MOON LAM, the person appointed to represent the estate of TANG SHAU KI, deceased v. TANG YING YEUNG

HCA 1055/2014

[2018] HKCFI 923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1055 OF 2014

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J U D G M E N T

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Introduction

1.  In this action, the plaintiff (“P”) is recovering possession of a piece of land in Yuen Long against the defendant (“D”), who claims he has been in adverse possession of the land since about 1985 and counterclaims for a declaration that he has acquired a good title to the land.

Background

2.  The Wing Lung Wai Village (永隆圍) is a walled village in Kam Tin in New Territories, Hong Kong and was established by the Wing Lung Wai Tai Chung/永隆圍大眾, a Tso Tong founded by members of Tang Ching Lok Tso (鄧清樂祖). 

3.  Tang Ching Lok had 4 sons and several brothers. The descendants of Tang Ching Lok Tso consisted of the following 3 fongs/tsos, or branches[1]:

(1)   Tang Wan Yeung Tso (鄧雲讓祖), male descendants of Tang Wan Yeung, 3^rd son of Tang Ching Lok (“1^st Branch”)

(2)   Tang Wan Yu Tso (鄧雲御祖), male descendants of Tang Wan Yue, 4^th son of Tang Ching Lok (“2^nd Branch”)

(3)   Tang Wo Chun Tso (鄧和眾祖), male descendants of Tang Ching Lok’s 3^rd younger brother (“3^rd Branch”)

4.  The land in question is situated within the walled Wing Lung Wai village (“Wing Lung Wai”) on a lot known as Wing Lung Wai Lot No 1 in DD 109, Yuen Long (“Lot 1”)[2].  The main entrance to Wing Lung Wai (“Main Entrance”) had extended and encroached onto the extremely eastern end of Lot 1 throughout the years and this was not disputed. The subject matter of this litigation is the rest of Lot 1 which for easy reference in this judgment, I shall simply refer to the disputed land as Lot 1.

5.  The registered owner of Lot 1 was since 24 October 1914 one Tang Shau Ki (鄧壽祺), who was said to have died during the Japanese occupation of Hong Kong in 1942 (“Deceased”).  The Deceased was a descendant of the 1^st Branch and he had no sons.  According to P, he had two daughters, one of whom was Tang Mui (鄧妹).

6.  It was not disputed that a house used to stand on Lot 1 (“Old House”), and that the Deceased’s daughter Tang Mui and her family used to reside in the Old House until they moved out of Wing Lung Wai.  

7.  The Deceased had a brother Tang Chun Sau (鄧春壽) whose only son was called Tang Tat Yi (鄧達儀).  Tang Tat Yi’s only son was called Tang Poon Lap (鄧本立)[3], who was born in September 1938 in Wing Lung Wai.  According to P and his father, P’s father is in fact Tang Poon Lap.  After P’s grandparents died during the Japanese occupation, P’s father was taken to Mainland China by his paternal grandmother in 1945/1946.  His father was later brought up in a monastery where the abbot there gave him the name “Tak Ning”/德寧.

8.  In 1982, P’s father had a chance to come to Hong Kong from the Mainland and he, bringing with him P and P’s elder brother, went to Wing Lung Wai to look for his ancestral property and when he found it, he had a discussion with the then manager of the Wing Lung Wai Tai Chung and village chief Tang Wing Sau (鄧永壽), who accepted that P’s father was the same person as Tang Poon Lap recorded in the village record books as being born in Wing Lung Wai.  P’s father later applied for an entry permit from Mainland to Hong Kong and moved back to Hong Kong on 1 February 1985.

9.  According to P, after his father returned, there was a meeting on 9 February 1985 held by the elders of Tang Ching Lok Tso and that they had agreed to pay P’s father and his sons a sum of HK$20,000 for expenses to repair their ancestral property and they agreed to assist P’s father to recover his ancestral property from the then occupiers. 

10.  Later, in March 1986, the District Office of Yuen Long accepted P’s father’s application as the only son and successor of Tang Tat Yi, and on 27 May 1986, P’s father formally registered himself as the successor to the properties/lots registered in the name of Tang Tat Yi in Wing Lung Wai[4].

11.  Thereafter, in July 1986, there was to be a meeting held in the village hall of Wing Lung Wai to discuss the restoration of P’s father’s household membership in Wing Lung Wai Tai Chung, but two brothers Tang Pak Wing (鄧栢榮) and Tang Chung Wah (鄧宗華) of the 2^nd Branch had created disturbances and disrupted the meeting.

12.  Notwithstanding the registration as successor, P’s father had faced difficulties in recovering his ancestral property and when he and his family attempted to enter their ancestral property at no 106 Wing Lung Wai on 16 October 1986, they were beaten up by what P believed to be descendants from the 2^nd Branch, who would have been able to claim the properties of the 1^st Branch, if the 1^st Branch had become extinct.  The attackers were later convicted in December 1986 at the Fanling Magistracy. 

13.  In 1986, P’s father issued an action under HCMP 2380 of 1986 to recover possession of one of his properties situate on Lot no 453 in DD 109 against the then occupier Tang Pak Wing (鄧栢榮) and his two tenants, and the matter was later settled by Tang Pak Wing voluntarily handing over possession and paying compensations to P’s father[5]. 

14.  The registration of P’s father as a household member of Wing Lung Wai Tai Chung was opposed and this led to P’s father issuing a writ under HCA 761 of 1996 against Wing Lung Wai Tai Chung and other villagers, in order to establish his identity to be Tang Poon Lap and to be registered as a member of Wing Lung Wai Tai Chung. After a 4 day trial, Yam J handed down a judgment in HCA 761 of 1996 on 28 April 2005 (“HCA 761/96 Judgment”) confirming that P’s father Tang Tak Ning was the same person as Tang Poon Lap and was the only son of Tang Tat Yi, who was the only son of Tang Chun Sau.  This means the Deceased was P’s “太叔公” or great great uncle.  Tang Chun Sau and the Deceased were brothers and descendants of the 1^st Branch. 

15.  According to P, in 1985/1986, he had met with the elder daughter of the Deceased, Tang Mui, and her daughter in a restaurant and they had told him that they were forced to leave Wing Lung Wai after an incident of indecent assault of Tang Mui’s daughter, and that Tang Mui became emotional and had requested P to apply to succeed to the Deceased’s property and suggested this be done through a “Kim Tiu” (兼祧) method.   P said in 1986, he had made an application to be a successor to the Deceased and to inherit the Deceased’s properties under the then section 17 of the New Territories Ordinance, Cap 97, but the descendants of the 2^nd Branch objected to this, and he was not able to proceed with his application. 

16.  P had never lived in Wing Lung Wai but said he had visited it regularly over the years. 

17.  D is a descendant of Tang Wang Yue Tso, the 2^nd Branch and he was born in Wing Lung Wai.  His father was Tang Chung Wah (鄧宗華) who died on 3 July 2012, then aged 89 years of age.  According to the land search record, D became the registered owner of Lot No 2 in DD 109 (“Lot 2”) on 4 December 1997.  According to D, Lot 2 is about 350 sq ft in size and had belonged to Tang Leung Tak (鄧亮徳), a descendant of the 3^rd Branch.  Lot 1 and Lot 2 are adjacent to each other. It was D’s case that he started to occupy both Lot 1 and Lot 2 in 1985.

18.  On 19 January 2007, D became the village representative of the indigenous villagers of Wing Lung Wai (“Village Representative”) and in 2008, he caused the Old House on Lot 1 to be demolished.  P said when he and his father were alerted, they challenged D’s action.  According to P, D had explained to them that he was trying to “beautify the environment” (美化環境) of Wing Lung Wai and as it was for communal use and the other owners did not object, P and his father did not continue with their protestation.  D denied that he had ever said the clearing of the lots was to “beautiful the environment”.

19.  Anyway, as seen later in this judgment, in addition to Lot 1, Lot 2, other lots were also cleared, and the ground was paved with cement, and an open space was formed and was said by P to be used by the villagers for various purposes.

