MAN TIN FOOK also known as Man Tim Fook, Deceased, as represented by Man May Yung under O.15 r.15 RDC v. 梁根林 AND ANOTHER

[2018] HKDC 1437

DCMP 1213/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1213 OF 2014

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[2018] HKDC 1438

DCMP 1214/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1214 OF 2014

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J U D G M E N T

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1.  The Plaintiffs in these actions, being the registered owners of certain pieces of land in the New Territories, sue the Defendants for vacant possession of the land. The 1^st Defendant in both actions counterclaims on the ground of adverse possession.

Brief Background

2.  The father of the Plaintiff in DCMP 1213/2014, one Mr Man Kwai Yin became the registered owner of Lot No. 881 in D.D. 102 in Yuen Long by a conveyance on sale dated 22 October 1952. The Plaintiff became the registered owner of the said lot by Letters of Administration dated 23 July 2010 after Mr Man passed away on 15 January 1986[1]. For easy reference, the Plaintiff, the land in question and the action are referred to as “1st Plaintiff”, “1^st Lot” and “1^st Action” below.

3.  The Plaintiff in DCMP1214/2014 was Mr Man Tin Fook. He was the registered owner of Lot Nos.1007 and 1008 both in D.D. 102 situated in Yuen Long at all material times[2]. After the issue of the proceedings, he passed away in Belgium[3]. By an order dated 3 February 2015, Master Yip granted leave to Madam Man May Yung (“MY Man”), the deceased’s sister, to represent the Plaintiff’s estate under O.15 r.15 RDC for the purpose of the proceedings. For easy reference below, the Plaintiff, the 2 land lots in the order described above and the action will be referred to as “the 2^nd Plaintiff”, “2^nd Lot”, “3^rd Lot” and “the 2^nd Action” respectively.

4.  The Plaintiffs in both actions originally sued for possession under O.113 of the RDC by issue of 2 separate Originating Summonses. They both claim that without their consent or licence, unknown persons wrongfully entered into and took possession of the said 3 lots of land.  The same Mr Leung Kan Lam (梁根林) applied to join in as 1^st Defendant in both Actions (“Defendant”). He claims to be entitled to occupy a total of 18 lots of land[4] (including the 1^st, 2^nd and 3^rd Lots which are collectively referred to as “the said 3 Lots”) on ground of adverse possession. The 18 lots are collectively referred to as “the 18 Lots” below.

5.  Each set of proceedings was later directed to be converted to a writ action. At the pre-trial review on 6 February 2017, Deputy District Judge SH Lee directed the 2 Action be tried together.

The Plaintiffs’ Case

6.  The 1^st Plaintiff pleaded that between April and July 2013, the Defendant entered upon the 1^st Lot or a portion thereof and took possession by erecting a fence on the 1^st Lot.

7.  The 2^nd Plaintiff’s pleaded case is that on a date unknown to the 2^nd Plaintiff, the Defendant entered upon the 2^nd and 3^rd Lots or a portion thereof and took possession by erecting a fence on the Lots.

8.  They ask for vacant possession, damages, demolition of the structures erected on the Lots concerned and injunctions to be granted against, inter alia, the Defendant.

9.  It has been pleaded the annual rateable value of each of the 3 Lots does not exceed the sum of $240,000. The Defendant initially did not admit the same. It is no longer an issue now. By a joint letter dated 9 November 2018 signed by the parties’ legal representatives, it has been agreed that each lot is with a rateable value not exceeding $240,000.

10.  The Plaintiff in each Action claims against the Defendant for mense profit at a nominal rate. For the 1^st Action the 1^st Plaintiff asks for $100 per annum. For the 2^nd Action, the 2^nd Plaintiff asks for $50 per annum for each lot comprised in that action.

The Defendant’s Case

11.  The 2^nd Defendant in each action entered into no appearance. The 1^st Defendant (i.e. “Defendant’ referred to below for easy reference), while not disputing the Plaintiffs being the registered owners of their respective Lots[5], counterclaims that the Plaintiffs’ title in the respective lots has been extinguished by virtue of limitation. He asks for a declaration that he has acquired possessory title in respect of each of the said 3 Lots.

12.  The Defendant filed a Defence and Counterclaim in each Action on 6 November 2014 through his then solicitors Cheung and Liu. Each was endorsed with a statement of truth duly signed by him together with an interpretation clause signed by his solicitor.

13.  After comparing the Defence and Counterclaim filed in the respective Actions, it is fair to say that they are basically identical. The Defendant’s pleaded case in the two Actions are:

i)   prior to a date before 19 March 1974, one Mr Chan So    (陳蘇) had been in possession of the 18 Lots, making   use of them for growing sandworms;

ii)   By a written agreement dated 19 March 1974 (“1974    Agreement”), Chan So sold to the Defendant’s father    Leung Sun (梁申), also known as Leung Chiu (梁釗)    (“Leung Senior”) the following 6 items situated within    the 18 Lot at a price of $18,200:

(1)   1 wooden house for human habitation;

(2)   2 chicken houses;

(3)   7 lots of sandworm fields;

(4)   2 lots of vegetable fields;

(5)   1 unit of electric pump; and

(6)   miscellaneous items including water pipes and    chicken manure

iii)   Shortly after 19 March 1974, Leung Senior, his wife    Kwok Ah Nui (郭呀女) and their 6 children including    the Defendant started to occupy the 18 Lots as their    home. They started a family business there carrying    out various farming and agricultural activities;

iv)   during their occupation, they improved the 18 Lots by,    inter alia, procuring electricity and water to be made    available to the 18 Lots including in particular the    said 3 Lots in question, digging of water wells and growing of flowers, banana and willow trees;

v)   daily activities consistent with using the 18 Lots as    their living place were carried out at the 18 Lots;

vi)   in or around 1986, Leung Senior and the Defendant    erected and had thereafter maintained a continuous    wire fence of at least 1.5 m high and keeping 3    guard dogs on the 18 Lots with a view to preventing    intrusion of trespassers and illegal immigrants onto    the 18 Lots; and

vii)   Despite the passing away of Leung Senior (in 2001)    and Madam Kwok (in 2004), the Defendant continued    to occupy the 18 Lots (including the said 3 Lots).

14.  It is interesting to note that in the Defendant’s Defence and Counterclaim filed in both Actions[6], there is an identical paragraph 6. Each stated that from 19 March 1974 to 28 February 1979, and from 1 March 1984 up to the “present day” (presumably the date of the pleadings, i.e. 6 November 2014),

i)   the possession of each of the said 3 Lots was not    pursuant or subject to any oral written lease, tenancy, licence, consent or permission from the Plaintiffs of    their respective predecessors in title, nor was    conditional on payment of any money; and

ii)   no rent, licence fees, occupation fees or payment of    whatever nature has been paid to the Plaintiffs or their respective predecessors in title for occupation of the   said 3 Lots.

15.  Implicit from the above, the Defendant is saying there is a break (between March 1979 and February 1984) during which Leung Senior might have paid or got permission for possession of the said 3 Lots otherwise than of an adverse nature.

16.  The Defendant’s pleaded case of adverse possession as against each of the Plaintiffs seems to begin from 1 March 1984. This is confirmed in [8] of each of the Defendant’s Defence and Counterclaim. By the said paragraph, the Defendant’s case is that the respective title of the Plaintiffs in the said 3 Lots was extinguished by 1 March 2004, i.e. 20 years from 1^st March 1984[7].

The Plaintiffs’ Reply

17.  The 1^st Plaintiff denied the Defendant’s allegation, and pleaded that the 1^st Lot was unfenced at least as at 12 February 2012. It was because the 1^st Plaintiff, her elder brother Man Kam Wan, her elder sister Man Yik Lan (“YL Man”) and her husband Wu Tak Ming (“Wu”) paid a visit to the 1^st Lot on that date and found it totally unfenced (referred to as “1^st Visit” in [94] below). It was not fenced on another visit in or about March 2013 (referred to as 2^nd Visit in [94] below). It started to become partially fenced off as at about 2 July 2013 but they could still gain access to the 1^st Lot on the next day when they visited it (referred to as 3^rd Visit in [94] below). The unauthorised fencing has been reported to the Police. The 1^st Plaintiff’s surveyors could gain entry for doing survey on or about September (referred to as 4^th Visit in [94] below) and October 2013 (referred to as 5^th Visit in [94] below) and completed the land survey with a land survey map dated 13 November 2013 lodged with the Government authority[8].

