TANG WONG LOI AND OTHERS v. CHAN SAM KIU AND ANOTHER

DCCJ 4837/2013

[2018] HKDC 234

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4837 OF 2013

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JUDGMENT

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1.  The plaintiffs are siblings and are the registered owners of Lot Nos 918 and 919 in Demarcation District No 46, New Territories (“the Land”).  They are bringing this action to recover the Land from the defendants whom they claim are trespassers.

2.  The 1^st defendant claims that since about 1934 she has been in continuous and exclusive possession over a portion of the Land for farming activities.  The survey plan shows that the portion of the Land claimed to have been occupied by the 1^st defendant covers a substantial part of the Land, save for a very small portion at the southern part of Lot No 919.  Her occupation carried on until the end of 2013 when the plaintiffs fenced off the Land (together with Lot No 917 which adjoins the Land and is also owned by them) and denied her access.  She claims adverse possession over the Land.

3.  The 2^nd defendant is the granddaughter of the 1^st defendant.  She supports the 1^st defendant’s claim for adverse possession.  She was joined as a defendant because in about October 2013, she and her brother assisted the 1^st defendant to put up new metal mesh fences to surround various parts of the Land, and as such is a trespasser herself.

4.  The 1^st defendant claiming adverse possession has to prove that she has in respect of the Land and for a period at least 12 years (if the period of adverse possession commenced after 1 July 1991) or 20 years (if the period of adverse possession commenced before 1 July 1991) prior to the date of the Writ in this action: (1) factual possession; (2) intention to possess, or animus possidendi; and (3) adverse possession: Birkenhead Properties and Investments Limited v Lam Kai-man & Ors, HCMP 1588/2012 (12 January 2016) at [9] per To J.

5.  Factual possession requires an appropriate degree of physical control.  It must be a single and conclusive possession.  Broadly speaking, the 1^st defendant must show that she has been dealing with the Land as an occupying owner might have been expected to deal with it and that no one else has done so: Birkenhead at [10].

6.  Possession is a matter of fact depending on all the particular circumstances of a case.  In many cases, possession cannot, in the nature of things, be continuous from day to day (especially as regards farmland after each harvest or during the winter months), and it is well established that possession may continue to subsist notwithstanding that there may be intervals (and sometimes even long intervals) between the acts of user: Bligh v Martin [1968] 1 WLR 804 at 811 per Pennycuick J.

7.  Intention to possess or animus possidendi is the intention to possess the land in one’s own name and on one’s own behalf, to the exclusion of the world at large, including the paper owner so far as is reasonably practicable and so far as the process of law will allow.  The 1^st defendant as a squatter has to make it perfectly plain to the world at large by her actions or words that she is enjoying the Land openly as of right as if she were the rightful owner.  She does not need to show an intention to own or acquire ownership of the Land: Birkenhead at [11].

8.  Adverse possession means that the 1^st defendant’s possession must be adverse against the title of the paper owner.  Possession is never adverse if it is enjoyed under a lawful title or with the permission from the paper owner: Birkenhead at [12].

9.  The 1^st defendant bears the burden of proof, by objective and compelling evidence: Birkenhead at [13].

10.  For the purpose of deciding whether the plaintiffs’ title over the Land has been defeated by limitation, I do not need to decide the precise point of time when the 1^st defendant entered the Land so long as I am satisfied that she has proved that she has been there for the requisite period of time with the necessary intention to possess: Yu Siu Cheuk v Realray Investments Limited, CACV 181/2009 (10 November 2009) at [17] per Cheung JA. 

11.  The 1^st defendant does not need to give a detailed, day-to-day account of what use was made of the Land.  I have to determine, on a balance of probabilities, that there was uninterrupted adverse possession throughout the relevant period: Trustees of the Michael Batt Charitable Trust v Adams (2001) 82 P. & C.R. 406 at 410 per Laddie J.

12.  I first summarize the 1^st defendant’s evidence as follows.

13.  The 1^st defendant was born in 1923. 

14.  In 1931, she was married into her late husband’s family, and her matrimonial home was within walking distance from and facing the Land and the government land in front of the Land on which her father-in-law would cultivate crops and keep livestock. She started assisting her father-in-law to work on the Land and the government land since about 1936 when she was 13 years old.  They would grow different types of crops, partly for sale and partly for self-consumption and giveaway to neighbours and relatives.  No rent was ever demanded or paid for their use of the Land or the government land.

15.  In 1939, the 1^st defendant was officially married to her late husband.  Since her late husband was a civil servant, he would only assist in the farming activities on the Land and the government land after work or during holidays.  He completely ceased being involved in about 1987 due to the deterioration of his health.  He passed away in 1990.

16.  In 1945, the 1^st defendant put up wooden hoarding around the Land and the government land in front to avoid wild animals eating her crops and to prevent others from entering her farmland.  In about 1960, she replaced the wooden hoarding with new timber.  In about 1991, she replaced the wooden hoarding with metal mesh fencing, with a metal gate on the government land facing her home as the only entry point into the government land and the Land.  There was internal metal mesh partition separating the Land and the government land.  She grew crops on the Land, and kept poultry on the government land.  In 2006, she removed the metal mesh partition between the Land and the government land following the government’s ban on all unlicensed poultry activities, and only cultivated crops on the Land and the government land.