20.  Then, 4 years later, on or around 27 February 2012, workers engaged by D commenced construction of a new house over both Lot 1 & Lot 2 of Wing Lung Wai (“New House”).  It appeared that on about 5 March 2012, P had caused an empty container to be placed at Lot 1 to attempt to stop D from carrying on the construction (“Container Incident”).  There was a report to the police.  Later the container was removed and the New House was completed near end of 2012.  The New House was built without proper approval from the Government, and was thus said to be an illegal structure.  A building order under section 24(1) of the Buildings Ordinance, Cap 123 was issued on 22 January 2013 against Lot 1 and Lot 2 requiring the demotion of the New House and was registered in the Land Registy, but up until the trial it had not been enforced (“Building Order”).

21.  P said he had protested to the erection of the New House in February 2012 and there was the Container Incident mentioned above. P later applied for legal aid and commenced the present action. 

22.  The writ herein was initially issued on 12 June 2014 in the name of the Deceased, namely Tang Shau Ki, and pursuant to an order of Master Lai made on 25 June 2014, P was appointed as the person to represent the Deceased’s estate in these proceedings.  The title to the writ has since been amended.  P sought vacant possession of Lot 1 and mesne profits/damages for trespass to be assessed.

23.  In his defence, D claimed that he had been in possession of Lot 1 since around 1985.  He further claimed that while he was overseas in the Netherlands earning a living from 1985 to 2006, his father had used Lot 1 as a place to rest and had placed potted plants.  D had also said he had used the Old House for storage.

24.  D admitted having demolished the Old House in 2008 but, as mentioned earlier, denied having said that it was for the purpose of beautifying the environment.

Legal principles

25.  S 7 (2) of the Limitation Ordinance, Cap 347 provides that :

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

26.  Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply[6].

27.  Further, s 17 of the Limitation Ordinance states that:

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

28.  As pointed out by Mr Miu, the application of ss 7(2), s 17 and the associated provisions of the Limitation Ordinance (or their English equivalent) had been considered by Slade J in Powell v Mc Farlane [1977] 38 P&CR 452, and the principles therein had been cited with approval by the highest courts in Hong Kong and the UK[7]. 

29.  There was no dispute over the general legal principles on adverse possession, and these will not be repeated here save that briefly that there are essentially 2 elements[8]:

(i)   Factual possession, which requires an appropriate degree of physical control and it must be a single and exclusive possession;

(ii)   The requisite intention to possess / animus possidendi.

Disputed Issues

30.  The disputed issues set out by P were[9]:

(i)   whether D was the person who had been in possession of the Old House and/or Lot 1 since 1985;

(ii)   whether the acts alleged to have been committed by D prior to 2008 (even if proved) would be sufficient, in law, to amount to adverse possession;

(iii)   what effect did the demolition of the Old House in 2008 (rendering Lot 1 an open space, in effect an abandonment of possession) have on D’s claim.

The factual witnesses

31.  P had lodged two witness statements and had attended trial to be cross examined.  He did not call any other witnesses.

32.  D had filed one witness statement and two affirmations, one to confirm his answers to P’s interrogatories and the other one for leave to file further supporting documents.  He had called three factual witnesses to support his case, namely (i) a contractor Mr Shing Luen Kin (盛聯堅), (ii) Mr Tang Nga Lok (鄧雅樂), and also (iii) Ms Shek Yuk Yin (石玉燕), the secretary of Wing Lung Wai Tai Chung.

33.  P accepted that all the 3 witnesses called by D were honest and credible witnesses and their evidence was not really challenged by P.

The expert witnesses

34.  As for the experts, there was no real disagreement between them.  They have each produced their own report[10] and further a joint report (“Joint Report”)[11].  They have in their reports relied on aerial photographs (“Aerial Photographs”)[12] and survey sheets (“Survey Sheets”) obtained from the Survey & Mapping Office of the Lands Department.

35.  The experts agreed that throughout the years there had been 5  existing/historical structures on Lot 1 as seen in the Aerial Photographs, marked by them respectively S1 to S5[13].  It was also agreed that throughout the years the structure marked as S1 was the part of the Main Entrance which had existed and encroached onto the eastern side of Lot 1 since before 1981 up until now.  As said earlier, this was not an issue in the present trial.

36.  The minor differences between the experts at the trial was whether they could see any vegetation or “potted plants” on the site of S2 from the Aerial Photographs taken in 1990 before that part was covered with S4 in 1991.  D’s expert Mr Leung Shou Chun (“Mr Leung”) said he could not see any plants and could only see 2 “white dots” on the site of S2 in the 5.10.90 Aerial Photograph A22911.  P’s expert Mr Tang Sze Kin, Eric (“Mr Tang”) thought that there might have been some vegetation of uneven height but however, he had said he would not describe them as potted plants.  It was also Mr Tang’s evidence that he could not see, in the 05.10.90 Aerial Photograph A22911, any door or entrance on the side of S3 through which one could access from S3 to the site of S2.

The Aerial Photographs and Survey Sheets

37.  The two experts agreed in their Joint Report that the Aerial Photographs showed[14]:

19.01.81	Two structures S2 and S3 both seen as deteriorated structures
27.07.82	S2 was demolished (or collapsed)[15] as a ruin while S3 remained unchanged
23.06.85	roof of S3 was renovated while S2 remained as a ruin
21.11.86 - 05.10.90	S3 remained unchanged and S2 remained a ruin
16.07.91	a structure S4 was erected at the location of S2 while S3 remained unchanged
28.05.93 - 19.07.95	S3 and S4 remained unchanged
25.10.97	S3 and S4 remained unchanged except that roof of S3 became rusty or stains could be observed on the roof of S3
10.08.00	S3 and S4 remained unchanged except roofs of S3 and S4 were rusty
14.12.01 - 11.06.04	S3 and S4 remained unchanged except roofs became further rusty
From 2005 - 2007	the view of Lot 1 in Aerial Photographs was partially blocked by trees.  The ground situation could be interpreted as generally the same as from 1997 - 2004
20.08.08	S3 and S4 demolished and Lot 1 became vacant/an open space which remained until 2011
10.09.12	a structure S5 was built on Lot 1 and Lot 2 and the ground situation conformed to the ground situation as found during site visit in May 2016
From 2013-2014	S5 remained unchanged save a blue shelter was found on top of S5

38.  The experts were also in agreement over the Survey Sheets which conformed more or less with the Aerial Photographs. 

“Kim Tiu” arrangement

39.  P’s evidence was that he first came to Hong Kong illegally to find work at end of 1979, and was first brought by his father to Wing Lung Wai in 1982.  He had also said that before 1987, he returned very frequently to Wing Lung Wai but after the assault at end of 1986 he was advised by his lawyers not to go so often but he would go at least once a year and sometimes twice a year.

40.  During cross examination, P had said that Tang Mui had already moved away from Wing Lung Wai by 1982.  P’s evidence was that he had passed by the Old House every time he visited Wing Lung Wai and he had passed by the Old House and that it looked more or less the same.  He had said he was not clear as to when a new roof was added to the Old House.  He was he did not pay attention to the Old House prior to Tang Mui contacting him.  He said he and Tang Mui met in a restaurant in 1985/1986, and that Tang Mui became emotional during the meeting, and Tang Mui had suggested a “Kim Tiu” arrangement to enable P to inherit the Deceased’s properties.  But P said after the meeting, he lost contact with Tang Mui and said she was not in good health and could have been admitted to hospital. 

41.  Mr Ko had pointed out that P’s evidence in relation to Tang Mui proposing a “Kim Tiu” arrangement was not credible because:

(i)   P was not able to explain why Tang Mui did not contact P’s father, and contacted P instead;

(ii)   If “Kim Tiu” was intended, P should have gathered more information of other lands owned by the Deceased;

(iii)   P had no further contact with Tang Mui notwithstanding obtaining the phone numbers of Tang Mui and her elder daughter and his reasons for not contacting Tang Mui again were not believable;

(iv)   There was no other evidence to support that the request took place.

42.  It was put to P that as the District Lands Office had informed P that there would be difficulty for him to apply to inherit the properties of the Deceased, P then tried to come up with the “Kim Tiu” arrangement with Tang Mui in 1985/1986.  This was denied by P. 

43.  “Kim Tiu” marriages are no longer recognized in Hong Kong under the Marriage Reform Ordinance Cap 178 after 7 October 1971. Further, as pointed out by Mr Miu, there would be restriction on P’s father inheriting the Deceased’s properties, as well as properties of his own father under the Chinese customary law, as explained by the Court of Appeal in Liu Yin Lan v Lu Tung Yiu [2003] 2 HKLRD 249, and this would apply to P’s elder brother as well, as P’s elder brother would likewise in due course succeed to P’s father’s property and would not be eligible to succeed to the Deceased’s property.  Mr Miu therefore submitted that it was not surprising that Tang Mui would have requested P to apply to succeed to Deceased’s properties, and that she had contacted P instead of P’s father.

