TAI SANG BANK LTD. v. UNIVERSAL CORPORATION (COLOR & CHEMICAL) LTD. AND OTHERS

HCMP 5646/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5646 OF 2001

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J U D G M E N T

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1.  Five years ago management of the plaintiff bank discovered that land in the New Territories it had brought back in 1959 had unauthorized structures built on it and was unlawfully occupied.  The 1^st defendant was identified as the occupant.  The bank served and posted notice to quit calling for restoration and vacant possession.  When that was not forthcoming it issued this writ.

2.  The 1^st defendant’s response to the notice and its pleaded defence is that it is in lawful possession as tenant under a series of tenancy agreements dating back to 1989 with persons who held themselves out to having the legal authority and capacity to let out the land.

3.  Those persons, all surnamed Tang, applied to be joined and are now the named 2^nd to 7^th defendants.  They are variously brothers and cousins as I shall come to; that included the 6^th defendant Tang Sau Yee, but he died just two months ago. 

4.  Their defence is that the plaintiff’s predecessors in title were dispossessed of the land more than 60 years ago by their parents, two brothers and a cousin, also called Tang.  It is said that as far back as 1920 they took possession of the land, then subdivided it into three parts, each of them taking charge of one portion.  Then they proceeded to cultivate sugar cane, which was harvested and sold.  By this means they supported their families.  This went on for a number of years.  All three have died, but the cultivation was continued uninterrupted by their wives and latterly their sons, the 2^nd to 7^th defendants.  In about 1985 the sugar cane cultivation came to an end; fruit trees were grown in their place, until 1989.  In 1989 and then 1990 the three lots were separately let to a director of the 1^st defendant who took the tenancies on behalf of the 1^st defendant. 

5.  And that is the position to this day.

6.  Resisting thus the plaintiff’s claim for vacant possession, the 2^nd to 7^th defendants counterclaim for declarations of adverse possession, and for a declaration that the title of the plaintiff is thereby extinguished.

7.  The burden falling on the 2^nd to 7^th defendants to prove their right to dispossess the registered proprietor of its land, the trial proceeded as between themselves and the plaintiff, the defendants opening, with the 1^st defendant taking no part pending the outcome.

The Law

8.  Those representing the competing parties before me are in substantial agreement on the legal principles.

9.  The starting point is that the owner of land having title is presumed to be in possession of the land, and to have the right to evict any trespasser.  To establish adverse possession a squatter must prove that he had both factual possession exclusively and continuously for the requisite period, coupled with the requisite intention to possess; the animus possidendi.  But it does not work if his possession is with the permission of the true owner; then it cannot be said to be adverse; see The Law of Real Property, by Sir Robert Megarry and Sir William Wade, sixth edition,     21-016.

10.  In this case the requisite period of time under the Limitation Ordinance, Cap. 347, is 20 years.

11.  To establish factual possession it is necessary for the squatter to demonstrate that he has taken and retains a sufficient degree of exclusive physical control.  This has to be determined based on the particular facts, the nature of the land and how and how often it is utilized.  It has been said that enclosure of the land by the squatter is “the strongest possible evidence of adverse possession, but is not indispensable;” see Megarry v Wade, 21-017.

12.  As was stated by Slade J in Powell v McFarlane (1977) 38 P  & CR 452 at p. 470:

“Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”

13.  And once factual possession has been established it will not be terminated by notice to quit.

14.  If a squatter chooses to let out the land, that act of itself does not disturb his adverse possession.  That is because adverse possession means possession inconsistent with the title of the person with the paper title to the land.  So, a squatter can remain in adverse possession through his tenant’s occupation; authority for this proposition is found in the judgment of the CFA in Cheung Yat Fuk v Tang Tak Hong & Ors, FACV No. 12 of 2003.

15.  To establish the necessary intent to possess involves the intention in ones own name and on ones own behalf to exclude the world at large, including the owner with the paper title.  This is not necessarily an intention to own or to acquire ownership but to possess; see Buckinghamshire County Council v Moran [1990] Ch 623. 

