THE PERSONAL REPRESENTATIVE OF THE ESTATE OF CHAN CHUEN, DECEASED v. FORESTSIDE LTD

HCA 2055/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2055 OF 2011

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J U D G M E N T

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Introduction

1.  On 23 December 2009, the Director of Legal Aid (“the Director”) issued a Legal Aid Certificate to Mr Chan Chuen (陳尊) (“Chan”) for claiming adverse possession of certain pieces of land and assigned So Lung & Associates as solicitors.

Chan claimed to be a farmer, born in China in 1941 and came to Hong Kong in 1962.

2.  Madam Tang Hak Ling (鄧克玲) (“Tang”) was born in China in 1975 and came to live in Hong Kong in 1998.

3.  Chan and Tang were married in 2003.  Tang gave birth to six children. With the exception of the last one, all her children were born before her marriage.  Her children were born in 1996, 1997, 1999, 2000, 2002 and 2006 and she herself took care of them.

4.  The defendant is a company in the Wharf group.

5.  The writ was issued on 2 December 2011 with Chan as the plaintiff.  The Statement of Claim, dated 15 February 2012, was drafted by Mr Patrick Szeto of counsel.

6.  Witness statements were exchanged in August 2013.

7.  On 28 October 2014, L Chan J fixed the trial to be heard on 26 January 2015, with 15 days reserved.

8.  Opening submissions were filed on 12 January 2015 by Mr Kenneth C L Chan on behalf of Chan.

9.  Opening submissions were filed on 19 January 2015 by Mr Johnny Mok SC and Mr Johnny Ma on behalf of the defendant.

10.  Chan was admitted to hospital shortly before the trial was to start and he passed away on 26 January 2015.

11.  The trial was adjourned.

12.  On 6 February 2015, the court gave notice that the trial was re‑fixed to begin on 7 January 2016, with 12 days reserved.

13.  On 11 February 2015, the Director gave notice that Tang who wished to be joined as a party had applied for legal aid.

14.  On 6 March 2015, So Lung & Associates filed notice to act for Tang.

15.  On 23 March 2015, the Director filed a memorandum notifying that he had refused Tang legal aid.

16.  On 24 March 2015, L Chan J made an order on the joint application of Tang and the defendant that:

(1)     leave be granted to Tang to represent the estate of Chan for the purpose of carrying on these proceedings; and

(2)     leave be granted to substitute the plaintiff in the title of the action as “The Personal Representative of the Estate of Chan Chuen, Deceased”.

17.  On 2 April 2015, Tang filed notice of appeal against the Director’s refusal to grant legal aid.  The appeal came before a registrar on 19 June 2015, and again came before a registrar on 23 October 2015.  There was a further hearing scheduled on 17 March 2016.  That hearing date was subsequently brought forward to 7 January 2016.

18.  On 10 September 2015, Tang filed notice to act in person.

19.  On 9 October 2015, the Director maintained his decision to refuse legal aid.

20.  By a further amended notice of hearing, the court gave notice that the trial would be heard commencing on 8 January 2016, with 9 to 15, and 19 to 26 January also reserved (12 days).

21.  By letter dated 1 December 2015, Tang wrote to the court asking to postpone the trial with no appointed date for resumption, pending the conclusion of her legal aid appeal.  Tang was asked to make a formal application.  On 17 December 2015, Tang issued an inter parte summons returnable on 29 December 2015.  Her application was opposed by the defendant.  On 29 December 2015, I refused her application for reasons stated in the Reasons for Decision dated 8 January 2016.

22.  On 7 January 2016, Tang was granted legal aid.

23.  On 8 January 2016, Tang appeared in person and asked for adjournment of the trial.  For reasons stated in the Reasons for Decision dated 11 January 2016, I refused Tang’s application.  I adjourned the hearing to 2:30 pm on 11 January 2016, with costs reserved.