44.  The Liu Yin Lan case was in 2003 and it would appear that prior to the case, the District Office in those days would take the view that on the basis of Qing law on succession a daughter had no right to succeed under the then s 17 of New Territories Ordinance and that the lawful successor must come from the male line of the descendants of the deceased[16]. Anyway, I accept P’s evidence in this respect was rather vague and there was no other evidence to support what he said.  In any event, “Kim Tiu” was not possible nor valid after 1971, and P did not take any further step.  In fact, as said, he had lost contact with Tang Mui.

45.  Having said this, P did obtain an order to represent the Deceased’s estate in this action.  Although this was obtained ex parte, there was no application to set it aside, nor was there any challenge to his capacity as representative of the Deceased’s estate in this action.

Whether D was the person who had been in possession of the Old House and/or Lot 1 since 1985

46.  D was born in Wing Lung Wai.  He worked in the Netherlands as a cook between 1970s to 2006 when he retired.  At the trial, D was said to be over 69 years old.  This would mean he was about 37 in 1985.  As said earlier, on 18 January 2007, he was elected the Village Representative[17].  Every 4 years, there would be an election and at the time of the trial, D was still the Village Representative, having been last re-elected in 2015.

47.  D had said in his witness statement that during those years when he was working in the Netherlands, he would be in the Netherlands most of the time but he had returned to Hong Kong and on each occasion  he stayed for about one month at his father’s house in Wing Lung Wai[18],  although he said he would go and check on Lot 1 to see what repairs would be required[19].  

48.  It was D’s evidence in his witness statement that in about 1985, he wanted to buy Lot 2 as he was planning to building a house thereon.  The owner of Lot 2, Tang Leung Tak, was already deceased by then and D therefore contacted Tang Pui Hon (鄧培釬) for help to discuss with the owner’s only daughter Tang Kwai (鄧葵).  Tang Kwai agreed to transfer Lot 2 to D for HK$30,000, but as she had not yet completed the application for succession of her deceased father’s estate, she signed a note dated 12 December 1985 to allow D to use Lot 2, and on that day, D had paid her HK$10,000 as deposit (“12.12.85 Note”)[20]. It was D’s case that Tang Kwai then authorized her deceased father’s male family members to apply for succession, and the District Office issued the letter for succession in favour of Tang Hon Sang (鄧翰生) in 1996 and on 4 December 1997, Lot 2 was formally transferred to D by Tang Hon Sang[21] and D became the registered owner thereof.

49.  According to D’s witness statement, Tang Mui and her family vacated the Old House in 1970s and the Old House was then left vacant.  As Lot 2 was small in size, and as the Old House on the adjacent Lot 1 and was vacant and dilapidated, D then began to occupy Lot 1 not long after signing the 12.12.85 Note and was planning to build a house on the two lots one day.

50.  The steps D claimed he took in relation to the Old House and/or Lot 1 included the following:

(i)   In 1985, D and his father had repaired the roof of the Old House by placing cement on the old tiles to stop water leakage; D and his father cleared the rubbish in the part of the Old House which had not collapsed, to use for storage of various items and old furniture and his father had placed potted plants around the part where the Old House had collapsed;

(ii)   From 1985 onwards, to facilitate D and his family to use Lot 1, he had discussed with Tang Tat Bong Tso which agreed for D to connect electricity to the Old House through the electricity meter of Tang Tat Bong Tso’s village house;

(iii)   In 1986, D had installed a new gate in front of the Old House and a lock to prevent strangers from entering Lot 1;

(iv)   For the period from 1988 to 1997 and from 2007 to 2012, D had paid the ground rent for Lot 1 to the Government;

(v)   In about 1990 D had instructed his father to employ a concrete worker to remove a wall to the north of Lot 1 and to build a new brick wall and to replace the windows of the Old House;

(vi)   In about 1991, D had instructed his father to employ a worker to remove all the old tiles on the roof of the Old House and to cover the roof with zinc/iron sheet;

(vii)   In about 1995, D applied for a water meter from the Water Authority for the Old House and a water pipe was connected to Lot 1 to provide drinking water there;

(viii)   In 2008, when D decided to build a house on Lot 1 and Lot 2, he demolished the Old House and the two old walls and had spent HK$25,000 to clear all the rubbish, weeds on the two Lots, and also to pave cement on the two lots, and further built a new wall on the south side of Lot 1 next to the Main Entrance;

(ix)   In 2012, D engaged workers to build the New House on Lot 1 and Lot 2, and there was the Container Incident but finally at end of 2012 the New House was completed and the New House occupied the entirety of Lot 1.

51.  The burden was on D to prove his adverse possession of Lot 1 and I will consider D’s alleged factual possession of Lot 1 over the following periods:

(i)   From 1985 to 16 July 1991;

(ii)   From 16 July 1991 to 2007;

(iii)   From 2008 to 2012;

(iv)   From 2012 to present.

From 1985 to 16 July 1991

52.  As seen in the 27.07.82 Aerial Photograph, by then part of the Old House had collapsed.  According to the experts, S2 had become a ruin and S3 remained unchanged as a deteriorated structure.  Then, as seen in the 23.06.85 Aerial Photograph, by then the roof of S3 had been renovated.  D had said he had connected electricity supply to the Old House in 1985 when he started to occupy Lot 1.

Electricity supply

53.  According to D, what he did was simply to connect an electricity wire from the electricity meter of a village house belonging to Tang Tat Bong Tso to the Old House.  He explained that this was easier/more convenient, as it was difficult to apply for electricity supply from the electricity company in 1985.

54.  First of all, as pointed out by Mr Miu, there was no sufficient evidence to support what D had said, namely that it would be difficult to apply for proper electricity supply in 1985 and why an improper means had to be used.

55.  D had provided various photographs which in his witness statement he said were taken in 1985 but during the trial, he then clarified as to when they were actually taken, which was in fact between 1985 and 2008, and the occasion in each of those photographs.  D had referred to the photographs which he said were taken in 1985[22], 1995[23], 2005[24] and 2008[25] to demonstrate the electricity wire connection. 

56.  However, looking into the 1985 photographs, the electricity wire over the Main Entrance was on the right side of the Main Entrance, and appeared to lead to the white house on the right side of the Main Entrance, and not to the Old House or Lot 1 on the left.  There was no roof of the Old House which could be seen in the 1985 photographs, and it would appear from the left wall of the Main Entrance (when looking into the photographs), there was a white patch with the impression of a former roof of a house showing that part had collapsed.  Thus S2 was already a ruin when the 1985 photographs were taken.

57.  There was an electricity wire seen in the 1995 photographs from the roof of the Main Entrance leading to the edge of the then grey roof of the roofed over area of S2 or the top of the south wall of Lot 1. Similarly, there was an electricity wire seen in the 2005 photograph leading from the top of the Main Entrance to the edge of the then reddish roof of the roofed over area of S2 or the top of the south wall of Lot 1.

58.  However, in the 2008 photograph, an electricity wire could still be seen across the edge of the top of the wall.  This was after the Old House (or both S3 and S4) had already both been demolished.  Thus, Mr Miu submitted that the electricity wire seen in the earlier photographs was not in fact providing electricity to the Old House.

59.  D had not produced any other evidence to support what he said about the electricity supply apart from the photographs.  He did not call any one from the Tang Tat Bong Tso as witness.  It appeared that he had not paid for any electricity supply.  I do not find the photographs to be sufficient evidence to show that those electricity wires seen in the photographs whether in 1985, or 1995 or 2005 were in fact supplying electricity to the Old House or Lot 1.   

Water Supply

60.  As for water supply, D had referred to a photograph bearing the date 02.02.2007[26] (“2007 Photograph”) to show the Old House he had renovated and to show that there was a water meter and a water pipe seen on one side of the wall.  D had also produced a letter from the Water Supplies Department dated 9 March 2012 as evidence that D had been registered as user of a water account at “G/F, 1 Wing Lung Wai, Kam Tin, Yuen Long, New Territories”[27] (“Address”).  According to the letter, D was the registered user from 27 December 1995 until 5 September 2008.