16.  Given that the consequences of a suit for adverse possession is to deprive the owner of that land it follows that it is upon the squatter to provide compelling evidence of his factual possession and intention to exclude all others; see Powell v McFarlane, supra.

17.  This is not to say that he must prove his case to a higher standard than the usual one of on a balance of probabilities.  Rather it is incumbent on the court to consider the evidence with particular care, especially where it is asked to rely on self-serving statements or hearsay evidence; see Wong Tak Yue v Kong Kwok Wai David [1998] 1 HKC 1, per Li CJ at p.13.

The Land

18.  The land in question is described as section A of Lot 1117 in DD 121.  It is situated in Tong Yan San Tsuen, Yuen Long.  It was the subject of a Government lease of 75 years from 1898, which lease was extended for 24 years from 1973.  Then it was further extended in 1997 for a further 50 years by the New Territories (Extension) Ordinance, as interpreted by the Court of Final Appeal in Chan Tin Shi v Li Tin Sung & Ors [2006] 9 HKCFA 29.

19.  The land is 2387 square metres in size; about three fifths of an acre.  It is, or rather was until the early 1990s when it came to be occupied by the 1^st defendant, agricultural land in a rural environment, but with some light industrial activity being carried out in the vicinity; for instance land adjacent to its north western boundary was from the 1960s run as a timber mill.

20.  The plaintiff took title to Lot 1117A by assignment registered in February 1960.  No evidence was led as to the circumstances.  But it is worthy of note that in 1956 the previous owner had mortgaged the land to the plaintiff to secure an advance of $10,000.  It seems redemption of that loan was by way of the plaintiff taking title in consideration for the same amount of money.

21.  Further characteristics of Lot 1117A emerge from the evidence that I shall come to.

The Tangs

22.  The 2^nd to 7^th defendants, like their parents and previous generations of the Tang clan, were born and raised and now live in Tong Fong Tsuen, which is a village close by Tong Yan San Tsuen and thus Lot 1117A.  The 2^nd, 3^rd,4^th and 5^th defendants are all brothers, being sons of Tang Ying Kei now deceased.  The 6^th defendant Tang Sau Yee, was the son of Tang Lun Kwong now deceased.  But he also has passed on.  The 7^th defendant Tang Hoi Man is the son of Tang Kam Kei now deceased.

23.  Tang Ying Kei and Tang Kam Kei were brothers, and cousins of Tang Lun Kwong. 

24.  Another member of the Tang clan, by marriage, is Madam Ho Mui.  She was married to another brother of Tang Ying Kei and Tang Kam Kei called Tang Ying Chai, also now deceased.  She and her husband ran a herbal tea house in Yau Ma Tei for a number of years and sold sugar cane juice made from sugar cane cultivated and harvested in Tong Yan San Tsuen. 

The Witnesses

25.  Those called for the plaintiff were Tang Kwok Sung, the 5^th defendant, who gave his account for himself and his three brothers, the 7^th defendant Tang Hoi Man and Madam Ho Mui.

26.  Not able to be called because they had not lived to the date of trial were the 6^th defendant Tang Sau Yee and two more indigenous villagers of Tong Fong Tsuen, called Lam Luk and and Fung Wai Yin. 

27.  But all three deceased had filed affirmations in support of the joinder of the Tangs into the action and following hearsay notices having been filed without challenge I admitted these affirmations into evidence.

28.  On the plaintiff’s side a manager of the bank called Lam Chuk Loon had made a statement.  His account was to tell of the bank’s acquisition of the land, the serving and posting of a notice to quit in 2001 and the refusal of the occupier the 1^st defendant to comply with its terms.

29.  That account was not challenged, and the statement came in as evidence. 

30.  Finally both sides engaged chartered surveyors to study Government survey sheets and aerial photographs taken between the end of World War II and 2002 for the purpose of establishing how the land was being utilized during this period.  Helicon Ma for the plaintiff and Raymond King for the 2^nd to 7^th defendants prepared reports and came to court to answer to them.  Neither side challenged the expertise of their opponent’s expert.

