LOK KIN CHUEN v. THE INCORPORATED OWNERS OF LOCKHART HOUSE

DCCJ 1343/2022

[2025] HKDC 659

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1343 OF 2022

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BETWEEN

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JUDGMENT

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Background

1.  Lok Kin Chuen is the plaintiff in this action (“the plaintiff”) seeking adverse possession of an L-shaped storeroom with a single locked door entrance situated on the roof (“the storeroom”) of Tower Block A of Lockhart House, 441-445 Lockhart Road, Wan Chai, Hong Kong (“the building”). The statement of claim has annexed to it a plan where the storeroom is shaded green and marked with a “G” for identification purposes.

2.  Lockhart House is comprised of 2 towers, namely the building which consists of 26 floors for residents and the parallel Tower B (“Tower B”) consists of 13 floors for residents with each of the said towers’ residential floors built on top of a 3-floor commercial podium (“Lockhart House”). It is agreed that the storeroom is a common part of the building under the deed of mutual covenant of Lockhart House which was executed on 6 June 1979 (“the DMC”) and the Building Management Ordinance, Cap 344 (“the Building Management Ordinance”).

3.  The parties agree that the plaintiff was never a co-owner or a party to the DMC.

4.  The incorporated owners of Lockhart House act as the defendant (“the defendant”) in this action. Guardian Property Management Limited (“Guardian”) was the manager of Lockhart House between 6 June 1979 and September 2019 and Kong Shum Union Property Management Limited (“Kong Shum”) has been the manager of Lockhart House since October 2019 to date.

5.  There are 2 staircases that are the only means of access connecting to the roof of the building where the storeroom is located atop.

6.  It is the plaintiff’s case that he has occupied and enjoyed exclusive possession of the storeroom as his home since around mid-1981 without the license or permission of others, this would include the defendant or the building manager. At about this same time in mid-1981, the plaintiff allegedly replaced the storeroom’s door’s existing lock with his own lock (“the plaintiff’s lock”) to which he has kept the only key (“the plaintiff’s key”) and no other copy has been given to any other person.

7.  It will be a feature in this judgment that the plaintiff contends that the plaintiff’s key or a copy thereof was never kept at the guard post on the ground floor of the building (“the Guardian key-box”) since the plaintiff’s lock was installed. In fact, the plaintiff’s case is that access to the storeroom was subject to the permission of the plaintiff.

8.  The plaintiff’s evidence is that the storeroom has been subject to his exclusive occupation as seen in, inter alia, various photos of the storeroom showing a bed, refrigerator, desk, television, cooking related items, air conditioner, chair and other miscellaneous items. It is also admitted that there was no water supply or sanitary facilities available in the storeroom.

9.  It is also a part of the plaintiff’s case that a fixed land line telephone service was registered in the plaintiff’s name and installed in the storeroom in about 1989 (“the plaintiff’s telephone line”).

10.  The plaintiff’s telephone line was installed partly because it assisted with the plaintiff’s sole proprietorship business named Chuen Kee Cleaning Company (“Chuen Kee”) which is a cleaning and waste disposal service company owned and operated by the plaintiff.

11.  Later discussed in this judgment, the storeroom was licensed to various telecommunications companies for the installation, operation and maintenance of transceiver base-stations from around 1997 to March 2022 (“the base-stations”). As such, the defendant maintained at trial that, inter alia, the manager and/or owners of the building could access the storeroom when necessary and also where staff or representatives of the various telecommunication companies needed to deal with the base-stations. Opposite to the defendant’s said position, the plaintiff maintained at trial that the storeroom was controlled solely by him and that access to the storeroom to deal with the base-stations or otherwise required his permission.

12.  The defendant’s position is that, inter alia, the plaintiff was granted a licence by the manager and/or owners of Lockhart House to use the storeroom which is denied by the plaintiff and elaborated on later in this judgment.

13.  Additionally, between 1997 to December 2019, Chuen Kee was then engaged by the manager of Lockhart House through another cleaning company, Swan Hygiene Services Limited (“Swan Hygiene”) to provide cleaning and waste disposal services which would at times take place at Lockhart House which is agreed by the plaintiff. The parties disagree on whether the plaintiff’s occupation of the storeroom was permitted due to, inter alia, the plaintiff’s role in providing cleaning and waste disposal services at the building.

14.  As typical in such cases, the relief sought by the plaintiff is for declarations that the plaintiff has been in adverse possession of the storeroom, the defendant’s title to the storeroom has been extinguished by virtue of the Limitation Ordinance, Cap 347 (“the Limitation Ordinance”) and the plaintiff has acquired a possessory title to the storeroom. Also typical in such cases, the relief sought by the defendant by way of counterclaim is for possession of the storeroom, damages for trespass to be assessed and mesne profit from 1 December 2019 until vacant possession of the storeroom at an agreed rate of HK$9,200 per month.

Joint statement of issues

15.  The parties have very helpfully filed a joint statement of issues that was filed on 13 July 2023 with the 4 issues listed as being:

“1. Whether the plaintiff has been in continuous and exclusive possession of the Rooftop Storeroom for over 20 years since mid-1981 or at least 12 years before the commencement of this action (i.e. 27 April 2022)?

2. Whether P has the requisite animus possidendi?

3. Whether P has acquired a possessory title to the Rooftop Storeroom by way of adverse possession?

4. If P’s adverse possession is not established, whether D is entitled to vacant possession of the Rooftop Storeroom and damages for trespass?”

16.  Counsel for the defendant, Mr Li Pak Hei, has fairly submitted that the first 2 issues of the joint statement of issues are the key issues in this case whereas the last 2 issues concern the appropriate relief pending this court’s determination on whether the plaintiff has or has not established adverse possession.

Legal principles

17.  The parties in their helpful submissions identified the relevant legal principles relating to the present case, many of which are largely agreed.

18.  Counsel for the plaintiff, Mr Bernard Lam, as well as Mr Li, both agree that the starting point for the plaintiff’s case is with sections 7, 8, 13 and 17 of the Limitation Ordinance which the relevant parts thereof provide that:

“7(2) No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person…”

“8(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

“13(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall be deemed to accrue unless and until adverse possession is taken of the land.”

“17. Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land … the title of that person to the land shall be extinguished.”

19.  Both parties also agree that if the right of action accrued before 1 July 1991, the applicable limitation period is 20 years as per Tang Moon Lam (鄧滿林), the person appointed to represent the estate of TANG SHAU KI (鄧壽祺), deceased v Tang Ying Yeung (鄧英揚) [2019] 5 HKLRD 556 at §50, whereas if the right action accrued after 1 July 1991, the applicable limitation period is 12 years, as per Tang Moon Lam (ibid) at §§27, 45.

20.  Both parties again agree that the leading authorities held that for adverse possession to be established, it is for the plaintiff to firstly prove that there was factual possession and then secondly to prove the intention to possess, animus possidendi, as held in Powell v McFarlane (1979) 38 P&CR 452 and approved in The Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588.

21.  For the first element of adverse possession, the plaintiff is required to establish factual possession. Powell v McFarlane cited in Incorporated Owners of San Po Kong Mansion (ibid) §7:

“(3) Factual possession signifies an appropriate degree of physical control. … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances … It is clearly settled that acts of possession done on 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 establish title to the whole area must, however, be a matter of degree…. 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.”

22.  In relation to factual possession, Mr Lam for the plaintiff has further re-emphasized Powell v McFarlane at 478 in the greater sense where referring to Cockburn CJ in Seddon v Smith (1877) 36 LT 168, CA at 169:

“Enclosure is the strongest possible evidence of adverse possession,” though he went on to add that it was not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too is the locking or blocking of the only means of access.”

