RABKAR TSULRIM LING BUDDHIST (HONG KONG) LTD v. PERSON(S) IN OCCUPATION OF LOT NO.350 IN D.D. 358 AND ANOTHER

DCMP 2199/2018

[2023] HKDC 453

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2199 OF 2018

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JUDGMENT

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A.  Introduction

1.  This action now concerns part (the “Claimed Land”) of the land known as Lot No 350 in DD 358 Tsuen Wan, New Territories (the “Lot”). The Claimed land is coloured pink on a plan prepared by the single joint expert, Mr Eric Tang Sze Kin (“Mr Tang”), a copy of which is annexed to this Decision as (“Annex A”).

2.  The plaintiff has been the registered owner since 10 February 2004. On 7 August 2018, the plaintiff commenced the present action by Originating Summons to recover possession of the Lot.

3.  On 1 November 2018, the 2^nd defendant attended the hearing of the Originating Summons and expressed his intention to oppose the same.

4.  By consent, the proceedings herein was ordered to be continued as if they had been begun by the issue of a writ and leave was granted to join the 2^nd defendant to this action.

5.  The 2^nd defendant in turn filed his Defence and Counterclaim, which was subsequently amended on 19 April 2021. The 2^nd defendant’s primary claim is a declaratory relief that he has acquired a possessory title over the Claimed Land by reason of adverse possession. Alternatively, the 2^nd defendant claims that he is nevertheless entitled to a declaratory relief that he has acquired a possessory title over the southern portion of the Claimed Land (the “Southern Portion”) or the area upon which a house was built and enclosed by cement walls, which is now referred to as the “Wong’s Residence” by reason of adverse possession. The Southern Portion of the Claimed land and the area upon which a house was built on the Claimed land is respectively coloured red and yellow on a plan prepared by Mr Tang, copy of which is respectively annexed to this Decision as (“Annex B”) and (“Annex C”).

6.  It appears that after the close of pleadings, the plaintiff had lost interest in pursuing the action. The plaintiff failed to exchange any list of documents or witness statement and did not attend the PTR on 6 January 2023. As a result of which, the plaintiff’s claim was provisionally struck out.

7.  The trial of the 2^nd defendant’s counterclaim was fixed to be heard before me on 14 and 15 March 2023.

8.  Despite the plaintiff’s absence at the trial, I was satisfied on the affidavits of service filed by the 2^nd defendant that sufficient notice had been given to the plaintiff of the trial. It was appropriate to proceed to hear the evidence of the 2^nd defendant and Mr Tang as well as the 2^nd defendant’s submissions.

B.  The 2^nd Defendant’s Case and Relevant Issues

9.  The 2^nd defendant’s case can be briefly summarised as follows:-

(1)  Since in or around 1970, the 2^nd defendant individually or together with his parents farmed the Claimed Land by ploughing, clearing the land, growing and harvesting vegetables and keeping poultry.

(2)  Since in or around 1973 to 1974, the 2^nd defendant together with his parents, built a house (the “House”) which occupied around 600 square feet with bricks and cement.

(3)  In or around 1974, the 2^nd defendant together with his parents, built cement walls of approximately 1.3 metres in height (the “Cement Walls”) to enclose an area outside the House (ie the “Wong’s Residence”). The enclosed area of the Wong’s Residence is around 1,000 square feet.

(4)  Since in or around late 1970s to 1980, the 2^nd defendant together with his mother erected fences (the “Fences”) using steel, wooden boards and mesh wire near and/or along the southern and eastern boundary of the Claimed Land to mark the boundary of the same.

(5)  The 2^nd defendant lived in the House with his parents, until they passed away in 1979 and 1985 respectively. Thereafter, the 2^nd defendant has continued to live in the House from time to time.

10.  The 2^nd defendant therefore claims that the plaintiff or their predecessors’ title to the Claimed Land or the Southern Portion or the Wong’s Residence or the area upon which the House was built upon, have been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance Cap 347 (the “LO”).

11.  At the start of the trial, the 2^nd defendant’s counsel ie Ms Liao informed this court that the 2^nd defendant does not need to pursue the alternative case for possessory title over the area on the Claimed Land upon which the House was built upon.