31.  That being the background I come now to the evidence.

The Factual Evidence

32.  Tang Kwok Sung, the 5^th defendant, said he was born in 1958.  He is the youngest of the four brothers.  From an early age he came to realize that his father was a farmer cultivating and harvesting sugar cane by which means he supported the family.  The sugar cane was grown on several fields in the neighbourhood.  One was a defined part of Lot 1117A.  His mother shared in the chores as did he and his brothers as they became old enough to lend a hand.  There were two further subdivided parts.  These were farmed by his father’s brother and cousin and their families in just the same way.

33.  Following school he took jobs of various kinds.  But he continued to live on in Tong Fong Tsuen and after hours and at busy times helped out in the cultivation.  Harvesting of the cane was undertaken once a year.  His uncle Tang Ying Chai and his wife Madam Ho bought the cane from which they made sugar cane juice for sale from their herbal tea shop in Yau Ma Tei.

34.  By an age when he was old enough to comprehend such matters his mother told him that his father and his brother and cousin first began cultivating sugar cane on the land in about 1920 and that they had continued to do so thereafter.  The third brother Tang Ying Chai and Madam Ho set up their business just before World War II and from then on had bought all their crop as it was harvested each year. 

35.  His father died in 1966.  But led by his mother the family continued to farm their land and in particular the plot on Lot 1117A.  

36.  He went on to describe further characteristics of the land.  The three parts of it were divided by paths.  Over the years the three families maintained their separateness; for instance, harvesting and recropping was not necessarily undertaken of the same time.

37.  The boundaries of 1117A, going back for as long as he can remember, from the north running clockwise to the west were fenced by a wire mesh fence about 3 to 4 feet in height.  He took it upon himself to keep it in a reasonable state of repair.  Its primary purpose was to protect the sugar cane from marauding dogs.  The north western boundary, that is the one adjoining the timber mill, was not fenced.  This was because there was no direct access to the land from any road.  Practical access was by means of a gate from the road into the timber mill and from there to the land, with leave of the owner of the mill. 

38.  During the time when his mother was in charge she had had built on the land structures for housing the families’ tools and equipment.  The Yuen Long Squatter Control Office marked them as temporary structures.

39.  In 1986 his mother died.  But by then all the families had decided to end the cultivation of sugar cane.  Prices had slumped.  Tang Ying Chai and Madam Ho closed the doors on their enterprise and retired. 

40.  But thereafter in common with the other two families he and his brothers continued to occupy the land, and planted and tended loong ngan trees and banana palms.  The resultant fruit was for family consumption but some was sold at market.

41.  He said that the share of the land allocated to Tang Lun Kwong was farmed by him and his family over the years in much the same way.  Like his father Tang Lun Kwong also farmed other plots, though his acreage was smaller.  Cultivating the sugar cane was that family’s primary source of income as well.

42.  Following the same pattern, when Tang Lun Kwong died, his son the 6^th defendant Tang Sau Yee continued to farm in his stead.

43.  Throughout the period the land was farmed by the three families and for as long as he can remember they treated it as their own.  No other person was entitled to access the land without permission and there was no unauthorised access.  Up until 1989 the original fence remained upstanding, repaired as and when necessary to keep it functional.  As far as he was aware by family discussions this was the position from 1920 when the older generation first began use of the land.

44.  He came to know in 1989 that the land occupied by the timber mill was sold to the 1^st defendant and it was thereafter run as a chemical plant.  The controlling director, are Lee Foon Kau, approached the families to enquire as to the availability of Lot 1117A for rent.  He told them the 1^st defendant needed storage space.  He, Tang Kwok Sung, came to learn that the owner of the timber mill, their neighbour called Tong Tim Lam, had identified the Tangs as those in charge.

45.  The upshot was that by three tenancy agreements Mr Lee on behalf of his company rented each of the three subdivided parts of Lot 1117A for a period of six years.  That of the land said to be that of the brothers Tang the 2^nd to 5^th defendants was signed on their behalf by Tang Kwok Yiu the 2^nd defendant.  The 6^th and 7^th defendants respectively signed for their allocated parts of the land.