24.  On 11 January 2016, Tang was represented by newly assigned counsel (Mr Erik Shum) and solicitors (Ma Tang & Co).

25.  Although Mr Shum only came into this case after the commencement of trial on 8 January 2016, with his usual diligence, efficiency and expertise, he opened the plaintiff’s case on 12 January 2016.

The land in dispute

26.  By an assignment dated 22 December 1992, the defendant acquired paper title in, among others, the following 14 lots of land in Demarcation District No 1 in Tung Chung:

(1)  Lot numbers 2991 (RP) and 2992 (RP), collectively “the First Lots”;

(2)  Lot numbers 2591, 2599, 2625, 2630, 2639, 2642, 2647 and 2649, collectively “the Second Lots”; and

(3)  Lot numbers 2601, 2605, 2616 and 2619, collectively “the Third Lots”.

27.  The First Lots, the Second Lots and the Third Lots are referred to collectively as “the Disputed Land”.

28.  By §4 of the Statement of Claim, the First Lots are said to be:

“more particularly identified in the plan attached in Annexure 1 hereto and coloured in ‘Orange’.”

29.  The following image, “Image A” is a reproduction of Annexure l:

Image A

30.  By §5 of the Statement of Claim, the Second Lots are said to be:

“more particularly identified in the plan attached in Annexure 2 hereto and coloured in ‘Yellow’.”

31.  “Image B” below shows the location of the Second Lots.  The blue line shows the location of the lots referred to as the “LCF Lots”: see §0 below.

32.  By §6 of the Statement of Claim, the Third Lots are said to be:

“more particularly identified in the plan attached in Annexure 2 hereto and coloured in ‘Pink’” [The actual colouring on Annexure 2 is in red instead of pink].

33.  “Image B” below shows the location of the Third Lots.  The green line shows the location of the lots referred to as the “Lots in the vicinity of the LCF Lots”: see §0 below.

Image B

34.  At my request, the parties produced a sketch for the purpose of showing the relative positions of the lots in dispute.  Image C below is a reproduction of the agreed sketch.

35.  The parties stressed that Images A, B and C do not show the precise demarcation of the lots in the Disputed Land.

Image C

36.  Mr Tang Sze Kin Eric, gave the following figures as the approximate area of the lots in dispute.  His figures are not challenged by the defendant and I accept them as accurate.

Lot Number	Approximate area (sq m)
2991 (RP)	18,094.0
2992 (RP)	3,723.0
2591	267.3
2599	458.5
2625	149.5
2630	309.0
2639	302.5
2642	55.2
2647	891.1
2649	127.8
2601	286.7
2605	221.0
2616	87.6
2619	102.6
Total:	25,075.8

Limitation Ordinance, Cap. 347

37.  The following provisions are relevant to this appeal.

38.  Section 7(2):

“(2) No action shall be brought by any other person to recover any land after the expiration of [20] 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:

Provided that, if the right of action first accrued to the Crown through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown, or of [20] years from the date on which the right of action accrued to some person other than the Crown, whichever period first expires.” (Amended 31 of 1991 s. 5)

39.  The period of 20 years was reduced to 12 years in 1991.

40.  Section 8(1):

“(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

41.  Section 13(1) & (2):

“(1)  No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

(2)  Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken in adverse possession.”

42.  Section 17:

“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.”

The applicable principles

43.  The principles are well‑settled.  They were stated by Li CJ in Wong Tak Yue v Kung Kwok Wai & another (1997‑1998) 1 HKCFAR 55 at pp 68‑69 as follows:

“A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment Ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade J in Powell v McFarlane (1979) 38 P & CR 452.

…

The requisite intention to possess has been referred in various authorities under its latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane at 471‑472, the intention to possess requisite for adverse possession:

‘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 process of the law will allow.’

The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.

Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism.  The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve.  Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

44.  In Incorporated Owners of San Po Kong Mansion v Shine Empires Limited (2007) 10 HKCFAR 591, Bokhary PJ, stated the principles in §7 as follows:

“The principles for the application of ss. 7(2), s.17 and the associated provisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v McFarlane [1977] 38 P & CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and adopted by this Court in Wong Tak Yue v Kung Kwok Wai (1997‑98) 1 HKCFAR 55. Their application has not been disputed in these proceedings, and they have been relied upon by both parties. The authorities mentioned, not only approve those principles, but provide explanation of them and guidance in their application. Of particular relevance to dispossession are the following passages in Slade J’s judgment in Powell v McFarlane:

(1) …

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’).

(3) 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 … 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….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.

(4) … 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.

…

An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. 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 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.” (pp 470‑472)

45.  In On Yip Property Development Company Limited v Kwok Tai Kuen Alan, unreported, HCMP 3192 and 3223/2013, 15 April 2014, Cheung HCCJ stated in §7 that adverse possession is a question of fact to be established by cogent and sufficient evidence, the burden being on the squatter, there being no place for any presumption, whether legal or evidential, in favour of the squatter:

“Whether, at any material time, there was adverse possession, and whether any such adverse possession once begun continued unbroken for 20 years, are questions of fact to be established by evidence, the burden being on the squatter. He has to discharge the burden of proof by cogent and sufficient evidence. Whilst such evidence can take many forms, including direct oral evidence, documentary evidence and inferential evidence, and the parties’ cases must be considered in light of inherent probabilities and commonsense, there is no place for any presumption, whether legal or evidential, in favour of the squatter. Everything must naturally depend on the facts of each case. The situation of a squatter who has enclosed the land in question and that of one who seeks to establish a case of continuous adverse possession of open land must, by the nature of things, be rather different.”

46.  On 19 January 2016, the Court of Appeal handed down its judgment in Gotland Enterprises Limited v Kwok Chi Yau and others, unreported, CACV 260/2014, which is highly apposite to this case.  Needless to say, the Gotland Enterprises case is binding on me.  In that case, the land in dispute had a total area of 759,250.80 sq ft.  There were two large ponds separated by a strip of land in between.  There was no physical barrier to the first pond and no segregation of the pond from the adjoining areas within the land in dispute.  Lam VP, delivering the judgment of the Court of Appeal, held that “one must examine what steps were taken by the person claiming exclusive occupation to exclude others” and held that “what should be considered is whether the 5^th defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above”.  Lam VP stated in §§36, 37 and 39, 54 & 59 as follows:

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

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

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

54.  … The crucial question remains: what objective acts could the 5^th Defendant pinpoint as unequivocal manifestation of the intention to possess?”

59.  In our judgment, ultimately the crucial issue is whether the Judge was correct in holding that the acts of fish farming and duck rearing carried on at Pond 1 was equivocal.  For reasons we have already given, we are of the view that the Judge had come to the correct conclusion.”

Factual possession: when, how and where factual occupation first commenced

47.  Factual possession is a question of fact to be established by cogent and sufficient evidence, the burden being on the squatter.  Evidence must be considered in light of inherent probabilities and common sense, there being no place for any presumption, whether legal or evidential, in favour of the squatter.

48.  Chan was the self‑professed occupier.  He made his witness statement in support of his claim in these proceedings.  The court should approach his witness statement with some scepticism.  The court would scrutinize the circumstances in which it was made and would give it such weight if any as they may deserve.  Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the court would usually accord to them considerable weight.

49.  Chan having passed away on 26 January 2015, his witness statement was admitted as hearsay evidence without any objection by the defendant.

50.  Mr Shum, properly and correctly conceded that the plaintiff could not succeed in this action without Chan’s witness statement.

The First Lots

51.  The Statement of Claim alleges in §4 that:

“The Plaintiff has since around 1962 (or in the alternative such other commencement which was nonetheless sufficient to extinguish the registered title of the Defendant … [been] in exclusive, continuous and uninterrupted possession of [the First Lot].”

