he told P that P was dreaming and that he had occupied Lot 2679 for a long time and no rent was collected from him, he had been on the alert and would be wary of being asked to sign a tenancy agreement. If that was the case, D should have been very cautious when he was asked by P to sign the T/A or any document and should not have signed the same. On the contrary, what has been recorded about the meeting between P and D on 2 May 2014 has suggested otherwise.

66.  I have listened to the DVD and read the Transcript time and again. On balance, I find as follows:-

(a) Initially, D misunderstood what he was going to sign was a tenancy agreement related to Lot 2680. The misunderstanding was corrected by P who told D that the tenancy agreement was related to Lot 2679. P and D even went over to the Occupied Land to identify the Occupied Land to be leased to D[108].

(b) D had read the T/A briefly himself otherwise he would not have said “Your no was written wrongly” at 02:15-02:18 in the Transcript[109].

(c) When D said “… 地係永遠係你嘅…” at 03:42-03:46 in the Transcript[110], he was referring to the Occupied Land in Lot 2679.

67.  Based on the aforesaid, I find that D has entered the T/A on 2 May 2014 and that the T/A was a valid tenancy agreement binding on P and D.

68.  Although I have found that D has factually been in continuous and exclusive possession of the Occupied Land since 1988, I nevertheless cannot be satisfied that D had the requisite animus possidendi during the requisite period of time (ie 1988 to 2008). This lack of the requisite animus possidendi may perhaps due to the reality that the Occupied Land was all along adjoining Lot 2680 without demarcation and D was unable to identify the boundary between Lot 2680 and Lot 2679. If D had all along considered himself as owner of the Occupied Land, he should have refused to sign the T/A and turned away from P on 2 May 2014. The fact that D signed the T/A on 2 May 2014 is a telltale sign of his lack of the requisite animus possidendi during the requisite period of time. Furthermore, when D was taxed on the Transcript in cross examination, he agreed that since P was the registered owner of Lot 2679, he would do whatever P said. This evidence runs counter to D’s assertion of animus possidendi.

Whether D was liable to pay rent to P under the T/A and whether D has paid any rent to P under the T/A

69.  As I have found that D has entered the T/A and that the T/A was a valid tenancy agreement binding on P and D. There is no reason why D was not liable to pay rent to P under the T/A.

70.  According to P’s evidence which I have accepted, D has only paid him HK$100 as the rental payment for the first year. D has defaulted in paying the annual rental for the balance of the 5-year term.

71.  Accordingly, I find that D was liable to pay P the rent arrears for the balance of the 5-year term.

DISPOSITION

72.  For the reasons given above, I make the following Orders:-

(a) Judgment be entered for P against D on his claims[111] for:-

(i) vacant possession of the Occupied Land (the property as shown and coloured blue on the plan annexed to the ASoC); and

(ii) the total rent in arrears of HK$400 (4 x 100) for the period from 2 May 2015 to 1 May 2019 with interest at 1% above the HSBC best lending rate from their respective due dates of rental payment to the date of judgment and thereafter at the judgment rate until full payment of the same; and

(b) D’s counterclaim be dismissed.

73.  As to costs, I make the following order nisi:-

(a) D do pay P’s costs of the action on a party and party basis, such costs to be taxed if not agreed with certificate for counsel; and

(b) D do pay P’s costs of the counterclaim on a party and party basis, such costs to be taxed if not agreed with certificate for counsel.

74.  The costs order nisi shall be made absolute unless application for variation is made within 14 days from the date of this judgment.

75.  Lastly, it remains for me to thank counsel for their able assistance rendered to this Court.