23.  In the more discrete sense where referring to a flat, Mr Lam also referred to Choi Yat Fan Yildiz, Administratrix of the estate of Ng Ket Chiew, Deceased v The Occupier (S) & Anor [2024] HKDC 1032 §§87, 120(1) where the attitude of the paper owners in that case were being nonchalant in relation to “Disputed Land” and it was considered that the changing of the lock and occupying land was evidence of physical control as per Lambeth London Borough Council v Blackburn [2001] 82 P&CR 39; Pollard v Jackson [1994] 67 P & CR 327 stating that:

“For a flat, changing the lock and occupying it would certainly be evidence of physical control.”

24.  For the second element of adverse possession, the plaintiff is required to establish the intention to possess, animus possidendi, where again Powell v McFarlane was cited in The Incorporated Owners of San Po Kong Mansion (ibid) §7:

“…the animus possidendi 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 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 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 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 as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. (pp 470-472)”

25.  A similar consideration to Choi Yat Fan Yildiz (ibid), was found in Cheung Lai Mui (張麗梅), the executrix of the estate of Cheung Ping Kau and the administratrix of the estate of Cheung Ping Fuk (alias Cheung Bing Fuk) v Cheung Wai Shing (張偉城) & Ors, unreported, HCA 1652/2012, 10 April 2017, Wilson Chan J at §21 referring to Jourdan QC, “Adverse Possession” (2^nd Ed) at §§13-23 to 13-29 where it stated that that “[i]f the squatter controls the entrance to the disputed land, by keeping the door or gate to it locked and holding the key, that is strong evidence that he has the animus possidendi”.

26.  More relevant to the particular facts of the present case is whether the plaintiff’s alleged adverse possession was or was not subject to a licence, whether directly or by third parties.

27.  Mr Li for the defendant cited Lee Siu Fong v Wong Wan Leung, Wong Tang Kin Kennedy, Wong Hung Hee and Wong Siu Chung as the Managers of Wong Wai Tsak Tong (黄維則堂) and anor, unreported, HCA 122/2012, 3 January 2017 for the proposition that occupation under a licence or with the legal owner’s permission does not amount to possession for the purpose of adverse possession as held at §19(iv) and 20, namely:

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

…

20. It is also trite law that occupation under a licence or otherwise with the permission of the legal or paper owner does not amount to possession for the purpose of adverse possession as the occupation is enjoyed under lawful title. In Tsang Foo Keung v Chu Jim Mi Jimmy, it was held that occupation of a hawking stall on a private land under a hawking licence granted by the Government pursuant to the Hawker (Urban Council) By-laws was not possession for limitation purpose. The finding was made following Pang Yiu Chor v Wong Wai Leung and Sze To Chun Keung v Kung Kwok Wai David. These cases have established the principle that there is no adverse possession where the occupation was one by licensee as this will not be possession in his own right. It matters not whether the licence was granted by the paper owner or by someone else. Even if the licence was granted by someone else, the possession will be by the licensor and not by the occupier.”

28.  Mr Lam for the plaintiff cited Kan Kam Cho and anor v Kam Chiu Nam Raymond (2008) 11 HKCFAR 538 at §§37-38 for the proposition that the granting of a tenancy by the paper owner to third parties does not prevent adverse possession by a squatter per se:

“37. Mr McCoy’s submission that the grant of a tenancy by the owner of land interrupts the running of a limitation period against the owner is heterodox and supported by no authority…in Chung Ping Kwan v Lam Island Development Co Ltd [1997] AC 38…

38. The Lord Justice went on to say this: Adverse possession may cease (a) by the occupier vacating the premises, (b) by the occupier giving a written acknowledgment of the true owner’s title … (c) by the true owner’s grant of a tenancy or licence to the occupier … or (d) by the true owner physically re-entering upon the land. There is no mention of the grant by the true owner of a tenancy of the land to a third party. The reason, as I have said, why that event does not bring about a cesser of the adverse possession is that the tenant is claiming through the landlord and the adverse possession, formerly against the landlord, becomes adverse against both landlord and tenant. There is no cesser of the adverse possession.”

29.  To further highlight the point, Mr Lam submitted that in the adverse possession case of Pong Yiu Chuen v Nam Tin Chuk Temple [2021] HKDC 104, His Honour Judge Kent Yee stated that a paper owner’s acquiescence towards a squatter possessing a property does not have the same effect as granting a licence (whether a licence that is implied or by implication) or permission to the squatter at §§144-145:

“144. The inaction of So Yan after the issue of the 1995 Letter could not possibly be taken to be a grant of a licence by implication. It is trite that mere acquiescence cannot be sufficient to establish implied licence: Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd, unreported, HCA 15824/1999, 11.10.2007 at §127 per Lam J (as he then was) and Poon Chi Hang, supra, per Barma JA at §31.

145. Lord Walker giving the leading speech in the House of Lords in R (on the application of Beresford) v Sunderland City Council [2004] 1 AC 889 had this to say about acquiescence in the law of adverse possession,

“… In this area of the law, it would be quite wrong, in my opinion, to treat a landowner’s silent passive acquiescence in persons using his land as having the same effects as permission communicated (whether in writing, by spoke words, or by overt and unequivocal conduct) to those persons. To do so would be to reward inactivity; despite his failing to act, and indeed simply by his failure to act, the landowner would change the quality of the use being made of his land from use as of right to use which is (in the sense of the Latin maxim) precarious.”

Witnesses and evidence at trial

30.  Mr Li for the defendant reminded this court that the credibility of witnesses in this case will be critical for determining the issues that need to be resolved and cited Hua Tyan Development Ltd v Zurich Insurance Co Ltd and anor [2012] 4 HKLRD 827 at §27, namely:

“There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified:

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).”

31.  The evidence of the witnesses and their credibility are important for resolution of this case but I would add that there has also been a paucity of evidence where its absence does have an effect on the outcome of my findings, to be explained later in this judgment.

32.  The witnesses at trial for the plaintiff included the plaintiff himself, 鍾細（世）華 (“Mr Chung”) who is a longtime friend of the plaintiff and王潔敏 (“Miss Wong”) who is the registered owner and resident of Flat 28A3 of the building since February 2000. All of the witnesses for the plaintiff were directly relevant to the resolution of the issues in this case.

33.  The witnesses at trial for the defendant included Mr Mak Yau Kit (“Mr Mak”) who is a member of the management committee of the defendant, Mr Kan Po Law Paul (“Mr Kan”) an employee of Guardian, Ms Lau Yin Hung Wendy (“Miss Lau”) another employee of Guardian and Mr Leung Yiu Kei (“Mr Leung”) yet another employee of Guardian. Other than Mr Kan, the other witnesses of the defendant were of peripheral relevance in this case save for matters which took place after, inter alia, 2018.

34.  Mr Mak has been the authorised representative of Polar Best Limited, a member of the management committee of the defendant since November 2021. Mr Mak does not have any personal knowledge of the events relevant to this case before November 2021 nor has he had discussions with any employees of Guardian, staff of RSS (a company that will be discussed later in this judgment) or former members of the defendant. Mr Mak’s belief of how things operated at the building prior to November 2021, particularly as relating to the storeroom, was by way of assertions of his belief but there has been no or no substantive support for such belief other than through his personal understanding of documents disclosed by the defendant in this case.

35.  Mr Mak’s personal knowledge relevant to this case only arises from after November 2021 when he passed by the storeroom when the door was open and realized the plaintiff was occupying the storeroom for his personal domestic use. Mr Mak was never notified by Kong Shum about any difficulties in accessing the storeroom who has been the manager of Lockhart House since October 2019 to date, nor did Kong Shum inform him that their staff entered the storeroom without the plaintiff’s permission.

36.  It is notable that the defendant never produced the defendant’s key(s) (an item to be discussed) at trial or attempted to open the storeroom with any keys since the commencement of this action.

37.  Although the defendant has submitted it should not be faulted for not producing the defendant’s key(s) since a “key” does not fall within the meaning of “documents”, which is something upon which evidence or information is recorded in a manner intelligible to the senses or capable of being made intelligible by the use of equipment as per Hong Kong Civil Procedure 2024 at §24/2/3. The defendant also submitted that the defendant’s keys photo (another item to be discussed) was disclosed and the defendant cannot be faulted for not listing the physical key as part of its list of documents.

