CHAN CHEUK WING v. CHAN SUM WING

DCCJ 1291/2015

[2021] HKDC 1591

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1291 OF 2015

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BETWEEN

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JUDGMENT

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I. INTRODUCTION

1.  This trial is concerned with the parties’ dispute in relation to a piece of land in Yuen Long, New Territories, known as Section C of Sub-Section 3 of Section B of Lot No 1695 in DD 120 (“the Land”).

2.  The plaintiff is (and since June 1991 has been) the registered owner of the Land. By the present action, the plaintiff claims, inter alia, possession of the Land from the defendant.

3.  The defendant, who is a younger brother of the plaintiff, resists the plaintiff’s action on the ground of adverse possession since October 1988 and counterclaims for declaratory relief that, inter alia, he has acquired possessory title to the Land by operation of the Limitation Ordinance, Cap 347 (“Ordinance”).

4.  At the trial, the plaintiff was represented by counsel, Mr Kenneth Wong, and the defendant was represented by counsel, Mr Tony Ko.

II. THE LAND

5.  The Land originally formed part of a single piece of land known as Sub-Section 3 of Section B of Lot No 1695 in DD 120 (“Parent Lot”), which was then owned by, Chan Ping Kwai, the grandfather of the parties (“Grandfather”).

6.  The Parent Lot was subsequently subdivided into various sections, including but not limited to what are subsequently known as Section A of the Parent Lot (“Land B3A”), Section B of the Parent Lot (“Land B3B”), Section D of the Parent Lot (“Land B3D”) and the Land.

7.  Land B3A was transferred to Chan Shu Wa, the parties’ father (“Father”) in 1951 and has since been registered in the name of the Father.

8.  Land B3B was transferred to the Father in 1960 and has since been registered in the name of the Father.

9.  Land B3D was transferred to Chan Tsang Tong, the Father’s younger brother and the parties’ uncle (“5^th Uncle”) in 1960 and has since been registered in the name of 5^th Uncle.

10.  As to the Land, it was first transferred to Chan Pong Kit, the Father’s another younger brother and the parties’ uncle (“3^rd Uncle”) in 1960.

11.  The Land was sold by 3^rd Uncle to Chan Kam Fat, the parties’ cousin in 1976 for a consideration of HK$50,000.

12.  Chan Kam Fat sold the Land to Yim Chun in 1979 for a consideration of HK$235,000. There is no dispute that Yim Chun was not connected to the Chan’s family.

13.  In June 1991, the plaintiff acquired the Land through public auction for a consideration of HK$325,000. The Land has since been registered in the name of the plaintiff.

14.  There is no dispute that in about 1950/1951, a building was erected on what subsequently became Land B3A and the Land. Land B3A and the Land are adjoining to each other. After the sub-division of the Parent Lot, the western portion of the building (which the parties refer to as “House 1”) fell on Land B3A and the eastern portion of the building (which the parties refer to as “House 2”) fell on the Land.

15.  I shall return to this point below as an issue arose during the course of this trial as to whether House 2 actually fell on the Land or, more specifically, whether the plaintiff was aware that House 2 was erected on the Land when he acquired the Land in 1991. This was raised by the defendant but is not pleaded, whether expressly or implicitly, in his Amended Defence & Counterclaim (“AD&CC”).

16.  It is, however, not disputed by the defendant that as it now stands, House 2 is erected on the Land.

17.  I should also mention that the defendant says that the building which was later known as House 1 and House 2 was built by the Grandfather in 1950/1951, whereas the plaintiff says it was built by the Grandfather/the Father.

III. THE PARTIES’ PLEADED CASES

The plaintiff’s claim

18.  By his Statement of Claim filed on 22 May 2015, the plaintiff claims that the defendant is occupying or otherwise trespassing on the Land without the plaintiff’s consent. As the registered owner of the Land, the plaintiff seeks to recover possession of the Land from the defendant.

The defendant’s defence & counterclaim

19.  The Defence & Counterclaim was filed on 4 June 2015 and was amended once on 12 October 2015.

20.  It is the defendant’s case that he lived at another piece of land near the Land starting from 1984 (see §1 of the AD&CC).

21.  The gist of the defendant’s case is pleaded in §2 of the AD&CC.[1] The defendant claims that in about April 1988, he discovered that the Land had become abandoned and no one was asserting ownership of the Land. He then repaired the abandoned building on the Land and has since been occupying the Land as the residence of his family. At that time, no other person stopped the defendant from repairing or occupying the Land.

22.  It is the defendant’s case that only in 2014 the plaintiff suddenly alleged that he was the lawful owner of the Land and demanded the defendant to vacate the Land, and the plaintiff’s right to recover the Land already extinguished by then (see §5 of the AD&CC).[2]

The defendant’s further and better particulars

23.  In view of the brevity of the AD&CC, the plaintiff sought further details of the defendant’s pleaded case. As a result, the defendant served three replies to requests for further and better particulars, which now form part of the defendant’s pleaded case.

24.  By the Reply to Request for Further and Better Particulars filed on 13 August 2015 (“1^st Reply”), the defendant further pleaded that:-

(1) He lived at Land B3A, on which House 1 was erected, starting from 1984 (see §§2 & 3.1 of the 1^st Reply).

(2) House 2 was erected on the Land, and House 1 and House 2 were adjoining (see §3.4 of the 1^st Reply).

(3) Between 1984 and October 1998, there were 11 people living at House 1, including the Father and his wife (“Mother”), the defendant, the defendant’s wife, the defendant’s son, the defendant’s daughter, Chan Wai Fan[3] (who was the defendant’s younger sister and gave evidence at the trial for the plaintiff), Chan Suk Fan[4] (who was another younger sister of the defendant) and the defendant’s three nephews, including Chan Chi Hang[5] (“Nephew”), who will also feature in this Judgment (see §3.3 of the 1^st Reply).

(4) The defendant and his family (i.e. his wife and his children) were permitted by the Father to live at House 1 (see §3.71 of the 1^st Reply).[6]

(5) Between 1984 and April 1988, the Land (on which House 2 was erected) was occupied by 5^th Uncle and his family as their residence (see §4.1 of the 1^st Reply).

(6) According to the defendant’s knowledge, 5^th Uncle and his family moved away from the Land by April 1988 and moved to the urban area in Yuen Long (see §6 of the 1^st Reply).

(7) The defendant renovated House 2 in October 1988 for 2 months before moving in (see §8.1 of the 1^st Reply).

(8) The defendant renovated House 2 again in 1994 (i.e. building an underground septic tank, a kitchen and an additional room) and 2000 (i.e. building additional area on the roof) (see §8.3 of the 1^st Reply).

25.  Shortly afterwards, the defendant served his Supplemental Reply to Request for Further and Better Particulars on 25 August 2015 (“2^nd Reply”).

26.  The defendant was specifically asked to state and describe the address of the Land as of 1988 and whether there were any subsequent changes to the address.

27.  In response, the defendant pleaded that the address of the Land in 1988 was “元朗大旗嶺628號2號屋 (HOUSE 2)” and there was no subsequent change to such address (see §9.4 of the 2^nd Reply).

28.  In other words, it is the defendant’s pleaded case that House 2 fell on the Land as of 1988 and that has remained the case throughout the subsequent years.

29.  The defendant served another Reply to Request for Further and Better Particulars on 15 September 2015 (“3^rd Reply”). In the 3^rd Reply, the defendant further pleaded, inter alia:-

(1) As to the permission given by the Father for the defendant to move into House 1, it was the Mother who orally communicated such permission to the defendant in 1984 (see §17 of the 3^rd Reply).

(2) The plaintiff and the defendant were brothers and also had an employer/employee relationship (see §19.2 of the 3^rd Reply).

30.  The defendant also pleaded in §16.3 of the 3^rd Reply that in 1980s the Father once discovered that according to the records of the Lands Department, House 1 did not fall within the boundaries of Land B3A. The Father and the defendant then made further enquiries with the Lands Department but were told that there was no mistake about that. In 2007, the defendant’s brother Chan Kwai Wing[7] and the plaintiff went to the Lands Department again to obtain a land search. The defendant was subsequently told that House 1 was correctly shown to fall within Land B3A.[8]

31.  It is important to note that the defendant did not suggest in the 3^rd Reply or any other pleading that similar situation happened to House 2, which, of course, is the subject-matter of the present action.

32.  The defendant also pleaded in §19.1 of the 3^rd Reply that the defendant only became aware that the plaintiff was the registered owner of the Land in about 2014 when he received a notice of sale and a Chinese letter from the plaintiff.[9]

The plaintiff’s reply

33.  After the defendant clarified and further defined his case by way of the 1^st Reply, 2^nd Reply and 3^rd Reply in the above manner, the plaintiff filed his Reply & Defence to Counterclaim on 9 November 2015 (which was subsequently amended on 15 January 2018) (“AR&DCC”).

34.  The plaintiff admitted that starting from 1984, the defendant lived at Land B3A (on which House 1 was erected). Land B3A was adjoining to the Land (on which House 2 was erected) (see §§3.1-3.2 of the AR&DCC). Both Land B3A and the Land originally formed part of the Parent Lot (see §3.2.3 of the AR&DCC). House 1 and House 2 respectively represented the western portion and the eastern portion of the same building, which was built by Grandfather and/or Father in 1950/1951 (see §§3.2.8-3.2.9 of the AR&DCC).

35.  The plaintiff pleaded that the defendant used to live in another place in Yuen Long (see §3.2.11A of the AR&DCC). However, the defendant had to sell his residence due to financial difficulties and with the permission of the Father, the defendant and his family moved into House 1 in 1984 (see §3.2.11B of the AR&DCC).

36.  As to the Land, the plaintiff pleaded that the Land was transferred by the Grandfather to 3^rd Uncle in 1960 (see §4.2 of the AR&DCC) and as 3^rd Uncle lived in Kowloon, he permitted the Father to continue to occupy and control the Land (see §4.2.1B of the AR&DCC).

37.  Subsequently, 3^rd Uncle had financial difficulties and sold the Land to Chan Kam Fat[10] for a consideration of HK$50,000 in 1976 (see §4.2.2(2) of the AR&DCC). As Chan Kam Fat also owned another piece of land nearby, he permitted the Father to continue to occupy and control the Land (see §4.2.2(3)-(4) of the AR&DCC).

