CHAN WAI HUNG v. THE INCORPORATED OWNERS OF TUNG LO COURT

DCCJ 4396/2019

[2023] HKDC 983

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4396 OF 2019

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BETWEEN

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J U D G M E N T

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Table of Contents

A. INTRODUCTION

1.  This action concerns the plaintiff’s claims of possession of Parking Lot No. 51 (“Lot 51”) and the adjacent pathway (“Pathway”) in the basement car park (“Car Park”) of Tung Lo Court, a mixed-use commercial and residential complex completed in 1960 and located on Tai Po Road, Kowloon.

2.  The defendant is the incorporated owners of Tung Lo Court (“IO”), which was registered as a corporation under the Multi-Storey Buildings (Owners Incorporation) Ordinance, the predecessor of the Building Management Ordinance (Cap 344) (“BMO”), in May 1972.

3.  It is common ground that the registered owner of Lot 51 was one Talent Key Limited (“Talent Key”) between November 1988 and December 1996. Upon Talent Key’s dissolution in December 1996,[1] Lot 51 became bona vacantia and has been vested in the Government by virtue of section 292 of the predecessor Companies Ordinance (Cap 32). The Pathway, on the other hand, is a common part of Tung Lo Court.

4.  The plaintiff alleges that he had been in exclusive possession of Lot 51 and the Pathway between 1993 and November 2010, but was excluded by the IO from possessing the same since October 2013. The IO denies all of the plaintiff’s claims, and alleges that the plaintiff has no locus standi to sue in respect of Lot 51 on the ground that it is bona vacantia.

5.  The plaintiff called three witnesses, viz. (1) himself, (2) Mr Wong Yun Po (“Mr YP Wong”), his brother-in-law, and (3) Madam Sit Sau Ming (“Madam Sit”), a lady who claimed to have lived in the Car Park between 1993 and November 2010. The IO called (1) Mr Lam Man Lung (“Mr Lam”),[2] its secretary, and (2) Mr Lau Tsun (“Mr Lau”), the sole proprietor of Lee Hing Construction Engineering Co (“Lee Hing”) who has been regularly engaged by the IO to perform repair works of Tung Lo Court since around 1996, to give evidence. The plaintiff also adduced expert surveying evidence from Ms Lo Yee Tak Ellen (“Ms Lo”) on the rental value of Lot 51 and the Pathway.

B. BACKGROUND

6.  In this section, I set out the background facts chronologically, specifying the more major factual disputes where they appear.

7.  In 1982, the late Mr Cheuk Chiu (“Mr Cheuk”), a licensed plumber, purchased four parking lots in the Car Park.[3] Mr Cheuk later became a member of the management committee of the IO, and at times, held himself out as an owners’ representative or manager of the Car Park. According to Madam Sit’s evidence, Mr Cheuk set up an office in the Car Park in 1980s, and employed her ex-husband, Mr Leung Chim Hung (“Mr Leung”), to manage the Car Park throughout 1990s. Mr Cheuk passed away in December 1999.

8.  According to the plaintiff’s evidence, he was first acquainted to Mr Cheuk in 1980s. The plaintiff incorporated a plumbing company called Hanfield Plumbing Engineering Limited in 1990. As the plaintiff did not have any plumbing licence, he started cooperating with Mr Cheuk in 1991 on a few plumbing projects. He also started parking his private car, a Toyota Corolla, in the Car Park without paying any fee or anyone’s permission.

9.  The plaintiff claims that, in around 1993, he started placing his plumbing materials at Lot 51 and using the Pathway for parking his private car. Lot 51 and the Pathway are shown in red and yellow respectively in the Car Park plan produced in the plaintiff’s witness statement, which is now reproduced in the Appendix hereto.

10.  According to the plaintiff, in order to prevent others from taking his plumbing materials, he and one Mr Yeung Yuen Fai (“Mr Yeung”), one of his employees, enclosed Lot 51 and the Pathway by erecting (1) a metal gate which served as the only access and egress to the Pathway (“Gate”), (2) an iron hoarding between parking lot 52 (“Lot 52”) and the Pathway (“Hoarding 1”), (3) an iron hoarding between Lot 51 and the Pathway (“Hoarding 2”), (4) a metal door next to Hoarding 2 which served as the only access and egress to Lot 51 (“Door”), and (5) an iron hoarding between Lot 51 and the adjacent Lot 50 (“Hoarding 3”). All three hoardings (collectively “Hoardings”) ran from the floor up to the ceiling. As for the Gate and the Door, they were locked at all times up to November 2010 and only three people had keys to those locks, namely, the plaintiff himself, Mr Yeung and Mr YP Wong. During his possession of Lot 51 and the Pathway, he installed lighting in both areas and a drainage pump. No one ever objected to his exclusive possession of Lot 51 and the Pathway.

11.  The IO denies that Lot 51 and the Pathway were ever enclosed by the plaintiff as alleged or at all. According to Mr Lam’s evidence, the IO engaged Union Fire Safety Limited (“Union Fire”), a registered fire service installation contractor, to perform repair works to the fire sprinklers and associated pipes in the Car Park in early 2002 (“Fire Sprinkler Works”). The workers of Union Fire were then able to have free access to Lot 51 and the Pathway when performing the relevant works at the ceiling of the Pathway. Thereafter, in around 2003, Mr Lam first noticed that a metal mesh gate had been set up to enclose the Pathway, but the metal chain tied to the gate was so loose that entry into the Pathway could be made by simply pulling the gate doors apart. In around 2008 or 2009, he noticed that another set of metal mesh had been installed on top of the metal mesh gate at the entrance of the Pathway.

12.  In 2010, the IO engaged Tat Hing Construction Co, Ltd (“Tat Hing”) to carry out a large scale renovation of the Car Park (“Renovation”). In early November 2010, Tat Hing and the IO issued notices to users of the Car Park that they shall vacate all of their vehicles and personal belongings from the Car Park by 14 November 2010. According to the plaintiff, he duly vacated his personal belongings from the Car Park in November 2010. There is no dispute that all structures surrounding Lot 51 and the Pathway (viz. the Gate, the Door and the Hoardings) were removed during the Renovation.

13.  After the completion of the Renovation in mid-March 2011, the plaintiff provided a Chinese document dated 12 April 2011 (“Written Request”) to the IO which reads:-

“日期：2011年4月12日

東廬大廈管理處

敬啟者：

車位：東廬大廈地牢51號車位

由於以上之車位非常狹窄，停泊不了車輛，現申請可將車輛停泊於通道旁，敬希特准，謝謝！

[signed]

陳偉雄”

It is common ground that the plaintiff signed the Written Request. However, he disagrees that the following handwritten remarks, which appeared at the bottom of the Written Request, were present when he signed the Written Request:

“法團暫時準許 [sic] 上述申請而法團保留該通道的行使權利在有需要時可收回使用權。”

14.  On 22 April 2011, the plaintiff entered into a tenancy agreement to rent Lot 51 to one Mr Yau Kai Lam (“Mr Yau”) at a monthly rental of $2,100 for 6 months from 22 April 2011 to 21 October 2011 (“Tenancy Agreement”). According to the plaintiff’s case, he was introduced to Mr Yau by Mr Wong Sai Ping (“Mr SP Wong”), an estate manager engaged by the IO to manage Tung Lo Court, and the Tenancy Agreement was entered into upon a mutual understanding amongst himself, Mr Yau and Mr SP Wong that Mr Yau would be allowed to park his car in the Pathway. The IO contends that it does not have any knowledge of the dealings between Mr SP Wong and the plaintiff, and in any event, any introduction made by Mr SP Wong was done in his personal capacity rather than on behalf of the IO.

15.  On the same day, viz. 22 April 2011, the IO, through Mr SP Wong, issued a written demand to Talent Key (“Payment Demand”) for overdue management fees for Lot 51 since 1991 and contribution towards the costs of the Renovation and other repair works of Tung Lo Court since 1994, in the total sum of $56,553. There is no dispute that the plaintiff took upon himself to satisfy the Payment Demand by (1) paying a sum of $24,397 to the IO, and (2) directing Mr Yau to pay his monthly rental for Lot 51 to the IO and providing a written authorisation of even date to the IO (“Written Authorisation”) to deduct the outstanding sum of $32,156 from Mr Yau’s monthly rental payments. Mr SP Wong, on behalf of the IO, acknowledged the above arrangement by affixing the IO’s chop on the Written Authorisation.

16.  According to the IO’s case, it received payment from the plaintiff in discharge of the Payment Demand and his subsequent payments for management fees in respect of Lot 51 because it had been misled by the plaintiff, who allegedly represented to Mr Lam that he was a director of Talent Key. The plaintiff denies that he had ever misled the IO as alleged or at all.

17.  There is no dispute that, after the Tenancy Agreement expired, Mr Yau continued to rent Lot 51 at a monthly rental of $2,100 from the plaintiff until March 2013. It is the plaintiff’s case that the IO, through Mr Sze Lap Ki (“Mr Sze”), a supervisor of the management office, started using the Pathway for parking motorcycles thereafter. In October 2013, the IO further divided Lot 51 into two motorcycle parking spaces and allowed the same to be used by its tenants or licensees for parking motorcycles.

18.  According to the plaintiff, he issued a letter dated 31 December 2013 demanding the IO to cease its wrongful and unauthorised letting of Lot 51 and the Pathway, but he has not kept a copy of the aforesaid letter and therefore cannot produce the same in these proceedings. The IO denies having received such a letter, or any complaint by the plaintiff, as alleged.

19.  The IO claims that it conducted an investigation in 2014 and discovered that the plaintiff was not in fact the owner of Lot 51. It is common ground that the IO has refused the plaintiff to enter the Car Park since January 2014.

C. THE PARTIES’ PLEADED CASES

C1. The plaintiff’s case

20.  The plaintiff’s pleaded case, based on his amended statement of claim and reply, is as follows. Between late 1980s to about 2000, the actual possession, control and management of the entire Car Park was exercised by Mr Cheuk. In about 1991, the plaintiff started parking his vehicle in the Car Park without any consent, licence or permission from the IO, Talent Key or Mr Cheuk.

