WONG SHING TIT v. FUK WAH LAM AND OTHERS

DCCJ 1385/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1385 OF 2010

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BETWEEN

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JUDGMENT

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Introduction

1.  By this action, the plaintiff claims the possessory title of 7lots of land situated in Ta Kwu Ling, New Territories, namely, Lot Nos 627, 629, 630, 631, 632, 634 and 636 in Demarcation District 84 (“the disputed land”).

2.  The defendants are the registered owners of the disputed land in the following manner:-

Lot No	Owner
627	1st defendant (“D1)
629	2nd defendant (“D2”)
630	3rd defendant (“D3”)
631	4th defendant (“D4”)
632	5th defendant (“D5”)
634	D4
636	D3

3.  D1 to D3 were represented by Mr Chu of counsel at the trial whereas D4 and D5 neither filed a defence nor appeared at the trial.

The disputed land

4.  The disputed land has a total area of 21,990 square feet.  For ease of reference, a Lot Index Plan is annexed to this judgment.

5.  It should be noted that the piece of land between Lot 634 and 636 is Government land.

6.  On the western side of the disputed land, there is a channel running along the boundary, with a difference in height of about 1 metre.

7.  On the eastern side of the disputed land is a slope. There is a track on the top of the slope. The height of the slope is about 3 metres.

Site visit

8.  At the invitation of the parties, a site visit was paid on 9 April 2014.  20 photographs were taken and were marked as exhibit J1 to J20 respectively.

The plaintiff’s case

9.  It is the plaintiff’s case that he has been in adverse possession of the disputed land since 1981.

10.  In early 1981, the plaintiff was hired by one Mr Lam to do the road repair works on the opposite side of the disputed land.  He discovered that the 5 small houses built of iron-sheets erected on the disputed land were unattended.  He moved in and stayed in one of the houses without asking for permission from anyone.

11.  The plaintiff commenced farming on the disputed land shortly after moving in. 

12.  In 1983, the boss of a nearby pigsty, a Mr Law, whom he was told was the boss of the disputed land, moved bags of cleaning powder to the disputed land. The said Mr Law requested the plaintiff to guard the cleaning powder and promised to pay him for such service. However, the plaintiff was never paid as promised. He only met the said Mr Law once or twice and did not see him after 1983.

13.  After the closure of a nearby pigsty sometime between 1983 and 1985, the plaintiff was asked by several persons for several hundred dollars for using the disputed land. The plaintiff did pay to those people money 2 to 3 times for 3 years up to 1987 for safety reason. 

14.  In early March 2009, one Mr Lam Kin Kam who claimed to be the son of Madam Yuen Kam Mui, deceased (who was the administratrix of the estate of Mr Lam Kwok Hung, deceased, ie the registered owner of Lot 632), requested the plaintiff to enter into a tenancy agreement.  The plaintiff refused such request.

15.  The plaintiff claims that he was in occupation of the disputed land and has carried out extensive repairs and renovation of the 5 and/or 4 small houses thereon first as his matrimonial home and later as residence for his family.

The case of D1, D2 and D3

16.  The case of D1, D2 and D3 is simple. They denied that the plaintiff has been in continuous and exclusive possession of Lots 627, 629, 630 and 636 since 1981.

17.  As a side issue, they made it a point that the appointment of a Lam Leung Kwan as the administrator de bonis non of D5 in December 2012 was after the Order of Master Own and Master B Mak (as they then were) in 2010 and 2011 respectively. It is submitted that the proceedings against D5 should be stopped pending proper service of these proceedings on the said Lam Leung Kwan (“Lam LK”). 

The issues

18.  The issues for determination by this trial are the following :-

(1) Whether the plaintiff has acquired possession of the disputed land since 1981; and

(2) If so, whether the plaintiff has the requisite intention to possess.

Legal principles on adverse possession

19.  To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai (No.2) (1997-98) 1 HKCFAR 55.

20.  Section 7(2) of the Limitation (Amendment) Ordinance 1991 provides:-

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

21.  Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply : see Section 38A of the Limitation Ordinance (“LO”) and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33.

22.  Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

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

23.  Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … 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.”

24.  Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“… What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner … A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass … In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner … I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

Limitation period

25.  The plaintiff claims that he has acquired possession of the disputed land since 1981.  The relevant limitation period at the material time was 20 years and it had not expired by 1 July 1991. By the operation of section 38A of LO, the old limitation period of 20 years applies. There is no dispute between the parties on this issue.

Whether the proceedings against D5 should be stayed?

26.  On 28 February 2011, I (as a Master of the District Court) gave leave to the plaintiff to proceed with the proceedings against D5 in the absence of any person representing the estate of the deceased. I also directed that all documents in the proceedings be served on D5 at No 10 Shan Kai Wat Tsuen, Ta Kwu Ling, New Territories, Hong Kong (“the said address”).

27.  Lam LK was appointed as Administrator de bonis non of the estate of D5 on 30 July 2012, whose address was also the said address.

28.  The registration of the Letter of Administration was processed by Messrs Leung Kin & Co, the solicitors firm acting for D1 to D3. In particular, both matters were handled by the same solicitor, Miss Leung Ki Hin, Constance.

29.  After this action was set down for trial, a Notice of Trial was sent by the District Court to D5 at the said address on 6 March 2014.

30.  I am satisfied that Lam LK has had sufficient notice of these proceedings and it was his conscious decision not to take part in this action nor to defend on behalf of the estate of D5.

