YEUNG WAI FAN v. HONITON INTERNATIONAL LTD

HCA 1051/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 1051 OF 2010

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J U D G M E N T

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1.  The plaintiff (“Yeung”) claims to have dispossessed the defendant (“Honiton”) and its predecessors in title of various plots of land in Sai Kung, New Territories by way of adverse possession. He seeks declaratory relief to that effect.

BACKGROUND

2.  In question are Lots Nos. 1062, 1063, 1064A, 1064RP, 1065, 1067, 1068 and 1069 in DD 221, Sai Kung, New Territories (collectively “the Lots”), which are situated at what is known as Kap Pin Long Village (“the Village”).

3.  Between 1948 and 1992, the Lots were registered in the names of various members and descendants of the Li family by and through statutory succession and/or division of property.

4.  On 30 September 1992, Gainfast Development Limited became the registered owner of the Lots.

5.  On 23 December 1992, Sun Link Properties Limited became the registered owner of the Lots.

6.  On 15 March 1997, Honiton, a BVI company, became the registered owner of the Lots.

7.  In October 2006, Yeung, apparently acting in person, commenced action against Honiton  (“HCA 2338/2006”) for declaration that he had been in adverse possession of the Lots, except one, and that Honiton’s title to and right to recover them had been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance, Cap 347 (“LO”).  The one lot that was not included in the claim in that action was Lot No.1062.

8.  On the ground that Yeung had failed to comply with its notice requiring him to serve the writ within time or alternatively to discontinue the action, Honiton applied for the dismissal of that action.  The court granted the order against Yeung on 16 January 2008 with costs to Honiton.

9.  On 13 July 2010, Yeung, now legally aided, commenced the present action essentially lodging the same claim as in HCA 2338/2006 against Honiton, only that this time Lot No.1062 is also included.  Yeung further claims that when he was not in occupation of the Lots, on 13 October 2005, Honiton trespassed upon the Lots and destroyed the structures and chattels belonging to him.  Yeung seeks possession of the Lots, mesne profits and damages for property damage.  The writ was registered with the Land Registry against the Lots.

10.  Honiton denies the claim and puts Yeung to strict proof of his possession of and right in the Lots[1]. It counterclaims for the registration of the writ against the Lots to be vacated.

THE PRINCIPLES

11.  The applicable LO provides that:

Section 7(2)

“No action shall be brought by any other person to recover any land after the expiration of 20 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”[2]

Section 17

“Subject to the provisions of section 10, at 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.”

12.  It is the burden of Yeung to prove both the alleged factual possession of the Lots with the requisite intention to possess (animus possidendi) for the entire 20-year limitation period: see Wong Tak Yue v Kung Kwok Wai & Anor (No 2) (1997-1998) 1 HKCFAR 55.

13.  Subsequent to Wong Tak Yue, the English House of Lords in JA Pye (Oxford) Ltd & Anor v Graham & Anor [2003] 1 AC 419 approved (at 436) what Slade J said in Powell v McFarlane & Anor (1979) 38 P&CR 452 at 470-1 in respect of factual possession:

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly……The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed……Everything must depend on the particular circumstances, but broadly I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

14.  Both the Court of Final Appeal in Wong Tak Yue (at 68) and the House of Lords in JA Pye (at 447-8) adopted what Slade J said in Powell (at 471-2) that the requisite intention to possess:

“……involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.”

An intention to own the land or to acquire ownership is not required: see JA Pye at 436-7, approving Buckinghamshire County Council v Moran [1990] Ch 623 at 643.

THE PLEADED CASE[3]

15.  Yeung contends that his father, Yeung Shui Bun (“the Father”), first entered into possession of the Lots as an annual tenant, and used the Lots for farming in early 1960s.  Structures were built for farming and residential purposes.  Allegedly, since mid-1960s, the Father ceased to pay rent for the Lots.  Nor was rent collected from him.  Yet he continued to occupy the Lots exclusively as before.

16.  Yeung came from the Mainland on 20 April 1977 and joined the Father.  He got married in the Mainland and his wife later came on 5 October 1981.  The family continued to live and work on the Lots.  On 27 October 1983, their daughter (“the Daughter”) was born.  The Father died on 14 January 1996. Yeung’s family continued to occupy the Lots.

17.  On this basis, Yeung pleads the following case[4]:

(1)     Latest by the lapse of the anniversary of the date when the annual rent for the Lots fell to be due but not paid (in or about 1966), the Father would have been a trespasser of the Lots.

(2)     The Father’s occupation of the Lots were continued by Yeung since his arrival on 20 April 1977 and/or in 1996 when the Father passed away and Yeung remained in continuous occupation of the Lots.

(3)     Counting from 1966, the title of the members of the Li family in the Lots had been extinguished by the end of 1986 at the latest.  It follows that no title could be passed to Honiton’s predecessors and eventually Honiton.

