大埔道民安大廈業主立案法團 v. 擅自佔用九龍大埔道79, 79A, 81, 83, 83A, 85號民安大廈天台的人士 AND OTHERS

DCCJ 4519/2021 & DCMP 3313/2021 (Consolidated)

[2025] HKDC 64

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4519 OF 2021

(TRANSFERRED FROM LDBM 68/2021)

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3313 OF 2021

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BETWEEN

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(Consolidated by Order of Master Maurice Lam dated 9 February 2023)

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JUDGMENT

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A. INTRODUCTION

1.  There are two sets of proceedings consolidated and being heard together, being DCMP 3313/2021 and DCCJ 4519/2021 (“Consolidated Action”). These proceedings concern the ownership, control, possession and management of part of the roof of Man On Building at Nos. 79, 79A, 81, 83, 83A and 85 of Tai Po Road, Kowloon (“Building”).

2.  The Plaintiff in DCCJ 4519/2021 and the Defendant in DCMP 3313/2021, which is also the Plaintiff in the Consolidated Action, is the Incorporated Owners of the Building (“IO”).

3.  The Defendants in DCCJ 4519/2021 are the occupiers of the roof of the Building which is “U” shaped as shown in the attached roof plan (“Roof”). The Roof is divided into two halves being the left half (with the designated street numbers No. 79, 79A, 81 of Tai Po Road) (“Undisputed Roof”) and the right half (with the designated street numbers of No. 83, 83A and 85 of Tai Po Road). The 3^rd Defendant (“Lee”) occupied the Undisputed Roof whereas the 2^nd Defendant (who is also the Plaintiff in DCMP 3313/2021) (“Fung”) occupied the Disputed Roof.

4.  The parties’ references in the Consolidation Action correspond to those in the action DCCJ 4519/2021 and I shall adopt the same references hereinbelow.

5.  Originally, the IO sought to evict both Fung and Lee, to demolish the structures erected on the Roof, and to claim for vacant possession of the entire Roof. Halfway through these proceedings, Lee conceded and surrendered possession of the Undisputed Roof. What remains therefore is a contest between the IO and Fung in respect of the remaining part of the Roof and the structure erected thereon (“Disputed Structure”).

6.  By way of counterclaim in DCCJ 4519/2021 and claim in DCMP 3313/2021, Fung claimed that he had obtained possessory title by virtue of continuous exclusive possession of the remaining part of the Roof for over 20 years since 9 December 1976, or alternatively through continuous exclusive possession of the same area for over 12 years since 12 July 2005. To be precise, the area concerned is a bit more than the remaining part of the Roof. It also includes a small strip of indoor space between the top of a staircase leading to the floor below and a fire door leading to the Roof as shown in the coloured area of the floor plan attached. For ease of reference, I will refer to this entire disputed area as the “Disputed Roof”.

B. FACTUAL BACKGROUND

7.  The Building was erected in 1964 with a Deed of Mutual Covenant dated 28 October 1964 governing the respective rights and obligations amongst its co-owners (“DMC”).

8.  The Building is 11-storey high with four shops on the ground floor and 6 residential units on each of the floors above the ground floor, adding up to a total of 64 units. The units above the ground floor are referred to as Nos. 79, 79A, 81, 83, 83A, 85 of that particular floor corresponding to the street numbers that the Building occupies.

9.  According to the DMC:

(1) The ownership of the Building was notionally divided into 64 equal undivided shares.

(2) Originally, the first owners of the Building, namely “Wong Sik Ho”, “Chan Kwong Chi”, “Tsang Pui Chun” and “Tsang Pui Hing” (“First Owners”) owned and held 63 out of 64 equal undivided shares as tenants-in-common of the Building together with the second owner of the Building one “Chau Wing Keung” who held the remaining 1 share together with the right to the exclusive possession of 1 unit of the Building.

(3) The First Owners were granted and/or reserved with the exclusive right to use, occupy and enjoy the Roof and all the units of the Building except for the unit already assigned to Chau Wing Keung.

(4) The First Owners subsequently sold and assigned all the remaining 63 shares together with the relevant exclusive right to use, occupy and enjoy each of the 63 units to various assignees under various assignments by 1965 (“First Assignments”).

(5) By virtue of the First Assignments, the First Owners disposed of all the shares of the Building and ceased to be a co-owner of the Building. However, none of the First Assignments disposed of the exclusive right to use, occupy and enjoy the Roof.

10.  On 1 February 1991, the IO was incorporated under the Multi-Storey Buildings (Owners Incorporation) Ordinance (Cap 344), the predecessor of the current Building Management Ordinance (Cap 344) (“BMO”).

11.  Fung’s father Fung Hing (“Fung’s Father”) started to work as a cleaner in the Building around the late 1970s or early 1980s and subsequently became a secretary of the IO after its incorporation responsible for the general administrative and sanitary affairs of the Building. He passed away on 12 July 2005.

12.  Fung’s Father was married to a woman named Cheung Bo Woon (“Fung’s Mother”) firstly by way of Chinese customary marriage on 5 December 1959 and subsequently registered under the Marriage Ordinance (Cap 181) on 9 December 1976. The couple raised a total of 9 children the youngest of which is Fung who was born on 26 May 1979. Fung’s Mother passed away on 4 June 2019. Apart from the present claim for adverse possession, no member of Fung’s family had ever acquired any proprietary interest in the Building.

13.  Various equipment and facilities of the Building were installed on the Disputed Roof or only accessible through the Disputed Roof including a fire door, TV antennas, an elevator room, water tanks, etc.

14.  Further, various additional structures were erected on the Roof (including both the Undisputed Roof and the Disputed Roof) by its occupiers over time (“Roof Structures”). By the time the present proceedings were started, the Disputed Roof had effectively been converted into a small apartment with additional walls and roofs installed using metal sheets, metal columns, bricks, tiles, wooden boards and other materials. The Disputed Roof has also been separated from the Undisputed Roof so that there is no access between the two parts of the Roof. The only access to the Disputed Roof is a staircase leading to the floor below. There are two doors installed at the top of the staircase. Right at the edge of the top stair, there is an iron gate of red colour with a lock (“Red Gate”). A couple of meters behind the Red Gate is a fire door without any lock.

15.  On 14 September 2012, the Building Authority (“BA”) issued a letter to the IO stating that the BA noticed that there were certain unauthorised structures erected on the Roof and demanded the demolition of those structures.

16.  In light of such a notice, the IO took various actions such as posting notices, issuing demand letters, obtaining a legal opinion, engaging contractors, etc., trying to comply with the notice of the BA between 2012 and 2019.

17.  On 8 April 2019, the BA issued an order for the demolition of the Roof Structures and restoration of the Roof pursuant to Section 24(1) of the Buildings Ordinance (Cap 123) (“BO”) on the basis that those Roof Structures were structures without approval or consent under Section 14 (“Demolition Order”).

18.  On 11 September 2020, the BA issued a direction under Section 5 of the Fire Safety (Buildings) Ordinance (Cap 572) requesting the IO to, inter alia, remove metal gates and metal frames at the front and rear escape staircase on the Roof including the Red Gate (together with the Demolition Order as the “Government Orders”).

19.  On about 10 February 2021, various metal sheets fell off the Roof causing damage to the patio of the Building.

20.  On 1 April 2021, the IO commenced an action in the Lands Tribunal (No. LDBM 68/2021) for recovery of possession of the Roof. The Respondent was stated to be the occupiers of the Roof without any names specifically identified.

21.  On 25 June 2021, the IO obtained a default judgment under LDBM 68/2021 (“Default Judgment”) against the anonymous occupiers.

22.  Subsequently, both Fung and Lee applied to set aside the Default Judgment, to be joined as a respondent of the action LDBM 68/2021 and to transfer the action to the District Court.

23.  On 29 July 2021, the BA further demanded the IO for compliance with the Demolition Order and warned about the potential criminal prosecution and liability against the IO.

24.  On 25 August 2021, Fung commenced an action in the District Court (No. DCMP 3313/2021) seeking declarations that it had obtained possessory title over the Disputed Roof having dispossessed the IO by virtue of Sections 7 and 17 of the Limitation Ordinance (Cap 347).

25.  On 19 July 2021 and 30 August 2021, the Presiding Officer of the Lands Tribunal, Judge M Wong, set aside the Default Judgment against Fung and Lee respectively, joined Fung as the 2^nd Respondent, joined Lee as the 3^rd Respondent, and ordered that the action LDBM 68/2021 be transferred to the District Court with the new action number DCCJ 4519/2021.

