KWAN CHI ON v. 張偉雄 AND OTHERS

DCCJ 1708/2015

[2022] HKDC 704

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1708 OF 2015

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BETWEEN

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JUDGMENT

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Introduction

1.  The plaintiff is the registered owner of the land known as the Remaining Portion of Section E of Lot No 1744 in Demarcation District No 132 in Tuen Mun, New Territories, Hong Kong (the “Lot”). The plaintiff claims that the 2^nd defendant is a trespasser. The 2^nd defendant claims adverse possession of a portion of the Lot (the “Occupied Land on the Lot”) on the ground that he and his family had continuous exclusive possession of the Occupied Land on the Lot since at latest 1980. The present action, though not commenced by the 2^nd defendant, is essentially on this adverse possession claim raised by the 2^nd defendant, there being no dispute that the plaintiff is the registered owner and that legally, anyone (except those with possessory title) on the Lot without the plaintiff’s permission is a trespasser.

2.  For convenience, annexed to this Judgment is a copy of the Survey Plan dated 24 March 2020 (the “Survey Plan”) annexed to the joint expert report (the “Joint Expert Report”) dated 15 July 2020, prepared by Mr Ma Yung Kong, Helicon (“MYK”) for the plaintiff and Mr Chan Hon Kwan Henry (“CHK”) for the 2^nd defendant. The area coloured pink is the Occupied Land on the Lot, the areas coloured green are areas not occupied on the Lot and the area coloured blue is the area occupied by the 2^nd defendant outside the Lot (“Occupied Land outside the Lot”). I should add that it was the submissions by the 2^nd defendant’s counsel, Mr Ernest Koo, that the 2^nd defendant did not really know where lied the exact boundaries of the Occupied Land outside the Lot and the Occupied Land on the Lot (collectively, the “Occupied Lands”). Mr Koo, however, submitted that what matters in the present case is the undisputed boundaries of the Lot.

3.  For clarity, as shall be seen below, while the 1^st defendant also gave evidence at the trial, he did so for the 2^nd defendant (his father). For the 1^st defendant himself, by a default judgment entered on 19 November 2015 against him, the plaintiff, as against him, already obtained the order of possession.

Legal principles

4.  The legal principles governing adverse possession are trite. In essence, the one who claims adverse possession carries the burden of proof with compelling evidence that for a sufficient period (20 years if the adverse possession started before 1 July 1991 or 12 years if it started on or after 1 July 1991), he has had sufficient factual possession and the requisite intention to possess, that is, an intention to exclude the world at large, including the owner with the paper title so far as is reasonably practicable ad so far as the processes of the law will allow, but it is not necessary for the squatter positively to oust or exclude the paper owner: see Gotland Enterprises Ltd v Kwok Chi Yau & others, unrep CACV 260/2014, 19 January 2016 at §§33-34. Further, if the squatter’s acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, he will be treated as not having had the requisite animus possidendi and consequently as not having dispossessed the owner: see Powell v McFarlane (1979) 38 P & CR 452 at page 472.

5.  What is often controversial is what constitutes such factual possession and the requisite intention to possess. This is a matter of fact, to be decided, as always, in context. Thus, caution must be exercised when one would like to draw analogy with the English cases, especially those old cases, on adverse possession, rather than drawing the general legal principles from them. Mr Koo referred me to a number of English cases decided more than one hundred years ago, like Seddon v Smith (1877) 36 LT 168, Lord St Leonards v Ashburner (1870) 21 LT 595, and Tyrwhitt v Wynne (1819) 2 B & Ald 554, in support of his submissions that mere planting, farming or feeding poultry could constitute sufficient physical possession and an intention to possess. Mr Koo also referred to Jourdna and Gardner, Adverse Possession, 2^nd ed at paras 13-41 – 13-45. However, the well-respected textbook, in my view, only provides some examples with focus on those particular acts in question. One cannot simply elevate every planting, farming or feeding to adverse possession. At the very most, those cases show that in appropriate factual context, these acts might constitute sufficient physical possession and an intention to possess.

6.  In my judgment, in the context of Hong Kong, Gotland, supra and Wai Wah Traders Ltd v Wong Yim t/a Creative Advertising Design Company and others, unrep HCMP 965/2000, 8 December 2011 are far more relevant than the English authorities.