17.  In 2008, certain government contractors when conducting a nearby sewage project deposited soil and debris on the southern end of Lot 919, and as a result slightly damaged the 1^st defendant’s farmland.  The 1^st defendant did not report to the police or make any complaint to the government, and removed the debris and flattened the ground.

18.  One day in 2012, the 1^st plaintiff offered to pay $100,000 to acquire the Land from the 1^st defendant, which she refused.  She was of the view that the Land was passed on from her father-in-law to her late husband and herself. That was the first time she met the 1^st plaintiff.  In this regard, I note that it was the 2^nd plaintiff’s evidence that it was the 1^st defendant who approached him and offered to sell the Land in return for her stopping the cultivation.  Such dispute is not material on any of the key issues, and I do not make any finding one way or another.

19.  In November 2013, noticing that the metal mesh fencing surrounding the Land and the government land was damaged by wild dogs which entered the 1^st defendant’s farmland and damaged her crops, the 2^nd defendant and her brother helped the 1^st defendant to fence off the Land and the government land with stronger metal mesh fencing.  This led to a quarrel between the 2^nd defendant and the 1^st plaintiff’s son who demanded her to stop fencing off the Land, claiming that it belonged to his family.  After about one week, the 1^st plaintiff’s son instructed contractors to put up a metal mesh fencing surrounding the 1^st and 2^nd defendant’s metal mesh fencing around the Land and the government land, and since then the 1^st defendant could not access her farmland.

20.  The 2^nd defendant and her father who also gave evidence for the defendants supported the 1^st defendant’s account of events.  They claimed that the 1^st defendant had been continuously growing crops on the Land since they came of age.  The 2^nd defendant also claimed that as far as she could recall, the Land and the government land in front of the Land have always been surrounded by metal mesh and metal gate.

21.  As is conventional in adverse possession claims, the parties have adduced land surveyor expert reports on the state of occupation of the Land over the years by reference to the aerial photographs.

22.  It must be stressed that the court as a perceptive observer is in as good a position as the surveyors (despite their expertise in the field) in observing what the aerial photographs depict: Ricas Properties Limited v Armed Forces Trading Company Limited & Others, DCMP 75/2008 (8 November 2010) at [41] per His Honour Judge Leung; Grand Wayfair Investment Company Limited v Chan Yung Kan trading as Luk Yau Yau Organic Vegetable & Others, HCA 558/2007 (18 October 2013) at [67] per Deputy High Court Judge Seagroatt.  I am also not bound to accept the conclusions reached by the parties’ expert surveyors, even on points which they appear to be in agreement, if I myself am not satisfied with the basis and cogency of any such conclusion.

23.  In the first report, the plaintiffs’ surveyor expressed the view that for 1990, 1991, 1995, 1997, 1999, 2003, 2006, 2008, 2009 and 2014, there was no cultivation on the Land.  However, in his second report, he expressed the view that cultivation activities on the Land for those years “were not obvious”.  For 1993, 1994, 2000, 2012 and 2013, whilst his view in the first report was that there were cultivation activities (of varying scales) on the Land, his second report stated that they “were not obvious”.  There is no explanation for the change.

24.  On the other hand, the 1^st defendant’s surveyor expressed the view that some cultivation patterns could be identified on the Land based on the aerial photographs of 1949, 1963 and 1973, and a cultivation field could be observed in the aerial photograph of 1986.  My own review of these aerial photographs suggests no more than shades of vegetation of different densities on various parts of the Land (the 1973 photograph showing a complete dark mass).  I fail to see how any cultivation patterns or cultivation field could be observed from the photographs.

25.  The two surveyors suggested that some fence-like structures could be identified on parts of the Land over the years.  I was not able to come to such conclusion based on my study of the aerial photographs.

26.  The above highlighted the entirely unsatisfactory nature of the expert surveyors’ reports in this case.  I am afraid I can derive no assistance from the conclusions reached by the surveyors of either the plaintiffs or the 1^st defendant.  Since the parties have agreed prior to the trial that the expert reports would be admitted into evidence without calling the makers to give oral evidence, I do not have the benefit of clarifying any queries which I may have on the reports with the experts. 

27.  In future cases involving expert evidence in particular expert surveyor evidence in an adverse possession claim, I urge parties to give serious thought on the best way to present such expert evidence before agreeing to admit the reports without calling for oral evidence at trial.

28.  The only conclusion which I could reach upon studying the aerial photographs is that over the years, the density of vegetation over various portions of the Land varied.  There were times when the Land appeared to have been completely cleared of vegetation.  This strongly suggested that the Land was under someone’s management or control, and was not completely unattended to.

29.  The 1^st plaintiff and his son, the 2^nd plaintiff, and the mother of the plaintiffs, all gave evidence for the plaintiffs.  All of them said that they never saw any metal mesh fences surrounding the Land as the 1^st defendant alleged until late 2013.  The 1^st plaintiff added that over the years when he returned to Hong Kong from the United Kingdom, he could only see piecemeal plantation on part of the Land, not any large-scale or systematic cultivation of crops.

