CHAN MEI HEUNG v. HAPPY TREND ENTERPRISE LTD

DCCJ 3843/2020

[2025] HKDC 1943

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3843 OF 2020

--------------------------------------

--------------------------------------

------------------------------

JUDGMENT

------------------------------

INTRODUCTION

1.  The present case concerns a piece of land which was originally part of Lot No 8 in DD 128, Yuen Long (“Lot 8”) and is now known as Lot No 8A in the same Demarcation District (“Lot 8A”).

2.  The Plaintiff (“P”) seeks a declaratory relief that she has acquired possessory title to Lot 8A by adverse possession. The Defendant (“D”), being the registered owner of Lot 8A, defends P’s claim and counterclaims for an injunction restraining P from trespassing on the Lot, an order for vacant possession of the same and mesne profit. For easy reference, a site plan (“Site Plan”)[1] is attached to this judgment as Annex.

3.  At the trial, P is represented by Mr Patrick Szeto and D is represented by Mr Ernest Koo and Mr Jay Cheung.

OVERVIEW

4.  Lot 8 was first granted by the Government to Li Kee Tong as trustee of Lit Tun Yan Tong on 24 January 1905. Subsequently, it was assigned to Li Po Chun on 15 November 1962 and then to Li Shiu Kwan on 3 April 1985. On 23 March 2018, Lot 8 was assigned to D.

5.  It is P’s case that her father-in-law Ngo Sui (“Ngo Senior”) first occupied a part of Lot 8 together with an adjacent piece of government land (“Government Land”) in 1982. He fenced off the area, built a squatter shack, partly on Lot 8 and partly on the Government Land, and resided thereat together with P’s husband Ngo Wa Lung (“Husband”). In this Judgment, I would use the term “Shack” when I refer to the structure on the said two pieces of land that Ngo Senior, the Husband, P and their family lived at the relevant times, compassing any subsequent alterations or modifications resulting from renovations and repairs to the original structure after 1982.

6.  As will be seen below, expert evidence shows that the area of the part of Lot 8 first occupied by Ngo Senior in 1982 is smaller than the area currently occupied by P. The expansion occurred in 2013 when the Shack underwent substantial renovation and the fence originally erected in 1982 was moved to the present boundary of Lot 8A. In the joint expert report dated 14 November 2023 (“Joint Expert Report”), the experts label the fence erected in 1982 as “FX1” and the one erected in 2013 as “FX7”. The location of FX1 can be seen in the Annex.

7.  In this Judgment, I would refer to the area of Lot 8 originally occupied by Ngo Senior in 1982 as the “FX1 Area” and the additional area occupied by P in 2013 as the “Extended Area”. In other words, Lot 8A consists of both FX1 Area and Extended Area. Furthermore, I would use the term “Occupied Area” to describe the entire fenced-off area which, from 1982 to 2013, consists of the Government Land and the FX1 Area and, from 2013 onwards, comprises the Government Land and Lot 8A.

8.  Ngo Senior passed away in 1995. In 1996, P came to Hong Kong to join the Husband and resided at the Shack. In 1997 to 1998, the three children of P and the Husband (“Children”) came to Hong Kong for reunion and the family of five continued to reside at the Shack.

9.  It is P’s case that the adverse possession of Lot 8A started in 1982 when Ngo Senior and the Husband occupied the Occupied Area, built the Shack on it and fenced it off. Thereafter, the Occupied Area was exclusively controlled and occupied by the family. The applicable limitation period was 20 years which expired in 2002.

10.  D denies that P had continuously controlled and occupied the Occupied Area for 20 years prior to 2002. It is D’s case that P’s family was allocated a public housing unit in Tin Shui Wan (“PHU”) in June 2001. Thereafter, P and her family moved into the PHU in August 2001 and abandoned the Occupied Area. D relies on the electricity bill of the Shack which shows zero electricity consumption after August 2001. D alleges that P only returned to the Shack in 2013 after the Government had completed the improvement work to the nullah which solved the long-standing problem of flooding in the village, ie Hang Hau Village (“Village”).

11.  D argues that, even assuming that the adverse possession started in 1982, the factual possession of the FX1 Area ceased in around August 2001 shortly before the expiry of the 20-year limitation period in 2002. When they returned in 2013 and extended their occupation to include the Extended Area, the adverse possession of Lot 8A started afresh and the applicable limitation period (which was changed to 12 years since rights of action accruing on or after 1 July 1991) had not expired when D commenced an Order 113 application against P for recovery of Lot 8A under HCMP 642/2022 in 2020.

12.  P denies that she abandoned the Occupied Area when PHU was allocated in 2001. According to P, the PHU was mainly occupied by the Children who were attending secondary schools in Yuen Long and Tin Shui Wan and the Husband continued residing at the Shack. To take care of the Husband and the Children, P resided at both the Shack and the PHU depending on the needs of the family. It is P’s case that the Occupied Area was still exclusively controlled and occupied by her family after August 2001 and the zero electricity consumption shown in the electricity bill was either due to the malfunctioning of the electricity meter which was confirmed and replaced by China Light & Power Company (“CLP”) in 2016 or the low consumption after the Children had moved out from the Shack. After the death of the Husband on 23 September 2014, P became the tenant of the PHU but the PHU was still mainly occupied by the Children (who were then adults) and their own family, and P mainly resided at the Shack.

13.  D further argues that, leaving aside the dispute on occupation of the FX1 Area from 2001 to 2013, it is undisputable that the occupation of the Extended Area only started in 2013 and the 12-year limitation period had not expired when D commenced the present proceedings in 2020. On this point, P relies on Powell v McFarlane[2] and argues that “evidence of possession done on parts may be evidence of possession of the whole”.

14.  In around August 2019, D demanded P to vacate Lot 8A but P refused. Subsequently, D issued the Order 113 application to recover Lot 8A. Separately, P commenced the present action in July 2020 for adverse possession of the same.