38.  What is important is whether there was the defendant’s key(s) that could open the storeroom was an obvious factual issue that needed to be resolved by this court. Production of the defendant’s key(s) serves a meaningful purpose since their actual existence, let alone their functionality and potential ability to open the storeroom, again was an obvious factual issue to be considered.

39.  Nonetheless, this court does agree with Mr Li for the defendant that the relevant evidence should be focused on the parties’ evidence as to whether there was access to the storeroom.

Issue 1 – Whether the plaintiff has been in continuous and exclusive possession of the Rooftop Storeroom for over 20 years since mid-1981 or at least 12 years before the commencement of this action (ie 27 April 2022)?

40.  This judgment in dealing with Issue 1 spans a fairly long period of time and thus the relevant facts and evidence will be generally outlined and considered in a chronological manner.

41.  The plaintiff did give evidence under cross-examination that further explained his position from his witness statement but also certain key and at times significant evidence was elicited only at trial.

42.  The plaintiff under cross-examination stated that he was born in 1956 and married in 1977, thereafter he became a father with 3 children born in 1978, 1982 and 1986 respectively. The plaintiff’s wife and children were living in Mainland China and he would visit them about twice a year but he has never lived with them in Hong Kong. The plaintiff and his wife separated without being formally divorced but when exactly his separation from his wife occurred was not further stated at trial.

43.  The plaintiff under cross-examination stated that from 1978 to mid-1981 he lived at 16A Des Voeux Building, 25 Des Voeux Road West, Hong Kong (“the Des Voeux Address”) with a relative of his.

44.  From 1981 until about 1997, there was a cleaning company called “麗都公司” (“Lai Dou”) that provided cleaning services at, among other buildings in Hong Kong Island, Lockhart House and Elizabeth House. Elizabeth House is another housing block that is essentially across the street from Lockhart House in Wan Chai.

45.  From a time unspecified but in or about mid-1981 when the plaintiff was employed by Lai Dou, during one day in the afternoon when the plaintiff with another colleague(s) of Lai Dou were sent to clear garbage from the storeroom which they found to be unlocked. After clearing the garbage, the storeroom was left unlocked and the plaintiff returned later that same evening with some cardboard to sleep on. The plaintiff continued thereafter to live in the storeroom instead of the Des Voeux Address as his living quarters. As such, the plaintiff at that stage never dispossessed the storeroom from any particular person or party per se, but simply moved in to the storeroom and started living there since 1981 which was without any person or party occupying that space.

46.  More specifically, from mid-1981 to 1983, the plaintiff was employed by Lai Dou working from the morning to mid-afternoon as a foreman leading his team of 4 persons to patrol Lockhart House and Elizabeth House. The plaintiff would then from evening to after midnight, sometimes as late as 3:00 am, together with his team carried out garbage disposal work from several buildings with the plaintiff being responsible for disposal work at Lockhart House and Elizabeth House. There was some inconsistency in the plaintiff’s evidence about whether he worked the day shift or night shift but ultimately he answered that he returned at night to the storeroom to live in.

47.  The plaintiff was somewhat inconsistent when asked about his general work duties with Lai Dou, such as whether after clearing out garbage at Lockhart House he had to go to various other locations, some in the immediate vicinity such as at Elizabeth House, “Ruby Court” (紅寶石) but then some further away such as Braemar Hill Mansions (賽西湖) which upon further questioning the plaintiff generally answered that for locations other than Lockhart House and Elizabeth House there was a period of time where the plaintiff and 3 of his workers did clean at those other locations in periods of time between 1983 to 1990. The plaintiff maintained that after his garbage clearing duties in the evening he immediately went up to the storeroom.

48.  The plaintiff about some 20 days after first sleeping overnight at the storeroom then began moving in furniture to be used thereof as seen in various photos as will be later referred to in this judgment. The whole process of the plaintiff moving in furniture was never prevented by Guardian nor was their permission sought or granted, facts which are generally uncontested.

49.  Since then, the plaintiff’s lock replaced the original lock of the door of the storeroom with only the plaintiff having the plaintiff’s key. The plaintiff states that the (only) door to the storeroom is kept locked with the plaintiff’s lock whenever he leaves to go out but the door is kept open when he returns.

50.  Other than the plaintiff himself giving testamentary evidence regarding the earliest days of his adverse possession of the storeroom, there was also the testamentary evidence of the plaintiff’s friend and witness, Mr Chung.

51.  Mr Chung was not a reliable witness on matters relating to when and how he met the plaintiff or when exactly he attended the storeroom since he was confused that he attended in 1979 or sometime in the 1980s. Mr Chung was unsure whether the plaintiff expressly told him that the storeroom was his home.

52.  However, this court does believe that Mr Chung did recall the general layout of the storeroom, that he did attend the storeroom on numerous occasions before he became a married man in 1988. This court also believes that Mr Chung did see that the storeroom had domestic use items such as a bed, refrigerator, cooking utensils and that Mr Chung did express that he believed that the plaintiff was living in the storeroom alone.

53.  The plaintiff’s relevant contemporaneous documents from the earlier years of his adverse possession of the storeroom with indications of their date are (1) the business registration of Chuen Kee that was filed and re-filed on various dates (“the Chuen Kee BR”); (2) copy of 1 colour photo of Mr Chung dining inside the storeroom standing behind a folding table with electronic date stamp showing “84 1 3”, copy of 1 colour photo of the plaintiff exercising on the roof of the building with electronic date stamp showing “84 8 28”, copy of 1 colour photo of the plaintiff inside the storeroom with furniture around him with electronic date stamp showing “84 8 28” (collectively “the plaintiff’s photos”); (3) a telephone bill showing the plaintiff’s name, the date being 18 February 1992 and the address being “BLK A 29/F LOCKHART BLDG, 441 LOCKHART ROAD, HONG KONG” (“the plaintiff’s telephone line bill”).

54.  The defendant’s relevant contemporaneous documents of the storeroom are of comparatively less or even questionable value since their provenance is unknown and there are no indications of date. There is an assortment of photos produced by the defendant that show parts of the interior and exterior of the storeroom, how the plaintiff used it, how the base-stations were installed and placed inside the storeroom (“the defendant’s photos”).

55.  It is not disputed that Chuen Kee began trading on 1 May 1983 and from that point in time until around 1997 the plaintiff was no longer employed by Lai Dou but instead Chuen Kee was the subcontractor for garbage disposal of Lockhart House in the evenings.

56.  However, under cross-examination and consideration of the plaintiff’s evidence there are odd features about when and if the plaintiff actually lived in the storeroom itself.

57.  It is correct that the business registration of Chuen Kee shows that the address of the storeroom is not shown for the years 1983, 1985 and 1988. The Chuen Kee BR address is (1) for 1983 shows the Des Voeux Address; (2) then in 1985 it was an address on 3/F, 10 High Street, Sai Ying Pun (“the High Street Address”); (3) then in 1988 it was the building address for “G/F” and not “29/F” (“the Alternate Lockhart House Address”); (4) then in 2019 it was the storeroom’s address marked with “29/F” which, without much controversy, indicates the storeroom’s “address” since the building is 26 floors built on top of a 3-floor commercial podium.