30.  The defendants invited me to draw adverse inference against the plaintiffs for not calling the 3^rd plaintiff to give evidence at trial even though the 2^nd plaintiff confirmed that he knew of her whereabouts and she was in normal health condition.

31.  I do not believe there is any substance in such a complaint.  As Mr Wallace Cheung for the plaintiffs rightly pointed out, the plaintiffs are entitled to rely on their paper title.  The burden is on the 1^st defendant as the squatter to prove adverse possession.  The plaintiffs do not have to call any particular factual witnesses: Birkenhead at [20].

32.  The plaintiffs produced a photograph of the Google street map service which appeared to show the surroundings of the Land (and its adjourning government land and also Lot No 917) as of June 2009.  There was no dispute over its authenticity or accuracy. 

33.  The photograph clearly showed there were no metal mesh fences surrounding the Land, although there appeared to be metal mesh fences enclosing the government land in front of the Land.  This flatly contradicted the defendants’ assertion that the Land has always been enclosed by metal mesh fences since 1991.

34.  The above inconsistency with the defence case is crucial, in two aspects.  First, it impacts on the defendants’ credibility.  Second, and more importantly, without any metal mesh fences, the 1^st defendant will not be in a position to establish that she had been planting crops on the Land or on any particular part thereof over the years.  This is particularly so when, as Mr Cheung for the plaintiffs correctly pointed out, without the assistance of surveyor prior to the commencement of this action, one would not know the exact boundaries of the Land and its adjoining lots including Lot 917 and the government land.  In a piece of land where there were no natural boundaries, the 1^st defendant would not be able to know the areas which she had cultivated for years would fall within the boundaries of the Land in question.

35.  I add that the 1^st defendant confirmed in cross-examination that she had (purportedly) erected wooden (and later metal mesh) fences to fend off wild dogs and pigs from going into the cultivation bed and to avoid damage to her crops.  She further said that after each harvest of the crops, the fences would be taken down and the soil would have to be ploughed for the next crop to be planted.  The fences were not installed for preventing people from entering the enclosed area.

36.  The 1^st defendant also said that she did not by words or conduct stopped people from going into the Land.  She expected people (mostly fellow villagers) not to enter the Land because they would know the Land was cultivated by her and they should know the rules. 

37.  There is also evidence from the plaintiff’s son that he could freely go into and past the Land.

38.  The 1^st defendant would not be able to show the exclusive character of her occupation in order to establish factual possession.  In Gotland Enterprises Limited v Kwok Chi Yau & Others, CACV 260/2014 (19 January 2016) Lam JA (as he then was) held at [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 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.” (emphasis added)

39.  See also Trustees of Michael Batt Charitable Trust v Adams (above) at [34] per Laddie J:-

“… A fence is a barrier. It keeps things in and it keeps things out. No doubt it is reasonable to assume in many cases that a person who maintains a fence is doing so for both purposes, but that is not necessarily so. Having read all the evidence and the transcript of the cross-examination there is nothing in this case which suggests that Mr Higgs was doing anything other than putting up a sufficient barrier to keep his livestock in. This also is not unequivocal evidence of an intention to exclude others.” (emphasis added)

40.  In the circumstances, I find that the 1^st defendant has failed to establish factual possession and intention to possess the Land.  Her claim for adverse possession is therefore rejected.

41.  For completeness, I do not accept the plaintiffs’ claim that the 1^st defendant was farming on the Land (and also the adjourning Lot 917) pursuant to an oral licence given by their parents to her together with three other ladies in the village after the Second World War and that the farming ceased after about 1990.  Such a claim (which Mr Tony Ng for the 1^st defendant rightly contended as a sea change in the plaintiffs’ case) was only made in the Amended Reply filed in January 2016.  The 1^st and 2^nd plaintiffs confirmed that they were told about the ceasing of the farming by the 3^rd plaintiff who did not give evidence at trial and they did not undertake any independent verification.  There is thus insufficient evidential basis for me to come to such a finding.

42.  For all of the above reasons, I enter judgment in favour of the 1^st, 2^nd and 3^rd plaintiffs by making an order for possession of the Land against the 1^st and 2^nd defendants. 

43.  The plaintiffs confirmed that they would only seek nominal damages for trespass against the 1^st and 2^nd defendants, and would not seek any other relief set out in the Statement of Claim.

44.  I order each of the 1^st and 2^nd defendants to pay HK$100 to each of the 1^st, 2^nd and 3^rd plaintiffs as nominal damages, within 14 days from the date of this judgment. 

45.  I dismiss the counterclaim of the 1^st defendant.

46.  Costs should follow the event.  I make a costs order nisi that the 1^st and 2^nd defendants do pay the 1^st, 2^nd and 3^rd plaintiffs’ costs of this action (including all costs reserved), to be taxed if not agreed, with certificate for counsel.  The 1^st defendant’s own costs are to be taxed in accordance with the Legal Aid Regulations.  The costs order nisi is to be made absolute in the absence of an application for variation by summons within 14 days from the date of this judgment.

47.  I thank counsel for their assistance.