12.  The key issues for this trial are:-

(1)  Whether the 2^nd defendant has established that he has the requisite factual possession and animus possidendi at all material times and acquired possessory title of:-

(a)  The Claimed Land; or alternatively

(b)  The Southern Portion; or still alternatively

(c)  The Wong’s Residence

by way of adverse possession (“Issue 1”)

(2)  What relief is the 2^nd defendant entitled to claim (“Issue 2”).

C.  Material Factual Background

13.  The 2^nd defendant’s occupation of the Claimed Land or the aforesaid parts thereof, is to be understood against the following background which is not seriously disputed.

14.  Fong Yip Kwong and Fong Yip Shau had been the registered owners of the Lot since 24 February 1962.

15.  By the Deed of Gift dated 10 February 2004 registered with the Land Registry under Memorial Number TW1559133, the Lot was assigned to the plaintiff. In short, since 10 February 2004, the plaintiff has been the registered owner of the Lot.

16.  Since the late 1960s to the beginning of 1970, the 2^nd defendant followed his parents to the Claimed Land and started to plow and clear the land for growing and harvesting vegetables as well as keeping poultry thereon.

17.  In or about 1973 to 1974, the 2^nd defendant and his parents built the House which was subsequently enclosed by the Cement Walls built by them. Since then, the 2^nd defendant and his parents had lived in the House.

18.  The 2^nd defendant’s parents respectively passed away on 2 March 1979 and 13 May 1985. Thereafter, the 2^nd defendant continued to reside at the House from time to time and is still residing there.

19.  The 2^nd defendant got married in 1980. His two children were born in 1980 and 1982 respectively. In or about 1983, the 2^nd defendant’s wife and the children would stay at Wang Tau Hom Estate during weekdays as it would be easier for them to attend school. Nevertheless, the 2^nd defendant himself continued to reside at the House most of the time. His wife and the children also resided at the House during weekends and holidays.

20.  The House has the following words written on its external wall “下花山29B黃宅”. It also has an address known as No 29B, Route Twisk, Ha Lin Fa Shan Village, Tsuen Wan, New Territories (荃錦公路下蓮花山村 29B) for electricity supply. The registered account for electricity supply maintained with CLP Power Hong Kong Limited was opened in June 1975 by the 2^nd defendant’s late father. Demand notes for electricity charges continue to address to “Wong Yau (ie the 2^nd defendant’s late father) and Wong Lee Ming (ie the 2^nd defendant)” to-date.

21.  On or about 25 July 2006, the Census and Statistic Department also visited the Wong’s Residence and/or the House. In or about the same year, the 2^nd defendant and his wife built a footpath in front of the Wong’s Residence which is used as an access road to the Wong’s Residence.

D.  The Evidence

D1.  The 2^nd Defendant’s Evidence

22.  In respect of the 2^nd defendant’s case, only the 2^nd defendant himself gave evidence.

23.  The 2^nd defendant gave evidence in an honest and straightforward manner. When he was asked by the court regarding a residential address identified in the birth certificates of his sons, he frankly accepted that prior to 1996, his late father had another residence, ie a flat at Wang Tau Hom Estate which his wife and his sons stayed during weekdays when they were young. He also clarified in his oral evidence that this residence was not the homeownership flat in Fanling acquired in the joint names of the 2^nd defendant and his wife in 1996 as referred to in his supplemental witness statement.

24.  He accepted that he has from time to time resided or stayed at the homeownership flat in Fanling but he has at the same time continued to occupy “Ha Lin Fa Shan Village” which is what he referred to as the Claimed Land.

25.  The 2^nd defendant’s evidence is unchallenged and largely corroborated by the contemporaneous documents as well as the expert evidence ie Mr Tang’s evidence. I am of the view that his evidence is reliable and I accept the same.

D2.  Mr Tang’s Evidence

26.  Pursuant to Master Rita So’s order dated 8 July 2020, Mr Tang was appointed as the single joint expert to prepare a surveying report (the “Report”). The Report has confirmed that:-

(1)  Before and in 1973, the Lot was covered by rocks and vegetation. In 1976, portions of land in the Claimed Land were ploughed and became cultivation fields. The said portion was gradually covered by trees since 1986.

(2)  There was a branch firstly observed in 1976 leading to a group of structures as enclosed by a free standing wall from the eastern bound of the Lot. The branch was paved in 2006. In 2013, a segment of concrete footpath was observed around and along the south bound of the Lot. In 2017, this segment of concrete footpath was found connected to the footpath paved in 2006.