21.  In 1993, the plaintiff enclosed both Lot 51 and the Pathway by the Gate, the Door and the Hoardings. He was in exclusive possession of Lot 51 and the Pathway since then. He used Lot 51 exclusively as a storage room for his business, whereas the Pathway was used for parking his private car. Throughout the years, he treated himself as the owner of Lot 51 and the Pathway, and he incurred costs and expenses on Lot 51 and the Pathway in the capacity of an owner, including the installation, maintenance and repair of lighting and plumbing apparatus in Lot 51 and the Pathway, paying the rates and Government rent for Lot 51 (“Rates”) since 1993 up to the present, and paying the management fees and general maintenance costs in respect of Lot 51 to the IO up to December 2014.

22.  At all material times, neither Mr Cheuk nor the IO had ever disturbed the plaintiff’s exclusive possession of the Pathway. As for Lot 51, neither Talent Key nor the Government had ever disturbed his exclusive possession of the same.

23.  After Mr Cheuk passed away, the Car Park was managed by Mr Leung and Madam Sit in place of Mr Cheuk. Mr Leung, Madam Sit and the IO never disturbed the plaintiff’s exclusive possession of the Pathway.

24.  Since 2010, the IO, through its management company, took up the management of the Car Park from Mr Leung and Madam Sit. The IO acknowledged the plaintiff’s right and title to possess Lot 51 by regarding him as the owner of Lot 51, offering to look for a tenant of Lot 51 for him, asking him to execute a proxy form for voting at the annual general meeting of owners on 6 May 2012, issuing an entry pass of the Car Park and assigning a mailbox to him, and demanding and accepting management fees from him as if he was the true owner of Lot 51 until December 2014. In the premises, he has a relatively better right of possession of Lot 51 against the IO under the principle of relatively of title, and the IO is estopped from denying his right and title vis-à-vis the IO to exclusively possess Lot 51.

25.  The plaintiff also claims that he has acquired a possessory title to the Pathway by reason of his adverse possession of the same for a period of 12 years from 1993 to 2005, or alternatively, any continuous period of 12 years between 1993 and October 2013. The IO’s paper title to the Pathway has been extinguished and its right to recover possession of the same has been time-barred under sections 7, 10 and 17 of the Limitation Ordinance (Cap 347) (“LO”).

26.  After Mr Yau surrendered his tenancy of Lot 51 in March 2013, Mr Sze and/or his tenants occasionally occupied the Pathway for parking vehicles. In about October 2013, the IO wrongfully divided Lot 51 into two motorcycle parking spaces and let the same and the Pathway to its tenants or licensees for parking motorcycles. Despite repeated demands, the IO still fails to surrender possession of Lot 51 and the Pathway to the plaintiff. Since January 2014, the IO further wrongfully denied his access to the Car Park. He has therefore been deprived of the use, enjoyment and exclusive possession of Lot 51 and the Pathway.

27.  The plaintiff claims (1) declaratory relief for a possessory title to (a) Lot 51 based on relativity of title vis-à-vis the IO, and (b) the Pathway based on adverse possession; (2) delivery of vacant possession of Lot 51 and/or the Pathway; (3) an injunction to restrain the IO from causing any unlawful disturbance to his exclusive possession of Lot 51 and/or the Pathway; and (4) mesne profits for the IO’s possession and use of Lot 51 and/or the Pathway.

C2. The IO’s case

28.  The IO’s case, as pleaded in the defence, is as follows. It has the statutory power and authority to implement and enforce the deed of mutual covenant of Tung Lo Court (“DMC”) and the relevant provisions of the BMO, including the right to possess, control and manage the common area of the Car Park. It has never permitted any trespass, unlawful occupation or unauthorised use of any part of the common area of the Car Park.

29.  The IO denies that Mr Cheuk, Mr Leung and Madam Sit had ever occupied any of the parking lots of which they had no legal or equitable interest or any part of the common area. If the IO received any complaint about any parking lot having been unlawfully occupied, it would take action to remove such occupation. Upon discovery of any unknown or unclaimed objects in the common area of the Car Park, including the Pathway, the IO would post a notice inside the Car Park requesting the immediate removal of the same, and if no action was taken by the owner of those objects, the IO would forthwith remove and clear the same without any further notice.

30.  The IO received complaints that some rubbish or articles such as used water pipes, old plastic buckets and a makeshift metal shelf were found at Lot 51. It forthwith put up a warning notice requesting immediate removal of those objects, and made a complaint to the Buildings Department (“BD”) and the Fire Services Department (“FSD”).

31.  The IO denies that the plaintiff had ever parked any vehicle at Lot 51 or the Pathway. It also denies that the Pathway was ever enclosed. At all material times, it did and does have free access to and egress from the Pathway and other parts of the common area of the Car Park to carry out repair works and to remove any unauthorised obstructions whenever necessary.

32.  The IO claims that the lighting and plumbing apparatus in Lot 51 and the Pathway were common facilities falling within the IO’s duties, management and authority, and the relevant repair works to the plumbing apparatus were carried out by Lee Hing.

33.  In around 2012, Mr Lam saw the plaintiff at Lot 51. When Mr Lam asked the plaintiff about the latter’s authority for being present at Lot 51, the plaintiff replied that he was a director of Talent Key. The IO was therefore misled by the plaintiff into believing that he was the owner of Lot 51, and on such basis, issued him an entry pass of the Car Park and a mailbox. The plaintiff has never paid any management fees which duty to pay falls on the owner of Lot 51. In around 2014, the IO investigated and verified the fact that the plaintiff was not the owner of Lot 51. It did not accede to the plaintiff’s offer to pay the management fees in respect of Lot 51 upon the condition that the IO would acknowledge the plaintiff to be the owner of Lot 51. Thereafter, the plaintiff has not paid any management fees.

34.  During Mr Yau’s tenancy of Lot 51, the IO warned him several times for placing loose articles at Lot 51 and parking his car outside Lot 51. As a result, he ceased renting Lot 51.

35.  The IO has never authorised Mr Sze to occupy the Pathway for parking vehicles. Since about April 2019, in order to alleviate the problem that the usable area of Parking Lot No. 28 (“Lot 28”) is not big enough to accommodate a car, the IO would arrange the occupier of Lot 28 to park his car at the Pathway on a temporary basis. At times when there were repair works inside the Car Park, the IO may allow its contractors and their workmen to park their vehicles at the common area including the Pathway during the time of their work. Save for those exceptional circumstances, the IO would not allow parking in the Pathway.

36.  The IO also denies to have made any partition to Lot 51 or let the same since March 2013. Nonetheless, the owner of Parking Lot No. 50 (“Lot 50”) would sometimes wrongfully park his motorcycle in Lot 51 without permission. When this situation comes to the IO’s attention, the owner of Lot 50 would be advised against such behaviour.

D. THE WITNESSES

37.  As stated above, on the plaintiff’s side, the plaintiff himself, Mr YP Wong, Madam Sit and Ms Lo were called to give evidence at trial. For the defence, Mr Lam and Mr Lau gave evidence.

38.  Most of the seminal events go back a long time indeed. The plaintiff’s alleged enclosure and exclusive possession of Lot 51 and the Pathway took place some 30 years ago. In the light of the long lapse of time, I have had regard to the oft-cited observations of Leggett J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd and another [2013] EWHC 3560 (Comm) at §§15-22, whilst bearing in mind that they do not lay down any general principle for the assessment of evidence: Kogan v Martin and others [2019] EWCA Civ 1645, §88.

39.  As Coleman J observed in Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923[4] at §§53-57, citing Gestmin (supra), courts have consistently recognised the fallibility and potential unreliability of human memory. The issue of fallibility of human memory has been succinctly described by McClelland CJ in Watson v Foxman and others (1995) 49 NSWLR 315 at 319 as follows:-

“… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

Although His Honour was addressing evidence of the content of conversations, it appears to me that those observations are of general application.

40.  I have also borne in mind the guidance given by Stock JA (as he then was) in Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corporation Ltd [2007] 3 HKLRD 439, §135:

“… I do not say that an assessment of the character of a witness plays no part in the fact finding process, but it is a task that may sometimes be elusive even to the best trained eye and ear, and I would venture to suggest that the truth, in so far as one is able to reach it or, as is sometimes the case, to reach a version of it that is more likely to be correct than not, can best be tested by reference to contemporaneous documentation where it exists, or to its absence where one would expect it to have been created, as well as to inherent probabilities (though bearing in mind that there may be occasions where the truth may run against that particular grain) having regard to all the facts that are known. This is particularly so in a case such as the present, where events have taken place so long before trial and where there exists a mountain of contemporaneous documentation that can be used to point the way. This is not to say that the documentation should have been treated as if it stood on its own, not to be explained, contradicted or supported by oral testimony. It is however to say that in this case the approach adopted to assessment of the facts placed far too much emphasis on character impression and too little upon what was suggested by the documentation and by the inherent probabilities in their historical context. That documentation, as well as conflicts within the evidence, inherent probabilities, and a study of how matters were originally pleaded and asserted in witness statements – these are the factors which in a trial such as this, so long removed from the time of the events in question, were likely to be of particular use in assessing the facts …”

41.  Therefore, in a case such as the present one, where the trial is long removed from the time of the events in question, I am of the view that the only safe course in assessing the witnesses’ testimonies would be to make primary reference to the objective surrounding facts, such documentation as there is (which is limited in the present case), and the inherent probabilities as they appear to the court, taking into account all the circumstances including the motivations and characters of the people involved and the relationship between them.

42.  The documentary evidence before the court is limited. None of the parties have adduced any contemporaneous documents, such as photos, to shed light on the state of affairs of Lot 51 and the Pathway in 1990s. The earliest document which the plaintiff has adduced in support of his alleged possession of Lot 51 is a demand note issued by the Rating and Valuation Department to Talent Key in September 2001 for rates and Government rent in the quarter of October to December 2001. On the part of the IO, it relies on the land search of Lot 51 to show that it registered two memoranda of charges dated 6 February 1998 and 30 December 2000 respectively in the Land Registry against Lot 51 for its owner’s default in paying management fees, but other than that, the IO has not produced any document prior to 2011 in relation to Lot 51.