46.  Thereafter the tenancies have been renewed at two yearly intervals and the 1^st defendant remains in possession to date.

47.  In his affirmations Tang Sau Yee, the 6^th defendant, now deceased, had adduced that he was born in 1936, so that his birth preceded his cousin the 5^th defendant by 22 years.  He came from a young age to know that his father supported the family by cultivating sugar cane on fields which included a defined part of the land; he too came to be told that his father and his cousins had been doing this since 1920.  He helped in the cultivation from the time he was 16; that would have been from 1952.  When his father died in 1981 he took over by succession.  He too converted to growing fruit trees from 1985.

48.  Tang Hoi Man the 7^th defendant gave an account that mirrored that of his cousin Tang Kwok Sung, his junior by about three years.  Unlike Kwok Sung’s family his father Tang Kam Kei cultivated only his share of Lot 1117A; he had no other fields or plots.  And unlike his cousin he joined his father as a full-time farmer, and took over from him when he died in 1976.  Only when they stopped cultivating sugar cane in 1985 did he take up another occupation, that of a taxi driver.  He confirmed that from then on until the leases to Lee in 1989 the families grew fruit trees on the land. 

49.  Concerning the involvement of the third family, that of his father’s cousin Tang Lun Kwong, he identified his allocated part of the land and said that he and his family cultivated it in just the same way.  When Tang Lun Kwong died in 1981 his son Sau Yee (the late 6^th defendant) continued to farm until production ceased in 1985.

50.  Like Tang Kwok Sung, he said that no other person was authorised to come on to the land whilst they cultivated sugar cane, and that persisted until 1989.  His family regarded their share of the land as their own; to the extent that when land also held by the family was resumed by the Crown in 1977 they moved urns containing ancestral remains to this land.  And they remain there to this day, fenced off so that they are physically separated from Mr Lee’s undertaking. 

51.  I come now to the evidence of Madam Ho.  She was born in 1918 and is thus now 88 years old.  But despite her advanced years she appeared sprightly and on the ball though understandably a bit vague on detail.

52.  She too was born and has spent all her life in Tong Fong Tsuen.  She married Tang Ying Chai when she was 18 and it was shortly after that they began to run a herbal tea shop in Yau Ma Tei, where they made and sold sugar cane juice.  This was just before World War II.

53.  From an early age she came to know of the field at 1117A; that it was cultivated by the brothers Tang Ying Kei and Tang Kam Kei and their families, and a third family member whose name now escapes her.  She and her husband purchased all their harvested crop over the years they ran their business.  She had intimate knowledge of the land because she and workers undertook the harvesting.  To her knowledge no other person had use of the land.  Her husband also cultivated sugar cane on a plot adjacent to the timber mill, but it was separate and distinct from 1117A.

54.  Cultivation of the cane and sale of the juice was interrupted during the Japanese invasion in the early 40’s.

55.  She remembered the exact length of the occupation; it was three years eight months.

56.  Then the land was used to grow sweet potatoes and other staples to feed the families, including that farmed by her husband.  The harvest was shared amongst the villagers.  She graphically recalled: “Had we not done so we would have starved to death”.

57.  After the war she and her husband resumed their business.  The families went back to cultivating sugar cane. 

58.  She remembered the founding brothers Ying Kei and Kam Kei dying in 1966 and 1976, but that the farming was continued on by their widows and families.  Throughout she bought all of their harvest. 

59.  She and her husband decided to close down their business and retire in 1985.  He was then 77 years old and died not long afterwards.

60.  Mr Lam, now deceased, had adduced that he was born in Tong Fong Tsuen in 1914 and spent his whole life there.  He too farmed land in Tong Yan San Tsuen, and knew from the age when he was old enough to remember that the three Tang families cultivated sugar cane on the land in question.  In fact when Tang Ying Kei died in 1966 he helped out his widow on that farm until she died in 1986.