31.  In these circumstances, I do not see any prejudice would be done to D5. Therefore, the trial should be allowed to proceed against all 5 defendants.

Whether the plaintiff has acquired possession of the disputed land since 1981?

32.  It is necessary to consider the degree of physical control the plaintiff has demonstrated over the disputed land.

33.  The plaintiff testified that he when he moved into the disputed land, there were 5 small houses with no one living therein. As there were basic irrigation facilities, he commenced farming on the disputed land. He resided in one of the houses whereas the other houses were used as storage of farming tools and miscellaneous items. His farming activities gradually ceased from 1995 onwards.

34.  The following aspects of this case call for analysis.

Residence

35.  The plaintiff said from 1981, he moved into one of the small houses on the disputed land and used it as his residence until the time of his witness statement (April 2013). He also used the other small houses for storage. 

36.  The eldest daughter of the plaintiff, Miss Wong Man Lai (“Wong ML”), who was born on 20 December 1982, said in her witness statement that she was residing on the disputed land since childhood up to the time of the statement (April 2013). Contrary to what was stated in her witness statement, she admitted in her testimony in court that from 2008, she was residing elsewhere from Mondays to Fridays. Starting from November 2013, she rented a place to live on her own.

37.  The youngest son of the plaintiff, Mr Wong Man Pun (“Wong MP”), who was born on 9 June 1985, said that he was residing on the disputed land since birth until the time of his witness statement (April 2013). 

38.  There is no dispute from the defendants. In fact, Madam Yuen Hop Sheung (“Yuen HS”), the wife of D2, confirmed in cross-examination that the small house on the left hand side in the picture at 187 of bundle 2(a) was the residence of the plaintiff whereas the small house on the right hand side of the same picture was used for the storage of farming tools.

39.  The evidence of Miss Chan Ka Man Carmen (“Miss Chan”), assistant supervisor of the Social Welfare Department, who spoke from the file of the plaintiff’s Comprehensive Social Security Assistance (“CSSA”), confirmed that when the plaintiff applied for CSSA on 19 December 1989, his reported address was “Hut, Lee Uk Sun Tsuen, Ta Kwu Ling”. The same address was recorded as the home address in the Birth Certificate of Wong ML. However, the plaintiff made a declaration on 17 November 2004 (“2004 declaration”) that he was living alone and all 3 children were living in school hostels. In another declaration dated 16 November 2005 (“2005 declaration”), the plaintiff declared that his eldest daughter Wong ML and son Wong Man Chun (“Wong MC”) had graduated from universities and that they had moved out. They only visited him occasionally. The youngest son Wong MP was a 2^nd year student of the Hong Kong Polytechnic University. He was living in school hostel. Therefore, he was living alone. Neither the plaintiff nor his children offer any explanation to such evidence.

40.  In my view, the plaintiff, Wong ML and Wong MP have been less than truthful in their evidence. According to Wong ML’s own admission in court, she did not reside on the disputed land since 2008. Yet, she still claimed that she was residing on the disputed land in her witness statement in April 2013.  However, the truthfulness of her admission as such is thrown into doubt by her father’s 2004’s and 2005’s declarations. According to the plaintiff, she had moved out of the disputed land since her university years, which was before 2004. So is the evidence of Wong MP. In his witness statement, there was no mention that he was not residing on the disputed land when he was attending university. He specifically stated that he has been residing on the disputed land continuously for 27 odd years. The plaintiff claimed that both himself and members of his family are residing on the disputed land until the time of his witness statement in April 2013. His evidence as such is indeed contradicted by his own 2004 and 2005 declarations.

41.  On the evidence before me, I find that the plaintiff did use the small houses on the disputed land as his residence and for members of his family since 1981. The children moved out sometime in 2004 when school hostels were available to them. In the case of Wong ML, she did not live on the disputed land since then.  

Farming

42.  The plaintiff said he grew different kinds of vegetables single-handedly on the disputed land since 1981. His farming gradually ceased from 1995 onwards. Apart from farming, he all along grew different kinds of fruit trees on the disputed land including jackfruit, longan, star fruit and mango etc.

43.  Wong ML gave a detailed account of the use of the various lots in relation to the farming and the growing of fruit trees :

Lot No	Use
627	potato
629	pear, jackfruit, longan, mango, sugarcane, tomato
630	longan and farming
631	chayote, longan, farming
632	spring onion, ginger, jackfruit, longan,
634	papaya, jackfruit, longan
636	farming

44.  Wong MP said the plaintiff used to farm on the disputed land. However, a few years after the death of his mother, the farming ceased gradually from the middle of the 1990s. The plaintiff continued to grow fruit trees on the disputed land mainly of longan and jackfruit, 1 or 2 Chinese Wampee trees, star fruit and mango. In recent years, lychee trees are grown as well. The plaintiff only occasionally grew vegetables on a small scale to meet the need of the family.

45.  Mr Helicon Ma (“Mr Ma”) and Mr Eric Tang (“Mr Tang”) are the land surveying experts respectively called by the plaintiff and D1 to D3. They have studied the historical aerial photographs of the disputed land from 1980 to 2012. Both of them agreed that there were conspicuous cultivation patterns on the disputed land between 1980 and 1983 and also between 1985 and 1990. Rows of trees were planted on Lot 630 in the years of 1982, 1983 and 1985. In 1991, weeds were observed on the disputed land but there was cultivation pattern on Lot 636. In 1992, there were conspicuous cultivation patterns again on the disputed land. In 1993, inconspicuous cultivation pattern was observed on Lots 636 and 630 whereas in 1994, such pattern was only seen on Lot 636. From 1995 onwards, weeds and trees were observed on the disputed land with the exception that in March 1999, cultivation pattern was seen on Lot 627 and the southern portion of Lot 629.