38.  In 1979, Chan Kam Fat sold the Land for HK$235,000 to Yim Chun, who did not occupy the Land (see §4.2.2(6)-(7) of the AR&DCC).

39.  It is the plaintiff’s case that despite the above changes of legal ownership, the Land continued to be under the control of the Father (see §4.2.2 of the AR&DCC).

40.  The plaintiff pleaded that in 1987, it was the Father who demanded 5^th Uncle and his family to move away from House 2 so that the Father could arrange for the defendant and his family to move from House 1 to House 2 (see §4.2.4 of the AR&DCC).

41.  As a result, through the arrangement of the Father, 5^th Uncle and his family moved away from House 2 and the defendant and his family moved into House 2 in 1988 (see §4.2.5 of the AR&DCC).

42.  In about 1990, the plaintiff set up Canon Enterprise Co[11] and operated a factory to the east of House 2 (see §§4.2.6-4.2.7 of the AR&DCC). The defendant and his wife were employed by Canon Enterprise Co until it ceased operation in 2009 (see §4.2.7 of the AR&DCC).

43.  In May 1991, the plaintiff purchased the Land from public auction for HK$325,000 (see §4.2.9 of the AR&DCC) and became the registered owner of the Land from 7 June 1991 onwards (see §4.2.10 of the AR&DCC).

44.  The plaintiff pleaded that after purchasing the Land in 1991, there was an oral agreement between the plaintiff and the defendant whereby the plaintiff permitted the defendant and his family to continue to occupy House 2 as their residence as staff of Canon Enterprise Co without paying rent, on the condition that the defendant would be responsible for the utilities bills of House 2 while Canon Enterprise Co would be responsible for paying rates and government rent of House 2 (see §4.2.11 of the AR&DCC).

45.  The plaintiff further pleaded that Canon Enterprise ceased operation in 2009 and the defendant and his wife became unemployed (see §5.3.7 of the AR&DCC). Thereafter, the plaintiff and the defendant had another oral agreement whereby the plaintiff permitted the defendant and his family to continue to reside at House 2 (first floor) until further notice, on the condition that in addition to utilities bills of House 2, the defendant would also be responsible for paying rates and government rent of House 2 (see §5.3.8 of the AR&DCC).

46.  By reason of the above matters, the plaintiff required the defendant to prove that the defendant had the requisite intention to establish adverse possession since 1988 (see §12.2 of the AR&DCC).

47.  There was no subsequent pleading filed by the parties.

IV. THE ISSUES

48.  Shortly before the trial, the parties filed an Agreed Statement of Issues dated 21 September 2018, which was settled by the parties’ counsel and signed by their respective solicitors.

49.  Two issues were identified by the parties’ legal representatives as follows:-

“1. Was there a licence in or around June/July, 1991 and/or another licence in around 2009 granted by the Plaintiff to the Defendant as pleaded in sub-paragraphs 4.2.11 and 5.3.8 of the Amended Reply and Defence to Counterclaim?

2. If answer to (1) is in the negative, can the Defendant prove the physical possession and the requisite intention to possess (animus possidendi) the Land as defined in paragraph 1 of the Statement of Claim for the requisite 12 or 20 years before the commencement of the present proceedings?”

50.  For the applicable limitation period, Mr Ko accepted that the defendant has to establish that he has adversely possessed the Land since October 1988 for 20 years (see §3(b) of the defendant’s closing submissions). This is also accepted by Mr Wong for the plaintiff (see §1(b) of the plaintiff’s closing submissions). This is, of course, a correct position taken by the parties in view of section 38A(1) of the Ordinance.

51.  As can be seen from the parties’ pleaded cases as set out above, the plaintiff does not dispute that the defendant has been physically occupying House 2 since 1988.

52.  It is the plaintiff’s case that the defendant was permitted by the Father and subsequently the plaintiff to occupy the Land (and House 2).

53.  The defendant’s case, in essence, is that he has been occupying the Land (and House 2) as an “abandoned” land (“已經荒廢的物業”)[12] since 1988 without any person’s consent or permission.

54.  As such, the present dispute of the parties boils down to a factual issue as to whether the defendant had the requisite intention to possess while occupying the Land over the years since 1988.

55.  If the defendant was all along permitted by the Father and later the plaintiff to occupy the Land (as opposed to occupying the Land as an abandoned or deserted land), the defendant could not have the requisite intention to possess.

V. LEGAL PRINCIPLES ON ADVERSE POSSESSION

56.  Sections 7 and 17 of the Ordinance provide:-

“Section 7(2)

No action shall be brought by any person to recover any land after the expiration of [20][13] 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 ….

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.”

57.  Mr Wong drew my attention to Civic Limited v 余綺妙 & Ors, HCA 225/2011, unrep, 28 March 2014, in which DHCJ Marlene Ng (as she then was) set out the relevant principles on adverse possession at pp 11-18:-

“26. Both factual possession and intention to possess are questions of fact, and the burden is on the squatter claiming adverse possession to prove both elements. It has been said in Powell as follows:

“(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”)

…….

The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will readily be assumed to have the requisite intention to possess, unless the contrary is clearly proved ……. Where the question is whether a trespasser has acquired possession ……. 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 ……”

27. There is, therefore, no legal burden on the plaintiff as paper owner to prove there was “no sufficient intention to possess” on the part of the Relevant Defendants (ie to disprove animus possidendi). Since the legal burden of establishing both factual possession and animus possidendi fell on the Relevant Defendants, the fact that factual possession had been admitted would not absolve them of their responsibility to prove the requisite intention to possess. After all, as explained in Powell, the paper owner will readily be assumed to have the requisite intention to possess unless the contrary is clearly proved.

28. Such legal burden to establish animus possidendi would not shift even though the plaintiff had the evidential burden of showing the Relevant Defendants were in possession of the Land with permission, licence or consent. Such evidential burden is no more than one to adduce evidence of what is asserted that is sufficient to go to the jury, ie that it is on its face believable, which is not the same as saying the plaintiff would bear the legal burden of disproving intention to possess on the balance of probabilities. Such evidential burden must not be conflated …. with the legal burden that always rested on the Relevant Defendants to establish animus possidendi.

29. In Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd, Nazareth NPJ in giving the Court of Final Appeal’s reasons for decision said as follows:

“26. …… this novel submission does not displace Slade J’s principles in Powell v McFarlane. To dispossess the respondent the owners would have to establish possession by an appropriate degree of physical control and the requisite intention to possess ie an “intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner”: per Slade J approved by Lord Browne-Wilkinson in JA Pye (Oxford) Ltd v Graham. If they were to succeed in doing so, then they would establish possession for themselves and not for the corporation.

27. What clearly show that the appeal must fail are the alleged acts of possession relied upon. It can be seen from the judgment of Yuen JA that these plainly do not constitute or demonstrate the necessary factual possession or requisite intention to possess. The result is fatal however creative or inspired associated legal submissions may be.”

It is therefore plain the squatter carried the legal burden to establish that the alleged acts of possession demonstrate both the necessary factual possession and the requisite animus possidendi. It is only when the acts of possession are shown to be so certain and unequivocal as to “constitute or demonstrate the …… requisite intention to possess” that the occupier discharges his burden of proof.”

…

37. For completeness, I should mention that in determining whether or not the legal burden of proof has been discharged the court has to assess all the circumstances, and the evidence the occupier has to adduce must be compelling. But this does not alter the standard of proof, which remains the balance of probabilities. All it means is that the evidence adduced must be of such a quality and nature that, if accepted on the balance of probabilities, it is sufficient to establish both factual possession as well as an intention to possess….” (emphasis added)

58.  Mr Wong also relied on Wong Tak Yue v Kung Kwok Wai & Anor (1997-98) 1 HKCFAR 55, in which Li CJ said at 69B:-

“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.” (emphasis added)

59.  Mr Ko, for the defendant, cited Slade J’s dicta in Powell v McFarlane (1977) 38 C & PR 452 at 470-471:-

“(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…. 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.”

(4) The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M.R. in Littledale v Liverpool College …. as “the intention of excluding the owner as well as other people.” This concept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land will realise that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in a position to exclude him. 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.” (emphasis added)

60.  Mr Ko also relied on JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, in which Lord Hope said at 446A-B, §70:-

“… 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.” (emphasis added)

61.  Applying the above legal principles to the present case, it is clear that:-

(1) The legal burden of establishing both factual possession and animus possidendi squarely falls on the defendant.

(2) The fact that the plaintiff does not dispute that the defendant has been occupying the Land (or House 2) since 1988 will not absolve the defendant of his responsibility to prove the requisite intention to possess.

(3) Such legal burden to establish animus possidendi will not shift even though the plaintiff has the evidential burden of showing that the defendant was permitted by the Father and subsequently the plaintiff to occupy the Land (or House 2).

(4) The evidential burden borne by the plaintiff is one to adduce evidence to show that what is asserted by the plaintiff is on its face believable.

(5) The plaintiff does not bear any legal burden of disproving intention to possess on the balance of probabilities.

(6) The legal burden to prove animus possidendi on the balance of probabilities always rests on the defendant.

(7) When determining whether or not such legal burden of proof has been discharged, the Court is required to examine the particular circumstances of the present case, including evidence of acts which have taken place.

62.  As fairly pointed out by Mr Ko in §6 of the defendant’s closing submissions, the parties are in agreement on the relevant law and the main disputes between the parties are factual.

63.  I shall assess the evidence adduced by the parties with the above legal principles in mind.

VI. THE DEFENDANT’S LATE APPLICATION TO AMEND PLEADING

64.  Before I turn to the evidence, I shall refer to the defendant’s belated application to re-amend the AD&CC and the circumstances in which such application was made.

65.  Included in the trial bundles are (a) the plaintiff’s expert report dated 30 March 2017; (b) the defendant’s expert report dated 18 January 2017; (c) Joint Statement made by both experts dated 9 June 2017; and (d) Supplementary Joint Statement made by both experts dated 18 October 2017.

66.  The expert reports were prepared for the parties to adduce evidence on (i) the history of the boundary of the Land; and (ii) the existence of the second storey of House 2.

67.  As shown in the two Joint Statements, the parties’ experts were in agreement on essentially all issues.

68.  Pursuant to an Order made by Master G. T. Lung dated 15 January 2018, the Joint Statement and the Supplemental Joint Statement prepared by the parties’ experts be admitted at trial without the need for the makers to give evidence at trial.