52.  The plaintiff went on to allege in §4(1) of the Statement of Claim that:

“In or about 1962 or thereafter, the Plaintiff was ‘working on’ the First Lots as well as Lot No. 193. The Plaintiff has grown crops and cultivated on the First Lots since 1962 or thereafter up till present time.”

53.  On Chan’s case, he began squatting on other people’s land immediately upon coming to Hong Kong in 1962.

54.  Lot No 193 is not one of the disputed lots in this action.  Chan alleged that he was “working on” three lots.  The area and location of Lot No 193 has not been explored by either party.  More importantly, “working on” a piece of land is not the same as possession, or even occupation, of the land.  Chan alleged that he was “working on” Lot No 193 and he did not claim to be in occupation of it.  It behoves the plaintiff to plead his case with clarity but he has not begun to do that.  The pleaded claim leaves the question of first occupation of the First Lots wide open.

55.  Commencement of factual possession is a question of fact peculiarly within Chan’s knowledge and he should plead it clearly and precisely.  The burden of proof being on him, he does not benefit from vagueness or gaps in his case.  That the plaintiff could not make up his mind on when alleged occupation began is evidenced by his pleading in the alternative that such commencement was as was “sufficient to extinguish the registered title of the Defendant”.  This could span from 1962 to 2 December 1999 (ie 12 years before the issue of the writ on 2 December 2011), a period of some 37 years.  As Chan could not make up his mind when he allegedly commenced occupation, he could not possibly hope to succeed.

“Cultivating” on swamps and pond

56.  Chan alleged in §4(1) of the Statement of Claim that he “has grown crops and cultivated on the First Lots since 1962 or thereafter”.

57.  He also alleged in §4 of his witness statement that the area in the region of Lot No 2991 (part) was originally a “pond”「池塘」.  He has not explained how he could “cultivate” on a “pond”.

58.  The objective evidence also shows that Lot No 2991 (RP) was in, or practically in, swamps.  He has not explained how he could “cultivate” on swamps.  The aerial photographs taken on the following dates show the Lot in or practically in swamps:

· 27.12.1956

· 22.01.1962

· 25.01.1963

· 14.12.1964

· 04.04.1973

· 20.11.1974

· 24.12.1975

· 03.11.1976

· 31.08.1977

· 10.01.1978

· 28.11.1979

· 28.11.1980

· 19.01.1981

Allegedly occupying huge areas

59.  Coming back to commencement of occupation, how and why did Chan allegedly first go in occupation of these two huge lots at quite some distance from each other?  How could Chan manage to occupy such large areas?  He had only come to Hong Kong in 1962 and he claimed to be “working on” the First Lots as well as Lot No 193 as early as 1962, ie as soon as he arrived in Hong Kong.  Lot No 2991 (RP) has an area of about 18,094 sq m and Lot No 2992 (RP) an area of about 3,723 sq m, making a total of 21,817 sq m.  The distance between these two lots has not been alleged by the plaintiff and has not been explored by the defendant.  The point here is that they are at quite some distance from each other and it takes time and energy to commute between these two lots.  Chan’s witness statement is conspicuously silent on these matters.  Chan’s bare assertion of alleged occupation of the First Lots simply does not ring true.

60.  Further, I am not satisfied that he could single‑handedly occupy the First Lots with a total area of approximately 21,817 sq m, particularly when, on his §3 of his witness statement, he was also helping a Mr Wong to farm and was “working on” Lot No 193.

61.  Failing to establish the commencement of factual possession means the plaintiff fails on the threshold in respect of the First Lots.

Delineation or demarcation of the Disputed Land

62.  Lot No 2991 (RP) and Lot No 2992 (RP) are both highly irregular in shape.  There is no delineation or demarcation of these lots on the ground.  There are no definitive reference points, on the ground or otherwise.  There is no allegation of:

· the use of any survey record plans;  

· the use of any lot index plans; or

· superimposition of any survey record plan or any lot index plan on any aerial photographs;

in the identification or demarcation of the areas which Chan allegedly occupied.  I am not satisfied that the plaintiff has begun to prove that any area or areas which he might have allegedly occupied was Lot No 2991 (RP) or Lot No 2992 (RP).