18.  The 2^nd Plaintiff puts the Defendant to strict proof of the Defendant’s allegations.

19.  Accordingly, the only issue for trial is whether the Defendant can satisfy this Court that as at 15 May 2014, i.e. the date of commencement of the two Actions, he has already been in continued possession of the said 3 Lots or any of them for 20 years as from March 1986 or for 12 years between the period between 1 July 1991 and 15 May 2014 adverse to the 1^st and/or 2^nd Plaintiffs whereby the latter are debarred from dispossessing the Defendant as a matter of law.

20.  The parties’ counsel have framed more particularly the following in the agreed issues of dispute filed with the Court:

i)   whether the said 3 Lots or any of them was fenced off    by the Defendant’s family as alleged;

ii)   whether Leung Senior was in exclusive factual    possession of the said 3 Lots or any of them as alleged;

iii)   whether Leung Senior had the requisite animus    possidendi;

iv)   whether the Defendant was in exclusive factual    possession of the said 3 Lots or any of them as alleged; and

v)   whether the Defendant had the requisite animus    possidendi.

Action by One of the 18 Lots’ Owners - DCCJ 1806/2010

21.  By DCCJ1806/2010 (referred to “DCCJ1806” below), owner of Lot No. 995 in DD 102, i.e. one of the 18 Lots, sued one Madam Leung Kam Mui (as D1) initially on a tenancy agreement for arrear of rent for use of Lot 995 between 2005 and 2010 and for possession. On D1’s default, judgment was entered against her. The Defendant (as D2 therein) and one Mr Leung Kam Shui (as D3 therein), the Defendant’s brother, joined in after the default judgment. Although the Defendant disclaimed that he knew D1 in DCCJ1806, it was the court’s finding that D1 was the sister of both D2 and D3. In the present 2 Actions, the Defendant did not deny he had an elder sister by the name of Leung Kam Mui, which bears the same name as D1 in DCCJ1806, though he did not confirm whether D1 in that action is his sister[9].

22.  D2 and D3 raised a counterclaim in DCCJ1806 based on adverse possession against the registered owner of Lot 995. From what had been recited in the judgment handed down by Deputy District Judge Timon Shum[10], factual background and submission similar to the present case were raised by the Defendant in DCCJ1806.

23.  In the course of proceedings of DCCJ1806, it was mentioned, as part of the plaintiff’s evidence, there was a tenancy agreement dated 1 March 1975 relating to Lot 995 made between its then landowner and Leung Senior for a term of 5 years commencing 1 March 1979 up to end of February 1984 at an annual rent of $400.

24.  It may perhaps be because of this tenancy agreement that the Defendant pleaded in the present Actions the facts as set out in [14] above. It is fair to say that no explanation, or no satisfactory explanation has been given by the Defendant herein in this respect. The deputy judge in DCCJ1806 considered that, as a matter of fact, the Defendant (as D2 in that case) and D3 could not establish adverse possession against the registered owner of Lot 995. The claim of the Defendant and D3 failed. Leave to appeal was also rejected by the judge on 8 May 2018[11].

25.  Factual matters of how Leung Senior and the Defendant came into possession of the 18 Lots and their activities thereon were introduced by the Defendant in DCCJ1806. This part of his evidence should be exactly the same for the 2 sets of proceedings. His pleadings, written statements and oral evidence given therein were referred to extensively by Mr Siu in the cross-examination. The answers of the Defendant shed light on his credibility.

The Applicable Legal Principles

26.  The starting point is the Limitation Ordinance, Cap 347. The followings are the relevant provisions:

i)   Section 7(2)

“No action shall be brought by any person to recover any land after the expiration of 12 [20 years for cause of action accrued before 1 July 1991]^[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:

[proviso relates to the Government and is irrelevant to the present case]”

ii)   Section 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.”

iii)   Section 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) …”

iv)   Section 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 (including a redemption action), the title of that person to the land shall be extinguished.

[Section 10 relates to land held on trust and is not relevant to this Appeal]”

27.  From the above, in order to succeed in a claim for adverse possession, the Defendant, who is not the registered owner of the Property, should establish that (i) he (or Leung Senior) has been in continuous and exclusive physical possession of the lot(s) in question for 20 years or more if he relies on possession as from March 1986, or 12 years or more for any time after 1 July 1991 and (ii) he has the requisite intention to possess, i.e. the animus possidendi. These are the requirement of adverse possession.

28.  The laws of adverse possession are rather settled. They have been enunciated by Slade J (as he then was) in the English leading authority of Powell v McFarlane^[13], which have been confirmed by higher courts in England e.g. the House of Lords in JA Pye (Oxford) Ltd v Graham^[14] and in Hong Kong, for instance, the Court of Final Appeal decisions in Wong Tak Yue v Kung Kwok Wai David & Another^[15] and The Incorporated Owners of San Po Kong Mansion v Shine Empire Limited^[16].From these authorities,

i)   Requisite possession for the purpose of adverse possession means the person claiming adverse possession has sufficient degree of exclusive physical control of the land in question. 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; and

ii)   Requisite intention to possess for the purpose of adverse possession involves the person claiming adverse possession has made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owners as best he can.

29.  From the Plaintiffs’ pleadings, they have no actual knowledge of any matters concerning occupation as alleged by the Defendant. Cross-examination to test the truthfulness of the Defendant’s evidence is important. It is fair to say counsel have no dispute that the burden of proving exclusive factual possession and the requisite animus possidendi rests with the Defendant[17]. In this connection, the following principles distilled from authorities are apposite:

i)   an owner or other person with the right to possession of the land will be readily assumed to have the requisite intention to possession unless the contrary is clearly proved. Accordingly, the slightest act done by or on behalf of the owner in possession will be found to negative discontinuance of his possession. On the other hand, the courts will require clear and affirmative evidence from a trespasser to show he has acquired possession and also the requisite intention to possess which is clear to the world. If there is any doubt, for example, when one’s acts are open to more than one interpretation or he has not made it clear perfectly plain to the world at large by his acts or words that he has intended to exclude the owner as best he can, the courts will readily treat him not having the requisite animus possidendi and consequently not dispossessed the owner, see: Powell v McFarlane (supra) at 472;

ii)   while there is a presumption of continued possession in favour of the paper owner, it is not the case for the squatter, see: On Yip property development Co Lt v Kwok Tai Kuen Alan at [9] as per Cheung CJHC (as the PJ then was)[18];

iii)   when the intention to dispossess is equivocal, the benefit of any uncertainties is to the registered owner, see: Powell v McFarlane (supra) at 478;

iv)   when the trespasser makes self-serving statement as to what his intention was, whether during the period of occupation or when challenged in legal proceedings, the courts should approach these statements with some scepticism: Wong Tak Yue (supra) at p.69B. It is because that is something the paper owner has difficulty to positively refute, see: Powell v McFarlane (supra) at 476;

v)   Conversely, if the trespasser had made statement against his intention to dispossess, the courts will usually accord full weight to his statement, see Wong Tak Yue (supra) at p.69BC

vi)   since the trespasser can even dispossess the registered owner once adverse possession is established, the law requires the evidence of the trespasser to be compelling and unequivocal, see: Powell v McFarlane (supra) at 476; and

vii)   the trespasser’s intention has to be inferred from the totality of his acts, see: Powell v McFarlane (supra) at 477-8, and intention is a question of fact which has to be inferred from the circumstances, see: Wong Tak Yue (supra) p.69A.

30.  This Court will bear the aforesaid principles in mind in assessing the evidence adduced on the parties’ behalf.

The Evidence of Factual Witnesses and Experts

31.  As the Plaintiffs’ title to the said 3 Lots is not challenged, this is basically a trial of the Defendant’s counterclaim. A total of 6 factual witnesses attended Court to give evidence. They have prepared written statements prior to trial. Each affirmed the same (save and except minor corrections) before being cross-examined.

32.  As expected, the Defendant’s credibility is heavily challenged. This Court will assess the witnesses’ evidence against contemporaneous documents and/or undisputed and/or indisputable and/or independent evidence. If that is impossible and the truthfulness of the evidence depends entirely on a witness’ credibility, the evidence will be assessed by reference to the consistency of his/her testimony with his/her prior answers/statements given orally or in writing. Whether a witness’ evidence is to be believed will also be assessed by reference to its inherent plausibility or implausibility taking into account the circumstances of this particular case. Further, when a witness is discredited on an issue, particularly on a material one, it sheds light on his/her overall credibility.