7.  In Gotland, supra, Lam VP (as he then was) had the following to say:-

“36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.

39. … At paragraph 54 of the judgment, the Judge did not examine the exclusive occupation of Pond 1 at length. He dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. With respect, this is not the correct approach. What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner, were free to roam around the pond and carried out various activities as described above…” (emphases added)

8.  In Wai Wah Traders Ltd v Wong Yim t/a Creative Advertising Design Company and others, supra, DHCJ Mimmie Chan (as she then was) specifically referred to the Hong Kong context, where lands have always been valuable. Her ladyship said:-

“51. I do not accept that the mere picking of lychee fruit from trees on the Land, or the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, can constitute continuous and exclusive possession or control of the Land. It is mere trespass, at most persistent trespass, and unauthorized destruction and appropriation of property.

52. The present case is distinguishable from Cadija Unna v S Don Maris Appa [1939] AC 136 which is relied upon by Counsel for San Fat and Mr. Cheng. In Cadija Unna, the cutting and selling of grass from land in Ceylon which was to a great extent swampy and on which lotus and wild grass grew as held to be an act of possession, in circumstances where the grass was the only, or at least the main advantage accruing from the land. Land in Hong Kong is and was always valuable, and even in the 1960s until the 1980s, it cannot be said that cutting branches and shoots, and picking lychees from the trees was the only or main advantage accruing from the Land.

53. As for any cultivation on the Land as the Leung family claim, in the nature of planting trees, clearing dead trees, weeding or fertilizing the trees or the Land, on the facts of this case, I consider that there should at the same time be some other act on the part of the Leungs of excluding the owner and the world at large, to the extent of exerting exclusive possession and control…” (emphases added)

Issues

9.  Thus, in the present case, I should first determine whether the Occupied Land on the Lot (itself or with the Occupied Land outside the Lot) was enclosed. If not, then I should examine “what steps were taken by the [2^nd defendant] to exclude others”.

General approach to the evidence

10.  The plaintiff is the only witness for his case, while the 2^nd defendant has himself, the 1^st defendant (his son) and one Mr Chu Pui Kwan (“Mr Chu”). The main witnesses are, of course, the plaintiff himself and the 2^nd defendant himself, given that the material events date back to 1970s and it is only them who have the personal knowledge of the matter. However, they both are in their old ages, the plaintiff being about 88 years old and the 2^nd defendant being about 85 years old. The plaintiff has serious hearing problem and has problem in his comprehension as a result of certain brain problem (as evidenced by a medical certificate issued by Hong Kong Sanatorium and Hospital on 28 April 2022). Similarly, the 2^nd defendant also has hearing problem and given his old age, he also appeared to have difficulty in comprehending complicated questions. I take all these into account when assessing their evidence. I also pay less regard to any discrepancy in the evidence over time, given their old ages and especially in relation to the matters that date back decades ago. Further, where available, I rely more on documents (including aerial photos and survey sheets) and evidence not in dispute than on their oral evidence.

Enclosure of the Occupied Land on the Lot

11.  The 2^nd defendant’s case, according to his Amended Defence and Counterclaim, is, in gist, that:-

(1) The 2^nd defendant entered into and started possession of the Occupied Land on the Lot in about 1980, when he opened up the Occupied Lands and started planting there with the assistance of his family.

(2) “Fence and/or iron wires had been erected, together with various natural and physical barriers, to basically fence off and/or separate the [Occupied Lands] (on which the 2^nd defendant has been planting fruit trees) from the surrounding lands”: see Amended Defence and Counterclaim 14(d).

12.  No particulars of where the “fence and/or iron wire” and the “various natural and physical barriers” have been are provided.

13.  Nor does the evidence provide any such particulars. Both the 2^nd defendant’s witness statement and the 1^st defendant’s witness statement (made on behalf of the 2^nd defendant) contain the same replication of the Amended Defence and Counterclaim. In the 2^nd defendant’s witness statement §19 and the 1^st defendant’s witness statement §17, it is stated that:-

“… the Occupied Area were [sic] fenced off by some natural and physical barriers, such as steep slopes and different ground levels, as well as iron wires and wooden fences, which were erected by owners of the adjacent lots…”

14.  Again, there are no particulars of where such “natural and physical barriers” have been.

15.  In his oral evidence, the 2^nd defendant explained that he put some wooden planks near the electricity tower and along the southwestern part of the Occupied Lands for a brief period of time, those wooden planks being abandoned by the workers who were erecting the tower. But the planks were limited to that part only, for a limited time. It was not an enclosure.