58.  Mr Li submitted that a “Freudian slip” was made by the plaintiff under cross-examination by answering that he did live at the Des Voeux Address when the first business registration of Chuen Kee was issued (ie 1983) but this was quickly corrected by the plaintiff himself:

“問︰ 嗱，呢一個申請書呢就個日期就係1983年5月4號嘅，你有冇印象呢一份嘢呀？

答︰ 有吖。

問︰ 有，因為係你啱啱開業嘅時候，就要申請全記有個商業登記，係咪？

答︰ 係呀。

問︰ 咁你簽得名，即係嗰份嘢上面寫嘅都係真確㗎喇，係咪呀？

答︰ 係吖。

問︰ 冇假㗎嘛？

答︰ 冇假。

問︰ 全部都係真嘅？

答︰ 係。

問︰ 咁嗰啲中文字，譬如你個名「駱健全」係咪你自己寫㗎？

答︰ 係吖。

問︰ 咁「香港德輔道西25號德輔大廈16A座」係咪你寫㗎？

答︰ 係吖。

問︰ 係你寫嘅。我哋睇一睇「香港德輔道西25號德輔大廈16A」下面寫住「15樓」呀，嗰一行字嘅左手邊呢係問緊你寫你嘅住址喎。

答︰ 我當時係住嗰度嘅之前，即係一落香港呢住嗰度，我一踏入香港就住德輔道西。

問︰ 你幾時踏入香港呀？

答︰ 78年，1978年。

問︰ 所以1983年嘅時候，你都仲係住喺嗰度，係咪？

答︰ 唔係，我係81年住喺駱克大廈廿九樓嘅。

問︰ 嗱，我唔知道需唔需要畀個警告你，你啱啱呢就答咗話呢一份正式嘅文件呢你簽咗名，寫嘅嘢所有都係真，你而家同法庭講話你寫緊假嘅嘢係即係作出虛假陳述㗎喎。

答︰ 我呢個地址呢就係嗰度收到，我驚廿九樓我收唔到嘅，之前我81年住嗰度。”

59.  The plaintiff under cross-examination gave the explanation that the Des Voeux Address was the address of his relative and so it was used for correspondence purposes.

“答︰ 我寫番個地址呢就我個親戚嘅，咁我81年就住喺而家想話佔喺住喺呢度呢度，咁我諗住嗰度呢就廿九樓冇地址㗎嘛喺駱克，咁寫番個親戚嗰度，一路用個--用個地址嚟寫--開公司嘅，用德輔道西。

官︰ 等陣先吓。你嗰個親戚係邊個嚟呢？

答︰ 姓鄺嘅，死咗喇嗰個阿伯嚟嘅，啲仲要好疏嘅阿伯嚟㗎，呀，姐大個正式親伯，自己姐夫嘅親伯。”

60.  The plaintiff’s explanations for the various addresses used on the Chuen Kee BR for 1983, 1985 and arguably 1988 were unsatisfactory since those addresses do not support the plaintiff’s claim that he lived at the storeroom. Furthermore, the storeroom’s address would be the most logical place to receive Chuen Kee’s correspondence since admittedly the plaintiff had no other alternative address where he was living.

61.  There is no further evidence showing that correspondence of Chuen Kee was somehow received at the Des Voeux Address or the High Street Address and therefore the plaintiff’s assertions that those addresses were used for correspondence purposes is unsupported. In fact the plaintiff stated that he never returned to the Des Voeux Address or the High Street Address so even on his own explanation, any correspondence to Chuen Kee was not and could not be recovered which renders the plaintiff’s explanation unlikely.

62.  The contemporaneous evidence of the Chuen Kee BR, a document admittedly filled out by the plaintiff himself, showed alternate addresses different from the storeroom or even the building generally, namely the Des Voeux Address in 1983 and the High Street Address in 1985. The Chuen Kee BR addresses for 1983 and 1985 militates against the commercially sensible reason for the plaintiff to not put the address of the storeroom or at least the building as the relevant address in the Chuen Kee BR as earlier considered in this judgment.

63.  On a balance of probabilities and particularly in light of the evidence relating to the Chuen Kee BR until 1985, this court finds that the evidence provided by the plaintiff in respect of factual possession of the storeroom from 1981 to 1985 is insufficient to satisfy the first of the two stages of adverse possession.

64.  This court has found that the plaintiff has failed to show factual possession of the storeroom up to 1985 with the aforementioned reason(s) given is essentially because of the inconsistency of evidence as presented by way of the Chuen Kee BR addresses up to 1985. However, this does not remove the relevance of the plaintiff’s own testimony, Mr. Chung’s testimony and the plaintiff’s photos when considering other aspects of the plaintiff’s case.

65.  The plaintiff’s photos taken in 1984 are effectively uncontested in terms of their provenance and indications of date since they are time stamped. The plaintiff’s photos show the plaintiff on the roof of the building and in the interior of the storeroom in 1984 (as well as Mr Chung dining on a folding table). The plaintiff’s photos are by no means a perfect photograph of the entirety of the interior of the storeroom with all of the main pieces of furniture in absolute plain view but the plaintiff’s photos are sufficient to show a bed, desk, refrigerator and television (as well as a folding table for dining purposes showing Mr Chung).

66.  When contrasted with the defendant’s photos, Mr Li for the defendant submitted there was no factual possession of the storeroom since the main pieces of furniture (in particular the bed, desk and refrigerator) seen in the plaintiff’s photos are missing, or were replaced or have been moved. Some of the defendant’s photos showed that the bed was not present in the storeroom and only a folding table and a bed’s headboard were placed there. At its highest, the defendant’s position from considering the plaintiff’s photos when compared with the defendant’s photos allegedly establish that for a period of time there was no bed in the storeroom during the plaintiff’s alleged occupation of the storeroom.

67.  An additional point which Mr Li used as criticism of the plaintiff not having factual possession of the storeroom is that but for the defendant, Guardian and or other persons at the building having access to the storeroom, the defendant’s photos could not have been taken. It was conceded by Mr Lam that the defendant’s photos were genuine as opposed to being falsified photos, but that did not explain either their provenance or when they were taken.

68.  As will be discussed later in this judgment, Mr Kan never said that the defendant’s photos were taken by him although he did give evidence that he entered the storeroom without the presence or permission of the plaintiff together with the staff of Rediffusion Satellite Services Limited (“RSS”) in about 2007 to 2008, a company operating one of the base-stations in the storeroom. In fact, as later discussed in this judgment, no person has been identified on who took the defendant’s photos or when they were taken.

69.  This court rejects the defendant’s position on the storeroom not being occupied for a period of time by the plaintiff based on the analysis provided by Mr Li and this is not a demerit on the ability of Mr Li attempting to assist this court on this issue.

70.  As earlier stated in this judgment, the defendant’s photos are of questionable value since their provenance is unknown and there are no indications of date, which in a case of this nature are important factors. The lack of explanation by the plaintiff on each and every difference between the two sets of competing photos does not remove the fact that the plaintiff nevertheless claims he lived in the storeroom and there is no factual witness clearly refuting he had not done so.

71.  Although Mr Chung’s evidence is limited as previously stated in this judgment, this court does accept and believe that Mr Chung did attend the storeroom on multiple occasions and believed that the plaintiff did live in the storeroom during a period of time in the 1980’s. In fact, there is no evidence in this case where a witness has directly and positively saw and stated that the plaintiff did not live in the storeroom per se.

72.  A feature in this case that will be later reconsidered and in favour of the plaintiff is the fact that there has never been any direct evidence to show that the defendant, Guardian, Kong Shum or any of the relevant telecommunications companies operating the base-stations have a copy of the plaintiff’s key that has been produced in these proceedings or that any of the foregoing parties ever broke or even attempted to break the plaintiff’s lock. The foregoing matters regarding the plaintiff’s key and the plaintiff’s lock are uncontested in any direct manner throughout these proceedings.

73.  The Alternate Lockhart House Address being stated in the Chuen Kee BR showed that in 1988 the plaintiff no longer resided at the Des Voeux Address or the High Street Address but did show the plaintiff using the building’s general address as the address for Chuen Kee. This does not permit the plaintiff to claim that in 1988 the plaintiff resided at the storeroom per se, but at the very least, any lingering considerations about there being conflicting explanations about the plaintiff using a correspondence address other than the storeroom or at least the building were put to an end.