33.  The 6 witnesses (except Man Kam Choi at (vii)) are:

i)   the Defendant: he prepared the following 4 statements    in the two Actions:

(1)   1^st Action: 1^st statement (in English) dated 9       September 2015[19];

(2)   1^st Action: supplemental statement (in Chinese)    dated 7 February 2017;

(3)   2^nd Action: 1^st statement (in English) dated 9    September 2015[20]; and

(4)   2^nd Action: supplemental statement (in Chinese)    dated 7 February 2017.

ii)   Madam Man Cheuk Yu (“CY Man”) (2^nd Action): she    was the younger sister of MY Man. She prepared the    following statements:

(1)   1^st statement dated 7 September 2015; and

(2)   supplemental statement dated 9 March 2017.

iii)   the 1^st Plaintiff Madam Man Lin Heung (1^st Action):    she was the administrator of the estate of her father,    Mr Man Kwai Yin deceased. She prepared the    following statements:

(1)    1^st statement dated 4 September 2015; and

(2)   supplemental statement dated 9 March 2017.

iv)   Madam Man Yik Lan (“YL Man”) (1^st Action): she    was elder sister of the 1^st Plaintiff. She prepared the    following statements:

(1)   1^st statement dated 4 September 2015; and

(2)   supplemental statement dated 9 March 2017.

v)   Mr Fong Hok Sing (“Fong”) (1^st Action): he was an    employee of Ted Chan & Associates Limited, a Land    surveyor company instructed by the 1^st Plaintiff to do    survey of the boundary of the 1^st Lot. He prepared his    statement dated 4 September 2015 and produced his    raw records when he was doing the survey. He acts as    a factual witness.

vi)   Wu, i.e. Mr Wu Tak Ming (“1^st Action”): he was the    1^st Plaintiff’s husband. He prepared the following    statements:

(1)   1^st statement dated 4 September 2015; and

(2)   supplemental statement dated 9 March 2017

vii)   Mr Man Kam Choi (“1^st Action”): he was the 1^st    Plaintiff’s brother living in England. He cannot attend    Court to give evidence as he was now suffering from cancer. He made a statement dated 25 August 2015 in    support of the fact that he, the 1^st Plaintiff and other relatives made the 2^nd Visit (see below). It was agreed   that his statement is to be admitted as hearsay    evidence, subject to the weight to be attached by this    Court.

34.  The Court has also directed[21] that expert evidence by land surveyors in respect of land boundary and findings from aerial photographs and survey sheets in respect of the said 3 Lots be adduced. The Plaintiffs have instructed Mr Leung Shou-chun while the Defendant Mr Tang Sze-kin as their respective experts. These experts produced 2 separate joint reports both of 1 September 2015 for respectively the 1^st and 2^nd Actions. It is noted they did not differ in respect of their conclusion. The joint reports were therefore adduced as evidence at trial without their attendance.

The Gist of the Defendant’s Evidence

35.  The Defendant said he and his family lived on Lot 995. After leaving school, he started working in around 1987 at about the age of 19[22]. When aged 28 (i.e. about 1996), he started to engage in renovation and engineering work. His company used to have office registered in Mongkok. He said some 5 to 6 years ago, he moved his company to Lot 899. He appeared shifting when talked about where he kept his trade tools and equipment. He mentioned different lots such as Lots 880, 808, 899[23].

36.  The 18 Lots alleged to have been purchased by Leung Senior from Chan So are clustered to form 2 pieces, one smaller and the other bigger. Each of the 3 Lots in question are in the shape of a slightly distorted and elongated rectangle running SW to NE. The 1^st Lot (Lot 881) is not connected to the 2^nd (Lot 1007) and 3^rd (Lot 1008) Lots but the latter two are connected in a head-tail manner.

37.  The 1^st Lot is only connected to Lot 880, one of the 18 Lots[24] and forms the smaller piece of land.

38.  One short end of 2^nd Lot is connected to the other short end of the 3^rd Lots. The 2^nd and 3^rd Lots together with the rest of the 18 Lots form the larger cluster. The entire NW facing side of the 3^rd Lot, according to the Defendant, should lie on the perimeter of the bigger piece.

39.  It is essential to remember that features revealed from the aerial photos and survey sheets (collectively the “source materials”) are the actual and direct results of human activities on the land in question. The resulted land boundaries delineated by, for instance, bunds, mould of soils or footpaths, may not be the same as the survey boundaries of the lots. The present case is one of such examples. The joint experts have helpfully superimposed the surveyed boundaries on these photos and survey sheets whenever they refer to them in their joint reports. This helps everyone understand the land use changes of the said 3 Lots when source materials over a period of time are compared.

40.  In order to understand the Defendant’s evidence regarding land boundaries, it is helpful to understand the layout of the 3^rd Lot (Lot 1008) relative to other lots. On its left, i.e. on its NW facing side, the 3^rd Lot touches Lot 994 at its lower half and Lot 993 at its upper. It is not in dispute that there is a footpath or mould of soil lying between the 3^rd Lot and Lots 993/994 as their natural boundary. Coincidently, this natural boundary and the survey boundary basically overlap.

41.  Further, from the source materials, the 3^rd Lot is cut into two halves in the middle by another wider footpath which runs more-or-less perpendicular to the aforesaid boundary footpath. There is therefore an intersection point when the 2 footpaths cut each other. It is at the junction where the 3^rd Lot, Lots 993 and 994 meet. This wider footpath, which cuts the 3^rd Lot into 2 halves, has a width of about 2m according to the Defendant. This information was extracted from the Defendant by Mr Siu after repeated cross-examination[25].

42.  The cutting of the 3^rd Lot into two halves by this wider footpath is apparent from the aerial photos between 1973 to 1996 as well as from survey sheets between 1983 to 2013. It is also apparent that the two halves of the 3^rd Lot were put to different use at different time. For ease of discussion, the part of the 3^rd Lot abutting Lot 994 is referred to as “the lower half” whereas the part abutting Lot 993 “the upper half”.

43.  The two separate first witness statements filed by the Defendant in the two Actions are basically the same. The contents of which were, in gist, what have been set out in his Defence and Counterclaim.

44.  By request for further and better particulars (“FBP”), the Plaintiffs asked the Defendant to identify the boundary of the 18 Lots, i.e. the lands allegedly occupied by Chan So and handed over to Leung Senior in or about 19 March 1974. The Defendant marked the boundary in pink on a Lot Index Plan dated 7 March 2013 prepared by the Survey and Mapping Office of the Lands Department. The markings for the two Actions are identical, see: 1A/41 and 2A/41. Each was referred to as Annex A of the Defendant’s FBP filed in each of the Actions.

45.  The Defendant was also asked to identify the fence which Leung Senior and he built around 1986. Initially, the Defendant referred to the same Annex A for such boundary. From this, it is noted only the lower half of the 3^rd Lot was included within the fence. The upper half is outside. The fence as marked ran along the boundary between the lower half of the 3^rd Lot and Lot 994 in the NE direction.  It then made a right turn at the aforesaid footpath junction and continued along the aforesaid wider footpath, keeping the upper half outside of the fenced off area.

46.  The Defendant was also asked to identify, and he did mark so on Annex A, the location of the sandworm fields, wells, wooden huts for human habitation, etc. sold by Chan So to Leung Senior. They formed the bases for cross-examination.

47.  Comparing the marked boundary and pleadings, one obvious inconsistency is noted, and is this. It was pleaded by the Defendant that in 1974, the whole[26] of the 3^rd Lot was occupied by Chan So and handed to Leung Senior. However, according to Annex A, only part of 3^rd Lot (i.e. the lower half only) was included. 

48.  The Defendant filed supplemental statements about 2 months before trial. He explained more on the extent of occupation of and activities on the land in question since 1976. A new plan denoting the fenced off areas was annexed[27]. It is the same as that marked Annex B in the amended FBP of the Defendant filed shortly before trial[28].

49.  What the Defendant said is this. Since handing over to them of the 18 Lots by Chan So in 1976, he and his family expanded their farming activities and started to occupy more land. These farming activities included the rearing of pigeons, poultry and pigs. Pigeons houses were built on Lots 880, 1010 (not the original 18 Lots), 1011 (not the original 18 Lots), unoccupied part of 1008 (Lot 3), 899, 900, 995. Pig sheds and poultry houses were built on Lot 995.

50.  The poultry and pig rearing activities were forced to cease because of the increasingly stringent environmental protection measures. They were paid compensation by the Government in or about 1993 in return for their undertaking not to carry out any poultry and pig rearing on the land[29].