26.  On 12 December 2022, a default judgment was entered against Lee and the 1^st Defendant under DCCJ 4519/2021 to the effect that, inter alia, they were liable to demolish and remove the structures built, erected, maintained and/or occupied by them on the Undisputed Roof and to deliver vacant possession of the Undisputed Roof.

27.  On 9 February 2023, the action DCMP 3313/2021 and the action DCCJ 4519/2021 were ordered to be consolidated.

C. ISSUES

28.  It is the Plaintiff’s case that:

(1) Fung is occupying the Disputed Roof as a trespasser who erected and maintained the Disputed Structure without proper authority of the IO hence liable to vacate the premises and to remove the Disputed Structure.

(2) There is no adverse possession in that:

(a) There is no sufficient evidence to establish a continuous uninterrupted exclusive possession of the Disputed Roof for the requisite period of time.

(b) The occupation of the Disputed Roof by Fung’s Father and Fung’s Mother was not adverse to the co-owners of the Building.

(c) There was no requisite animus possidendi.

(3) There is type (iii) private nuisance (interference with enjoyment) (as discussed in Cheng Lai Yin v Liu Yee Mui [2022] HKCFI 940 at [51])[1] on the ground that:

(a) The Disputed Structure constituted unauthorised building works that contravened Sections 14 and 40(1AA) of the BO.

(b) The occupation of the Disputed Roof amounted to ‘material change of use’ of buildings which contravened Sections 25(1) and 40(2) of the BO.

(c) Fung’s wilful and reckless acts in his continued reinstalment and placement of metal sheets and other materials on the Disputed Roof and neglect of the Government Orders have exposed the IO to a significant risk of enforcement by the BA, caused severe damages and risk of further damages to the properties of co-owners of the Buildings, obstructed the fire escape route and exit and substantially interfered with the enjoyment of the Building by the co-owners.

(d) Fung must know or must be taken to know that his acts/omissions would cause such imminent dangers, damages and risk of enforcement to the owners of the Building.

(e) As an occupier of the Disputed Roof (but not otherwise as a person entitled to possession thereof), Fung is under a duty to remove the nuisance hazards emanating from the Roofs.

29.  It is the 2^nd Defendant’s case that:

(1) Fung has never been a co-owner of the Building and has been in adverse possession of the Disputed Roof since 1976 when Fung’s Father started occupying the premises. Hence, Fung is entitled to the possessory title of the Disputed Roof and the IO’s right to the premises is extinguished.

(2) Alternatively, if there was any permission or licence granted by the co-owners of the Building to Fung’s Father, such permission or licence lapsed in 2005 upon the death of Fung’s Father. Thereafter, Fung has been in adverse possession of the Disputed Roof together with his mother. After Fung’s Mother passed away in 2019, Fung started to be in adverse possession of the Disputed Roof on his own.

(3) Fung and his family erected and maintained the Disputed Structure as their home. This structure has all along been in good repair and the falling of metal sheets, debris, and other objects alleged by the IO did not originate from the Disputed Structure and had nothing to do with Fung.

30.  The parties used to dispute the ownership and the right to use, occupy and enjoy the Disputed Roof. However, by the time of the trial, it was already the consensus of the parties that by reason that the First Owners had already alienated all the undivided equal shares of the Building but failed to assign the exclusive right to use, occupy and enjoy the Roof to any of their assignees, such exclusive right became extinguished and reverted and vested in favour of all co-owners of the Building. The Roof therefore became a common part of the Building by 1966 at the latest.

31.  Such consensus is indeed in accordance with the law as laid down in cases such as Modern Sino Ltd v Art Fair Co Ltd [1999] 3 HKLRD 847 at [27]-[40]; Incorporated Owners of Cheong Wang & Cheong Wai Mansion v. HKSAR [2001] 1 HKLRD 483 at [11]; and King Prosper Trading Limited v Urban Renewal Authority (HCAL 56/2009, unrep, 17.12.2010) at [74]-[75], [86]-[92].

32.  During the trial, it was also clarified by the parties that they share the consensus that the operation of the BO is such that a duty is imposed upon the paper owner of a particular piece of land to remove unauthorised structures. This remains the same even if the paper owner has been dispossessed by a squatter by way of adverse possession.

33.  Again, such consensus is in line with the authorities such as The Incorporated Owners of Tak Fan Lau v The Building Authority [2021] HKCFI 902 at [43].

34.  I would like to add that authorities such as King Glare Ltd v Secretary for Justice [2008] 6 HKC 450 at [44] suggest that the word “owner” under Section 24 of the BO should be given a wide meaning to extend beyond the general meaning of legal ownership to facilitate enforcement actions against unauthorised structures. It follows that an order under this section to remove unauthorised structures may well be served on a squatter who has obtained a possessory title.

35.  In other words, if Fung is successful in establishing his possessory title over the Disputed Roof, both the IO and Fung may be liable under the BO.

36.  The IO also pleaded and once argued that even if there was adverse possession, Fung is still bound by the DMC and in turn Sections 34H and 34I BMO which provided certain deemed covenants under a deed of mutual covenant. However, by the time of the first day of the trial, the IO conceded this point in light of the authoritative statement of the law to the contrary effect in Wong King Lim v Incorporated Owners of Peony House [2013] 4 HKC 295 at [43]-[45].

37.  It follows that the remaining issues between the parties focus on whether Fung could establish adverse possession over the Disputed Roof and whether Fung is liable for the private nuisance of interference with enjoyment.

D. EVIDENCE

38.  Before diving into detailed discussions, it is pertinent to highlight a few general features of the evidence adduced by the parties.

39.  Firstly, there is limited documentary evidence available from both sides compared with what one would normally expect to see in this kind of case.

40.  Secondly, there is limited oral evidence either. Neither Fung’s Father nor Fung’s Mother was in a position to provide any evidence for the obvious reason that they both passed away before the present legal proceedings were commenced. Fung as the only witness testifying on behalf of the 2^nd Defendant did not have personal knowledge of a lot of the relevant matters. Moreover, none of the eight elder brothers and sisters of Fung was called to testify.

41.  On the other hand, Pang Chung Yam (“Pang”), the sole witness testifying on behalf of the IO, also had limited personal knowledge about the matter only. He has been living in the Building since it was erected and has been involved as a member of the IO since its incorporation. However, he was young in the 1970s and 1980s and was not involved in the affairs of the Building during that period. He could only testify about what he had heard from his father about the circumstances under which Fung’s Father started to occupy the Disputed Roof.

42.  Thirdly, during the course of their oral evidence, I note that the evidence of both witnesses was less than convincing at various places, because of lack of particulars, being inconsistent, illogical, against other available evidence, inherently improbable or even upon their own admissions of inaccuracies. I do not blame them given their limited knowledge and the difficult task they were facing to account for events that dated back for some decades. However, I remind myself that I need to be particularly careful with the oral evidence of the witnesses in those circumstances.

43.  In this regard, I was urged by Mr Tan, counsel for the 2^nd Defendant, to bear in mind the reminder of Stock JA in Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at [135] that in cases dealing with events which took place long before trial, the better guidance may be to test the assertions of the parties by reference to contemporaneous documentation where it exists, or to its absence where one would expect it to have been created, as well as to inherent probabilities (though bearing in mind that there may be occasions where the truth may run against that particular grain) having regard to all the facts that are known. On the other hand, I also duly notice that in that case, contemporaneous documentation assumed a special importance where there was a host of them, something that cannot be said to be the case in the present proceedings.

E. ADVERSE POSSESSION

44.  Logically, it is opportune to consider the issue of adverse possession first.

E.1 General Legal Principles

45.  The general legal principles on adverse possession are well settled and not disputed.

46.  A person seeking to establish title to land by adverse possession has to prove he has, in respect of that land and for a requisite period stipulated under the Limitation Ordinance (Cap 347): (i) factual exclusive possession; and (ii) intention to possess (animus possidendi): Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55 at 68E-69A; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [40].

47.  The requisite period would be 20 years if adverse possession commenced before 1 July 1991 and 12 years if it commenced on or after 1 July 1991: Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556 at [26]-[50].

48.  Factual possession is basically physical control and dealing with the land as an occupying owner might have been expected to deal with it and that no one else had done so. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. It should be exclusive, continuous, open, visible and notorious. It must not be equivocal, occasional, or for a special or temporary purpose. What acts constitute a sufficient degree of exclusive physical control depend on the circumstances, in particular the nature of the land in question and the manner in which land of that nature is commonly used or enjoyed: Powell v McFarlane (1977) 38 P & CR 452, at 470-471; JA Pye at [41]; Tsang Foo Keung & Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527 (CA) at [22(2)]; Cheng Ka Shing v Bonus Plus Company Limited [2020] HKCFI 277 at [22].