(4)     Further or alternatively, Yeung had been in exclusive possession of the Lots since his arrival on 20 April 1977 by, amongst other things, continuing working on the Lots as a farm and improving the farming facilities, including the erection of a new structure or structures to keep and raise pigeons.  Following the arrival of his then wife in 1981 and the birth of the Daughter in 1983, the Lots continued to be used and occupied by his family of three jointly and exclusively.

(5)     Counting from 20 April 1977, the title of the paper owners as aforesaid had been extinguished by the midnight of 19 April 1997 at the latest.

18.  Yeung seeks declaration to the above effect and thus possession of the Lots.  He claims mesne profit at an unspecified rate until the delivery of vacant possession of the Lots by Honiton.

19.  As to the property damage on the Lots in 2005, Yeung contends that the servants or agents of Honiton were responsible.  He claims damages in the total sum of HK$1,256,000.

DISPUTE

20.  From the identity of the land that the Father and Yeung had allegedly occupied to the issue alleged continuous adverse possession of the same during the limitation period as pleaded, all are in dispute which Honiton requires Yeung to prove strictly.

WITNESSES

21.  Beside himself, Yeung called the following witnesses:

(1)     Lo Siu Ling (“Lo”), former employee of Yeung’s company;

(2)     Lee Wan Fat (“Lee”), alleged former neighbour of the Father and Yeung in the Village; and

(3)     the Daughter.

22.  Honiton has no witness as to fact.

23.  The witnesses have filed their respective statements.  It is relevant to bear in mind the following words of caution of Li CJ in Wong Tak Yue (at 69):

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

That Honiton puts forward no positive case to contradict Yeung does not mean the court is bound to accept his assertions.  There is still the assessment of the evidence and credibility on the balance of probabilities. I also acceded to the request of Honiton to require Yeung to give evidence in chief viva voce.  The other witnesses however gave evidence by adopting their statements as evidence in chief.

24.  Both parties have engaged experts to study the survey sheets and aerial photographs of the Lots during the relevant period of time.  Yeung and Honiton have instructed Mr Ng Chor Choi (“Ng”) and Mr Leung Shou Chun (“Leung”) respectively, who have produced the following reports:

(1)     Leung’s report dated 9 November 2011;

(2)     Ng’s report dated 12 November 2011;

(3)     Leung’s supplemental report dated 4 May 2012;

(4)     Ng’s supplemental report dated 14 June 2012; and

(5)     their joint statement dated 15 August 2012.

25.  Both experts attended the trial and testified.

THE ALLEGED POSSESSION OF THE LOTS

26.  Honiton disputes that the land the Father and Yeung had allegedly possessed was or fell within the Lots.  If Yeung fails to discharge his burden of proof in this respect, it will be the end of his claim.

27.  No plan is attached to the statement of claim to actually identify and to delineate the land that Yeung claims to have allegedly possessed.  Despite specific request by Honiton to him to identify the exact location of the farm allegedly operated by the Father and him, Yeung answered that the Lots had been so used and the exact boundary of the farm would be irrelevant[5].

28.  In other words, Yeung is suggesting that the land allegedly so occupied and used were indeed the Lots as they were shown by the survey sheets to be covering at all material times.  Yeung is not suggesting any other boundary.  For easy reference, a copy of the lot index plan as at October 2005 showing the Lots and their vicinity[6] is attached to this judgment (“the Plan”).

29.  Apart from what were identified[7] in the Plan as part of the further and better particulars of his pleading, Yeung has not identified the other structures and facilities said to have been erected at the Lots.  Several photographs were produced, which were said to be snapshots of the family inside and outside where they then resided at the Lots in 1984-1985.  Photographs depicting what was said to be the aftermath of the alleged destruction at the Lots in October 2005 were also produced.  Yet these photographs, without more, do not cast light on the precise locations of where they were actually taken.  All would have to depend on what Yeung and his witnesses would say in court.

The alleged residence of the Father and Yeung’s family

30.  According to Yeung, the Father and later Yeung’s family had resided at No.16E of the Village.  It was the temporary structure identified by him in the Plan, and what the experts labelled as Structure B (or TS2) on the aerial photographs of the Lots.  It was located at Lot 1069.  The abovementioned family photographs were said to have been taken there.

31.  Yeung said No.16E was subsequently changed to No.94, following the change of building numbering and thus addresses in the Village.  According to Lee, his house, which used to be No.16A was also changed to become No.100 at about the same time.  Honiton questions all those.

32.  Neither Yeung nor Lee could tell under what circumstances and at what time the alleged change of building numbering and addresses of the Village took place.  The available documents show that the Father and Yeung were using the address of No.16E in January 1984 but No.94 in July 1986.  If they were the same place and there had been such change of house numbering, that would have had to take place at a time between these dates.

