CHOW TIN SANG v. CITIHERO INTERNATIONAL LTD

HCA 2315/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2315 OF 2009

_____________

_____________

________________________

JUDGMENT

 ________________________

1. This is an unusual claim for adverse possession. Unlike many other adverse possession cases, both the plaintiff and the defendant were registered as the separate paper owners of the land in question.

BACKGROUND

2. The subject land is known as Lot No 397 in DD 215 (“the Land”), and it is situated near to the town centre of Sai Kung, New Territories.

3. The plaintiff is the manager of Chau Fuk Tso (“the Tso”), and he brings the present action against the defendant on his own behalf and on behalf of the Tso which is one of the registered owners of the Land.

4. Amongst other properties, the Tso is also the registered owner of Lot No 276RP which is on the east side the Land, and Lot No 638 which is on the north and the west side of the Land.

(i)  The chain of title relied on by the plaintiff

5. According to the record in the Land Registry, one Chau Fuk Li applied for the grant of the Land for agricultural purposes on 5 June 1914.  The application was granted and Chau Fuk Li purchased the Land on 24 July 1914.  One day later on 25 July 1914, Chau Fuk Li sold the Land to Tsu Un Tai Tso with one Tsu Chiu Tong as the trustee.

6. On 6 April 1932, one Chau Wa succeeded Chau Fuk’s properties as trustee of the Tso.  Apparently, Chau Fuk and Chau Fuk Li was the same person.  Despite the sale on 25 July 1914, the Land was registered and included as part of the Tso’s properties in the instrument “Succession to Property” dated 6 April 1932.

7. On 8 October 1949, one Chau Yu Tsun succeeded Chau Wa as the manger of the Tso, and by then, the Land together with other properties were registered as the properties of the Tso.

8. On 25 July 1961, the plaintiff and another person were appointed as the managers of the Tso in place of Chau Yu Tsun. Since 23 December 1961, the plaintiff has become the sole manager of the Tso.

9. On 23 September 1963, the plaintiff, as manager of the Tso, surrendered Lot No 420RP to the Government in exchange for Lot No 638 which is adjacent to the Land.

(ii)  The chain of title relied on by the defendant

10. As mentioned above, Chau Fuk Li sold the Land to Tsu Un Tai Tso in 1914.  On 19 October 1915, Tsu Un Tai Tso with Tsu Chiu Tong as the trustee transferred the Land to one Tsu Yau Shi.  On 4 February 1961, one Chee Chau Leong succeeded the properties of his mother, Tsu Yau Shi, which included the Land.  Chee Chau Leong died on 2 November 1964. On 4 January 1968, one Chee Su Shyn became the administrator of the estate of his father, Chee Chau Leong, and it was stated in the memorial form in the Land Registry that the Land was one of the properties affected by the Grant instrument.

11. Chee Su Shyn passed away in 1992.  On 16 October 2008, Letters of Administration De Bonis Non was granted to Chee Su Kong alias Chee Su Kiong in respect of the unadministered parts of the estate of Chee Chau Leong.  On 22 June 2009, Chee Su Kong assigned the Land to one Chan Choi Shing.  On 20 August 2009, Chan Choi Shing agreed to sell the Land to the defendant and the sale was completed on 5 October 2009.

12. By reason of the aforesaid, there were double entries in the record of the Land Registry and both the Tso and the defendant were registered as the separate owners of the Land.

(iii)  The dispute in the present case

13. On 22 September 2009, some workers engaged by the defendant entered the Land, destroyed some of the trees planted thereon and fenced off the Land.  As a result, the plaintiff commenced the present action against the defendant claiming ownership and vacant possession of the Land.

14. The plaintiff is relying on the following 2 grounds in support of the claim:

(i)  the plaintiff has obtained proper title to the Land from the plaintiff’s predecessors in title;

(ii)  or alternatively, the plaintiff has been in continuous adverse possession of the Land since 1963.

I will deal with these issues in turn.