69.  At the trial, there is no dispute between the parties that in 2000 a smaller structure on the roof of House 2 was extended to cover the whole area and become the second storey of House 2 for the use of the Nephew (see §14 of the defendant’s closing submissions).

70.  As noted above, upon the parties’ pleadings, there is also no dispute as to the boundary of the Land.

71.  It is therefore the plaintiff’s position at the trial that the above expert reports “are of limited relevancy to the present proceedings” (see §12 of the plaintiff’s opening submissions).

72.  With the above background in mind, it came as a surprise to the Court that a point was raised by Mr Ko in §8 of the defendant’s opening submissions as follows:-

“The Defendant’s case is that there was a confusion as to whether House 2 was erected on [the Land], and the Plaintiff thought that, by purchasing [the Land], he was purchasing a piece of vacant land behind house 627 to enable him to maintain an access road to his electronic factory.” (emphasis added)

73.  Despite the Order made by Master G. T. Lung dated 15 January 2018, Mr Ko also stated in §13 of the defendant’s opening submissions that it was the defendant’s intention to call the defendant’s expert witness at the trial.

74.  On the first day of the trial, the request to call the defendant’s expert was raised by Mr Ko again in order to lead further evidence on the defendant’s point that there was a confusion as to whether House 2 was erected on the Land and whether the plaintiff was aware that he was purchasing House 2 when acquiring the Land in 1991. For ease of reference, I shall refer to this argument raised by Mr Ko as the “Confusion Point”.

75.  Mr Wong objected to the defendant’s request to call the expert witness on the basis that the expert evidence was irrelevant as it was never the defendant’s pleaded case that House 2 was not situated on the Land and, as such, the trial should not be concerned about whether there was any change in the boundary.

76.  Mr Ko conceded that the Confusion Point was not pleaded but argued that it was part of the reason why the defendant said there was no licence granted by the plaintiff to the defendant in 1991 as the plaintiff was not aware that he was purchasing House 2 at that time.

77.  When asked by the court whether the Confusion Point represented a material fact in respect of the defendant’s stance for this trial, Mr Ko explained that the Confusion Point did not go to prove the defendant’s case but it went to credibility. He added that he would not classify it as a material fact but it was important in the context.

78.  It was then pointed out by the court to Mr Ko that given that the Confusion Point was not pleaded, the trial had to proceed on the basis of the existing pleadings.

79.  It was at that juncture that Mr Ko said to the court that he had an oral application to make for leave to amend the defendant’s pleading.

80.  The court then indicated that it was not prepared to deal with any request to amend pleadings on the first day of trial in the absence of any summons.

81.  The court also suggested to the parties that any request to call the expert witness could be revisited after the conclusion of evidence from the factual witnesses.

82.  The trial commenced on such basis. In the late morning of day 1 of the trial, Mr Wong called the plaintiff to give evidence and Mr Ko began to cross-examine the plaintiff.

83.  The defendant took out a summons in the afternoon of day 1 of the trial for leave to re-amend the AD&CC. The application was opposed by Mr Wong. As the plaintiff was in the course of giving evidence, with Mr Ko’s consent, leave was granted to Mr Wong to communicate with the plaintiff only in relation to the defendant’s amendment application.

84.  After receiving the parties’ submissions on day 2 of the trial, I dismissed the defendant’s Summons filed on 5 October 2018 for leave to re-amend the AD&CC (“Amendment Summons”) with reasons for the decision in writing to be given, which I now do.

85.  The principles governing amendments to pleadings are well-established.

86.  Mr Ko cited Hsu Ming Chi v Lam Shu Chi, HCCL 8/2013, unrep., 22 October 2014, in which Ng J said:

“13. It is a guiding principle of cardinal importance on the question of amendment that generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings”: Re Playmates Investments Ltd [1996] 4 HKC 577 at 582E-H (per Le Pichon J as she then was); Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455 at para. 25 (per Cheung JA); Hong Kong Civil Procedure 2014 Vol. 1 para 20/8/6.

14. Leave is readily granted to amend before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail. While the court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation: Natamon Protpakorn v Citibank NA supra at para. 25 (per Cheung JA).

15. If the proposed amendments are bound to fail, no leave to amend should be granted. In this regard, the court will take the applicant’s proposed pleaded case to the highest: Bank of China v Leigh Hardwick unrep., HCA 1110 of 2006, 28 August 2013, per Anthony Chan K at para. 2.

16. Absent any real prejudice, an application for amendment, albeit late, must be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication: VSC Building Products Co Ltd v Kono Insurance Ltd, unrep. HCA 947/2005, 9 September 2009, per A Cheung J (as he then was) at [22].

17. Where prejudice is claimed, the burden is on the party opposing the amendment to show prejudice. There is no injustice to the opposing party if he can be compensated by appropriate orders as to costs: Re Playmates Investments Ltd supra at 582H, 584C (Le Pichon J as she then was).

18. Lastly, in giving effect to the underlying objectives of the Rules of the High Court, including those concerning amendments, the court shall always recognize that the primary aim in exercising the powers of the court is to “secure the just resolution of disputes in accordance with the substantive rights of the parties”: RHC O1A r2(2).” (emphasis added)

87.  I note that the application for amendment before Ng J in Hsu Ming Chi was made well before trial.

88.  Mr Ko also cited Tang Kam Wah v Tang Ming Yat [2003] 1 HKC 532, in which a party applied to re-amend its pleading on the fourth day of a trial. That case, however, was decided prior to the Civil Justice Reform and did not therefore offer great assistance.

89.  Mr Ko further referred me to Igal Dafni v CMA CGM SA [2013] 2 HKLRD 73, in which Recorder Horace Wong SC dealt with an application to amend pleadings on day 8 of a trial and after all the evidence of factual witnesses had been completed. My attention was specifically drawn by Mr Ko to §26:

“26. As to the Miscellaneous Amendments, although Mr Bartlett, counsel for the plaintiff, indicated that he objected to them, in neither his written nor oral submissions has he made any serious attempt to maintain his objection. The subject-matters of these amendments have been explored in the evidence (most of them are in fact covered by the witness statements) without any objection by Mr Bartlett, and the plaintiff cannot really (nor has he) complain(ed) as having been taken by surprise, despite the lateness of the application. The Miscellaneous Amendments merely seek to clarify the issues and to tidy up the Amended Defence and Counterclaim inasmuch as the same have omitted to expressly plead the matters before. While a lack of prejudice is not conclusive of the exercise of discretion in favour of the applicant for amendment, in the present case I am satisfied that allowing the Miscellaneous Amendments is necessary for the fair disposal of the cause or matter in this action in that it would facilitate the determination of the real controversy of the issues in this case without causing any prejudice to the plaintiff, and without causing any disproportionate increase of wastage of costs. I have therefore allowed the Miscellaneous Amendments.” (emphasis added)

90.  In response, Mr Wong referred me to the following paragraphs in Igal Dafni:-

“19. Generally speaking, the Court would allow amendments made for the purpose of determining the real question in controversy between the parties. Leave is readily granted to enable such amendments to be made before trial unless it can be shown that the new claim based on the proposed amendments is bound to fail: see, Natamon Protpakon v Citibank NA [2009] 1 HKLRD 455, 463. However, while amendment can be made at any stage of the proceedings, the later the stage the more scrutiny the application will be subject to. This was so before the Civil Justice Reform (CJR) but all the more so now, after the High Court Rules have been amended to expressly state that the underlying objectives of the Rules are, inter alia, “to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court”, “to ensure that a case is dealt with as expeditiously as is reasonably practicable”, and “to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings” (see O1A r 1)....

20. There is also a clear difference between allowing amendments to clarify the issue in dispute and those that set up a new claim or defence for the first time. This difference is particularly important in respect of late amendments. An application made at trial that seeks to introduce a wholly new cause of action or defence at a late stage is more likely to cause prejudice, delay and wastage of costs. The courts will not readily accede to such an application especially when the new claim or defence could have been raised and the need for amenbdments was abundantly apparent before the trial begun: Tang Kam Wah v Tang Ming Yat [2003] 1 HKC 532, at 541E-542I per Stock JA (as he then was).

21. The addition of r.8(1A) to O.20 of the Rules of the High Court (L.N, 152 of 2008), requiring the Court to refuse amendments that are not necessary either for the fair disposal of the cause or matter or for saving costs, is plainly consistent with the underlying objectives set out in r.1A of the Rules. The burden is upon the applicant to satisfy the Court that the amendments are indeed necessary for the fair disposal of the cause or matter, or for saving costs. In general, whether prejudice (not compensated by costs) is likely to be caused by allowing the amendments is an important consideration in the exercise of the Court’s discretion, as the presence of such prejudice is directly related to the question of “fairness” by which the Court disposes of a cause or matter. But the mere absence of prejudice (in the sense of prejudice not compensatable by costs) does not mean that the amendments must be allowed. For example, the prospect of costs wasted in having to adjourn a trial because of the amendments will militate against granting leave. As the editors of Hong Kong Civil Procedure 2012 rightly observed (at 20/8/12):

It is not the practice today, as it was in the past, invariably to allow a defence which is different from that pleaded to be raised by amendment at the end of the trial even on terms that an adjournment is granted and that the defendant pays all the costs thrown away: the grant of an amendment by the trial judge is a matter for his discretion to assess where the justice lies, having regard to many factors … since justice annot always be measured by money.” (emphasis added)

91.  Another decision cited by Mr Ko was Chan Cheung Ming Jacky v Siu Sin Man [2014] 5 HKLRD 89, in which Lam VP (as he then was) said:

"27. The second caveat we have is about the comment of Poon J at [6] of his judgment on the possibility of an application being dismissed on the basis of delay alone. Whilst we would not rule out this possibility entirely, one must always bear in mind O.1A r.2(2). As with the exercise of other kinds of discretion, the exercise of case management power must be with reference to the facts and circumstances of the case before the court. There is no place for the application of a mechanical rule that the court will invariably refuse an application simply because a party is guilty of serious delay without any good explanation. The court must conduct an overall balancing exercise.”

92.  I should mention that in Chan Cheung Ming Jacky, the Court of Appeal was dealing with a late application for leave to issue a subpoena but not a late application to amend pleadings.