Remaining Portions

63.  Two points arises from the fact that both Lot No 2991 (RP) and Lot No 2992 (RP) are “remaining portions”.  Remaining portions are carved out of or sub‑divided from the initial lots.  Neither party took the trouble to explore when Lot No 2991 (RP) was carved out of the original Lot No 2991 or when Lot No 2992 (RP) was carved out of the original Lot No 2992.  It would appear from the Land Searches that Lot No 2991 (RP) was held under New Grant No 2734 and that Lot No 2992 (RP) was held under New Grant No 2735.  There is no information on the date or dates of these two New Grants.  It would appear from the sequential numbering that the two remaining portions (Lot No 2991 (RP) and Lot No 2992 (RP)) should be granted at about the same time.

Resumption of part of Lot No. 2992 (RP)

64.  The first point is that the plaintiff pleads in §4(5) of the Statement of Claim that:

“after part of Lot No. 2992 (RP) was resumed by the Government in 1996.”

65.  As part of Lot No 2992 (RP) had been resumed, the plaintiff’s claim of adverse possession of the whole of Lot No 2992 (RP) must fail and fails.  Chan has simply not dealt with the point at all.

66.  If resumption was, as alleged, in 1996, the probabilities are that the remaining portion of Lot No 2992 was not carved out of Lot No 2992 until 1996 upon resumption of part of Lot No 2992.  If such be correct, Chan could not be possibly be in possession of Lot No 2992 (RP) in 1962, before Lot No 2992 (RP) was granted by New Grant No 2735.

67.  Likewise, Chan could not possibly be in possession of Lot No 2991 (RP) in 1962 before Lot No 2991 (RP) was granted by New Grant No 2734.

“(RP)”, “(部份)” and “餘段”

68.  The second point is about the use of the words「部份」.  The witness statements in Chinese, including Chan’s and Tang’s, referred to the First Lots as “2991 (部份)” and “2992(部份)”.  I said in the course of trial that 「部份」means “part of”, not “remaining portion” or “RP” and that the Chinese version of “remaining portion” is 「餘段」. The plaintiff did not take up my point and did not lead evidence on what was meant by 「部份」 in the witness statements or that 「部份」 was mistakenly used in place of 「餘段」. Occupation of:

· “2991 (部份)” means occupation of part of Lot No 2991, not Lot No 2991 (RP), and

· “2992(部份)” means occupation of part of Lot No 2992, not Lot No 2992 (RP), and

does not prove occupation of the First Lots.

The Second Lots

69.  The Second Lots are clusters of scattered lots.  The area of each lot has been noted in §0 above.

70.  It is pleaded in §5 of the Statement of Claim that:

“The Plaintiff has since around 1995 (or in the alternative such other commencement which was nonetheless sufficient to extinguish the registered title of the Defendant … [been] in exclusive, continuous and uninterrupted possession of [the Second Lot].”

71.  That the plaintiff could not make up his mind on when alleged occupation began is evidenced by his pleading in the alternative that such commencement was as was “sufficient to extinguish the registered title of the Defendant”.  This could span from 1995 to 2 December 1999 (ie 12 years before the issue of the writ on 2 December 2011), a period of some four years.  As Chan could not make up his mind when he allegedly commenced occupation, he could not possibly hope to succeed.

72.  It will be seen from Image B that the Second Lots lie within the blue line.  Chan said in §28 of his witness statement that the blue line was used to refer to land which he called「李清發地段」 (“LCF Lots”).  The Second Lots lied within the blue line.  In §29 of his witness statement, he said he wanted to open up the wasteland, the LCF Lots, to cultivate and … he step by step opened up that batch of lots to cultivate until now.  In his own words, he said:

「開荒李清發地段耕作…之後大約於1995年之前，我便在該批地段逐步自行開荒佔用土地至今。」

73.  In the context, “the batch of lots” 「該批地段」 must mean the LCF Lots, not the Second Lots.  There is no allegation of precisely when he “opened up” each of the lots in the Second Lots.