61.  Mr Miu had cross examined D in relation to the Address, putting to him that the old house numbers in Wing Lung Wai did not necessarily correspond with the lot numbers, namely the Address was not referring to Lot 1.  P had produced 3 letters dated respectively 20 October 2016, 2 November 2016 and 26 January 2017 from Rating and Valuation Department to his solicitors stating that the building “1, Wing Lung Wai” was allotted to the building standing on lot no 84 in DD 109 in Yuen Long before 2008 and that as at January 2017, the building number was still valid[28] and also there was no building number allocated to Lot 1. 

62.  P also produced a photograph of the letter boxes at the Main Entrance which were used by D[29]. On one letter box, it was marked Lot 2 and the other one merely marked “1, Wing Lung Wai” with no lot number.

63.  Mr Miu pointed out to D that P accepted that in 2012 D installed a water meter in the New House on Lot 1, but it was put to D that in 1995, “No 1, Wing Lung Wai” or the Address was in fact referring to lot no 84.  D maintained that he was applying for water for Lot 1 and that “No 1, Wing Lung Wai” or the Address referred to Lot 1.  He explained that the Water Supplies Department officer had an old house map (舊屋圖) (“Old House Map”) during inspection and/or installation of the meter, and had enquired as to which place on the Old House Map that water would be supplied to and it was after ascertaining which lot number water should be supplied to that he would carry out the necessary work for installation of the water meter and thereafter the Water Supplies Department would send an invoice to be paid.

64.  D said that the Old House Map he referred to was in fact a plan titled “Lot Index Plan[30] enclosed in Mr Leung’s expert report.  

65.  Mr Miu pointed out to D that the water account number 6712 0707 053 in November 2012[31] was different from the account number 8522 8020 005 from December 1995 – September 2008[32] and that there was no sufficient evidence that they both referred to Lot 1. 

66.  Under cross examination, D had said that the number of his father’s house was house number 3 in 1985 and is at present still number 3 although it is situated on lot nos 91 and 92 of DD 109.  D had also said that his parents moved out of house number 3 and moved into house number 19 in about 1990 and he had said according to the Old House Map, house number 19 was on Lot No 53.  Thus, even on D’s own evidence, the numbering of the houses did not correspond with the lot numbers.  Further, the Old House Map did not show any houses nor house numbers and only lot numbers.

67.  Mr Ko  pointed out that P himself had referred to the Old House on Lot 1 as house no 1 in Wing Lung Wai and that he had also referred to Lot 1 as No 1 Wing Lung Wai in his police statement dated 10 March 2012 in connection with the Container Incident[33].

68.  In the police statement, P in fact had in the opening paragraphs said that his friends had helped him to place an empty container on Lot 1 of Wing Lung Wai, namely “錦田永隆圍一號地段嘅空地”[34].  Thus, all subsequent references to “1, Wing Lung Wai” should be read in that context.

69.  P had explained that in the old days when there was no door number then no 1 Wing Lung Wai would refer to the Old House but then later he was told that house no 1 was in fact the 1^st house in Wing Lung Wai as one entered through the Main Entrance, namely the house on lot no 84.

70.  The house on lot no 84 according to P was used for ancestral worship and there was an old woman who was looking after the house there.

71.  Mr Ko submitted that there was no evidence that D was living there in 1995 or had any relationship with the old woman.

72.  Anyway, it would appear on all the Survey Sheets, the number “1” was marked on the site of lot no 84.

73.  The water bill produced by D dated 22 November 2012  clearly showed a different water account number referred to in the letter from the Water Authority dated 9 March 2012[35]. D was registered as the user of the water account number 8522 8020 005 of “G/F, 1 Wing Lung Wai” for the period from 27 December 1995 until 5 September 2008 when that account was terminated.  The other account number 6712 0707 053 was from 22 November 2012 onwards.  There was no dispute by P that the user of water account in 2012 was D and that the account was of the New House.

74.  As mentioned earlier, D’s own evidence showed that the house numbers in Wing Lung Wai did not necessarily correspond with the lot numbers.  Further, it was not disputed that the Old House or both S3 and S4 were demolished at about end of 2007 or latest by January/February 2008 since as seen later from the evidence of Tang Ngar Lok.  There was no sufficient evidence from D that there was a change in the location of the water meter or where the water meter would be after the Old House was demolished, if the Address indeed referred to the Old House.  In any event, I do not find it probable that D would continue to maintain a water account on Lot 1 for almost 7 or 8 months until September 2008 after the Old House (or S3 and S4) was demolished.  I am thus not satisfied the account number 8522 8020 005 was that of the Old House or Lot 1. 

75.  Anyway, the first period for the water account was only from 27 December 1995 onwards and the 2007 Photograph showing the water meter and pipe was only taken on 2 February 2007[36].  I find that there was no sufficient evidence that there was any water meter or under supply to the Old House/Lot 1 in early 1985, or that the letter from the Water Supplies Department would support D’s case that he had been in occupation of the Old House/Lot 1 since March/April 1985 or in 1985.  In any event, even if the Address did refer to Lot 1, the most the letter would support was a water meter was installed by D at the Old House from 27 December 1995 onwards.

Ground rent

76.  D had produced copies of ground rent receipts to show he had paid for the ground rent, namely for the periods from (i) 1 July 1988 until 30 June 1993, (ii) from 1 July 1993 to 27 June 1997, and (iii) from 1 July 2007 to 30 June 2012[37].

77.  On the other hand, P had also produced a ground rent receipt to show he had paid from 1 July 2002 to 30 June 2007[38].  It was P’s evidence that D always beat him in paying for the ground rent.  There was in any event no receipt produced for the period from 28 June 1997 to 30 June 2002.

78.  The ground rent was paid in arrears, and the bills were issued 4 or 5 years in arrears.  The actual dates that D paid were on 5 August 1993, 23 August 1997 and on 13 July 2012.  The actual date of the payment by P was on 14 February 2008.  In fact, those ground rent demand notes/receipts were not only for Lot 1 but 4 other lots, namely lot nos 68,69, 76, and 86 of which the Deceased was the registered owner.

79.  Anyway, from those receipts, the first payment by D was in August 1993 and there was no sufficient evidence that D had made payments prior to August 1993 and in any event, D’s receipts alone would not be sufficient to support D’s alleged physical possession or occupation of Lot 1, or since early1985.

The 12.12. 85 Note

80.  As mentioned earlier, D had produced the 12.12.85 Note as evidence that he had bought Lot 2 from Tang Kwai at a consideration of HK$30,000.  The 12.12 85 Note was signed by Tang Kwai affixing “+” thereon and it was witnessed by 3 persons namely Tang Pui Hon, Tang Hon Sang and another.  However, what was stated in the 12.12.85 Note was that Tang Kwai had “gifted” Lot 2 to D for him to use.  There was nothing about any sale or any payment of consideration.

81.  When D was asked about this during the trial, he said that village people found it embarrassing and a loss of face to have to “sell” land and therefore it was expressed as a “gift” and it did not really matter whether it was a sale or a gift.  When asked why there was no evidence of payment. D’s response was that he had and he did show to his lawyer but he was advised that the 12.12.85 Note would be sufficient to show when he started to occupy Lot 1.

82.  Since Tang Kwai was a daughter of Tang Leung Tak, it was put to D that  she had no succession right to Lot 2 under Chinese customary laws[39]. As seen from the search record at the Land Registry[40], Tang Hon Sang was later registered as the successor for Lot 2.

83.  Anyway, it was initially D’s evidence in his witness statement that he only started to occupy Lot 1 at end of December 1985/1986 after Tang Kwai had signed the 12.12.85 Note.

84.  At the trial, D had amended his witness statement by deleting the reference to “after”, “end of December 1985” or “end of 1985/1986” in his witness statement[41].

85.  During the trial, D said he came back to Hong Kong in 1985 alone and his wife and his son had remained in the Netherlands.  He came back in March 1985 due to the “Da Jiao” (打醮) celebration which would take place every ten years in Wing Lung Wai.  D said normally the celebration/ceremony would be at end of the year, but preparation would commence in March.  Thus D’s evidence during the trial was that for 1985 he was in Hong Kong for some 9 months, and that he only returned to the Netherlands in January 1986, after “Da Jiao”. 