93.  On the issue of delay, Mr Wong referred me to Hongkong Changyi Real Estate Development Limited v Neo-China (Group) Infrastructure Investment Limited & Ors, HCA 1576/2011, unrep, 25 February 2014, in which Mimmie Chan J said at pp1-4:-

“1. Nearly 5 years after the implementation of the Civil Justice Reform, parties should be under no doubt by now that the courts will have no hesitation now to reject a late application, made when trial is imminent, for either amendment of pleadings, discovery or the filing of witness statements, which application has the effect of disrupting the preparation for trial with the risk of milestone dates such as a pretrial review or the trial dates themselves being affected. Delay itself is a ground justifying refusal of leave, since delay of a trial is prejudice to a party, who has every right to expect that a trial fixed months ahead with due notice to the parties can proceed without disruption and time and costs being wasted… The applicant for leave must establish, by affidavit evidence, exceptional circumstances to explain and justify the delay. Change of the legal team has rarely, if ever, been accepted as justification for a last minute change of case or amendment of pleadings, which would result in or necessitate a response from the other side which it cannot in all fairness be expected to do in the availability of time before trial. PD 5.2 makes it clear that change of the legal team will not be treated as exceptional circumstances.

…

3. The objectives of the Civil Justice Reform are to encourage early preparation of trial, dealing with cases expeditiously, costs-effectiveness and proportionality. Although there is no doubt that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights o the parties, it can hardly be said to be just if a party is required, as a result of late applications made by its opponent at the last minute, in disregard of timetables laid down by the court in good time at case management hearings in and pretrial review hearings, to plead to amendments, consider new documents and evidence, and to file supplemental witness statements at the eve of trial.” (emphasis added)

94.  For the avoidance of doubt, Mr Ko referred me to a couple of other cases which I also duly considered.

95.  By the Amendment Summons, the plaintiff proposed to add a new paragraph 4C to the AD&CC as follows: “在買入Lot B3C 時原告人並不知道2號屋坐落在該土地上”.

96.  The plaintiff sought to add a new plea to the AD&CC to allege that the plaintiff was not aware that House 2 was erected on the Land at the time when the plaintiff purchased the Land.

97.  Mr Ko submitted that the proposed amendment did not raise a new defence but was raised simply to make “salient a real question in controversy between the parties” in relation to the Confusion Point (see §17 of the defendant’s skeleton submissions for the Amendment Summons).

98.  Mr Ko added that as the parties had all along proceeded on the basis that the Confusion Point was a live issue, it would be extremely unfair if the defendant were to be debarred from relying on it. He further submitted that had the pleading point been taken earlier by the plaintiff, the defendant could have applied to amend the pleading before trial (see §3(d) of the defendant’s skeleton submissions for the Amendment Summons). With respect, I disagree with Mr Ko’s argument, which was putting the cart before the horse.

99.  As noted in Section III above, the Confusion Point was never pleaded, whether expressly or implicitly, in any of the defendant’s pleadings. The defendant never suggested in any of his pleadings that House 2 was not situated on the Land.

100.  Quite the contrary, it is expressly stated by the defendant in various parts of his pleadings that House 2 was erected on the Land (see §2 of the AD&CC, §1, §3.4, §3.5.1, §3.5.3 & §11 of the 1^st Reply, and §9.4 of the 2^nd Reply).

101.  In particular, it is unequivocally pleaded in §9.4 of the 2^nd Reply that the address of the Land was referred to as House 2 in 1988 and this remained the same subsequently.

102.  It is thus on the basis that House 2 was erected on the Land that the defendant further pleaded that he began to occupy the Land (and House 2) in October 1988 when no one claimed to be an owner of the same (see §2 of the AD&CC). The defendant also pleaded that he only became aware that the plaintiff was the registered owner of the Land in about 2014 when he received a notice of sale and a Chinese letter from the plaintiff (see §19.1 of the 3^rd Reply).

103.  In other words, by his pleaded case, the defendant is suggesting that there could not have been any oral licence granted by the plaintiff to the defendant to use the Land in 1991 or 2009 (as suggested by the plaintiff) as the defendant only became aware that the plaintiff was the owner of the Land in 2014.

104.  Furthermore, the defendant was specifically asked by the plaintiff to state all the matters that he relied upon to demonstrate his alleged intention to possess in this action. In response, the defendant unequivocally pleaded the following in §11 of his 1^st Answer:-

“要求

11. 請說明除霸住以外，所有被依據作顯示和證明聲稱逆權侵佔的意圖和事實的詳情。

答覆

11. 一直以來，被告人當該物業包括物業上之旅行建築物（二號屋）作為自己擁有的物業及財產，在沒有任何人的同意下完全獨自管有該物業，如業主搬佔用及使用該物業，支付該物業之支出，維修及改建該物業上知建築物（二號屋），准許陳智恆在該物業上之建築物（二號屋）加建一層及准許陳智恆及其家人在第二層居住。除在被告人之准許下，任何人（不論其業主）均不得進入或使用該物業。” (emphasis added)

105.  There was no mention of the Confusion Point at all. Nor did the defendant state that House 2 was not erected on the Land.

106.  It was on the basis of such pleaded case of the defendant that the plaintiff filed his AR&DCC and subsequently prepared his evidence.

107.  Thus analyzed, it is clear that the proposed amendment is not only seeking to raise a new defence but is also inconsistent with the defendant’s existing pleadings.

108.  I turn to Mr Ko’s argument that the Confusion Point was all along a live issue on the basis that this issue was already “extensively ventilated between the parties via witness statements” (see §3(a) of the defendant’s skeleton submissions for the Amendment Summons).

109.  It is true that the Confusion Point was mentioned in the witness statements of the defendant’, the witness statement of Chan Kwai Wing, the witness statement of Chan Wing Hung[14] and the witness statement of Chan Wan Kwong[15].

110.  It is also correct that the Confusion Point was touched upon in the plaintiff’s 2^nd supplemental witness statement. However, I disagree that the Confusion Point was already fully or extensively ventilated by the parties through witness statements because this issue was only briefly covered in the plaintiff’s 2^nd supplemental witness statement. I said “briefly” because §§3, 4, 5 & 7 of the plaintiff’s 2^nd supplemental witness statement contained only 4 sentences in relation to the Confusion Point.

111.  What Ma CJ stated in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at §21 is apposite:

“It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited:-

“(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.””

112.  Mr Ko sought to argue that the Amendment Summons was akin to the situation in Igal Dafni, supra, in which Recorder Horace Wong SC allowed a late application to amend pleadings on day 8 of the trial. Each case, of course, must depend on its own facts.

113.  As noted in §89 above, the defendant in Igal Dafni applied for leave to amend the pleadings after all the evidence of factual witnesses had been completed. The subject-matters of the proposed amendments had been explored in the evidence during the course of the trial without any objection from the plaintiff. The plaintiff did not complain as having been taken by surprise despite the lateness of the application there.

114.  In the present case, the Amendment Summons was taken out on the first day of the trial. The plaintiff was objecting to the defendant’s attempt to raise or run an un-pleaded issue out of evidence which was to be adduced or explored at the trial. This is precisely what Ma CJ said in Kwok Chin Wing that parties should not be allowed to do.

115.  As explained by Mr Wong, the plaintiff’s position was that the Confusion Point was only briefly touched upon in the plaintiff’s 2^nd supplemental witness statement because the plaintiff considered it unnecessary to deal with each and every allegation raised by the witness statements from the defendant’s side in relation to an issue which was not pleaded.

116.  As such, as submitted by Mr Wong, the plaintiff would be seriously prejudiced if the defendant were to be allowed to raise or run an unpleaded issue now since the plaintiff might have sought to adduce more evidence on the Confusion Point had it been properly pleaded.

117.  In Civic Limited v 余綺妙 & Ors, supra, DHCJ Marlene Ng (as she then was) rejected a similar attempt by the defendants to run an un-pleaded defence at trial. Her Ladyship thus said at p 61, §123:

“… I fear such submissions reflect the misunderstanding of the function of pleadings discussed above which is to identify the issues and the scope of the dispute to enable the other side to know the case they have to meet. The other side should not be left to speculate what points may be taken beyond the parameters of the pleaded defence. Here, even though the plaintiff might have been satisfied in meeting the existing defence on Rose’s evidence, there is no telling whether (if they were informed that the Relevant Defendants would rely on the 1^st Contention) they would wish to adduce further evidence. I agree that the plaintiff had been surprised and forensically prejudiced by the late revelation of the 1^st Contention.” (emphasis added)

118.  Included at page 116 of trial bundle C is a letter from the defendant’s solicitors to the plaintiff’s solicitors dated 29 December 2015. That letter was issued shortly after the defendant considered the matters pleaded by the plaintiff in the AR&DCC. The possibility of raising the Confusion Point was first mentioned in that letter, which subsequently resulted in the parties obtaining expert evidence. It suffices to say that the Supplementary Joint Statement by both parties’ experts was filed on 6 November 2017 with a conclusion at §1.9:

“As such, we consider that lot boundaries to accord to the existing houses should reflect the original intention and that the already defined adjacent lot boundaries are found acceptable. In this regard, we agreed to stand on our previous Joint Statement that the area for study would focus on the built-up portion of the Subject Lot, i.e. “Suit Land”, without doubting on its being Lot No 1695 S.B. ss3 S.C.” (emphasis added)

119.  Mr Wong drew my attention to the 2^nd Listing Questionnaire of the Defendant filed on 5 January 2018 for the Case Management Conference hearing on 15 January 2018. In that Listing Questionnaire, the defendant confirmed that his pleadings were in order and required no further amendment. The defendant also confirmed that there was no intention to cross-examine the other party’s expert at trial. There was no mention of the Confusion Point when the defendant set out in his case in the Summary of Brief Factual Background attached to the Listing Questionnaire. It was on such basis that Master G. T. Lung set this action down for trial for 5 days with a direction that the Joint Statement and Supplemental Joint Statement prepared by the parties’ experts be admitted at trial without the need for the makers to give evidence.

120.  The pre-trial review hearing on 10 July 2018 was attended by counsel from both sides. There was no application/ request to amend pleadings or to call the maker of any expert reports at trial. The Agreed List of Issues filed on 21 September 2018 was settled by Mr Wong and Mr Ko and signed by the parties’ solicitors, the function of which, of course, was to identify the issues to be determined at this trial, and the Confusion Point was nowhere to be seen.

121.  In such circumstances, given the pleaded case of the defendant, the plaintiff was fully entitled to assume that the Confusion Point was not, and would not, be an issue at trial.