THE CLAIM AS THE LAWFUL PAPER OWNER OF THE LAND

15. Mr Ko, counsel for the plaintiff, quite sensibly, is not pressing the plaintiff’s case as the lawful paper owner in his final submission.  To me, this argument is wholly untenable.  Although the proper assignment is missing in the record of the Land Registry, there is a memorial form showing that Chau Fuk Li conveyed the Land to Tsu Un Tai Tso in consideration of $25 on 25 July 1914.  By reason of such conveyance, Chau Fuk Li had divested himself of all his legal and beneficial interest in the Land, and it therefore follows that the Land was wrongly included as the property of the Tso in the instrument “Succession to Property” dated 6 April 1932.

16. On the other hand, based on the record in the Land Registry, the defendant can properly establish the chain of title in respect of the Land as mentioned in paragraphs 10 and 11 above.  In such circumstances, I have no hesitation in finding that the defendant is the lawful paper owner of the Land.

THE CLAIM ON ADVERSE POSSESSION

(i)  The legal principles

17. That leaves only the claim on adverse possession.

18. There is no dispute about the following established principles governing a claim for adverse possession:

(i)  a person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess (animus possidendi), and the burden is on the squatter to establish these elements; and

(ii)  in the absence of evidence to the contrary, the owner of the land with the paper title is deemed to be in possession of the land.

19. On the question of factual possession, Slade J said the following in Powell v MaFarlane (1977) 38 P & CR 452 at p 470:

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

20. On the question of the requisite intention to possession, Slade J also said the following in Powell and McFarlane, supra, at p 471:

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

21. According to these trite principles, both factual possession and requisite intention to possess are questions of fact which would depend on the circumstances of each particular case.  Hence, my first task is to resolve the factual dispute between the parties.

(ii)  The evidence in support of the plaintiff’s case

22. At the trial, 4 witnesses testify in support of the plaintiff’s case: the plaintiff, the plaintiff’s son Mr Chow Yuet Yin (“the Son”), and the plaintiff’s neighbours Mr Chow Wai Duen (“Mr Chow WD”) and Mr Kwok Fat Yao (“Mr Kwok”).

23. The plaintiff is the main witness and he is now 92 years of age.  When he was a young boy, he was told by his father Chau Fuk, who passed away in 1930, that his father moved to live in the house in Lot No 276 RP (“the House”) in around 1910s.  In fact, ever since the plaintiff was born in around 1920, he had been living in the House as his home.

24. On the south side of the House, his father had built a retaining wall which was adjacent to a public road.  On the east side of the House is Lot No 741.  Since Lot No 741 was situated on a small cliff in the old days, no wall barrier was built on the east side of the House.  On the west side of the House are Lot Nos 409 and 448 which belong to the Liu’s Family. In the old days, there was a water drain on the west side of the Land separating the lands of the two families.  On the north side of the House, there is a slope leading up to a small hill.  The north side of the House was fenced off by some bamboo plantation in the past.

25. Ever since he was a small boy, the plaintiff’s family had been using the Land to grow sweet potato the shoot of which was used to feed the pigs.  When the plaintiff’s family ceased to rear pigs in 1970s, the plaintiff used the Land for the growing of fruit trees and crops.

26. In order to gain access to the Land, unless one tried to climb over the wall barriers, one normally had to go through the front gate of the House.  The plaintiff also confirms that, prior to the construction of the stepped concrete footpath in around 1985, one could not gain access to the Land from the east side of the House.

27. In 1963, the plaintiff surrendered Lot No 420RP to the Government in exchange for Lot No 638.  Lot No 638 is situated on the slope adjacent to the Land.  Without owning the Land, Lot No 638 would be quite useless to the plaintiff.  This land exchange, according to the plaintiff, shows that he has all along regarded the Land as his own land.

28. Disagreeing with the defendant’s evidence, the plaintiff claims that no person other than the plaintiff’s family has ever exercised control over the Land or used the Land for agricultural or any other purposes. He also testifies that, throughout the years, the Tso has been paying Crown or Government rent to the Government in respect of the Land.

29. The plaintiff’s second witness is the Son who was born in 1961.  He has been living in House since his birth.  In respect of the use of the Land by his family prior to his birth, his knowledge mainly comes from his father.  However, he is able to confirm, from his own knowledge as a small boy, that his family had been using the Land to grow sweet potato the shoot of which was used to feed the pigs.  After the plaintiff ceased rearing pigs near the House in around 1975, the plaintiff used the Land to grow fruit trees and crops.