86.  The above lengthy stay in 1985 was never mentioned in D’s witness statement.  All D had said in his witness statement was that he would return to Wing Lung Wai during his years in the Netherlands each time staying for about one month at his own home in Wing Lung Wai, and further during the early stage of cross examination, D himself had said he would return to Wing Lung Wai only every two to three years, and confirmed that each time he stayed was only about one or two months.  There were thus inconsistencies in D’s evidence.

87.  D had produced a statutory declaration made by Tang Hon Sang at the Home Affairs Department on 20 March 2015[42] (“Statutory Declaration”), confirming that he was a witness on the 12.12.85 Note in relation to the transfer by Tang Kwai of Lot 2 to D, and that the transfer was with the consent of Tang Pui Hon (later deceased). Tang Hon Sang had referred to Tang Pui Hon as “房長” and that he had also stated that he had obtained the consent of Tang Pui Hon to grant the use of Lot 2 to D.  Tang Hon Sang further confirmed that he had executed the formal assignment of Lot 2 to D on 4 December 1997 for HK$30,000, and said according to his knowledge, D had been “using” Lot 1 from 1985 onwards[43].  According to the 12.12.85 Note, Tang Hon Sang was a great nephew (侄孫) of Tang Kwai.

88.  Tang Hon Sang did not make any formal witness statement in support of D’s case, notwithstanding the Statutory Declaration was made after the commencement of this action.  He was also not called or subpoenaed as a witness.  When D was asked about this, D said he had left the matter to his lawyer. 

89.  According to D, Tang Hon Sang was running against D in January 2017 for election for the Village Representative[44].  On 16 December 2016, D’s solicitors had served a hearsay notice on P’s solicitors to admit the Statutory Declaration and Mr Ko submitted that P did not require Tang Hon Sang to attend trial to be cross examined. However, a notice to admit served under Order 27 rule 5 of the Rules of the High Court is only in relation to the admission of the authenticity of the document.  It was not disputed by P that the Statutory Declaration was indeed made by Tang Hong Sang.

90.  The Statutory Declaration was produced by D to support D’s case.  Under this Court’s order dated 31 January 2017[45], if a witness  failed to attend trial to be cross examined, his witness statement would not be accepted as evidence.  There was no evidence in the Statutory Declaration as to how Tang Hon Sang came to know about D’s “use” of Lot 1 in 1985, nor did Tang Hon Sang say when in 1985 did D start to “use” Lot 1.  It was also not clear when Tang Hon Sang meant by “use”.  As Tang Hon Sang did not attend trial to be cross examined, I attach no weight to the Statutory Declaration.

91.  As said earlier, D amended his witness statement and it was during the trial that he said he had started to occupy both Lot 1 and Lot 2 prior to the 12.12.85 Note, saying at first it was in March or April 1985 and when he was asked again later, he said it was in March 1985.  He said it was when he started to occupy Lot 2 that he started to occupy Lot 1.

92.  D was asked why he was suddenly anxious to occupy Lot 1 and Lot 2 since he had only just returned to Hong Kong in March 1985 and was staying in his father’s house and he had also he said he came back for the preparation for the Da Jiao ceremony.  

93.  D said that in March 1985, he was chatting to Tang Pui Hon and that D told Tang Pui Hon that he would like to buy Lot 2 to build a house.  Tang Pui Hon then helped him to look for Tang Kwai, whom Tang Pui Hon said was difficult to locate and that was why Tang Pui Hon had asked D to go ahead to use Lot 2 first and that once he contacted Tang Kwai, he would notify D.  D said it was only later in the year that Tang Kwai was located.  D said the 12.12.85 Note was written by Tang Pui Hon.  D also said that Tang Hon Sang had written a note to him stating that once he had completed the succession application, he would formally transfer Lot 2 to D and eventually this was done in 1997.  When asked why that was not produced, he replied to say there was no need to produce this since there was no dispute in respect of Lot 2.

94.  I accept what Mr Miu had pointed out, that in 1985, being an indigenous villager of Wing Lung Wai, D should have been aware that Tang Kwai being a daughter might not have any succession rights to Lot 2.  Further, it was clear that Tang Pui Hon was the head of the branch to which the owner of Lot 2 Tang Leung Tak was a member.  In fact, it was D’s own evidence that it was Tang Pui Hon he had spoken to about using or purchasing Lot 2 and it was Tang Pui Hon who gave him the permission to go ahead to use Lot 2.  Yet, he did not procure any written note or anything in writing from Tang Pui Hon giving him the permission to use.

95.  D was clearly aware of the importance of having a written note or something in writing as evidence of him being granted permission to use a piece of land.  He himself had produced a hand written note dated 30 December 1985[46] (although self serving and only signed by him) to indicate that Tang Ka Yung (鄧家容), the registered owner of lot no 3, and his family had agreed to lend lot no 3 to D for his use and that upon their demand D had to return lot no 3, and D also produced another document dated 15 September 2012 to indicate that he had obtained the consent of Tang Ka Yung and his successor Tang Luen Kwong to use lot no 3[47].  It would appear that D was also saying he started to use lot no 3, which was adjacent to Lot 2, in 1986, although this was not disclosed in his witness statement at all.

96.  In any event, I find there was no sufficient evidence that D had needed to use or occupy Lot 2 and/or Lot 1 at all in March 1985.  He had said he and/or his father needed to use Lot 2 for keeping bees and Lot l for storage, and/or as a place to rest or for growing plants.  His father had his own ancestral property and as mentioned, his house was house no 3 and later he and his wife moved to house no 19.  D was still young in 1985 and sometime away from retirement, and he was working abroad in the Netherlands.  There was no urgency and no reason why D could not have waited until Tang Kwai was located as he originally had said or until a proper sale agreement had been signed with Tang Hon Sang in respect of Lot 2.  Further, if indeed there was some urgent need to occupy Lot 2, then there was no reason why D could not have asked Tang Pui Hong or Tang Hon Sang to write him a note to allow him to use Lot 2 first while waiting for Tang Pui Hon and Tang Hon Sang to locate Tang Kwai.  There was further no reason why immediately after being allowed to use Lot 2, he then had to go and use or occupy Lot 1, and it seemed later also lot 3.

97.  Anyway, on the face of the 12.12.85 Note, there was no consideration stated and it was not in fact clear whether Tang Kwai did receive HK$30,000 from D in respect of Lot 2 or not.

98.  Having said this, I accept there was no dispute about the ownership of Lot 2.  However, it was D who produced the 12.12.85 Note in the first place as evidence to prove when he started to occupy Lot 1.

99.  It was put to D that he had changed his evidence about the time of his occupation of Lot 1 from after the 12.12.85 Note to sometime earlier in 1985 after he became aware of the Aerial Photographs in particular the one taken on 23 June 1985.

100.  The only photograph produced by D to show his occupation of Lot 1 was the 2007 Photograph.  There was no other evidence, nor did anyone who attended the trial on behalf of D give any evidence in relation to when D or his father physically occupied or possessed Lot 1. 

101.  I have to say I do not find D’s evidence that he started to occupy Lot 1 in March/April 1985 or in early 1985 convincing.  D had also amended his defence as to when the renovations of the roof of the Old House took place, namely he had originally said in his defence that the roof of the Old House was repaired “with metallic plates in or around 1986 and later in 1994 when subsequently in his amended defence, this was amended to the roof was repaired “in or around 1986 and later with metallic plates in 1991 when the yard was also roofed”[48].

102.  I agree with Mr Miu that D amended his evidence and his case after seeing the Aerial Photographs produced by the experts and that D had moved his date of occupation of Lot 1 to earlier in 1985 and changed the year of the placing of metallic plates and/or roofing of the yard (or the site of S2).  

103.  In any event, although the 23.06.85 Aerial Photograph showed that by then the roof of S3 had been renovated when compared to the 27.07.82 Aerial Photograph, the renovation could have taken place any time between those 3 years between July 1982 to June 1985.  It was not exactly clear when Tang Mui moved out although P had said by 1982 she had moved. However, the burden was on D to prove that he started occupying the Old House/Lot 1 in early 1985.  As there were inconsistences in D’s evidence, I am not satisfied that the roof of S3 seen in the 23.06.85 Aerial Photograph was renovated by D and/or his father, or that D had started to occupy/possess Lot 1 in March/April 1985 or in early 1985.