74.  If he was alleging that he “opened up” all the LCF Lots, including the Second Lots, he had not explained how he could open up such a massive area when he was allegedly in occupation of the First Lots already.

The Third Lots

75.  Any claim of “opening up” of all the LCF Lots should be considered together with the Chan’s claim that Chan began to squat on the land in the vicinity of the LCF Lots.  It will be seen from Image B that the Third Lots lie within the green line.  Chan said in §37 of his witness statement that the green line was used to refer to land which he called 「李清發地段附近的地段」 (“Lots in the vicinity of the LCF Lots”).  In §37 of his witness statement, he made a bare assertion that in about before 1995, he occupied the Lots in the vicinity of the LCF Lots, ie including the Third Lots.  In his own words, he said:

「我於大概1995年之前開始佔用李清發地段附近的地段即包括第三批地段。」

76.  I consider the bare assertion that Chan was in occupation of:

· the LCF Lots (including the Second Lots); and

· the Lots in the vicinity of the LCF Lots (including the Third Lots); and

· the First Lots;

somewhat fanciful and not supported by any objective facts or evidence.  The total area is far in excess of 25,075.8 sq m.  The total area of the LCF Lots and the Lots in the vicinity of the LCF Lots has not been explored by the defendant but it should appear from Image B that it would be a few times the total area of the Second Lots and the Third Lots. 

Absence of any fencing or physical barriers and absence of steps to exclude others

77.  In respect of the First Lots, it is pleaded in the Statement of Claim:

·  §4(4) that a gate was built “in around 2009 to … exclude other people from entering into Lot No 2991 (RP)”; and

·  §4(5) of installing some wired spikes surrounding and enclosing Lot No 2992 (RP) in about 1962 and enclosing Lot No 2992 (RP) with wired netting in 1996.

78.  The only evidence of a gate is one which prevented vehicular access to the war gaming site, but access to Lot No 2991 (RP) was possible by going around the gate.  There is no evidence and I find that there is no gate which could or did prevent access to Lot No 2991 (RP).  In any event, 2009 was just a couple of years away from 2011 when the writ was issued.

79.  There is no objective evidence of any wired spikes or wired netting enclosing Lot No 2992 (RP) and I find that there is none.

80.  I find there is no fencing or physical barrier to prevent access to the First Lots.

81.  There is no pleading and no evidence of any fencing or physical barrier to prevent access to any of the Second Lots.  I find there is none.

82.  There is no pleading and no evidence of any fencing or physical barrier to prevent access to any of the Third Lots.  I find there is none.

83.  I am satisfied and find that the plaintiff did not take any steps to exclude others from any lot in the Disputed Land.

Mr Wong Yat Wah’s (“Wong”) occupation without permission

84.  Factual possession signifies an appropriate degree of physical control.  It must be a single and conclusive possession.  The plaintiff pleads in §4(4) of the Statement of Claim that:

On “15^th May 2008, a person named Wong Yat Wah … occupied Lot No. 2991 (RP) without the permission of the Plaintiff”. 

85.  On the authorities, such occupation by Wong terminated any adverse possession which the plaintiff might have established before 2008.  The Statement of Claim thus discloses no reasonable cause of action.

Mr Tsang Shu Ping’s decisive evidence against the plaintiff

86.  Mr Tsang Shu Ping’s (“Tsang”) evidence went as follows:

“Q Are you saying that you played in every part of this 200,000 square feet?

A Yes.

Q Does it mean that in fact anyone who wanted to play there, or to catch shrimp or crab or do other things, was able to do so because there was no barrier or fences to stop anyone from entering?

A Right.”

As Tsang was a witness called by the plaintiff, the plaintiff cannot impeach (and the plaintiff did not impeach), Tsang’s testimony.  Tsang established as against the plaintiff that there was no barrier or fence and anyone who wanted to play there, or to catch shrimp or crab or do other things, was able to do so.