51.  On a fair reading of [8][30] his supplemental statement in the 1^st Action and [6][31] of his supplemental statement in the 2^nd Action, the Defendant explained that Annex A was the boundary of land sold to his Father Leung Senior by Chan So in 1974. His father Leung Senior had since started to occupy more adjacent lands. Obviously, Annex A, which showed the alleged original occupied area in 1974, could not have been the same as the fenced off area in 1986 which should have included further land.

52.  Probably realizing the problem, the Defendant filed the said new plan, i.e. Annex B to denote the fenced off areas. This revised boundary as at 1986 was marked on another Lot Index Plan dated 19 June 2015 of the Lands Department. The 2 Annexes B filed in the two Actions herein are the same, see: 1A/41-1 and 2A/41-1.

53.  For ease of discussion, the smaller fenced off area comprising the 1^st Lot referred to in Annex B is referred to as “Smaller Lot”. The bigger fenced off area comprising the 2^nd and 3^rd Lots shown on Annex B is referred to as the “Larger Lot”. I have compared the land boundaries marked in Annex A and Annex B. For the Smaller Lot, they are basically identical for the 2 periods. However, for the Larger Lot, the boundaries are obviously different. At least Lots 1009, 1010, 1011, 990(part), 1018(part), the rest of 1005 previously not occupied and, most important of all, the entire 3^rd Lot are included.

54.  A total of 23 instead of 18 lots were said to have been occupied and fenced off by the Defendant and Leung Senior as at 1986.

55.  It is the Defendant’s pleaded case that the fence is of at least 1.5 metre high[32]. Mr Lam, counsel for the Defendant, agreed that the perimeter for the Larger Lot is about 470 metres[33] whereas that for the Smaller Lot 165 metres. Both are rather long. That for the Larger Lot is even longer than the field track of a standard size sports ground[34]. 

56.  According to the supplemental witness statements, the Defendant said that the Larger Lot (within which the 2^nd and 3^rd Lots are located) was enclosed by wire fence as from 1986. The only entrance is located at Lot 995, and is locked by him[35].

57.  As regards the 1^st Lot (Lot 881), the Defendant said it was used by Leung Senior as sandworm bed when purchased in 1974.  It was later filled up and used for growing vegetable and water plants. A well was dug in mid 1980s. Starting 2006, the 1^st Lot was used for growing fruit trees, bananas and willow trees.

58.  In his statement, the Defendant said in early 2012, he and his brother started to clear off vegetation from the 1^st Lot and removed soil from it for the purpose of filling up ponds in its south. In view that the wire fence surrounding the Smaller Lot was old, broken and derelict, it was pulled down. Its pulling down also facilitated the soil removal exercise which was finished by mid-2012. A new wire fence was immediately erected. From what had been shown in Annex C to the Defendant’s supplemental statement[36], after the re-building of fence, the fence erected on the Smaller Lot comprises 2 parts: the 1^st Lot together with a pigeon house (on Lot 880) formed one part and the rest formed the other. The only access to the 1^st Lot was through pigeon house which was under his lock and key. The 1^st Lot is now used for growing bananas, guavas, sweet potatoes and willows[37].

59.  The Defendant said that it was likely that when the old wire fence was pulled down for replacement, the 1^st Plaintiff and her relatives visited the 1^st Lot. He said he and his brother Leung Kam Shui in fact appeared in one of the photos taken by the 1^st Plaintiff. He said, however, the 1^st Plaintiff and the other witnesses did not actually enter upon the 1^st Lot. He also found that in or about the latter half of 2013, the wire fence near the 1^st Lot were damaged by people unknown. Had he met staffs of Ted Chan & Associates trespassing upon the 1^st Lot for survey, he would have driven him away.

60.  He explained that since repair had been effected to different part of the fence at different time, the fence on the Larger Lot comprised a mix of new and old iron nets. Many of them have been covered by thick vegetation[38]. He stressed that according to the 2^nd Plaintiff’s Statement of Claim[39] and the pre-action letters of 4 December 2013 and 7 January 2014, the 2^nd Plaintiff acknowledged that the 2^nd and 3^rd Lots were fenced off on a date unknown.

61.  The Defendant added that in or about 1998/9, he became aware for the first time of the lot numbers of the land he was then occupying, being 23 lots. It was because he was given a boundary plan by the Drainage Services Department (渠務署) (“DSD”) with respective lot numbers printed when the Government planned to build footpaths and drainage system in that area[40]. The footpaths and the drains are at the SW side of the Smaller and Larger Lots (or their left side as shown on the plan). He agreed he and Leung Senior had never conducted any survey of the lots occupied by them. He regarded he had occupied 2 pieces of land. It was only until then that he realized Chan So had given his father 18 lots of land.

62.  In cross-examination, he admitted he had not made any improvement work by building, e.g. pavilions, removal of wilted plants, etc. In gist, he basically said it was because he was with limited financial resources. On the other hand, there was no such needs.

Whether the Fence was Erected in or about 1986 or at All

63.  Counsel for both parties agree that fencing a piece of land is a strong manifestation of a possessor’s intention to exclude the whole world. This Court agrees, though the lack of it does not necessarily means lack of possession. It all depends on whether the Defendant can put in strong and compelling evidence to show he acted like a real owner.

64.  The Defendant did not call any relative, family member, friend, villager living in the locality to support his continued possession of the 3 Lots in question since 1976. All evidence regarding his continued possession for over 20 years, including the existence of the fence as from 1986 came from his own oral testimony together with some documents produced by him. It is not in dispute photos he exhibited for the purpose of the proceedings are no earlier than 2010. He said, all those earlier documents and photos had been lost.

65.  On the other hand, the 1^st Plaintiff, her husband Wu, YL Man, the elder sister of the 1^st Plaintiff, Fong, a survey staff of Ted Chan & Associates and CY Man gave evidence. Despite cross-examination, their evidence is unshaken, and basically consistent with prior written statements and contemporaneous documents. I particularly find Fong’s evidence useful to confirm that even in 2013, the 1^st Lot was still accessible and was not totally fenced off. As a result, Ted Chan & Associates could finish the survey map for the 1^st Lot.

66.  After considering the Defendant’s evidence and his answers in the cross-examination and guided by the principles in [26] to [29] and [32] above, this Court has no hesitation to reject all the Defendant’s evidence, including of course that relating to the fence. Apart from the observation that he was shifting, evasive and did not readily answer simple questions put to him[41], his evidence is unreliable, implausible and does not sit well with objective, undisputed or indisputable evidence.

67.  Firstly, regarding the extent and boundary of the fence, obviously, the Defendant came up with at least 2 versions on the Larger Lot before trial[42]. It is the Defendant’s evidence that since early 1980’s, Leung Senior and all his siblings (including himself) had started to occupy further land towards the northeast, namely, the rest of the 3^rd Lot, Lots 1010 and 1011. Pigeon houses were built on Lots 1010 and 1011. Pigeon feeds stores were built on Lot 1010 which, with additional mezzanine floor built inside, could be used for human habitation[43]. Accordingly, it would be surprising, and in fact unbelievable that the Defendant could have got the boundary of the Larger Lot wrong when he said it has been there for over a quarter of a century. The pigeon houses on Lots 1010 and 1011 (marked as “R” meaning “Ruin”[44]) were already on the 2013 plan. In the FBP filed by him, he even marked one of the wells on Annex A in Lot 1011. He therefore knew exactly the relative positions of the structures and lots when he made the drawings. In the Court’s judgment, had the Defendant or his family erected such fence as alleged, he should have included the said pigeon houses within the fence boundary when he first marked its boundary. These pigeon houses were landmarks on the land. He could not have got the fence wrong.  Further, how could one put beyond the fence pigeon houses for which the fence was built to protect. Such mistake is inconsistent with an allegation that the fence had been there since 1986, and that the Defendant had treated the place as his home for past 40 years.

68.  Secondly, the boundary of fence alleged by the Defendant in [12] of his statement filed in DCCJ1806[45] was exactly the same as that in Annex A, not Annex B! In DCCJ1806, his case was that only part of the 3^rd Lot (Lot 1008) was occupied and fenced off. During cross-examination at this trial, the Defendant confirmed he relied on his witness statement filed therein[46] to contest the DCCJ1806. Such position was also reflected in [7] of the judgment of the learned Deputy District Judge Timon Shum. However, in his cross-examination in the present case, he now testified the said paragraph filed in DCCJ1806 was wrong[47].