D’s own evidence

104.  It was also D’s evidence that he had installed a new gate in front of Old House in 1986 and installed a new lock to prevent strangers from entering Lot 1 and his amended pleaded case was that the roof of the Old House was repaired in around 1986.  He had further said he later rebuilt the north wall of Lot 1 and replaced the windows of the Old House in about 1990 and then replaced the roof over the Old House in about 1991.

105.  P’s evidence was that there was always a lock on the door of the Old House after Tang Mui moved away, and that whenever he went past the Old House during his visits to Wing Lung Wai, he noticed that it was always locked and no one was occupying or using it, and that the exterior looked more or less the same.  At night, there was no light when he passed by. He said he did not notice there was any new door or new lock installed in 1986, nor did he notice any new roof because he did not look up. 

106.  Mr Ko had criticized P’s evidence, namely that it was not possible for him not to have noticed that there was a new roof.  However, P had said after being assaulted at about end of 1986, he returned less often to Wing Lung Wai, and only about once or twice a year and did not really go and check the Old House or Lot 1.  Anyway, P had agreed with Mr Ko that he would not know whether the roof was renovated or changed and also agreed he would not know whether someone had occupied Lot 1.

107.  The 21.11.86, 06.10.88, 15.10.90 Aerial Photographs did not show any renovation of the roof of S3 in those years.  The gate or wall or windows could not be seen from the Aerial Photographs.  There was no supporting evidence produced by D that a new gate or a new lock was installed or the roof was repaired in 1986.  D relied on the 2007 Photograph which he said during the trial showed the condition of the Old House (or S3 and S4) prior to they being demolished and that the condition was the same as after he had put in the new gate and windows. 

108.  As mentioned earlier, P’s expert Mr Tang had referred to the 05.10.90 Aerial Photograph A22911 and had made two points, namely (i) he could not see any entrance or door on the side of the house S3 adjoining the area of S2 through which one could gain access to S2 area and (ii) the plants on the area of S2 were of irregular height and that if it had been a garden, then one would expect more regular pattern shape of the plants. Mr Ko had put to him that he could not really tell from that Aerial Photograph whether there was any entrance or door on the side of S3, but Mr Tang was quite adamant that the photograph was very clear and it did not show any door or entrance from the side of S3 to S2 area.  Although Mr Tang said he could not tell what kind of plants were there in the S2 area, he had said if there was planted vegetation, there would be a regular pattern and in his opinion the plants in the S2 area was wild grass and looked rough.  Mr Tang however agreed with Mr Ko that the wall to the north of Lot 1 as seen in the Aerial Photograph A22911 was a continuous wall and that there was no gap in the wall.

109.  Mr Leung had said he could only see 2 white dots on the site of S2 and he could not see or tell whether they were potted plants.

110.  In any event, it would appear from the 05.10.90 Aerial Photograph A22911 and Mr Tang’s evidence that by then the north wall had been rebuilt.

111.  As seen in the 16.07.91 Aerial Photograph, by then, S4 had been erected on S2 area, when compared to the 05.10.90 Aerial Photographs.

112.  Mr Miu argued that there was no sufficient evidence that S4 was erected or the S2 area was roofed over by D.  Mr Ko however submitted that P did not put forward any evidence as to who else could have rebuilt the north wall or erected S4 or roofed over the S2 area in 1990/1991. There was also no dispute that the 2007 Photograph was a photograph of the Old House (or S3 and S4).  D said he took the photograph of the Old House as a memento prior to it being demolished.

113.  The 2007 Photograph would only show the condition of the Old House/Lot 1 or the door on 2 February 2007.  Although the experts agreed that the Aerial Photographs showed no change save for rust and stain of the roofs from 16 July 1991 until 2007, this would only mean the roofs of the Old House which could not really be seen in the 2007 Photograph, would have been more or less the same as in July 1991, save being rustier in 2007.

114.  I find there was no sufficient evidence that D had installed a new door and a new lock to the uncollapsed part of the Old House in 1986 as alleged by him.   

115.  Having considered D’s evidence and the Aerial Photographs, I find that there was no sufficient evidence that D was in occupation or possession of the Old House or Lot 1 in 1986, or prior to about 1990.  However, I am prepared to accept that more likely than not that in about 1990, D or his father built a new north wall in Lot 1 and replaced the windows of the Old House and that D caused the S2 area to be roofed over to become S4 sometime prior to 16 July 1991.  I find D’s occupation/possession of Lot 1 only commenced in about 1990.   

From 16 July 1991 to 2007

116.  As mentioned above, by 16 July 1991, S4 was erected at the former location of S2 while S3 remained unchanged. 

117.  It was agreed by the experts that apart from the roofs of S3 and S4 becoming rustier, there was not much change in relation to the ground situation between 16 July 1991 and 2007.

From 2008 to 2012

118.  D’s own evidence was in 2008, the Old House was demolished[49].

119.  As seen in the 20.08.08 Aerial Photograph and compared to the earlier one on 2 February 2007, as agreed by the experts, S3 and S4 had been demolished and Lot 1 was cleared and there was a large piece of vacant land/open space.  In D’s witness statement he in fact only mentioned the clearing of Lot 1 and Lot 2 and did not mention the clearing of other lots.

120.  It turned out that the cleared lots were not only Lot 1 and Lot 2 but there were also other lots cleared, namely nos 3, 4, 6, 7, 82 – 83 and 64 – 67 (“Other Cleared Lots”) [50].   

121.  There was a gap of some 18 months between the two Aerial Photographs.  However, it was the evidence of D’s witness Tang Ngar Lok that he had a Big Bowl Feast to celebrate his son’s one month old or 100 day of birth and this would have been latest in January /February 2008 as his son was born in October 2007.

122.  D had said in his witness statement the clearing of Lot 1 was because he was planning to build a house on Lot 1 and Lot 2, and he therefore demolished the Old House (both S3 and S4) and the two old walls, namely the wall to the south next to the Main Entrance and the wall to the north, and he had spent about HK$25,000 to remove all the weeds and miscellaneous items placed on Lot 1 and Lot 2, and after clearing, the vacant site was paved with cement.  D further claimed that he also caused to be built a new wall next to the Main Entrance.  According to D, the new wall would prevent villagers entering or exiting Wing Lung Wai through Lot 1 or Lot 2, and they must use the Main Entrance and that from 2008 to 2012, they could not place any objects or build on Lot 1 or Lot 2.

123.  D said in his witness statement that during the above works, P’s father and also P had questioned him what rights D had to demolish the Old House, but D said he had also questioned P’s father what rights he had to interfere, as P’s father was not the owner or successor of Lot 1.  However, as pointed by Mr Miu, it was not D’s evidence that he had by then become the owner of Lot 1 through adverse possession, or that this was what he had told P’s father or P.

124.  So far as P was concerned, his case was that his father and his elder brother were informed by villagers in 2008 that D was demolishing the Old House on the Deceased’s land and P’s father reported the matter to the police.  According to P, D had told the police that, as the Village Representative, he was planning to demolish the Old House and to clear Lot 1, 2 and Other Cleared Lots to “beautify the environment” of Wing Lung Wai.  Since there was no objection from the owners of Other Cleared Lots, P’s father decided not to object further, for the benefit of the villagers.  P further said that according to his knowledge, the villagers had used the paved vacant site to hold “Big Bowl Feasts” and also for barbecue.  

125.  In this connection P had produced photographs showing a “Big Bowl Feast” with foreigners attending[51] but according to D, this was a cultural event organised by the Government in 2013, after the New House was built.

126.  Anyway, D had denied that the works were carried out to “beautify the environment” or that he had ever told P or his father that Lot 1 was cleared to beautify the environment or for communal use.

127.  P did not call his father or his elder brother as his witnesses.  P had attempted to inspect the minutes of the meetings kept by Wing Lung Wai Tai Chung and had approached the secretary Ms Shek Yuk Yin for the same but was told that D had taken them. 

128.  In her witness statement, Ms Shek said she had been the secretary since 1994 and was responsible for taking the minutes of meetings of Wing Lung Wai Tai Chung and that the minutes book had page numbers written by her.  She said she had never heard of any member was planning to “beautify the environment” for the use of the public, nor was any payment made by Wing Lung Wai Tai Chung for this purpose.  She said D had taken the minutes book away for several weeks and shortly after D had taken them away, P had approached her for inspection.  She later informed P when D returned the book and P had gone to inspect the minutes.  Ms Shek’s evidence was not challenged by Mr Miu.