122.  Regarding the question of prejudice, Mr Wong helpfully indicated to me that the defendant could make consequential amendments to the AR&DCC within one day if the Amendment Summons were to be allowed but it would take time for the plaintiff to arrange and prepare further evidence in response to the new plea, including but limited to liaising with his witness, Chan Wai Fan and, if necessary, locating further witnesses and making further enquiries with the plaintiff’s expert, given that the Confusion Point was connected to matters that happened over 40 years ago. Mr Wong was not optimistic that all these could be done very soon.

123.  Mr Ko accepted that the plaintiff should be allowed a fair opportunity to respond to the defendant’s new plea (if allowed). His proposal was that the plaintiff’s side should be given one day to take instructions as to whether and what further evidence would be required and the court could then decide whether an adjournment was necessary. The difficulty with Mr Ko’s suggestion was that why the plaintiff should be rushed in preparing further evidence to answer the new plea when it was the defendant who made a very late application to amend his pleading.

124.  In other words, the Amendment Summons, if allowed, would inevitably derail the trial (i.e. a milestone date), which would be highly undesirable. The plaintiff’s Reply was filed as early as 9 November 2015. There were ample opportunities for the defendant to apply to amend his pleading if he was so advised. The defendant was legally represented throughout these proceedings. As rightly pointed out by Mr Wong, the Amendment Summons was not supported by any affidavit seeking to justify the delay in making the amendment application. The defendant was claiming possessory title. The burden was squarely on him to make known to the plaintiff what exactly his case was and make good the same. The defendant took no step to amend his pleadings earlier to raise the Confusion Point. It is pleaded in various parts of his pleadings – which were settled by Mr Ko’s predecessor, a barrister of considerable seniority – that House 2 was erected on the Land. Change of legal representation was hardly a justification for late amendment of pleadings. The trial had already commenced and the plaintiff was already in the course of giving evidence. The defendant should be content with his existing pleadings.

125.  For the foregoing reasons, I dismissed the Amendment Summons. I also ordered that costs of and occasioned by the Amendment Summons be paid by the defendant to the plaintiff to be taxed if not agreed, with certificate for counsel. For taxation purpose, the time spent on the Amendment Summons was from day 1 of the trial at 2:30 pm up to day 3 at 9:44 am.

VII. ANALYSIS OF EVIDENCE

126.  The plaintiff and the defendant both testified in court in support of their respective cases on whether the defendant had the requisite intention to possess while occupying the Land over the years.

127.  Apart from himself, the plaintiff called the parties’ sister, Chan Wai Fan to give evidence on her understanding of the use of House 1 and House 2 in the past.

128.  The defendant called three other witnesses. The first one was Chan Wing Hung, who is the eldest son of Chan Kam Fat. As noted above, Chan Kam Fat purchased the Land from 3^rd Uncle in 1976. Another defendant’s witness is Chan Wan Kwong, who became the registered owner of another piece of land near the Land in 1991. The defendant also called Chan Kwai Wing, who is a younger brother of the parties. These witnesses gave evidence on their understanding about House 1, House 2 and/or the Land.

129.  The plaintiff, the defendant and their respective witnesses were cross-examined by the other side’s counsel, which I observed. Their evidence will also be assessed in conjunction with the documentary evidence adduced by the parties and the inherent probabilities of the parties’ cases.

Circumstances leading to the defendant moving into House 2 in 1988

130.  The plaintiff’s evidence is that the building comprising House 1 and House 2 was originally built by the Grandfather/ the Father. Despite the subsequent changes of registered owner in respect of the Land, the Father’s family all along regarded Land B3A and the Land as their home. For that reason, House 1 and House 2 were all along occupied by the Father’s family members or relatives.

131.  It is also the plaintiff’s evidence that in 1984, the defendant sold his own property in Yuen Long owing to financial difficulties and then moved into House 1 together with his wife and children, with the consent of the Father. At that time, House 2 (which was adjoining to House 1) was occupied by 5^th Uncle as the residence of his family. In 1987, as House 1 was housing 11 persons (including but not limited to the defendant’s family) and was running out of space, the Father demanded 5^th Uncle and his family to move away such that he could arrange for the defendant’s family to move into House 2. As a result, 5^th Uncle acceded to the Father’s demand and moved away from House 2 with his family in about September 1988.

132.  According to the plaintiff’s evidence, it was under such circumstances that the defendant and his family moved into and began to occupy House 2.

133.  In support of his case, the plaintiff also relies on a letter in Chinese from the Father to 5^th Uncle dated 13 October 1987 demanding 5^th Uncle to move (“13 October 1987 Letter”).

134.  I should mention that on the first day of the trial, Mr Wong and Mr Ko confirmed to the court that there is no dispute about the authenticity of all the documents included in the trial bundles, which of course include the 13 October 1987 Letter and other documents that will be referred to below.

135.  The defendant’s evidence is that in about April 1988, he suddenly discovered that 5^th Uncle and his family had moved away from House 2 for some time. As such, he considered House 2 to have been abandoned for a long time. He then decided to repair/ renovate House 2 in October 1988 and later moved into House 2 together with his family.

136.  In particular, the defendant said this in §15 of his witness statement (which he adopted as his evidence in chief):-

“大約於1988年4月，當時五叔及其家人已經全部搬離二號屋（“該物業”）一段時間，遂該物業已荒廢多時，亦沒有任何人士聲稱擁有該物業，本人於是在大約1988年10月將已荒置的該物業維修，之後便霸佔該物業作為本人及家人居住之用。當時並沒有任何人阻止本人霸佔該物業。” (emphasis added)

137.  The defendant also added in §9 of his supplemental witness statement (which he also adopted as his evidence in chief):-

“... 其後，五叔因一家十多口居住2號屋，只得一個房，而且大仔大女亦已經二十多歲，居住空間不夠，所以五叔一家於1988年頭已搬出二號屋，另居他處，本人於是由1988年10月起便霸佔2號屋作為家宅 …” (emphasis added)

138.  In assessing the parties’ evidence as to what actually happened in 1988, I have the following observations.

139.  According to the defendant’s evidence as cited above, he discovered that, by April 1988, 5^th Uncle and his family had already vacated House 2 for some time. A couple of months later, in October 1988, he decided to take over House 2. This was the basis on which the defendant considered the Land to be have been abandoned or deserted.

140.  House 1 and House 2 are adjoining. It is the defendant’s evidence in court that after the passing of the Grandfather and the parties’ grandmother, 5^th Uncle and his family started to use House 2 as their residence in the 1960s. In other words, by 1988, 5^th Uncle and his family had been residing at House 2 for over 20 years. Included in the trial bundles is also an assignment showing that 5^th Uncle did not acquire his self-owned property in Yuen Long until 26 July 1988 and the purchase price was HK$250,000.

141.  With such background in mind, the defendant was heavily cross-examined by the plaintiff’s counsel on his basis for suggesting that House 2 was an abandoned property in 1988. The defendant initially sought to explain what he meant was that House 2 was abandoned for a few months after 5^th Uncle moved away in April 1988. When further questioned by the plaintiff’s counsel, the defendant eventually changed his evidence by alleging that he considered House 2 to be an abandoned property a few days after 5^th Uncle moved away. I agree with Mr Wong’s submission that the defendant’s evidence on this point is self-contradictory.

142.  The defendant disputes the plaintiff’s case that it was the Father who demanded 5^th Uncle to leave and then arranged for the defendant to move into House 2. Instead, the defendant suggested that 5^th Uncle moved away out of his own volition as 5^th Uncle’s family required more space at home.

143.  Under cross-examination, the defendant admitted that 5^th Uncle’s new home in Yuen Long had a size of about 500 odd sq ft. When it was then pointed out to him that House 2 had a similar size and measured 560 sq ft (see §3.5.3 of 1^st Reply), the defendant tried to explain that House 2 only had 1 room and there was also some space in House 2 that could not be used for living purposes. When pressed again, the defendant admitted that it was actually possible to renovate House 2 to build more rooms. On such basis, the plaintiff’s counsel then suggested to the defendant that his case that 5^th Uncle out of his own volition decided to purchase and move to a property with a similar size instead of renovating House 2 to make more rooms, if space was really an issue at that time, did not really make economical sense.

144.  The only explanation that the defendant was able to offer was that 5^th Uncle was actually a trespasser on House 2 and that was why he decided to buy his own property and move. I agree with Mr Wong that this explanation did not sit well with the fact that 5^th Uncle had already been occupying (or upon the defendant’s case, trespassing) House 2 for 20 odd years by 1988. According to the defendant’s evidence, 5^th Uncle was aware of the alleged confusion about the boundary of the Land vis-a-vis House 2 (which was, of course, not accepted by the plaintiff). As such, upon the defendant’s case, 5^th Uncle would have acquired possessory title to the Land by 1988. Even if he decided to purchase a self-owner property, I can see no reason why 5^th Uncle would need to desert the Land as alleged by the defendant.

145.  More crucially, the defendant’s evidence that 5^th Uncle moved away from House 2 out of his own volition is contradicted by the contents of the 13 October 1987 Letter, which reads (with emphasis added):-

“棠弟

同你娶埋老婆給屋你住到今日已有叁拾餘年你的兒女既長成生活亦安定應該將屋歸還我有現在給你限期六 個月遷出不得再次藉端阻延最後通知切勿違命

丁卯    八    廿一                  

年    月    日                  

八七    十    十三                  

兄樹華字”

146.  I should mention that the Chinese character “棠” is identical to the third character of the Chinese name of 5^th Uncle, namely “陳增棠” and the Chinese name of the Father is “陳樹華”. There is no dispute that, in 1987, 5^th Uncle and his family were residing at House 2. There is no evidence suggesting that 5^th Uncle and his family were living in another property in 1987. It is therefore clear to me that, by the 13 October 1987 Letter, the Father was demanding 5^th Uncle to move away with his family from House 2.

147.  Under cross-examination, the defendant was asked about the contents of the 13 October 1987 Letter. He said that he had never read the 13 October 1987 Letter. Given that the defendant was legally represented throughout the proceedings, I find it rather surprising that the defendant said that he had not read the 13 October 1987 Letter.

148.  As noted above, the authenticity of the 13 October 1987 Letter is not disputed by the defendant. What the defendant seeks to argue is that as the defendant’s name was not mentioned in the 13 October 1987 Letter, the 13 October 1987 Letter is no proof that the Father arranged for the defendant to move into House 2 and does not have any impact on the defendant’s evidence that he entered House 2 as a squatter with the intention to occupy it exclusively (see §24 of the defendant’s closing submissions).