49.  Intention to possess or animus possidendi is the intention to possess the land in one’s own name and on one’s own behalf, to the exclusion of the world at large, including the owner with the paper title so far as is reasonably practicable and so far as the process of the law will allow. The intention must be plain and unequivocal. It is to be distinguished from an intention to own or even an intention to acquire ownership: Powell v McFarlane at 471-472; JA Pye at [42]; Tsang Foo Keung [22(3)]; Cheng Ka Shing at [23].

50.  An intention/willingness on the part of the squatter to pay rent for the use of the land if requested by the owner demonstrates that he does not intend to exclude the owner with the paper title but shows that he is treating himself as enjoying possession under the lawful title from the owners. His intention was not adverse or “as of wrong” but was “as of right” and inconsistent with the intention to claim possession for the purpose of adverse possession: Wong Tak Yue at 68H-69G.

51.  The intention must also be made clear to the world. 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 owners as best as he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. If a squatter acts in accordance with the true owner’s requests, he does not manifest the intention to exercise control over the land to the exclusion of the true owner: Powell v McFarlane at 472; Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at [7]; Gotland Enterprises Limited v Kwok Chi Yau & Ors (CACV 260/2014, unrep, 19.1.2016) at [54]-[58]; Jourdan and Radley-Gardner on Adverse Possession, 2^nd Ed at §§9-92 to 9-94.

52.  The intention is often inferred from the acts of the squatter. Enclosure of land or locking or blocking of the only means of access have been considered to be the classic acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an animus possidendi: Powell v McFarlane at 477-478.

53.  The person claiming adverse possession has the burden of proof. The paper owner does not have to plead any positive case or call any witness. He is entitled to rely on his paper title. He may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the burden. The burden has been described as “heavy” or “very high”, and the relevant evidence the squatter has to adduce must be “compelling” or “clear and affirmative”, though this does not alter the standard of proof, which remains the balance of probabilities: Powell v McFarlane at 472, 476; Wu Yee Pak v Un Fong Leung [2005] 2 HKLRD 169 at [5]; Birkenhead Properties and Investments Limited v Lam Kai Man & Anor (HCMP 1588/2012, unrep, 12.1.2016) at [13], [20].

54.  In this regard, it has been stressed that the court should treat any self-serving statement with scepticism, whereas statements against interest would usually be accorded with considerable weight: Wong Tak Yue at 69A-C; Birkenhead Properties at [13].

55.  Where the adverse possession has been continuous, the squatter can add up the periods of adverse possession of previous adverse possessors even though there has been no assignment of possessory rights: Sze To Chun Keung v Kung Kwok Wai David & Another [1997] 1 HKLRD. 885 (PC) at 888I-J; Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70 [4].

56.  A period of adverse possession may cease upon one of the five situations: (a) by the occupier vacating the premises, (b) by the occupier giving a written acknowledgement of the true owner’s title, (c) by the true owner’s grant of a tenancy or licence to the occupier (even a unilateral licence), (d) by the true owner physically re-entering upon the land; or (e) by the paper owner commencing legal proceedings for possession. For (d), acts short of actual repossession by the paper owner such as posting a demand for re-entry or a failed attempt for re-entry are not sufficient: Markfield Investments Ltd v Evans [2001] 1 WLR 1321 at [12]; Higgs v Leshel Maryas Investment Co Ltd [2009] UKPC 47 at [57].

57.  In relation to repossession, unlike the squatter, the paper owner’s burden is much lower. The slightest acts done by him will be found to negative discontinuance of possession because an owner who has the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved: Powell v McFarlane at 472; Tang Tak Sum v Tang Kai Fong [2015] 1 HKLRD 286 at [39]; Kan Yau Shan & Anor v Mo Yiu Mut & Anor [2018] 2 HKC 492 at 499-503; Wu Yim Chung v Lo Wai Ching & Anor [2019] HKDC 806 [50]–[51].

58.  Such acts of the paper owner however do not refer to acts of whatever nature having something to do with the land. They must be more than merely symbolic acts or acts done in preparation for taking back possession. In the ordinary case, one must find that the true owner took possession in the ordinary sense of that word, to the exclusion of the squatter: Kan Yau Shan at [4.7], [4.14]; Sarah Sally Chan Kent (executrix of the estate of Ruby Jim Sunyou alias Ruby Kang You Jim (Nee) Wong, deceased) v Chim Sau Ching and Another [2021] HKCA 648 at [81].

E.2 Evidence Adduced by Fung

59.  By way of oral evidence, Fung stated that his parents were already in exclusive possession and occupation of the Disputed Roof on 9 December 1976 when they registered their marriage. Ever since he could remember, he had been living in the Disputed Structure as his home together with his parents and eight siblings. The Disputed Structure was erected on the Disputed Roof consisting of a small yard as well as several roofed areas or rooms (including two bedrooms, one living room, one dining room, one shower room and one toilet) of about 1085 sq ft. It was fitted with the necessary utilities such as electricity wires, water pipes, and internet connection. The only access to the Disputed Roof was the staircase connecting the Disputed Roof and the 10/F of the Building. This access was fully enclosed by a red metal gate installed with a lock, i.e. the Red Gate. Only Fung’s parents had possession of the key to the lock. Fung’s parents passed away and his siblings moved out but he has been living in the Disputed Structure continuously up to the present date to the exclusion of all other people.

60.  Fung further testified that Fung’s Father was involved in the management of the Building before the IO was incorporated. He later worked as the secretary of the IO after it was incorporated until 2003 when his health deteriorated. Fung’s Father passed away on 12 July 2005. After Fung’s Father’s departure, Fung continued to stay together with his mother until his mother passed away on 4 June 2019. During that period, Fung got married to his ex-wife who stayed with him in the Disputed Structure between November 2006 and 2013. He then married again with his current wife in 2016 who has been staying with him in the Disputed Structure since then. Fung’s daughter has always been staying in the Disputed Structure together with him ever since she was born in July 2008.

61.  To supplement the lack of first-hand oral evidence, Fung sought to rely on various contemporaneous documents including, inter alia:

(1) The marriage certificate of Fung’s parents dated 9 December 1976 which specified that their “Residence at the time of marriage” is “85, Tai Po Road, Roof Top, Kowloon”.

(2) A deposit advice and a bill issued by China Light & Power Company Limited to Fung’s Father dated 1 November 1979, the address upon which is stated to be “Roof Top Structure, 79-85 Man On Bldg, Tai Po Rd”.

(3) A primary school student handbook of Fung for the school year 1991-1992, which recorded Fung’s address to be “大埔道85号民安大廈12樓”, i.e. the Roof, as Man On Building only has 11 floors.

(4) The Death Certificate of Fung’s Father dated 14 July 2005, which recorded Fung’s Mother’s address as “ROOF, 12/F, MAN ON BUILDING, NO. 85 TAI PO ROAD, SHAM SHUI PO, KOWLOON”.

(5) The Grant of Letter of Administration of the Estate of Fung’s father dated 27 March 2006, which recorded Fung’s parents’ address as “香港九龍大埔道85號12樓”.

(6) Fung’s daughter’s birth certificate dated 14 July 2008, which recorded Fung’s address as “FLAT 85, 12/F, MAN ON BUILDING, 85 TAI PO ROAD, SHAM SHUI PO, KOWLOON”.

(7) Fung and his current wife’s marriage certificate dated 24 March 2016, which recorded their address as “TAI PO ROAD, SHAM SHUI PO, KOWLOON”.

(8) A telephone and internet application confirmation letter issued by Hong Kong Broadband Network to Fung dated 10 March 2018, which recorded Fung’s address as “FLT 85 11/F MAN ON BUILDING 79-85 TAI PO ROAD SHAM SHUI PO KLN”.

(9) A utility bill issued to Fung’s Mother by the Water Supplies Department dated 24 December 2020, which recorded the address to be “11/F, MAN ON BUILDING, 85 TAI PO ROAD, SHAM SHUI PO, KOWLOON”.

(10) Various photos claimed to have been taken on the Disputed Roof when Fung was still a child, when he already grew up and together with his wife and kid, and about the Disputed Roof generally.

(11) The application form of the IO for registration of owners as a corporation dated 12 November 1990, which put Fung’s Father’s address as “Roof of Man On Building, No. 85, Tai Po Road, Kowloon”.

