LEUNG MEI KING (suing as Administratrix and surviving daughter of LEUNG SHUN YICK, deceased) v. LI YU MING AND OTHER OCCUPANTS

HCA 3120/2015

[2025] HKCFI 6305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3120 OF 2015

_____________________

BETWEEN

_____________________

_________________

JUDGMENT

_________________

Introduction

1.  The subject matter of this trial is a piece of land known as Lot 84 in D.D. 60 of New Territories (“Lot 84”).

2.  The Plaintiff is the surviving daughter who is the administratrix of the Deceased. The Deceased was the registered owner of Lot 84 who acquired the paper title in 1971, until his death.

3.  By this action, the Plaintiff seeks vacant possession of Lot 84, injunction, and damages of trespass against the Defendant.

4.  The Defendant’s case is that the Defendant’s father, Mr Lee Siu Cheung (李昭章) (“Mr Lee Sr”) had taken possession of Lot 84 since 1974, and since then the Defendant’s family have been in occupation of Lot 84. Hence, the Plaintiff’s action is time barred under section 17 of the Limitation Ordinance, Cap 347 (“the Ordinance”). In his counterclaim, the Defendant seeks a declaration that he has acquired the title of Lot 84 by way of adverse possession.

5.  The issue in the present trial is, therefore, whether the Defendant (and his family) can establish adverse possession to Lot 84 against the Plaintiff.

LOT 84

6.  Lot 84 is irregular and pentagonal in shape. The boundary of Lot 84 is agreed by experts of both sides based on a survey conducted by the Defendant’s expert. Its size as surveyed by the Defendant’s expert is 227 m².

7.  The area claimed by the Defendant (“the Claimed Area”) is shown in the “Encroachment Plan” attached to the Re-re-amended Defence & Counterclaim (“Encroachment Plan”), which is in fact a plan taken from Appendix 3 of the report of the Defendant’s expert. It can be seen from the Encroachment Plan that the Claimed Area covers the entire Lot 84, save for a small strip of land to the west, which is physically outside the fences and walls and forms part of the concrete footpath outside; and another even smaller strip to the east falling out the fence.

8.  There is no formal address of Lot 84 in the land search record nor any letter box for the individual lots in the vicinity, but only one communal post box for all the lots near 惠群路[1] where the letters for all lots are stacked in one pile.

9.  According to the Plaintiff’s evidence, the address of the Lot 84 is “18F, Au Tau Shek Tong Tsuen (石塘村), Yuen Long, New Territories”.

10.  According to the Defendant, the address of the general vicinity of Lot 84, which includes Lot 84 and other lots in its vicinity including Lot 96 in D.D.60 is “元朗 凹頭/坳頭 楊屋村/石塘村 惠群路18號”. As Lot 84 (and its vicinity) is at the boundaries of 2 villages in Au Tau, namely 楊屋村 and 石塘村, the area is also sometimes referred to as “石塘村18號”.

11.  On the Encroachment Plan, there is a pink shaded area containing 3 houses (Structure Nos. 1, 2 and 3), a canopy and balcony (Structure No. 4), and a temporary structure (Structure No. 5) (collectively the “Property”). The Plaintiff has no positive case concerning any of these structures.

12.  The Defendant claims that Structure 4 is a canopy extending from Structure 3 built by the Defendant’s father, and the space under Structure 4 was used by the Defendant’s family for cooking and preparing food.

13.  For Structure 5, the Defendant claims that his father had lived at the upper floor of it from 1995 to 2005 and the lower floor of Structure 5 is a kitchen / pantry for his family.

14.  For Structure 1, the Defendant claims that part of the ground floor is a bathroom and other parts of the ground floor and the upper floor of it is a store room.

15.  A Modification of Tenancy (i.e. Permit No. 19927) was granted to the Deceased pertaining to the maintaining of a private residential unit with a porch and a latrine appurtenant on the Property upon payment of HK$16 annually (“Crown Rent”) in 1972.

THE PLAINTIFF’S CASE

16.  It is the Plaintiff’s case that the Deceased had been the owner and entitled to possession of the Property at all times since 1972.

17.  The Plaintiff says that, by a Modification of Tenancy since November 1972, the property was designated to be utilized as residential purpose. Prior to that, the Property was designated as agricultural land. The Deceased had been paying the Crown Rent (and later Government Rent) ever since he took possession of the Property.