69.  The Defendant has advanced 2 different versions on the same matters in the 2 proceedings. He was represented by counsel and lawyers in DCCJ1806. That trial took 6 days to finish. His explanation during cross-examination herein was basically he did not have good communication with his present lawyers who basically copied and pasted from DCCJ1806 without taking care and asking. He also stated that he might have omitted to include the extra areas in the fenced off area in DCCJ1806 as he now asserted[48].

70.  His explanation is difficult to accept. If his communication with his lawyers were poor then as alleged, it would be difficult to understand, as will be apparent in the following paragraphs, why his lawyers in the present pleadings can follow exactly what he had asserted now and pleaded his case accordingly here.

71.  In DCCJ1806, it has been pleaded that the 3^rd Lot was occupied and fenced off partially. In the present case, however, it was pleaded the entire 3^rd Lot was occupied. Further, in DCCJ1806 he pleaded and confirmed in his witness statement that his family kept 3 guard dogs on the “premises”, which was defined to mean Lot 995 only. In the present case, however, the pleadings stated the 3 dogs patrolled over the 18 Lots, not merely Lot 995. These were subtle but great differences. If his communication with his lawyers was poor as alleged, it would be impossible for his lawyers to correct the pleadings herein to reflect the activities of his 3 guard dogs.

72.  DCCJ1806 started some time in 2010. The Defendant joined in as a party in 2011. The trial took place in June/July 2014. He was represented throughout. He adopted his statements and the trial then proceeded and eventually concluded on that basis. On the other hand, the Defence and Counterclaim of the present two Actions were filed only on 7 November 2014. It was after the conclusion of DCCJ1806. It would therefore be difficult to accept mistakes, if any, would remain undetected and uncorrected after his evidence had been repeated and tested vigorously at the DCCJ1806 trial. In my view, he should not be allowed to retract. His retraction, obviously, has destroyed his credibility.

73.  Thirdly, as pointed out above[49], it was pleaded in his Defence and Counterclaim in the 2 Actions that the entire 3^rd Lot was handed to Leung Senior by Chan So. However, as seen in Annex A (which is annexed to his FBP and is also part of pleadings), only the lower half of the 3^rd Lot was marked by him and said to have been handed to Leung Senior. This is a material contradiction within his own pleadings.

74.  It is suggested on the Defendant’s behalf that his said mistakes are honest, and his latest version should be preferred as it is supported by photos.  In the Court’s judgment, in light of what this Court has set out here, this submission cannot be accepted. This Court cannot accept as honest mistakes which touch upon the place where he said he has been living for about 40 years and where he has already had a chance to rehearse in a prior hotly contested trial. His evidence is shifting and unreliable. He is untruthful with his evidence. This Court cannot help come to a conclusion he has invented and/or exaggerated everything with a view to inflating mere partial or occasional possession to the extent of adverse possession of the said 18 Lots against the unmindful owners. The alleged handing over of 18 Lots by Chan So to Leung Senior in 1974 is, in the Court’s judgment, his own invention.

75.  Fourthly, the alleged existence of this fence is inconsistent with objective source materials.

76.  It was said the wire fence of the Larger Lot was 470 m long and at least 1.5 m high. It was constructed with a mix of metal and wooden poles with wire net in between. There are photos taken of some of them. I have gone through all of them. They are either not related to the 3 Lots in questions, or recent photos taken in late 2011 or after. The Defendant said all previous photos taken on the said 3 Lots had been lost[50]. This Court has to take his explanation with scepticism.

77.  In the report relating to the 2^nd and 3^rd Lots, the 2 experts had studied and exhibited relevant survey sheets prepared by the Lands Department covering a period of over 30 years since 1973[51]:

i)   November 1973;

ii)   October 1983;

iii)   December 1999;

iv)   February 2001;

v)   January and June 2006;

vi)   October and December 2011; and

vii)   January and November 2013.

78.  The 2 experts confirmed that fence was only found to first appear in the survey plan dated February 2001. Even so it was described as “… a fence … found at the northwestern side of the northeastern half of Lot no 1008 [i.e. the 3^rd Lot]”. It simply means, after one had checked the survey sheet, a fence was found along the boundary between Lot 993 (not one of the 18 Lots) and the upper half of the 3^rd Lot. The fence was observed to remain unchanged in subsequent survey sheets, save and except it was found to have slightly shifted southeasterly, i.e. towards the 3^rd Lot.

79.  From what has been shown from these survey sheets, no fence was found to have existed before February 2001. Even so, it was a small one fencing off only part of Lot 993, not along the boundary of the Larger Lot as the Defendant has suggested in his marked plan. The experts did not find any trace of fence of the size and scale alleged by the Defendant from the survey sheets. Neither have they found any evidence of fence from a study of the aerial photos.

80.  The two experts expressed that aerial photos faithfully recorded ground features at the time of photo-shooting. Survey sheets, though generally not as up to date nor as informative as the aerial photos, may on the other hand, show features under trees which may not be available from study of the aerial photos. However, there may be errors due to accessibility, cartographic generalization requirement and possible human errors. Whenever there are inconsistencies between the two, the experts opined, the photographs should prevail[52].

81.  The above are general opinions expressed by the two experts. They sound reasonable. This Court has no problem to accept them.

82.  It is submitted on the Defendant’s behalf that the absence of fence from the aerial photos might be due to vegetation coverage, inaccessibility or human error. In the Court’s judgment, as regards the possibility of the fence being covered by vegetation and therefore not shown in aerial photos, it is, again, a sound and reasonable proposition. The question is whether it is the case here.

83.  On the other hand, this Court does not believe the absence of fence from the survey sheets was the result of inaccessibility, cartographic omission or human error. It is because neither the experts nor the Defendant have put in evidence to suggest it is the case here. Further, the experts did not identify any inconsistency between the aerial photos and survey sheets in the present case which justifies the use of one type in preference to the other.

84.  As stated above, the fence, with its scale and size, is a rather conspicuous structure on the ground. This Court does not believe it would have escaped attention of any reasonable ground survey team over almost 40 years. Unless there is an outer boundary which has completely cut off its accessibility, which evidence is lacking, survey teams over the years should have a chance to bump into at least part of it, if not the entire fence.

85.  Additionally, these survey sheets seem to have been regularly updated in many material respects over the last 40 years. For example, there was no temporary structures at the upper half of the 3^rd Lot recorded in the 1973 survey sheet. In the 1983 sheets, there were quite a numbers of structures appearing with two on the NE direction of the 3^rd Lot. One of which was on Lot 1010. It marginally touched on the upper half of the 3^rd Lot. There was another one in Lot 1011. These structures had been identified by the Defendant as pigeon houses. In the 1999 sheet, similar structures in the nearby areas disappeared but the said two structures remained. Legend “小徑” meaning “small path” or “track” started to appear next to the temporary structure touching upon the upper half of the 3^rd Lot, although this track appeared to be there in 1983 sheets. The same two temporary structures were marked “TS” (standing for “temporary structure” in the 2006 sheets but starting 2011, they were marked “R” which stands for “Ruin”[53]. This Court believes that if the lots in question were inaccessible, the area could not have been updated regularly in the manner described. It would be quite unbelievable that survey teams were unable to capture any part of the 470 m fence alleged by the Defendant but on the other hand, could find the apparently shorter fence separating the 3^rd Lot and Lot 993 which is exactly on the path where the alleged 470 m fence runs.

86.  During cross-examination, the Defendant insisted on a part of the fence surrounding part of Lot 993 now appearing (at least in the Lot index plan dated 19 June 2015) was in fact built by him, and was part of his 1986 fence. He marked it on a plan and exhibited it as D-2. He disagreed with the suggestion that the said fence was built by his neighbour Mr Tam who was the occupier of Lot 993.

87.  In the Court’s judgment, it is an obvious twisting of evidence and is hereby rejected. The part of the fence marked by him obviously ran along the direction of the boundary of Lot 993, not that of the 3^rd Lot and is very different from that marked by him in Annex B. Had the alleged 1986 fence been in existence since then, this Court believes the survey team could have recorded both fences in the survey sheets. However, it was not the case here.