74.  The fact that Chuen Kee was carrying on business until 2019 was never challenged, nor was the fact that the plaintiff’s telephone line being installed and existing since 1989 but there is no documentary evidence to support this happened until 18 February 1992.

75.  From 18 February 1992, the plaintiff’s telephone line bill confirmed on a balance of probabilities that the plaintiff’s residence was the storeroom by an independent third-party, namely Hongkong Telephone. The plaintiff’s telephone line bill clearly states the address being that of the storeroom.

76.  When considering the plaintiff’s photos, Mr Chung’s evidence on the plaintiff living in the storeroom, the plaintiff’s own generally uncontested explanation of how furniture was moved into the storeroom, the plaintiff’s photos showing that same furniture being used by the plaintiff in a domestic dwelling fashion, and the plaintiff’s telephone line bill showing the address of the storeroom as the plaintiff’s residence to third parties, this court finds on a balance of probabilities that from 18 February 1992 onwards the plaintiff factually possessed the storeroom to an extent to satisfy the first stage of adverse possession.

77.  Under cross-examination the plaintiff recalled there was a manager (“經理”) of Guardian named William Yau who did ask the plaintiff to stop living in the storeroom, apparently sometime in the 1990s, more likely in or about 1997 or 1998. The plaintiff stated that he refused William Yau’s instructions and simply continued to live in the storeroom. This was a rather short instance of cross-examination of the plaintiff and not much arose from this save and except that neither the said Mr William Yau gave evidence in this case nor did any of the other witnesses recalling such an individual.

78.  The defendant further challenges the plaintiff’s factual possession of the storeroom from 18 February 1992 onwards by referring to licences that were granted to various telecommunications companies for the installation, operation and maintenance of the base-stations in the storeroom from around 1997 to March 2022. The licence agreements (collectively “the Telecom Licences”) included:

(1) The licence agreement dated 24 April 1997 made between Guardian and Mandarin Communications Limited (“the 1997 Guardian-Mandarin Licence”);

(2) The licence agreement dated 15 February 2000 made between Guardian and Sunday O/B Mandarin Communications Ltd (“the 2000 Guardian-Sunday Licence”);

(3) The licence agreement dated 9 February 2002 made between Guardian and Sunday (“the 2002 Guardian-Sunday Licence”);

(4) A letter, dated 9 July 2004, issued by Sunday to Guardian concerning the installation of an additional base-station;

(5) The licence agreement dated 12 October 2004 made between Guardian and Sunday (“the 2004 Guardian-Sunday Licence”);

(6) The licence agreement dated 2008 made between Guardian and PCCW Mobile HK Limited;

(7) The licence agreement dated 18 October 2012 made between Guardian and Hong Kong Telecommunications (HKT) Limited;

(8) The licence agreement dated 17 April 2015 made between Guardian and HKT (“2015 Guardian-HKT Licence”).

79.  From the Telecom Licences, there is evidence to show that at least with the 2015 Guardian-HKT Licence that there were continued licence payments being made.

80.  In addition to the Telecom Licences, Guardian and RSS entered into 2 licences for use of the storeroom to be used as a facility room for satellite master antenna television and communal antenna broadcast distribution systems (collectively “the SMATV/CABD TV System Licences”):

(1) The SMATV System Maintenance Agreement, dated 7 June 1999, made between Guardian and Rediffusion Satellite Services Limited;

(2) A letter, dated 9 July 2018, issued by RSS and countersigned by Guardian subsequently on 19 December 2018 for the renewal of the SMATV/CABD System Maintenance Agreement.

81.  The plaintiff under cross-examination recalled that at some stage after taking sole possession of the storeroom but not specifically when it happened, the plaintiff permitted RSS, Cable TV and telecom companies to install equipment in the storeroom. The plaintiff recounted that his permission was conditional upon him benefitting from such equipment installation by the said companies, such as having the storeroom installed with 2 extra air conditioners and free cable television access for his use.

82.  The plaintiff also recalled a request from another manager of Guardian surnamed Yeung and staff of the said companies to install equipment in the storeroom since the room next door was unsuitable as it had fire pump equipment. When equipment needed to be installed at the storeroom, according to the plaintiff, the security guards at the guard post of the building needed to contact the plaintiff to make an appointment for access to the storeroom to be granted since the plaintiff’s key was only in his possession.

83.  There appeared to be some possible confusion by the plaintiff if such discussions took place with the previously mentioned manager of Guardian named William Yau or a manager surnamed Yeung, but in any event, the plaintiff was clear that discussions were held with a manager of Guardian and the said companies at the very least. On this part of the evidence, this court believed the plaintiff was truthful although his memory on the more specific details, in particular the dates on when these discussions took place and with whom, were not entirely complete.

84.  This court is further fortified in its belief in the plaintiff on these matters regarding the equipment installation as will be seen in the following considerations regarding the equipment installation process.

85.  Specifically from the 1999 Guardian-Mandarin Licence, 2000 Guardian-Sunday Licence, the 2002 Guardian-Sunday Licence, and the 2004 Guardian-Sunday Licence, attached to these 4 licences were various engineer’s diagrams from the company “MANDARIN” and then “SUNDAY” marked “70290-1” and then later “70290-S1-E1” “SITE 70290 FOR RF ENGINEER’S REFERENCE” showing the building, the storeroom itself, where “BTS” (i.e. “base-station”) equipment would be mounted above a clearly marked section that showed a diagram in the shape of and with the clear and capitalized words “BED” (“the Engineer’s Diagrams”).

86.  Furthermore, the first of the 4 Engineer’s Diagrams is marked with the date being “15-10-1996” but the “ACQUISTION DATE” is stamped “2 DEC 1995”.

87.  When the Engineer’s Diagrams were made, whomever was the engineer for “MANDARIN” and then “SUNDAY” saw the “BED” and built the relevant base-station above the “BED”. From the Engineer’s Diagrams it also shows that whomever was the engineer for “MANDARIN” and then “SUNDAY” clearly saw that there was a “BED” in the storeroom, that a base-station would need to be built around and or above the “BED” which shows that the “BED” could not be removed without permission and that the “BED” was already in the storeroom before any of the Engineer’s Diagrams were made, namely or about 2 December 1995. The Engineer’s Diagrams were continuously marked with the same number reference (ie “70290-1”) over 4 licences which shows that the “BED” was in the storeroom for a continuous period of time.

88.  The foregoing considerations regarding the Engineer’s Diagrams also goes towards removing doubt about a bed not being present in the storeroom when the defendant’s photos were used to illustrate that a bed was not present in the storeroom for a certain period of time.

89.  The defendant’s photos from inside and outside of the storeroom, show at least 1 air conditioning unit on the outside of the storeroom; numerous and very large pieces of electronic equipment suspended by heavy wooden planks inside the storeroom (they appear in the defendant’s photos to be thick planks and designed with a certain level of care and safety in mind as opposed to being haphazardly installed); an A-shaped ladder in front of a bed (that bed is sizeable with a large bed headboard which in fact appears to be the same large bed headboard as seen in the other defendant’s photos where the bed itself is not seen), refrigerator and desk, all of which are underneath the aforesaid wooden planks suspending the said numerous and very large pieces of electronic equipment inside the storeroom and directly above the bed.

90.  This court finds that the defendant’s photos, when considering them in their entirety, appears that the storeroom was a fully equipped living space that was well lived-in with numerous and very large pieces of electronic equipment built around and above the living space and furniture with care and a certain element of safety for the plaintiff who was living in the storeroom. Furthermore, this court finds that the storeroom was not used by co-owners of the building for the common good nor was there exercise of control by them over the storeroom.

91.  Mr Lam for the plaintiff cited Kan Kam Cho (ibid) where the granting of a tenancy or a conveyance of the property to third parties after the limitation period has already started to run does not per se prevent adverse possession by the squatter. This court finds that a granting of the Telecom Licences or the SMATV/CABD TV System Licences did not break the continuous possession of the plaintiff since it is important to consider how the Telecom Licences or the SMATV/CABD TV System Licences were carried out and how the telecom equipment was installed in the storeroom as aforesaid.