18.  The Deceased passed away on 4 November 1973, and the Property was taken over possession by the Deceased’s wife, Madam Lai Choi Tin and their issues since then.

19.  During the period between August 1976 and November 1981, the Plaintiff leased the Property to 張偉文 (“Mr Cheung”) in the sum of HK$600 for agricultural purpose.

20.  On 15 November 1981, Mr Cheung surrendered possession of the Property to the Plaintiff. It is the Plaintiff’s case that she has since then been in possession of the Property.

21.  In or about 2011, a Madam Ng who has been residing in the neighbourhood of the Property informed the Plaintiff that the Property was being occupied by trespassers but no acts or traces of trespass had been found.

22.  In or about April 2013, there were some people, unbeknownst and without consent of the Plaintiff, entered the Property and took possession of it. According to the Plaintiff, it amounted to a trespass. On or about 29 April 2013, the Plaintiff issued a notice to evict the trespassers.

23.  On 19 August 2015, the District Office sent a letter to the Property for breaching of the conditions of the Permit for unauthorized alteration of the Property and impermissible non-agricultural use of the Property.

24.  It was only by then the Plaintiff became aware that trespassers, unbeknownst to and without consent of the Plaintiff, had entered the Property and took possession of it.

THE DEFENDANT’S CASE

25.  Regarding the allegation of adverse possession, the Defendant says that since 1994, he and his family had been in possession of the Property.

26.  The Defendant pleads that since around July 1994, prior to moving into the Property, the Defendant’s father cleared away trees and grass and weeds, repaired wire-mesh fences and installed new padlocks on gates at the entrance of the Property, installed new locks; repaired broken parts of the concrete ground of the Property, and cleaned up the well.

27.  The Defendant’s father then took possession of the Property in around 1994.

28.  Between mid-1994 and 1995, the Defendant’s father sought assistance from the owner of the adjacent land Lot No. 96, 汪敬堯 (“Mr Wong Sr”), for supplying electricity for occupation of the Property.

29.  From 2003 to 2012, the Defendant, together with his father and brother, had for 5 times repaired the 5 Structures on and the walls and wire fences surrounding the Property.

30.  It is also the Defendant’s case that his family has permitted and allowed others to use certain parts of the Property as licensees, including Mr Wong Sr to store in Structures 3 and 5, and to live in Structures 5 and 2.

31.  Since 1997, the Defendant and/or his father has been paying for the government rent of the Property.

32.  The Defendant’s father moved out in 2005 and since then the Defendant has become the person in possession of the Property.

33.  It is therefore the Defendant’s case that the Defendant has thereby been in adverse possession of the Property for a period in excess of 12 years before the commencement of this action from July 1994.

EXPERT EVIDENCE

34.  In the Joint Statement dated 29 January 2021, the parties’ expert made reference to the aerial photos and survey sheets of the relevant areas and come up with certain agreed observations.

35.  Among other things, they have agreed as follows:-

(a) Structures 1, 2, 3 and 4 were seen on Lot 84 between 1972 and 2018.

(b) Structure 1 was seen changed in size and shape in 1981 and it remained generally constant until 2018.

(c) The L-shape Structure 5 was seen on Lot 84 between 1981 and 2018, two structures were seen erected at its corresponding position in 1972.

(d) Series of fences were running along the western side of Lot 84 from 1969 to 2018, and along the south-western side from 1974 to 2018.

(e) Fences were running along the eastern side of Lot 84 from 1983 to 2018.

(f) The two staircases and free standing walls symbols depicted on the south-eastern and south-western sides of Lot 84 on Drawing No. ETA-MI-T651-01 were not seen imaged on the aerial photos between 1972 and 2018, nor depicted on the survey sheets between 1983 a 2018.

36.  I accept the above observations of the experts as they tallied with what are depicted on the aerial photos and survey sketches. I will refer to them later in the discussion section of this Judgment.

Factual Evidence

The Plaintiff

37.  The Plaintiff herself gave evidence. She also called Mr Cheung, Ms. Chan Wai Man (“Ms. Chan”), Mr Chan Hon Kit (“Mr Chan”), and Mr Tang Shun Sing (“Mr Tang”) to give evidence.