33.  One would have expected the alleged change of house numbering and thus addresses affecting the entirety of the Village to have been officially initiated or coordinated.  Yeung produced no official verification of change of such scale. In court, Yeung even claimed no personal knowledge about the change, which he merely learned about from the Father.  Exhaustive enquiries made on behalf of Honiton however revealed that there was in fact no registration record of either No.16E or No.94 of the Village with any of the relevant Government departments at all[8]. Referring to the survey sheets in respect of the Village (and the Plan), one cannot find any structure so numbered either.  As explained by the experts, the survey sheets were supposed to depict what were in fact observed during the survey of the Village in the given years.  That such structure being so numbered but was neglected during the survey throughout the years, which is not suggested anyway, should not be lightly assumed.

34.  The evidence shows that Yeung was registered as an occupant of 3 squatter structures during the 1984 squatter population registration exercise. According to the Lands Department[9], the 3 squatter structures were registered as KBL/76/270, KBL/76/272 and KBL/76/273 respectively.  From the electricity bills dated 1995 and 2005 for the account of the Father, one reckons that structure KBL/76/270 was taken to be No.94 of the Village.  Put together, Structure B (or TS2) identified in the aerial photographs or the structure identified in the Plan, so Yeung alleges, was No.94 or KBL/76/270 on Lot 1069.

35.  Mr Chong repeatedly submits that Structure A (or TS1), Structure B (or TS2) and Structure C (or TS3) identified by the experts on Lots 1063, 1069 and 1064SA respectively in the aerial photographs were those 3 registered squatter structures.  Mr Chan questions how the registration numbering of the 3 squatter structures in a row, allegedly behind a single entrance guarded by a gate and allegedly occupied by the same family came to have jumped a number, namely, KBL/76/271.  More significantly, what Mr Chong submits is not at all supported by the Lands Department.  In its letter mentioned above, the Lands Department stated clearly that it has no record of the lot numbers of land where the 3 registered squatter structures (including what is said to have been No.94) were situated.

36.  In other words, there is no objective evidence to substantiate that Nos.16E and 94 were the same structure.  Nor does the available evidence of squatter population registration cast light on whether No.94 or KBL/76/270 was indeed Structure B (or TS2) in Lot 1069.

37.  Lo, staff at Yeung’s company, gave evidence that she had been to the land that Yeung occupied once in 2003, and once in 2005 after the alleged destruction there.  But I am not convinced that she was in a position to confirm the location of such land out of her personal knowledge.

38.  The Daughter explained the family snapshots.  However those photographs were said to be dated 1984-1985.  By the time when her family moved to public housing estate in 1988, she remained a child of tender age.  The need to be careful about the reliability of her evidence in respect of the past is called for. She would even mistakenly identify his father’s classmate in the photograph to be her uncle, his father’s younger brother.

39.  The probability of the 3 registered squatter structures being those identified in Lots 1063, 1069 and 1064SA respectively in the aerial photographs of the Lots is further compromised by the evidence in respect of Yeung’s connection with Nos.90 and 98 of the Village.  Nos.90 and 98 were situated outside and to the west of the Lots, as shown on the survey sheets and the Plan.

40.  When first cross examined in respect of No.90, Yeung claimed no idea where it was situated.  So said Lee in court, though not without ambiguity.  However the survey sheet dated as early as 1986 already depicted the location of No.90.  Its location remained unchanged in the Plan (dated 2005) and the survey sheet dated 2007.  No.100, where Lee had allegedly resided at until 2001, was in fact neighbouring to No.90.  His alleged ignorance about No.90 invites scepticism.

41.  Yeung at first also denied any connection whatsoever with No.90.  But the evidence shows that he was the addressee of the Rating and Valuation Department (“RVD”)’s demand notes both for rates and government rent in respect of No.90, which was apparently occupied under a Government land licence numbered S2341.  Yeung then explained that he had always paid the relevant rates and government rent at the instruction of the Father, not knowing that they concerned No.90.  He suggested that it was a mistake of both the Father and him in believing that the payment related to the Lots.  He had not read such demand notes, which had been passed to his staff to handle, and did not discover the mistake even after the passing of the Father.

42.  Disclosed and produced to the court was a copy of replacement demand note for Government rent in respect of No.90 dated 1996.  The original of the document was produced[10] only on the 7^th day of the trial.  For that, Yeung had to be recalled to testify.  The original document now revealed that it was originally issued to a person also surnamed Yeung[11] at Lot 1976 of DD 221, Po Tung Road, 1/F Block B, Sai Kung, New Territories.  That address was distant from the Village.  The name and address of the account were then amended and substituted by those of Yeung pursuant to his notification of change dated 22 April 1996.  On 26 April 1996, Yeung also paid the government rent in respect of No.90.  The change and such payment were then recorded by hand on the replacement demand note.

43.  In other words, Yeung took the initiative after the passing of the Father (in January 1996) to notify the RVD of the change of both the name and address of the account to those of him in April 1996.  Query how Yeung got hold of the replacement demand note and, more importantly, found himself in a position to do all that, if he had no connection with No.90.  The notification of change was bilingual.  Yeung filled in the notification as the owner in occupation of No.90. For Yeung to claim that he had done all those in connection with No.90 throughout the years under a mistake is simply hard to believe.