15.  In June 2022, Lot 8A was carved out from Lot 8 and the remaining part of Lot 8 became Lot No. 8RP.

LEGAL PRINCIPLES

16.  The legal principles on adverse possession are well-settled and not in dispute which can be summarized as follows:-

(1)  A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess; Wong Tak Yue v Kung Kwok Wai (No 2)[3] at 68E;

(2)  The elements of factual possession and animus possidendi are two separate requirements in law though the proof of both elements can be deduced and supported by inferences from the same physical acts of possession: JA Pye (Oxford) Ltd v Graham[4] at §40;

(3)  The possession should be “exclusive, continuous, open and visible and notorious”. It must not be “equivocal, occasional, or for a special or temporary purpose”; Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy[5];

(4)  Adverse possession can be described as “possession as of wrong” and with limitation it is the intention of the squatter that is essential; Wong Tak Yue (No 2) at 68H;

(5)  The intention to possess required for adverse possession “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”; Wong Tak Yue (No 2) at 68I-J citing Powell v McFarlane[6];

(6)  The question of intention to possession, as with any other question of intention is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case; Wong Tak Yue (No 2) at 69A;

(7)  Where the occupier has made self-serving statement as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with skepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight; Wong Tak Yue (No 2) at 69B-C;

(8)  The burden of proof of adverse possession rests on the squatter. The evidence required must be “compelling” in light of the serious consequence of displacing the title of a paper owner by an adverse possessor. Nevertheless, the standard of proof remains the normal civil standard, ie on a balance of probabilities; Tsang Foo Keung; and

(9)  A squatter’s conduct after the expiration of the relevant limitation period may be relevant to a proper determination of whether the squatter had the requisite intention to possess during the limitation period; Fung Yuk Luen v Wong Fung Lan[7].

WITNESSES

The Plaintiff

17.  P was born in 1954 in Mainland China and her hometown was Haifeng, the same as the Husband. She received education up to the primary level and is able to read simple Chinese. She was married to the Husband in 1970s and they have three children:-

(1)  The daughter Ngo Shun Ching (“Shun Ching”) who was born in 1978;

(2)  The elder son Ngo Kei Faat (“Kei Faat”) who was born in 1981; and

(3)  The younger son Ngo Chun Hei (“Chun Hei”) who was born in 1984.

18.  Ngo Senior was a fisherman who settled in the Village during the 1970s. Initially, he constructed a house (“Green House”)[8] on a different plot of land within the Village, where he lived together with the Husband. Subsequently, Ngo Senior sold the Green House to a friend to raise funds for building a house back in his hometown. He then found a piece of land situated about 10 to 20 meters away from the Green House which had been vacant for some time. In 1982, Ngo Senior built the Shack on the said piece of land (ie the Government Land and FX1 Area) to serve as the family’s residence.

19.  P first came to Hong Kong in 1982 on two-way permit and resided at the Shack. She noted the Shack’s address as “坑口村4街1號” (“4^th Street Address”). For reasons unknown to her, the address on the electricity bills was “流浮山坑口村坑口街2號3-B1號” (“Hang Hau Street Address”)[9]. To the best of her knowledge, no other people apart from her family used these two addresses and she believes that both addresses refer to the Shack.

20.  In 1994, Ngo Senior returned to his hometown and subsequently passed away in 1995.

21.  According to P, the Husband had suffered from mental illness since around the age of 20. He never worked and relied solely on social assistance. His health condition made him unsuitable for urban life and he could only live in the Village.

22.  P was granted one-way permit to Hong Kong in 1996 and lived in the Shack. The Children joined her in 1997 and 1998 and attended secondary schools in Yuen Long or Tin Shui Wan:-

(1)  Shun Ching arrived in 1997 and studied Form 5. She completed Form 7 in around 2001 and continued her higher education in Hong Kong;

(2)  Kei Faat arrived in 1997 and studied Form 3. He completed Form 5 in 2000 and started working; and

(3)  Chun Hei arrived in 1998 and studied Form 1. He completed Form 5 in 2003 and went to Mainland China for further studies. He returned to Hong Kong in 2009.

23.  Because the Shack was too small for the family of five and its location was far away from the Children’s schools, the Husband applied for public housing in 1999 and was allocated the PHU in 2001. However, the Husband did not move to the PHU. Instead, he continued to reside at the Shack because the PHU was also too small for the whole family and he was accustomed to Village life. Thus, from 2001 to 2008, P spent roughly equal time at the PHU and the Shack to take care of both the Husband and Children.

24.  From 2008 to 2009, the Husband’s health deteriorated and required frequent hospital visits. To reduce travel time, P and the Husband moved to the PHU, but P occasionally returned to the Shack for cleaning and ancestral worship.

25.  In 2009, after completing his studies in Mainland China, Chun Hei returned to Hong Kong and lived in the PHU. As the PHU became overcrowded, Kei Faat moved from the PHU to the Shack.

26.  In 2011, Shun Ching was married and her husband moved into the PHU.

27.  In 2013, P arranged to renovate the Shack.

28.  The Husband passed away on 23 September 2014. Following his death, P became the tenant of the PHU.

29.  In 2015, P moved from the PHU to the Shack to live with Kei Faat.

30.  In 2017, Kei Faat was married and his family continued to reside at the Shack. After the birth of Ket Faat’s two sons, P further expanded the Shack to accommodate the new family members.

31.  In 2019, Chun Hei was married and his family moved into the PHU. At the same time, Shun Ching and her husband moved from the PHU to the Shack, and then from the Shack to their own residence in 2020.

32.  In 2021, P moved into the PHU to take care of Chun Hei’s infant son but she still visited the Shack occasionally to see Kei Faat’s family and for ancestral worship.

33.  Regarding water charges, P recalls there was no water meter at the Shack during her first visit in 1982 and water was supplied from a “public pipe”. The Husband told her that the Shack used to have a water meter. However, a child in Village kept turning on the water hose, resulting in a substantial increase in water charge. Ngo Senior failed to settle the bill and the water meter was removed by Water Supply Department (“WSD”). Thereafter, they connected the Shack to “public pipe” for water supply. In around 2017 to 2018, WSD re-laid water pipes in the Village and water supply to the Shack from the “public pipe” was stopped. P therefore connected the Shack to the house behind it for water supply. According to P, water supply to the said house also came from the “public pipe” and the owner of the house, named Ah Lai, never asked P to contribute the water charge.

34.  P cannot recall when she was not required to pay electricity charge. Initially, she believed that it was due to low consumption at the Shack. It was only when CLP replaced the electricity meter in 2016 that it was discovered the meter was malfunctioning.

35.  P emphasizes that when she first visited the Shack in 1982, Ngo Senior had already erected fences and gates to enclose the Occupied Area. During the 1990s and 2000s, there were public security problems in the Village. So Ngo Senior and the Husband insisted on using sturdy fences and gates. Although the public security situation had improved in recent years, the family retained the fences and gates. When the Shack was rebuilt in 2013, they reinforced and increased the height of the fences. They also installed two gates and both of which were always locked.