30. When the Son was a young boy, there was heavy bamboo plantation on the north side of the House, but the quantity of bamboo has decreased throughout the years.  Unless someone tried to climb over a barrier of some sort, one could not gain access to the Land from the east side of the Land.  He also confirms that there was a partition wall on the west side of the Land.

31. The plaintiff’s third witness is Mr Chow WD.  He is now 65 years of age and he is a part-time lecturer of the Hong Kong Polytechnic University.  Apart from the periods between 1969 to 1982 and 1995 to 1999 respectively when he was staying in England, Mr Chow WD resided in Sai Kung in a place near to the Land.  He had to pass by the House and the Land nearly every day in order to get to Sai Kung town centre.  Further, he had visited the House of the plaintiff on some occasions to attend meetings organised by the Government for the farmers who were in the pig rearing business.

32. According to Mr Chow WD, the plaintiff’s family members have all along treated the Land as their own land, and they had been growing sweet potato, fruits and crops in the stepped fields (梯田) in the Land.  Hence, he was surprised when defendant’s workers fenced off the Land in 2009.

33. The plaintiff’s fourth witness is Mr Kwok.  He is now 77 years of age.  From 1960’s to 2010, he lived near to the House and the Land, and he had to pass by the plaintiff’s House frequently in order to get to the town centre of Sai Kung.  He confirms that the plaintiff’s family had been using the Land to grow fruits and crops throughout these years.

(iii)  The evidence in support of the defendant’s case

34. The defendant’s only witness is Mr Tam Yat Kwan (“Mr Tam”).  According to Mr Tam, he was entrusted by the former owner of the Land, the Chee’s Family, to manage the Land from early 1980 to 2009.

35. Mr Tam is now 59 years of age and he was born and educated in Sai Kung.  He has been living in Sai Kung throughout the years.  Since Mr Tam has been engaging in real properties business in Sai Kung, he has been entrusted by many landowners in Sai Kung to collect rent on their behalf if they emigrated elsewhere.

36. According to Mr Tam, Chee Chau Leong inherited the Land from Tsu Yau Shi in 1961.  Chee Chau Leong had 3 sons, and the Chee’s Family had moved and settled in Sabah in Malaysia in 1930s or 1940s.  Mr Tam has known the 3 brothers of the Chee’s Family for more than 20 years.  Chee Chau Leong passed away in Sabah in 1967 and the Land was succeeded by one of his sons, Chee Su Shyn, as the administrator of the estate.  Including the Land, the Chee’s Family owned about 5 lots of land in Sai Kung.

37. According to Mr Tam’s understanding, Chee Chau Leong’s mother had used the Land for cultivation many years ago.  In 1960s, Mr Tam learnt from Chee Su Shyn that the Chee’s Family had authorised one Madam Liu to manage the land of the Chee’s Family in Sai Kung.  Mr Tam knew Madam Liu personally as he was a schoolmate of Madam Liu’s daughter.  When he was young, he went to Madam Liu’s home to play quite often.  By that time, he was told by Madam Liu that she had been authorised by the Chee’s Family to grow vegetables and plants on the Land for self consumption.  Furthermore, Madam Liu would often inspect the lands owned by the Chee’s Family and paid land tax to the Government on behalf of the Chee’s Family.

38. Madam Liu passed away in 1980s.  After her death, Chee Su Shyn authorised his uncle, Tang Hin Wing (“Mr Tang”), to manage the lands of the Chee’s Family.  A power of attorney was executed by Chee Su Shyn in favour of Mr Tang in 1985 to facilitate the latter to deal with the lands of the Chee’s Family.

39. Mr Tang had actually emigrated to the United Kingdom in 1960s.  Having obtained the consent of the Chee’s Family, Mr Tang had authorised Mr Tam to manage the lands of the Chee’s Family since 1980.

40. Mr Tam had been paying land tax for the Land from 1984 to 1998.  However, since the law firm handling the matter had ceased business, all the relevant receipts were lost.  Every time when the 3 brothers of the Chee’s Family were in Hong Kong, he would accompany them to inspect the lands of the Chee’s Family about 3 to 4 times in total.  Mr Tang passed away in 1996 or 1997.