62.  The various addresses recorded in Fung’s documents are sometimes described as 12/F (or 12樓 in Chinese) and sometimes described as 11/F. However, it is common ground that Fung never owned or occupied any property in the Building apart from the Disputed Roof currently in dispute. The only reasonable inference was that the 11/F and 12/F were both referring to the Disputed Roof and the difference was caused by the difference in the Chinese language and the English language.

E.3 Evidence Adduced by the IO

63.  Pang was the only witness who testified on behalf of the IO. He was the vice chairman of the IO when it was incorporated in 1991 and acted as its chairman between 1993 and 2022. His family has been living in the Building since its completion in 1964.

64.  According to him, he heard from his father about the following:

(1) Fung’s Father was first retained by the co-owners of the Building as a cleaner responsible for cleaning the public areas and public facilities and collection of service fees in the 1980s. Fung’s Mother sometimes helped him discharge these duties.

(2) The co-owners then allowed him to use the Disputed Roof as his working area to store his work tools and equipment. He was also allowed to stay in the Building from time to time in order to perform his functions for the general maintenance of the facilities of the Building.

65.  Pang further stated that upon its incorporation, the IO considered Fung to be a helpful hand and continued to employ him for the various administrative affairs of the Building with the title of secretary. His job duties include maintenance, cleaning, and also some other management duties such as collection of management fees and service fees according to the DMC. The IO therefore permitted Fung to stay as a manager or employee of the Building to facilitate the performance of his duties. Such permission was extended to his wife as well. Fung’s Father and his family had been paying management fees of the Building till about early 2010. All members of the IO or owners of the Building had free access to the Disputed Roof for various purposes such as installation and maintenance of TV antennas, elevator equipment, fire door or other facilities. To facilitate such free access, the Red Gate was never locked. Fung had never refused any agent of the IO’s entry of the Disputed Roof. Maintenance workers instructed by the IO would enter the Disputed Roof on a regular basis without notifying or asking Fung to open the Red Gate.

66.  In response to the documents relied upon by Fung, the IO pointed to some other documents including, inter alia:

(1) The Birth Certificate of Fung dated 20 August 1979 recording the address of Fung’s Mother to be an address in Lower Wong Tai Sin Estate, not the Disputed Roof.

(2) A name card of Fung’s Father without a date recording his titles to be the secretary of the IO (民安大廈業主立案法團秘書) and the chairman of the incorporated owners of another building named Wai Bun Building (渭濱樓業主立案法團主席).

(3) A statement prepared by Fung’s Father for another unrelated matter dated 17 May 2001. In the statement, Fung’s Father claimed to have been a manager of the Building for over 20 years responsible for its maintenance and sanitary works and public facilities.

(4) Various meeting minutes of the IO showing that the Disputed Roof had been used as the venue of its meetings.

E.4 Was there Continuous Exclusive Possession?

Possession by Fung and his family

67.  Mr But, counsel for the IO, submits that there was no evidence to show when, why, how, in what capacity and to what extent Fung’s Father and Mother started to occupy the Disputed Roof.

68.  I agree that the pleaded starting date of 9 December 1976 on the sole basis of the record of an address on the marriage certificate of Fung’s parents is rather arbitrary and unsustainable. Fung was not born at that time. He could, but chose not to, consult his elder siblings about events in the 1970s.

69.  On the other hand, Fung is adamant that he has been living on the Disputed Roof since he started to remember things. There are some, though less than comprehensive, pieces of evidence, such as pictures, certificates, public records, utility bills, etc., showing that Fung’s family including Fung had been living on the Disputed Roof and using this as their residence over the years between 1976 and 2020. The circumstances of the interior of the Disputed Structure shown in videos and pictures also exhibit wear and tear of the structure compatible with the situation of a residential apartment having been occupied for years.

70.  Even the evidence adduced by the IO does not seriously dispute such occupation.

(1) Pang did not dispute that he had seen and heard that Fung and his family had been living on the Disputed Roof for more than 30 years since at least before the IO was incorporated. Though understandably, he would not and could not confirm whether such residence was continuous, he admitted that he could see Fung’s Father and Fung’s Mother on a daily basis and they had resided on the Disputed Roof for more than 30 years.

(2) Pang also testified that Fung’s family had been paying management fees for the Disputed Roof until around 2010, which indirectly evidenced their occupation of the area at least until 2010. It is unclear when such practice started but the only record of payment of management fees is for the month of January 2002 indicating that it must have started sometime before that date.

(3) Pang talked to Fung’s Mother shortly after October 2012 who indicated that she was willing to vacate the premises, but such indication did not materialise which necessitated the IO to issue various further notices and warnings to the occupiers of the Roof between 2013 and 2021.

71.  In the circumstances, I am prepared to accept that Fung and his family had been occupying the Disputed Roof and the Disputed Structure since at least before the IO was incorporated in 1991. By any calculation, 20 years would have passed between 1991 and 2021, the year when the IO started to take legal action to evict Fung. In these circumstances, when exactly before 1991 Fung’s Father and Fung’s Mother started to occupy the premises does not make much difference.

Access by the IO

72.  The central issue between the parties is whether the possession and occupation were exclusive.

73.  It is Fung’s case that his family has fully enclosed the Disputed Roof by erecting the Disputed Structure, blocking the only access with the Red Gate and having exclusive control of the keys to the gate.

74.  It is not disputed that the Disputed Structure was not erected in one go but gradually developed over time. Nonetheless, the evidence is rather lacking in showing how such development progressed. Pang testified in a general manner that there was first a canopy, then a wooden shed, then the current structure and agreed that they seemed to have been constructed by Fung’s family but could not provide more details.

75.  From the pictures and videos available, the Red Gate does appear to have been in existence for some years, but no concrete evidence has been adduced to show when, why and how the Red Gate was erected, and by whom. Fung’s assertion that his parents kept the keys to the Red Gate may imply that the gate was already in existence before the death of Fung’s Father in 2005. Pang’s evidence suggests that the Red Gate had been in existence for 20-30 years but he did not say anything about the circumstances under which the gate was installed. Without more details about the installation of the Red Gate, the argument of Fung of an enclosure of the Disputed Roof as evidence of both his exclusive possession and his intention is weaker.

76.  The IO does not dispute that Fung’s family kept the keys to the only access but argues that despite the existence of the Red Gate, the area was freely accessible and had indeed been regularly accessed and used by the IO to exercise its right over the area. The IO placed heavy reliance on the case of Gotland Enterprises Limited. In that case, physical possession was found not to be exclusive because the relevant area was not fenced off, there was no measure adopted to secure exclusive occupation apart from a few instances of stopping unwelcome visitors, but there was evidence of persons authorised by the registered owner entering the land to produce films and to conduct a survey of the land (see [36]-[37]).

77.  It is Pang’s evidence that all the co-owners could freely access the Disputed Roof for various purposes such as conducting inspection or maintenance work and installing antennae or other equipment providing services to the owners of the Building.

78.  During cross-examination, Fung admitted that the IO carried out various works, some of which are conducted regularly, on or within the vicinity of the Disputed Roof, including:

(1) Installation and repair of various TV antennae serving units below as affixed onto the parapet walls in the 1980s or 1990s;

(2) The erection (and dismantling) of scaffolding which inevitably involves entry, use and control of the Disputed Roof;

(3) Installation and replacement of the fire door; and

(4) Changing the door between the lift motor room and the Disputed Roof.

79.  I accept that not all the above works were carried out exclusively within the area of the Disputed Roof and some of the facilities and equipment are placed outside the area of the Disputed Roof. Nevertheless, it could hardly be disputed that a significant portion of those works were carried out on the Disputed Roof. Even for the rest of the works carried out outside the Disputed Roof, agents of the IO or co-owners would have to go through the Red Gate and use part of the Disputed Roof in order to carry out those works.

80.  In this regard, the installation and replacement of the fire door stands in a particularly important position. The fire door is located in the middle of the Disputed Roof. It goes directly against the argument of exclusive possession when the owner freely erects and maintains a structure on the disputed land for its own purpose without any obstruction from the squatter.

81.  More importantly, there are videos taken by Pang in early 2022 about the Disputed Roof whereby he went through the Red Gate and into the Disputed Structure himself without consulting Fung. I note that this was after the present action had commenced, but there is no suggestion that the practice was any different before or after the commencement of the legal action. As shown in one of the videos, there is a dedicated string installed on the Red Gate so that the person outside the Red Gate could easily pull the string to unlock the Red Gate and have access to the Disputed Roof. From the look of it, this device has been installed for some years. By reason of the existence of such a device, it could be said that the Red Gate is practically unlocked.