43.  Having heard the testimonies of five factual witnesses in the context of the entirety of the evidence, I have come to the view that none of the factual witnesses has told the whole truth and none of them is so reliable that I can confidently accept his or her evidence in full. Overall, I consider it necessary to assess the evidence of all factual witnesses with caution and care and with primary reference to the other evidence and overall probabilities. On the other hand, Ms Lo’s expert evidence is well reasoned and has not been seriously challenged under cross-examination. I accept her evidence in full.

44.  The plaintiff has the burden of proving his allegation that he was in exclusive possession of both Lot 51 and the Pathway from 1993 until November 2010 when the Renovation took place, and thereafter, from March 2011 (upon completion of the Renovation) until 2013 (when he was allegedly ousted by the IO from the Car Park). However, he has not produced any contemporaneous documents to support his case in relation to all alleged events between 1993 and August 2001. Further, his case is contradicted by Madam Sit, one of his own witnesses, who gave evidence that when she first came to Hong Kong in 1993, it looks like Mr Cheuk had set up his office in Lot 51 (“佢嗰個辦公…所謂辦公室喇都喺好似 51 號嗰度”).[5] His claim of having erected the Gate, the Door and the Hoardings by himself and Mr Yeung in 1993 is a bare allegation which is not corroborated by his other witnesses or any documentary evidence.

45.  Further, the plaintiff has not given any explanation as to why, despite his case that Mr Cheuk was in actual control and management of the entire Car Park throughout 1990s, he was able to come into exclusive possession of Lot 51 and the Pathway and to erect enclosures thereto in 1993 without having even talked to Mr Cheuk, his business partner, on the same. He has not explained why he decided to enclose both Lot 51 and the Pathway when the enclosure was, on his own case, only meant to prevent others from taking his plumbing materials placed at Lot 51.[6] All these matters, together with those contentious aspects of his evidence to be discussed further below, cast considerable doubt on the credibility and reliability of his evidence.

46.  Mr YP Wong, the plaintiff’s brother-in-law, is a registered Chinese medicine practitioner. He claims to have borrowed the plaintiff’s private car for sightseeing once or twice a month between 1993 and 2008, and thus paid regular visits to the allegedly enclosed Pathway where the car was parked and witnessed the plaintiff’s exclusive possession of Lot 51 and the Pathway during the aforesaid period. When he was asked during cross-examination on which weekday did he usually borrow the plaintiff’s car, he said there were no fixed dates or hours. His answer does not sit well with the plaintiff’s evidence that the plaintiff himself had to use the same car for his plumbing business for six days a week,[7] and from around 8-9 am (when he attended the Car Park to take his car) till 5-6 pm (when he drove his car back to the Car Park) every working day. Further, Mr YP Wong’s evidence that he resided in Shau Kei Wan but nonetheless went to the Car Park in Sham Shui Po to borrow the plaintiff’s car for visiting places such as Taikoo Shing and Kornhill, and then went back to Sham Shui Po to return the plaintiff’s car at the Car Park before taking public transport to return home in Shau Kei Wan, is tantamount to suggesting that he made four cross-harbour journeys in order to travel between Shau Kei Wan and Taikoo Shing or Kornhill, all being neighbourhoods in the Eastern District on Hong Kong Island. This part of his evidence is unreal and does not have the ring of truth about it. On the whole, I have considerable reservations about the veracity of Mr YP Wong’s evidence.

47.  The oral testimony of Madam Sit[8] is likewise problematic. She claims in her witness statement that she had a good understanding of the state of affairs of Lot 51 and the Pathway, including the plaintiff’s alleged exclusive possession of the same since 1993, because she had lived with Mr Leung in the Car Park throughout the period from 1993 to 2010 and assisted in managing the Car Park. However, in her oral testimony, when she was confronted with the fact that there was no fresh water supply in the Car Park until 2003, and thus she could neither cook nor take a shower in the Car Park between 1993 and 2003, she started wavering and eventually admitted that she had lived with a relative before 2003.[9] This unexplained change in her evidence undermines the reliability of her alleged knowledge of the plaintiff’s exclusive possession of Lot 51 and the Pathway prior to 2003.

48.  Further, Madam Sit said in her evidence that, as part of her management of the Car Park after Mr Cheuk passed away, she accompanied the personnel of Union Fire during their annual inspections of the fire service facilities[10] in the Car Park and paid for their inspection fees from 2003 to 2009. She was adamant that, during those inspections, the personnel of Union Fire would inspect all fire sprinklers in the Car Park, viz. those in the common area as well as in the private parking lots, one by one and would not omit any fire sprinklers. But when she was asked how could the personnel of Union Fire inspect the fire sprinklers in Lot 51 given that it was enclosed by the Door, Hoarding 2 and Hoarding 3 up to the ceiling, and the Door was allegedly locked by the plaintiff at all material times, she became evasive and repeatedly said she did not know. To my mind, Madam Sit did not tell the whole truth to the court, and the above aspects of her evidence throw considerable doubt on the credibility and reliability of her evidence.

49.  Nor am I impressed with the evidence of Mr Lam and Mr Lau. In their witness statements, they unequivocally stated that neither Lot 51 nor the Pathway had ever been enclosed. However, Mr Lam said in oral evidence that he first saw in December 2008 that Lot 51 and the Pathway had been enclosed by the Door, the Gate and the Hoardings. Later, he changed his evidence, accepting that he was told by Mr Lau in 1993 that Lot 51 had been enclosed by the Door and metal hoardings, and confirmed that he personally saw the metal hoardings surrounding Lot 51 as early as 1994. There is no explanation for the fundamental differences between Mr Lam’s evidence and the pleaded case of the IO, which was verified by his statement of truth. As for Mr Lau, he admitted in oral evidence that he had told Mr Lam about the enclosure of Lot 51 back in 1993, and that the entire §7 of his witness statement regarding Lot 51 was incorrect. Overall, I consider it necessary to take a heavily guarded approach to the evidence of Mr Lam and Mr Lau.

E. LOT 51

E1. The main issues

50.  The parties have submitted an agreed list of issues and their respective lists of additional issues for the court’s consideration. In the light of the parties’ pleaded cases as well as the lists of issues, it seems to me that the main issues to be determined by the court in respect of Lot 51 are as follows:-

(1) whether the principle of relativity of title relied upon by the plaintiff is applicable;

(2) whether the plaintiff had exclusive possession of Lot 51, and if so, when;

(3) whether the IO has ever disturbed or prevented the plaintiff from using Lot 51, and if so, when and for how long;

(4) whether the IO is estopped from denying the plaintiff’s right to possess Lot 51 (if any); and

(5) if the plaintiff succeeds in his claim in respect of Lot 51, what are the remedies to be granted.

51.  I also bear in mind the other proposed sub-issues raised by the parties, and shall deal with the same insofar as they are material to the determination of the plaintiff’s claims at hand.

E2. Whether the principle of relativity of title is applicable

52.  It is well established at common law that there is no such concept as an absolute title. Where questions of title to land arise in litigation, the court is concerned only with the relative strengths of the titles proved by the rival claimants. Thus, if party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land: Ocean Estates Ltd v Pinder [1969] 2 AC 19 at 24H-25A, per Lord Diplock; Skylark Limited and Anor v Kung Sui Wing and Anor, HCA 2607 of 2006 (5 June 2009), §§19-20, per DHCJ To (as he then was); Nam Ching Wun v Tsun Un Pawn Shop, HCA 2151 of 2008 (22 November 2016), §162, per DHCJ Marlene Ng (as she then was).

53.  The leading case on the principle of relativity of title is Asher v Whitlock (1865) LR 1 QB 1, in which the English Court of Appeal held that a person in possession of land without any other title has a devisable interest in the land, and possession by itself is good title against the whole world but the true owner (at p 5 per Cockburn CJ, and p 7 per Mellor J).

54.  The principle of relativity of title was approved by the House of Lords in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894, where Lord Hoffmann said (at 898A-B):-

“The burden was upon Wibberley to show that it had a better title than Mr. Insley. He was in possession and therefore needed to show no title at all. Possession is in itself a good title against anyone who cannot show a prior and therefore better right to possession: Asher v Whitlock (1865) L.R. 1 Q.B. 1. …”

In a similar vein, William J said in Minister of State for the Army v Dalziel (1943) 68 CLR 261, 298-299, as follows:-

“… To have good title to land is to have the essential part of ownership, namely, the right to maintain or recover possession of the land as against all others. In English law all title is founded on possession. Thus a person, who is in possession of land, although wrongfully, has a title to the land, which is good against all except those who can show a better title; that is, can prove that they or their predecessors had earlier possession, of which they were wrongfully deprived. …”

55.  In Hong Kong, Asher (supra) was expressly approved and applied by the Court of Appeal in Chung Ping Kwan and Others v Lam Island Development Co Ltd [1995] 2 HKLR 228 at 238.[11] In Chan Hau Ling v 劉西 and Anor, HCA 1286 of 2012 (22 April 2015), Ng J relevantly explained the principle of relativity of title (at §33) as follows:-

“Since title to land is relative, a plaintiff may show a better title by inter alia his possession prior to that of the defendant: Clerk & Lindsell on Torts 20^th Ed. para. 19-71. This is amply demonstrated by the example used by Cockburn CJ in [Asher v Whitlock at p 5]. The common law has adopted the notion of title by first occupancy and held that possession, even if lost, gives rise to a right to recover it since as between mere possessors, prior possession is a better right: Gray Elements of Land Law 5^th Ed. para. 2.1.37; Mabo v Queensland (No. 2) (1992) 175 CLR 1 at 210.”