46.  In my judgment, the observation of both experts largely supports the plaintiff’s case that his farming on the disputed land took place in the 1980s. The scale of farming was reduced from 1991, which coincided with the tragic death of the wife of the plaintiff on 29 April 1990. 

47.  However, there is a dispute as to whether or not the plaintiff was farming the whole of the disputed land.

48.  Yuen HS is the wife of D2. She said she used to farm on a portion of Lot 629 from 1970 until 1982. At the material time, she did not realise that in fact Lot 629 was larger than the area that she was farming. She was in fact farming the northern portion of Lot 629. The remaining southern portion of Lot 629 was farmed by one Mr Wong Bing Tin (“Wong BT”) from the 1970s until the middle of the 1990s. Wong BT also farmed the land of D1 (ie Lot 627) from the 1970s. D3’s land which was near the hill (ie Lot 630) was farmed by one Mrs Hui in the 1970s.

49.  Her evidence is in direct contradiction to the case of the plaintiff as far as Lot 629 is concerned. Naturally, she was extensively cross-examined by Mr Lee, counsel for the plaintiff.

50.  Her evidence was heavily criticized by Mr Lee, counsel for the plaintiff, as unreliable. The attack on her reliability is framed in this way :-

(a) in the defence, it was pleaded that she farmed the central part of Lot 627;

(b) under cross-examination, she said she farmed the northern part of Lot 629;

(c) in her evidence, she said there was only 1 irrigation tank on the western part of Lot 629 whereas there was a 2^nd irrigation tank on the eastern part of Lot 629 and a 3^rd one at the junction between Lot 627 and Lot 629;

(d) both in the defence and in her witness statement it was stated that Wong BT had farmed the southern part of Lot 629. No mention was made that Wong BT and one Mrs Hui had farmed on the land of D1 or D3. It was only under cross-examination that she mentioned that Wong BT had also farmed on Lot 627 and that the said Mrs Hui also farmed on Lot 630;

(e) that she refused to accept that the disputed land is in the Hung Lung Hang area during cross-examination but nevertheless accepted that when questioned by the court.

51.  It must be appreciated that the boundary of Lot 629 was not demarcated by fencing at any time. To the farmers (the plaintiff, Yuen HS and Wong BT included), they were farming on a piece of land rather than on a particular lot of land.  That is the reason why Wong ML regarded Lot 627 together with the southern part of Lot 629 as the 3^rd field (第三塊田). By the same token, Yuen HS thought that she was farming the whole of Lot 629 which was later found to be a misconception.   

52.  When cross-examined, Yuen HS said she farmed the lower part of Lot 629, which is nearer to the north where there was an iron sheet house and the area that she farmed covered the major part of the lot. She maintained that she had not told her husband that she farmed the northern part of the farmland. The description by reference to direction was only given by her when questioned in court.  In such circumstances, she cannot be said to be contradicting herself by saying that she farmed the central part of Lot 629 as in her mind, she was farming the major part of the lot. The reference to direction was only a way to help describing the part of the land that she farmed.

53.  I accept that Yuen HS have used her best effort to describe the part of Lot 629 that she farmed.

54.  Under cross-examination, Yuen HS was asked in 1982, how many irrigation tanks were there on the land that she farmed. Her first answer was that she was not clear. It was only upon repeated questioning that she said there was one which she noticed. She did not notice the others. Then she described the location of the tank was on the west side of the land she farmed which was a few feet away. When it was put to her that in 1982, there were 2 irrigation tanks on the land that she farmed, she answered that she was not clear and she only used the water from 1 tank.

55.  I think the answers that she gave speak for themselves. She was not saying that there was only 1 irrigation tank on Lot 629. She admitted, quietly frankly in my view, that she did not pay attention. When further pressed, then she said she only noticed the one that she used.

56.  The fact that there were 2 irrigation tanks on Lot 629 and a 3^rd one at the junction between Lot 627 and Lot 629 can only be recognised when the boundary of the lots are clearly demarcated. As I have said, the boundary between different lots was not demarcated at the material time. One must not forget that Yuen HS was under a wrong conception as to the actual area of Lot 629. Such being the case, she cannot be criticized for not being able to tell the exact number of irrigation tanks on Lot 629 at the material time.

57.  In her witness statement, Yuen HS stated that when she was farming Lot 629, she saw Wong BT was also farming the land adjoining her land. She later came to know that in fact that was part of Lot 629.

58.  Under cross-examination, she was asked if Wong BT also farmed the land on the eastern and western side of Lot 629. The answer she gave was that he also farmed the land to the west but not to the east of Lot 629. She was further asked about the area of farming of Wong BT and whether he farmed the land of D1 and D3. It was under those circumstances that she gave further information about the area of farming of Wong BT, that he was seen farming on Lot 627, which belonged to D1 and also on D3’s land which was on the west side of Lot 629 (ie Lot 636); that in fact there was also one Mrs Hui who farmed on the land of D3 which was on the east side of Lot 629 and was near the hill (ie Lot 630). When she was asked why she did not say so in her witness statement, she said she was concentrating on her family’s land. There was no reason to mention other people’s land. 