44.  According to Lo, she joined Yeung’s company in August 1997.  That would be after what took place in connection with the RVD and No.90 as mentioned above.  She was said to have handled the payments at the instruction of Yeung, and had not drawn Yeung’s attention to the payment in connection with No.90.  In view of the above discussion, I do not think her such evidence serves to alter the picture in Yeung’s favour.

45.  The relevance of No.90, which Yeung claimed to own, actually comes about upon a close reading of another document that he relied on.  There was produced what is said to be a draft agreement dated 9 July 2007 in relation to HCA 2338/2006 (“Draft Agreement”).  It was prepared by Yeung and addressed to a Mr Ku and a solicitors firm said to be representing Yeung.  It contained his proposal to this Mr Ku for compensation in the sum of HK$1.98 million for the destruction of his land and construction thereon.  The land and construction that had allegedly been destroyed were stated to be Nos.90 and 94.

46.  As mentioned, No.94 was said to be his residence and allegedly one of the 3 registered squatter structures at the Lots.  Even assuming, as it was not actually so explained, that reference to No.94 in the Draft Agreement was meant to be that to the entire farm, one would still find it difficult to associate that with No.90, which, as mentioned, was outside and to the west of the Lots.  In both HCA 2338/2006 and the present action, Yeung has been holding Honiton liable for the destruction of his land and properties.  The complaint would have made sense only if No.94 was in fact situated together with or close to No.90, which in that case would be outside the Lots.  But it is not alleged that Honiton had any connection with No.90.

47.  Consideration of No.98 of the Village compounds the suspicion.  As mentioned, photographs of what was allegedly the aftermath of the destruction of the Lots were produced. Amongst them are those depicting what was said to be the joint mailbox for Nos.94 and 98.  Yeung made no mention of No.98 in his statement.  In court, he explained that No.98 had been used by the Father and him for storage.  However its location according to him[12] is contradicted by the survey sheets.  At one point, he even resorted to challenging the accuracy of the survey sheets, contrary to the confirmation of both experts.  Lee sort of testified in corroboration of Yeung’s case, but is hardly credible, again in view of the fact that No.100, where he had allegedly resided at, was neighbouring to No.98.

48.  In any event, as shown in the survey sheets (and the Plan), No.98 was outside and to the west of the Lots.  It was amongst the cluster of structures including Nos.90 and 100.  If what Yeung said about the locations of the 3 squatter structures, of which he was registered as an occupant, were true, it would mean that No.98, which the Father and Yeung had allegedly possessed for no less than similar period of time, was somehow left out of the squatter registration in their names.  As to that, Yeung said that that did not cross his mind or was neglect on his part.  It sounds doubtful, if the Father or Yeung were minded to erect a joint mailbox for Nos.94 and 98, notwithstanding their rather separate locations (according to Yeung).

49.  Against the above backdrop, it becomes not difficult to understand why Mr Chan suggests the possibility that Nos.90, 94 and 98 might be amongst the same cluster of structures that had nothing to do with the Lots.  Of course, Honiton does not put forward a positive case in this regard.  But the suggestion follows from putting Yeung’s assertions and evidence to test against the other evidence, and, in my view, is more than mere conjecture.  Back to the question before me, which is whether Yeung’s case, so tested, is more probable than not the truth, I would not answer in the affirmative.

The other alleged structures and farming activities

50.  Apart from residence, the Lots, as pleaded, had allegedly been used by the Father and Yeung as a farm, in particular, in cultivation and raising poultry[13].  As mentioned, Yeung took the stance that the exact location of the alleged farming activities at the Lots would be irrelevant and immaterial[14]. The picture remained unclear when he filed his witness statement.  By the time when he came to give evidence in this respect in court, all the aerial photographs and expert evidence have been available for reference.

51.  According to Yeung, there was a pig shed at the farm when he arrived in 1977.  There were 5 to 6 pigs at the time but they were sold in the following year.  No more pig had since been kept, and the structure was converted for storage and keeping poultry.  This structure was now said to be Structure A (or TS1) as identified in the aerial photographs.

52.  Structure A was said to be one of the 3 registered squatter structures mentioned above. But Yeung was never able to say which of the remaining 2 squatter structure registration numbers (other than the one relating to No.94) referred to this structure.

53.  For the alleged storage and keeping of poultry, one would have expected, and Yeung also agreed in court, that the structure would have had to be water tight at least from above.  But the aerial photographs show otherwise.  The experts observed that the southern part of the roof of Structure A was actually damaged by the end of November 1976 and had since remained the same until it became covered by vegetation and ceased to be visible from the photographs by 2000.

54.  In his statement, Yeung referred to another structure about 200 square feet large.  In court, he now suggested that it was a structure added and adjoining the east side of Structure A and lower in height.  This was what was labelled as Structure D[15], something new and came about only during his cross examination.  However, as to whether what was depicted in the aerial photographs matches the size of the 200-square-feet structure he referred to in his statement, Yeung became ambiguous.