56.  In Nam Ching Wun v Tsun Un Pawn Shop, HCA 2151 of 2008 (22 November 2016), DHCJ Marlene Ng (as she then was) applied the principle of relativity of title as enunciated in Minister of State for the Army (supra) and held (at §172) that a squatter acquires a “possessory title” which is an independent title that stems from his possession of the land, and such “possessory title” becomes impregnable after a lapse of time because, as against strangers having no title to the land, the squatter’s possession is itself “title”. If the squatter’s possession is disturbed by a stranger (e.g. another occupier), the squatter’s possession is itself title and he can sue on the strength of his own possession. But if the stranger lays claim to the land by a title of his own or if he shows title in a third party through whom he claims, he can put the squatter’s title in issue.

57.  In the present case, it is right to point out that the IO does not seek to lay claim to Lot 51 by a title of its own, nor has it shown title in a third party through which it claims. Nonetheless, the IO submits that this is essentially a building management matter which the IO can exercise its managerial discretion, and that the proper defendant should be the Government.

58.  With respect, I do not agree that the plaintiff’s claims in respect of Lot 51 should be analysed as a building management matter.

59.  First, the IO’s pleaded case in respect of Lot 51 is simply that it has never made any partition to Lot 51 nor let the same since March 2013, and whenever the owner of Lot 50 wrongfully parked his motorcycle on Lot 51 without permission, the IO would advise against such behaviour.[12] It has never been the IO’s pleaded case that it had authorised anyone to use Lot 51 in the exercise of its alleged managerial discretion, nor that such use of Lot 51 was either reasonably necessary for the enforcement of the obligations contained in the DMC for the control, management and administration of Tung Lo Court,[13] or in the common interests of the owners.[14] In the premises, it would not be open to the IO to slip in an unpleaded issue of building management and say that there is evidence on the issue: Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, §§21-22, per Ma CJ.

60.  Secondly, it is common ground that the IO’s duties and powers are derived from the provisions of the BMO and the DMC. The IO has not been able to point to any specific provision of the BMO or the DMC which would allow it to convert Lot 51, which does not form part of the common area of Tung Lo Court, to its own use, occupation or enjoyment.

61.  Thirdly, in any event, the fact that the plaintiff’s claims herein are made against the IO does not necessarily mean that the dispute must be a building management matter. To my mind, there is no reason why the trite principles of relativity of title do not apply to the IO simply because it exercises duties and powers derived from the provisions of the BMO and the DMC. No authority to the effect that the IO is somehow immune from a claim for possession of land has been cited by the IO, and I do not think that such proposition is correct as a matter of law.

62.  As for the IO’s claim that the proper defendant should be the Government, this seems to me to amount to a plea of jus tertii. As the learned editors of Megarry & Wade: The Law of Real Property (9^th ed, 2019) explained at §7-010:-

“It has been explained that third parties who have themselves no title cannot exploit the relative weakness of S’s title by pleading jus tertii. If X (a stranger) takes possession of the land from S, S or S’s successors can recover it within the limitation period and X cannot plead that the land is not in fact S’s but O’s. This is self-evident, for otherwise anyone could help themselves to the land. If X claims the land, X must do so on the strength of their own title, not on the weakness of S’s.”

63.  In Ng Fuk Shing, the personal representative of the estate of Tang Koon Lan v Ng Fuk Nam and Anor [2018] HKCFI 2528, the house in dispute was situated on Government land. Marlene Ng J held (at §57) that such fact did not preclude the plaintiff and the defendants in possession of the land from taking action to evict trespassers or strangers on the strength of their possession:-

“On the basis of P’s case, if she failed to prove the necessary factual elements for the encroachment presumption to bite in respect of the Green Land and part of House7 situated thereon, the Government (if she wished) might be entitled to take action (if not time-barred) to recover possession of the Green Land against P and Ds, but on the principle of relativity of title between rival claimants as explained above, P and Ds as co-owners in actual possession of House7 situated on the Green Land could rely on the fact they were in possession (which was equivalent to ownership as against all persons who had no better right – see paragraph 56 above) to either jointly or singly evict trespassers/strangers without need to involve the Government.”

64.  Similarly, in Prosperous World Land Investment Company Limited v Lai Fung Shan [2020] HKDC 1033, HH Judge Harold Leong applied the trite principle of relativity of title and held (at §§25, 28-30) as follows:-

“25. The doctrine of “relativity of titles” is trite: as far as the relative possessory titles between the plaintiff and the defendant are concerned, it is irrelevant that the Wall-shop has been occupying Government land.

…

28. The absence of any agreement between the plaintiff and the defendant would only confirm that the defendant was a later squatter compared to the plaintiff being an earlier squatter in possession: Ms. Tsang and Mr. Lo who had both occupied the Wall-shop earlier clearly had such agreements with the plaintiff.

29. Therefore, the operation of the doctrine of “relativity of titles” holds that the plaintiff has a superior possessory title than the defendant and any later occupiers in relative terms.

30. It matters not that they may be both squatters on Government land: the doctrine does not require the plaintiff to establish adverse possession against the registered owner first before claiming a superior title against the defendant. (Tang Man Kit v Hip Hing Timber Co. Ltd (CACV 137/2002, 13 May 2005), Chow Kum Wing v Lam Wing Ching (CACV 31/1985), Asher v Whitlock (1865) LR 1 QB 1).” (emphasis added)

65.  In the light of the above authorities, I am of the view that the plaintiff, in his capacity as an alleged earlier squatter in possession of Lot 51, has the requisite locus standi to claim possession against the IO in its capacity as an alleged later squatter of Lot 51. Since the plaintiff only seeks a determination from the court as to whether he has a better right to possess Lot 51 (if any) vis-à-vis the IO, there is no need to join the Government in these proceedings: Ng Fuk Shing (supra), §57; Prosperous World (supra), §25. For these reasons, I am unable to accept the IO’s arguments that the proper defendant of the plaintiff’s claim in respect of Lot 51 should be the Government, and that such claim constitutes a breach of natural justice because the Government has not been notified of the same.

66.  The IO also argues that the principle of relativity of title does not give rise to any cause of action known to the law, and therefore the plaintiff has failed to plead any proper cause of action. With respect, I do not agree. As explained above, it is well established that a squatter can maintain an action to recover possession of the land from a stranger who takes possession from him: Nam Ching Wun (supra), §§162 and 172; Ng Fuk Shing (supra), §57; Prosperous World (supra), §30; Megarry & Wade: The Law of Real Property (supra), §7-010. Insofar as the IO claims that there is no competition of titles between itself and the plaintiff as to Lot 51 because the IO has never owned or possessed Lot 51, this gives rise to a question of fact which I shall deal with below.

67.  Nor am I able to accept the IO’s argument that the plaintiff’s claims in respect of Lot 51 give rise to an unpleaded issue of easement in that the plaintiff’s claims, if allowed, would mean that the IO would have to grant him a right to enter the Car Park which may be objected to by the Government. As explained above, it is not necessary for the plaintiff to have sought the Government’s prior approval before making his claims herein against the IO in respect of Lot 51. There is also no evidence suggesting that the Government would object to the plaintiff’s entry into the Car Park. In any event, Mr Cheung, counsel for the IO, has fairly acknowledged in his oral closing submissions that if the plaintiff’s claims in respect of Lot 51 are accepted by the court, the IO would respect the court’s decision and allow the plaintiff to enter the Car Park in such event.

68.  Having said that, I am mindful of the undisputed fact that Lot 51 is bona vacantia land, and thus, in my view, it is in the public interest that the Government should be informed of the outcome of these proceedings. I have invited submissions as to why the court should not inform the Government as to the orders to be made herein. Having heard the submissions from Mr Siu, counsel for the plaintiff, I do not find that there is any reason why the court should not do so. I shall therefore give directions in this respect as part of the consequential orders to be made in Section H below.

E3. Whether the plaintiff had exclusive possession of Lot 51, and if so, when

69.  The plaintiff’s pleaded case is that he was in exclusive possession of Lot 51 from 1993 until 2013, save for a period between November 2010 and March 2011 when the Renovation took place.

70.  In respect of the plaintiff’s alleged exclusive possession of Lot 51 during the initial period between 1993 and 2001, he solely relies on the oral testimonies of himself, Mr YP Wong and Madam Sit. As explained above, I shall make primary reference to the objective surrounding facts, such documentation as there is, and the inherent probabilities as they appear to the court, in assessing the witnesses’ testimonies.

71.  First, I note that no contemporaneous documentation has been produced by the plaintiff in support of his claim in this respect.

72.  Secondly, the plaintiff has not given any satisfactory explanation as to why, despite his case that Mr Cheuk was in actual control and management of the entire Car Park throughout 1990s, he was able to come into exclusive possession of Lot 51 and the Pathway and to erect enclosures thereto in 1993 without having even talked to Mr Cheuk, his business partner, on the same. It seems to me probable that the plaintiff did not tell the whole truth as to the circumstances in which he entered into possession of Lot 51.

73.  Thirdly, the plaintiff’s claim of having erected the Gate, the Door and the Hoardings by himself and Mr Yeung to enclose Lot 51 and the Pathway in 1993 is a bare allegation which is not corroborated by his other witnesses or any documentary evidence.

74.  Even though Mr Lam and Mr Lau have given evidence that Lot 51 was enclosed by the Door and metal hoardings as early as 1993, it does not follow from their evidence that those enclosures were erected by the plaintiff and Mr Yeung as alleged. This is because the other witnesses have given contradictory evidence as to the state of affairs of Lot 51 in 1993. According to Madam Sit’s evidence, it looks like Mr Cheuk had set up his office in Lot 51 back in 1993 when she first came to Hong Kong, whereas according to Mr Lau’s evidence, he had known Mr Cheuk since late 1980s and he heard Mr Cheuk saying in around 1990 that Lot 51 was rented out by Mr Cheuk to the plaintiff for use as a storeroom. To my mind, the tenor of the evidence of Madam Sit and Mr Lau is that the one who enclosed Lot 51 was more likely to be Mr Cheuk rather than the plaintiff.