87.  Tsang also testified that after he had dumped soil to the thickness of 1.5 metres onto Lot No 2991 (RP), Wong later dumped on top of that an additional 1.5 metres.  That meant Wong was not excluded from access to the Lot. Such access was extensive and lasted so long that Wong managed to dump an additional 1.5 metres.

88.  Tsang’s testimony was decisive against the plaintiff so far as Lot No 2991 (RP) is concerned.  Chan has not excluded others from the Lot.

Exclusive occupation of the Disputed Land

89.  Has the plaintiff established exclusive occupation of any of the lots in the First Lots, Second Lots or the Third Lots?

90.  There was no fencing or other physical barrier and other people, including kids and people in the construction, dumping or transportation business were free to play or dump soil or construction waste on any of the Disputed Land.

91.  The plaintiff did not pinpoint any objective act as unequivocal manifestation, or manifestation of the intention to possess.

92.  Applying Gotland Enterprises, I hold that any alleged acts of  farming, cultivation, growing crops, duck rearing or dumping were equivocal.  They were uses and pleaded as uses of the land, not occupation.  As I have said, there was no objective act as unequivocal manifestation, or manifestation of the intention to possess. This is the end of the plaintiff’s claim.

Plaintiff’s witnesses

93.  As I have said in §0 above, the plaintiff could not succeed in this action without Chan’s witness statement.  For reasons stated above, Chan’s witness statement did not lead the plaintiff to success. There is thus no need to deal with evidence called by the plaintiff.

94.  I would add that I am not at all impressed by the plaintiff’s witnesses, particularly Tang.  Tang had no scruple about lying. 

95.  The following is an example of blatant lying by Tang.  She insisted land was used for farming and that there was management of cultivation.  She was shown page 1703 of the hearing bundles, a photographic image of Lot No 2991 (RP).  The following image, Image 4, is a reproduction of page 1703.

Image 4

96.  Tang’s testimony went as follows:

“HIS LORDSHIP: Counsel said there was no management; you disagree. How was the land at page 1703 managed?

A. My husband told Oriental Horse to level it up for him, fruit trees could be planted on it after it had been levelled up.

HIS LORDSHIP: So how was it managed. How was the land managed?

A. At the time Oriental Hose was told to deposit soil –

HIS LORDSHIP: How was page 1703 managed.

A. I don’t quite understand.

HIS LORDSHIP: Mr Mok said there was no management; you disagree, so how was it managed?

A. This piece of land my husband occupied it without authorisation.

HIS LORDSHIP: How was it managed?

A. Keep an eye on it so that no-one would be let in to farm there.

HIS LORDSHIP: Anything else?

A. No.”

Defendant’s witnesses

97.  The defendant called two persons who claimed to have made regular site visits.  Apart from some photographs and videos, neither made or produced any contemporaneous document or record about their numerous site visits.  They claimed to rely on memory.  I am not satisfied on a balance of probabilities that their evidence is reliable and I do not rely on them.  Their superior officer’s evidence was almost entirely hearsay as well as her own opinion evidence.  I attach no weight to her evidence.

Conclusion and disposition

98.  The plaintiff’s claim fails.

99.  Both the plaintiff and the defendant agreed that costs should follow the event.

100.  I order that the plaintiff’s claim be dismissed with costs, with the defendant’s costs, including all costs reserved, to be taxed and paid by the plaintiff to the defendant.  There shall be legal aid taxation of the plaintiff’s own costs.

Hearing bundles

101.  Before I part with this case, I should say a few words about the hearing bundles.  The parties lodged 18 (not including opening submissions and authorities) lever arch files as hearing bundles.  Yet, there was no core bundle. 

102.  Five of the 18 lever arch files contained expert reports.  There is no executive summary of any of the expert reports.

103.  A large part of the documents has not been referred to at all. 

104.  Costs and time were wasted.  It is not helpful to the Court at all.