92.  A break in the plaintiff’s possession of the storeroom depends on whether permission was needed to install the telecom equipment is to be believed. Given that this court’s findings are that approval was needed by Guardian and the telecom companies from the plaintiff to install the base-stations, permission was granted as according to the plaintiff, and the foregoing considerations manifested themselves in the care and attention afforded to the dweller of the storeroom (i.e. the plaintiff) by carefully and safely installing numerous and very large pieces of electronic equipment built around and above the living space and furniture of the plaintiff over a period of several years.

93.  This court finds that upon considering the plaintiff’s testamentary evidence, the Engineer’s Diagrams and the defendant’s photos, the defendant has not displaced the factual possession of the plaintiff from the storeroom by virtue of the Telecom Licences or the SMATV/CABD TV System Licences.

94.  Miss Wong is the registered owner and resident of Flat 28A3 of the building since February 2000 until the present. Before discussing the evidence of Miss Wong in greater detail, this court found Miss Wong to be an honest, fair and reliable witness.

95.  It is not in dispute that the roof of the building was accessible by the residents of the building and Miss Wong being on the top floor of the building regularly did go to the roof since she had access to an area that was directly adjacent to the storeroom and facing the storeroom door. During Miss Wong’s frequent presence on the roof of the building up to 2 to 3 times a day to hang and collect her laundry, she did see the plaintiff regularly (if not daily) since she moved into the building.

96.  Miss Wong stated that she saw the plaintiff living in the storeroom and explained that the plaintiff usually left the door to the storeroom open and saw domestic furniture in the storeroom (i.e. bed, refrigerator, television, table, air-conditioning unit, and other miscellaneous domestic items):

“答： 係呀，我睇入去見到啲床喇，櫃喇，即係呢面咁樣，咁䁓入去，個雪櫃嗰面就係床囉，跟住呢度就係雪櫃門口就係雪櫃，跟住個雪櫃頂就電視，入面就係檯咁囉，咁䁓嘞，咁我見到佢，即係睇下人哋間屋係幾大嘅呢咁，咁之嘛。”

97.  Miss Wong saw security guards of the building on the roof opening the door next to the storeroom but she only ever saw the plaintiff opening the door of the storeroom himself and not the security guards:

“答： 我即係見到佢行過樓梯，即係喺個28樓個����度出嚟，跟住就行上去樓梯嗰度，咁我就當係巡樓喇，應該係就係咁樣巡樓喇，係咪呀？

問： 咁你有冇喺天台上面見過啲管理員？

答： 有，間中有見過嘅。

問： 係，間中都有。

答： 係呀，我見到佢好似唔知攞本簿寫啲嘢咁囉，係咪呀？嗰度係咪--嗰啲係咪簽到呀？

問： 我都唔知呀，你見到啲咩嘢講出嚟就得㗎嘞。

答： 咪就係見到咁囉。

問： 咁你有冇見過話可能都有試過啲管理員係攞住條鎖匙去開下天台嗰啲房門咁樣樣？

答： 咁又好似唔多覺喎。

問： 得，唔緊要，我睇下會唔會你咁啱有撞到啫。

答： 我見到好似駱生嘅房隔籬嗰間就好似有時有人開嘅，咁囉，但係駱生嗰間就好似淨係見到佢自己開咋。”

98.  Mr Li noted that Miss Wong suggested the plaintiff might have slept overnight in the storeroom but he added that Miss Wong never saw the plaintiff staying overnight in the storeroom. Mr Li submitted that staying overnight alone is insufficient to constitute legal possession and or lacked the requisite intention to possess the storeroom, citing JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 at §40. Mr Li also stated that acts of drying of clothes are trivial acts of trespass which do not amount to possession per The Incorporated Owners of San Po Kong Mansion (ibid) §17.

99.  There is little doubt that Miss Wong as an honest and reliable witness who has lived at the building since February 2000 until the present day saw the plaintiff at the storeroom very often (nearly daily) while he was using the storeroom as his domestic and regular dwelling. Miss Wong also saw that only the plaintiff had access to the storeroom despite security guards patrolling the roof and passing by the storeroom without ever opening it themselves. With respect, how Mr Li characterised the evidence of Miss Wong on how (and how very frequently) she was able to witness the plaintiff, how the plaintiff used and treated the storeroom (without the security guards ever seen opening or entering the storeroom) is inaccurate.

100.  This court finds that upon considering the evidence of Miss Wong, her evidence being relevant from February 2000 onwards, improves the plaintiff’s position on the factual possession of the storeroom.

101.  An incident took place in 2003 where 1 of the owners in the building discovered the death of his 4 dogs on the roof of the building. Police went to investigate on the said owner’s suspicion that the plaintiff was involved in the matter (“the 2003 Incident”).

102.  As a result of the 2003 Incident, a Mr Lam Yun Seng (“林潤生”), a manager of Guardian, visited the storeroom and suggested to the plaintiff that he move out of the storeroom for a few days to avoid trouble. The plaintiff refused and ignored the suggestion and remained at the storeroom.

103.  The 2003 Incident led to the handwriting of a “telephone complaint note” prepared by Mr Kan (“the 2003 Complaint Note”) where he repeated in his witness statement from the 2003 Complaint Note that there was no one living in the storeroom, the storeroom was used by a cleaner to store cleaning tools and that both the cleaner and Guardian had the keys to the storeroom. As will be explained, the 2003 Complaint Note’s explanation is incorrect.

104.  It will be noted that Mr Kan was employed by Guardian to take part in the management services of Lockhart House from September 1997 to August 1999 and from October 2003 to 2015 as the Senior Property Officer in a management role but this did not include duties such as patrolling Lockhart House and in any event his office was in Elizabeth House.

105.  Under cross-examination Mr Kan agreed that the staff he managed at Guardian never positively reported to him, that the staff never entered the storeroom nor is there any documentation of Guardian (or in this case overall) that recorded an actual entry into the storeroom other than the suggestion in the 2003 Complaint Note that this had happened. But under cross-examination Mr Kan admitted that he visited the roof of the building in 2003 for the first time but never actually entered the storeroom on that occasion nor in fact did he meet the plaintiff in person until 2004.

106.  This court finds that upon considering the cross-examination of Mr Kan regarding the 2003 Incident and the 2003 Complaint Note, the defendant has not displaced the factual possession of the plaintiff from the storeroom by virtue of the 2003 Complaint Note.

107.  Another event involving Mr Kan took place in about 2007 to 2008 when he stated in his witness statement that he recalled that the building required an upgrade to the television signal from analog to digital. Mr Kan stated that he personally accompanied a contractor and entered the storeroom for upgrading the SMATV/CABD TV system by simply obtaining “the key” from the Guardian key-box. Upon entry into the storeroom, Mr Kan did not see the plaintiff inside nor did he obtain permission from him before entering (“the 2007 Inspection”). It is critical to note that there is no documentary evidence supporting that such events took place as explained by Mr Kan actually took place.

108.  Mr Kan also stated in his witness statement that he understood that Chuen Kee was allowed to access common parts of the building, including the storeroom to place cleaning equipment there for the sake of convenience. Mr Kan added that the plaintiff also had a key to the storeroom and was a permitted person to use the storeroom. As such, on the defendant’s evidence, there could only have been at most 2 keys that had access to the storeroom.

109.  Mr Kan’s witness statement mentioned that he knew the technicians and/or staff of the telecom companies would and did enter the storeroom to install, carry out inspection and repair of the base-stations with the presence of the management staff of Guardian from time to time. However, Mr Kan never states the basis or source of his understanding about the aforesaid matters and there are no other witnesses to corroborate his understanding nor any documentary evidence supporting the same and therefore that part of his evidence is rejected. It will be noted that under cross-examination Mr Kan admitted that the 2007 Inspection was only the second time he went to the roof of the building and in fact the only time that allegedly he personally entered the storeroom.