Ngo Chun Hei

36.  Chun Hei is the son of P and the Husband, and the youngest amongst the Children. He was born in 1988 in Mainland China and came to Hong Kong in 1998. He resided at the Shack together with other members of the family. He noticed that the 4^th Street Address was shown on the Shack and the area where he lived was enclosed by the fence.

37.  He does not know the reason why the address on the electricity bill was the Hang Hau Street Address. To the best of his knowledge, no other person apart from his family used the 4^th Street Address and the Hang Hau Street Address, and he believes that both addresses refer to the Shack.

38.  When Chun Hei came to Hong Kong, he studied Form 1 at a secondary school in Yuen Long. On schooldays, he walked about 15 minutes to the bus stop and went to school by bus. He moved to the PHU in 2001 but he still returned to the Shack occasionally during vacation or after school.

39.  He recalls that there was no water meter at the Shack when he came to Hong Kong in 1998 and water was supplied to the Shack through the “public pipe”. In about 2017 to 2018, WSD re-laid water pipes in the Village and water supply from the “public pipe” was stopped. He tried to apply for installation of water meter at the Shack and was told by WSD that the cost was approximately $20,000. With the consent of his neighbour Ah Lai, they connected the Shack to Ah Lai’s house for water supply. It is his understanding that water supply at Ah Lai’s house also came from “public pipe” and therefore Ah Lai did not ask them to share the water bill.

40.  When he resided at the Shack, he assisted P in packing up letters from a pavilion at the Village. He recalls that the electricity consumption at the Shack was not recorded in the electricity bills at some point in time. He suspected the electricity meter was malfunctioning. Subsequently, he noticed that the pointer of the electricity meter did not move even though there was electricity consumption at the Shack. He told P about the situation but no action was taken by them. In 2016, CLP replaced the electricity meter. Thereafter, the electricity bills accurately recorded the electricity consumption at the Shack.

41.  After the allocation of the PHU in 2001, the Children moved thereto as it was more convenient for commuting to their schools and workplaces. The Husband, however, continued to reside at the Shack, and P divided her time between the PHU and the Shack to take care of both the Children and the Husband. Based on his observations, P spent approximately equal amounts of time at both places.

42.  In 2003, Chun Hei completed Form 5 in Hong Kong and went to Mainland China for further education. As his school was located in Guangzhou, he returned to Hong Kong every month and stayed for a few days each time.

43.  In around 2008 to 2009, the Husband’s health deteriorated rapidly and required frequent hospital visits. Therefore, the Husband spent most of his time in the PHU. To take care of the Husband, P returned to the Shack less frequently but she still regularly returned for cleaning and ancestors worshiping.

44.  Chun Hei returned to Hong Kong in around 2009 after completing his study in China and resided at the PHU. To avoid overcrowding, Kei Faat moved from the PHU to the Shack. P also moved back to the Shack in around 2015.

45.  Kei Faat was married in 2017. His family and his children continued to reside at the Shack together with P.

46.  In around 2021, Chun Hei asked P to help take care of his infant son and P started to spend more time in the PHU. Even so, P still regularly returned to the Shack for ancestors worshipping and visit Kei Faat’s family. She kept her room in the Shack and stored her personal belongings therein. Chun Hei also occasionally returned to the Shack to visit P and Kei Faat’s family.

梁玉芳 (“Madam Leung”)

47.  Madam Leung is a neighbour of P. She lives in “坑口村4街2號”. She was born in the Village in 1954 and she is now 71 years old.

48.  According to her parents, their house (“Yellow House”)[10] was built in around 1951. She was married in 1976 and her husband moved to reside at the Yellow House. In around 2000, Madam Leung and her husband purchased another property and moved out from the Village. However, Madam Leung regarded the Yellow House as her ancestral home. She regularly returned and stayed thereat several days each week.

49.  Madam Leung’s parents and Ngo Senior came from the same hometown and they knew each other when they were in Mainland China. To her recollection, when Ngo Senior lived in the Village, her father even went fishing with him.

50.  As the Yellow House was close to the Shack, Madam Leung could see the Shack from the window of her room. She recalls that her two sons were still very young when the Shack was built. Judging from the fact that her sons were born in 1978 and 1979, she believes that the Shack was built in the early 1980s. She remembers that the Shack was initially built with only wooden planks and metal sheets.

51.  In the 1990s, P and the Children came to Hong Kong and resided at the Shack. Subsequently, P told her that Ngo Senior had died in Mainland China. According to her observation, after the death of Ngo Senior, P and her family continued to reside at the Shack.

52.  She recalls that there had been frequent repairs and maintenance to the Shack after 1982, particularly during typhoon seasons. The Shack was under major renovation from about 1998 to 1999 and from about 2013 to 2015.

53.  Madam Leung’s family and P’s family had a good relationship. When she was young, Ngo Senior would come to the Yellow House to chat with her father. As she and P actively participated in the Village’s activities, they became acquainted and chatted in the Village in spare time.

54.  Madam Leung was not aware of the allocation of the PHU until P told her that she planned to arrange for the Husband to reside at the PHU because his health was poor and required frequent hospital visits. Madam Leung recalls that P’s family used to reside at the Shack before the allocation of the PHU. After the allocation, Madam Leung seldom saw the Husband, Shun Ching and Chun Hei. However, Madam Leung regularly saw P and Kei Faat at the Shack. Madam Leung often encountered P, sometimes accompanied by her grandchildren, when she walked in the Village.

Witnesses not called upon

55.  The Defendant filed 3 witness statements but none of these witnesses was called to give oral evidence at the trial. Similarly, P did not call another neighbor, 敖茂榮, to testify at the trial. The parties agree that their witness statements should be excluded as evidence.

EXPERT EVIDENCE

56.  Pursuant to the leave granted by the Court, P and D engaged Mr Leung Shou Chun and Mr Leung Chi Yan George (collectively referred to as the “Experts”) respectively to given evidence on location, boundary, and occupational history of Lot 8A from 1982 to 2021. The Experts conducted two site inspections on 27 May 2022 and 14 July 2022. After the site inspections, the Experts exchanged their respective reports dated 28 and 29 August 2022 and, after the joint meeting on 12 October 2022, prepared the Joint Expert Report. As there is no disagreement between the Experts, they were not called to give oral evidence at the trial.

