TSO LO SANG v. PHI-KONG LAND DEVELOPMENT LTD

HCA 1713/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1713 OF 2006

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J U D G M E N T

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Introduction

1.  The Plaintiff, Mr Tso Lo Sang, is seeking a declaration that he has acquired the possessory title to a number of small lots of land within Demarcation District 379L at south Lantau and that consequently the Defendant’s legal title to this land has been extinguished.  The case put forward by the Plaintiff is that from 1957 when his late father came to the land, that his father and, since his death in March 2003, the Plaintiff and his wife have been in possession of this land adverse to the Defendant’s legal title.

2.  The land in question is very well depicted on the Government Survey Sheet (Exhibit P1) which is coloured in yellow.  As appears on the plan, I am concerned with two distinct areas of land which are close to each other off South Lantau Road which have been designated area ‘A’ and ‘B’.  Most of the dispute has centered on area ‘A’, the blue coloured parts of which are Government land which had been occupied by the Plaintiff’s late father, who I will refer to as the deceased, and now by the Plaintiff himself and some members of his family, under a series of Government licences.  A readily apparent feature of the lots that are coloured in yellow, which I will refer to as the Defendant’s land, is that these lots do not form a continuous whole but are distinctly separated by parts of the blue Government land.

3.  I have had the advantage of having had a view of both areas ‘A’ and ‘B’ together with the parties and their counsel, solicitors and expert witnesses.  I was able to walk over all of the land in both areas ‘A’ and ‘B’ and had many features on the land pointed out to me by the parties as they wished.  I propose to have regard to what I was able to observe during the course of the view in coming to my conclusion in this matter.

4.  I am also much assisted by several aerial photographs of the land taken over a course of time as well as many other photographs of this property which serve to supplement the view that I had.  In the event, only two witnesses have given evidence being the Plaintiff himself and Mr Lee Lung Chan, a shareholder and director of the Defendant.  The expert’s reports have gone into evidence without the experts being called.  I will have regard to their reports although I am bound to say that because I was able to see the land myself much of what appears in their reports is of less assistance to me than would otherwise have been the case.

A Description of the Land

5.  I take area ‘A’ first.  Access to it is available both on foot and by motor vehicle from an entrance, just off South Lantau Road, marked by gateposts, up a made-up track shown in several of the photographs at page 251.  As the Survey Sheet makes clear, the track starts on blue Government land but then winds its way up over what is the Defendant’s land to House 48 which is where members of the Plaintiff’s family live and what had once been the deceased’s and his late wife’s house until her death in December 2004.  There is another house to the west (or the left) of number 48 which is where the Plaintiff lives with his wife.  To the west of that are two huts built by the deceased with assistance from the Plaintiff to which I will need to make further reference presently when I consider the use to which area ‘A’ was put by the deceased during his lifetime.  What is immediately apparent is that both houses and the two huts were built on the blue Government land and not on the Defendant’s land.

6.  Whilst the ground rises relatively gently up from South Lautau Road towards the two houses and the huts which is level where these structures stand, the land then rises steeply away from these buildings to the north as well as to the west and towards the north east boundary of the Government land.  If one were to stand at the front door of the Plaintiff’s house between House 48 and the two huts, one would be looking up to a green hill-side to the east, north and west rising away sharply and beyond area ‘A’ into Demarcation District 329L which is a wooded hill-side.  The Defendant’s yellow land comprising the north-western part of area ‘A’ is a series of terraces sloping downwards to the bottom down to lot 130 to the south-west and along the southern edge of the land being lots 135, 134 and 104.  When I saw it, during the dry season, the north-western terraces comprised brownish grassland with some trees and bushes.  The south-western sections being low lying and having a permanent source of water were lush and green.  Given this sloping topography, it is not and never was possible to grow crops there.  The deceased, according to the Plaintiff, and there is much impressive evidence to support this, kept cattle, as many as 50-head on this part of the land, which were able to graze there.  In due course the herd would be sent to market for slaughter.

7.  To the north-east of lot 104, the deceased built a dam on Government land in order to maintain the water level behind it so that the cattle would have an adequate and permanent supply of drinking water.  Moving on round in a north easterly direction, there are some fish ponds put in by the deceased on the Defendant’s land for commercial use by him.  Two have now been filled in, one of which is used as a parking area for vehicles.  The remaining fish pond is used to keep tortoises.

8.  Overall, the land presents a pleasant aspect but being hilly to the north, west and east, its uses have been limited.