59.  Again, I think the answers of Yuen HS speak for themselves. For obvious reason, when she gave her witness statement, she must be concentrating on the land which she or her family has an interest. To her mind, she was farming the whole of Lot 629 at the material time. It only came to her knowledge later that in fact Wong BT was also farming on part of Lot 629. That is something she ought to mention in her witness statement. That aside, there is nothing wrong for not mentioning the farming of the land which belonged to the other defendants. I do not see that she is contradicting herself.

60.  In cross-examination, Yuen HS was asked if the plaintiff was living in Hung Lung Hang (恐龍坑). Her initial answer was no because the area was called Cho Ha (灶下) by the village people. When asked for a second time, she said she only came to know that the area was called Hung Lung Hang when a fire broke out there recently. For the purpose of clarification, I asked her where is Hung Lung Hang. She answered that it is near the land of D3, adding that she had only heard of the name but no one told her where it is.

61.  It can be seen that Yuen HS had answered the question of counsel according to her personal knowledge. She was not refusing to accept the name of the area as Hung Lung Hang as counsel has put it.

62.  Wong BT was not called to give evidence at the trial. The evidence as to the farming of the disputed land came from the plaintiff, Wong ML and Wong MP on one hand and Yuen HS on the other.

63.  The plaintiff and his 2 children claimed that the plaintiff farmed the disputed land from 1981 and gradually ceased from 1995 onwards. Yuen HS claimed that Lot 629 was farmed by her and Wong BT from 1970 to 1982. After 1982, Wong BT continued to farm the southern part of Lot 629 until the middle of the 1990s. The part of Lot 629 that she used to farm was continued to be farmed by someone until the middle of the 1990s but she did not know by whom as she was only observing at a distance. When she was asked if Wong BT had farmed the land of D1 after 1982, she said the land was farmed by someone but did not know by whom as she was only observing at a distance.

64.  According to the Social Welfare Department record of the plaintiff, his wife, Madam Fung Fung Lan (“Madam Fung”), was diagnosed to have suffered from a brain tumour for which a brain surgery was performed in early March 1989. Due to the need to look after the children, the plaintiff was unable to concentrate on vegetable-growing. The social worker of Prince of Wales Hospital referred Madam Fung to the Social Welfare Department for public assistance. The application was however withdrawn on a home visit by the social worker on 26 June 1989 because both Madam Fung and the plaintiff, quite admirably, “wanted to stand on their own feet”. Madam Fung renewed her application on 15 August 1989 because of her ill health. In a declaration dated 30 August 1989, the plaintiff stated that due to the need to look after his wife who was sick and the young children, and the lack of water supply for the irrigation of his farmland, his income was reduced to $500 per month. Madam Fung passed away on 29 April 1990. In a home visit by the social worker in June 1990, the plaintiff informed the social worker that he would not be farming again as he needed to look after his children. In the subsequent home visits by the social workers on 6 February 1991, 7 June 1991, 7 October 1991 and 7 April 1992, the plaintiff was found to be not working because he must stay at home to look after his 3 young children. Also, his farmland was seen not growing any vegetable or crop.

65.  It is immediately apparent that the record of the social workers is in direct contradiction of the claim of the plaintiff.

66.  Due to the untimely death of his wife, the plaintiff had to assume the role of the mother. For this reason, there was an urgent need to look after his 3 young children: Wong ML, born on 20 December 1982, was 7 years old; Wong MC, born on 12 November 1983, was 6 years old and Wong MP, born on 9 June 1985, was 5 years old at that time. The plaintiff made no mention of how his farming was affected by the death of his wife. I find him to be less than truthful in his evidence.

67.  I see no reason to doubt the truthfulness of the records and observations of the social workers. I find as a fact that the plaintiff did cease farming after the death of his wife in April 1990.

68.  It should also be remembered that both experts agreed that in 1991, cultivation pattern was seen on Lot 636. Such cultivation must not be by the plaintiff but by someone else. The cultivation patterns that were observed on the disputed land in 1992 were unlikely to be the work of the plaintiff as he was seen not growing anything as at April 1992 and his children by that time were only aged 9,8 and 7 respectively. Similarly, the inconspicuous cultivation patterns on Lot 636 in 1993 and 1994 were unlikely to be the work of the plaintiff as they were probably the continuation of the work of someone other than the plaintiff who did the farming in 1991.

69.  Both Wong ML and Wong MP testified that it was the plaintiff who farmed the disputed land. If they do have the memory of their young age, they must not have mistaken as to identity of the person who farmed the disputed land after the death of their mother. Their evidence is contradicted by the evidence of the Social Welfare Department record. In this respect, I reject their evidence.

70.  Yuen HS struck me as an honest witness. Despite being extensively cross-examined by Mr Lee for the plaintiff, she was still consistent in her evidence and unshaken. When asked who farmed the northern part of Lot 629 after 1982, she fairly said that it was farmed by someone but did not know by whom because she was observing at a distance. Even when it was suggested to her by Mr Lee if it was Wong BT who farmed D1’s land after 1982, she still gave a similar answer because she was only observing at a distance. I prefer her evidence than those of the plaintiff, Wong ML and Wong MP.

71.  I accept that Yuen HS farmed the northern part of Lot 629 from 1970 to 1982. Thereafter, it was farmed by the plaintiff. The southern part of 629 and Lot 627 were farmed by Wong BT from the 1970s. Lot 630 was farmed by one Mrs Hui from the 1970s. As Wong BT did not give evidence at the trial, what he stated in his witness statement, though in direct conflict with the plaintiff’s case, was untested. I am not prepared to attach any weight to his witness statement. I am therefore bound to find that the plaintiff did farm on the other part of the disputed land from 1982. However, his farming ceased after the death of his wife in April 1990.