75.  Similarly, as to the plaintiff’s pleaded case of having installed lighting and plumbing apparatus in Lot 51 in 1993 and 1996 respectively, it is noteworthy that, even on the plaintiff’s own evidence, the only plumbing apparatus which he had installed in the Car Park was a drainage pump which was situated at a corner of the Pathway adjacent to Lot 52.[15] In other words, contrary to his pleaded case, he did not install any plumbing apparatus in Lot 51, even though the drainage pump was said to drain the underground water flooding Lot 51. Further, it is a bare allegation which is not corroborated by his other witnesses or any documentary evidence. According to Mr YP Wong, he was told by the plaintiff that the lighting and plumbing apparatus in Lot 51 had been installed by the plaintiff, and therefore, Mr YP Wong’s knowledge of the same is based on hearsay evidence. Madam Sit’s evidence is silent as to the lighting and plumbing apparatus in Lot 51. On balance, I am of the view that the plaintiff has not discharged the burden of proving that he had installed lighting and plumbing apparatus in Lot 51 in 1993 and 1996 as alleged.

76.  The plaintiff also claims that he had paid the Rates for Lot 51 since around 1993 up to the present date. However, he gave contrived evidence in this regard.

(1) First, he said in oral evidence that he started paying the Rates in 1993 because he believed he had used (“有份用”) Lot 51, with no suggestion that his alleged use or possession of Lot 51 was exclusive.

(2) Secondly, he said Madam Sit had told him to pay for the Rates so he did the same, but this part of his evidence is not corroborated by Madam Sit, whose evidence was that she had made payment of rates on behalf of the plaintiff (“代繳”) without stating when or whether it was herself who had told the plaintiff to do so.[16]

(3) Thirdly, it is the plaintiff’s own case that Mr Cheuk had managed the Car Park before he passed away in December 1999. He was unable to explain why he would have asked Madam Sit (who by then had not yet permanently settled in Hong Kong[17]), as opposed to Mr Cheuk or Mr Leung, to pay the Rates on his behalf.

(4) Fourthly, when he was asked why he was unable to produce the demand notes for rates between 1993 and August 2001, he said it was because he paid the Rates during such period through Madam Sit, who kept those demand notes for him, but Madam Sit has not produced any relevant demand notes in these proceedings in support of the plaintiff’s contention in this respect, nor has she stated in her evidence that she made payment of rates on behalf of the plaintiff continuously between 1993 and August 2001.

(5) Fifthly, he was unable to provide any satisfactory explanation as to why he stopped asking Madam Sit to make payment of rates on his behalf from September 2001. He said he did not want to trouble Madam Sit anymore. But it is inexplicable why he did not find it to be a trouble to ask Madam Sit (to whom he did not pay any management fees at the material times) to pay the Rates on his behalf during 1990s, but suddenly found it to be troublesome for Madam Sit to perform the same task from September 2001 onwards when he had already started paying management fees to Madam Sit.

(6) In this respect, I have also considered Mr Siu’s submission that the demand note issued in September 2001 did not record any outstanding or unpaid Rates. In my view, this matter may tend to show that someone had paid for the Rates before September 2001, but in the absence of any payment record showing the identity of the payor, it would be a quantum leap to suggest that it was the plaintiff who made such payment. In any event, in view of the unsatisfactory evidence given by the plaintiff on the payment of the Rates as analysed above, I do not consider that this matter, even taken at its highest, is sufficient to support the plaintiff’s case of having paid for the Rates continuously since 1993.

77.  For the above reasons, I consider that the plaintiff has not been able to prove on the balance of probabilities that he paid the Rates between 1993 and August 2001 as alleged.

78.  As for the plaintiff’s payment of management fees to the IO in respect of Lot 51, there is no dispute that such payment was only made in April 2011. Therefore, it does not and cannot by itself support the plaintiff’s claim that he was in exclusive possession of Lot 51 since 1993.

79.  On the whole of the evidence, I am of the view that it is more probable than not that the plaintiff only came into exclusive possession of Lot 51 in 2001 for the following reasons:-

(1) Whilst both Madam Sit and Mr Lau gave evidence that Mr Cheuk was in possession of Lot 51 at different points in time in 1990s, neither of them was able to tell when did such possession came to an end. Given that it is the plaintiff’s own case that Mr Cheuk exercised actual possession, control and management of the Car Park from the late 1980s until about 2000, it seems to me more probable than not that Mr Cheuk’s possession of Lot 51 only ceased upon his demise in December 1999.

(2) After Mr Cheuk passed away in December 1999, any office set up by Mr Cheuk in Lot 51 as alluded to Madam Sit or any rental arrangement between Mr Cheuk and the plaintiff as to Lot 51 as alluded to by Mr Lau would have come to an end, leaving the plaintiff the only person to be in possession of Lot 51.

(3) Starting from September 2001, the plaintiff took upon himself to pay for the Rates in respect of Lot 51, as evidenced by the rates notices produced by him in these proceedings. Such conduct would be consistent with his taking exclusive possession of Lot 51. I note that he was diligent in keeping all rates notices since then, which stands in stark contrast to the lack of any documentary evidence prior to September 2001.

(4) According to the plaintiff’s oral evidence, he started considering himself as the owner of Lot 51 in 2002 when he did a land search and found out that Talent Key had been dissolved. I do not accept his evidence that a land search in 2002 would have revealed the dissolution of Talent Key, since (a) the land register of Lot 51 still shows Talent Key as the registered owner up to the present date, and (b) the dissolution of Talent Key would have only been revealed upon a company search of Talent Key rather than a land search of Lot 51. Nonetheless, it seems to me to be inherently probable that, shortly after the plaintiff took exclusive possession of Lot 51, he would have wanted to find out more about the registered owner who had apparently not entered the land despite a lapse of time and whether he could block off the Pathway,[18] and that he would be able to discover the dissolution of Talent Key upon performing a company search.

80.  For the above reasons, I find that the plaintiff came into exclusive possession of Lot 51 in 2001.

81.  Thereafter, in respect of the period from 2002 to November 2010, the plaintiff claims that he did not give access of Lot 51 to the IO or Union Fire for the purposes of carrying out the Fire Sprinkler Works and the annual inspections of the fire service facilities in the Car Park. Both Mr Lam and Mr Lau said in oral evidence that parts of Hoardings 2 and 3 had to be cut off in order to allow the personnel of Union Fire to enter Lot 51 during the Fire Sprinkler Works. To my mind, this is tantamount to an admission that the plaintiff did not give access of Lot 51 to the IO or Union Fire in 2002.

82.  As for the annual inspections, according to Madam Sit’s oral evidence, the personnel of Union Fire were able to inspect all fire sprinklers in the Car Park, viz. those in the public area as well as in the private parking lots, one by one and would not omit any fire sprinklers during the annual inspections, but she could not explain how it could be done without entering Lot 51. As explained above, I find this part of Madam Sit’s evidence to be unsatisfactory. In this regard, it is Mr Lau’s evidence that there were some metallic wires on top of the Door which would allow one to inspect the fire sprinklers at the ceiling of Lot 51 from the outside. I bear in mind that the plaintiff has conspicuously never produced a single photo to show the condition of Lot 51 and its enclosures. On balance, I consider Mr Lau’s evidence on this particular issue to be reasonable and inherently probable, and would find that no entry to Lot 51 was made by the personnel of Union Fire between 2003 and 2009 when carrying out the annual inspections of the fire service facilities in the Car Park.

83.  For the above reasons, I am satisfied on the balance of probabilities that the plaintiff remained in exclusive possession of Lot 51 from 2002 up to November 2010.

84.  After the completion of the Renovation in March 2011, the parties exchanged the following written correspondence in relation to Lot 51:-

(1) On 12 April 2011, the plaintiff made the Written Request in his own name, seeking the IO’s permission for a vehicle to be parked at the Pathway on the ground that Lot 51 was very narrow and could not accommodate a vehicle.

(2) On 22 April 2011, the IO issued the Payment Demand to Talent Key. On the same day, the plaintiff entered into the Tenancy Agreement with Mr Yau, and provided the Written Authorisation to the IO, which reads:-

“本人乃東廬大樓地庫車場51號車位的業主陳偉雄，現因本人欲將車位出租給邱繼林，而本人車位亦因欠下管理處的費用為$32156，本人現許租戶將其租金直接交與法團管理費戶口內以抵銷欠費直至完結為止。”

Mr SP Wong, on behalf of the IO, acknowledged the above arrangement by affixing the IO’s chop on the Written Authorisation.

(3) Thereafter, all deposit slips and receipts issued by the IO in respect of Lot 51 were addressed to the plaintiff as opposed to Talent Key. In particular, I note that the plaintiff was described as the owner of Lot 51 in the deposit slips.

85.  In my view, it is evident from the Written Authorisation that the plaintiff held himself out to the IO as the owner and landlord of Lot 51, without making any reference to Talent Key. Therefore, the IO must be aware of the plaintiff’s exclusive possession of Lot 51 from April 2011 onwards.

86.  In this regard, it is the IO’s pleaded case that it was misled by the plaintiff into believing that he was a director of Talent Key by reason of an alleged misrepresentation made by the plaintiff to Mr Lam in around 2012. However, in Mr Lam’s witness statement, he stated that the plaintiff first made the alleged misrepresentation to him in around 2009 to 2010, and during another conversation in 2012, the plaintiff made the same alleged misrepresentation to him again. No satisfactory explanation has been given by Mr Lam to explain away the discrepancies between the IO’s pleaded case (which was verified by his statement of truth) and his own evidence. In my view, the IO’s claim of misrepresentation does not sit well with the Written Request and the Written Authorisation in which the plaintiff held himself out as the owner of Lot 51 without making any reference to Talent Key. On the whole, I am unable to accept the IO’s case that the plaintiff made the alleged misrepresentation to Mr Lam.

87.  In summary, I find that the plaintiff was in exclusive possession of Lot 51 from 2001 to November 2010, and thereafter, from April 2011 onwards. Whether his exclusive possession of Lot 51 has since been disturbed by the IO as alleged shall be addressed below.