82.  Mr Tan queried the motive and the timing of Pang’s trips to the Disputed Roof taking videos. However, the core undisputed fact is the existence of the string that makes the Red Gate and the Disputed Roof accessible by the owners and the IO, taking away much force from the argument about exclusive possession by retaining keys to the Red Gate.

83.  Fung asserted during cross-examination that this string would only be attached in case the IO needed some work to be done and there was no member of his family present to open the Red Gate to facilitate such work. That, however, apparently was not the case during the two occasions when those videos were taken by Pang. I, therefore, reject Fung’s evidence in this regard. In any event, even assuming such a device was only attached at the request of the IO, the cooperation of Fung and his family with the IO’s access and use of the Disputed Roof is a strong indication of lack of exclusive control. Instead of excluding the paper owner, Fung and his family went all the way to make sure that they did not obstruct the IO’s use of the Disputed Roof.

84.  Pang testified that there has never been any occasion whereby an attempt of the IO to enter the Disputed Roof had been obstructed or denied. Correspondingly, despite his attempt to argue exclusive possession, Fung could not provide any single incident whereby he or his family ever rejected the request of the co-owners or the IO to have access to the Disputed Roof. He also could not provide any details about how appointments were required to be made for the IO to have access to the Disputed Roof. This largely negates Fung’s self-serving statement that prior consent from him or his family is needed. The trips by Pang to the Disputed Roof captured in the videos are examples of visits without an appointment and the existence of the string facilitating access without an appointment.

85.  I should add that these entries and occupation do not include the IO’s attempt to recover possession of the Disputed Roof or demolish the Disputed Structure but the evidence is not clear as to what exact attempts of the IO were resisted by Fung and in what manner, apart from the fact that Fung and his family refused to move out or demolish the structure despite notices given by the IO.

86.  It appears that the IO used to utilise the Disputed Roof as the place to hold its meetings. However, I cannot accept the argument of Mr But that this must mean the Disputed Roof is part of the common area under the possession of the IO. There is hardly any evidence as to how the venue of a meeting of the IO was selected apart from a few meeting minutes (which are far from complete) recording this to be the case on some occasions. Even the limited documentation available shows that the meetings may be held at private places. At least one meeting held on 22 June 1992 took place in the unit of the 9/F of No. 79 of the Building, a private unit.

87.  Members of the IO, including Pang’s mother, regularly entered the Disputed Roof to chat or play mahjong with Fung’s Mother but I do not find this fact to be of any significance.

88.  Looking at the matter from another angle, Mr But submits that the free and uninterrupted access and use of the Disputed Roof qualify as the “slightest acts” to constitute repossession of the Disputed Roof by the IO relying on cases like Tang Tak Sum, Kan Yau Shan and Wu Yim Chung. Unlike the cases in this area which are usually concerned with the question of whether repossession occurred on certain defined occasion or occasions, there is no such defined occasion here. The relevant acts are regular and constant. There are at least monthly accesses for inspection of the elevator. They are sometimes extensive and of prolonged periods of time such as a major renovation of the Building in 2017. They have been continuing since the very beginning of the alleged period of adverse possession. It is not the pleaded case of the IO that it repossessed the Disputed Roof on a particular date. In my judgment, the real question here is whether there was sufficient exclusive possession in light of the IO’s regular and largely uninterrupted use of the Disputed Roof rather than any repossession.

Other Addresses

89.  Mr But further pointed to various documents showing that there were at the material time two other addresses used by Fung’s Father.

90.  The first is an address at Lower Wong Tai Sin Estate recorded on the birth certificate of Fung. As far as Fung could tell, his family originally lived in the address at Lower Wong Tai Sin Estate and later moved from this address to the Disputed Roof though he could not give any specific date as to when exactly such relocation occurred or any further particulars as he was just born at that time.

91.  The second is an address in Wai Bun Building, judging from the title of the chairman of the incorporated owners of that building printed on a name card of Fung. Nevertheless, there is little information about this address beyond this name card.

92.  Mr But invited the court to draw an inference that Fung could not have resided on the Disputed Roof when he had other addresses to stay. With little information about the circumstances, I do not find this argument to be appealing.

93.  Considering all the circumstances discussed above, I find that the present case is in fact stronger than the cases like Gotland Enterprises Limited that Mr But has drawn to the attention of the court. The IO and the co-owners had at all material times enjoyed at least a significant degree of the use of the Disputed Roof. Whilst residing on the Disputed Roof, Fung’s family had taken positive and extensive steps to make sure that their occupation did not disturb the co-owners’ and the IO’s use of the Disputed Roof. The absence of any one single incident whereby the squatter in any way denied or obstructed the paper owner’s regular and frequent use of the land is telling. Such occupation can hardly be said to be exclusive vis-à-vis the paper owner.

E.5 Was the Possession Adverse?

94.  Following my finding on the lack of exclusive possession on the part of Fung, Fung’s claim for adverse possession must fail. However, given the full evidence and submissions already presented before me, I will go on to discuss the other elements of the adverse possession claim as well.

95.  There is no dispute that Fung’s Father had been employed by the co-owners and the IO for various administrative and maintenance works of the Building. It is the IO’s case that by reason of the nature of the work, Fung’s Father had been given a licence to stay on the Disputed Roof.

Any Permission/Licence Granted by the IO or the Co-owners of the Building?

96.  In this regard, Fung’s evidence is inconsistent.

(1) In an affirmation dated 12 July 2021 filed by Fung under LDBM 68/2021, he claimed that Fung’s Father was authorised to stay on the roof to manage the Building:

“本人的爸爸媽媽在這大廈結婚，當年起這座樓宇大業主委託本人父親管理這座大廈，給予本人父親住在天台”.

(2) The same statement was repeated in another affirmation of Fung dated 22 July 2021 under LDBM 68/2021 where he stated:

“本大廈起樓的大業主委託本人父親馮興住在天台管理這幢大廈”.

(3) In his witness statement, Fung tried to change his evidence and alleged that this was only what he heard from his mother when he was small and he did not know who this principal landlord was and there was no documentary evidence in this regard. He then argued that he believed that there was no authorisation according to the materials that he obtained.

(4) During the cross-examination, Fung explained that he made the affirmations in LDBM 68/2021 in a hasty manner without legal advice so that he could fend off the claim of the IO and he had no way to verify the truthfulness of the statement. He agreed that he only changed his evidence after consulting lawyers.

97.  Following the well-established principles elaborated above, I will accord much more weight to the admission of the existence of a licence in Fung’s affirmations than his attempt to change the story subsequently.

98.  I also agree with Mr But that there is no reason why Fung’s Mother would have lied to him about the position. This statement of Fung’s Mother is corroborated by Pang’s evidence that he also heard from Fung’s Mother that she was willing to vacate the Disputed Roof shortly after the IO posted a notice requesting occupiers of the Roof to vacate the premises on around 6 October 2012.

99.  On the other hand, the IO’s case also suffers from a lack of particulars, evidence and internal inconsistency. There is a scarcity of documentary proof of any licence or permission granted, not to mention the nature and exact content of such a licence. Pang’s assertion that some co-owners allowed Fung’s Father to stay is devoid of the particulars of when the licence was granted, who exactly granted the licence, and what terms the licence was under. It is rather unsatisfactory for the IO to generally assert that there must have been some kind of permission granted by the co-owners. I also note that there is a retainer contract of Fung entered into between the IO and Fung’s Father on 7 September 1991 but it stated nothing about accommodation or licence to stay. In his oral evidence, Pang struggled between the pleaded case of the IO of permission granted and the affirmation he made before the Lands Tribunal stating that there was no permission. Ultimately, he confirmed his evidence to be that the IO never granted any licence to Fung’s Father or Fung’s Mother to allow them to reside on the Disputed Roof.

100.  In this regard, the IO relies heavily on the collection of management fees from Fung’s family:

(1) There is some evidence about the collection of management fees from Fung’s family as the occupier of the Disputed Roof in the same manner as the collection of management fees from the owners of various units of the Building. This appears to be the effect of a hand-written record of the collection of management fees for January 2002 entitled “2002年一月份管理費每戶250元” which includes a table showing all units of the Building plus two separate units on the roof and an indication against each unit of whether the management fees had been paid “收” or had not been paid “欠”. Regrettably, this is the only piece of record of the collection of management fees and the IO could not produce any other receipt or record relating to management fees at all, which does raise some query. Pang’s explanation of the loss of records because of a change of management company is hardly convincing.