Growing of fruit trees

72.  The plaintiff also claims that apart from farming, he also grew fruit trees on the disputed land including pineapple, longan, star fruit and mango. Wong ML gave a more detailed account of the fruit trees that the plaintiff grew on different lots.

73.  According to the observation and interpretation of the historical aerial photographs of the joint experts, in the 1980s, trees and weeds were seen at the upper portion of Lot 629. As can be seen from the Appendices to Mr Tang’s report, the upper portion of Lot 629 is the northern part of the lot where there was no pattern of cultivation. Rows of trees were planted on Lot 630 in the years of 1982, 1983 and 1985. In the 1990s, trees were seen at the northern part of Lot 629. From 1999 onwards, weeds and trees covered the disputed land.

74.  As such, it seems that trees were grown in the northern part of Lot 629 in the 1980s and the 1990s. Planting of trees on Lot 630 was seen up to the middle of 1985 only. There is no objective evidence to support Wong ML’s claim that fruit trees were grown on Lots 631, 632 and 634 in the years before 1999.

75.  Whether or not the growing of fruit trees on trespassed land amounts to possession depends on the circumstances of the case. Cheung JA in Chow Tin Sang v Citihero International Ltd, CACV121/2012, 20/6/2013, unreported, at paragraph 33 pointed out :

“In an unfenced field, the planting of trees, the gathering of branches and the harvesting of fruits alone may not be a sufficient act of possession. The matter has to be considered in its context … In the words of Slade J in Powell v McFarlane (1977) 38 P & CR at 471, ‘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’ (emphasis added).”

76.  Deputy High Court Judge M Chan (as she then was) in Wai Wah Traders Ltd v Wong Yim trading as Creative Advertising Design Company and others, HCMP965/2000, 8/12/2011, unreported, considered in depth this very issue. In that case, the land concerned was planted with lychee trees. It was not enclosed by fence at any time though fence was erected on the southern boundary adjoining an adjacent lot. The trespassing defendant claimed that he and his father had cultivated the land in terms of weeding the land, trimming the trees, applying fertilizer and reaping lychees for sale. The learned judge took the view that land in Hong Kong is and was always valuable. It is distinguishable from the case of Cadija Unna v S Don Maris Appa [1939] AC 136, where, in Ceylon, grass was the only or main advantage accruing from the land, therefore, the cutting and selling of grass was held to be an act of possession. Her Lordship did not accept that the mere picking of lychee fruit from trees, the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, can constitute continuous and exclusive possession or control of the land. Her Lordship took the view that there should be some other act of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.

77.  In the present case, the growing of fruit trees was only in part of the disputed land. For reasons stated in paragraphs 73 and 74 hereof, I do not accept the evidence of Wong ML that fruit trees were also grown on Lots 631, 632 and 634 before 1999. In line with the view of Her Lordship in Wai Wah Traders (supra), which I respectfully agree, I do not accept that the mere growing of fruit trees as claimed by the plaintiff is sufficient to constitute an act of possession of the disputed land.

Enclosure

78.  Lord Walker LJ in Simpson v Fergus (2000) 79 P & CR 398 at 402 pointed out :-

“Possession is a legal concept which depends on the performance of overt acts, and not on intention (although intention is no doubt a necessary ingredient in the concept of adverse possession) … Actual occupation and enclosure by fencing is the clearest, and perhaps the most classic, way of establishing exclusive possession (though even enclosure is not invariably enough: see Marsden v Miller (1992) 64 P & CR 239).”

79.  The enclosure of the disputed land as claimed by the plaintiff therefore requires examination.

80.  Wong ML in her witness statement at paragraph 3 said that with the exception of the slope along Lot 634, the Government land, Lots 636 and 627 (which is the west side of the disputed land) , the disputed land was enclosed by wire mesh fence[1]. However, when cross-examined, she said the disputed land was surrounded by wire mesh fence with 4 entrances, as marked by her in exhibit P1.

81.  Wong MP in his witness statement said the disputed land used to be surrounded by wire mesh fence with 2 main entrances, one on the west boundary near the house where the family lived, the other was on the south side connecting to the road. Further, there was a gate on the east side leading to the grave on the hillside and another gate on the south western side leading to the adjacent field.

82.  The plaintiff in his witness statement mentioned about maintaining wire mesh fence short of describing their location. In his evidence-in-chief, he said the disputed land was surrounded by wire mesh fence of different heights. He maintained the same answer under cross-examination.

83.  Initially, in the joint statement of the experts, it was agreed that the disputed land was not enclosed by fence as observed from all historical aerial photographs.

84.  Nevertheless, the plaintiff’s expert, Mr Ma, paid a 2^nd site visit of the disputed land on 15 August 2013 purporting to illustrate more detailed information about the ground features. In his supplementary report dated 16 September 2013, inter alia, he added at paragraph 2(c) :

“Existing metal fence/hoardings were shown in green line surrounding the area of “the suit land”. Some portions of fence were not found at site.”

The green line, described as “broken fence”, commenced from a point outside the north eastern boundary of Lot 630, crossed through the middle of Lot 634, and then extended southward along the western boundary of Lots 634, the Government land, Lot 636 and ended on a point outside Lot 627.