129.  When P eventually carried out his inspection, he did not find any minutes or records of any meeting concerning clearing the lots or beautifying the environment.  He also said he could not see any accounts for 2008.  In any event, in 2007, P’s father had not yet established his membership to the Wing Lung Wai Tai Chung, and therefore Ms Shek would not have given them any notice of any meeting.

130.  As seen in the Aerial Photographs, Lot 1 and Lot 2 and Other Cleared Lots became a large vacant site.

131.  Tang Ngar Lok had said in his witness statement that his family’s ancestral lands included the Other Cleared Lots (save for lot no 3) as follows:

(i)   two big patches, namely lot nos 82 – 83 and lot nos 64 – 67;

(ii)   a smaller patch, namely Lots 4,6 & 7.

132.  According to Tang Ngar Lok, in around 2007, D went to talk to him and told him that the costs of clearing and paving his lots would be HK$50,000 and asked if he wanted to do that.  Tang Ngar Lok said he agreed and he paid D the sum.  Further, according to Tang Ngar Lok, at the time he was only aware of the two big patches of land, and did not discover that the smaller patch also belonged to his family until after the completion of the works. 

133.  It was Tang Ngar Lok’s evidence that he never heard that D had mentioned that the paving of the lots was for beautification of environment, and he never heard that his ancestral lands were paved for communal use which he would have objected since they belonged to his ancestors.  He said the buildings on his ancestral lands were in dilapidated condition and would pose a danger to other villagers.

134.  As said earlier, it was Tang Ngar Lok’s evidence that after his ancestral lands were cleared and paved, he had held a “Big Bowl Feast” on his ancestral lands to celebrate his son’s one month old or 100 day and this would be latest in January/February 2008.  He had also claimed that he had posted up a written notice at the Main Entrance notice board that no one was allowed to use his lands without his prior approval.  Anyway, it was not really disputed that by January/February 2008, the paved vacant site was in existence.

135.  Tang Ngar Lok said during the trial that he did not know whether D had asked or notified the other villagers of his proposed works.  Tang Ngar Lok does not actually live within Wing Lung Wai but he said he would go there 4 or 5 times a year.  He had been to the paved vacant site after the works were completed, and he also agreed under cross examination that the environment had improved and was in fact “beautified” after the works and that normal people walking thereon would not be injured.  He said that he did not recall that in 2013 there was a cultural event held there as he did not participate.  He agreed with Mr Miu that some one had used his land on the occasion without him being informed.  He also agreed with Mr Miu that if villagers had played football on the site, he would not mind but if there were to be any large scale event, he should have been informed.  It was also his evidence that he had thought about placing pegs on his lots to delineate the area of his land, but villagers might trip over them and therefore he did not do this.

136.  In any event, as said, Tang Ngar Lok agreed that the environment had improved and was safer after the clearing and paving. 

137.  Notwithstanding what Tang Ngar Lok said in his witness statement, it turned out that Lots 64 – 67 did not in fact belong to his father but was Government land.  He accepted this during the trial and accepted that had he known in 2007, he would not have the right to deal with those lots. He agreed with Mr Miu during the trial that HK$50,000 was not a large sum and he agreed that clearing the lots would help the villagers, and that D being the Village Representative should have known who were the owners of the lots.

138.  Further, on re-examination, Tang Ngar Lok had said that the clearing of the lots was not for himself but for the villagers and that there was no problem for the villagers to walk over his lots.

139.  It was D’s evidence that in 2010 he was already planning to build a house on Lot 1 and Lot 2. D said his plan was held up because the Government was building the high speed rail link near Wing Lung Wai and there was compensation or funds for “blessing” ceremonies for villagers and that he was in the course of fighting for funds from the Government between 2009 to November 2011.  It was his case that clearing and paving Lot 1 did not mean he had abandoned possession of Lot 1.  I will consider this issue later in this judgment.  

140.  D had produced a quotation from Yee Hing Construction and Engineering Company Limited dated 20 May 2010[52] as evidence that he was planning building of his house at the time, and further an invoice dated 19 August 2010 and a receipt dated 20 August 2010 for surveying fees of HK$4,000 paid to Tri Web Surveying Company[53].

141.  The witness Shing Luen Kin and his family owned the construction business called “Yee Hing” which later became a limited company on 18 October 2010.  Mr Shing attended trial and confirmed that on about 20 May 2010, at the request of D, he had provided a quotation to D for works for building a house on Lot 1 and Lot 2.  He explained that he used a limited company’s name to try and obtain business, although it was not yet incorporated.  In the end D did not use his company for the works.  Mr Shing also said he had not seen D again after providing the quotation, until D went to his shop on 17 October 2017 and asked him to confirm that the quotation was issued by him.  Mr Shing attended the trial in response to a subpoena being served on him by D.  As said earlier, there was no real challenge to his evidence.

142.  So far as the surveying fees invoice and receipt, these merely showed that D had carried out surveying of Lot 1 and Lot 2 in August 2010.  D had also produced a quotation dated 22 December 2011 from Decorous Construction Engineering Co for the building works of the New House on Lot 1, Lot 2[54] and this was formally signed and accepted by D on 13 January 2012.

143.  Notwithstanding the Yee Hing quotation or the surveying of Lot 1 and Lot 2, nothing was in fact done in 2010, and in fact whether it was D’s then plan to build on Lot 1 or not, the fact was that Lot 1 and Lot 2 and Other Cleared Lots were all cleared and paved and remained a vacant site for some 4 years.  

144.  Having considered the photographs, I am of the view that as Tang Ngar Lok had said, the environment had in fact improved after the lots were cleared.  The paved vacant site was like a small village square. Although anyone who wanted to use the site/square for any specific or official purpose or a large scale function would probably have to obtain the permission of the Village Representative, even from Tang Ngar Lok’s evidence, there was no restriction to other villagers carrying out occasional recreational activities thereon, such as playing football.  There was no sign on the paved vacant site or a fence to prevent villagers walking over it freely, or around it or crossing it diagonally.  In my view, there was no sufficient evidence that D had maintained exclusive occupation/possession over Lot 1 and I find he had failed to demonstrate a sufficient degree of exclusive physical control over Lot 1 after it was cleared and paved.   

145.  There was no dispute that the New House was erected by D.  Construction works for the New House would have commenced sometime after 13 January 2012, namely after D had accepted the quotation from Decorous. 

146.  Having regard to the above, I come to the view that D’s exclusive possession of Lot 1 was interrupted and discontinued during the 4 year period from January/February 2008 to about January 2012. 

From 2012 to the present

147.  The Aerial Photographs did not show any substantial change to the New House.  As mentioned earlier, the New House was built by D without prior approval of the District Lands Office.  There was a letter dated 24 May 2012 sent by District Lands Office of Yuen Long Lands Department to D informing D that the New House built on Lot 1 and Lot 2 was built without the licence or approval of the Government and D was given 28 days to demolish the New House and remove all structure thereon[55].  These were followed by a further letter of 21 November 2012 addressed to the Deceased[56]. As said earlier, the Building Order had not yet been enforced. 

Summary of factual findings

148.  To summarise, my findings on factual possession are essentially as follows:

(i)   I am not satisfied that D had started to occupy or possess Lot 1 in March/April 1985 or in early 1985 or that roof of the Old House (or S3) seen in the 23.06.85 Aerial Photograph was renovated by D and/or his father.

(ii)   There was no sufficient evidence that D was in occupation/ possession of Lot 1 in 1986 or prior to about 1990.

(iii)   D’s occupation/possession of Lot 1 only commenced in about 1990. 

(iv)   There was no sufficient evidence that D had maintained exclusive occupation/possession or a sufficient degree of exclusive physical control over Lot 1 after it was cleared and paved and D’s exclusive possession of Lot 1 was interrupted and discontinued during the 4 year from January/February 2008 to about January 2012.

149.  As a result of my finding in (iii) above, by January/February 2007/2008, D’s factual occupation and/or possession of Lot 1 was only about 17 or 18 years.