57.  At the joint inspections, a temporary structure (S25) with a canopy (CA5) attached to its south-western side was found partially erected on the Lot 8A and partially on the Government Land. An electricity meter was found attached to the southern side of S25. Three ponds (PO1, PO2 and PO3) which were all situated within the Lot were found at the eastern side of S25. Lot 8A and the Government Land were enclosed by fences (FX7 and FX9) and could be accessed via two gates (GA1 and GA2).

58.  As for the historical occupation of Lot 8A, based on aerial photos, it is the observation of the Experts that:-

(1)  In 1982, three structures (S1, S2 and S3) were observed. S1 and S3 straddled across the FX1 Area and the Government Land whilst S2 was wholly situated on the Government Land. Fences / barriers (FX1) were found running near the western, northern and eastern sides of the structures. Part of FX1 near the eastern side was running over Lot 8. The land around S1 was cleared and some items were observed in this area. In December 1982, S3 could no longer be observed;

(2)  From 1983 to 1984, there was no discernible significant change from 1982;

(3)  In 1985, new steps (ST1) and retaining wall (RW1) were observed near the south-western side of S2;

(4)  In 1986, S1 and S2 were extended to the south and came close to the edge of a structure (S18) which located just outside the southern boundary of the FX1 Area. A new linear ground feature, possibly some kind of barriers (FX3) which was joining to FX1 was observed near the northern side of S18;

(5)  From 1987 to 1992, there was no discernible significant change from 1986;

(6)  In 1993, the area bounded by FX1 seemed to be cleared up;

(7)  From 1994 to 1996, there was no discernible significant change from 1993;

(8)  In 1997, S1 and S2 were further expanded and became attaching to each other. The resultant structures straddled across the Lot and the Government Land;

(9)  In 1998, FX1 near the eastern side of S1 could not be observed possibly obstructed by tree crowns above;

(10)  From 1999 to 2000, there was no discernible significant change from 1998;

(11)  In 2001, the area surrounding S1 and S2 was grown with wild vegetation;

(12)  In 2002, there was no discernible significant change from 2001;

(13)  In 2003, FX1 and FX3 near the eastern and south-eastern sides of S1 and S2 could not be observed and were believed to be removed;

(14)  In 2004, there was no discernible significant change from 2003;

(15)  In 2005, the dense trees obstructed the view of the northern port of S1;

(16)  In 2006, S1 was mostly obstructed by tree crown above and could be barely observed. Wild vegetations were covering the land;

(17)  From 2007 to 2012, there was no discernible significant change from 2006;

(18)  In 2013, ST1 and S1 could be observed again whilst the area in the vicinity of S1 was cleared up. The size of S1 became smaller and was believed to be undergoing demolition. A new linear ground feature, possibly fences (FX7), was observed near the western side of S1. Besides, two new structures (S23 and S24) were observed near the southern side of S1. S23 situated inside the Lot but S24 was outside. The north-eastern portion of the Lot was cleared;

(19)  In 2014, S1 was found to be removed. A new structure (ie S25) was found erected over the Lot and the Government Land. FX7 were found extended and were erected near the north-western, north-eastern, south-eastern and south-western sides of S25. The area bound by FX7 was paved by concrete. S23 was possibly covered by wild vegetation and could be barely observed. There was a gate (ie GA2) observed at the south-western corner of the Lot;

(20)  In 2015, there was no discernible significant change from 2014;

(21)  In 2016, S23 was found to be removed. A new rectangular shape ground feature, possibly a pond (ie PO1) was observed near the north-eastern side of S25;

(22)  In 2017, a new rectangular shape ground feature, possibly a pond (ie PO2) was observed near the north-eastern side of S25. The portion of FX7 near the southern side of S25 could no more be observed thus turning this structure to become open sided;

(23)  In 2018, a new fence (ie FX9) which was connected to FX7 at its eastern end and S24 at its western end was observed near the southern side of S25. The extent of the fenced off area by FX7 and FX9 was consistent with that surveyed by the Experts in May 2022;

(24)  In 2019, a new extension, possibly a canopy (ie CA5) was observed at the south-western and the north-western feature, possible a pond (ie PO3) was observed near the north-eastern side of S25;

(25)  In 2020, S25 was found to be extended at its northern side. However, the extension was outside the Lot; and

(26)  In January 2021, FX7 at the north-eastern side of S25 could not be observed. In December 2021, there was no discernible significant change from January 2021.

59.  Based on survey sheets, the Experts observe that:-

(1)  In the survey sheet dated January 1979, Lot 8A and Lot 8RP were depicted as cultivation land with the alignments of field bunds indicated;

(2)  In the survey sheets dated July 1986, S1 and S2 were bounded by FX1 over Lot 8A and the Government Land. However, the extent of enclosed area was smaller than present. S1 straddled across Lot 8A and the Government Land whilst S2 was wholly erected on the Government Land. A portion of FX1 was depicted within Lot 8RP but outside Lot 8A;

(3)  From the survey sheets between 1991 and 2013, other than annotation “TS” added to the structures since February 2004, there was no discernible change and all ground features were in similar condition as in July 1986;

(4)  In the survey sheet dated 19 May 2015, S1 and S2 disappeared. A new structure (ie S25) which straddled across Lot 8A and the Government Land was bounded by new fences (ie FX7). A new gate (ie GA1) was depicted at the southern side of S25 whilst part of FX1 which was depicted within Lot 8RP remained unchanged; and

(5)  In the survey sheets between 2017 and 2022, there was no discernible change and all ground features were in similar condition as on 19 May 2015.

GUIDING PRINCIPLES ON EVALUATION OF EVIDENCE

60.  When assessing the credibility of witnesses, I bear in mind the following principles set out by Deputy Judge Eugene Fung SC (as he then was) in Hui Cheung Fai v Daiwa Development Ltd[11]:-

(1)  Contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2)  In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)  Regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence;

(4)  Care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness' character;

(5)  Witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be paid to their motives and to the overall probabilities;

(6)  The credibility of a witness in matters not germane to the litigation may be of less assistance in the overall evaluation of credibility, and that it is important to have regard to the entirety of the evidence of a witness.