110.  Under cross-examination Mr Kan was entirely unconvincing on remembering the layout of the storeroom at all and it is again repeated that the defendant’s photos were not taken by him.

111.  This judgment has earlier considered the matters relating to the Telecom Licences and the SMATV/CABD TV System Licences where clearly since or about 2 December 1995 that a “BED” was recorded as being in the storeroom which the defendant’s photos (although their provenance and time which they were taken is unknown) corroborate the same.

112.  Under cross-examination Mr Kan could not, inter alia, remember seeing a bed inside the storeroom which would have been a virtual impossibility given the small size of the storeroom and that the bed was beneath at least some of the base-stations located directly overhead. Mr Kan remembered seeing a refrigerator and a television upon entering the storeroom but the location of the refrigerator and television can be seen in the defendant’s photos as being beside the bed itself.

113.  Mr Kan admitted that it was not on his mind to be aware of or to be looking for domestic use of the storeroom. But when asked, Mr Kan admitted that he would have tried his best to take enforcement action to remove any unauthorized items inside of the storeroom but that he never did so. On Mr Kan’s own explanation that he understood that only cleaning equipment was permitted to be placed inside the storeroom, upon seeing the refrigerator and television (not to mention the bed) in the storeroom he should have taken action to remove the refrigerator and television (and bed) but he never did nor did he tell anyone else to do so despite he was of management level of Guardian.

114.  Mr Li also submitted that Mr Kan stated that it was commonplace for cleaners to be permitted to use [a] storeroom for resting and even for cooking meals, but on the facts of this case, this court does not accept or agree this took place. There simply is no evidence other than Mr Kan’s comments that such a practice took place and this court refuses to make such a finding.

115.  Mr Li for the defendant accepted that Mr Kan may not recall the layout of the storeroom exactly but this court is in agreement with Mr Lam for the plaintiff where he submitted that this court should find that the 2007 Inspection simply did not occur. The amount of inconsistency and improbable statements made by Mr Kan under cross-examination simply shows that Mr Kan was not believable at all regarding the 2007 Inspection.

116.  This court finds that upon considering the cross-examination of Mr Kan regarding the 2007 Inspection and that Mr Kan should not be believed that the 2007 Inspection occurred, the defendant has not displaced the factual possession of the plaintiff from the storeroom by virtue of the 2007 Inspection.

117.  The last relevant incident relates to Miss Lau who is an employee of Guardian and who took part in the management services of the building from October 2017 to the end of May 2019 where she originally served as the building’s property manager and then was promoted to senior property manager since January 2018.

118.  Miss Lau’s witness statement stated that she personally attended an inspection of the storeroom with a colleague in 2018 without informing the plaintiff by obtaining “a key” from the Guardian key-box (“the 2018 Inspection”). Miss Lau after inspecting the storeroom noticed a refrigerator in the storeroom and then Guardian issued a warning notice to the plaintiff on 6 April 2019.

119.  Under cross-examination Miss Lau stated that she did not personally obtain “the key” from the Guardian key-box and when she arrived at the roof of the building, the door to the storeroom was already open nor did she see who opened the door. Upon entering the storeroom there was another man inside the storeroom but Miss Lau did not recognize that man nor could she recall if that said man was the plaintiff. After leaving the storeroom, Miss Lau did not see if the door to the storeroom was locked or not. Miss Lau also stated she herself never made a copy of the plaintiff’s key during her tenure at the building.

120.  This court finds that upon considering the cross-examination of Miss Lau regarding the 2018 Inspection and that Miss Lau never actually personally obtained “a key” from the Guardian key-box, never personally used “a key” to open the storeroom, never actually saw who or how the storeroom door was opened, never saw if the storeroom door was thereafter locked and by whom, and not being sure if it was the plaintiff in the storeroom at the time of the 2018 Inspection, the defendant has not displaced the factual possession of the plaintiff from the storeroom by virtue of the 2018 Inspection.

121.  A running issue and evidential question in this case that affects this case generally but particularly the 2007 Inspection and the 2018 Inspection is whether the defendant (or others) had a copy of the plaintiff’s key so that they could enter the storeroom without his authorization.

122.  The defendant’s position is that there was, inter alia, a break in the chain of the plaintiff’s possession of the storeroom by proving that the defendant did have access to the storeroom by virtue of having a copy of “a key” that could open the storeroom that was possessed by Guardian in the Guardian key-box (“the defendant’s key(s)”, it is used both in the singular and plural sense as explained later in this judgment).

123.  The underlying reason was that due to the plaintiff’s or Chuen Kee’s provision of cleaning service at the building until 30 November 2019, the plaintiff was permitted by the manager(s) and owners of the building to use the storeroom to place his cleaning equipment whilst the manager(s) through Guardian has retained the defendant’s key(s) to the storeroom kept at the Guardian key-box.

124.  As such, the defendant mounts a defence to the claim of adverse possession of the storeroom by the plaintiff by establishing that the plaintiff’s residing and use of the storeroom was subject to the permission granted by the defendant and that the plaintiff did not have the appropriate degree of physical control over the storeroom, nor was his possession exclusive or continuous.

125.  The only actual evidence of the defendant’s key(s) is through a photograph of a selection of keys produced by the defendant (“the defendant’s keys photo”) with 2 keys circled by an orange outline attached to a key tag that has the words “LH A天台泵”.

126.  For the avoidance of doubt, the roof of the building only has 2 rooms called “pump rooms” as seen in schematics of the building’s roof, namely the storeroom and the adjacent room which did have a fire pump. This was discussed earlier in this judgment when the issue of the Telecom Licences arose and it was found that the adjacent room with the fire pump was unsuitable to install base-stations and therefore the base-stations would instead be installed in the storeroom.

127.  It was agreed by the plaintiff that the words “LH A天台泵” was an acronym for “Lockhart House A (i.e. the building)” and “天台泵” meant “rooftop pump”. It is not in dispute that there was another key in the defendant’s keys photo with the key tag “消防天台泵房 (駱克) (LHA)” which the plaintiff simply answered that he was seeing this key and key tag for the first time, or at least without any recollection of it, and had nothing meaningful to say about it.

128.  Under cross-examination the plaintiff was asked whether 1 of the 2 defendant’s key(s) with the key tag marked “LH A天台泵” opened the 2 pump rooms of the building to which he answered he had not seen the key to the “pump room” so he did not know which one he meant. After clarification, the plaintiff was further asked if 1 of the 2 defendant’s key(s) with the key tag marked “LH A天台泵” opened the storeroom to which he disagreed.

129.  Mr Kan was asked whether it was him that took the defendant’s keys photo and he said it was not. Mr Kan went on to say that during the 2007 Inspection, the key given to him to open the storeroom on that occasion was given to him by the administrative head of the building and was not taken by himself from the Guardian key-box:

“答︰ ... 第二呢，我哋--我就算我去攞個鎖匙嗰陣時，亦都冇再去留意呢啲，因為我喺A座嗰度喇問咗個A座座頭嗰個管理員喇，佢畀咗條鎖匙呢...”

…

問︰ 講慢--唔好意思，講慢少少，我可能要抄。誒，問咗A座座頭嘅管理員？

答︰ 座頭嘅管理員，問就係我需要呢條鎖匙，佢就喺嗰個鎖匙箱就拎條鎖 畀我。”

130.  Mr Kan then agreed that the 2 keys in the defendant’s keys photo circled by an orange outline attached to a key tag that has the words “LH A天台泵” were the one(s) to open the storeroom.

131.  But upon further questioning, Mr Kan agreed that he did not know exactly how many copies of keys were made that could open the storeroom nor did Mr Kan know that the lock to the storeroom was replaced by the plaintiff’s lock.