41. Mr Tam himself lived very close to the Land. From his observation, no traces of human occupation of the Land could be found throughout the years.  He also confirms that there are and were various ways to gain access to the Land without passing through the House of the plaintiff.

42. Chee Su Shyn died in 1992.  By that time, part of the estate of Chee Chau Leong had remained unadministered.  Chee Su Kong, who was the brother of Chee Su Shyn, then instructed a law firm to deal with the matter.

43. In 2002, Chan Choi Shing was interested in purchasing the Land.  Chee Su Kong and Chan Choi Shing later signed an agreement for the sale of the Land in the sum of $1,000,000.  In 2008, after the court granted a Letters of Administration in respect of the estate of Chee Chau Leong to Chee Su Kong, the latter formally assigned the Land to Chan Choi Shing, who subsequently sold the Land to the defendant at the price of $4,800,000 in 2009.

44. Mr Tam’s wife is a relative of the plaintiff. Throughout the years, he has never heard that the Land belonged to the plaintiff or the Tso.

(iv)  Observations made in the site visit

45. The court has conducted a site visit on the second day of the trial.

46. According to the observations made in the site visit, the Land and its surroundings are very much the same as described by the witnesses in the witness statements or shown in the exhibited photographs.

47. The Land is actually quite near to the town centre of Sai Kung, and it is adjacent to the Hiram’s Highway which is the main road connecting Kowloon and Sai Kung.  The House is situated in Lot No 276RP. On the south side, there is a barrier wall of about 4 to 5 feet high running all the way from the House in the east to the adjacent Lot Nos 409 and 484 in the west (though there is a narrow stretch of Government land between the Land and Lot Nos 409 and 484).  On the east side is the small housing development known as Sun Fuk Yuen.  Between Sun Fuk Yuen and the House, there is a stepped concrete footpath leading from the main road to the houses in Lot No 975, which is immediately adjacent to Lot No 276RP on the north side.  Lot No 975 was formerly owned by the Tso but it was developed by the plaintiff as a small housing development in 1980s.  There is no dispute that the stepped concrete footpath was built in about 1985 for the small housing development in Lot No 975.

48. On the north side of the House, there is a slope leading to a small hill.  In the elevated area on the north side, there is a small housing development known as Sun King Terrace.  There is a footpath leading from the main road to Sun King Terrace.  On the south side of this footpath, I notice that there is some bamboo plantation which appears like a natural barrier in the north side of the House.  However, I would not describe such plantation as a dense one.

49. On the west side of the House is the Land. Although there is a narrow stretch of Government land between Lot 276RP and the Land, there is some concrete pavement in that stretch of Government land making the pavement looks like the backyard of the House.

50. The Land is situated on a slope running from the elevated part in the north to the lower part in the south.  The Land is now fenced off by the defendant.  Inside the Land, I can see a few fruit trees though I cannot tell whether they are longan or banana trees.  Lot No 638 comprises of 2 tiny plots of land on the north and west side of the Land on the slope. Without the Land, Lot No 638 would be quite useless.

51. Further on the west side are Lot Nos 409 and 484 which belong to the Liu’s Family.  There is a drainage duct in the Government land between the Land and the lands of the Liu’s Family.

(v)  Expert evidence on the aerial photos

52. The parties have obtained the aerial photos of the Land and its surroundings from 1963 to 1985.  Expert evidence has also been obtained about the interpretation of these photos.

53. There is actually no dispute between the experts about the interpretation of these photos.  They both agree the following:

(i)  the Land was under full cultivation in 1963 and 1964;

(ii)  from 1968 to 1985, the northern and western portions of the Land were covered with bushes and trees, which indicates that cultivation had ceased on these portions of the Land in the relevant period;

(iii)  the south-eastern corner of the Land was under cultivation from 1968 to 1978;

(iv)  no cultivation can be observed on any part of the Land after 1978;

(v)  from 1963 to 1985, the Land was not fenced off although the retaining wall on the south side of the Land was there all the time; and

(vi)  from 1963 to 1982, there was a stepped footpath in the narrow stretch of Government land on the west side of Lot No 975, and the stepped footpath was replaced by concrete steps in 1985.

54. The aerial photos also show the construction of the small housing development in Lot No 975 from 1983 to 1985.  At that time, the south-eastern portion of the Land was used as an access path or roadway for the construction work in Lot No 975.