(2) However, it is undisputed that this only available record was prepared by Fung’s Father who was responsible for the collection of management fees. So the blame to a certain extent may be on both sides for not producing contemporaneous documents.

(3) Pang testified that according to his memory, Fung’s Father and Fung’s Mother paid management fees until around 2010. He did not explain on what basis he could remember this to be the date when payment of management fees by Fung’s family stopped. This year is co-incidentally just 11 years, i.e. 1 year short of the 12-year period for adverse possession, before the IO first started legal action to recover possession of the Disputed Roof by way of LDBM 68/2021.

(4) By comparison, Fung has no personal knowledge of what happened relating to the management fees.

(5) Whilst we may not know the full details of the payment of management fees, I reject Fung’s case that no management fee was ever paid by Fung’s Father or Fung’s Mother. The authenticity of the record of January 2002 is not disputed and the content of payment by the occupier of the Disputed Roof with an indication of “收” is clear.

(6) When there is evidence of such payment of management fees, without any further evidence or even hypothesis to the contrary, it appears difficult for Fung to persuade the court that such payment stopped at some unspecified date which is earlier than 2010.

101.  The effect of collection of management fees in cases concerning adverse possession of common areas in a multi-story building has been considered in Incorporated Owners of Chungking Mansions v Shamdasani [1991] 2 HKC 342 at 356F which was later followed in 北角建業大廈業主立案法團 v Profit Wisdom Investment and Anor (LDBM 211/2014, unrep, 15.12.2015) at [40]–[41] and 華都大廈（高士威道）業主立案法團 v 譚建華所經營裕華皮鞋 [2021] HKDC 1475 at [131]–[136] to have the following effect:

“The collection of management fees for the A units is an unequivocal act of permission to occupy from the owners incorporation, albeit they were then labouring under a mistake of law and, perhaps, of facts as well.”

102.  I do not find Mr Tan’s attempt to distinguish these authorities from the present situation on the basis that the squatter in the Chungking Mansion case was a co-owner to be convincing. Mr Tan has not explained how the inference of the existence of a licence would differ between cases where the licensee is a co-owner and cases where the licensee is not.

103.  Mr Tan complained that the IO did not expressly plead the payment of management fees as the basis of the permission. I do not accept that submission. The existence of permission has been expressly pleaded by the IO. The payment of management fees is just one piece of evidence supporting the existence of such permission and hence against the necessary adverse possession that Fung is obliged to prove.

104.  In the circumstances, despite the unsatisfactory state of evidence, I am driven to conclude that there was indeed some kind of permission or licence granted by the co-owners and the IO allowing Fung’s family to occupy the Disputed Roof.

The Ambit of the Permission/Licence

105.  The IO’s case, however, suffers a fatal flaw in this regard even if a licence could be established.

106.  As Mr Tan submitted, according to the pleadings of the IO and the evidence of Pang himself, such permission, even if put to the highest, was only for Fung’s Father to temporarily stay and occupy the Disputed Roof. No one ever permitted Fung or his parents to make the roof a permanent residence with an unauthorised structure like the Disputed Structure in the IO’s case.

107.  Such absence of licence and permission was indeed the basis of the IO’s case against Fung in LDBM 68/2021 that the IO never permitted Fung’s Father to reside on the Disputed Roof.

108.  In this regard, Mr Tan drew my attention to two authorities to the effect that possession is still adverse despite the existence of a licence if the possession was in breach of such a licence.

(1) Jourdan and Radley-Gardner on Adverse Possession, 2^nd Ed §6-28 stated:

“They considered whether user falling outside the scope of the licence was capable of constituting possession, notwithstanding the continuing existence of the licence. It is considered that this is the right question. It is well established that, where a licence is given for a specific purpose and the licensee uses the land for a purpose not permitted by the licence, that amounts to trespass. Accordingly, if unlicensed acts, which constitute a trespass, are sufficiently extensive to satisfy the requirements of exclusive possession, and are accompanied by the manifested intention to possess, then the existence of a licence authorising a limited use of the land falling short of possession should not prevent the licensee from being in adverse possession.”

(2) In Li Yau Kee Wan v Cheung Sing Man (HCA 67/2006, unrep 3.5.2007) at [16], in rejecting a defence to a claim for adverse possession, Poon J (as he then was) held that:

“16. Leaving the factual dispute aside, Mr Chan submitted that the Licence, even if established, does not assist the defendant. The Licence allowed Mr Wong to use and enjoy the Disputed Area. On any view, the Uncle could not have, under the Licence, granted permission to Mr Wong and Madam Yau to build a house, thereby erecting a permanent structure thereon. When they did so in 1974, that would have been in flagrant breach of the Licence, rendering them trespassers since then: see Hillen & Pettigrew v ICI (Alkali) [1963] AC 65. I also agree.”

109.  I find these authorities to be directly applicable here. There is a clear mismatch between the licence pleaded by the IO and the acts of erecting and staying in the Unauthorised Structure as a permanent residence. Even if there was a licence, the acts relied upon by Fung went far beyond the ambit of the licence.

110.  In these circumstances, I find that the licence granted by the co-owners and the IO could not cover the possessory acts relied upon by Fung.

111.  It follows that the possession was indeed adverse.

E.6 Was there Animus Possidendi?

112.  Any self-serving statement of Fung about his intention is of little value. Neither Fung’s Father nor Fung’s Mother in any way testified about their intention. We need to look at all the circumstances to see what inference could be drawn from the acts of Fung and his family.

Fung’s Father’s Work as a Secretary/Manager of the Building

113.  It is common ground that Fung’s Father had been working for the Building at the material times until shortly before he passed away and his stay on the Disputed Roof was connected with his job duties. His position has been described as a cleaner, a secretary, or a manager. The job duties were described in his retainer contract (委任合約) dated 7 September 1991 and a statement of Fung’s Father dated 17 May 2001 to include cleaning rubbish and miscellaneous items placed in the common area, cleaning stairs, cleaning the bottom of lift shafts and the patio, inspecting and reporting any damage to public facilities and collecting recording and reporting monthly management fees.

114.  Mr But argues, and I agree, that given his position and duties, Fung’s Father’s access to the common areas of the Building including the Disputed Roof must be connected to his position and job duties and his stay on the Dispute Roof is no different from an employee staying in a staff’s quarters offered by the employer. Moreover, when Fung’s Father was acting as a member of the staff under the authorisation of the co-owners or the IO all these years, he could not have held an intention to exclude the owners of the Building.

115.  Still further, it must render the impression more ambiguous to the world as to whether Fung’s Father was staying in a particular part of the common area of the Building as an employee or agent authorised by the co-owners or as a trespasser intending to exclude the owners as best as he can. This ambiguity is strengthened by Fung’s Father’s involvement in the application for the incorporation of the IO on behalf of the co-owners of the Building and the fact that he put in the address of the Disputed Roof as his address in his capacity as the secretary of the management committee of the intended incorporated owners as well as the address of the proposed registered office of the IO.

The IO’s Access and Entries into the Disputed Roof

116.  I have discussed the evidence regarding the status of the Disputed Structure, especially the fact that the Red Gate was not locked in reality and that the co-owners and the IO had free or at least largely uninterrupted access to the Disputed Roof for the benefit of the co-owners of the Building for purposes such as the installation and maintenance of various facilities and equipment.

117.  Mr But stressed that there was no unequivocal manifestation of the intention to possess. He referred to the case of Gotland Enterprises Limited at [45]-[47], [54]-[58] whereby the acts of fish farming and duck rearing carried out were found to be equivocal and unable to establish an intention to possess when the registered owner had unrestricted access to the land or property and exercised such access.

118.  I agree that the same rationale is applicable to the present case. The largely free and uninterrupted access and use by the paper owner and the full cooperation on the part of Fung’s family to facilitate such access and use strongly militates against the existence of animus possidendi and more importantly, any manifestation of such intention.

Payment of Management Fees

119.  I have already discussed and found from the evidence available that Fung’s Father and Fung’s Mother did pay management fees to the co-owners and/or the IO to be able to occupy the Disputed Roof.