16.  As regards expert evidence, the experts studied, among others, the aerial photos from 1979 to 2019 and the survey sheets from 1980 to 2020. On the accessibility of the Lot, §8.3 of the Joint Expert Report states:-

“8.3 Access to “the Lot”

(a) MYK commented that the whole site of “the Lot” could be accessed from northern (before erection of fence sometimes in or before 2010) after his boundary set out for its adjoining Lot 1744 RP, southern and eastern directions (from the car park) except the retaining wall at the western side.

(b) CHK would not comment on the access in or before 2010 because CHK did not have the opportunity to visit the site at the said period and had no evidence in hand to dispute MYK’s claim. However, CHK would like to re-iterate that on the day of survey, the site could only be accessed without difficulties or unaided by either walking up the ramp near the southwestern corner of Lot 1150 S.A RP and through the trail on the occupied Government Land or by going down the steps beside the meter box near the southeastern corner of Lot 1744 S.F.”

17.  It is fair of CHK to say that he would not comment on the accessibility of the Lot, given that it is a question of facts for me to decide having examined all the relevant evidence. However, he does not deny MYK’s opinion that erection of fence on the northern part of the Lot was in 2010. CHK also does not dispute that there has not been any fence on the southern and eastern boundaries of the Lot. Further, he confirmed that during the site inspection on 10 January 2020, there were ways to enter the Lot.

18.  In fact, it is the 2^nd defendant’s own evidence that he also took these two routes to enter the Lot, as well as a third route via the slope behind the carpark to the northeast of the Lot, though not very often.

19.  The above relate to the Occupied Land on the Lot only. I should also look at whether the Occupied Land outside the Lot was enclosed because it may be that the Occupied Land outside the Lot was enclosed so that access to the Occupied Land on the Lot would be blocked. However, there is no expert evidence showing such enclosure. The survey sheets in the Joint Expert Report show clearly that at least in the southern boundary of the Occupied Land outside the Lot, there were no barriers but some road along the southern boundary.

20.  During his cross-examination, when asked whether one could enter the Lot via the southern part of the Occupied Lands and walk through the electricity tower, the 2^nd defendant answered that one could actually enter the land from all directions. I understand this answer to be focused on only the southern and southwestern parts as well as the eastern part of the Occupied Land outside the Lot, because obviously there was the retaining wall along the west of the Occupied Land on the Lot and some fencing at a later time in the north. His answer is consistent with the Joint Expert Report, according to which the southern and the south-western parts as well as the east part of the Occupied Land outside the Lot were not fenced off and the southern boundary of the Lot was also not fenced off. I accept his answer in this respect.

21.  Further, during the re-examination, when asked about during what period one could enter the land from all directions, the 2^nd defendant’s answer was “all the time”. This, again, is consistent with the aerial photos in the Joint Expert Report. I accept his answer here as well.

22.  During his cross-examination, the 1^st defendant, for the first time, alleged that since about 2012, he erected a yellow fence, and subsequently a rope or string, next to the meter box to prevent people falling off into or entering the Occupied Lands. He further alleged that the yellow fence was knocked off from time to time and he had to erect it from time to time, roughly, 40 – 60 times over the past decade. When asked why he did not mention any of these in his witness statement, his answer was that he did not have any special reason to mention these and did not remember to mention these. These are obviously important matters that should have been mentioned. In fact, in his witness statement §17, he specifically mentioned that he erected wooden planks to fence off part of the Occupied Area, but he mentioned nothing like the yellow fence. This shows that he knew that it was important to mention any fencing off. Hence, I reject his explanation and disregard his evidence in this respect as incredible.