38.  The Plaintiff gave evidence, inter alia, as follows:-

(a) The Plaintiff’s father had gone to Nauru (an island near Australia) to work, and the Plaintiff came from Yin Ping to Hong Kong (of mainland China) at the age of 10 to reunite with her mother.

(b) Since coming to Hong Kong, the Plaintiff lived with her mother for a few months and then they went to Nauru to reunite with her father. They spent 3 years in Nauru and in there her mother gave birth to her younger sister. They then returned to Hong Kong.

(c) After returning to Hong Kong, her mother gave birth to her third brother and the family lived in Chai Wan.

(d) After 1 year, the Plaintiff’s father returned to Hong Kong, and then they moved into the Property in Lot 84. Thereafter, her fourth and fifth brothers were born. They initially rented the Property and thereafter purchased the Property in 1971.

(e) The Plaintiff’s family had lived in the Property until 1976 and the Plaintiff’s father and mother passed away in 1973 and 1976 respectively. After the passing of the mother, the Plaintiff’s four siblings moved out.

(f) The father and the mother’s bodies were buried in the back hill near Lot 84.

(g) The Property was rent out to Mr Cheung from 1976 to 1981 for 5 years, and thereafter, no one ever lived in the Property.

(h) The Plaintiff said, despite she was not living in the Property, she would return to the Property for 2 to 3 times a year until 1997 when the memorial tablets were moved to Yuen Yuen Institute in Tsuen Wan.

(i) The Plaintiff delegated the administration of the Property to one Mrs Chow and she would help with paying government rates and rents and utility bills.

(j) It was until the summer of 2005 Mrs Chow told the Plaintiff that there were strangers in the Property but when the Plaintiff went back to the Property, she could not see any.

(k) In 2013, the Plaintiff was informed that there was someone occupying the Property but when she went to the Property on 5 April with her son and Ms Chan, she could see no one there.

(l) It was only until June 2014 that the Plaintiff discovered the Property was occupied by someone and they reported the matter to the police.

(m) On 19 August 2015, the Plaintiff received a letter from the Lands Department, Yuen Long, notifying her that there were unauthorized building works (UBW) in the Property and requesting her to rectify the UBW as soon as possible. On 23 September 2023, the Plaintiff instructed Messrs. Lam Fung & Co., solicitors, to help evicting the trespassers.

39.  Mr Cheung gave evidence as follows:-

(a) He was the work colleague of the Plaintiff’s husband Mr Tang (“Mr Tang Sr”).

(b) In around 1976, having heard that he wanted to raise pigeons and farm vegetables, Mr Tang Sr offered a place in New Territories to rent to him for that purpose. Accordingly, from 1976 onwards, the Plaintiff rented out the Property to him for 5 years, at a monthly rent of HK$600 per month.

(c) He did not extend the rental agreement because of the proposed increase of rent to HK$2,000 per month by the Plaintiff in 1981, which he could not afford.

(d) After ceasing to rent the Property, he maintained little contact with Mr Tang Sr, nor did he pay much attention to the usage or occupation of the Property.

40.  Mr Tang’s evidence could be summarized as follows:-

(a) He is the son of the Plaintiff and has since the age of 10 been knowing about the existence of the Property. He used to accompanying the Plaintiff to go to the burial site at Lot 84 to pay tribute to his grandparents twice every year.

(b) In around 2000, a friend of his girlfriend Ms Chan wanted to find a place to live in and he suggested the Property to the friend. But as the friend found the place too old which required extensive renovation, she did not rent it in the end.

(c) In around October to November 2004, he was minded to host a barbeque party in the Property but after he went there together with Mr Chan they found the Property not fit for party purpose.

(d) In April 2013, the Plaintiff told him that the Property was occupied by strangers and he therefore accompanied the Plaintiff, together with Ms Chan, to the Property to have a look but they found no one there.

(e) In around June 2013, someone informed them that the Property was occupied. He went to the Property on 4 June 2013 and discovered there a Southeast Asian occupant. He, his friend, and the Plaintiff reported the matter to the police.

41.  Ms Chan give the following evidence:-

(a) Ms Chan is the girlfriend of Mr Tang.