120.  As discussed above, it is well established under Wong Tak Yue that a willingness to pay rent to the paper owner if so requested defeats an allegation of an intention to possess. A fortiori, actual payment of rent to the paper owner would have the same effect. Since the rationale of this principle is that a willingness to pay is a recognition of the title of the paper owner and an indication that the squatter did not intend to exclude the owner, the nature of the fees paid or to be paid does not really matter. It is the willingness to pay the paper owner that is inconsistent with an intention to exclude him. It follows that a willingness to pay or actual payment of any fees to the paper owner in exchange for the right to occupy the relevant land is equally inconsistent with the requisite animus possidendi. This was indeed the holding in cases like 北角建業大廈業主立案法團 at [40] and in華都大廈（高士威道）業主立案法團 at [133], [149]-[150].

121.  Mr Tan sought to argue otherwise, relying on the first instance judgment of Sarah Sally Chan Kent (executrix of the estate of Ruby Jim Sunyou alias Ruby Kang You Jim (Nee) Wong, deceased) v Chim Sau Ching and Another [2019] HKCFI 3066 where Deputy High Court Judge Paul Lam SC held that:

“23. There is no requirement that the occupier must believe his possession is unlawful. In Ho Hang-wan v Ma Ting-cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649, the squatters succeeded although they always regarded themselves as licensees, although the licence had been terminated upon the paper owner’s death. […]”

122.  This statement derived from the decision of Ho Hang Wan v Ma Ting Cheung as Personal Representative of Ma Sz Tsang, deceased [1990] 1 HKLR 649. That case, however, is very much a case on its own facts where the squatter had gone into possession as a licensee, but the licensor had died unbeknown to anybody, and the squatter simply remained there. It presumed the intention to possess after the expiry of the license from the absolute physical possession in the absence of any other evidence to the contrary.

123.  Li CJ in the case of Wong Tak Yue at 69G-I specifically limited the effect of Ho Hang Wan to its own special facts:

“I should refer to the judgment of the Court of Appeal in Ho Hang Wan v Ma Ting Cheung (Personal Representative of Ma Sz Tsang, deceased) [1990] 1 HKLR 649 on which reliance was placed by Mr Erik Shum. I would make three observations. First, there is nothing in that judgment which is inconsistent with the approach I have adopted here. Intention is a question of fact and in determining it, the court has to assess all the circumstances. Secondly, the decision should be regarded as one on its own special facts. The Court presumed the requisite intention from the occupier’s exclusive possession after the termination of the licence by death of the licensor although the licensee did not receive notice of death. Thirdly, there is nothing on the facts in that case equivalent to the evidence we have here of the fourteenth defendant’s intention as regards the payment of rent.”

124.  Similarly, the facts are very different in our case. There is no death of the licensor and various pieces of evidence on the intention of Fung’s family are available.

125.  Furthermore, as established in Cheung Leung Tak v 張秀雯 & Cheung Chi Hung [2018] 5 HKLRD 579 at [70], for a former licensee claimed to be in adverse possession after the expiration of the licence, it is a question of fact to be considered in all the circumstances of the case whether the continued occupation is with the necessary animus possidendi after the expiration of the original licence.

126.  It follows that the actual payment of management fees is at least a strong factor against the existence of any animus possidendi. Even though I have reservations as to the IO’s case that the payment of management fees stopped in 2010, Fung has no alternative case of his own as to when it actually stopped, not to mention proving that animus possidendi arose after the payment was stopped.

The Intention of Fung’s Mother

127.  The Disputed Roof was not included as an asset of Fung’s Father’s estate, apparently because Fung’s Mother as the administratrix did not report so. Mr But argues that this shows that Fung’s Mother did not regard the Disputed Roof as having been owned by Fung’s Father. However, that is not relevant for the present purpose. The authorities are clear that the requisite intention is an intention to possess, not an intention to own.

128.  As I have already concluded, much more weight should be accorded to the statement of Fung against his interest that he heard from his mother that his father was indeed authorised by the owners of the Building to stay. Whether or not such a statement had a solid basis or could be verified by Fung to be true, it represents the intention and understanding of Fung’s Mother, which, in all probabilities, was the same as that of Fung’s Father. This is corroborated by evidence from Pang that he also heard from Fung’s Mother that she was willing to leave when the IO requested so on around 6 October 2012. As Mr Tan conceded, after the decease of Fung’s Father, Fung’s Mother was in charge of the affairs as the matriarch of the family. I therefore find that in stating that Fung’s family was permitted to occupy the Disputed Roof by the owners, Fung and his family held and expressed an intention that is contrary to the necessary animus possidendi required.

129.  This is an issue different from the effect and ambit of the licence which was discussed above. It is perfectly possible for a licensee to act as a trespasser in contravention of the restrictions in a licence and hence have exclusive physical possession of the property but unable to establish an intention to possess. Tsang Foo Keung at [63] is a good example.

130.  Mr Tan argues that such an indication even if true is inconclusive as Fung’s Mother did not vacate the Disputed Roof. I agree with Mr But that the subsequent development could be because Fung’s Mother changed her mind afterwards, but it could also be due to other reasons such as impecuniosity, elderly age, and practical difficulties, just to name a few. Fung has adduced no evidence to prove one way or another. In any event, any change of mind after 2012 would not provide sufficient time for adverse possession to arise.

Conclusion on Intention

131.  In my finding, the more likely fact on the balance of probabilities is that the family of Fung had always been occupying the Disputed Roof with the understanding that they had been authorised by the co-owners and/or the IO to stay as a fringe benefit of Fung’s Father working for the Building. For that reason, management fees were paid, the Red Gate had not been locked, and Fung’s family had always been accommodating to the access and use of the Disputed Roof by the co-owners and the IO for various purposes of their own. This is the position even up to the time when Fung filed his affirmations in the Lands Tribunal action LDBM 68/2021 in July 2021. It is for that reason that he tried to defend that action on the basis of permission and authorisation. He only changed his position and perhaps intention afterwards. In other words, Fung’s family had at all material times intended to occupy the Disputed Roof “as of right” with the permission of the owners, not “as of wrong” to exclude the owners until Fung changed his intention sometime after July 2021.

132.  At the very least, the conduct of Fung and his family is subject to more than one interpretation and they had not manifested an intention to possess unequivocally.

E.7 Conclusion on Adverse Possession

133.  By reason of my decision above, the 2^nd Defendant has not established either factual exclusive possession or animus possidendi. His case on adverse possession is therefore rejected.

F. NUISANCE

F.1 Legal Principles

134.  The relevant legal principles on private nuisance have recently been comprehensively reviewed and stated by Madam Recorder Eva Sit SC in Cheng Lai Yin at [51] as follows:

“(1) A private nuisance is committed by a person doing, on his own land, something which he is lawfully entitled to do, but the consequences of which extend to the land of his neighbour by (i) causing an encroachment on his neighbour’s land; (ii) causing physical damage to his neighbour’s land; or (iii) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land…

…

(3) For nuisance of type (iii) (interference with enjoyment), it must be a real interference with the comfort/convenience of living according to standards of the average man, and the discomfort must be substantial to any person occupying the plaintiff’s premises. All the circumstances, including the time of the commission of the act complained of, the place of its commission, the manner of committing it, and the effect of its commission (whether the effects are transitory or permanent, occasional or continuous) have to be taken into account in determining whether the matter complained of is or is not productive of sensible personal discomfort such as to be regarded as nuisance… No financial or physical damage needs to be proved.

(4) Whether proof of negligence of a defendant is required depends on the nature of his conduct – if he deliberately or recklessly uses his land in a way which he knows will cause harm to his neighbour and such harm is considered unreasonable infringement of his neighbour’s interest in the latter’s property by the court, he is liable for foreseeable consequences of his unreasonable user; if he knew or ought to have known that in consequence of his conduct harm to his neighbour is reasonably foreseeable, he is under a duty to prevent such consequences as are reasonably foreseeable; if the defendant is said to be continuing a nuisance, proof of negligence is essential…

(5) In nuisance cases the plaintiff is prima facie entitled to an injunction if the court finds that there has been an unlawful interference with his use and enjoyment of the land that may be continued or repeated in the future, and will be denied only if special circumstances exist…

(6) As to damages:-

(a) Where damage to property has been caused, the general rule is that the measure of damages is the difference between the money value of the owner’s interest in property before and after the damage was done and not the cost of repair.

(b) Where the nuisance involves interference with amenity and enjoyment of property the court must place a value on an intangible loss which cannot be assessed mathematically, by assessing the notional reduction in the rental value of the afflicted property, or assessing damages generally referring as appropriate to decided cases insofar as they are helpful, or a mixture of the approaches above….”