9.  I now turn briefly to area ‘B’.  Overwhelmingly, it is the Defendant’s land, with very narrow strips at its edges which are Government land.  It is not visible from the road.  Access to it is by an unmade track which rises through bushes and trees from the road side.  One needs to pick one’s way carefully through these trees until reaching an area of open, uneven, slightly upward slopping grassland.  The area immediately behind House 45, which stands on a separate plot of land, is presently used to grow ginger flowers.

The Use to Which the Land Has Been Put

10.  At this juncture, it is helpful to interpose the fact that the Defendant’s land in both areas ‘A’ and ‘B’ was purchased in 1962 by Mr Lee and a Mr Cheng.  They are Chinese who had emigrated to the Philippines.  In the early 1960’s anti-Chinese sentiment in the Philippines was running high and so Mr Lee and Mr Cheng, on behalf of fellow Chinese Filipinos, decided that it would be wise to purchase land in Hong Kong upon which housing might be built in case he and his fellow Chinese had to leave the Philippines.  It was therefore for this purpose that the land was purchased as was another open plot of land at nearby Mui Wo.  In 1980 the Defendant company was formed, it being thought more convenient that these properties should be held and managed by a limited company of which, as I have already observed, Mr Lee is a director and shareholder.  In due course, I will have to recount Mr Lee’s evidence as to how he managed areas ‘A’ and ‘B’.

11.  The Plaintiff’s evidence, which I accept in this regard, is that the deceased and his late wife had both come from Guangdong in the early 1950’s and came to live at Shek Kip Mei.  The deceased had been an agricultural worker in Guangdong.  Both had been previously married and had children by their previous marriages.  Following the devastating fires in the refugee housing areas of Shek Kip Mei, the deceased moved his family to the blue Government land at area ‘A’ in 1957.  The Plaintiff was born in April the following year.

12.  The deceased settled on the Government land and the houses and huts were built on it.  The family lived in the houses and the huts were used to store tools and silage for cattle feed.  The deceased built up a herd of cattle on the land.  The cows would roam freely on the Defendant’s land where they would graze as they wished.  They would drink water on the land closest to the road, which I have already referred to, behind the dam that the deceased had built.  The deceased would also take his herd of cows to nearby common land in order that they might graze there and then return them to the Defendant’s land in the evening.  Once they were ready for market he would arrange for them to be sent to an abattoir.  The Plaintiff has also said that one of the huts was used to slaughter cows for the sale of their carcasses and that he would help the deceased in this work.  This stopped in 1995 when the Government put an end to the private slaughter of cattle.

13.  The deceased became very well known on Lantau as a cattle herdsman and the evidence includes news articles written about him.  He was also the subject of a television piece and I am entirely satisfied that for the period starting in the early 1960’s until after 1995, that the deceased kept a herd of cattle on the Defendant’s land for commercial purposes.  This was reduced in scale after the 1995 prohibition on private slaughter of cattle, nevertheless, I am satisfied that the deceased maintained the presence of cattle on the Defendant’s land until his death.  Cattle still roam about on the Defendant’s land to this day, the land having been adapted to suit them all these years ago.  The keeping of cattle was undoubtedly the primary activity of the deceased and the Plaintiff.  In addition, I am satisfied that the deceased, his wife and the Plaintiff and his wife also grew plants and bushes on the Defendant’s land for commercial purposes.  I have been shown many of these flowers, bushes and trees planted on the Defendant’s land in both areas ‘A’ and ‘B’.  Some were fruit trees whose crop would be sold in the local market, the leaves of various trees and bushes were also sold to be used in the processing of herbal medicines and teas, and ginger flowers were grown commercially, principally at area ‘B’. 

14.  I accept that fencing had been improved around the perimeter of area ‘A’ to keep cattle in and that the gateposts were put in at the entrance to area ‘A’ although no gates were hung from these posts.  Fish ponds were built, two of which were subsequently filled in.

15.  The conclusion that I am driven to is that the deceased and his family have used area ‘A’ and ‘B’ as their own since at least 1960.  It has provided them with the substantial source of their income and it certainly provided the deceased with his living until his death in 2003.  The family homes were built on the abutting Government land.

The Defendant’s Attitude to the Land

16.  Mr Lee has told me that he would periodically visit the land once or twice a year, usually taking with him “tour groups” of fellow Chinese Filipinos who wished to see the land that their association owned.  Mr Lee accepts that he did nothing to the land.  Occasionally, he had seen an old man, who he recognised from photographs in evidence as the deceased, working on the land and that they would wave at each other cordially.