(vi)  Assessment of the factual evidence

55. There is no serious factual dispute between the witnesses about the physical surroundings of the Land.  The main factual dispute is about the use and occupation of the Land in the relevant period from 1963 to 1985.

56. Having carefully considered the evidence of the various factual witnesses, I prefer to accept the evidence of the plaintiff’s witnesses based on the following reasons.

57. Firstly, the plaintiff and the Son are able to testify based on their personal knowledge about the use and the condition of the Land throughout the years.  On the other hand, Mr Tam has to rely on the hearsay evidence of Madam Liu to testify on the same issue.  Without the opportunity of verifying the truth of such hearsay evidence by way of cross-examination, the evidence of the plaintiff and the Son is certainly more reliable.

58. Secondly, the plaintiff’s case is supported by the evidence of 2 independent witnesses, Mr Chow WD and Mr Kwok, who have no interest in the outcome of the litigation.  Although these witnesses may have known the plaintiff’s family for quite some time, I do not accept that they would have fabricated the evidence with a view to support the plaintiff’s case.  In particular, Mr. Chow WD, who is very much an educated person, does not appear to me to be a person who is willing to sacrifice his integrity just for the purpose of winning the case for his neighbour.  As he had to pass by the Land quite often before he left for England in 1969 and he had visited the plaintiff’s House on many occasions, I find his evidence reliable.

59. Thirdly, the plaintiff’s conducts throughout the years also support his claim.  In 1963, the plaintiff acquired Lot No 638 through land exchange with the Government.  Without owning the Land, Lot No 638 was quite useless to the plaintiff.  Further, the plaintiff immediately called the police when defendant’s workers fenced off the Land in 2009.  These undisputed conducts certainly show that the plaintiff has all along treated the Land as his own land.

60. Fourthly, the aerial photos show that the Land was under heavy cultivation in 1963 and 1964.  Such observation is certainly more in line with the plaintiff’s case that his family had been growing sweet potato in the Land at the relevant period, the shoot of which was used to feed the pigs.  On the other hand, the defendant’s case is that, with the permission of the Chee’s Family, Madam Liu was only using the Land to grow some crops for her self-consumption, the scale of which should not have been too large.  Hence, the heavy cultivation shown in the aerial photos is certainly more consistent with the plaintiff’s case.

61. I myself also have great reservation about the creditability and reliability of Mr Tam’s evidence.

62. Firstly, I doubt whether Mr Tam can be regarded as a truly independent witness.  Although he may not have any direct interest in the outcome of the litigation, the evidence shows that Mr Tam was closely involved in the sale of the Land to Chan Choi Sing who was the defendant’s immediate predecessor in title.  In fact, it was Mr Tam who had introduced Chan Choi Sing to the Chee’s Family.  Further, Mr Tam is involved in real properties business in Sai Kung, and he has been entrusted by many landowners in Sai Kung to take care of their lands and to collect rent on their behalf.  If the defendant loses the present litigation, it may suggest that Mr Tam might not have been doing his job properly, which may in turn adversely affect his real properties business. Hence, one must always approach Mr Tam’s evidence with a certain degree of caution.

63. Secondly, Mr Tam used to live very close to the Land, and yet he testifies in cross-examination that he had not seen any cultivation or farming activities in the Land.  If what Madam Liu had told him is the truth, it is quite inconceivable that in all those years, he had not seen Madam Liu cultivating in the Land.

64. Thirdly, in around 1983 and 1984, there was certain construction work in Lot No 975.  Trees in a large part of the Land were cut down and the south-eastern portion was used as a pathway for the construction work in Lot No 975.  When he is asked in cross-examination, Mr Tam admits that he knew about the construction work carried out by the plaintiff, and yet he had not confronted the plaintiff or his workers about their unauthorised use of the Land.  According to his explanation, such kind of short-term borrowing of land was quite common in New Territories.  So long as the plaintiff restored the Land to its former status, he did not see the need to confront the plaintiff.