(b) In around July 2000, her friend Ms Cheung intended to rent a place to live in and she so recommended to her the Property. However, having inspected the Property, Ms Cheung considered it too old and required extensive renovation. In the end she did not rent the Property.

(c) In April 2013, Mr Tang told her that the Property was occupied by strangers and they went to check. They posted up a notice together with Mr Chan on 29 April 2013 requesting the trespassers to leave.

42.  Mr Chan gave the following evidence:-

(a) He is a friend of Mr Tang and they knew each other for over 30 years.

(b) In around October to November 2004, he accompanied Mr Tang to the Property to see if it could be cleaned up for barbeque party purpose. However, the Property was very old and in the end they did not use it for any party.

(c) In April 2013, Mr Tang told him that the Property was occupied by strangers and he accompanied Mr Tang and Ms Chan to post up a notice requesting trespassers to leave.

The Defendant

43.  The Defendant gave evidence. He also called Mr Wong Chi Ming (“Mr Wong CM”), and Mr Wong Wing Kin (“Mr Wong WK”) to give evidence.

44.  The Defendant’s evidence could be summarized as follows:-

(a) He was born in 1961. He has one elder brother and one younger sister. His parents had passed away.

(b) In about 1993, after noticing that Lot 84 was once occupied by illegal immigrants, Mr Wong Sr made active enquiries about Lot 84 and learned from one Mrs Chan, resident of Lot 85, that Lot 84 had been deserted since 1982. Mr Wong Sr therefore started to arrange for his family in the mainland to come to Hong Kong.

(c) In around June 1994, Mr Wong Sr learned that the Defendant’s elder brother’s application to come to Hong Kong from the mainland had been approved, and the Defendant’s elder brother would be coming to Hong Kong shortly.

(d) In July 1994, Mr Wong Sr took possession of Lot 84 as then already fenced up. Prior to moving in, Mr Wong Sr cleared away a tree and the grass and weeds and other items on the ground, repaired the wired fences, locked up the 2 gates, and instructed 2 skilled workers to repair the Structures. He also installed new locks on the doors of the individual Structures. The keys to the gates and the doors were exclusively kept by Mr Wong Sr.

(e) In July 1995, after being unsuccessful in obtaining electricity from CLP, Mr Wong Sr purchased electricity from Mr Wong CM’s father who was the owner of Lot 96 and a separate electricity meter was installed for Mr Wong Sr.

(f) The Defendant’s younger brother then came to Hong Kong and moved into Structure 2 of Lot 84 in October 1995

(g) The Defendant himself came to Hong Kong and moved into Structure 3 of Lot 84 in September 2001.

(h) As early as in 1997, Mr Wong Sr have been allowing licencees to use the structures on Lot 84, including Mr Wong CM’s Father, one Mr Chan (陳景尤) and one Mr Hui.

45.  Mr Wong CM’s evidence is summarized as follow:-

(a) His father bought a house located in Lot 96, adjacent to Lot 84, in May 1988, through the introduction of his friend. By that time, the house had 5 rooms for self-residential and rental purposes.

(b) He left the house and went out to work since 1990. Notwithstanding this, he would still return to the house to visit his father and took part in the administration and maintenance of the house.

(c) To the best of his recollection, he remembered there was someone living there in 1993.

(d) In August 1994, he saw Mr Lee Sr accompanying two renovation workers to renovate the Property and understood that Mr Lee Sr would like to occupy the Property for his family’s permanent occupation. Back then, his father installed an electricity meter for Mr Lee Sr’s use.

(e) He identified that, as of 1994, Mr Lee Sr occupied the yellow and brown structures, which was essentially Structures 1 to 5 of Lot 84 on the Encroachment Plan. He further identified that the pink shaded area was occupied by his father being part of the house.

(f) He recalled that in 1996 after Mr Lee Sr’s eldest son, Mr Lee Yu Hung came, Mr Lee Sr planted papaya and bananas on Lot 84.

(g) In 2009, in order not to interrupt the enjoyment of the tenants, he proposed to renovate Structure 5 to rebuild them into rooms but his proposal was rejected by the Defendant.

(h) Later, after discussion with his parents, he decided to pay for the renovation of Structure 5, and the Defendant agreed to rent Structure 5 for his use for a term of 15 years, in a rent of HK$500 per year. Up until now, he and his family still live in Structure 5 as their home.