88.  As discussed above, this Court accepts that a fence may be covered by thick vegetation or trees and thus not shown in the aerial photos. However, it has to be borne in mind that the alleged fence is said to have enclosed many lots and thus had crossed many footpaths as well. This Court believes if a footpath is blocked by any wire fence, due to its inaccessibility, the fence would eventually be covered with overgrown vegetation with the work of mother Nature. That is why the fence, as suggested by the experts, will not be shown in aerial photos. On the other hand, it will be shown in aerial photos as a pattern consistent with vegetation or overgrown vegetation. If a track/footpath appears as bare ground in aerial photo, wherever a fence is there, this Court believes it will stand out conspicuously as vegetation or overgrown vegetation against the background in the said photo if the fence has been there for good enough time.

89.  The experts have studied 18 aerial photos of the 2^nd and 3^rd Lots in the Larger Lot[54]. The two footpaths, one cutting through the 3^rd Lot into two halves and the one running along boundary between the 3^rd Lot and Lots 993/994 are apparent from them. It has to be remembered that if the Annex B version is adopted, the apparently wider footpath cutting the 3^rd Lot into two halves would have been blocked by the alleged fence. Vegetation overgrown would result. However, at least from the aerial photos from 1983 to 1993, it appeared there is not any vegetation shown from these photos at the said foot path junction, suggesting the fence as alleged non-existent.

90.  In addition, Mr Siu for the Plaintiffs has pointed out that the fence, allegedly constructed in 1986, should be constructed without the benefit of any plan showing lot numbers and boundaries[55]. The Defendant did not seek to deny it. Accordingly, when erecting the alleged fence, it would be quite impossible for them to be smart enough to follow exact lot boundaries, which at some points could be quite irregular and different from the ground condition. Annex B was reproduced in the appropriate scale on a transparent plastic sheet. It is Exhibit D-6. This is useful because when it is overlaid on aerial photos and survey sheets, it helps identify the relevant position of the fence.

91.  Mr Siu referred this Court to the boundary of Lot 1000 (within the Larger Lot) where the alleged fence was said to run along its boundary. There is an apparent inverted V-shaped bend along its boundary with Lot 1020 (not one of the 18 Lots). Mr Lam replied on the Defendant’s behalf that the fence was consistent with the ground features as shown in the aerial photo of 1986-03-07[56]. However, in the aerial photo of 1990-09-14 taken of the same place, the same place where the said inverted V-shaped fence was said to have run appeared as bare ground. No vegetation could be seen. No fence whatsoever can be identified by the experts. Neither is there any fence shown in the survey sheets. Had the alleged fence been erected and continued to be there since 1986, this Court believes features consistent with the presence of the inverted V-shaped fence, e.g. vegetation coverage, fence, etc. would have been prominently shown against the bare background in the 1990 photo.

92.  My view that any fence should have been covered by at least some vegetation can be supported by, inter alia, a photo on 1B/358 (lower). It was a photo produced by the Defendant who said he was standing on the 3^rd Lot (Lot 1008) with the alleged fence at the background. This photo was imprinted with a date in 2012. It is clearly shown that there were tall shrubs and vegetation grown over the fence. This Court believes any such fence would not be revealed but would appear as vegetation in the aerial photos. No sign indicative of any fence was shown in the aerial photos at the aforesaid foot paths junctions prior to 28 May 1993[57]. After this date the area was covered with thick vegetation.

93.  Even the Defendant also apparently accepted vegetation would grow around fence. In fact, he was severely cross-examined on whether he could walk from Lot 993 along the foot path that cut through the 3^rd Lot to the latter lot. The Defendant replied in the negative because he said the alleged fence would be blocking the way[58]. When asked why then there was no grass or vegetation shown on the aerial photos, the Defendant’s reply was that someone was responsible for cutting grass[59]. His answer suggested that if not for the cutting, vegetation would probably have been there and revealed in the photos.

94.  As regards the boundary of the Smaller Lot, the 1^st Plaintiff’s case is that it was only a recent erection. It has been agreed that the perimeter of the fence for this Smaller Lot would be around 165m if it really exists. According to the evidence adduced on the 1^st Plaintiff’s behalf, 5 visits were made to the 1^st Lot either by her, her relatives and staffs of the land surveyor’s company between February 2012 to October 2013. They were:

i)   12 February 2012 (“1^st Visit”);

ii)   March 2013 (“2^nd Visit”);

iii)   3 July 2013 (“3^rd Visit”);

iv)   16 September 2013 (“4^th Visit”); and

v)   24 October 2013 (“5^th Visit”).

95.  The 1^st Plaintiff made the first two visits to the 1^st Lot with her husband and relatives. The 1^st Visit was made because she had just been granted the Letters of Administration dated 23 July 2010 and would like to locate the land. The 2^nd Visit was made because one of her sibling Man Kam Choi had returned to Hong Kong from the Britain. It is fair to say that they walked along the areas where the Defendant said the fence was erected. It was the 1^st Plaintiff’s evidence that she did not find any fence as alleged or at all surrounding the Smaller Lot and/or 1^st Lot[60].

96.  The 1^st Plaintiff together with her relatives made the 3^rd Visit because she was alerted by her sister Man Yuen Sheung that a fence was found enclosing the 1^st Lot. She made a report to the Police after the 3^rd Visit.

97.  For the 3^rd Visit, they could see that the 1^st Lot was fenced off on 3 sides except its boundary with Lot 880. This side was unfenced and touched upon a temporary structure on Lot 880. The other end of Lot 880 was another temporary structure, and was fenced off. The middle part of Lot 880 was, however, without any structures. It was open and accessible from both sides. They could gain entry to the 1^st Lot from these two openings.

98.  The last two visits were for the purpose of preparing a land survey map of the 1^st Lot. Ted Chan & Associates Company Limited was instructed.

99.  On the 4^th Visit, 3 staffs of Ted Chan & Associates went to the 1^st Lot to do the survey with the purpose of drawing the land survey map upon instruction of the 1^st Plaintiff. Basically what they saw was the same as described in [97]. They could freely enter the 1^st Lot through the two openings on Lot 880. They spent about 3 hours there doing the survey. They confirmed they were not stopped from entering the 1^st Lot by any locked gate. Fong, a staff of Ted Chan & Associates testified for the 1^st Plaintiff. He exhibited his raw notes jotted down on that visit[61].

100.  On the 5^th Visit, in order to fix a number of iron nails each of about 400 mm into the ground for survey purposes, Fong and two of his colleagues entered upon the 1^st Lot again. The 1^st Plaintiff and some of her relatives were also present. Apart from the two openings found in the 3^rd and 4^th Visits, they found out one more opening next to the junction between the 1^st Lot and Lot 880[62]. It was about 5 to 6 feet wide. They spent about 2 hours there. Some 14 nails were fixed into the 1^st Lot. They could move around the Smaller Lot through the three openings fixing the said nails freely without any objection from anyone. Fong produced his raw notes as evidence in support[63].

101.  The experts had also relied on a Dimension Plan of the 1^st Lot prepared by Ted Chan & Associates. According to the plan which was lodged with the relevant Authority, the date of survey was stated to be September 2013 and the plan submitted on 13 November 2013[64]. Fong identified the same drawing as the one prepared by his employer after the aforesaid two surveys done by him and his colleagues[65]. The preparation of this survey plan shows the 1^st Lot was not locked or totally fenced off otherwise such plan could not have been prepared.

102.  The Defendant’s evidence was that during the 1^st and 2^nd Visits, he and his brother might have already pulled down the wire fence for replacement. His initial evidence during cross-examination was that in or about 2010 to 2011, he had pulled down all the fence surrounding the Smaller Lot for the purpose of taking mud from the 1^st Lot to fill up Lots 899 and 900[66]. However, in his supplemental statement, he said it was pulled down in early 2012[67]. The rebuilding was completed in or about mid-2012[68]. He also said the 3^rd opening was a result of vandalism.

103.  He has been cross-examined in the witness box for 4 days. As elaborated above, he was shifting, avoiding questions and a wholly unreliable witness. His explanation for not saying anything about the pull-down and re-erection in his first statement was that his solicitors simply copied and pasted his previous statement in DCCJ1806. As said above, his explanation of poor communication was unconvincing. His shifting evidence on the exact time of pulling down the fence and its rebuilding was telling of his unreliability. In the Court’s judgment, his evidence showed internal contradiction and is inconsistent with his own prior statements and is hereby rejected.

104.  This Court believes the fence surrounding the 1^st Lot first appeared some time after March 2013 the earliest. Even so, it was not a total fencing off otherwise Fong and his colleagues could not have been able to complete the survey and lodged the surveyed map on or about 13 November 2013[69]. Fong is an independent witness. This Court found his evidence straight forward, unshaken in cross-examination and consistent with contemporaneous documents and hence would accept it in full with no hesitation.