65. I do not accept Mr Tam’s explanation.  It can be seen from the aerial photos that a lot of trees or plantation in the south-eastern portion of the Land had been cleared for the pathway.  The damage to the Land was substantial to the extent that Mr Tam saw the need to make a phone call to the Chee’s Family in Malaysia to report the matter, and yet he had not confronted the plaintiff.  To me, this does not make a lot of sense. In particular, as there was no clear demarcation of the Land, there was a real danger that the plaintiff might treat and occupy certain part of the Land as his own, or simply refused to reinstate the Land to its former status.  In my judgment, the absence of protest and inaction on the part of Mr Tam certainly cast doubt on the creditability of his evidence.

66. Mr. Pun, counsel for the defendant, tries to challenge the creditability of the plaintiff’s witnesses on the following grounds:

(i)  the written statements of the plaintiff’s witnesses, in particular those of the plaintiff and the Son, are substantially the same, and so it is likely that their witness statements were prepared by someone else and their evidence had been coached;

(ii)  there are some discrepancies between the oral evidence of the plaintiff and his written evidence in the witness statement;

(iii)  there is some confusion in the evidence as to whether there was a partition wall between the lands owned by the Liu’s Family and the west side of the Land; and

(iv)  the evidence of the Son and Mr Chow WD about the use of the Land is inconsistent with the condition of the Land shown in the aerial photos.

67. Despite Mr Pun’s able submission, I do not find that any of these arguments would undermine the creditability of the plaintiff’s witnesses.  In particular, I am quite impressed with the evidence of the plaintiff himself.  He is now 92 years old.  Contrary to the observation of Mr Pun, the plaintiff is able to answer most of the questions put to him in a straight-forward manner.  Despite his age and perhaps some difficulty in expressing himself, the plaintiff makes no attempt to evade any questions put to him.  If his evidence has been coached, I do not think that he can survive the vigorous cross-examination by Mr Pun.  I therefore accept his evidence as the truth.

68. In his oral testimony, the plaintiff seems to agree that some of the evidence or descriptions in his written witness statement might not have come from him, for example, the description of the retaining wall as “Hakka Village style” wall.  However, taking into account the age of the plaintiff, it was possible to have some genuine miscommunication when the plaintiff’s legal advisers took instructions from him in preparing the witness statement.  In any event, these “inconsistencies” are not material to the main issues of the case.

69. There may also be some “confusion” in the evidence of the plaintiff’s witnesses as to whether there was, in the past, a partition wall on the west side of the Land.  Again, such alleged confusion is not material to the main issues of the case.  Further, as shown in the photographs taken on the west side of the Land in around 1992 prior to the carrying out of the drainage work by the Government (Exhibit P-2), the stone wall facing the main road was rather high.  On the west side facing the lands of the Liu’s Family, there was apparently a low barrier of about 2 to 3 feet in height.  If one had to gain access to the Land from the west side, he or she might still have to climb over such low barrier.  In fact, that is also the case now as I observe in the site visit.  Whether such low barrier should be described as a partition wall may depend on the perception of different persons, and so in my judgment, such alleged confusion should be allowed to discredit the evidence of the plaintiff and the Son.

70. Mr Pun also argues that the condition of the Land shown in the aerial photos do not support the plaintiff’s case.  According to the Son, the plaintiff’s family has ceased cultivating in the Land in around 1972 or 1974, but the aerial photos show that the south-eastern corner of the Land was under cultivation from 1968 to 1978.  On the other hand, Mr Chow WD’s evidence on the growing of vegetables on the Land between 1983 and 1994 is not consistent with the evidence of the experts that there was no cultivation in the Land after 1978.

71. I again have to disagree.  The aerial photos clearly show that the Land had been used for cultivation from at least 1963 to 1978.  The scale of cultivation shown in the aerial photos is certainly consistent with the evidence of the plaintiff’s witnesses about the use of the Land.  As to what happened after 1978, the aerial photos might not have captured all the crops that were being grown in the Land at that particular time.  For example, if someone was planting some crops in a small scale underneath the trees, it may not be shown in the aerial photos.  In fact, the drainage duct and the low barrier on the west side of the Land (as shown in the photographs in Exhibit P-2) cannot be found in the aerial photos because they were covered by the trees.  Hence, one has to take into account the limitation of the aerial photos in assessing the creditability of the witnesses.

72. Based on the aforesaid analysis and on the balance of probabilities, I accept the evidence of the plaintiff’s witnesses in its entirety and reject that of the defendant’s witness Mr Tam.