46.  Mr Wong WK gave the following evidence:-

(a) In June 1988, he became a tenant of Mr Wong King Yiu (“Mr Wong KY”) for a house in Lot 96, the adjacent lot of Lot 84. In September of the same year, Mr Lee Sr came to rent another house of Mr Wong KY.

(b) At that time, people living in the surrounding area of Lot 84 would know that the houses inside that lot were not resided or managed by any person, and wild weeds were grown everywhere.

(c) In around 1993, when he passed by Lot 84, he noticed 3 to 4 people living in the houses situated there.

(d) In around July 1994, he witnessed Mr Lee Sr packing up and cleaning the bulks. He had a conversation with Mr Lee Sr and learnt that Mr Lee Sr would like to occupy the structures on Lot 84 as his home. He later also witnessed Mr Lee Sr asked a few workers to renovate the structures.

(e) In 1995, he saw Mr Lee Sr’s eldest son living in Structure 2.

(f) From July 2005 onwards, after discussed with the Defendant, Mr Lee Sr proposed to allow him to move into Structure 2 until he found a work in the urban area. Up until now, he still lives in Structure 2.

LEGAL PRINCIPLES

47.  It is not in dispute that for adverse possession allegedly commenced before 1st July 1991, the relevant limitation period is 20 years whereas for adverse possession allegedly commenced on or after 1st July 1991, the relevant limitation period is 12 years[2].

48.  To establish possessory title based on adverse possession, the person claiming possession must be shown to have both factual possession of the suit land and the requisite intention to possess (animus possidendi) for the whole of the limitation period[3]. The relevant possession must be adverse (in the sense that the occupier has dispossessed the paper owner and has entered into possession without the consent of the paper owner) and continuous[4].

49.  The burden of proving adverse possession lies on the alleged possessor.

A. DISCUSSION

50.  As can be seen from the undisputed aerial photo in 1972 of Lot 84, the area in which the Property was located was occupied as early as by then.

51.  In this regard, I accept the Plaintiff’s expert, Mr Eric Tang’s (“Mr Tang”) observation that a tree was built between Structure 2 and Structure 5; the southern and western portion of Lot 4 was covered by vegetation and a linear feature could be observed between Structure 2 and Structure 5.

52.  The aerial photos in 1981, 1987, 1991, 1995, 2006, 2011, 2013, 2014, and 2015 show that Structures 1 to 5 were erected, but in relation to the linear feature 1 and 2, and the tree between Structure 2 and Structure 5, they were removed and re-planted/rebuilt over the years. This, in my view, simply shows that there were someone(s) living in Lot 84 throughout the years, and that human activities were engaged.

53.  The survey sheets from 1974 to 2018 also give consistent findings to the aerial photos mentioned in the aforesaid paragraph that Structures 1 to 5 were clearly observable over the years.

54.  These contemporaneous photos and documents indeed echoes with the version of facts put forward by the Defendant’s factual witnesses:-

(a) Mr Wong CM’s evidence that there was someone living in Lot 84 back in 1993. It also corroborated with the Defendant’s case that Mr Wong CM’s father had assisted Mr Wong Sr in installing electricity in 1994 for their use.

(b) The Defendant’s evidence on the use of the 5 Structures which is also corroborated by the “tenants” over the years, including Mr Wong WK.

55.  In my judgment, I have no hesitation in finding that Mr Wong Sr started to possess Lot 84 since 1974 as this is consistent with the documentary records and factual evidence canvassed at trial.

56.  The Plaintiff argued that, given both Mr Wong Sr and the Defendant had paid for the Government rent and rates; and the license fees of the MOT Permit was in the name of the Deceased, this Court could not find any intention on the part of the Defendant to dispossess the Plaintiff of Lot 84.

57.  However, I have the following observations:

(a) On the available evidence, I do not find that the Defendant nor anyone else had paid for Government rates.

(b) In respect of Government rent, I accept the Defendant’s explanation at trial that the background behind those payments were that Mr Wong Sr and the Defendant considered that they paid in the capacity as owners of Lot 84.

(c) The fact that the Defendant made payments of those Government rent do not negate the Defendant’s intention to possess because the making of such payments were to the Government but not the paper title owner.