55.  It was suggested that Structure C (or TS3) identified in the aerial photographs by the experts was the remaining one of the 3 registered squatter structures referred to by the Lands Department.  Again Yeung never attempted to tell which of the squatter structure registration numbers referred to this structure.  It was said to be a small shrine (小神廟), which was never mentioned in Yeung’s statement.  But when it came to his evidence in court, Yeung identified the shrine to be located at another spot whereas Structure C (or TS3) was said to accommodate the urns (金塔), again something mentioned for the first time.  In either case, Yeung is suggesting that a structure of that sort was registered as a squatter structure of which Yeung was said to be the occupant.  There is no suggestion that the urns had any connection with the Father’s family or Yeung.  As to its size, Yeung said it was rectangular in shape of about 2 x 8-10 feet, which, as far as he was aware, had remained unchanged.  This was however at variance with the experts’ reading of the aerial photographs, whereby they observed Structure C (or TS3) to be about 10 x 10 feet.  The same was removed and replaced by a new rectangular cubicle in about 1983.

56.  In his statement, Yeung mentioned his erection of a toilet.  He now said what Leung labelled as Ob1 in the aerial photographs dated 1976 in his report was an outdoor latrine.  According to him, he had it removed in about 1979 so that that part of the land was buried.  Then the new toilet was built apparently prior to his wife’s arrival in 1981.  This however was at variance with what the aerial photographs depict.  The same object as Ob1 remained visible even up to 1990s, albeit somehow labelled differently.

57.  According to his statement, Yeung saw no cultivation but weeds everywhere at the farm upon his arrival.  He made the point that it was his idea to resume cultivation. However, the available aerial photographs dated up to 1976-1977, as the experts observed, depict active cultivation particularly in the north and central parts of the Lots.  Under cross examination, Yeung became ambiguous in his evidence in this respect.

58.  According to Yeung, he and his family moved out of the Lots to public housing estate in February 1988 while the Father remained.  However, poultry, in particular pigeons, were still kept at the farm up to then.  In respect of that, he marked where the pigeon cage was located in the Plan in answer to Honiton’s request for further and better particulars of the statement of claim.  However, when it came to his evidence in court, the number and location of pigeon cages differed from such pleaded case.  His explanation that he might not be serious in his answer then or that his memory was somehow better during trial does not help to improve his reliability in this respect.  Added to the scepticism is his evidence that at one time, there were about 200 pigeons kept, but none of them was sold as they were allegedly consumed by the family.

59.  Yeung’s pleading is silent as to how his possession of the Lots since 1988 was asserted. His evidence was that both the Father and he had had full time work outside the Lots by then.  The family would visit the Father at the Lots and helped out with the chores at the farm.  In court, Yeung added that the Father’s health also turned poor during the 8 to 10 years prior to his death (in January 1996).  However, the aerial photographs dated 1989-1990, as the experts observed, depict an orchard at the Lots during 1989-1990.  The circumstances, as mentioned, were such that the Father, with the extent of alleged help of the rest of the family during visits, would have hardly been able to accomplish such cultivation of an orchard.  More importantly, Yeung never even mentioned the cultivation of such an orchard in 1989-1990 at all in his evidence, be it his statement or in court.  In other words, his evidence is again at variance with the objective evidence.

Whether what Yeung allegedly occupied were the Lots

60.  Considering all the evidence, including those discussed above, I do not believe in Yeung and the evidence adduced on his behalf in proof of his alleged adverse possession was that of the Lots.

CONTINUOUS ADVERSE POSSESSION

61.  I proceed to consider the issue of continuous adverse possession for completeness.  The exercise would be meaningful only by assuming that the structures and land that the Father and Yeung had allegedly occupied indeed fell within the Lots.  On this basis, I would also consider the parties’ argument in respect of the gate and fences located at the Lots.

Up to 1988

62.  The pleaded case, as mentioned, is that the Father started his possession of the Lots in 1960s.  Such possession is said to have been continued by Yeung upon his arrival in April 1977, who had since remained in continuous possession of the same.  On such basis, the title of the members of the Li family in the Lots is said to have been extinguished by the end of 1986 at the latest, which was well before their assignment to Honiton’s predecessors in title.

63.  Yeung has no personal knowledge about the manner in which the Father entered into possession of the Lots as an alleged annual tenant.  Nor does he have any personal knowledge about the alleged tenancy or its terms, save that the rent is said to have been paid annually[16]. His evidence in this respect is admittedly hearsay from the Father some 3 decades ago.  Yeung was unable to improve the evidence in this respect in court.  Li, as mentioned, was a child of tender years at the time when the Father was said to have started possession of the Lots.  There is no objective evidence to corroborate when the Father allegedly stopped paying rent for the Lots and thus the commencement of the adverse nature of the possession either.