F.2 Analysis

135.  The IO’s case in this regard is a bit convoluted. I will endeavour to deal with each element raised one by one.

Fallen Objects and Dangerous Structure

136.  By the time of the trial, it was clear that the fallen objects during the typhoon period claimed by the IO fell off the Undisputed Roof rather than the Disputed Roof occupied by Fung. That part of the IO’s case therefore does not concern Fung.

137.  The IO tried to rely on certain parts of a video to show that there was debris on the top of the Disputed Structure. However, the video is short and the image captured is unclear as to the nature and character of the objects located on top of the Disputed Structure. It is also Fung’s unchallenged evidence that those objects have been removed.

138.  In short, the IO has adduced insufficient evidence to prove that the Disputed Structure poses any danger to the Building or its residents or anyone.

Asbestos Materials

139.  The IO referred to the admission by Fung that asbestos materials were used as part of the building materials of the structure. However, no further particulars whatsoever are provided. We do not know how much asbestos was involved, where they were placed, and how they were used. The IO also adduced no evidence to prove the danger associated with these materials, not to mention that this is not part of its pleaded case.

140.  I reject the IO’s argument that the mere presence of asbestos materials in the Disputed Structure without more constitutes a nuisance.

Use of the Disputed Roof and the Building

141.  The IO also referred to various other matters affecting the IO’s use of the Disputed Roof such as the extra use of lifts, staircases, blockage of fire escape routes, and the loss of place of refuge for occupiers of the Building in case of fire, loss of use or obstruction to other communal building facilities and amenities.

142.  These matters, however, are contradicted by part of the IO’s own case which is accepted by this court as elaborated above, especially the fact that Fung’s family had been in full cooperation with the IO’s requests for the use of the Disputed Roof so that the IO had had largely free and uninterrupted use of the Disputed Roof at all material times.

143.  There is hardly any evidence on the extra use of lifts, staircases or other facilities by Fung and his family, the additional loading created by the existence of the Disputed Structure, or the level of fire risk.

144.  This part of the IO’s case is also rejected.

The Government Orders

145.  The key basis of the IO’s claim is the potential enforcement actions by the government under the Government Orders. Mr But puts the IO’s case as follows:

(1) The IO was exposed to serious and imminent risk of enforcement of the Government Orders as ‘owner’ of the Roof vis-à-vis the government under the regime of the BO;

(2) By virtue of Fung’s possession, the IO was prevented from complying with the Government Orders and removing the risks of a substantial fine and risks of imprisonment on a continual basis;

(3) Non-compliance with the said orders will create liability on the part of the IO which would in turn be a title defect from the perspective of purchasers and adversely affect the title of all units of the Building and their value/marketability to purchasers.

146.  As held in the Cheng Lai Yin case, this type (iii) nuisance is concerned with “a real interference with the comfort/convenience of living according to standards of the average man” and “sensible personal discomfort”. Clerk & Lindsell on Torts 24^th Ed §§19-08 to 19-09 also described the nature of this type of nuisance to “generally arise from something emanating from the defendant’s land” and focuses on “the general inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves”.

147.  Mr But wants to enlarge the ambit of this type of nuisance relying on Fearn v Board of Trustees of the Tate Gallery [2024] AC 1 at [12] which held:

“A second fundamental point, directly relevant in this case, is that there is no conceptual or a priori limit to what can constitute a nuisance. To adapt what Lord Macmillan said of negligence in Donoghue v Stevenson [1932] AC 562, 619 the categories of nuisance are not closed. Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in the land is capable of being a nuisance”

148.  This paragraph stresses the diversity of the means by which nuisance may be caused, but it does not lose sight of the fundamental requirement of the nature of interference being caused in order for nuisance to arise. Not every kind of interference, even if it may affect the value of the property, is a nuisance. Lord Leggatt JSC went on to hold at [13],[21], [24], [25] that:

“13. Frequently, such interference is caused by something emanating from land occupied by or under the control of the defendant which physically invades the claimant’s land. This may be something tangible, as where - to take a recent example - an incursion of Japanese knotweed from neighbouring land gave rise to a claim: see Williams v Network Rail. Or it may be something intangible, such as fumes, noise, vibration or an unpleasant smell. In all such cases, however, the basis of the claim is not the physical invasion itself but the resulting interference with the utility or amenity value of the claimant’s land. Moreover, there is no requirement that the interference must be caused by a physical invasion and, as commentators have pointed out, there are many cases which do not fit this model…

…

21. In applying these principles, the first question which the court must ask is whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land…

…

24. Fundamental to the common law of private nuisance is the priority accorded to the general and ordinary use of land over more particular and uncommon uses. In Fleming v Hislop (1886) II App Gas 686, 691, the Earl of Selborne encapsulated this well when he defined a nuisance as “what causes material discomfort and annoyance for the ordinary purposes of life to a man’s house or to his property…

25. One aspect of this core principle is that an occupier cannot complain if the use interfered with is not an ordinary use…” [emphasis added]

149.  The existence of the Government Orders and their potential enforcement may be an encumbrance on the title of the owners of the Building, but they are not an interference with the “comfort/convenience of living”, “utility or amenity value”, or “ordinary use” of the Building and does not affect “senses or nerves” or cause any “sensible personal discomfort”.

150.  This perhaps explains why neither party has been able to provide any case law ruling on the point of whether the risk of enforcement following the issuance of a building order or other similar government order created by certain activities could constitute a nuisance.

151.  The closest case is Chan Wing Tong v The Incorporated Owners of Kam Chung Building (Jaffe Road) and Others [2024] 2 HKLRD 1. However, in that case, the arguments relating to private nuisance focused on the fire risk created by the occupation of a scavenging lane by the squatter. The existence of a building order or potential order to be issued under Section 9 of the Fire Services Ordinance (Cap 95) was only discussed as relevant evidence or a factor to be considered about the existence and significance of the fire risk caused, which may constitute an interference if it was sufficiently high and imminent. It was never suggested that the risk of any government order being made or enforced against the paper owner under a statute itself is sufficient to constitute interference in the sense of private nuisance. No nuisance was found in that case despite the existence of an order from the BA for the removal of unauthorised works and the risk of an order to be issued under the Fire Services Ordinance (Cap 95).

The Same Land

152.  Moreover, the IO’s case in this regard suffers a more fundamental defect. The conduct it complained of occurred on the Disputed Roof. The interference by way of the issuance of the Government Orders and the potential risk of enforcement of those orders occurred to the IO in its position as the owner of the Disputed Roof. In other words, both the conduct and the interference occurred on the same land.

153.  This is contrary to the fundamental principle of a private nuisance for the misconduct to occur on the land occupied by the defendant and for the interference to be extended to the neighbouring land. This is part of the general principles summarised in Cheng Lai Yin ([51(1)] in particular) as discussed above, and also confirmed in Fearn at [12] and Clerk & Lindsell at §19-06.

154.  The IO here is not in a position to rely on the trespassory conduct of Fung on the Disputed Roof to constitute interference over the IO’s enjoyment of the same land.

155.  I therefore reject the IO’s claim based on private nuisance.

G. RELIEF

156.  By the time of the trial, the IO has abandoned the claim for mense profit. It maintained its prayer for damages but has not adduced any evidence in support of the same. I am not minded to grant any damages in the total absence of evidence.

157.  By reasons of the aforesaid, I make the following orders:

(1) An order against the 2^nd Defendant to forthwith demolish and remove the Disputed Structure at their own costs;

(2) An order that the 2^nd Defendant do deliver up vacant possession of the Disputed Roof to the Plaintiff;

(3) An order that the 2^nd Defendant be restrained from preventing reasonable access to the Plaintiff to the Disputed Roof to remove the Disputed Structure and reinstate the Disputed Roof;

(4) The 2^nd Defendant’s counterclaim under DCCJ 4519/2021 be dismissed; and

(5) The Amended Originating Summons dated 25 August 2021 and amended on 7 September 2021 under DCMP 3313/2021 be dismissed.

158.  The IO is the overall successful party, but it is unsuccessful on the nuisance issue, which is rather separate and distinct from the issue of adverse possession. In my view, it is just that Fung should be able to recover the costs of the nuisance issue. On a broad brush basis, I consider that the adverse possession issue took up around 75% whereas the nuisance issue took up around 25% of the time and costs spent.

159.  After the set-off of the costs between the two broad issues, on a nisi basis, I order the 2^nd Defendant to bear 50% of the Plaintiff’s costs of the whole Consolidated Action, including any costs reserved, with certificate for counsel to be taxed if not agreed.

160.  The above order nisi shall become absolute in the absence of application to vary within 14 days hereof.

Appendix