OCCUPATION FROM 1982 to 2001

61.  The first question that I need to decide is whether the occupation of the Occupied Area started in 1982 by Ngo Senior and the Husband as alleged. It is trite law that the paper owner is not obliged to plead any positive case or adduce any positive evidence. The burden of proof of adverse possession rests on the squatter and the paper owner is entitled to test P’s case; Birkenhead Properties and Investments Limited v Lam Kai Man[12].

62.  It appears from the expert evidence that the FX1 Area has been occupied together with the Government Land since 1982. According to Joint Expert Report, there was no structure on the Occupied Area in 1981[13]. In the arial photo taken on 27 July 1982, three structures (ie S1 to S3) appeared thereon, and a fence (ie FX1) was erected to enclose the same. Since then, there had been alterations or modifications to the structures on the said area and FX1 had continued to exist to enclose the Occupied Area until it was replaced by FX7 in 2013.

63.  Mr Koo confirms that he is not disputing that the FX1 Area has been occupied since 1982. He is only challenging whether P has adduced compelling evidence to prove that it was Ngo Senior and the Husband who had occupied the FX1 Area since around 1982.

64.  Mr Szeto submits that P’s case is supported by Madam Leung who witnessed the construction of the Shack by Ngo Senior and the Husband. It is also her evidence that there had been frequent repairs and maintenance to the Shack since 1982, particularly during typhoon seasons. Mr Szeto submits that Madam Leung is an independent witness who has no vested interest in the outcome of the present case. Given her long presence in the Village, there is nothing to doubt her evidence.

65.  On the other hand, Mr Koo submits that Madam Leung is not a reliable witness and even suggests that she was lying. Mr Koo points out that, despite her evidence in the witness statement that she witnessed the construction of the Shack, she retracted from the said evidence during cross-examination and said that the Shack was there for a long time and she did not pay attention to when it was constructed.

66.  Madam Leung explains that she did not pay special attention to the Shack because what happened there did not really concern her. Her evidence is based on her observations from her daily activities in the Village. Although she cannot recall the exact year the Shack was constructed, she was sure that her two sons were very small when the Shack came into existence and thereafter Ngo Senior and the Husband kept repairing it.

67.  In my view, there is nothing to suggest that Madam Leung has any interest in the outcome or has any motive to lie. I agree with Mr Szeto’s submissions that Madam Leung is independent witness and accept her evidence. Judging from the undisputed fact that her two sons were born 1978 and 1979, I am also of the view that her evidence supports P’s case that Ngo Senior and the Husband first occupied the FX1 Area in 1982.

68.  Furthermore, although D is not required to adduce any positive evidence to disprove P’s case, the fact remains that there is no evidence to suggest that the Occupied Area was occupied by any other person in 1982.

69.  Mr Koo takes issue on P’s evidence that the Shack has two addresses, namely 4^th Street Address and the Hang Hau Street Address. It appears to be Mr Koo’s argument that the 4^th Street Address is in fact the address of the Green House (ie the house built by Ngo Senior before 1970s) and this undermines P’s case that Ngo Senior and the Husband had been in occupation of the Occupied Area since 1982.

70.  Insofar as the 4^th Street Address is concerned, P’s evidence is that it was shown on the metal sheet on the Shack and a photo showing the said metal plate is produced[14]. It was not put to P or Chun Hei that the metal plate shown in the said photo did not come from the Shack.

71.  On the other hand, the Hang Hau Street Address only appears in the electricity bills issued by CLP. It is not clear why CLP used the said Address. But the fact remains that, apart from the electricity bills, the Hang Hau Street Address did not appear in any other documents during this period. It is also noted from letter dated 20 May 2022 from Hongkong Post that the Hang Hau Street Address is not deliverable, ie no delivery service is provided to the said address by the Hongkong Post[15].

72.  Whilst it is P’s evidence that the 4^th Street Address was once the address of the Green House, there is no evidence to show that the Green House was still occupied by Ngo Senior and the Husband after 1982. Furthermore, evidence shows that P’s family consistently used the 4^th Street Address as their residential address during this period[16]. In my view, there is no merit in Mr Koo’s submissions in relation to the said two addresses.

73.  In any event, it is trite law that it is not necessary for the adverse possession to be made by one person for the whole of the limitation period and a squatter can rely on the occupation of the previous squatters to establish adverse possession; Lau Kwai Ping Joyce v Fulland International Limited[17]. In my view, even assuming that the initial occupation of the Occupued Area was not by Ngo Senior and the Husband but by an unknown person, P can still rely on the occupation of the unknown person and claim adverse possession.

74.  By reasons of the aforesaid, I find on balance of probabilities that:-

(1)  Ngo Senior and the Husband first occupied the FX1 Area (together with the Government Land) no later than 27 July 1982 without the consent of the then owner of Lot 8;

(2)  The family (at different points in time consisting of Ngo Senior, the Husband, P and the Children) continued to occupy the same to the exclusion of the paper owner until 2001;

(3)  As evidenced by their fencing off and exclusive use of the FX1 Area (together with the Government Land), the family had the intention to possess the same against the paper owner.

ALLEGED ABANDONMENT IN 2001

75.  According to Mr Koo, the main issue in the present case is whether P and her family had ceased residing at the Shack and abandoned the Occupied Area after the allocation of the PHU in 2001 until sometime no earlier than 2013. It is Mr Koo’s submissions that the fact that no electricity consumption was recorded for over a decade “strongly suggest that P’s family had abandoned the Squatter Shack and taken up the Public Housing Unit as their sole residence”.

76.  As to the factual dispute on whether the Husband continued to reside at the Shack after the allocation of the PHU, I agree with Mr Koo that P’s evidence is not reliable.

77.  Firstly, her evidence is shaky and inconsistent:-

(1)  In the witness statement, P said that, after the allocation of the PHU, the Husband did not move thereto together with the Children and chose to stay in the Shack[18];

(2)  During cross-examination, she said that the Husband had in fact moved to the PHU with the family in 2001 and resided thereat for one to two months, before returning to the Shack;

(3)  Her evidence later changed again when she said that the Husband returned to the Shack after the application for external transfer was refused. The Transfer Form was signed on 5 November 2002 which means that the Husband resided at the PHU for more than one year before returning to the Shack.