E4. Whether the IO has ever disturbed or prevented the plaintiff from using Lot 51, and if so, when and for how long

88.  The plaintiff’s case is that, after Mr Yau surrendered his tenancy of Lot 51 in March 2013, the plaintiff’s exclusive possession of Lot 51 was disturbed by the IO which (1) divided Lot 51 into two motorcycle parking spaces in October 2013 and allowed the same to be used by its tenants or licensees, and (2) refused to allow him to enter the Car Park since January 2014. He has produced photos taken by Madam Sit in 2014 and 2015 showing that some yellow lines were drawn on the floor of Lot 51 and three motorcycles, each covered by a motorcycle canvas cover, were parked in Lot 51.

89.  There is no dispute by the IO as to the authenticity of these photos. According to Mr Lam’s evidence, the yellow lines on the floor of Lot 51 were drawn by the security guards of Tung Lo Court to ensure that the owner of Lot 50 would not park his vehicle into Lot 51. Under cross-examination, Mr Lam admitted for the first time that:-

(1) After 2014, the IO has permitted the workmen engaged by its contractors, such as Lee Hing, to park their motorcycles in Lot 51 on a temporary basis while they were performing work in Tung Lo Court. Such permission was granted up to at least 2021, as evidenced by a photo showing Mr Lau’s motorcycle parked in Lot 51 in 2021.

(2) The IO has also permitted owners of other parking lots which were affected by flooding in the Car Park to park their motorcycles in Lot 51 when those parking lots were in repairs.

90.  Clearly, Mr Lam’s oral evidence represents a fundamental change in the IO’s case as to the use of Lot 51 after 2014. First, despite the IO’s plea that it did not make any partition to Lot 51, Mr Lam accepted that the yellow lines on the floor of Lot 51 after 2014 were drawn by the security guards employed by the IO. Secondly, whilst the IO pleaded that it only allowed temporary parking by either the occupier of Lot 28 or its contractors in the common area of the Car Park such as the Pathway, Mr Lam openly admitted during cross-examination that temporary parking was also allowed in Lot 51. In my view, it is more probable than not that the IO permitted not just temporary parking, but also long-term parking of motorcycles in Lot 51, since the photos taken in 2014 and 2015 show that three motorcycles, each covered by a motorcycle canvas cover, were parked in Lot 51. To my mind, it is inherently improbable that each of those motorcycle owners would invariably cover their respective motorcycles with a canvas cover for temporary parking as alleged by the IO.

91.  For the above reasons, I prefer the plaintiff’s evidence in this respect. I find that the IO entered into exclusive possession of Lot 51 in October 2013 and has since then converted the same for its own use and occupation, thus preventing the plaintiff from using Lot 51.

92.  Since the IO has not shown to have any legal title or right to possess Lot 51, I find that, as between the plaintiff and the IO, the plaintiff, being the earlier squatter in possession of Lot 51, has a better possessory title to Lot 51 than the IO: Asher (supra), at 5 and 7; Chung Ping Kwan (supra), at 238; Nam Ching Wun (supra), §§162 and 172; Ng Fuk Shing (supra), §57; Prosperous World (supra), §29.

93.  For completeness, I note that the fact that the plaintiff was no longer in possession of Lot 51 at the date of issuing these proceedings is immaterial. As Ng J explained in Chan Hau Ling (supra), §33, the common law has adopted the notion of title by first occupancy and held that possession, even if lost, gives rise to a right to recover it since as between mere possessors, prior possession is a better right: see also Ezekiel v Fraser [2002] EWHC 2066 (Ch).

94.  In the premises, by depriving the plaintiff of his exclusive possession of Lot 51 since October 2013, the IO is liable to the plaintiff in trespass, which is actionable at the suit of the person in possession of land although he is neither the owner nor derives title from the owner, and indeed may be in possession adverse to the owner: Clerk & Lindsell on Torts (23^rd ed, 2020), §§19-01 and 19-10. I am unable to accept the IO’s argument that the plaintiff did not plead a case of trespass. In my view, the plaintiff has pleaded all material facts in support of his case of trespass in §§22-25 of the amended statement of claim, and those pleas (save for the plaintiff’s allegation of issuing a letter dated 31 December 2013 to the IO, which I do not accept on the balance of probabilities: see §18 above) have been established to the requisite standard for the reasons stated above.

E5. Whether the IO is estopped from denying the plaintiff’s right to possess Lot 51 (if any)

95.  Having reached the above conclusion, I propose to deal with plaintiff’s estoppel claim briefly.[19]

96.  The plaintiff claims that, by reason of the IO’s conduct in regarding him as the owner of Lot 51, offering to look for a tenant of Lot 51 for him, asking him to execute a proxy form for voting at the annual general meeting of owners on 6 May 2012, issuing an entry pass to the Car Park and assigning a mailbox to him, and demanding and accepting management fees from him as if he was the true owner of Lot 51, the IO is estopped from denying that he has a relatively better title than the IO to possess Lot 51. Mr Siu submitted that the plaintiff’s case is one of proprietary estoppel.

97.  I find that certain parts of the plaintiff’s estoppel claim are less than satisfactory. First, the plaintiff did not put his case in respect of the appointment of proxy to Mr Lam during cross-examination, and therefore Mr Lam did not have an opportunity to deal with it in his oral evidence. In any event, the plaintiff has not produced any instrument of proxy in these proceedings but only a receipt issued by the IO which, on its face, is not clear as to whether the instrument of proxy was issued to Talent Key or the plaintiff personally. In the circumstances, I am not prepared to give any weight to this matter.

98.  Secondly, I do not think that the plaintiff has proven, on the balance of probabilities, that it was the IO, as opposed to Mr SP Wong acting in his personal capacity, who offered to look for a tenant of Lot 51 for him and arrange for Mr Yau to enter into the Tenancy Agreement with him.

99.  Save as the foregoing, in the light of the Written Authorisation, I accept the plaintiff’s case that the IO was aware that the plaintiff, in his personal capacity, leased Lot 51 to Mr Yau and the rental income derived therefrom was to be applied to settle the outstanding sums owed to the IO under the Payment Demand. I also accept the plaintiff’s evidence that, after the Renovation, the IO issued an entry pass to the Car Park and assigned a mailbox to him, as well as demanding and accepting management fees from him as if he was the true owner of Lot 51 until 2014.

100.  For the above reasons, I find that the IO has, through its conduct, made an assurance to the plaintiff that, as between the plaintiff and the IO, the plaintiff has a relatively better title than the IO to possess Lot 51, which was relied upon by the plaintiff to his detriment by settling the Payment Demand and paying the management fees for Lot 51 to the IO until December 2014. In these circumstances, the IO would be estopped from denying that the plaintiff has a relatively better title than the IO to possess Lot 51.

E6. Summary

101.  In summary, I find that the plaintiff was in exclusive possession of Lot 51 from 2001 up to September 2013 (save for four months between November 2010 and March 2011 when the Renovation took place), and that from October 2013 onwards, he has been dispossessed from Lot 51 by the IO, which has since occupied and used Lot 51 for its own purposes. As between the plaintiff and the IO who are both mere possessors of Lot 51, the plaintiff, having been in prior possession of Lot 51, has a relatively better title to Lot 51 than the IO. Thus, the plaintiff can recover possession of Lot 51 from, and claim trespass against, the IO. Further, the IO, by reason of its previous conduct, would be estopped from denying that the plaintiff has a relatively better title than the IO to possess Lot 51.

F. THE PATHWAY

F1. The main issues

102.  In the light of the parties’ pleaded cases and lists of issues, it seems to me that the main issues to be determined by the court in respect of the Pathway are as follows:-

(1) whether the plaintiff has had exclusive possession of the Pathway, and if so, when;

(2) whether the plaintiff has had the requisite intention to possess the Pathway during the period when he had exclusive possession of the same (if at all); and

(3) if the plaintiff succeeds in his claim in respect of the Pathway, what are the remedies to be granted.

103.  Again, I bear in mind the other proposed sub-issues raised by the parties, and shall deal with the same insofar as they are material to the determination of the plaintiff’s claims at hand.

F2. The relevant principles on adverse possession

104.  The relevant statutory provisions are found in the LO. Section 7(2) provides:-

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

105.  Section 17 provides:-

“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.”

106.  It is common ground here that the plaintiff has to establish adverse possession of the Pathway as against the IO for the requisite period of 12 years.

107.  It is also common ground that, for that purpose, the plaintiff has to demonstrate factual possession of the Pathway as well as the requisite intention to possess (viz. animus possidendi) for the whole period.

108.  Factual possession has been described by Slade J (as he then was) in Powell v McFarlane (1979) 38 P&CR 452 at 470-471, as follows:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. ‘What is a sufficient degree of sole possession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants’: West Bank Estates Ltd v Arthur [1967] AC 665 at 678-9 per Lord Wilberforce. … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession. … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

109.  On the question of intention to possess, Slade J stated that:-

“The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M.R., in Littledale v. Liverpool College (a case involving an alleged adverse possession) as ‘the intention of excluding the owner as well as other people.’ ... 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.

… An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”

110.  These statements of principle have been adopted by the Court of Final Appeal as representing the law in Hong Kong: Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55, 68F and H-J; The Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588, 592H-593I.

F3. Whether the plaintiff had exclusive possession of the Pathway, and if so, when

111.  The plaintiff claims that he was in adverse possession of the Pathway for a period of 12 years from 1993 to 2005, or alternatively, any continuous period of 12 years between 1993 and October 2013.

112.  In respect of the plaintiff’s alleged exclusive possession of the Pathway between 1993 and 2005, he solely relies on the oral testimonies of himself, Mr YP Wong and Madam Sit. I would adopt the same approach as explained above by making primary reference to the objective surrounding facts, such documentation as there is, and the inherent probabilities as they appear to the court, in assessing the witnesses’ testimonies.