(vii)  Factual possession and animus possidendi

73. Based on the evidence of the plaintiff’s witnesses, it would not be too difficult for the court to find that the plaintiff had factual possession of the Land in the period, at the very least, from 1963 to 1985 and he had the requisite animus possidendi.

74. As observed by Cockburn CJ in Seddon v Smith (1877) 36 LT 168, at p 169 and Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487, at p 511A, enclosure is usually the most cogent evidence of adverse possession and dispossession of the paper owner.  Whether the squatter has taken sufficient steps to enclose the land depends on the facts and circumstances of each individual case.  Based on the evidence here, I am satisfied that the plaintiff has discharged such burden.

75. On the south side, there was a retaining wall running all the way from the House in the east to the lands owned by the Liu’s Family in the west.  The aerial photos show that the retaining wall existed in the relevant period from 1963 to 1985.  I understand that the wall had been rebuilt after the roadwork for the expansion of the main road, but I have every reason to believe that the retaining wall has been there since 1910s.

76. Mr Pun submits that, according to the aerial photos, the retaining wall was much shorter and did not extend all the way to the lands of the Liu’s Family.  However, as I have mentioned above about the limitation of the aerial photos, part of the wall underneath the trees might not be shown in the aerial photos.  In fact, the photographs in Exhibit P-2 show exactly that, and the retaining wall did, in the past, extend all the way to the lands of the Liu’s Family, but it was covered by the trees on top.  With the existence of such retaining wall which was of considerable height, it certainly conveyed a message to the whole world and the paper owner that the lands behind the wall were enclosed and belonged to the same person, ie. the Chau’s Family.

77. On the east side, I accept the evidence of the plaintiff and the Son that there was a slope between the House and Lot No 741 in the east.  In such case, the slope was a natural barrier prior to 1985. After the development of Lot No 975 in around 1985, there was a stepped concrete footpath.  However, if one was using such means of access, he or she would have to pass through the private properties in Lot No 975 to go to the Land, which would give the impression that one was entering some sort of enclosed private property.  In any event, what happened after 1985 was quite irrelevant, as the title of the defendant’s predecessor might already have been extinguished in 1983 which was 20 years after the commencement of the adverse possession in 1963.

78. On the north side, the slope is and was a natural barrier.  From that side, the only practical way to gain access to the Land was from the footpath leading from the main road to Sun King Terrace. However, the plaintiff’s family had planted bamboo there as a natural fence to prevent trespassers to gain access to the Land from the north.  I accept the evidence of the plaintiff’s witnesses that the bamboo plantation was quite dense in the past.

79. On the west side, there had been drainage work carried out by the Government.  The photographs in Exhibit P-2 show the condition of that area prior to the carrying out of the drainage work.  Just like the present, one had to climb over a low wall to gain access to the Land from the west.  Although it was not too difficult to climb over such low wall, it was still a barrier to an outsider.

80. Based on the aforesaid, I am satisfied that the plaintiff has made it plain to the world at large that he has intended to exclude the paper owner as well as strangers from the Land.

81. During the site visit, Mr Pun shows me that there are various ways for an outsider to gain access to the Land, including climbing over the retaining wall on the south side of the Land, climbing over the low stone barrier on the west side of the Land, passing through the light bamboo plantation on the north side, or climbing over the barrier on the east side of the House prior to 1985 or using the concrete footsteps after 1985. Hence, he submits that there was no sufficient enclosure in the present case.

82. I disagree.  As observed by Lord Halsbury LC in Marshall v Taylor [1895] 1 Ch 641,645:

“The true nature of this particular strip of land is that it is enclosed. It cannot be denied that the person who now says he owns it could not get to it in any ordinary way. I do not deny that he could have crept through the hedge, or, if it had been a brick wall, that he could have climbed over the wall; but that was not the ordinary and usual mode of access. That is the exclusion – the dispossession – which seems to me to be so important in this case.”