23.  Further, in the cross-examination, the 2^nd defendant confirmed that he never posted any notice or erected any board warning against trespassers, while contrary to the 2^nd defendant, the 1^st defendant said for the first time that he did try to erect a notice or board saying “private orchard”, but it got molded 6 months later or so, and so it fell off. That there was such notice or board, such an important piece of evidence, has never been mentioned in any of the 1^st and 2^nd defendant witness statements. Again, I reject the 1^st defendant’s evidence and accept the 2^nd defendant’s evidence in this respect. In any event, posting such notice or erecting such board itself would not be sufficient when there is no fencing off, because the outsiders (and in fact, even the 2^nd defendant himself) simply would not know which part of the land the notice or board is referring to, as he did not know where the boundaries lie.

24.  I should also mention that before the trial commenced, the parties suggested a site inspection may assist the court, given that the 2^nd defendant’s case is that the topography (“steep slopes” and “different ground levels”) formed the natural barriers. However, absent any particulars of what or where the natural barriers or topography that would fence off the Lot or the Occupied Lands, in my judgment, a study of the contoured survey sheets annexed to the Joint Expert Report is sufficient. Thus, there was no site visit.

25.  The contoured survey sheets in the Joint Expert Report show that the Lot and the Occupied Lands are on the slope. However, they do not show any topographical features (like very steep slope) which are along or mark any parts of the boundaries of the Lot or the Occupied Lands. The Joint Expert Report at most suggests that at the time of the inspection in January 2020, near the car park adjacent to part of the northeastern boundary of the Occupied Lands, there is a slope from the photos produced before the Court and there is a slope within the Occupied Lands outside the Lot near the east boundary. But it does not enclose the Occupied Lands or the Lot. It is found just along or near the east boundary only. In any event, I agree with the submissions of the plaintiff’s counsel, Mr Stanley Siu, in reliance on the relevant aerial photos, that this slope existed in about 2008 or even after 2008 as a result of the levelling of the ground for building up the nearby car parking spaces.

26.  I therefore find that neither the Lot nor the Occupied Lands has ever been fully enclosed by any kind of barriers.

Steps taken by the 2^nd defendant to exclude others

27.  I now turn to examine what steps were taken by the 2^nd defendant to exclude others from the Occupied Lands on the Lot.

28.  Having heard the evidence, for the following reasons, I am not satisfied that the 2^nd defendant took any steps to exclude others from the Occupied Land on the Lot:-

(1) According to the 2^nd defendant’s oral evidence, his growing of plants there did not need much watering except for the initial stage. I accept this evidence, because there was no irrigation system or any water supply to the Occupied Lands. As such, the 2^nd defendant would not visit the Occupied Lands that often.

(2) The 2^nd defendant and his family have since 1968 lived at a house known as No 117 Kwong Shan Tsuen, Tuen Mun (“House 117”), east to the Occupied Land on the Lot. This house is some distance from the Occupied Land on the Lot. In his evidence, the 2^nd defendant said that one cannot see from House 117 what are happening to the Occupied Land on the Lot unless he walks outside House 117, but even that some of his sight would be blocked by trees. I accept this evidence, consistent with the fact that the House 117 is some distance from the Lot and in-between has been full of vegetation according to the aerial photos. As such, when the 2^nd defendant and his family are in House 117, they could not or could not readily know what people were entering the Occupied Land on the Lot, and would not be able to immediately evict such people even if they would see them from House 117. Nor is there any evidence showing how he would do so through his family members.

(3) In the 33 years period from 1963 to 1996, the 2^nd defendant worked as a ward assistant at Castle Peak Hospital, Tuen Mun, which is far away from the Occupied Land on the Lot. His working hours were on average 8 hours per day and 6 days per week. He also said that when he was on night shift, he would have to sleep the next day during the daytime. During work, he could not know what people were entering the Occupied Land on the Lot, and would not be able to immediately evict such people even if they would see them from House 117. Again, there is no evidence showing how he would do so through his family members. Thus, at least for the period of 1963 to 1996, his evidence that he would not allow anyone to enter the Occupied Land on the Lot can at most be his wishful thinking only, as this was simply impracticable for him to do.