(3)  The Survey Sheets and Aerial Photographs show that since 1976, there were two houses with a courtyard at the southern portion of the Claimed Land. Since 1980, the northern of the courtyard was turned into a structure. The occupation of these features was similar to the situation in 2020.

(4)  According to Mr Tang’s site visit, there were fences along the eastern bound of the Claimed Land and further along at the southern bound of the Claimed Land. The majority of the Lot was covered by vegetation, trees and rocks since 1986.

27.  Mr Tang also gave evidence that the metal sheets depicted in photos 5 and 6 of the Report are the fences along the eastern bound of the Claimed Land and further along at the southern bound of the Claimed Land. Mr Tang accepted that he could not tell when the fences were first there but they looked quite new comparatively.

28.  When Mr Tang was asked by the court whether there was any obvious sign of occupation above the approximate limit of the woodland ie the northern portion of the Claimed Land, his answer was that it is probable that there were human activities such as planting of trees and removal of boulders around or after 1976. Mr Tang referred this court to the Aerial Photographs of 1963 and 1973 which show that the norther portion of the Claimed Land was mainly covered by low vegetations. On the other hand, the Aerial Photograph of 1976 show cultivation of fields and the Aerial Photographs of 1980 and 1983 show more trees were planted.

E.  Issue 1: Whether The 2^nd Defendant Had Acquired Possessory Title of the Claimed Land/Southern Portion/Wong’s Residence By Way of Adverse Possession

E1.  Relevant Legal Principles

29.  A relevant summary of the principles concerning adverse possession can be found in Lee Siu Fong v Wong Wan Leung and Ors[1]:-

“(1) To succeed in a claim for adverse possession, the adverse possessor must prove: (i) a sufficient degree of factual possession; and (ii) animus possidendi (i.e. an intention to possess);

(2) The elements required of factual possession are: (i) there must be an appropriate degree of physical control; (ii) possession must be single and conclusive, though there can be single possession exercised by or on behalf of several persons jointly; (iii) factual possession must be exclusive, continuous, open, visible and notorious, and it must not be equivocal, occasional, or for a special or temporary purpose; and (iv) the question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances having regard to the nature of the land and the manner of possession;

(3) Unless there is contrary evidence the registered owner of the land is presumed to be in occupation, and the party claiming adverse possession has the burden of proving otherwise;

(4) Intention to possess is the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title so far as is reasonably practicable and so far as the processes of law will allow;

(5) In ascertaining the adverse possessor’s intention to possess, little regard should be given to self-serving statement of subjective intention, rather the court would make inference from the actions of the adverse possessor in the light of all the circumstances; and

(6) The burden is on the adverse possessor to prove both factual possession and the intention to possess, and the evidence adduced must be compelling although the standard of proof is still the normal civil standard based on the balance of probabilities.”

30.  Section 7(1) of the LO, provides for a limitation period of 12 years in an action to recover land. Under the transitional provision ie Section 38A, a limitation period of 20 years applied to causes of actions which accrued before 1 July 1991.

31.  For the purpose of deciding whether a defendant’s title has been defeated by limitation, the court does not need to decide the precise point of time when a plaintiff entered the property so long as it is satisfied that the plaintiff has proved that he has been there for the requisite period (20 years for cause of action accrued before 1 July 1991 or 12 years as the case may be) with the necessary intention to possess: Yu Siu Cheuk v Realray Investment Ltd[2].

E2.  Factual Possession

32.  There is no difficulty on the part of the 2^nd defendant in establishing physical possession of the Claimed Land.

33.  First, I accept the 2^nd defendant’s case that he has been occupying the House as included in the Wong’s Residence. In any event, the Report also confirms that the House with a courtyard should be in existence at least as of January 1976.

34.  Second, I also accept the 2^nd defendant’s evidence that since around late 1970s to 1980, the 2^nd defendant together with his mother erected the Fences near and/or along the southern and eastern boundary of the Southern Portion. The Fences have the words “私人地方” clearly marked and the entrance of which is locked with a passcode. This is corroborated by Mr Tang’s evidence and observations during his site visit.