85.  Mr Ma’s supplementary report necessitated a 2^nd site inspection by Mr Tang, the expert of the D1 to D3, on 28 November 2013. In his supplementary report dated 19 December 2013, he reiterated that from the photographs taken on the 1^st site visit on 18 March 2013, no broken fence could be found in the vicinity of the disputed land, including rusted iron bars. On his 2^nd site visit, he could not find broken fence enclosing the disputed land. However, he saw “some rusting iron bars, which were not embedded but resting on the ground, which were occasionally found in the vicinity”.

86.  In response, Mr Ma made a statement dated 2 April 2014, which contains the following comments:-

“1. Partial original fence were found mainly erected on Lot 632, Lot 634 and up to near a concrete water tank enclosing the eastern portion boundary of Lot 630 on Government land as shown on my site plan no.LBP/DN/002/846/627-M2 in green couloured line. (“Comment 1”)

2. The rusty net and fence pole were seen in photo 14 of Tang’s report near the water tank. (“Comment 2”)

3. Some ruined fence poles with small portion embedded in earth ground were found at site during my first visit in March, 2013. Mr. Wong, the son of Plaintiff told me that nets were fallen down and covered by dry grasses and would dig out for my survey in next visit. (“Comment 3”)

4. According to Mr. Wong’s information, the fence alignment in green coloured line was the original alignment of fence. This green alignment was marked on my survey plan indicating the original fence based on the existing ruined fence poles (without nets) along the western boundaries of Lots 627 and 636. (“Comment 4”)

6(sic). The rusty iron nets of the fence found by Mr. Tang during his 2^nd visit were probably later dug out from the buried grasses/soil for our inspection and survey in August, 2013. (“Comment 6”)

7(sic). An Identification Plan No.LBP/DN/002/84/627-P3 showing locations of broken ruined fence and some water pipes previous buried by earth and grasses for reference:

a. 2 photos (A and B) taken by staff of Director of Legal Aid on 21-Dec-2009;

b. 24 photos taken by our staff in August, 2013 and 29-Mar-2014. (“Comment 7”)

8(sic). Mr. Tang’s report refers to the limit of his 4 lots “627, 629, 630 and 636” known as the “Subject Lots” while our client’s original fence for the limit of 7 lots “627, 629, 630, 631, 632, 634 and 636” known as “the suit land”. (“Comment 8”)

9(sic). Mr. Tang mentioned no fence found along the boundaries for his “Subject Lots”. The existing old fence with nets on Government land and Lots 632, 634 was outside the limit of his “Subject Lots”. (“Comment 9”)”

87.  There is little doubt that wire mesh fence was once erected outside the eastern boundary of Lot 632 where the water tank is situated. Broken wire mesh fences were seen both from photographs produced and on the site visit on 9 April 2014. As pointed out by Mr Ma at Comments 8 and 9, Lots 632 and 634 are outside the terms of reference of Mr Tang.

88.  The bone of contention, therefore, lies on whether or not wire mesh fence was once erected along the western boundary of Lots 634, the government, Lots 636 and 627.

89.  Mr Ma stated in Comment 3 that he found some ruined fence poles with small portion embedded in earth ground during his first visit in March, 2013. I am surprised that Mr Ma stated that his first visit took place in March 2013. According to his Expert Survey Report dated 25 February 2013, he visited the site on 18 January 2013. Given the date of his survey report, it would seem impossible that he conducted his 1^st site visit in March 2013. Assuming that Mr Ma has been mistaken about the date, doubt still remains as to why no mention was made of his finding of ruined fence poles which was obviously relevant to the purpose for which he was engaged and he is under a duty to the court to reveal.

90.  Cressell J in National Justice Cia Naviera SA v Prudential Assurance Co. Ltd [1993] 2 Lloyd’s Rep 68 at 81 remarked that :-

“An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise … An expert witness in the High Court should never assume the role of an advocate.”

91.  His duty to assist the court overrides any obligation to the person from whom the expert has received instructions or by whom he is paid.

92.  Such duties are mirrored in Order 38 rule 35A of the Rules of District Court and paragraphs 2 to 4 of the code of conduct for expert witnesses in Appendix E, which provides that :-

“General duty to Court

2. An expert witness has an overriding duty to help the Court impartially and independently on matters relevant to the expert’s area of expertise.

3. An expert witness’s paramount duty is to the Court and not to the person from whom the expert has received instructions or by whom he is paid.

4. An expert witness is not an advocate for a party.”

93.  It can be seen from Comments 3 and 4 that Mr Ma was informed by the son of the plaintiff the existence of fence in the past. In determining the alignment of the fence, he relied on the said Mr Wong to dig out the remains of the fence for his inspection. Eventually, no net was seen on his 2^nd visit. He marked the alignment of the fence “based on the existing ruined fence poles (without nets) along the western boundaries of Lots 627 and 636”.

94.  That being the case, in arriving at his conclusion, Mr Ma is relying on the information given by an interested party, ie the son of the plaintiff. He was not giving his expert opinion independently and impartially but instead, he was acting as the mouthpiece of the party who engaged him.

95.  Comment 7 shows that after the supplementary report of Mr Tang, Mr Ma paid a 3^rd site visit on 29 March 2014 when photographs were taken, presumably to look for further evidence in support of his conclusion as to the existence of the fence along the western boundary of the disputed land. His conduct as such demonstrated, in my view, that he was embarking on a mission to advocate that there existed a fence along the western boundary of the disputed land. He has lost the impartiality that is required of from an expert witness.