(4) In §20 of his Witness Statement (which is not disputed), the 2^nd defendant said that “in an afternoon of about July 1998, while I was picking Chinese wampi on my farmland (ie the Occupied Area), I found an unknown person (who later claimed himself to be Kwan Chi On) entering into my farmland. I immediately asked Kwan Chi On why he entered into my farmland and what he was going to do in my land.” (emphasis added) However, during the cross-examination, while on Day 1, he accepted that that person entered his farmland, on Day 2, the 2^nd defendant changed his evidence alleging that the person was on the public vehicular road outside the Occupied Lands near the electricity tower. I do not accept the change. No reason was provided for the discrepancy. Further, in the witness statement, the 2^nd defendant said quite specifically that he asked that person why “he entered… my farmland” and what he was doing “in my land”. Given the 2^nd defendant’s memory, at least in this respect, I find his evidence in the witness statement more reliable than his oral evidence. Thus, I find that that person did enter his farmland. This finding means that a person could enter the Occupied Lands at that time. It just happened that the 2^nd defendant was near that part of the Occupied Lands where that person entered and so he could ask him to leave if he chose to. Obviously, he was not present everywhere in the Occupied Lands all the day time.

(5) In §21 of his Witness Statement (which is not disputed save the exact year when this happened), the 1^st defendant said that “on a Sunday in about early 2015”, he “saw 2 to 3 persons coming to [the Occupied Area]”. Although according to the 1^st defendant’s evidence (which I accept), he immediately asked them to leave, the salient point, again, is that a person could enter the Occupied Lands anytime. Similarly, it just happened that the 1^st defendant was in the Occupied Land on the Lot and so he would be able to ask them to leave. Obviously, he also was not present everywhere in the Occupied Lands all the day time.

(6) In the Supplemental Witness Statement of the plaintiff §§13-20, the plaintiff referred to various occasions where he alone or with some other people entered the Lot without any obstruction from anyone.

(a) His evidence in relation to these visits that at each visit he did not see any banana trees but only wild grass and shrubs is contradicted by the aerial photos and the Joint Expert Report – while his evidence is that the banana trees thereon had been cleared, the aerial photos of these years show that the Lot was still full of vegetation, and the experts agree that these were mostly banana trees. Thus, I do not accept that he did visit the Lot as he said.

(b) Nevertheless, I do accept the evidence that one Manager Kwan, upon the plaintiff’s instructions back in 1998 when the plaintiff was not in Hong Kong, did visit the Lot without any obstruction from anyone. This is because this evidence is largely consistent with the 2^nd defendant’s own evidence that in July 1998, an unknown person entered the Lot and told him that he was the owner of the Lot. The difference between the two pieces of evidence is that while the plaintiff says that the person visiting the Lot was not him but his manager Kwan, the 2^nd defendant says that he knew subsequently it was the plaintiff, who happened also to be surnamed Kwan. The salient point is, a person surnamed Kwan (either on behalf of the plaintiff or the plaintiff himself) did enter the Lot without obstruction from anyone.

(c) I also accept the plaintiff’s evidence that in late 2014 or early 2015, he did visit the Lot without obstruction from anyone because it is also the 1^st defendant’s evidence that in early 2015, he met the plaintiff on the Lot.

(7) I add that the visit in 1998 mentioned in subparagraph (4) above is pleaded in the Amended Reply and Defence to Counterclaim, §5(c) to be a step carried out on behalf of the plaintiff to amount to possession. It is indeed trite that the “slightest acts done by… an owner in possession … to negative discontinuance of possession” by the 2^nd defendant, if any: see Powell v McFarlane (1979) 38 P & CR 452 at 472, and I make such a finding accordingly. But that is not decisive of the 2^nd defendant’s counterclaim because the 2^nd defendant’s counterclaim is that at latest, it started continuous possession from 2000.

29.  In respect of the visits in 1998 and late 2014 or early 2015, Mr Koo submitted that there is no evidence that any person entered the Lot between 2000 and 2014, and this would be a sufficient period for adverse possession. I disagree. The test is not whether there was any person entering the Lot. The test is whether the squatter took any steps to exclude others. Based on the fact (as I have found) that in 1998 and 2014, the plaintiff or the plaintiff’s agent entered the Occupied Lands, and there being no evidence of material change of circumstances between 1998 and 2014, I further find that between 2000 and 2014, as in 1998 and 2014, people could enter the Occupied Lands and the Lot.