61.  Mr Fung also deceased had attested that he was born in 1931 and raised in Tong Fong Tsuen.  As a neighbour of the Tangs, he knew well the three families and their persistent involvement in Lot 1117A where they farmed sugar cane.  His father also farmed on land at Tong Yan San Tsuen and during his teenage years he would help his father out. 

62.  In 1949 he went to live in Kowloon, where he undertook an apprenticeship in a motor garage.  But whenever he returned home he observed that the three families were working their land as he put it “from day to night”.

The Expert Reports

63.  Over the years since shortly after the end of World War II, Hong Kong’s territories have periodically been photographed from the air for mapping, survey and record purposes.  Those available for inspection date back to 1949. 

64.  Both of the surveyors inspected a number of these photographs taken of Lot 1117A and its surroundings and gave a view as to how it was being used.

65.  In addition both visited the land, Mr Ma in May 2001 and August 2002 and Mr King as recently as the weekend before trial.

66.  There was no material issue on the size shape and location of the land.  The early photographs of the 1940s and 50s were taken from a height that make it impossible to establish how the land was being used.

67.  By 1964 with improved technology the imaging had become much sharper.  Both surveyors agreed that the photography of this year revealed cultivation throughout of a similar type of crop, planted neatly in rows.

68.  However their interpretation of more recent photographs indicated some differences of opinion. 

69.  In respect of photos taken in the 70s, Mr Ma noted that there appeared to be different crops being grown; this of course contrary to the evidence that throughout this post-war period only sugar cane was cultivated.  However from the witness box he was prepared to accept Mr King’s opinion, that it might also be the same crop in different stages of maturity.  And this was consistent with the evidence that the same crop was being cultivated but not necessarily with a constant date of harvesting.

70.  In photos taken in the early to mid 1980s, Mr Ma said that it seemed only part of the land was being cultivated in annual crops; that the rest had reverted to trees, bushes and grass, and thus had become “waste lands”.  By 1985 there was no cultivation and all the land had become waste.

71.  Mr King opined that in the early 1980s only one part of the land appeared to be cultivated land but he took issue with the expression “waste land”.  He noticed some regularity in the planting consistent with conversion to fruit trees.  He preferred the expression “largely unattended”.  Mr Ma conceded in cross-examination that that is a more valid description; that the photos are consistent with the vegetation in fact comprising fruit trees.

72.  By 1989 and thereafter there was no disagreement.  The land was at this time cleared of vegetation save for twin trees left in the middle.  After that a number of huts had been built on the land consistent with it being utilised for storage.

73.  Mr Ma confirmed this use when he visited in 2001 and 2002 and Mr King did likewise following his more recent attendance.

74.  During his site visit of 2002 Mr Ma looked for but could not find any graves or tombs.  No doubt this was to check on the evidence of Tang Hoi Man about his ancestors’ remains.  Mr King however came across those urns that Tang Hoi Man had identified as containing the remains, outside hoardings surrounding part of the land.  He identified the two remaining trees as loong ngan trees and said they were still bearing fruit.

Analysis

75.  The pleaded case of the 2^nd to 7^th defendants (whom I shall call collectively the defendants for short) is that they and their predecessors have had adverse possession since 1920 and thus dispossessed the plaintiff and its predecessors many years ago.

76.  Given the way the evidence emerged I believe it appropriate to consider its strength for particular periods of time in sequence, from 1920 to the present. 

1920 to 1935

77.  For this period the defendants rely on the hearsay accounts
of what they were told by their parents; in the case of the 5^th and 7^th defendants this would not have been before 1960.  There is no direct evidence, and no corroboration to that hearsay and double hearsay.

78.  Mr Shum for the plaintiff submits that these accounts amount to family folklore and are at best mere assertions and cannot be relied on.  Mr Lim for the defendants does not advance an alternative proposition.

79.  My view is that the evidence is neutral to the proposition of adverse possession, in the sense that it is not sufficient to establish that, but does not discredit evidence adduced concerning later periods.