149.  With respect to Mr Ko, I am unable to accept such submission. By the 13 October 1987 Letter, the Father was demanding 5^th Uncle to move away from House 2 within 6 months. The Father even specifically demanded 5^th Uncle to return House 2 to him (“應該將屋歸還我有”). This shows that, rightly or wrongly, the Father considered himself to be the owner of House 2. As such, I find it inherently improbable that the defendant could have moved into House 2 as a squatter without any permission or consent from the Father, bearing in mind that the Father was actually residing in House 1 and must have known that the defendant and his family were moving from House 1 into House 2.

150.  In this connection, the defendant revealed during cross-examination that he was able to gain access into House 2 after 5^th Uncle and his family left in 1988 because the same key could open the door of House 1 as well as the door of House 2.[16]

151.  Mr Ko submits that it was unclear from the evidence whether the defendant meant that the same key could open the doors to House 1 and House 2 before the defendant moved into House 2 or during the period when he was occupying House 2.

152.  With respect, I disagree. It is clear from the defendant’s evidence that he was referring to the situation before the defendant moved into House 2 as the defendant was explaining why he was able to gain entry into House 2 after he suddenly discovered 5^th Uncle and his family left.

153.  There is no evidence from the defendant that he caused the door lock of House 2 to be changed after he and his family began to occupy House 2.

154.  As noted above, by way of request for further and better particulars, the defendant was specifically asked by the plaintiff to state all the matters that he relied upon to demonstrate his alleged intention to possess. The defendant’s answer is contained in §11 of the 1^st Reply. There is no suggestion from the defendant that the door lock of House 2 – which (according to the defendant’s evidence in court) could be opened by people living in House 1 with the door key of House 1 – was changed after he moved in. This is inconsistent with the defendant’s case that he had an intention to possess the Land exclusively all along.

155.  In my judgment, such arrangement about the door lock or door key of House 2 lends support to the plaintiff’s case that the defendant was actually permitted or allowed by the Father to occupy House 2 (or the Land) in 1988.

156.  The parties’ younger sister, Chan Wai Fan, also gave evidence in court on her understanding of the use of House 2 in the past. There is no dispute that Chan Wai Fan lived at House 1 for the period from 1956 to 1994.

157.  Chan Wai Fan said in §§4-6 of her witness statement dated 7 September 2017 (which she adopted as her evidence in chief):-

“4. 雖然我對一號屋及二號屋的業權都沒有深入了解過，但由我有認知以來，一號屋及二號屋都被我及家人視作家庭居所，居住在內的都是我的家人及/或親屬。

5. 我記憶所及，二號屋原本由祖父陳炳葵居住，他過身之後由五叔陳增棠及他的家人居住。

6. 五叔及其家人於約1988年遷出，之後被告人及他的家人便搬進二號屋居住。” (emphasis added)

158.  She then added in her supplemental witness statement dated 4 January 2018 (which she adopted as her evidence in chief):-

“2. 在第一份陳述書中第4段，我表示我對一號屋及二號屋的業權都沒有深入了解過。我是指我沒有主動找一號屋及二號屋的業權（title）作出研究。 如在第一份陳述書中第2段所述，我在1956年至約1994年間，都是住在一號屋的。故我對於他們的實質使用及佔用（actual use and occupation），是有認知的。

3. 於1984年前，被告人及他的家人居於元朗洪水橋柏雨花園。約於1984年，被告人遇到經濟困難，需要賣樓套現。 故在父親同意的情況下，被告人一家約在1984年搬到一號屋與我們同住。

4. 一號屋原本由我，我的父母，妹妹及侄兒同住。被告人一家搬進一號屋後，一共11人居住於一號屋。由於地方不夠，父親作為一家之主及兩所屋的管有人，約於1987年提出要求，希望五叔陳增棠一家可從毗鄰的二號屋搬走，而被告人一家則可住在二號屋。

5. 五叔陳增棠答應了父親的要求，並於1988年連同家人搬離二號屋。被告人一家於是按父親的指示及同意下，由一號屋搬進二號屋居住。” (emphasis added)

159.  Chan Wai Fan explained in court that she knew that 5^th Uncle moved into House 2 after her grandparents passed away in 1960s because 5^th Uncle and his family were living on the ground floor of House 1 at that time and Chan Wai Fan personally heard the Father told 5^th Uncle to move from House 1 to House 2. It is also her evidence that she was living with her parents and siblings in House 1 at that time.

160.  During cross-examination, Chan Wai Fan was heavily criticized by the defendant’s counsel that she only said in her supplemental witness statement that it was with the instruction/ consent of the Father that the defendant moved into House 2 in 1988 but this was not mentioned in her earlier witness statement. Chan Wai Fan’s explanation in court was that she did not specifically say that in her earlier witness statement because she was not familiar with legal matters and she was not specifically asked about such matter at the time when she was making her earlier witness statement.

161.  Having carefully considered the evidence of Chan Wai Fan in conjunction with other available evidence, I can see no reason not to accept her explanation in this regard. She is a lay witness and is not a party to these proceedings. I also note that there is a space of slightly less than 4 months between her two witness statements and in between the defendant filed his witness statement dated 19 September 2017, by which the defendant sought to substantively elaborate on his case. It is therefore not impossible that the plaintiff (or his legal advisers) only found it necessary to ask Chan Wai Fan to further elaborate on her evidence after considering the witness statement of the defendant.

162.  Overall I also find Chan Wai Fun to be an honest and reliable witness. In particular, I find her evidence on the circumstances leading to the defendant moving from House 1 into House 2 under the Father’s permission credible because it is consistent with, and supported by, my other observations above. I should also mention that, as rightly pointed out by Mr Wong, when asked about matters that she did not have personal knowledge, Chan Wai Fan would readily accept that.

163.  Chan Wai Fan actually lived in House 1 for the period from 1956 to 1994 and therefore had first-hand knowledge of the situation about House 1 and House 2. Both the plaintiff and the defendant are her elder brothers. She stated in her witness statement that she had no intention to move back to House 1 or House 2 in the future and therefore had no interest whatsoever in the outcome of this litigation. This was not challenged by the defendant. In closing submissions, Mr Ko suggests that Chan Wai Fan had a tendency to exaggerate evidence in favour of the plaintiff. However, the defendant has not provided any evidence as to why Chan Wai Fan might do so at the defendant’s expense. Nor was Chan Wai Fan asked about this at all when being cross-examined by the defendant. In these circumstances, I am unable to agree with Mr Ko’s submission.

164.  For all the above reasons, I have no hesitation in rejecting the defendant’s evidence that he moved into House 2 as an abandoned or deserted property. There is sufficient evidence for me to make a factual finding, which I do make, that the defendant moved from House 1 to House 2 (or the Land) in 1988 as he was permitted or allowed by the Father to do so.

The defendant’s occupation of House 2 after 1991

165.  Another key aspect of the factual dispute between the parties is in relation to what happened after the plaintiff acquired the Land through public auction in 1991.

166.  The plaintiff’s evidence is that in 1991, he was informed by the Father that the Land was put up for a forced sale. As the Father always regarded the Land to be under his actual control, the Father requested the plaintiff to acquire the Land. The plaintiff acceded to such request and eventually purchased the Land through public auction in May/ June 1991 for a consideration of HK$325,000, which represented the plaintiff’s own savings. The plaintiff became the registered owner of the Land. At that time, the defendant and his family were occupying House 2 as their residence. The defendant and his wife were employed by the plaintiff’s company, Canon Enterprise Co. The plaintiff then permitted the defendant and his family to continue to reside at House 2 (which was erected on the Land) rent-free as staff quarters on the condition that the defendant would be responsible for paying the utilities bills of House 2 whereas the plaintiff would be responsible for rates and government rent.

167.  It is also the plaintiff’s evidence that Canon Enterprise Co ceased operation in about 2009 and the defendant and his wife became unemployed. However, as the defendant was his younger brother and did not have any self-owned property at that time, in 2009 the plaintiff permitted the defendant and his family to continue to live at House 2 until further notice on the condition that the defendant would be responsible for paying the utilities bills of House 2 as well as rates and government rent.

168.  The plaintiff’s evidence is that he orally communicated with the defendant when giving his permission to the defendant to continue to reside at House 2 in 1991 and 2009 respectively.

169.  In support of his case, the plaintiff also relies on a letter written by the Father and distributed by the Father to his sons. The plaintiff’s evidence is that such letter was distributed by the Father to his sons in 1992. The date of this letter is disputed by the defendant. The defendant’s evidence is that the letter was distributed by the Father only in about 1997 (see §12 of the defendant’s supplemental witness statement). This letter is included at pages 1-2 of trial bundle C. As the date of this letter is hotly disputed by the parties, I shall just refer to this letter as the “C1 Letter” below.

170.  As noted above, the defendant began to talk about the Confusion Point in his witness statement and supplemental witness statement. In short, the defendant’s evidence is that in about 1970s, the Father was told by other people, including people from the Lands Department, that House 2 was not actually erected within the boundary of the Land and House 1 was not erected within Land B3A. Since then, it was the understanding of the Father and his sons that House 1 and House 2 were built on lands owned by other people. After acquiring the Land in 1991, the plaintiff never told the defendant that he owned the Land and House 2 until 2014. It is also the defendant’s evidence that the plaintiff purchased the Land in 1991 as the plaintiff wanted to make sure that no other person would build on the Land such that the access road leading to the factory of Canon Enterprise Co would not be blocked.

171.  Apart from disputing the date of the C1 Letter, the defendant relies on another letter written by the Father, which can be found at pages 3-5 trial bundle C. I shall refer to this letter as the “C3 Letter”. The defendant’s evidence is that the C3 Letter was distributed by the Father to his children, including the defendant, a couple of years before the Father passed away in 1998.

172.  I must emphasize again that the Confusion Point was not pleaded in the AD&CC or any of the three Replies (which form part of the defendant’s pleadings) at all.

173.  The defendant’s pleaded case is that House 2 was erected on the Land and the defendant has been occupying the Land since 1988 as an abandoned or deserted land. The defendant only became aware that the plaintiff was the owner of the Land in 2014. As such, there could not have been any oral licence granted by the plaintiff to the defendant to use the Land in 1991 or 2009.