35.  Mr Tang’s observation that the Fences appeared to be relatively new is not necessarily inconsistent with the 2^nd defendant’s evidence. The 2^nd defendant’s explanation is that the Fences were damaged at times or even destroyed by typhoon and had to be maintained and/or repaired from time to time over the years.

36.  Third, it is the 2^nd defendant’s case that he and his parents had started farming, planting trees and growing vegetables on the Claimed land in the 1970s. I also accept his evidence that the 2^nd defendant and his parents had grown ginger, taro and sweet potatoes near the northern boundary of the Lot. This is consistent with Mr Tang’s evidence and largely corroborated by the Aerial Photographs. The 2^nd defendant had continued to farm the Claimed Land until the 1980s when he started to grow fruit trees instead.

37.  In this respect, it is worth emphasizing that:-

(1)  Acts of possession on one piece of land will be treated as also constituting possession of other land provided that there is such a common character of locality as to raise a reasonable inference that, if one part belongs to the person in possession, so did the other parts. This rule is not generally applicable where the boundaries of the disputed land are undefined. However, it may apply where a person enters part of property under a real bona fide belief of title even if the boundaries are not marked. There is no requirement that the land must be enclosed by a wall, fence or other physical barrier: Adverse Possession (2^nd Ed) at §10-09. Therefore, the fact that the northern part of the Claimed Land is not enclosed by a wall, fence or other physical barrier does not detract from the claims in adverse possession extending to that part of the Claimed Land. In particular, there are physical or defined boundaries in the form of the natural landscape and cultivation field which was taken possession by another person(s) as depicted in the site plan of the Lot such that fencing or enclosing the same would be difficult or impractical.

(2)  The fact that the 2^nd defendant had and has another residence also does not detract from the claims in adverse possession. Indeed, after taking possession, short of abandonment, there must be continuous use and possession of the Claimed Land irrespective of whether the 2^nd defendant continued to cultivate or not in the later years: Chow Tin Sang v Citihero International Ltd[3]. See also: Adverse Possession (2^nd Ed) at §§8-12 & 8-15.

38.  More importantly, the evidence in this case clearly pointed towards continuous use on the part of the 2^nd defendant as opposed to abandonment of possession.

39.  The 2^nd defendant still maintains furniture and household appliances in the House. He also keeps photographs of his late parents in the House and burns incense in their honour from time to time.

40.  The 2^nd defendant has also been paying electricity bills of the House, which are still registered in the joint names of the 2^nd defendant and his late father.

41.  As mentioned, the 2^nd defendant has been maintaining and/or repairing the Fences from time to time. Further, in or around 2006, he and his wife built a path in front of the Wong’s Residence. This is again consistent with the Aerial Photograph of 2006 and Mr Tang’s observation in the Report.

42.  I am satisfied that the 2^nd defendant has been in exclusive physical occupation of the Claimed Land without the consent of the true registered owner(s) for the requisite period of more than 20 years before the Originating Summons herein was issued.

E3.  Animus Possidendi

43.  I am also satisfied that the 2^nd defendant has succeeded in establishing the required animus possidendi. The use of the Claimed Land in a way as if the 2^nd defendant was the true owner, unequivocally demonstrates an intention to occupy and use the Claimed Land as his own.

44.  Indeed, the 2^nd defendant has obviously been using the Claimed Land as if he was the true owner. The intent could be inferred from the acts of possession established above: Tecbild Ltd v Chamberlain[4].

45.  He and his family had exclusive use and possession of the House as the Wong’s Residence without any disturbance or interference throughout the years. The Wong’s Residence is also enclosed by cement walls. Likewise, the Southern Portion is also enclosed by the Fences with a lock and the words “私人地方” marked. Enclosure is clear evidence of dispossession of the owner as well as the intention of the occupier to possess: Hong Kong Kam Lan Koon Ltd v Realray Investments Ltd[5]. See also: Adverse Possession (2^nd Ed) at §§13-23 & 13-24.

46.  The registered account for electricity supply maintained with CLP Power Hong Kong Limited was opened in 1975 by the 2^nd defendant’s late father. There is no challenge to the 2^nd defendant’s evidence that demand notes for such electricity charges has continued to address to his late father and himself to-date.

47.  There is also no challenge to the 2^nd defendant’s evidence that he has been using the Claimed Land for farming, keeping poultry, growing vegetables and fruit trees. It is clear and I accept the 2^nd defendant’s case that he has always treated the Claimed Land as his own.