64.  According to Yeung, when he arrived in 1977, he could see a pig shed, the residence, another hut and an outdoor latrine.  He saw no cultivation but weeds everywhere. Objectively the aerial photographs taken over the Lots in 1945, 1956, 1961-1964 show cultivation activities on the Lots but no such structures that Yeung referred to.  Structure B, which is said to be the residence of the Father, first appeared in the aerial photograph taken in 1973.  The survey sheets prior to that time do not suggest the earlier existence of the structures.

65.  In other words, there is no objective corroborative evidence in respect of the Father’s alleged annual tenancy over the Lots.  Using the erection of the family residence (Structure B) as the reference point, one only sees evidence tending to show that such possession by the Father could not have commenced in 1966 as alleged.  If the possession prior to 1973 had taken the form of mere cultivation of the Lots, which is not really Yeung’s case, the available evidence still casts no light on whether the cultivation activities on the Lots depicted in the aerial photographs taken prior to 1973 in fact had to do with the Father.

66.  Lee gave evidence that he came to know the Father since he had cognitive power.  According to him, he was born on 20 January 1962.  In view of the objective evidence discussed above, Lee’s such evidence was bit of an exaggeration, as the residence of the Father (Structure B) was not shown to have existed until he was already 10-11 years old.

67.  In the circumstances, even assuming that the Father had been in possession of the Lots prior to the arrival of Yeung in April 1977, the pleaded case of commencement of such possession in 1966 does not take off.  Nor does the pleaded case that the 20-year limitation period had lapsed by the end of 1986 at the latest.

68.  The Father is said to have remained in possession of the Lots as before until his death in 1996.  In the circumstances, how the Father’s possession of the Lots can be said to have been continued by Yeung since his arrival in April 1977 is not clear either from his pleading or its further and better particulars.

69.  It was only in his evidence that Yeung asserted that upon his arrival in April 1977, he proposed and orally agreed with the Father to rent the Lots from the Father at the monthly rent of HK$1,000.  According to him in court, the idea was that he took over the Lots as he would take care of the Father.  However, he had not actually paid such rent.  Nor had the Father demanded payment until after Yeung had a part-time job outside of the Lot 2 years later.  Still he did not pay any rent.  Instead he then scrapped the verbal tenancy, and proposed to co-operate with the Father in farming as well as to “own” the Lots together.  The Father is said to have not indicated one way or the other, which Yeung took that to be a verbal agreement or no objection. This was how Yeung allegedly came to possess the Lots.

70.  There is no suggestion or evidence the Father and Yeung somehow had any discussion, let alone plan, regarding the use or development of the Lots prior to Yeung’s emigration from the Mainland in April 1977.  Nor is there suggestion or evidence that Yeung came from the Mainland prepared for that either.  Further, both in court and by his statement, Yeung’s evidence is that the agreement with the Father covered the Lots, not merely part of them or the farmland.  The Father’s residence would be included under the agreement as well.

71.  One would not be surprised, if the Father would accommodate Yeung and subsequently his wife from the Mainland in those days.  Nor would one be surprised, if the family together worked on the land ever since.  Query how 18-year-old Yeung from the Mainland in 1977 would consider himself to be in a position to make such proposal to the Father upon his arrival, and how the Father, who was merely 40 years old and had been farming there, would have any reason for accepting that.

72.  There is no evidence in respect of the income and expenditure of the farm prior to or after Yeung’s arrival.  But even according to Yeung, the yield did not enable him to pay any rent to the Father at all.  Both the Father and he started to work outside the Lots for their living since late 1970s.  In early 1980s, Yeung worked full-time outside the Lots.  No pig had been kept one year after his arrival. Pigeons had allegedly been raised, but, according to Yeung, were consumed by the family instead of sold for profits.  Therefore the reality, even according to Yeung, did not sit well with the alleged agreements to work on the Lots with the purported view to relieving the Father from the responsibility for and chores of farming.

73.  Yeung’s assertion is inherently incredible.  I also find it artificial to suggest that the Father’s possession of the Lots had to be or was continued by Yeung since his arrival in April 1977, in the absence of evidence of any alteration of the Father’s possession of the Lots in his own name and on his own behalf since.

74.  The accommodation of Yeung, and eventually his wife in 1981 and the Daughter after birth in 1983, out of their family relationship was, if in a legal sense, akin to permission or licence by the Father: see Jourdan QC, Adverse Possession (2^nd ed) at §7-39.  I reject the picture of joint possession of the Lots by Yeung since his arrival in April 1977 as painted by Yeung.

Since 1988

75.  Yeung, with his wife and the Daughter, moved out of the Father’s residence in February 1988.  Apart from his alleged continuous exclusive possession, his pleading is silent as to how his possession since then was asserted, while the Father remained in possession of the Lots.