113.  First, I repeat my views as set out in §§71-73 above, which also apply to the Pathway.

114.  The plaintiff has not given any satisfactory explanation as to why he had to enclose the Pathway in 1993:-

(1) The plaintiff stated in his witness statement that he erected enclosures to Lot 51 and the Pathway in 1993 in order to prevent others from taking his plumbing materials.[20] But it is also his evidence that his plumbing materials were only placed at Lot 51 but not at the Pathway.[21] No satisfactory reason was given by him to explain why he had to enclose the Pathway in addition to Lot 51 as alleged.

(2) The plaintiff also said that, between 1990 and around 2000, he attended the Car Park once per month to meet Mr Cheuk, and during his visits to the Car Park, he would park his car in the Pathway. To my mind, given the plaintiff’s admittedly infrequent use of the Pathway, it is improbable that there was any need for him to enclose the Pathway in 1993. During cross-examination, after it was pointed out to the plaintiff that he only parked his car at the Pathway for a short period of time during each visit, he changed his evidence and said he would park his car overnight at the Pathway and take a bus back to his home in Shau Kei Wan, even though he also said he was able to park his car in Shau Kei Wan. I find the plaintiff’s evidence on this issue to be contradictory and inherently improbable.

115.  It is the plaintiff’s case that he locked the Gate, which was the only access and egress to the Pathway, since 1993. As shown in the Car Park plan produced by the plaintiff,[22] the effect of locking the Gate was to prevent entry into both the Pathway and Lot 51. The plaintiff said he had only permitted Mr Yeung and Mr YP Wong to enter the Pathway and Lot 51 between 1993 and November 2010. This, however, is inconsistent with Madam Sit’s evidence that it looks like Mr Cheuk had his office in Lot 51 in 1993.

116.  As to the plaintiff’s case of having installed lighting apparatus and a drainage pump at the Pathway, I find that the plaintiff has not established his case in this regard to the requisite standard.

117.  First, it seems to me more likely than not that the lights at the Pathway had been installed as common facilities serving the common area (of which the Pathway formed part) of the Car Park.

118.  Secondly, the plaintiff said in oral evidence that he installed lighting apparatus in Lot 51 because it was very dark upon enclosure, but he did not suggest that there was any need to install lighting apparatus at the Pathway because of the lighting condition thereat.

119.  Thirdly, as to the drainage pump at the Pathway, it seems to me more probable than not that it was installed by Mr Cheuk rather than the plaintiff. On the plaintiff’s own case, he was not a licensed plumber, he could only perform certain plumbing work under the instructions and supervision of Mr Cheuk, and his main work responsibilities in the plumbing business was administrative in nature such as employing workers, paying for workers’ wages, and supervising the work progress at construction sites.[23] In these circumstances, it seems to me improbable that the plaintiff could or would have installed the drainage pump at the Pathway in 1993 single-handedly without even consulting Mr Cheuk, his business partner who was then possessing, controlling and managing the entire Car Park on his own evidence.

120.  Another matter which I consider material in assessing the veracity of the plaintiff’s claim of exclusive possession of the Pathway since 1993 is the existence of Hoarding 2, the Door and separate locks to the Gate and the Door. As stated above, given the configuration of the Pathway and Lot 51, and in particular, the existence of Hoardings 1 and 3, the locking of the Gate by itself would have prevented entry into the Pathway as well as Lot 51. During cross-examination, when the plaintiff was asked to explain why he erected Hoarding 2 and the Door and installed separate locks to the Gate and the Door, he initially answered that there was not much reason for doing so, then supplementing that he had to install electric plugs for lighting in Lot 51.

121.  I find it improbable that the plaintiff found it necessary to erect Hoarding 2 and the Door and to install separate locks to the Gate and the Door simply because of the electric plugs and lighting apparatus inside Lot 51. Based on what he said, if he had not erected Hoarding 2 and the Door, Lot 51 would not be dark and there would have been no need to install any lighting apparatus inside Lot 51. It appears to me more likely than not that the reason why Hoarding 2, the Door and separate locks were in place was because Lot 51 had been enclosed at an earlier point in time, whereas the Pathway was only enclosed later. This, in my view, would also have reasonably explained why there were separate locks to the Gate and the Door respectively.

122.  For the above reasons, I am of the view that the plaintiff has not established to the requisite standard that he entered into exclusive possession of the Pathway in 1993 as alleged.

123.  On the whole of the evidence, I am of the view that it is more probable than not that the plaintiff only came into exclusive possession of the Pathway in the second half of 2002 for the following reasons:-

(1) As explained at §79(1) above, I consider it probable that Mr Cheuk’s possession of Lot 51 ceased upon his demise in December 1999. Since one could only gain entry to Lot 51 through the Pathway, it seems to me more likely than not that the Pathway was neither enclosed nor in the plaintiff’s exclusive possession throughout Mr Cheuk’s lifetime.

(2) After Mr Cheuk passed in December 1999, it is the plaintiff’s evidence that he started considering himself as the owner of Lot 51 in 2002 when he found out that Talent Key had been dissolved: see also §79(4) above. To my mind, it is inherently improbable that he would have erected the Gate to block off the Pathway before 2002 whilst it would have prevented the true owner of Lot 51 (whom he knew was someone else although he did not know the identity thereof) from accessing Lot 51. It seems to me more probable than not that the plaintiff came into exclusive possession of the Pathway after he had discovered the dissolution of Talent Key in 2002 because, by then, he would have realised that Talent Key would not be competing with him for the possession of Lot 51 and he could block off the only entry point to Lot 51, viz. the Pathway, without any repercussions from Talent Key.

(3) Coincidentally, in the first half of 2002, the IO engaged Union Fire to carry out the Fire Sprinkler Works in the Car Park, as evidenced by the meeting minutes of the IO dated 4, 14 January and 1 February 2002. The IO’s meeting minutes dated 6 June 2002 and notice dated 7 June 2002 recorded that the Fire Sprinkler Works had been completed on 4 May 2002 and approved by the FSD on 5 June 2002 to be up to standard.

(4) The plaintiff accepts that there were fire sprinkler pipes at the ceiling of the Pathway, but denies having any knowledge of the Fire Sprinkler Works. I find it improbable that the plaintiff, who claims to have been in exclusive possession of the Pathway and Lot 51 since 1993 and have attended the Car Park six days a week on his own case, had no knowledge of the Fire Sprinkler Works at all. It seems to me that he was evasive and did not tell the court the whole truth as to his knowledge thereof. On the other hand, Mr Lam has given evidence that the Fire Sprinkler Works covered all fire sprinklers and associated pipes in the entire Car Park, viz. including those at the ceiling of the Pathway. His evidence in this regard has not been contradicted by any of the plaintiff’s witnesses, and is inherently probable given the contract sum of $224,400 quoted by Union Fire for the Fire Sprinkler Works.[24] Indeed, it is Madam Sit’s evidence[25] that she assisted the management office to collect sums from the carparking lot owners in 2002 to fund the Fire Sprinkler Works, which would seem to suggest that the Fire Sprinkler Works covered the entire Car Park or at least the common area thereof. In the premises, I would accept Mr Lam’s evidence on this issue and find that the workers of Union Fire gained entry to the Pathway to perform the Fire Sprinkler Works.

(5) I also find it to be more probable than not that when the workers of Union Fire entered into the Pathway for the purpose of carrying out the Fire Sprinkler Works, the plaintiff was not in exclusive possession of the Pathway. If he had been in exclusive possession of the Pathway, first, he would have been able to tell how did the workers of Union Fire gain entry into the Pathway through the Gate in order to carry out the Fire Sprinkler Works, but notably he has not given any evidence in this regard; and secondly, the Gate which he said had been locked by him at all times would have to be forced open for the personnel of Union Fire to gain entry into the Pathway but he has never suggested that the same happened. In the premises, it seems to me probable that the plaintiff had not yet entered into exclusive possession of the Pathway nor erected the Gate when the Fire Sprinkler Works were carried out in the first half of 2002, and he only did so thereafter, probably in the second half of 2002.

(6) It is Mr Lau’s evidence that he first saw the Gate in 2003, whereas Hoarding 1 had been erected by the owner of the adjacent Lot 52 in 1996 to enclose Lot 52. I accept this part of his evidence, which is consistent with the matters stated above.

124.  For the above reasons, I find that the plaintiff entered into exclusive possession of the Pathway in the second half of 2002. Thus, he has not established his case to the requisite standard that he was in adverse possession of the Pathway for a period of 12 years from 1993 to 2005. Further, even taking his case at its highest and assuming that he did not abandon possession of the Pathway during the Renovation, he has still failed to establish exclusive possession of the Pathway for any continuous period of 12 years up to October 2013, when he was dispossessed by the IO on his own case.

125.  For completeness, given my findings as stated above, it would not be necessary for me to deal with any issues arising from the lack of a proper plea of abandonment or re-entry as Mr Siu raised in his submissions.

F4. Whether the plaintiff had the requisite intention to possess the Pathway

126.  As Slade J held in Powell v McFarlane (supra), at 471, animus possidendi is defined as “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”.

127.  For the same reasons as stated in Section F3 above, I find that the plaintiff only had the requisite intention to possess the Pathway when he erected the Gate to enclose the Pathway in the second half of 2002.

128.  It is common ground that, in April 2011, the plaintiff signed the Written Request in which he asked the IO for permission to park a vehicle in the Pathway. There are disputes between the parties as to what was the IO’s response to the Written Request and whether the handwritten remarks which appeared at the bottom of the Written Request were present when he signed the document: see §13 above. It appears to me that those disputes are not material in determining the issue of animus possidendi. To my mind, what is material for the present purposes is that the plaintiff, who confirmed in his oral evidence to have signed the Written Request and agreed with the contents thereof (save for the handwritten remarks), asked the IO for permission to use the Pathway for parking purposes (“現申請可將車輛停泊於通道旁，敬希特准”). First, this suggests that the plaintiff had been aware that the IO did not allow parking in the Pathway. More importantly, this strongly militates against the plaintiff’s own case to have had the requisite intention to possess the Pathway in April 2011, in that if he had intended to possess the Pathway to the exclusion of the IO, there would have been no need for him to ask the IO for permission to use it or to execute the Written Request at all.