1935 to 1945

80.  Mr Shum incorporates this period into the first and invites a dismissal of it for the same reasons.

81.  But by now Madam Ho was on the scene, 17 years of age and old enough as a fellow villager to have a direct awareness of Lot 1117A and how it was then used and by whom. But more significantly she was shortly to marry another Tang, and thereafter have a consistent relationship with the land and its occupiers for decades to come.  That is jumping ahead however.  For this period she gave her account of the years just before the war, from the time when she and her new husband began their business in the course of which she harvested and bought from the Tangs their crop, and then the war years under Japanese occupation.

82.  I have to say I found her to be an impressive witness with a sound memory of those harrowing years.  Mr Shum submitted that cessation of the sugar cane cultivation and the growing of alternative crops by others as well as the Tangs on Lot 1117A upon which they survived denied them the right to hold out that during this time there was continuous and exclusive adverse possession.

83.  But the war years were extraordinary times.  As Madam Ho said, if they had not grown their own food they would have starved.  I do not find that by sharing the land with relatives and fellow villagers they were giving up that status.  Putting it another way, in a critical time when their homeland was occupied by the enemy, the Tangs behaved towards their fellow villagers in the way that a farmer owning his land would have likely done.

84.  Mr Shum suggests that Madam Ho was at best ambivalent as to who pre-war was cultivating the land, having included her husband as one of those working the land.  I have reviewed her evidence and am satisfied that she spoke of three families, two being those of her husband’s two brothers Tang and the third of another whose name she can no longer remember.  Her husband was not involved.  He had a plot for cultivation but it was separate and distinct.  No one else but these three families were in occupation.

85.  Given that her account was that on cessation of hostilities they went back into business, I am satisfied that she has recalled well; that all three Tangs had shared exclusive possession during this decade.

1945 to 1985

86.  During the course of this period of four decades the next generation of Tangs were emerging, and were able to give their first hand account of how the land was used and by whom.  This evidence falls into the category of self-serving, and the 6^th defendant’s was not tested.  But there was corroboration from Madam Ho who from the end of the war once again became engaged in harvesting and purchasing of their stock, and this was to last throughout these forty years. 

87.  Messrs Lam and Fung themselves independent of the Tangs, added their support.  There was also the evidence from the chartered surveyors Messrs King and Ma.  This was as I find compelling further support for the defendants. 

88.  The photography particularly from 1964 and until the 1980s showed crops neatly planted, cultivated and harvested, consistent with the defendants’ case that the land was constantly being farmed in this way.

89.  Mr Ma conceded that whilst his original opinion was that photographs taken in the 70s suggested that different crops might be being grown on the land at this time, Mr King’s view that this could suggest the same crop at different levels of maturity was a valid one.  And this dovetailed with the evidence of the farmers themselves that they farmed and harvested separately.

90.  Mr Shum submitted that mere cultivation of crops on the land was not enough to establish adverse possession; that given sugar cane cultivation is dry cultivation, depending only on rain for irrigation, and given that two of the families had other plots to farm, the amount of time spent by them on the subject land was exaggerated for self-serving reasons.

91.  But against this I am satisfied that core members of the families were engaged full time in the cultivation; whether there were other fields to be tended in the vicinity is neither here nor there.

92.  There was a fence, kept in repair.  Mr Shum submits this was not a fence which advances the defendants’ cause.  At 3 to 4 feet it was not very high.  It was designed to keep out marauding dogs and not trespassers.  It did not fully encircle and thus enclose the land, leaving no barrier or other division on the boundary adjoining the timber mill.

93.  I take a contrary view.  Fences around farm fields are designed to keep stock in or out as a primary function; not to prevent trespassers.  A farmer who fences fields in which he is cultivating crops is demonstrating a desire to preserve his crops; he is behaving as would a farmer farming his own fields.  That the fence did not encircle the land was consistent with its particular feature; that there was no road leading to it, requiring access through the timber mill.  But this did not compromise the defendants’ possession, because the mill was not accessible by the world at large.  Furthermore, there was nothing to suggest that the mill’s owner or personnel lawfully in attendance at the mill occupied the land or would have had any reason to.