76.  According to his evidence, Yeung’s case is essentially that he and his family regularly returned to the Lots to visit the Father.  During those visits, Yeung and his wife would help the Father with his farming chores.  The picture then, even according to Yeung, was further removed from the alleged agreements or understanding with the Father in the late 1970s as discussed.

77.  The contention that Yeung had been in joint possession of the Lots with the Father becomes more artificial and unacceptable in respect of the period since his moving out of there.

Since 1996

78.  This was after the passing of the Father in January 1996.

79.  Whilst the alleged possession commenced with that by the Father, which allegedly lasted until his death in January 1996, this is not the claim of possessory title by or on behalf of the Father’s estate.  Yeung is claiming and therefore has to prove his continuous possession of the Lots in his own name and on his own behalf in the manner and over the period as pleaded.  This is also how the issue of successive possession comes to be considered.  Again how Yeung had asserted possession of the Lots after the passing of the Father is unknown from the pleading but transpired from his evidence.

80.  Yeung seeks to argue, and particularly in the submission of Mr Chong on his behalf, with reference to the gate at the entrance of the Lots and fences within and around the Lots.  This meets with the objection of Mr Chan on the ground that this never forms the pleaded case of Yeung.

81.  As summarised at the beginning, the pleaded case of Yeung is that the Father had occupied the Lots exclusively by using the same as a farm and residence, which Yeung continued after his arrival in 1977.  It is contended that Yeung, and subsequently his family as well, continued to exclusively use the Lots as a farm and by improving the farming facilities including the erection of a new structure or structures to keep and to raise pigeons.  Mr Chong argues that the essential element of his client’s claim is continuous exclusive possession, which has been pleaded.  Reference to the gate and fences is mere evidence.

82.  I do not agree.  Continuous exclusive possession is the state of affairs, but the factual basis on which such state of affairs is asserted to have existed must be made known.  Such particulars of pleading have particular bearing, when the exclusive possession of the land is asserted not by actual occupation of or activity on that land but by way of control by enclosure of the land.  Fencing and locked up entrance to the land are probably the clearest means of such assertion of control.

83.  In the present case, as currently pleaded, there is no assertion of exclusive control over the Lots other than by way of actual occupation and activities on the Lots.  There is no assertion of control by way of enclosure of the Lots to the exclusion of the world.  Even upon Honiton’s specific request for further and better particulars of the matters and circumstances relied on by Yeung in support of the alleged exclusive possession of the Lots since April 1977, Yeung’s case was solely based on the alleged residence, cultivation and poultry farming at the Lots[17]. This applies to the period after the Father had passed away in early 1996.

84.  The evidence in respect of the gate and fence at the Lots was adduced on a de bene esse basis.  The experts indeed identified a gate at the southwest end of the Lots and some fence-like features both within and along the outer perimeter of parts of the Lots.  But the attention of neither has been directed to the issue of natural boundary and its effect.

85.  According to Yeung, it was after the completion of the Father’s funeral matters when he went to visit the Lots.  He then added a lock to the gate at the entrance to the farm.  Prior to that, people could open the gate from outside and gain entry.  He also added lock to the residence because of suspected trespass by illegal immigrants.

86.  The gate was first spotted from the aerial photographs dated 1973-1975.  Yet the experts disagreed in respect of the existence of the gate since 1988.  Both observed the shadow-like feature, but Ng believed that to be the gate whereas Leung considered that to reflect a drop in gradient of the path.  Ng explained his reading of the photographs by expressing his opinion that removal of the gate and existence of a step on the ground would not have made sense, as far as the need for trolley access to and from the farm was concerned.  I agree with Mr Chan that such opinion exceeded the scope of the expertise expected from the expert in reading the aerial photographs and is unsupported by evidence to that effect from Yeung.  In view of that, the disagreement between the experts in this respect, in my view, suffices to the extent that it cannot be said that the feature was more probably than not the gate as before.  Since early 1990s, both the gate and footpath behind it could hardly be visible from the aerial photographs.  Yeung’s evidence of what he allegedly did with the gate after the passing of the Father is not borne out by the objective evidence.

87.  As far as the fence-like features within the Lots are concerned, Ng identified sections of fence-like features in the aerial photographs dated 1973, 1977 and 1980, whereas Leung observed that those were either rows of bushes or level discrepancies of field terraces.  The disagreement, in my view, is sufficiently founded and to the extent that it cannot be said that those features were more probably than not sections of fences within the Lots.  It should also be noted that Yeung did not actually come up with the evidence of identifying these features as actual fences, or sections of them, at the Lots.  As mentioned, his pleaded stance is that the location of the farming facilities was irrelevant.

88.  It is the fences along the perimeters of the farm that really matters.  Both experts observed from the aerial photographs dated 1973-1975 the existence of a fence along the south perimeter of the farm adjoining the south side of Structure B (or TS2).  There were still glimpse images of the fence, though covered by shrubs and weeds, in the aerial photographs dated 1983-1985.  The subsequent aerial photographs up to mid-1990s depict clearance of vegetation in the relevant part, yet feature suggesting the fence is hardly visible.  There was no subsequent re-emergence of such feature; and quite to the contrary, since mid-1990s, the aerial photographs gradually depict the apparent lack of attendance to the south of the farm, which became cover by dense vegetation. There is insufficient basis for suggesting that the south fence more probably than not continued to exist since mid-1990s.