48.  I find that the 2^nd defendant had the requisite intention to possess the Claimed Land for the purpose of adverse possession and for the requisite period of more than 20 years before the Originating Summons herein was issued.

F.  Issue 2: What is The Proper Relief

49.  The 2^nd defendant has thereby acquired possessory title to the Claimed Land. I am satisfied that I should grant the usual declaratory relief in his favour to that effect.

50.  Insofar as other relief is concerned, Ms Liao has very properly informed this court that the 2^nd defendant no longer seeks an order that his name be entered in the register of the Land Registry as registered owner. Indeed, it is well-established that the acquisition of a possessory title through adverse possession does not operate as a statutory conveyance and does not entitle the holder of the possessory title to be registered as owner in substitution of the paper owner: Lam Sai Wan v Minloy Ltd[6].

51.  However, the 2^nd defendant is also seeking an order for partition under sections 2 and 4 of the Partition Ordinance Cap 352 (the “PO”) and a declaration that he does hold the Claimed Land as the sole owner.

F1.  The Order For Partition

52.  Ms Liao relies on the decision of Fan Kiu v Li Kwai Wan[7] in seeking to persuade me that the 2^nd defendant, having acquired possessory title by adverse possession (if so granted by this court), will have the necessary locus standi under section 2 of the PO to seek relief thereunder.

53.  Section 2 of the PO provides that:-

“Subject to this Ordinance, where any property in land is held by 2 or more persons, whether as joint tenants or as tenants in common, the Court may—

(a) make an order under section 4 for a partition of the property;

(b) make an order under section 6 for a sale of the property; or

(c) refuse to make any order.”

54.  Section 3 of the PO further provides that:-

“(1) Where any property in land is held in the manner referred to in section 2, any person interested in such property may institute proceedings in the Court under this Ordinance by an action for partition or sale.”

55.  I have some doubts as to whether the PO is applicable to the 2^nd defendant herein. The plaintiff in Fan Kiu v Li Kwai Wan[8] has previously obtained an order in 2002 that:-

(1)  All the estate, rights, titles benefits and interests in the portion of land shown and coloured pink on the Plan in [Lot 1251] be vested in the plaintiff as against [D1];

(2)  The name of the plaintiff be entered in the register kept in the Tai Po New Territories Land Registry as the registered owner of all that portion of land shown and coloured pink in [Lot 1251] in substitution for [D1].

56.  Against such background and with the benefit of the vesting order as a registered owner, it may be that the plaintiff therein could be regarded as a “co-owner” under the PO in that sense[9]. However, by now, it is well-established, and Ms Liao also accepts that acquisition of a possessory title does not entitle the 2^nd defendant to have his name be entered in the register of the Land Registry as registered owner.

57.  In any event, even if the PO is applicable to the 2^nd defendant herein and that he has the necessary locus standi to seek relief thereunder (as to which I express no view), I am not satisfied that I should exercise the judicial discretion in favour of making the order for partition in the circumstances of this very case. Unlike the case in Fan Kiu v Li Kwai Wan[10], the 2^nd defendant herein has not in his evidence pointed to any need (let alone any genuine need) for such an order.

F2.  A Declaration That the 2^nd Defendant is the Sole Owner

58.  Likewise, I am not satisfied that there is a need or I should otherwise grant the additional declaratory relief which is not even pleaded or asked for in the Amended Defence and Counterclaim.

G.  Conclusion

59.  For the above reasons, I make the following orders:-

(1)  A declaration that the 2^nd defendant has acquired possessory title of the Claimed Land (as shown and coloured in pink on the plan in Annex A hereto) by reason of adverse possession;

(2)  A declaration that the plaintiff’s title or its successor-in-title to the Claimed Land has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance Cap 347;

(3)  There be a cost order nisi that the plaintiff shall pay the 2^nd defendant’s costs of this action, including all costs reserved if any, to be taxed if not agreed with certificate for counsel. The 2^nd defendant’s own costs be taxed in accordance with Legal Aid regulations.

(4)  There be no order as to costs as between the plaintiff and the 1^st defendant.

60.  The costs order nisi shall become absolute in the absence of any application to vary the same within 14 days of the handing down of this Decision.

61.  It remains for me to thank Ms Liao for her able assistance.

Annex A

Annex B

Annex C