94.  As to the so-called temporary structures marked by Squatter Control and the urns of the 7^th defendant’s ancestors; Mr Shum submitted that the existence of these structures could not amount to physical occupation of the whole piece of land.  Of course this must be so.  But the reason for construction of the so-called temporary structures (which had the appearance of being rather more than temporary) being to house tools of trade for use in the cultivation is an indication of the extent to which the families attended the land in their farming.  And that the 7^th defendant had chosen to bring his ancestors’ remains to his allotment is a poignant pointer to his belief that that the land was and is rightfully his.

1985 to 1989

95.  Mr Shum submits that the photographs taken during this period graphically indicate that cultivation had by this time ceased altogether; that whatever was being done prior to this time and by whom and whatever the status of the defendants or any of them, the land was by this time “waste land” or at least “unattended land” to coin the phraseology of the surveyors.  The 5^th defendant’s mother had recently died.  The 5^th defendant was not involved in the cultivation.  The 7^th defendant had become a taxi driver.  Madam Ho and her husband had retired.  No one was cultivating sugar cane or any other annual crop.  The farming had ceased.  And there was insufficient evidence to support that the families had reverted to growing fruit trees.  But even if this was established it was not extensive and did not warrant much attention.  To all intents and purposes the defendants whatever their status prior to this time had walked off the land and were thus no longer in possession.

96.  He further submits that whatever status may have been afforded the defendants prior to this time, their joint and several abandonment of the land had the effect of restoring to the plaintiff as owner the presumption of possession of the land. 

Was the land abandoned?

97.  There is for consideration the evidence of the 5^th and 7^th defendants, that the cultivation had been replaced by a different form of land use, namely the growing of fruit trees for sale and as well consumption by the families; that this required pruning and harvesting and general tending, albeit of a much less arduous nature; that the photography as analysed by the surveyors did not exclude the presence of fruit trees; indeed two loong ngan trees of some size and maturity have been preserved on site. 

98.  Of particular significance is that when Mr Lee sought out those from whom he might be able to rent out the land he was directed by his company’s vendor Tong Tim Lam to the defendants.  It was of course Mr Tong who owned and ran the timber mill and was the immediate neighbour of the Tangs from the 60s to the 80s.

99.  Mr Lim submits this evidence establishes that there is clearly not abandonment; that reduced activity on the land does not of itself amount to those in possession giving up possession.

100.  I agree.  The principle of adverse possession is not about the extent of use but whether or not there is possession as demonstrates control to the exclusion of others.  And there is nothing to indicate that during this time the defendants were no longer in possession; in particular that possession had been assumed by others.

1989 to the present

101.  Mr Shum concedes during this period the defendants by letting the land had undertaken activity which amounted to adverse possession.  However he submits that this was dispossession de novo and the requisite period had not passed before the plaintiff returned to reclaim possession.

An Overview and Conclusion

102.  I am satisfied and so find that the evidence adduced establishes that from no later than 1935 until the present day the defendants and their predecessors were in continuous possession of 1117A to the exclusion of all others including the plaintiff and its predecessors of the paper title.  And I am further satisfied that throughout they had the intention to possess to the exclusion of all others. 

103.  It is probably likely that the factual possession and animus possidendi was established well before that date.  But the strength and reliability of the evidence for that period is somewhat diminished by the lack of corroborative support for what was said to have been the state of affairs prior to 1935.  Suffice to say that it supports Madam Ho’s account that by 1935 there was established cultivation.

The Result

104.  The plaintiff fails in its claims for vacant possession, an injunction to restrain the defendants from re-entry and damages for trespass and they are dismissed.

105.  The 2^nd to 7^th defendants succeed in their counterclaim for declarations that they are entitled to retain possession of the land by reason of adverse possession and that the plaintiff is barred from recovery of the land, and for a declaration that the plaintiff’s title to the land has been extinguished.

106.  Costs are nisi.  Those of all the defendants (including the 1^st defendant) are to be borne by the plaintiff taxed if not agreed.