78.  Secondly, although I accept Madam Leung is an independent witness, I do not think her evidence would assist P:-

(1)  She admits that she did not know when the PHU was allocated. Her evidence on the occupancy status of the Shack was not time-specific;

(2)  According to her observation, after the allocation of the PHU, she rarely saw the Husband, Shun Ching and Chun Hei, and only saw P and Kei Faat. According to P, Kei Faat moved to the Shack only in 2009;

(3)  It is also Madam Leung’s evidence that she sometimes saw P carrying the grandchildren. Ps’ evidence is that Shun Ching was the first of the Children to get married. which took place in 2011, and she gave birth to a child the second year. Therefore, Madam Leung’s observation must be after 2012;

(4)  More importantly, it is not Madam Leung’s evidence that there was any period during which only the Husband and P resided at the Shack. According to P, the Husband lived in the Shack from 2001 to 2008/2009. This span of seven to eight years is significant, and it is improbable for Madam Leung, who frequently visited the Village and stayed in the Yellow House, to have failed to observe it had it truly taken place.

79.  Thirdly, I agree with Mr Koo that the fact that the zero electricity consumption recorded in the electricity bills is strong evidence to support the inference that no one was residing at the Shack after August 2001:-

(1)  According to the electricity bill dated 22 October 2001 (“22/10/2001 Bill”)[19], the electricity consumption at the Shack from August 1999 to June 2001 was consistently over 120 units every two months. The consumption dropped to around 80 units during the period between 13 June to 12 August 2001 and there was no record of electricity consumption from 13 August 2001 to 12 October 2001;

(2)  It is noted that the tenancy agreement for the PHU was signed on 6 June 2001, with the tenancy commencing on 20 June 2001. The timing is significant when considered alongside the drop in electricity consumption at the Shack from June 2001 onwards. The pattern of reduced and eventually zero electricity consumption supports an inference to be drawn that P’s family moved from the Shack to the PHU in June/July 2001 and no one was living in the Shack from August 2001 onwards;

(3)  P gave two reasons for zero consumption of electricity in August 2001. The first reason was that the electricity meter was probably malfunctioning. P relied on the fact that the electricity meter was replaced by CLP in 2016;

(4)  However, there is no confirmation from CLP on the reason why the electricity meter was replaced in 2016. On the contrary, P’s allegation of malfunctioning does not sit well with the fact that the electricity bill issued on 15 August 2013[20] (“15/08/2013 Bill”) shows a meter reading of 9200, which is 51 units more than the reading shown in the 22/10/2001 Bill. If the electricity meter was malfunctioning and failed to record any electricity consumption as alleged, the meter reading shown on the 15/08/2013 Bill should have been the same as the one shown on in the 22/10/2001 Bill, ie 9149;

(5)  The second reason given by P is that the consumption at the Shack was very low after the Children had moved to the PHU because the Husband only turned on a small light bulb. There was no air-conditioner or washing machine in the Shack. P cooked the meal at the PHU and then brought to the Shack to the Husband. Therefore, it was possible that the consumption from August to October 2001 was too low to be recorded in the 22/10/2001 Bill;

(6)  The problem of this explanation is that P has not produced any electricity bill covering the period between the 22/10/2001 Bill and the 15/08/2013 Bill. Thus, it is not clear when or during which period the said 51 units was consumed;

(7)  Mr Koo complains that P has failed to produce the electricity bills between October 2001 and June 2013. In my view, Mr Koo’s complaint is justified. There is no valid explanation why no electricity bill issued in this critical period was produced, and the evidence of P and Chun Hei relating to the handling of electricity bills is inconsistent;

(8)  Further, if P’s explanation of low consumption is true, one would expect that the consumption of 51 units was evenly distributed within this 12-years period. However, the 15/08/2013 Bill shows that there was zero consumption from June 2011 to August 2013;

(9)  Bearing in mind that the burden of proof rests on P, there is no sufficient evidence to support P’s second explanation.

80.  By reasons of the aforesaid, I find on balance of probabilities that, the whole of P’s family moved to live in the PHU in around August 2001 and no one was residing at the Shack thereafter until 2013.

81.  The above finding is also supported by the declaration in the Transfer Form which states that the family did not have other residence as of November 2022[21].

82.  According to the experts, the dense trees started to obstruct the view of the Shack in the aerial photos taken in 2005. In the aerial photo taken in 2006, the Shack was mostly obstructed by tree crown and could be barely observed. Also wild vegetation was covering the FX1 Area. The situation remained the same in the following years until 2013. In my view, this supports Mr Koo’s argument that P’s family only returned in 2013.

83.  Thus, I further find that some members of P’s family returned to reside at the Shack only in 2013.

84.  However, my finding that none of P’s family resided at the Shack from August 2001 to 2013 does not necessary mean that P’s claim for adverse possession in respect of the FX1 Area must fail.

85.  In Chambers v Havering London Borough Council[22], Lewison LJ pointed out the difference between continuous use of the land and continuous occupation of the land in the context of adverse possession as follows:-

“57. …… In addition at this point in his judgment he seems to have been looking for ‘continuous use’. But in my judgment continuous use is not the test. It is the taking of possession that is critical. If possession passed to Mr Chambers at any point then he would not have needed continuous use to have maintained possession: Bligh v Martin [1968] 1 WLR 804, p.811; Generay Ltd v Containerised Storage Company Ltd [2005] EWCA Civ 478 at [49].”

The above passage was applied by Mr Recorder A Ho SC in Law Bing Kee v Persons in Occupation of RP[23] and cited with approval by the Court of Appeal in Chow Tin Sang v Citihero International Limited[24].

86.  In Law Bing Kee (supra), Counsel for the owner argued that the squatter’s possession over the disputed land, even if established, was effectively abandoned due to the closing down of the squatter’s farm, the wire-mesh fences being allowed to fall into disrepair, the fact that the disputed land was not put to any specific use, and that there had been occasions when the owner had crossed over to the disputed land to trim the trees. After citing Chambers at §42, the learned Recorder continued to say at §43 that:-

“It is clear that even after Madam Lui had ceased to operate the Farm, she and the Wong family had continued in possession of the Disputed Portion, whether or not it had been put to specific use. All the time, the Temporary Structure remained standing on part of the Disputed Portion, which the Wong family had rented out to Mr and Mrs Lee later in 1995. I do not consider the occasional presence of the Plaintiff or his wife on the Disputed Portion to trim the trees is sufficient to interrupt the possession of Wong family. Indeed, as was held in Zarb v Parry [2012] 1 P & CR 10, once an adverse possessor has taken possession, time starts to run against the paper title owner. In order to prevent time running against him, it would be necessary for the paper title owner to bring the factual possession of the wrongful possessor to an end, which would require the former to take back possession to the exclusion of the squatter. The matters relied upon by Mr Ko are in my view quite insufficient to amount to either putting an end to the Wong family’s possession of the Disputed Portion, or proving that the Plaintiff had taken possession of that area.” (emphasis added)