132.  Despite Mr Kan’s explanation that the 2 keys in the defendant’s keys photo circled by an orange outline attached to a key tag that has the words “LH A天台泵” were the one(s) to open the storeroom, this court finds that Mr Kan was not given those said keys since he did not obtain them himself and in any event he had no idea how many existing keys could open the storeroom. Mr Kan was unreliable in explaining the provenance or existence of the defendant’s key(s) and this court finds that Mr Kan did not open the storeroom.

133.  This court repeats its findings regarding the 2007 Inspection where the amount of inconsistency and improbable statements made by Mr Kan under cross-examination simply shows that Mr Kan was not believable at all regarding the 2007 Inspection and that Mr Kan should not be believed that the 2007 Inspection occurred. It is again repeated that there is no documentary evidence supporting that the 2007 Inspection took place at all.

134.  This court also finds that Mr Mak has never through Kong Shum received the defendant’s key(s) since in fact the defendant has never produced an actual copy of the defendant’s key(s) in this case at any stage. Mr Mak’s assertion in his witness statement about the Guardian key-box containing the defendant’s key(s) is supported only by the defendant’s keys photo.

135.  For completeness sake, Miss Lau was not the one who took the defendant's keys photo and she assumed it was taken during the handover period from Guardian to Kong Shum. This court repeats its findings regarding the 2018 Inspection and would add that, inter alia, Miss Lau, did not even have in her possession or ever used the defendant’s key(s).

136.  Mr Leung is an employee of Guardian and took part in the management services of the building only from June to August 2019 when he was the property manager there. The security guard at the guard post of the building merely confirmed that the keys to the building in the Guardian key-box were “all there” (i.e. “齊晒”) and so when Mr Leung handed over those keys to his successor, neither himself nor the said security guard carried out a discrete counting of the keys nor particularly identified which keys were for whatever purpose.

137.  Under cross-examination, Mr Leung explained that he never personally used the key for the storeroom nor did he ever make a copy of the same. Mr Leung also confirmed that it was not him who took the defendant’s keys photo.

138.  Given the foregoing findings of fact on the defendant’s key(s) and the defendant’s keys photo, this court finds that the defendant, its managers, owners, Guardian or Kong Shum never had possession of or a copy of the plaintiff’s key and that the defendant’s keys have not been used to open the storeroom, or whether the defendant’s keys even exist at all for the purpose of opening the storeroom.

139.  In relation to Issue 1, given the foregoing matters as already discussed, this court finds that the plaintiff has been in continuous and exclusive possession of the storeroom from 18 February 1992 until the commencement of this action (i.e. 27 April 2022). The plaintiff has satisfied the first element of adverse possession, namely the plaintiff has established the requisite factual possession of the storeroom.

Issue 2 – Whether P has the requisite animus possidendi?

140.  The findings on Issue 1 are repeated herewith with some further elaborations on evidential findings and references relevant to Issue 2.

141.  This court has determined that the plaintiff did change the lock originally found on the door of the storeroom via the plaintiff’s lock which could only be opened with the plaintiff’s key with the permission of the plaintiff.

142.  The evidence is clear that the plaintiff did lock the door to the storeroom when he left the storeroom and left it open when he returned to reside at the storeroom which does not deter from his intention to keep others out of the storeroom is manifest. In fact in 1997 or 1998 the request by William Yau for the plaintiff to move out of the storeroom was refused and thereafter the 2003 Incident leading to the request by Mr Lam Yun Seng of Guardian suggesting to the plaintiff that he move out of the storeroom for a few days to avoid trouble was refused and ignored by him and he remained at the storeroom despite these requests.

143.  The plaintiff lived in the storeroom continuously from 18 February 1992 onwards without any break in possession. The combination of the plaintiff’s testimony, Mr. Chung’s testimony, the plaintiff’s photos and the defendant’s photos showed that the plaintiff intended and did live at the storeroom in a manner highly consistent with an individual with the intention to live at the storeroom as his own personal and private dwelling whilst excluding others.

144.  Miss Wong certainly confirmed the foregoing from February 2000 onwards that the plaintiff was always present and acting consistently as a person living in the storeroom. Miss Wong also confirmed that she saw security guards of the building on the roof opening the door next to the storeroom but she only ever saw the plaintiff himself opening the door of the storeroom and not the security guards of the building.

145.  This court has already rejected that the 2007 Inspection took place and that in any event, entry of the storeroom by Guardian or the telecommunications companies was subject to the plaintiff’s permission.

146.  Not only does this court find that the plaintiff lived rather defiantly and openly at the storeroom to the exclusion of others, the defendant knew and saw that there were several items of furniture and domestic use items in the storeroom that were not cleaning items (i.e. in particular the plaintiff’s bed) but did nothing about it.

147.  The defendant should have consistently with its own alleged policies taken action against the plaintiff or Chuen Kee whom the defendant alleges was merely a licensee permitted to use the storeroom for storage of cleaning items only. This never happened.

148.  Even without the defendant’s key(s), again if the defendant was consistent with their own alleged policies about only allowing cleaning items to be placed in the storeroom, they could easily have at least issued a warning letter to the plaintiff about such prohibited behaviour of placing furniture and domestic items (in particular the plaintiff’s bed) in the storeroom or possibly warned about the wrongful placement of the plaintiff’s lock on the storeroom. This too never happened.

149.  The defendant cited Man King Chuen and Ors v Hong Lok Yuen International School Association Ltd and Another [2023] HKCFI 1435 at §150 where if a person is in occupation by virtue of a right under a license, he does not have the necessary intention to possess for the purpose of claiming adverse possession.

150.  However in the present case, on the defendant’s own case, the relevant “licence” granted to the plaintiff or Chuen Kee was to permit the placing of the plaintiff’s cleaning equipment only in the storeroom to carry out his duties at the building and not for his obvious, consistent and personal use of the storeroom as his own domestic dwelling to the exclusion of all others.

151.  With respect, the plaintiff’s actions were not open to more than 1 interpretation on his animus possidendi. The plaintiff’s actions were singularly clear for his personal use as his own domestic dwelling to the exclusion of all others which took place continuously from 18 February 1992 onwards. In fact the inverse can be said about the defendant, its managers, owners in the building or Guardian, in that they knowingly allowed the plaintiff to carry on in a manner that was clearly consistent with that of a squatter.

152.  In relation to Issue 2, given the foregoing matters as already discussed, this court finds that the plaintiff has the requisite animus possidendi. The plaintiff has satisfied the second element of adverse possession.

Issue 3 – Whether P has acquired a possessory title to the Rooftop Storeroom by way of adverse possession?

153.  Both Issue 1 and Issue 2 have been resolved in favour of the plaintiff and this court finds that the plaintiff has acquired a possessory title to the storeroom by way of adverse possession.

Issue 4 – If P’s adverse possession is not established, whether D is entitled to vacant possession of the Rooftop Storeroom and damages for trespass?

154.  Issues 1 to 3 have been resolved in favour of the plaintiff and there is no need to consider Issue 4. This court notes that quantum would have been calculated on an agreed basis of HK$9,200 per month were Issue 4 to be resolved in favour of the defendant.

Conclusion

155.  This court grants judgment against the defendant by making the following orders, namely:

(1) A declaration that the defendant has lost its right to bring any action to recover the storeroom or any part thereof from the plaintiff pursuant to section 7 of the Limitation Ordinance;

(2) A declaration that the defendant’s title to the storeroom has been extinguished by virtue of section 17 of the Limitation Ordinance;

(3) A declaration that the plaintiff has acquired a possessory title to the storeroom;

(4) The defendant’s counterclaim be dismissed;

(5) Order nisi that the defendant do pay the plaintiff the costs of this action and counterclaim to be taxed if not agreed with certificate for counsel. Unless any of the parties apply by way of summons to vary it, the costs order nisi shall be made absolute 14 days from today.

156.  I thank both counsel for their helpful assistance.