174.  I shall be guided by, and decide this case on the basis of, the existing pleadings.

175.  I shall first turn to the C1 Letter and the C3 Letter which were relied upon by the plaintiff and the defendant respectively at trial.

176.  The plaintiff relies on the C1 Letter in support of his case that he purchased the Land and House 2 in 1991 upon the request of the Father and thereafter he granted an oral licence to the defendant to continue to live there. The plaintiff’s evidence is that the C1 Letter was handed to him by the Father in early 1992.

177.  The relevant part of the C1 Letter reads:-

“… 我在1950年所建成兩間屋 全部由我出錢建造的 現在所住的屋地 亦係出錢與父親購買得來的 兄弟分家時 父親將我間屋分給三弟（邦傑）名下 我亦無半句反對 最後邦傑出現經濟困難 將屋按給別人後又金發贖回 轉賣其他別人 買者再次按給財務公司 按無可按下 終須撥入拍賣行競投 驚聞消息之下 隨即前往律師樓查詢一切 然後與兒子爵榮商量 是否有錢前往競投 經過詳細考慮 然後投得回來的 現在亞松所住間屋 就是爵榮名下的 日後切勿發生枝節 自作小人…” (emphasis added)

178.  The plaintiff confirmed in his oral testimony that it was him who subsequently put down the word “1992” by way of a side note on the C1 Letter but his evidence remained that the C1 Letter was given by the Father in early 1992.

179.  The defendant does not dispute the authenticity of the C1 Letter. Under cross-examination, he accepted that the contents of the C1 Letter was referring to House 2. He did not dispute that the name “亞松” in the C1 Letter referred to him. It is also indisputable that “爵榮” is the first name of the plaintiff in Chinese. However, it is the defendant’s evidence that the C1 Letter was only given by the Father to his children in 1997 (i.e. about 1 year before the Father passed away in 1998).

180.  The contents of the C1 Letter are self-explanatory and directly contradict the defendant’s case that he only became aware that the plaintiff was the registered owner of the Land (or House 2) in 2014.

181.  When he was shown the C1 Letter during cross-examination, the defendant initially asserted that the Father was suffering from dementia at the time when writing the C1 Letter. When he was next asked by the plaintiff’s counsel what was the Father’s cause of death in 1998, the defendant then said the Father died of lung cancer. The defendant eventually conceded that he actually did not have any proof that the Father suffered from dementia in 1997.

182.  The defendant was then asked whether he tried to discuss the contents of the C1 Letter with his brothers after he received it in 1997 (upon his evidence) given that the C1 Letter directly impacted upon his entitlement to continue to use the Land. The defendant initially said that he did not see any need to do so as he considered what the Father said in the C1 Letter was untrue.

183.  In this connection, the defendant was later asked whether it remained his case that the plaintiff did not talk to him at all and just allowed the defendant to continue to occupy the Land even after the Father gave the C1 Letter to his children. The defendant changed his evidence again by alleging that the plaintiff chose to do nothing at that time because Canon Enterprise Co was operating next to the Land and if the plaintiff tried to assert his ownership over House 2, the owner(s) of the land on which Canon Enterprise Co was operating might try to take action to recover that piece of land. When asked by the court whether he actually talked to the plaintiff about all these, the defendant admitted that this was purely his own understanding and he did not talk to or ask the plaintiff about these at all.

184.  I note that this explanation from the defendant in the witness box in relation to the land on which Canon Enterprise Co was operating was not mentioned at all in his witness statements. More crucially, this explanation from the defendant is fundamentally at odd with his own pleaded case that the defendant only became aware that the plaintiff was the registered owner of the Land in 2014.

185.  Instead, the defendant relies on the C3 Letter. According to the defendant’s evidence, the C3 Letter was given by the Father to his children, including the parties, a couple of years before he passed away. The defendant’s evidence is that he was unable to recall exactly which year the C3 Letter was given by the Father but he was sure it came a few years before the C1 Letter.

186.  While the plaintiff’s evidence is that he never received the C3 Letter, Mr Wong confirmed at the outset of the trial that the authenticity of all the documents included in the trial bundles is not disputed by the plaintiff.

187.  It is not entirely clear to me why the defendant seeks to rely on the C3 Letter. When read carefully, the contents of the C3 Letter do not actually assist the defendant’s case. During cross-examination, the defendant urged the plaintiff’s counsel to focus on page C4 of the C3 Letter where the Father wrote “此發覺我的屋地屬於他人所有”. The defendant was then directed by Mr Wong to read on as the C3 Letter did not end at page C4 and was shown the following part at page C5:-

“日思夜想 找尋一個補救方法 惟有前往地政署 徹底查明清楚 查得以前物業財產 証實被大懵興強奪了 現在所住的屋地 以及門前的土地 確實係我父親所有 因為我父親在1960年代分派我們五兄弟 列明清楚 有圖為證 同時亦在理民府註冊 事實證明不怕他們再次強奪 經過兩年時間 在地政署尋得一張分契地圖 將來若有業權糾紛 法律訴訟便把一張分契圖 前往法庭 呈堂作證 屆時證據充足勝訴可以在望” (emphasis added)

188.  It is also the defendant’s evidence that the plan as stated in the C3 Letter (“分契地圖”) referred to the plan attached to his witness statement, which can be found at page 137 of the trial bundle A (“C3 Letter’s Plan”). It is expressly indicated in the C3 Letter’s Plan that a “House” was erected on “LOT NO 1695 B3C” (i.e. the Land).

189.  The contents of the C3 Letter, together with the C3 Letter’s Plan, are self-explanatory and, likewise, contradict the defendant’s case that he only became aware that the plaintiff was the registered owner of the Land in 2014.

190.  In other words, upon the defendant’s own evidence, a couple of years before 1998, the Father already announced to his children, including both parties, that he was aggrieved to find out that another person occupied his land(s) but by the time of the C3 Letter, the Father already retrieved the C3 Letter’s Plan from the Lands Department to show the correct records and protect his interest.

191.  Out of an abundance of caution, I should mention that the contents of the C3 Letter do not specifically refer to the Land or House 2. However, it is the defendant’s understanding that the C3 Letter was referring to the Land (see §7 of the defendant’s supplemental witness statement).

192.  I must also point out that in §7 of the defendant’s supplemental witness statement, the defendant said that the C3 Letter’s Plan did not show that House 2 was located at the Land. A careful reading of the C3 Letter’s Plan reveals the opposite – i.e. a “HOUSE” was erected on the Land. This was conceded by the defendant under cross-examination.

193.  During cross-examination, the defendant was asked whether it remained his suggestion that the plaintiff did not talk to the defendant at all about the use of the Land or House 2 even after the Father gave the C3 Letter to his children a couple of years before 1998. The defendant was unable to provide any satisfactory answer save that he said that he was operating a peanut oil factory on a piece of land owned by the Father and if it turned out that that piece of land belonged to someone else, his factory might have to be shut down. It was immediately pointed out by Mr Wong to the defendant that this explanation was never mentioned in any of his witness statements. The defendant was unable to provide any satisfactory reason why this was not raised before.

194.  In any event, the plaintiff’s counsel was asking the defendant about what happened a couple of years before the Father passed away, presumably 1990s. I am unable to see how what the defendant said by reference to his own factory in 1980s was relevant to what he was being questioned.

195.  In order to salvage the defendant’s case, Mr Ko in closing submissions seeks to discredit the contents of both the C1 Letter and the C3 Letter by suggesting that the contents of the two letters were inconsistent and therefore little weight should be placed on both letter. With respect, this is a misunderstanding of the evidence.

196.  When the defendant’s witness, Chan Kwai Wing gave evidence in court, he was asked by both Mr Ko and Mr Wong whether he remember when the C1 Letter and the C3 letter were given by the Father. Chan Kwai Wing was unable to recall when exactly he received the two letters but he remembered that he received the C3 Letter earlier than the C1 Letter.

197.  There is insufficient objective evidence to assist me in determining exactly when the C1 Letter and the C3 Letter were written by the Father to his sons. After all, the plaintiff, the defendant and Chan Kwai Wing were asked to recall something that happened possibly over 30 years ago.

198.  For the purpose of addressing Mr Ko’s submissions, it suffices to say that upon the defendant’s evidence, the C3 Letter came a couple years prior to the C1 Letter. If the two letters are to be considered in this sequence, there is simply no inconsistencies between the two letters as suggested by Mr Ko. A couple of years before 1998, the Father said to his children by the C3 Letter that he had already retrieved the correct records from the Lands Department to show that House 2 was erected on the Land. Upon the defendant’s evidence, the Father then gave his children the C1 Letter in about 1997. The C1 Letter simply stated that upon his request, the plaintiff acquired the Land on which House 2 was erected and House 2 was then used by the defendant as his residence.

199.  Indeed, the contents of the C1 Letter and C3 Letter are in line with the plaintiff’s brief evidence on the Confusion Point that there was once a rumour in 1970s that House 2 fell outside the boundary of the Land but such rumour was never substantiated by any documentary proof. In 1991, before he acquired the Land, the Father and he went to the Lands Department and reconfirmed that House 2 was located on the Land. There was therefore no mistake or confusion about the location of House 2.

200.  It was the evidence of the parties’ brother Chan Kwai Wing that he once went to the office of the Lands Department in Yuen Long in about 2007 and by chance saw that the records at the Lands Department showed the correct boundary of the Land. During cross-examination, the plaintiff’s counsel asked the defendant whether Chan Kwai Wing told him that. Upon further questioning, the defendant admitted that Chan Kwai Wing spoke to both the plaintiff and defendant about that in 2007.

201.  The defendant was then asked again whether it remained his case that the plaintiff said nothing to the defendant about the Land or House 2 even after the conversation with Chan Kwai Wing in 2007. The plaintiff’s counsel expressly pointed out to the defendant by 2007, the defendant had not yet occupied the Land for 20 years. The defendant was unable to provide any satisfactory explanation. What is clear is that the defendant’s case that he only became aware that the plaintiff was the registered owner of the Land in 2014 is contradicted also by cross-examination arising from the evidence of his own witness’s evidence.