87.  Similarly, in Shing Luen Tat v Shing Chi Ping[25], one of the issues before the Court was whether the plaintiff’s parents ceased to be in possession of the property in question after 1971 after they had moved out or whether they had abandoned the property. HH Judge Alex Lee (as he then was) said that:-

“35 … In this regard, I remind myself that the law requires factual possession, which can be signified by a sufficient degree of control over the subject land, as an element of adverse possession. Actual usage is not required: see Powell v McFarlane, supra, at p 469. Enclosure is said to be the strongest possible evidence of adverse possession, but it is not indispensable: see Seddon v Smith (1877) 36 LT 168. Moreover, acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole: see Powell v McFarlane, supra, at p 471. I note also that the fact that the plaintiff’s family was no longer living there since 1971 is not determinative: Wong Shing Chau v To Kwok Keung, CACV 20/2008, at paragraphs 15 to 19, nor is the fact that the Building was in a state of dilapidation: compared with Ng Lai Sim v Lam Yip Shing & Another, HCA 2963/1998, where the collapse of the house on the subject property did not prevent the plaintiff from establishing her adverse possession.”

88.  In my view, the family’s moving to live in the PHU and the abandonment of the Occupied Area are two separate matters and did not necessarily have any correlation. P’s possession of the FX1 Area did not automatically come to an end when the family moved to reside at the PHU in August 2001. On the contrary, in the absence of anything that compelled P to abandon the Occupied Area, I find that it is more likely than not that P maintained the possession of the FX1 Area when the family moved to the PHU.

89.  Furthermore, it is trite law that, if the paper owner wishes to prevent time running against him, it would be necessary for him to bring the factual possession of squatter to an end and it requires the paper owner to take back possession to the exclusion of the squatter.

90.  In Kan Yau Shan v Mo Yiu Mut[26], the squatter claimed adverse possession which took place from 1983 to 2003. It was common ground that the paper owner fenced off the land in question in 2000 by putting up notices, iron angles and wires. The dispute was on when the fence was removed, the paper owners said the fence remained on the land for at least half year and the squatter said it was removed eight to ten days after it was put up. The Court of Appeal held that the paper owner’s action amounted to repossession of the land in question and the repossession for no matter how short a duration would have the effect of making time start to run afresh for the purpose of limitation period.

91.  It is my finding that the adverse possession started no later than 27 July 1982. It follows that the 20-year limitation period expired on 27 July 2002. If the paper owner wished to repossess the FX1 Area and end P’s adverse possession, he should have done it before 27 July 2002. Otherwise, the paper owner’s title would be extinguished by adverse possession. The effect is permanent and the extinguished title cannot be revived subsequently; Cheung Yat Fu v Tang Tak Hon[27].

92.  In the present case, D became the owner only in 2018 and it is not D’s pleaded case that there was repossession of the FX1 Area by its predecessor in title before the expiry of the 20-year limitation period on 27 July 2002. There is also no evidence from D that any action had been taken before 27 July 2002 to bring P’s possession of the FX1 Area to an end.

93.  Furthermore, it is the experts’ evidence that there was no discernible significant change from 2001 to 2002. Although the experts believe that the fence near the eastern and south-eastern sides were removed in 2003, the Shack was still there and can clearly be observed on the aerial photo taken on 3 July 2003[28]. By then, the 20-year limitation had expired. According to the experts, the Shack continued to exist until 2013 when it was renovated by P. There is nothing to suggest that the Shack was in a state of dilapidation that prevented P from establishing her adverse possession; Shing Luen Tat §35 (supra). There is also no evidence to show that some other people were able to gain entry or use the Occupied Area or the Shack during the period from August 2001 to 2013.

94.  The Transfer Form does not assist D either as the fact that P’s family did not use the Shack as their residence does not mean that they had given up the possession of the same.

95.  By reasons of the aforesaid, I reject Mr Koo’s submissions that P abandoned the possession of the FX1 Area from August 2001 to 2013.

96.  In this regard, Mr Koo takes a pleading point and argues that P only relies on the family’s residing at the Shack as the act of the possession of the Occupied Area in the pleadings and P should not be allowed to rely on other acts, such as maintaining the Shack and fence, which are not pleaded for such purpose.

97.  In response, Mr Szeto submits that the references of “reside” and/or “residence” in the pleadings, when properly understood, are in fact incidences of how the Shack and fence were being used as opposed to the features of possession.

98.  I am inclined to agree with Mr Szeto. In Re-Amended Statement of Claim, P pleaded the material facts in relation to the “Exclusive Use, Possession, Occupation and Control of the Defendant’s Land by the Plaintiff” from §§4 to 11 as follows:-

(1)  At §4, P pleaded (a) the constructing of the Shack and the fencing off of the Occupied Area in 1982 and (b) Ngo Senior and the Husband residing at the Shack from 1982 to 1995;

(2)  At §5, P pleaded the continuous use, possession, occupation and control of the Occupied Area from 1982 to 1995 by Ngo Senior and the Husband. It is noted that there was no express reliance of their residing at the Shack as the act of possession;

(3)  From §§7 to 9, P pleaded (a) her coming to Hong Kong in 1996 and (b) residing at the Shack continuously up to the date of the pleadings;

(4)  At §10, P pleaded that “In the premises, the Plaintiff has been solely, and/or cumulatively and/or jointly and continuously in full and exclusive use, possession, occupation and control of the Defendant’s Land … by herself and/or with her family”. Once again, there was no express reliance of their residing at the Shack as the act of possession;

99.  From §§12 to 14, P further pleaded the material facts in relation to the “Undisturbed and Uninterrupted Use, Occupation, Possession and Control of the Defendant’s Land” and there was no reliance of their residing at the Shack as the act of possession.

100.  In my view, P does not solely rely on her or her family’s residing at the Shack as the basis of the adverse possession. P also relies on the presence of the Shack and the fence as the act for continuous and exclusive use, possession, occupation and control of the Occupied Area.