105.  On balance, this Court rejects the Defendant’s evidence relating to the existence of the alleged fence surrounding the Smaller Lot since 1986. Although at cross examination Fong somehow confirmed a photo imprinted with 15.07.2012 showing a fence was taken at the border of the 1^st Lot and Lot 880, given the overall credibility of the Defendant, one doubts very much the time of the photo and the lot identities during cross-examination. Further, the burden is on the Defendant to convince the Court with clear, compelling, affirmative and cogent evidence that the Defendant/Leung Senior had been in possession with the requisite intention since the alleged time of 1986. The said answer of Fong picked up by Mr Lam cannot help make the Defendant’s overall evidence more believable.

106.  The experts jointly inspected the 1^st Lot on 23 June 2015.  They could find a metal fence with gate surrounding the area. There is also evidence a fence started to be there in or about mid-2013. However, from the aerial photos (from December 1973 to April 2014) and survey sheets (November 1973 to November 2013), the two experts could not positively find any evidence of the fence. They were of the view that either it is due to limitation of the aerial photos, ignorance by survey personnel in preparing the survey sheet, or they were simply non-existent.

107.  In the Court’s judgment, the experts’ observation is not inconsistent with the evidence of the 1^st Plaintiff and this Court’s conclusion.

108.  At trial, there has been exchange between the bench and counsel as to how update the information contained in a survey sheet is. It is generally accepted that there is a time lag in respect of the information shown in a survey sheet published on a particular date. The sheet recorded what had been gathered months ago during a number of field visits and from other sources. Though it is not updated as at the date of publication, successive sheets will nevertheless show changes of the land features over a period of time. It can be seen that many structures and paths were updated and drawn on the survey sheets but none about fence was marked.

109.  For the 1^st Lot, the latest survey sheet was published on 12 November 2013, yet no fence was shown there. It has to be remembered that Miss Man Yuen Sheung informed the 1^st Plaintiff on the discovery of the fence on 2 July 2013. It is therefore likely the fence might have been built sometime between March 2013, when the 1^st Plaintiff made the 2^nd Visit, and on 2 July 2013, which is one day before the 3^rd Visit. Such change might not have been reflected in survey sheet published some 4 to 8 months later because of the time lag factor. As for latest aerial photos taken on 13 April 2014, the fence may have already been blocked by vegetation and trees.

110.  This Court’s conclusion is that on a balance, no such fence surrounding Smaller Lot as alleged by the Defendant or at all existed between 1986 and March 2013. A partial fence in respect of the Smaller Lot only existed after March 2013.

Other Evidence About Exclusive Possession or Otherwise of the 3 Lots in Question

   Sandworm Fields

111.  In DCCJ1806, the Defendant identified in a plan annexed to his witness statement dated 24 October 2013 the areas where his family cultured sandworms between 1974 and 1976. Save and except two fields located in Lot 995, he identified no other sandworm fields in the 18 Lots[70]. He confirmed in cross-examination that he adopted this witness statement as his evidence in DCCJ1806.

112.  In the present two Actions, he was again asked to identify the sandworm fields.  He marked them in Annex A in yellow. It can be seen that these fields were all over the place including Lot 995, the entire Smaller Lot (i.e. the 1^st Lot and Lot 880), the entire 2^nd Lot and the lower half of the 3^rd Lot which represented the entire portion of 3^rd Lot then said to have been occupied by him[71]. In the Defence and counterclaim filed herein on 7 November 2014, the Defendant pleaded that shortly after the family had settled on the 18 Lots in 1974, the family carried out various farming activities. It was pleaded (in para 5(3)(d)) that the 1^st Lot “… was mainly used as sandworm fields in 1970s to 1982”.

113.  From the above, the discrepancy is apparent. In DCCJ1806, the Defendant said, at least between 1974 to 1976, the sandworm fields were only located in Lot 995 and nowhere else. In the present actions, his pleadings in words suggested those fields were restricted to the 1^st Lot. However, when asked to mark on a plan, it is different. He said they were all over the place, including on the said 3 Lots at least until 1982.

114.  At trial, the Defendant explained that when he drew the sandworm fields in DCCJ1806, he was then only referring to sandworm fields in Lot 995. He explained he then paid no regards to other lots, or perhaps insufficient attention to the request for FBP in that case[72]. I do not consider his explanation impressive. Neither do I consider his evidence reliable. This casts serious doubt on his overall evidence relating to the extent and nature of his possession of the said 3 Lots.

   The 1974 Agreement

115.  The 1974 Agreement is a very simple, hand-written one-page document in Chinese. It is not in dispute that no boundary plan was attached to it[73]. Further, the 1974 Agreement stated Chan So “出頂讓”, which basically means “transfer to” or “hold out for taking over by” Leung Senior of certain items. It was therefore mainly concerned with transfer of sandworm fields, tool and installation such as pump and pipes and stuffs such as chicken manure rather than, unequivocally, transfer of land. On its face, the 1974 Agreement was silent on whether land was transferred at the same time, or that the transfer (of tools, etc.) was only ancillary to, say, a transfer of tenancy or business. As such, the 1974 Agreement per se cannot be evidence of Leung Senior being given possession of the 18 Lots, not to mention exclusive occupation adverse to the landowners.

116.  It has to be remembered when the alleged 3 Lots were said to have been occupied by the Defendant in 1974, the Defendant was only 5 years old[74]. It really cannot be said he then had manifested any intention to possess the said 3 lots, not to mention possession to the exclusion of the whole world including the owners. The allegation that Chan So had possession of the 18 Lots adverse to the landowners, and handed over the same to Leung Senior as such, were necessarily hearsay evidence of the Defendant from Leung Senior at best. On a balance, the Defendant’s allegation that Leung Senior/Madam Kwok had the requisite intention to occupy the said 3 Lot as from March 1984 adverse to the owners is neither convincing nor supported by cogent evidence.

117.  As discussed above, it is strange the Defendant only claimed adverse possession as from March 1984[75], if he or his father Leung Senior had really been in possession adverse to the whole world since 1974 as alleged. His explanation was that his solicitors simply copied from his pleadings filed in DCCJ1806.  As said above, his “copy and paste” explanation is unacceptable. He admitted he had been explained the gist of the statement of claim before he subscribed his signature to confirm it being true and correct[76]. It was a finding in DC1806 that there was a tenancy existed at that time. If the 18 Lots were handed to Leung Senior who then manifested an intention to dispossess the whole world as now asserted by the Defendant, it would be inconceivable that Leung Senior saw fit to sign a tenancy agreement with the land owner of Lot 995 in 1979 for 5 years[77]. While this Court could accept the rest of the land could be treated differently, no evidence, however, had been given by the Defendant as to why it was so, and why immediately after this tenancy, the possession had become adverse. The Defendant’s evidence is difficult to believe.

   Other Evidence

118.  It is true that the Defendant has produced documents, inter alia, as follows, with a view to supporting his claimed possession of the 3 Lots adverse to the land-owners:

i)   2 invoices for purchase of seeds, etc. respectively   dated 18 October 1995 and 29 July 2012[78];

ii)   2 electricity bills issued to Chan So at 14E of Shek Wu Wai (i.e. Lot 995[79]) dated 26 January 2004 and 25 January 2008[80];

iii)   some documents such as telephone bills, bank    statements, tax notice, medical documents relating to   Leung Kam Shui, his brother between 1999 and 2011 addressed to 13E Shek Wu Wai[81];

iv)   4 water bills issued to his brother Leung Kam Wah    at 16 Shek Wu Wai between 2000 and 2011; and

v)   compensation documents issued by the Environmental    Protection Department to the Defendant’s mother    Madam Kwok in exchange for her stopping rearing of    chicken in 1992[82].

Utilities Bills & Documents of Leung Kam Shui

119.  The Defendant confirmed that there is neither water nor electricity supplied to the 3 Lots, which is contrary to what he had pleaded. Electricity meter was only in respect of Lots 880 and 995[83]. His explanation is that it would be unnecessary for one to set up electricity/water account for each and every lot. Utilities supply to some lots would be good evidence of his control over the entire area.

120.  The utilities bills were addressed to 14E Shek Wu Wai which, according to the Defendant, referred to Lot 995[84]. Bills and documents relating to 13E Shek Wu Wai were confirmed by him to be in respect of Lot 996[85]. In any event those 13E documents were all relating to his brother, not him.