30.  Indeed, at least in respect of the Occupied Lands, the 2^nd defendant did not know where the boundaries were. It would be impossible for him to exclude others from the Occupied Lands. Further, similarly, for the Lot, the 2^nd defendant would not know where the southern boundary of the Lot is, given that there was no demarcation of any kind along the southern boundary. It would thus also be impossible for him to exclude others from entering the Lot via the southern boundary of the Lot.

31.  To reinforce the plaintiff’s contention that the 2^nd defendant did not take any steps to exclude others, Mr Siu relied upon the clearing of the Lot and the setting out completed by the plaintiff’s surveyors in 2001 to say that these constituted acts on behalf of the plaintiff to amount to possession of the Lot. I disagree, because according to the plaintiff’s own evidence, these acts were done after the 2^nd defendant received some compensation for clearing vegetation (青苗費) on the Lot in preparation for the setting out. Although the compensation was labelled as “fee for clearing vegetation” rather than fee for setting out or permission to get into the Lot, I take into account the fact that the 2^nd defendant was not legally trained and thus to him, he may not distinguish between the plants on the Lot and the Lot itself. Further and in any event, an owner would not have to pay any kind of fee to clear the plants on his own land before he would start setting out. Thus, I find that the setting out in the circumstances, inconsistent with how an owner would have done, was not sufficient to constitute any slightest act of possession.

32.  Mr Siu also submitted that the 2^nd defendant did not have the requite intention to exclude the owner, in reliance upon the 2^nd defendant’s oral evidence that his attitude towards the Occupied Lands was that he would use them as long as he could, until the real owner would ask him to leave. However, as rightly pointed out by Mr Koo, his such attitude had a caveat he made in re-examination – he would leave only upon being paid compensation. I accept the evidence of this caveat, consistent with what happened in late 2014 / early 2015, when he met the plaintiff, he asked the plaintiff to leave rather than making enquiry like “do you want me to leave?” or “I would leave if you want me to”.

Any exclusive possession?

33.  Absent any enclosure of the Occupied Land on the Lot and absent any evidence of steps taken by the 2^nd defendant to exclude the world at large, the question is whether there is any evidence of exclusive possession by the 2^nd defendant in any form.

34.  On the one hand, Mr Koo urged me to find that the planting and other farming activities on the Occupied Land on the Lot constituted exclusive possession in the present circumstances.

35.  On the other hand, Mr Siu went so far as to suggest that the 2^nd defendant and his family did not carry out any farming activities on the Occupied Lands at all. While I agree that the 2^nd defendant’s evidence in his farming activities is not entirely consistent (for example, the numbers of plants he planted and the extent of the clearing of the Occupied Lands when he was opening them up), given that Mr Chu, a relatively independent witness for the 2^nd defendant (though not entirely independent in the sense that he has been the 2^nd defendant’s neighbour for decades), stood firm in his evidence that the 2^nd defendant and his family did farm on the Occupied Lands, and given that such evidence is consistent with the existence of banana trees seen from the aerial photos which is (though not conclusively) an indicator of some human cultivation, I find that indeed they did farm the same. However, I think the evidence in terms of the extent of the farming especially in terms of the number of plants, the extent of clearing during the opening up and the frequency of visits to the Occupied Land and the length of each visit, is, deliberately or not, exaggeration.

36.  Even though the 2^nd defendant carried out farming activities on the Occupied Land on the Lot, the question remains whether these activities constituted exclusive possession. In support of his submissions that they did, Mr Koo relies on the various authorities mentioned in paragraph 5 above. This I have dealt with in paragraphs 6-8 above. It is, after all, a question of fact to be answered with regard to all relevant circumstances in context.

37.  In determining whether the planting was sufficient to constitute exclusive possession, Mr Koo also highlighted the following matters in his closing submissions:-

“(a) the Land was registered in the Grant as “orchard”, which means that the Land was previously (when the Grant was made) used for growing fruit trees;

(b) the Land is on a steep hillslope in a rural area, and the access thereto is not straightforward or easy, there are no roads, walking trails or steps built for entering or walking within the Land;…

(c) the Land was of little use and there was no water source, even the owners of the Land had never used, occupied or enjoyed the Land at all, throughout the past almost 60 years (since P acquired it in 1962);

(d) apparently, the manner in which the Land is commonly used or enjoyed is “planting trees for fruits” only, it is unlikely (let alone impossible) for the Land to be used a garden (as that in Wai Wah Traders Limited) or for shooting a film (as that in Gotland Enterprises Limited).”