101.  By reasons of the aforesaid, I find that:-

(1)  P continued to be in exclusive possession and occupation of the FX1 Area (together with the Government Land) after August 2001 even though no one was residing at the Shack;

(2)  As evidenced by the fact that the FX1 Area (together with the Government Land) continued to be fenced off and exclusively occupied by P and her family after August 2001, there was no change in P’s intention to possess of the said Area despite the decision to move to reside at the PHU.

102.  To conclude, I am satisfied that P has discharged the burden of proof with compelling evidence that, through herself and her family members, she was in exclusive possession and occupation of the FX1 Area (together with the Government Land) to the exclusion of the paper owner and had the intention to possess of the same for the requisite period of 20 years from no later than 27 July 1982 to 27 July 2002 at the latest, and the title of D’s predecessor in respect of the FX1 Area was extinguished by 27 July 2002 at the latest.

THE EXTENDED AREA

103.  The next issue to consider is about P’s claim for the Extended Area, which she only came into possession in 2013.

104.  Mr Szeto relies on a passage in Powell v McFarlane which stated that “acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole” and submits that P’s acts of possession on the FX1 Area from 1982 to 2002 can be used to the establish the adverse possession of the Extended Area. It appears to be Mr Szeto’s argument that, even though the Extended Area was only fenced off and included in the Occupied Area in 2013, the adverse possession of it started much earlier in 1982 together with the FX1 Area.

105.  Mr Szeto argues that this approach is sensible, as it would otherwise lead to situations where a successful squatter in adverse possession of a significant portion of disputed land would remain neighboring a losing rightful owner who retains the remaining land, usually useless or worthless. In extreme cases, the rightful owner could use their remaining land in a manner that disturbs the peaceful enjoyment of the squatter, resulting in further disputes. This would be contrary to the fundamental rationale behind the doctrine of adverse possession, which is intended to resolve boundary disputes.

106.  With respect, I am unable to accept Mr Szeto’s submissions.

107.  Firstly, the facts of Powell did not involve any change of boundary, and the passage Mr Szeto relies on addressed what constituted factual possession in the context of adverse possession.

108.  Secondly, the word used by Slade J. was “may” and it is clear from same passage that “It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession”. In other words, whether acts of possession done on parts of land to which a possessory title is sought can be evidence of possession of the whole depends on the particular facts of the case.

109.  In the present case, the possession of the FX1 Area and the Extended Area commenced at different times. P only began to possess the Extended Area in 2013, after adverse possession of the FX1 Area had successfully completed in 2002. There is no evidence from P or Chun Hei that they had started to occupy the Extended Area to the exclusion of the paper owner before 2013, even though it was outside FX1 and did not form part of the Occupied Area at the relevant time.

110.  Regarding the “undesirable consequence” cited by Mr Szeto, I do not find it relevant to the consideration of whether P has established the adverse possession of the Extended Area. In any event, even if P succeeds in claiming the Extended Area, Lot 8A would still be surrounded by Lot 8RP, which belongs to D. Thus, the same potential “undesirable consequence” remains.

111.  In my view, the occupation of the FX1 Area by Ngo Senior and the Husband in 1982 and the occupation of the Extended Area by P in 2013 were two separate and independent actions, and the claim for adverse possession of these two Areas should be considered separately.

112.  As P’s adverse possession of the Extended Area only started in 2013 and the 12-years limitation period had not expired when D raised the counterclaim in 2020, I am of the view that P’s claim for the Extended Area must fail.

113.  Mr Koo submits that, given the FX1 Area only forms a part of Lot 8A, if P’s claim for the Extended Area fails, her whole claim must fail because she has failed to discharge the burden of proving the adverse possession of the entire Lot 8A. With respect, I do not agree. The claim for the whole Lot 8A must necessarily include the claim for the FX1 Area.

QUANTUM

114.  Pursuant to the leave granted by the Court, P filed a valuation report dated 20 March 2023 prepared by Citiland Surveyors Limited (“Citiland Report”). In the opening, Mr Koo confirmed that D would not take any issue on the Citiland Report and would accept that the open market rental value for Lot 8A was $280 per month for the period from 27 July 2020 up to the date of trial.

115.  However, the Citiland Report does not provide the rental value of the FX1 and the Extended Area separately. Neither Mr Szeto nor Mr Koo has proposed how the quantum should be assessed if the Court makes different findings in respect of these two Areas.

116.  According to Annex[29], the area of the Extended Area is about 30% of Lot 8A[30]. Based on the rent per square metre provided in the Citiland Report, the market rental value of the Extended Area should be around $84 per month.

DISPOAL

117.  By reasons of the aforesaid, I make the following order:-

(1)  A declaration that P has acquired the possessory title to the FX1 Area by adverse possession by virtue of section 7, 8 and 13 of the Limitation Ordinance (Cap 347);

(2)  A declaration that D’s title to the FX1 Area has been extinguished by virtue of sections 7, 8 and 13 of the Limitation Ordinance in favour of P and that the title of the FX1 Area do vest in P;

(3)  P do deliver vacant possession of the Extended Area to D.

118.  Since I have not heard submissions on the time of delivery of vacant possession of the Extended Area and the calculation of mesne profit, I also make the following order nisi:-

(1)  The delivery of vacant possession of the Extended Area should take place within 3 months after the date of the judgment;

(2)  Mense profit for occupation of the Extended Area be assessed at $84 per month to be paid by P to D from 27 July 2020 until vacant possession of the Extended Area to D;

(3)  The mesne profit was and would be due and payable on the 27^th day of each month;

(4)  There be interest on mesne profits at 1% above the best lending rate of HSBC from the respective due dates of these mesne profits until the date of this judgment, and at the judgment rate thereafter until full payment of the same.

119.  In the present case, P only succeeds in her claim in respect of the FX1 Area and D only succeeds in its counterclaim in respect of the Extended Area. Since the time spent on the Extended Area is rather minimum, I do not consider that it is necessary to make any order for apportionment of costs. Thus, I would make a costs order nisi that D should pay P’s cost of the proceedings (including all costs reserved, if any), to be taxed if not agreed, with certificate for counsel. P’s own costs should be taxed in accordance with Legal Aid Regulations.

120.  The order nisi made at the above two paragraphs would become absolute unless an application is made by a party to vary the same within 14 days after the handing down of this judgment.

121.  Lastly, it remains for me to thank counsel for the helpful assistance rendered to the Court.

ANNEX