17.  For the first time in the course of his cross-examination, he gave evidence that he had spoken to the deceased and told him that he owned the land and that the deceased could use it until he said otherwise, at which time he would need it for the Chinese Filipino association’s use.  This potentially highly relevant and very helpful evidence to the Defendant’s case did not appear in Mr Lee’s witness statement and he did not give this evidence when examined by his own counsel.  A case based on permission had not been pleaded on the Defendant’s behalf.  Mr Cheng, for the Defendant, indicated that he might wish to apply to amend his defence to reflect this but later told me that he would not be making such an application.  Although Mr Lee impressed me as a sensible and honourable man, I am not able to accept his evidence of such conversations with the deceased.  This all smacked of desperation on his part in an effort to bolster the Defendant’s case.  I reject this part of his evidence.

18.  As to area ‘B’, he very frankly admits that apart from seeing it when he purchased it, given its relative inaccessibility, he never visited this piece of land again.

The Legal Principles

19.  To get his declarations, the Plaintiff is required to show adverse possession for a continuous period of 20 years from the date that the paper owners right of action accrued.  In this case that right accrued in 1962 when the land was purchased by Mr Lee.  Where that right accrued before 1 July 1991, as in this case, the limitation period would expire after 20 years.  See section 7, Limitation Ordinance as amended by section 5, Limitation (Amendment) Ordinance which reduces the limitation period to 12 years for rights accruing after 1 July 1991. 

20.  An authoritative statement of the law of adverse possession is to be found in the judgment of Slade J (as he then was), in Powell v McFarlane (1997) 38 P&CR 452 at 470 to 472:

“	(1)	In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession.  The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
	(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, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.
	(4)	… 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 is reasonably practicable and so far as the processes of the law will allow.”

This burden falls on the Plaintiff to discharge on a balance of probabilities.

Conclusions

21.  It seems to me that area ‘A’ and ‘B’ can be taken separately.  As to area ‘B’ whilst the deceased and his family took no steps to fence off the land or in any other way assert their possession of it against the world at large the fact remains that this isolated and detached plot of land was planted on for nearly 50 years by the deceased and his late wife.  Ginger flowers are still grown there by the Plaintiff and his family.  The Plaintiff’s family occupation and use of the land has remained unchallenged by anybody and certainly not by the Defendant through Mr Lee or anybody else on its behalf.  Mr Lee has frankly admitted to never going there after his purchase of it in 1962.

22.  In such circumstances, it strikes me that the Plaintiff by himself and his late father and mother before him has acquired a possessory title to this land thereby extinguishing the Defendant’s title to it, and I propose to give the Plaintiff the declarations that he seeks in respect of area ‘B’.

23.  Area ‘A’ calls for more detailed consideration.  As to the evidence, I am completely satisfied that the deceased took over this land shortly after he arrived and set up on the abutting Government land to start his new life there with his family.  He took over the Defendant’s land by keeping his herd of cattle on it until shortly before his death.  Thereafter, the Plaintiff assumed occupation.  Cattle continue to graze and stay on this land — land adapted for cattle grazing by his late father, where the cattle could rest, sleep, eat and drink.  Further, I accept that the family planted trees and bushes on it for commercial use by selling fruit, plants and their leaves for herbal concoctions and that this also started in the early 1960’s and has continued since then although now on a more reduced scale.  Fencing was renewed to keep cattle in and fish ponds were built on area ‘A’.  This family expanded themselves onto this land and have put it to productive use for well over 40 years.  They have treated it as their own.

24.  For his part, Mr Lee and subsequently the Defendant company through Mr Lee, have done nothing to assert themselves in relation to this land.  It seems to me that short, irregular visits by Mr Lee and his colleagues cannot really assist, although I am satisfied that they never intended to abandon the land.  Nevertheless, no steps were taken to disabuse the deceased and his family that this was Mr Lee’s and subsequently the Defendant’s land and that the deceased’s activities were only being tolerated on sufferance.  There is no such evidence — whilst in the meantime for over 40 years, the deceased was allowed to productively use this land and treat it as his own.

25.  Whilst any squatter carries a heavy burden in seeking to dispossess a paper title owner and very clear evidence would be required to satisfy Slade J’s formulation supra. such evidence is present in this case.  This being my view, it seems to me that as to area ‘A’ as well the Plaintiff has succeeded in discharging the burden and he must also have his declarations in respect of this part of the land as well.

26.  In these circumstances where the Plaintiff has succeeded he must also have his costs of the action with, if he has a legal aid certificate, legal aid taxation of his costs.  This order for costs will be an order nisi in the usual way.