For convenience, I shall refer to the above as (a), (b), (c) and (d) respectively.

38.  Mr Koo also contended that I should also consider the process of opening up the Occupied Lands that took extensive work of the 2^nd defendant. For convenience, I shall refer to this contention as (e).

39.  Mr Koo further contended that the 2^nd defendant made it known to the villagers around that the plants grown in the Occupied Lands were his and thus no villagers should enter the Occupied Lands. For convenience, I shall refer to this contention as (f).

40.  For (a), the question is not what the Lot had been used for. Rather, the question should be what the Lot can be and is used for, and how the use or potential use could constitute exclusive possession. While the Lot was regarded as an orchard, the Lot could and can be used for other purposes. For example, indeed, the plaintiff purchased the Lot (as well as the adjacent land) intending to build a swimming pool. Although this plan was not realised, this shows that the value of the Lot should be far more than a mere orchard. Further and in any event, using the Lot as in the past can in no way constitute any exclusive possession especially in Hong Kong, where land is a valuable asset and land development in Hong Kong is moving fast.

41.  For (b), this is more relevant to existence (or non-existence) of enclosure. Mr Koo seems to suggest that (b) means that people would find it difficult to enter the Lot. I disagree. The 2^nd defendant himself, the 1^st defendant, the plaintiff as well as the surveyors readily found their ways into the Lot. While walking uphill on the slope is not as comfortable as walking on level ground, I do not find that this would then amount to exclusive possession.

42.  For (c), the 2^nd defendant does not plead any abandonment of possession, and Mr Koo fairly confirmed with me that he was not running a claim of abandonment of possession of the Lot. The little use of the Lot and lack of water resources of the Lot would not lead to the 2^nd defendant’s exclusive possession.

43.  For (d), it is in effect another way of putting (a). Thus, similarly, the manner in which the subject land is commonly used at most suggests that the subject land has been fully or substantially utilised as in the past. This can in no way mean exclusive possession.

44.  For (e), similarly to (a) and (d) above, the question is not what the Lot had been used for. Rather, the question should be what the Lot can be and is used for, and how the use or potential use could constitute exclusive possession. Further, the opening up was, according to the 2^nd defendant, carried on in a piecemeal fashion. So piecemeal that one cannot see any such opening up from the relevant aerial photos. Thus, in my view, the opening up could not be “perfectly plain” to the outsiders that the 2^nd defendant was even using the Lot, let alone exclusive possession.

45.  For (f), the only villager who gave evidence at the trial was Mr Chu. However, it is not clear from his witness statement as well as the 2^nd defendant’s witness statement and the 1^st defendant’s witness statement that the 2^nd defendant when, how and where the 2^nd defendant made it known to the villagers that the plants were his. Indeed, such an allegation that the 2^nd defendant made it known to the villagers that the plants were his was made for the first time in the witness box, and without any particulars. I reject such an allegation, which, if true, would certainly have been made earlier and/or with particulars. Further and in any event, even if I would accept such allegation as true, the people to whom the 2^nd defendant made it known were the villagers only, but not any persons outside the village. This limited “pronouncement” of exclusion of the nearby villagers would not be sufficient for the purpose of excluding the whole world.

46.  In conclusion, (a)-(f) above, whether individually or cumulatively, do not constitute any exclusive possession.

47.  In the circumstances, I find that at most, the 2^nd defendant merely used the Occupied Lands for the purpose of farming, and that the 2^nd defendant has not been in any exclusive possession of the Occupied Land on the Lot or any part of the Lot.

Evidence in relation to negotiations

48.  The parties adduced evidence that there were some negotiations between the plaintiff and the 2^nd defendant (by himself or via the 1^st defendant) that the 2^nd defendant sought compensation for the removal of plants in the Occupied Land on the Lot and in the negotiations, the 2^nd defendant focused more on the plants rather than the ownership of the Occupied Land on the Lot. I do not find such evidence of much assistance. As mentioned above, the 2^nd defendant was not legally trained and thus to him, he may not really distinguish between the vegetation on the Lot and the Lot itself. Further, the parties may well assume certain positions in the negotiations for the purpose of getting some advantage from the negotiations. The 2^nd defendant may well be an adverse possessor but would be willing to give up the plants for some money, and thus his focus was not on the ownership. This would not mean that he would be deprecated to be less than an adverse possessor (if he has been at all in the first place).