96.  Looking at the 24 pictures taken by Mr Ma on his 2^nd and 3^rd site visits, they are all remains of rusted iron angle bars. They could be there for a variety of reasons. I do not accept that their existence is persuasive evidence of the presence of a fence. 

97.  One must not forget that at the material time, the disputed land belonged to 5 different owners. The plaintiff is not claiming that he built the wire mesh fence surrounding the disputed land. There is evidence which I accept that there were other people farming the disputed land at the material time. The historical aerial photographs do not show the existence of a fence enclosing the disputed land. Taking all the circumstances into account, I find that it is highly unlikely that the disputed land was enclosed by fence at the material time. In making this finding of fact, I reject the evidence of the plaintiff, Wong ML and Wong MP.

Natural landscape

98.  Mr Lee submitted that the natural landscape of the disputed land forms a relatively self-contained piece of land by itself. The 3 structures that were used most by the plaintiff are located in close proximity to the access which would naturally be used for accession of the disputed land, coupled with the presence of dogs, even after active farming on the open land was winded down or even stopped, the reality is that an outsider approaching the disputed land would appreciate that the open land was also under the use and control of those occupying those structures.

99.  With respect, I cannot accept this submission. To demonstrate possession, the plaintiff must have done some overt acts to the disputed land. Here, apart from claiming that he used the structures on the disputed land as residence for himself and members of his family and he did farming thereon, the plaintiff had done nothing to show to the world at large that he was in control of it. The plaintiff is not claiming that he built wire mesh fence to enclose the disputed land. At most, he is saying that he did maintain the fence. In this regard, the fence was in fact allowed to collapse through the passage of time.

100.  In my view, the landscape of the disputed land is no different from any other piece of land. Keeping dogs are for security purpose. I do not accept that this can be taken as asserting control of the land. After all, what the dogs regarded as their territory cannot be equated to the boundary of the disputed land.

Cleaning powders

101.  Stacks of cleaning powder were placed on various locations on the disputed land which were also seen on the site visit on 9 April 2014. According to the descriptions of the plaintiff, Wong ML and Wong MP and the photographs produced, they are located on:-

(a) Lot 631 under the roof of a structure (177 and 178 of bundle 1(a)); and

(b) Lot 631 in an open space (192 of bundle 1(a)).

102.  In his witness statement, the plaintiff said that those cleaning powder belonged to Mr Law who promised to pay him for guarding the same. He was never paid by the said Mr Law. But those cleaning powder have remained on the disputed land since 1983.

103.  To my mind, if the plaintiff treated the disputed land as his own, he must have disposed of the cleaning powder rather than allowing them to occupy the disputed land for 3 decades. The cleaning powder belonged to the said Mr Law, whom the plaintiff was told was the boss of the disputed land. He was promised by the said Mr Law that he would be paid for guarding the cleaning powder. When it became clear that he would not be paid as promised, there was no basis to allow the cleaning powder to stay on the disputed land. The inaction of the plaintiff to dispose of the cleaning powder, in my view, is consistent with the plaintiff’s belief that the disputed land belonged to the said Mr Law and that he was only occupying the land with the permission of the owner. That being so, I find that the plaintiff has never dealt with the disputed land as the occupying owner thereof to the exclusion of the true owner.

Conclusion on factual possession

104.  In my judgment, the plaintiff has only established that he had used the small houses on the disputed land as residence for himself and members of his family. As such, he was only trespassing on a part of the disputed land and was not exercising exclusive control of the whole of the disputed land. I also find that he had only farmed on the disputed land from 1982 but such farming ceased in 1990, which only lasted for 8 years.

105.  Having considered all the circumstances of this case, I am driven to the conclusion that the plaintiff has failed to establish that he has acquired possession of the disputed land since 1981. I also find that the plaintiff has failed to establish that he has acquired possession of the disputed land for 20 years next before the commencement of this action on 21 April 2010.

Whether the plaintiff has the requisite intention to possess?

106.  Given my findings at paragraph 105 hereof, the claim of the plaintiff must fail.

107.  However, for the sake of completeness, I shall consider the plaintiff’s intention to possess the disputed land.

108.  Lord Hope of Craighead in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 446A pointed out:-

“Occupation of the land alone is not enough, nor is an intention to occupy which is not put into effect by action. Both aspects must be examined, and each is bound up with the other. But acts of the mind can be, and sometimes can only be, demonstrated by acts of the body. In practice, the best evidence of intention is frequently found in the acts which have taken place.”

109.  In considering the intention of the plaintiff, the acts that he have done must be examined.

Payment of money

110.  It is the plaintiff’s case that after the closure of a nearby pigsty sometime between 1983 and 1985, the plaintiff was asked by several persons for several hundred dollars for using the disputed land. The plaintiff did pay those people money 2 to 3 times for 3 years up to 1987 for safety reason. Under cross-examination, he said he gave the money to them because they were old people.

111.  Giving money to old people is a philanthropic act. If that was the plaintiff’s reason, I do not see the need to mention it in the statement of claim. In fact, the plaintiff stated that he gave the money for safety reason. The reason for giving the money, in my view, must be related to the use of the disputed land.

112.  The question is: Why the plaintiff chose to pay the money?

113.  Obviously, those people who demanded money from the plaintiff were not the Mr Law whom he was told was the boss of the disputed land. If the plaintiff regarded himself as the occupying owner, he should have made it clear of his position to those people. Such demands were, however, acceded to by the plaintiff. In doing so, the plaintiff was, in my judgment, not making it clear to the world at large that he was the occupying owner of the disputed land.