83. These dicta are also applicable in the present case.  Whether the squatter has established factual possession and animus possidendi depends on the facts of each individual case.  Unlike many other cases where the land in question is an open land, the Land here is situated on a slope.  Apart from the natural barriers, the plaintiff and his family had taken steps to enclose the Land, including the building of the retaining wall on the south side and the planting of bamboo on the north side.  Further, one of the peculiar features in the present case is that the plaintiff has all along been under the mistaken belief that the Land belonged to the Tso, and that is why the plaintiff’s family had used the Land for cultivation purposes for many years.  There is also concrete pavement in the narrow stretch of Government land between the House and the Land, and the whole surroundings give me the impression that the Land is the backyard of the plaintiff’s House.  That should also be the perception to a reasonable person, and that also explains why Mr Chow WD and Mr Kwok at all material times regarded the Land as owned by the plaintiff and the Chau’s Family.  In such circumstances, I find, as a matter of fact, that the plaintiff has established the necessary factual possession and animus possidendi.

84. Mr Pun also refers me to the decision of M Chan DHCJ in Wai Wah Traders Limited v Wong Yim trading as Creative Advertising Design Company, unreported, HCMP No 965 of 2000 (decision on 8 December 2011), in which the court held that the squatter there had failed to establish the necessary animus possidendi.  However, whether the squatter has established the necessary animus possidendi is a question of fact depending on the circumstances of each individual case, including the natural landscape of the land in question.  Hence, I do think that this decision can take the defendant’s case any further.

85. In considering the claim on adverse possession, I have not attached any weight to the issue as to who was paying the Government rent or land tax for the Land throughout the years.  To me, both the plaintiff’s and the defendant’s evidence in this regard is quite unsatisfactory.  In any event, such factor should play very little role in determining the issues of factual possession and animus possidendi in the present case.

(viii)  Other challenges to the claim for adverse possession

86. The defendant also challenges whether the plaintiff or the Tso is the proper plaintiff in the present case, and whether the Tso is capable of being an adverse possessor.

87. In my judgment, these challenges are also without merit. Firstly, it is clear in the Re-Re-Amended Statement of Claim that the plaintiff is bringing the present action both on his own behalf and on behalf of the Tso. Hence, if the court finds that either the plaintiff or the Tso is the adverse possessor, the plaintiff has the locus to maintain the claim against the defendant.

88. According to the evidence in the present case, it is clear that the adverse possessor is the Tso and not the plaintiff personally.  After the Land was wrongly included in the instrument “Succession to Property” dated 6 April 1932, the plaintiff and his family have all along regarded the Land as the Tso’s property.  Hence throughout the years, the plaintiff and his family have been occupying the House and the Land on behalf of the Tso.  Under such circumstances, the Tso should be regarded as the proper adverse possessor.

89. The second challenge is that the Tso is not capable of being an adverse possessor in law.  According to Mr Pun, a tso is an ancient Chinese institution of ancestral landholding, or ancestral worship trust, whereby land derived from a common ancestor is enjoyed by his male descendants for the time being, living for their lifetimes and so from generation to generation indefinitely.  There is no case law which shows that a tso is capable of being an adverse possessor.  As adverse possession is a common law principle which is alien to Chinese customary law, Mr Pun doubts whether the Tso is capable of being an adverse possessor in the present case.

90. Whilst I agree that the circumstances under which a tso is able to maintain a claim of adverse possession are rather limited, there is no particular reason why a tso is incapable of being an adverse possessor. The Land was wrongly included as part of the properties of the Tso in 1932.  After that, the plaintiff and his family members were under the mistaken belief that the Land belonged to the Tso, and they used and occupied the Land as if the Tso was the lawful owner of the Land.  On the evidence, the plaintiff has been in adverse possession of the Land since 1963, and as a result the title of the defendant’s predecessor had been extinguished in 1983 under the then applicable ss 7 and 17 of the Limitation Ordinance, Cap 347.  As the requisite factual possession and animus possidendi have been proved, there is nothing in principle which prevents the Tso, being an ancient Chinese institution of ancestral landholding recognized by the law, from acquiring the possessory title to the Land.  Hence, there is no merit in these challenges.

CONCLUSION

91. By reason of the aforesaid, I rule the case and the issue of adverse possession in favour of the plaintiff.  As the parties may like to make further submission on the final wording of the order, I just make an order nisi in terms of paragraphs 2, 3, 4 and 5 of the Re-Re-Amended Statement of Claim and that the costs of the action be to the plaintiff.  The order nisi shall be made absolute 14 days after the handing down of this Judgment.