49.  Thus, I only take such evidence as background evidence only, and do not find it of much assistance to resolving the live issues before me.

50.  For the sake of completeness, I prefer the plaintiff’s evidence in respect of what happened in 1998, and find that in about 1998, when the 2^nd defendant met a Mr Kwan (either the plaintiff himself or Manager Kwan), he did seek compensation for clearing vegetation (青苗費). The 2^nd defendant’s evidence in this respect is most strange – in cross-examination, he said that he took all the way to Central to meet that Mr Kwan, but he denied that that the purpose of the meeting was to seek the compensation. However, despite ample opportunity, he failed to explain what the purpose of that meeting was. I note that in his witness statement §21, the 2^nd defendant said that at the meeting that Mr Kwan asked him to return the Lot, and the 2^nd defendant refused. This in fact is consistent with his seeking compensation as well – in this sort of discussion, it is more likely than not that compensation would be raised. Coupled with the 2^nd defendant’s strange evidence here, I prefer the plaintiff’s evidence in this respect.

Hypothetical question of paying rent

51.  In the course of the cross examination of the 2^nd defendant, Mr Siu asked a question that is often asked in an adverse possession claim, namely, whether he would pay rent if requested by the owner. The 2^nd defendant answered in the affirmative. I raised with Mr Siu that this was a hypothetical question, which, as a general rule for factual witnesses, is not permitted. Thus, submissions in this respect were made at the closing submissions.

52.  This line of question arises from the Court of Final Appeal decision in Wong Tak Yue v Keung Kwok Wai & anor (No 2) (1997-98) 1 HKCFAR 55, where at 69C-F, the Court held that because the squatter would be willing to pay rent to the owners if the owners had requested him to do so, there could not be any requisite intention to possess.

53.  As I said in Pang Moon Wan v Yu Chi Foon, DCMP 2331/2015, unreported, 23 June 2016 at §58, the ratio of Wong Tak Yue is only limited to willingness to pay rent. Thus, this is not an authority for crafting an exception to the general rule that no hypothetical questions should be asked in evidence. In fact, as pointed out by DDJ B Mak in Chan Ting On v Multi-Skill Investments Ltd, DCCJ 2786/2013, unreported, 20 June 2007 at §§14-23, the context of Wong Tak Yue is very specific. In that case, the squatter would like to avail himself of the benefits as a tenant under the Landlord and Tenant (Consolidation) Ordinance (Cap 7), as an alternative to his claim for adverse possession, and therefore, by way of affirmation evidence, the squatter himself volunteered that if he was asked to pay rent, he would be willing to do so. In other words, in that case, this willingness to pay rent was not solicited by cross-examination.

54.  Therefore, applying the general rule that no hypothetical question should be asked, I disregard the answer to this hypothetical question asked by Mr Siu.

Mesne profits

55.  While the plaintiff claims for mesne profits, there is no valuation evidence before me. The plaintiff proposes HK$100.

Conclusion

56.  In conclusion, the 2^nd defendant fails to discharge his burden of proof of exclusive possession for the purpose of adverse possession. Thus, I make the following order:-

(1) As against the 2^nd defendant and the 3^rd defendant, the plaintiff do recover vacant possession of the Lot (that is, the areas coloured green and pink in the Survey Plan).

(2) The 2^nd defendant do deliver vacant possession of the Occupied Land on the Lot (that is, the area coloured pink in the Survey Plan) to the plaintiff.

(3) The 2^nd defendant do pay the plaintiff nominal damages of HK$100.

(4) The 2^nd defendant be restrained from entering the Occupied Land on the Lot, whether by themselves or by their agents, employees or their licensees, without consent of the plaintiff.

(5) The 2^nd defendant’s counterclaim be dismissed.

57.  I make a costs order nisi that the 2^nd defendant do pay the plaintiff the costs of the action (including the 2^nd defendant’s counterclaim), to be taxed if not agreed, with certificate for counsel. I also order that the 2^nd defendant’s own costs be taxed in accordance with the Legal Aid Regulations.