Growing of fruit trees

114.  Deputy High Court Judge M Chan (as she then was) in Wai Wah Traders (supra) held that the mere picking of lychee fruit from trees, the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, were insufficient to constitute continuous and exclusive possession or control of the land. Her Lordship took the view that there should be some other act of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.

115.  In the present case, no evidence was adduced by the plaintiff as to what he had done to exclude the owner and the world at large. In the absence of such evidence, I would likewise hold that the mere growing of fruit trees is insufficient to establish the plaintiff’s intention to possess the disputed land.

Enclosure

116.  As pointed out by Lord Walker LJ in Simpson v Fergus (supra), enclosure by fencing is the clearest, and perhaps the most classic, way of establishing exclusive possession.

117.  It is my finding at paragraph 97 hereof that the disputed land was not enclosed by fencing at the material time. That being so, no intention to possess the disputed land can be inferred in this regard.

Cleaning powder

118.  Stacks of cleaning powder which belonged to Mr Law were allowed to lie on the disputed land for 3 decades. In cross-examination, the plaintiff said he would still allow the said Mr Law to retrieve the cleaning powder upon proof by invoice.

119.  In this respect, it is the submission of Mr Lee, counsel for the plaintiff, that the said Mr Law asked for the plaintiff’s permission to put the cleaning powder on the disputed land and the plaintiff gave his permission for doing so.

120.  It must be remembered that according to the plaintiff, the said Mr Law promised to remunerate him for guarding the cleaning powder. When it became clear that such promise was not going to be honoured, the plaintiff could and should have disposed of the cleaning powder as they were occupying the disputed land unnecessarily.

121.  The inaction of the plaintiff, in my judgment, is inconsistent with an intention to possess the disputed land and to exclude the world at large including the paper owner.

Mr Lee’s submission

122.  Before leaving this topic, I should deal with the submission of Mr Lee on the plaintiff’s intention.

123.  Mr Lee submitted that Wong ML in her evidence mentioned of the episodes of the plaintiff’s reaction by scolding or complaining against Wong BT for his acts against the land, such as entering to take the sponge and piling bamboo poles for his cultivation purposes, is also clear evidence of contemporaneous act of the plaintiff reflecting on his requisite intention.

124.  First of all, there was no mention of such episodes in the witness statement of the plaintiff. As observed by Slade LJ in Powell v McFarlane (supra), such statement is easily capable of being self-serving and is very difficult for the paper owner to refute. In my assessment, Wong ML’s evidence is exaggerating and unreliable. Therefore, I am not prepared to attach any weight to her evidence in this respect.

125.  Mr Lee also relied on the testimony of Wong ML in relation to :

(a) the calling of the police when others dumped debris or soil onto the disputed land (“Incident 1”);

(b) the plaintiff and her brothers chasing away unknown outsiders, such as workers of nearby land, seeking to enter the land (“Incident 2”); and

(c) allowing people known to them to have access through the land to and from the graves at the back (“Incident 3”).

126.  Incident 1 is no more than the natural response of someone’s home, be it the owner’s or the tenant’s, having been intruded by unwelcomed trespassers. I do not regard this as sufficient to show the plaintiff’s intention to possess the disputed land.

127.  Incident 2 is only the word of mouth of Wong ML in court. No mention was made in her witness statement, nor was it mentioned in the witness statements of the plaintiff and Wong MP. For reasons stated in paragraph 124 of this judgment, I am not prepared to attach any weight to her evidence in this respect. In any event, for the reasons stated in paragraph 126 of this judgment, I do not regard this as sufficient to show the plaintiff’s intention to possess the disputed land.

128.  Incident 3 is supported by the evidence of Wong Ho Shing (“Wong HS”). However, it wasthe plaintiff who offered to allow Wong HS’s family to walk past his residence in order to reach the grave of their ancestor[2]. It is no more than a gesture of goodwill and friendship to Wong HS and his family. I do not regard this as showing the plaintiff’s intention to possess the disputed land.

129.  Finally, Mr Lee submitted that the plaintiff’s refusal to sign tenancy agreement or document when approached by Lam Kin On in 2009 is strong evidence of the plaintiff’s intention to possess.

130.  To my mind, the refusal of the plaintiff is merely an indication that he was not prepared to pay rent to someone who had yet to prove his title to the disputed land, which he was not required to do so for a very long time. It is not an act of making it clear to the world at large that he was the occupying owner.

Conclusion on intention to possess

131.  Having considered all the circumstances of this case, I am driven to the conclusion that the plaintiff has failed to establish his intention to possess the disputed land.

Order

132.  For the foregoing reasons, the plaintiff’s claim must be dismissed.

Costs

133.  Costs shall follow the event. I make an Order nisi that the plaintiff shall pay the costs of this action of D1 to D3 with certificate for counsel, to be taxed if not agreed. The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

134.  The Order nisi shall become absolute in the absence of any application to vary the same within 14 days from the date of this judgment.

[1] Original text : “我家使用的土地〔包含所有地段〕是被鐵絲網整個圍了一圈的，唯一一段我們家一直使用，但又沒有被鐵絲網包圍的土地是沿著Lot 634/官地/Lot 636/Lot 627之斜坡。”

[2] Original text : “黄先生話：“可以方便我們從他們居住之鐵皮屋側邊小路上斜坡到達先人墓地””