Whether D’s acts prior to 2008 would be sufficient, in law, to amount to adverse possession

150.  It was not D’s evidence that he or his father had moved into the Old House after the roofing over the yard (or S2 area) in 1991.  Mr Miu submitted that D’s alleged acts including (i) renovation of roof over the Old House; (ii) roofing over the yard or the collapsed area of S2; (iii) placing old furniture and/or unused items in the Old House; (iv) D’s father using it to rest occasionally, growing plants even if proved, would not be acts sufficient to amount to adverse possession.

151.  Mr Miu referred this Court to what Sachs LJ had noted in Tecbild Ltd v Chamberlain (1969)20 P&CR 633 : “Each case naturally depends on the nature of the land in issue and the circumstances under which it is held”[57]. In Tecbild Ltd v Chamberlain, the claimant had claimed adverse possession of two plots of land and she relied on 3 factors, namely (i) her children had played on the two plots as and when they wished; (ii) that the family ponies were tethered and grazed there, and (iii) there was a rough old fence on the front which had been placed there at some unspecified time by some unspecified person[58].  These were all held to be insufficient to amount to adverse possession.  As Sachs LJ further observed, such acts “were not even equivocal in that they did not appear to provide an equal balance between intent to exclude the true owner from possession and an intent merely to derive some enjoyment from the land wholly consistent with such use as the true owner might wish to make of it[59].”

152.  Mr Miu submitted that D’s acts of occupation would amount to no more than “trivial acts of trespass”[60]  and that the occupation or use of the Old House for resting, and for storage of old furniture, denoted no more than “an intent merely to derive some enjoyment from the land”.  Mr Miu had also referred to a passage of Black J in an Irish decision Convey v Regan, which was quoted by Slade J in Powell v McFarlane [1977] 38 P&CR 452:

“The basis of the principle seems to be that when a trespasser seeks to oust the true owner by proving acts of unauthorized and long continued user of the owner’s land, he must show that those acts were done with animus possidendi, and must show this unequivocably. It is not, in my view, enough that the acts may have been done with the intention of asserting a claim to the soil, if they may equally have been done merely in the assertion of a right to an easement or to a profit a prendre. When the acts are equivocal – when they may have been done equally with either intention – who should get the benefit of the doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner[61].”

153.  Mr Miu argued that given the nature of the land in the present case, to amount to adverse possession, acts must be apparent to someone passing by the house without entering it (such as P), and that if the house had been used for living, that would be different, since there would be lights on at night.  He had referred to what was said by Clarke LJ in Mayor & Burgesses of the London Borough Council of Lambeth v Blackburn (2001) 82 P&CR 494 that the adverse possession must be manifested so that “if (the owner) were present at the property he would be aware that the trespasser had taken possession of it and intended to keep others out”[62].

154.  As said earlier, I have accepted D’s evidence that in about 1990, he had built a new brick wall to the north of Lot 1 and had replaced the windows of the Old House and in 1991 he had put a new roof over the S2 area, creating S4.  The present case can be distinguished from Tecbild Ltd v Chamberlain and I am of the view that D’s acts in 1990 and 1991 could not be said to be trivial acts of trespass and could amount to adverse possession.  I am satisfied by his acts in 1990 and 1991, D had evinced an intention to possess Lot 1 to the exclusion of the world at large and was in factual possession of Lot 1 from about 1990 until January/February 2008 as set out earlier.

What effect does the demolition of the Old House in 2008 (rendering Lot 1 an open space, in effect an abandonment of possession) have on D’s claim

155.  Mr Ko submitted that there was no abandonment of possession by D when the Old House (or S3 and S4) was demolished and Lot 1 cleared and paved and that the use of Lot 1 from 2007/2008 to 2012 when the New House was built was consistent with D’s use of the same as his own land, which showed there was no abandonment.

156.  Mr Ko further submitted that the use of Lot 1 was the same as Tang Ngar Lok’s use of his lots, which as D had said, was to demolish the old buildings and to pave the land to prepare for building a house on it in the future, and that D had given a reason why the construction of the New House did not start immediately after clearing, namely the high speed rail project and application for funds for ceremonies, of which there were 7 and the last of which was completed on 12 November 2011.  Further, there was no evidence that the “Big Bowl Feasts” were held on the cleared lots without D’s consent.

157.  Even if D did personally pay for the clearing of the Old House, or S3 & S4 on Lot 1 and the paving of vacant ground of the cleared Lot 1, and even if D never said anything about “beautifying the environment”, however as said earlier and as accepted by D’s own witness Tang Ngar Lok, the environment was as a fact improved after the lots had been cleared.  Further, even if the clearing of the lots was for safety reasons and not for communal use, as admitted by Tang Ngar Lok, the fact was after clearing and paving, villagers could walk freely over the paved cleared area and to carry out casual activities, such as ball games thereon.

158.  There was no fence erected around Lot 1 or there was no enclosure of Lot 1 after the clearance.  It has been said that although enclosure is the strongest possible evidence of adverse possession[63], it is not conclusive. However, there was also no erection of any notice on the site of Lot 1 warning intruders to keep out and there was no blocking of any access by villagers onto Lot 1.  Although one side of Lot 1, namely the south side next to the Main Entrance remained bordered by a wall, the wall did not have the effect of preventing access to Lot 1 from the other sides.  In fact, P’s evidence was that he himself had walked on and passed Lot 1 during the 4 years.  As I have said, Lot 1 and Lot 2 and Other Cleared Lots became like a village square.

159.  While it was suggested to P that there was no evidence that anyone had barbecue on Lot 1 or the cleared lots, as submitted by Mr Miu and which I agree, in fact if any villagers were to use the paved vacant site, including Lot 1 for playing ball games, no one would be in a position to object.  The fact that the paved vacant site consisted not only of Lot 1 & Lot 2 but also Other Cleared Lots including Government land would make it impossible for D to object to such casual activities, because the use would not have been confined to only Lot 1 (or Lot 2).   

160.  I also agree with Mr Miu’s submission that D’s evidence that he had inspected the two lots (Lot 1 & Lot 2) at least twice per week[64] was neither here nor there.  As I have found earlier, upon Lot 1 being cleared and paved, there was no sufficient evidence that D had maintained exclusive occupation/possession or sufficient degree of exclusive physical control over Lot 1. 

161.  Further, in my view, D was not in the same position as Tang Ngar Lok.  D never had the paper title.  Tang Ngar Lok was the sole executor of the estate of his father Tang Pui Hon who died in January 2006[65]. Tang Pui Hon was the registered owner of some of those Other Cleared Lots.  Tang Pui Hon, and later Tang Ngar Lok, has always been the paper title owner in possession of their lots in the Other Cleared Lots.

162.  By comparison, what D was claiming was only a possessory title.  Even if D had been in adverse possession for the statutory period by the time S3 and S4 were demolished and Lot 1 was cleared and paved, he had only acquired a possessory title.

163.  I do not find it necessary to have to deal with Mr Miu’s argument on the effect of abandonment in the event that D had been in adverse possession for the statutory period prior to January/February 2008, as I have found earlier, D had not been in adverse possession for the statutory period by January/February 2008 when Lot 1 was cleared and paved.  In light of my finding, the Deceased’s title to Lot 1 would not have been extinguished under s 17 of the Limitation Ordinance, Cap 347 by the time Lot 1 was cleared and paved or by January/February 2008.  

164.  In any event, I am of the view that by clearing and paving of Lot 1 and allowing other villages to use Lot 1, such as walking over it, or carrying on casual activities over it, D had abandoned his exclusive possession in January/February 2008.

165.  It is my view that as D’s exclusive possession had been abandoned, possession would revert to the Deceased, and that time would have to start to run afresh when D started to occupy/possess Lot 1 again with the construction of the New House thereon in early 2012.

Conclusion

166.  In light of all said above, D’s defence and counterclaim must fail. I am prepared to grant the orders sought by P. 

Order

167.  I therefore order as follows:

(i)   D do deliver up vacant possession of Lot 1 to P within 3 months from today;

(ii)   D do within 3 months demolish the New House which he had caused to be erected on Lot 1;

(iii)   mesne profits, if any, to be assessed, and to be paid with interest at judgment rate from date of assessment;

(iv)   D’s counterclaim be dismissed;

(v)   Costs to follow the event and D to pay P’s costs of this action including any costs reserved, to be taxed if not agreed under Legal Aid Regulations.