129.  In the premises, I find that the plaintiff had the requisite intention to possess the Pathway to exclude the IO and the world at large between the second half of 2002 and April 2011. Therefore, he has failed to establish to the requisite standard that he had the animus possidendi in respect of the Pathway for a continuous period of 12 years.

F5. Summary

130. In summary, I find that the plaintiff entered into exclusive possession of the Pathway in the second half of 2002, and he had the requisite intention to posess the Pathway between the second half of 2002 and April 2011. Thus, he has not established his case to the requisite standard that he was in adverse possession of the Pathway for a period of 12 years from 1993 to 2005, or for any continuous period of 12 years up to October 2013, when he was dispossessed by the IO.

G. REMEDIES

G1. Declaratory relief

131.  The plaintiff claims, in respect of Lot 51, a declaration that the plaintiff has a relatively better right and title vis-à-vis the defendant in respect of the exclusive possession of Lot 51. 

132.  In view of my findings and conclusions as stated in Section E above, I am prepared to make a declaration in terms of the proposed order as amended. I also take note that the declaration granted shall not affect the real owner of Lot 51, viz. the Government, from recovering possession from the plaintiff.

G2. Injunctive relief

133.  As this court finds in favour of the plaintiff in respect of Lot 51, I shall make an order that the IO do deliver up vacant possession of Lot 51 to the plaintiff within 7 days from the date hereof: Chan Hau Ling (supra), §72(1); Nam Ching Wun (supra), §211; Prosperous World (supra), §47(a).

134.  The plaintiff also claims an injunction that the IO be restrained from causing any unlawful disturbance to the plaintiff’s exclusive possession of Lot 51, whether directly or indirectly, by itself, its agents or employees.

135.  As I understand it, Mr Cheung does not seem to have objected to an injunction to be granted in the event that the court finds in favour of the plaintiff. His written closing submissions in respect of the injunction sought by the plaintiff were that, unless the plaintiff can show to the satisfaction of the court and the IO that he has a legitimate right to occupy or use Lot 51, the defendant can lawfully forbid the plaintiff’s entry into the Car Park in the exercise of its management duties under the BMO and DMC. In his oral submissions, Mr Cheung has clarified and fairly acknowledged that if the plaintiff’s claims in respect of Lot 51 are accepted by the court, the IO would respect the court’s decision and allow the plaintiff to enter the Car Park in such event.

136.  On balance, I consider that the plaintiff, who has a relatively better title to Lot 51 than the IO, should be entitled to an injunction to restrain any trespass on Lot 51: Clerk & Lindsell on Torts (supra), §19-10. Damages alone would not be an adequate remedy to the plaintiff. In my view, the injunction sought by the plaintiff in terms of the proposed order as amended is reasonably necessary for his exclusive possession of Lot 51 vis-à-vis the IO, and is thus warranted.

G3. Damages

137.  The plaintiff claims mesne profits against the IO for the latter’s deprivation of his right to use and possess Lot 51 since October 2013. He has adduced expert evidence from Ms Lo on the market rental of Lot 51 from 1 October 2013 up to 30 June 2021. There is no challenge to the expertise and experience of Ms Lo in giving expert evidence on the issue of valuation.

138.  The IO has not adduced any expert evidence on this issue. Its case is to adopt the monthly rental of $2,100 under the Tenancy Agreement between the plaintiff and Mr Yau as the multiplicand for any assessment of mesne profits.

139.  Ms Lo has prepared her valuation of the market rental of Lot 51 on the premise that five motorcycles could be parked in Lot 51. The IO disputes her expert evidence on the ground that she has failed to take into account (1) the impact on the insurance policy in place at the Car Park if a parking lot is used to park more than one vehicle, (2) that neither the occupation permit nor the DMC permitted multiple motorcycles to be parked in Lot 51, and (3) the possible reduction in rentability when a parking lot is to be shared by five motorcycles.

140.  In my view, it is not open to the IO to argue that Lot 51 could not be used to park more than one vehicle because Mr Lam, when shown the photos taken by Madam Sit in 2014 and 2015 during cross-examination, accepted that the IO has permitted three motorcycles to be parked in Lot 51 simultaneously. In doing so, the IO must have been satisfied that the permission it granted is in line with the terms of the occupation permit and the DMC. Ms Lo’s evidence that Lot 51 could accommodate five motorcycles is based on the practice notes published by the BD as to the dimensions of a standard motorcycle parking space, and her evidence in this respect is unchallenged. I therefore do not accept the IO’s objections in respect of (1) and (2) above.

141.  As to the IO’s argument that Ms Lo has failed to take into account the possible reduction in rentability when a parking lot is to be shared by five motorcycles, the IO has not adduced any evidence as to what, if any, reduction in rentability should be made on its own case. In the absence of such evidence, I do not think that there is any sufficient basis to criticise Ms Lo’s evidence in this respect.

142.  Having carefully considered the expert report and oral evidence of Ms Lo, I am satisfied with her methodology, the suitability of the comparables adopted by her as well as the adjustments she made to take into account the water seepage problem at the rear portion of Lot 51, and the differences between Lot 51 and the comparables in terms of time, size, floor, location, building condition and management.

143.  I do not agree with the IO’s adoption of the sum of $2,100 as monthly rental of Lot 51 from 1 October 2013. Such sum was charged by the plaintiff under the Tenancy Agreement in 2011. No adjustments have been made to reflect the upward trend experienced in the rental market since October 2013. It is therefore not safe to adopt $2,100 as the multiplicand.

144.  In the premises, I accept Ms Lo’s valuation of the market rental of Lot 51, inclusive of management fees, Government rent and rates, and free from all encumbrances, from 1 October 2013 up to the date hereof, which is as follows:-

(1) 1 October 2013 to 30 September 2015: $3,480 per month, totalling $83,520 ($3,480 x 24 months);

(2) 1 October 2015 to 30 September 2017: $3,890 per month, totalling $93,360 ($3,890 x 24 months);

(3) 1 October 2017 to 30 September 2019: $4,120 per month, totalling $98,880 ($4,120 x 24 months);

(4) 1 October 2019 onwards: $4,290 per month, totalling $195,924.30 ($4,290 x 45.67 months) up to the date hereof.

Total: $83,520 + $93,360 + $98,880 + $195,924.30 = $471,684.30

145.  I therefore find that the mesne profits from 1 October 2013 up to the date hereof amount to $471,684.30, and the same would continue to accrue at the daily rate of $143 ($4,290 ÷ 30 days) until the IO’s delivery up of vacant possession of Lot 51 to the plaintiff.

H. CONCLUSIONS AND ORDERS

146.  For the above reasons, I find that the plaintiff has succeeded in his claim of possession vis-à-vis the IO in respect of Lot 51 but failed to establish adverse possession of the Pathway, and would make the following orders:-

(1) A declaration that the plaintiff has a relatively better title to possess Lot 51 vis-à-vis the defendant.

(2) The IO do deliver up vacant possession of Lot 51 to the plaintiff within 7 days from the date hereof.

(3) The IO be restrained from causing any unlawful disturbance to the plaintiff’s possession of Lot 51, whether directly or indirectly, by itself, its agents or employees.

(4) Judgment be entered against the IO in the sum of $471,684.30 under §144 above.

(5) The IO do pay the plaintiff the sum of $143 per day until the delivery up of vacant possession of Lot 51 under §145 above.

147.  I make an order nisi that the IO shall pay interest on (1) the sum of $471,684.30 at 1% above the prevailing Hong Kong dollar prime lending rate from 1 October 2013 to the date of judgment, thereafter at the judgment rate until full payment, and (2) the sum of $144 per day at the judgment rate until full payment.

148.  On the issue of costs, it is fair to say that the plaintiff succeeds in half of his claims against the IO in the action. Overall, I think the IO should pay half of the plaintiff’s costs of the action.

149.  As I mentioned during the trial, I have some misgivings about the preparation and production of the agreed trial bundles. A majority of the documents appear twice, and some of them appear thrice. For instance, the same document would first appear as an exhibit to a witness statement, then under the section titled “Plaintiff’s documents”, and further again under another section titled “Defendant’s documents”. It appears that the agreed trial bundles were simply prepared by combining the parties’ respective documents without any proper organisation to eliminate duplicate documents, arrange the documents in a chronological order and ensure that there are no illegible pages. This practice is not conducive to the court and counsel’s preparation for the trial and would not be condoned. I am inclined to think that both sides’ solicitors have fallen short of promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings and to ensure that the resources of the Court are distributed fairly under Order 1A, rule 1(c) and (f) of the Rules of the District Court (Cap 336H), such that it would be justifiable for the court to disallow the solicitors’ costs of preparing and producing the trial bundles, including those costs incurred in updating the agreed trial bundles and the index thereto as per the court’s direction on 2 May 2023, as between the solicitors on the one hand and their respective clients, the opposite party or the Director of Legal Aid on the other hand: Leung Chin To Michael v Wong Siu Cheuk Ping Selina [2023] HKDC 376, §§60-63, per Deputy District Judge Alfred Cheng.

150. I therefore make an order nisi that:-

(1) save as provided for in sub-paragraph (2) below, the IO do pay half of the plaintiff’s costs of the action, with certificate for counsel, to be taxed if not agreed;

(2) the solicitors for the plaintiff and the IO shall not recover the costs of and occasioned by the preparation and production of the trial bundles, including those costs incurred in updating the agreed trial bundles and the index thereto as per the court’s direction on 2 May 2023, from their respective clients, the opposite party or the Director of Legal Aid; and

(3) the plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

151.  As explained above, in the light of the undisputed fact that Lot 51 is bona vacantia land, I consider that it is in the public interest that the Government should be informed of the outcome of these proceedings. Having heard counsel’s submissions, I would direct that a copy of this judgment be sent to the Department of Justice and the Lands Department by the Registrar.

152.  I thank Mr Siu and Mr Cheung for their considerable assistance.

APPENDIX