(d) Regarding the licence fees under the MOT permit, Ms Candy Tang, counsel for the Plaintiff, fairly accepted that the payment of MOT per se would not be fatal. In my judgment, this must be right as the payment of licence fees is but one factor to be considered and the existence of which does not necessarily negate the intention to possess by the Defendant[5].

(e) In the present case, the MOT permit in question was never available to Mr Wong Sr or the Defendant prior to this litigation. I accept the Defendant’s evidence that neither Mr Wong Sr nor the Defendant had knowledge about the actual terms of the MOT Permits when they signed on them.

58.  In any event, I accept the submissions of Mr Jeremy Kwong, counsel for the Defendant, that the payment of Government rent or licence fees by Mr Wong Sr or the Defendant does not constitute any acknowledgement of title under section 23(1)(a) of the Limitation Ordinance Cap.347 (“the Ordinance”).

59.  The evidence of the Plaintiff’s seems to be suggesting that the Property was not in anyone’s continuous occupation during the period between 1997 and 2023. However, this proposition does not sit well with the objective evidence and in so far as there is any difference between the evidence of the Plaintiff’s witnesses and the Defendant’s witnesses relevant to the issue of continuous possession of Lot 84, the Structures or the Claimed Area, I prefer the evidence of the Defendant’s witnesses to the evidence of the Plaintiff’s witnesses.

B. FINDINGS

60.  I have the following findings of salient facts insofar as necessary to adjudicate the present claim:-

(a) Despite the imperfection of aerial photos and Survey Sheets, I accept that they show that fences and walls have been in existence at the boundary of Lot 84 since 1980s, which follows that the Claimed Area by the Defendant has always been used as one single piece of land.

(b) Mr Wong Sr had repaired the fences, locked up the 2 metal gates and installed new locks at the Structures prior to moving into the Property in 1994.

(c) From July 1994 to April 2005 until Mr Wong Sr moved out of the Property, he had been occupying the Property as the head of the household who was, as I find, the person in possession of Lot 84.

(d) The Defendant has been living in the Property since September 2001. After Mr Wong Sr moved out of the Property in April 2005, the Defendant became the head of the household and the person in possession of Lot 84.

(e) The Defendant and his family had made various major improvement works of the Property since May 2002.

(f) The Defendant has been paying for Government Rent since May 2004.

(g) The Defendant had entered into a written licence agreement with Mr Wong CM on 1 May 2009.

(h) All the Structures 1 to 5 (i.e. the Property) inside Lot 84 were occupied by Mr Wong Sr and the Defendant’s family since July 1974. In particular, Structure 2 was the Defendant’s elder brother’s residence from October 1995 to March 2003, and has been Mr Wong WK’s residence from late 2005 to the present as a licensee; Structure 3’s ground floor was used for storage of goods by Mr Chan (陳景尤) from 1998 to 2010, the other part was for temporary residence of Mr Hui from 1998 to 2010 as a licensee, and has been the Defendant’s residence since September 2001.

61.  On the basis of the above factual findings, the Defendant is entitled to rely on Mr Wong Sr’s possession to add on to his own period of possession as the two periods of adverse possession are continuous from 1974 till present[6].

62.  Furthermore, the conducts of Mr Wong Sr and the Defendant, as illustrated from my factual findings, clearly manifested their intention to possess (animus possidendi) for the whole period of their continuous possession of Lot 84 or the Claimed Area.

C. CONCLUSION

63.  The Defendant has established adverse possession against the Plaintiff of the Claimed Area as shaded in pink on the Encroachment Plan.

64.  The Plaintiff’s causes of action against the Defendant are accordingly time-barred.

D. DISPOSITION

65.  The Plaintiff’s claims are dismissed.

66.  A declaration be made that the Defendant has acquired a possessory title to the land as prescribed under paragraph 63 herein by adverse possession.

67.  A declaration be made that the Plaintiffs’ title to the land as prescribed under paragraph 63 herein has been extinguished under section 17 of the Ordinance.

68.  Costs should follow the event. I make a costs order nisi that costs of the proceedings be to the Defendant to be taxed if not agreed. This costs order nisi shall become absolute upon the expiry of 14 days from the date of this judgment unless there is any application from any party for variation of the same.

69.  I thank counsel for their assistance.