89.  As to the north of the farm, there was no expert observation about the existence of any fence like features.  As to the east, Leung observed glimpse images of fence like features in the aerial photographs dated 1984 and 1986.  But what Yeung suggested to be the fence along the east did not fit well with what Ng considered to be the location of the fence.

90.  In other words, any assertion by Yeung of his exclusive control of the Lots by enclosure by way of maintenance of the gate and the perimeter fences after the passing of the Father in 1996 would not have been borne out by the objective evidence either.

91.  According to Yeung, he had sought refuge at the Father’s residence at the Lot since 2001 when he had marital problem with his wife.  He would stay there overnight.  The Daughter also testified that she learned about that during the telephone conversation with Yeung then.  Further he had allegedly took other woman there and stayed there overnight.  Lee also gave evidence to that effect.

92.  At one point, it was suggested that the woman that Yeung brought there to stay overnight was Lo’s cousin from the Mainland, but the same became ambiguous during Lo’s evidence.  Lee’s evidence in this respect was admittedly hearsay from his mother, who had passed away by now.  However, the available electricity bills in respect of No.94, and assuming that it were Structure B (TS2) at the Lots, showed no power consumption since early 2003.  In court, Yeung explained that he had had the power disconnected.  Considering the aerial photographs of the Lots since 2001, most of the area within the Lots was increasingly unattended and covered with heavy shrubs and weeds.  Not even the footpath that used to link Structure B (TS2) to the gate was covered by overgrowth.  The suggestion that the structure was somehow accessible and habitable, I find, is inherently implausible.

93.  Even assuming that Yeung had exclusive control over the Lots by way of enclosure or actual occupation since the passing of the Father, I agree with Mr Chan that that could not be said to constitute successive possession following that of the Father.  As mentioned, I reject the contention of Yeung’s joint possession of the Lots with the Father at any time prior to the latter’s death.  Between 1988 and the death of the Father, Yeung and his family were visitors to the Lots.  There is no suggestion or evidence that the Father has at any time prior to his death and in any manner purported to pass any right to or control over the Lots to Yeung.  It was only after the Father’s funeral was over when Yeung visited the Lots again and took the initiative to install the lock to the gate and Structure B.  As mentioned, people were said to be able to open the gate from outside and gain entry to the Lots.

94.  Taking Yeung’s case at its highest, I would have found that it was only when he visited the Lot in 1996 (after the funeral of the Father was over) and locked up the gate to the Lots did Yeung began to assert actual control and thus possession of the Lots in his own name and on his own behalf.  That there is indeed no such pleaded case for his limitation claim reinforces the academic nature of this discussion.  I therefore say no more.

DAMAGES FOR PROPERTY DAMAGE

95.  Proof of Honiton’s involvement, which, as pleaded[18], entails the proof of the destruction being carried out by the agents or servants of Honiton, is essential.  Mr Chong accepts that liability of Honiton could only be founded by inference from the circumstances.

96.  According to Yeung, he obtained a verbal quotation of the cost of reconstruction, which was about HK$1.2 million.  Hence the amount claimed.  Yeung also claims that his chattels that were destroyed by Honiton consisted of electrical appliances, furniture, clothing, farming tools and household goods and utilities.  It was not until 6.5 years later, in early 2012, when he obtained and produced a written quotation from the same contractor, which quoted a reconstruction cost of HK$950,000, as well as his own breakdown of the allegedly damaged chattels and cost, which exceeded the amount of HK$50,000 pleaded.  All these invite scepticism about the reliability of such evidence.

97.  In view of the above conclusion, I need also say no more on this part of the claim.

COUNTERCLAIM

98.  Mr Chong argues that irrespective of the outcome of the claim, the counterclaim is bound to fail and should be dismissed with costs.  His argument is premised on the statutory right of his client to register the writ herein as a lis under the Land Registration Ordinance, Cap 123, and the lack of contention of slander of title in support of the counterclaim.  However the reality is that upon dismissal of the claim, Honiton should be entitled to have the registration of the writ vacated.

ORDER

99.  The claim is dismissed; and Honiton is entitled to an order directing the vacation of the registration of the writ herein.

100.  Following this event, Honiton shall have its costs of this action, including those reserved and those of and occasioned by Yeung’s summons dated 10 October 2013 that was withdrawn on the first day of the trial.  Costs shall be taxed, if not agreed.  As requested, I certify the engagement of 2 counsel for Honiton.  Yeung’s own costs shall be taxed in accordance with legal aid regulations.  In the absence of application in 14 days for variation, this costs order shall become absolute.

101.  I thank counsel for their assistance.