202.  By contrast, the plaintiff’s case that after 1991 the defendant was all along permitted by the plaintiff to occupy House 2 is supported by another piece of contemporaneous document. It is the plaintiff’s case that the defendant was initially granted a licence to use House 2 on the condition that the defendant would be paying the ulities bills of the House 2. In 2009, after Canon Enterprise Co ceased operation, the condition for the licence to the defendant to remain in House 2 was varied to the extent that the defendant would also be responsible for rates and government rent.

203.  It is of course the defendant’s case that such oral licences never existed and he simply occupied House 2 without any interference from the plaintiff until 2014. Under cross-examination, the defendant was shown some WhatsApp messages exchanged between the plaintiff and the defendant on 20 January 2015. The WhatsApp conversation started with the defendant informing the plaintiff that he had already paid money in their family fund[17]. The plaintiff then sent this message to the defendant:-

“亞松：

你尚欠三季地租未交

2014年第三季$215元

2014年第四季$216元

2015年第一季$216元

合共$674元

請存入我的戶口及通知我。”

204.  The defendant responded to this demand for reimbursement of rates and government rents from the plaintiff with a symbol denoting “OK”.

205.  If the defendant had been occupying House 2 as an abandoned land and without any licence or permission from the plaintiff all along, it is hard to imagine why the plaintiff would ask the defendant to reimburse him for rates and government rent.

206.  When asked about this during cross-examination, the defendant sought to explain that by giving the plaintiff the “OK” sign above, he simply meant to tell the plaintiff that he had received the message. When asked again by Mr Wong why he indicated “OK” when the plaintiff was demanding him to pay rates and government rents, the defendant revealed that the plaintiff had actually called him by phone repeatedly to tell him to pay the plaintiff government rents prior to sending him that message. Mr Wong then asked the defendant why he did not reply to the plaintiff’s message by saying that paying government rents was never the defendant’s responsibility, given the defendant’s case that the alleged oral licence in 2009 did not exist. The defendant was unable to proffer any satisfactory answer save that he claimed he was very busy at that time.

207.  Mr Ko tries to play down the significance of these messages by saying that the exchange of messages came after the relationship of the parties deteriorated. In my judgment, by January 2015, the plaintiff had already issued his notice to quit to the defendant. In other words, it must be clear to the defendant that the plaintiff was seeking to evict him. Had the defendant really been occupying the Land for over 20 years with the requisite intention to possess, I would have expected the defendant to protest against the plaintiff’s message. There was none. Tellingly, the defendant indicated “OK” to the plaintiff’s message.

208.  Mr Ko also attempted to minimize the effect of the above WhatsApp messages when he was cross-examining the plaintiff. Mr Ko put a case to the plaintiff that shortly after the exchange of the above messages, the defendant actually said to the plaintiff that the defendant refused to pay the government rents to the plaintiff and then through the arrangement of the plaintiff, the payer for rates and government rent for House 2 on the record of the Rating and Valuation Department was changed from the plaintiff to the defendant. The plaintiff pointed out that the defendant changed the payer’s particulars without the plaintiff’s consent and when the plaintiff was subsequently notified by the government department, the plaintiff immediately changed the payer back to himself. Rather bizarrely, under cross-examination, the defendant conceded that it was him who unilaterally changed the payer’s particulars without the plaintiff’s consent. As noted above, the defendant also confirmed that he did not say to the plaintiff that paying government rents was not the defendant’s responsibility

209.  In this connection, from the available documents, there is a “notice of sale” written by the plaintiff dated 3 April 2014, by which the defendant was required to vacate House 2 by 1 September 2014. The timing of this “notice to sale” is in line with the defendant’s evidence that there was a family gathering on 3 April 2014 (see §15 of the defendant’s supplemental witness statement). There is also a letter/ notice to quit issued by the plaintiff to the defendant and his family dated 14 October 2014. As stated above, these two documents predated the above WhatsApp messages. Despite these two letters demanding the defendant to vacate House 2 and the above WhatsApp messages, I note that there is no written reply/ protest coming from the defendant.

210.  In my judgment, the defendant’s reaction to the plaintiff’s various written demands does not sit well with the defendant’s allegation that he has been occupying the Land as an abandoned land for well over 20 years

211.  Mr Ko also argues that in the demand letter dated 14 October 2014, the defendant was asked to vacate House 2 on the basis that he was occupying the House 2 without the plaintiff’s consent and this is inconsistent with the plaintiff’s case that the defendant was occupying House 2 under the plaintiff’s permission (see §32(a) of the defendant’s closing submissions). A similar argument was made by Mr Ko in relation to the wording of §3 of the Statement of Claim (see §32(b) of the defendant’s closing submissions). As rightly pointed out by Mr Wong, the plaintiff already explained in his evidence that he first requested the defendant and his family to return House 2 to him in about December 2013 but the defendant refused. The plaintiff therefore considered the defendant to be occupying House 2 without his permission from that point onwards. I find the plaintiff’s explanation reasonable. I disagree with Mr Ko’s submissions.

212.  The defendant also relies on the substantive renovation works carried out by the defendant in 1994 and the Nephew in 2000 in respect of House 2 to demonstrate his intention to possess. As rightly pointed out by Mr Wong, it is not the plaintiff’s evidence that he knew nothing about those renovation works.

213.  The plaintiff’s evidence was that House 2 previously had 1 room only and in 1994, the defendant said to the plaintiff that his family wanted to renovate House 2 to build more rooms. The plaintiff considered that to be reasonable as it was the defendant and his family who were using House 2 at that time. He therefore did not raise any objection to the renovation in 1994.

214.  Likewise, for the renovation work in 2000, the plaintiff’s evidence was that the Nephew did not come to seek his consent but he was aware that the Nephew wanted some space for his mother to stay so that she could help take care of his baby. The plaintiff considered that to be reasonable and therefore did not object to the renovation work. This is also in line with the plaintiff’s evidence that the Father was fond of the Nephew and told the plaintiff to help him whenever possible.

215.  I find the plaintiff’s evidence in this regard credible. In such circumstances, I do not consider the renovations work in 1994 and 2000 to be inconsistent with the plaintiff’s ownership over the Land.

216.  The plaintiff’s case that the defendant was permitted by the plaintiff to occupy House 2 after 1991 is also supported by Chan Wai Fan’s evidence that after 2009, she saw the defendant passing money to the plaintiff during family gatherings and she understood that the defendant was paying rates and government rents of House 2 to the plaintiff. In closing submissions, Mr Ko criticizes Chan Wai Fan for giving inconsistent evidence as to whether and when she had sight of the Government Demand Notes for Rates and Government Rents. Having carefully considered Chan Wai Fan’s evidence, I do not consider the discrepancies identified by Mr Ko in §50(b) of the defendant’s closing submissions to be material.

217.  Lastly, the defendant also relies on the evidence of Chan Wing Hung, Chan Wan Kwong and Chan Kwai Wing in relation to the Confusion Point. Mr Wong’s position is that given by ruling on the Amendment Summons, such evidence is irrelevant and should be disregarded.

218.  For the sake of completeness, I shall also briefly address the evidence of these witnesses here. Chan Wing Hung is the eldest son of Chan Kam Fat, who purchased the Land from 3^rd Uncle in 1976. Chan Wing Hung’s evidence was that Chan Kam Fat subsequently found out that what he actually purchased was somewhere near House 2 but not where House 2 was situated. However, under cross-examination, Chan Wing Hung accepted that he was only a child in 1970s. He also accepted that his evidence was purely based on what his father subsequently told him but not his personal knowledge.

219.  Chan Wan Kwong gave evidence that he became the registered owner of another subdivided land from the Parent Lot (“Land B3E”). He recalled he discovered that the plaintiff erected a metal frame near his land and the metal frame blocked the light and air to his house. When he talked to the plaintiff, the plaintiff said to him that he had just purchased from auction the land next to House 1 and House 2. The evidence of this witness was brief. When asked by Mr Wong, Chan Wan Kwong was unable to offer any satisfactory explanation why he would just accept the plaintiff’s words. I also note that there is no evidence as to his relations with the parties, circumstances in which he became the registered owner of B3E and whether there was any further encounter between him and the plaintiff in subsequent years.

220.  As to Chan Kwai Wing, he accepted under cross-examination that as he moved away from House 1 as early as 1974, he did not even know when 5^th Uncle moved away from House 2. He also accepted that his evidence on the circumstances in which the plaintiff acquiring the Land in 1991 was only based upon what he overheard from the plaintiff and the Father by chance but not what the plaintiff or the Father told him.

221.  For the above reasons, I am unable to give much weight to the evidence of these three witnesses of the defendant in any event. I also wish to add that, given my analysis of all the evidence above, it is clear that the evidence of the defendant and his witnesses on the Confusion Point is not only contradicted by his own pleaded case but also contemporaneous documents such as the C1 Letter, the C3 Letter and the WhatsApp messages (and the defendant’s reaction thereto). Nor is the Confusion Point supported by the expert evidence available (see §§1.7-1.9 of the Supplementary Joint Statement by the parties’ experts).

222.  All in all, I find the defendant’s case that he was occupying the Land after 1991 without any consent or permission from the plaintiff to be inherently improbable. As analyzed above, his case is contradicted by contemporaneous documents. I find it completely incredible that after becoming the registered owner of the Land, the plaintiff would have done nothing to assert his rights vis-à-vis the defendant, notwithstanding that it was clear to both parties at least by a couple of years before 1998 that House 2 was erected on the Land and the plaintiff was the registered owner. It is inconceivable that the plaintiff would have stayed silent under such circumstances, bearing also in mind that the defendant and his wife were actually employed by the plaintiff’s company for a long period of time.

223.  For the above reasons, I have no hesitation in rejecting the defendant’s evidence that he continued to occupy the Land as an abandoned land after 1991. I accept the plaintiff’s evidence. I make a factual finding that after 1991, the defendant was permitted or allowed by the plaintiff to occupy the Land (and House 2). This negates any intention to possess the Land exclusively on the part of the defendant.

CONCLUSION

224.  For the above reasons, I allow the plaintiff’s claim save that Mr Wong has informed me that mesne profits or damages under §(2) of the prayer in the Statement of Claim is no longer pursued. I also dismiss the defendant’s counterclaim in its entirety.

225.  I also make an order nisi that the defendant do pay the plaintiff’s costs of this action, with certificate for counsel, and the defendant’s own costs be taxed in accordance with the Legal Aid Regulations.

226.  Lastly, it remains for me to thank both Mr Wong and Mr Ko for their able assistance, and to offer my sincere apology for the time taken for delivering this Judgment.