121.  The Defendant’s explanation has to be assessed in the circumstances of the case. It is the Defendant’s evidence that his parents kept pigeons some time in the 1990s in the houses located in Lots 1010 and 1011 which were close to the 3^rd Lot. The pigeons were not for self-consumption but for sale. It was therefore a business conducted on a small scale. This Court believes that without electricity and water supply connected direct to the pigeon houses, it would be difficult, if not impossible for farming activities of any commercial scale to be carried out. At least some evidence of utility supplies to those areas could be shown, but none was forthcoming from the Defendant. Neither is there any sales invoices/contracts/orders etc. produced. Further, the electricity bills show a low usage. It is inconsistent with use of electricity for farming on a commercial scale. In the Court’s judgment, these documents cannot be regarded as clear and affirmative evidence. They obviously are not compelling and unequivocal evidence in support of his occupation of the said 3 Lots.    

   Compensation Documents

122.  As regards the compensation documents, the Defendant denied that they came with a plan. There were 21 items listed under “livestock Structure Information” though the Defendant apparently referred to 20 items at the cross-examination. According to the description, four structures were for keeping pigeons, two for agricultural stores, and fifteen for “other” purpose. The Defendant admitted he did not know where these “structures” were located[86]. He agreed, however, the pigeon houses might be referred to those built on Lot 880. He also said it might relate to Lot 1011. In any event, both lots are not the subject matters of the present litigation[87]. He said he had lost the documents relating to compensation paid for resumption of land for construction of the drainage channel and the footpath adjoining. He eventually agreed the compensation had nothing to do with the said 3 Lots.

123.  Since the structures referred to were not on the 3 lots in question, in the Court’s judgment, these documents are of little evidential value to the present claims.

   Purchase of Seeds

124.  Regarding the purchases of seeds, initially he said the receipts did not relate to agricultural activities on the 2^nd and 3^rd Lots. He later said they did. He said the receipt dated 18 October 1995 referred to gladiolus (劍蘭) seeds (should be bulbs). He said gladiolus normally takes 90 days from planting to blossom. He elaborated he and his family did plant gladiolus for Christmas and Chinese New Year. It is understandable gladiolus is grown for the Chinese New Year but it will be strange if it is grown for Christmas. In addition, had it traded gladiolus for the festive seasons, one would expect he would be able to retrieve some sale invoices/orders. Nothing of this sort has been produced. Further, there were three aerial photos taken respectively on 31 October 1996[88], 31 October 2008[89] and 19 January 2012[90]. These dates appeared to be the right time, according to the Defendant, for growing gladiolus. The aerial photos should therefore reveal pattern of flowers growing. However, the pictures show thick vegetation which is inconsistent with any flower growing pattern.

125.  According to the aerial photos, the two experts were only able to identify some farming activities on the said 2 lots occasionally but not continually. Even when farming activities were identified, they were unable to identify if they were used for cultivation of flowers.

126.  As regards the 1^st Lot, it was fair to say the two experts commented that as from 1984 to 1988, and 1993 to 1998 there were obvious farming activities. In between, the field was flooded. From 2004 onwards, the land was covered with thick vegetation, either aquatic plants (the aerial photo of 3/7/2003) or vegetation and small trees (the aerial photos from 31/10/2008 to 13/4/2014). All these are inconsistent with any farming pattern.

127.  From what has been said by the experts after study of the aerial photos, it is obvious that some farming activities were carried on the said 3 Lots in the past. However, it was only on an intermittent basis and not continuously throughout as from 1986 or 1991 or 2002. Even (assuming for the purpose of discussion without accepting as a fact) some of these farming activities on the said 3 Lots might have been carried out by the Defendant’s family, as the Defendant is a renovation contractor, this Court does not accept he himself was involved. On a balance, this Court does not believe the Defendant had carried out any farming activities on the said 3 Lots as alleged or at all.

   Lack of Improvement

128.  I accept Mr Siu’s submission that had the Defendant been living continuously at the 18 Lots including the 3 Lots, and kept his tools and equipment at the said place, he would have made some improvement to the areas, e.g. building of pavilion, concrete house and paved footpaths/roads for better enjoyment of the large area, storage of farming tools or better transport of tools and equipment which he alleged having been kept there. No evidence of this sort has been adduced.

Conclusion

129.  By reasons of the above, I do not accept the Defendant has adduced clear, affirmative, compelling and unequivocal evidence to support his continued possession of the said 3 Lots or any of them as from March 1984 adverse to the Plaintiffs. His evidence fails to satisfy the requirements set out in [28] above and is hereby rejected. Activities on the 18 Lots including the said 3 Lots might be done by others. Even assuming (without accepting as a fact) Leung Senior and the Defendant might have activities on the said 3 Lots, the activities were just occasional. Even so, such activities can only be regarded as trespass, or occasional trespass because no or insufficient evidence has been shown regarding the requisite intention to exclude the whole world. For the avoidance of doubt, it is this Court’s finding that the Defendant has failed to prove continuous and exclusive occupation of the said 3 Lots for 20 years as from March 1984, or for 12 years as from any time between July 1991 and 15 May 2002 adverse to the Plaintiffs. The Defendant’s counterclaim in each Action is hereby dismissed.

130.  As regards mense profit, the Plaintiffs are claiming only nominal amount, as to $100 per annum for the 1^st Lot and $50 per annum for each of the 2^nd and 3^rd Lot as from the date of the Originating Summons. In the Court’s judgment, the Defendant simply has no defence to such claim at all. He is in wrongful occupation of each of the said 3 Lots, and I do make such order against the Defendant.

131.  It is the finding of the Court the fence now appearing next to the 3 Lots in question is a recent erection. For that surrounding the 1^st Lot, it was only there between March and July 2013. As for the part next to the 2^nd and 3^rd Lot, it was a recent erection but less than 12 years before the commencement of the 2^nd Action. This Court believes that unless with express order, the Defendant will not remove or otherwise demolish them. It is also this Court’s belief that unless restrained, he will continue to trespass upon the said 3 Lots. This Court therefore make the following orders against the Defendant:

   1^st Action:

i)   The 1^st Plaintiff do recover vacant possession of the 1^st Lot described in the Amended Statement of Claim filed herein from each of the Defendants therein;

ii)   A mandatory order be made against the Defendant Leung Kan Lam (梁根林) to dismantle the fence now surrounding the 1^st Lot at his own costs within one month from the date of this order;

iii)   An injunction be granted against the Defendant Leung Kan Lam (梁根林), restraining him either by himself, his agent, factor, employee or representative from doing, or continuing doing any acts preventing, obstructing, interfering or otherwise hindering the Plaintiff, his agents, employee or representative from entering upon the 1^st Lot;

iv)   The Defendant Leung Kan Lam (梁根林) do pay the Plaintiff mense profit at the rate of $100 per annum as from 15 May 2014 until judgment and thereafter at the same rate until vacant possession of the 1^st Lot is delivered to the 1^st Plaintiff; and

v)   There be liberty to apply for further directions in    implementation of the order.

2^nd Action

i)   The 2^nd Plaintiff do recover vacant possession of the 2^nd Lot and 3^rd Lot described in the Amended Statement of Claim filed herein from each of the Defendants herein;

ii)   A mandatory order be made against the Defendant Leung Kan Lam (梁根林) to dismantle the fence now surrounding the 2^nd Lot and 3^rd Lot at his own costs within one month from the date of this order;

iii)   An injunction be granted against the Defendant Leung Kan Lam (梁根林), restraining him either by himself, his agent, factor, employee or representative from doing, or continuing doing any acts preventing, obstructing, interfering or otherwise hindering the Plaintiff, his agents, employee or representative from entering upon the 2^nd and 3^rd Lots or any of them;

iv)   The Defendant Leung Kan Lam (梁根林) do pay the Plaintiff mense profit at the rate of $50 per annum as from 1 August 2014 for occupation of each of the 2^nd and 3^rd Lots until judgment and thereafter at the same rate until vacant possession of any of the 2^nd and 3^rd Lots is delivered to the 2^nd Plaintiff; and

v)   There be liberty to apply for further directions in implementation of the order.

132.  There is no reason why the usual rule of costs to follow the event should not apply. This Court therefore makes a costs nisi that the Defendant Leung Kan Lam (梁根林) do pay each of the Plaintiffs’ costs of the Claim and Counterclaim, on District Court scale, to be taxed if not agreed with certificate for counsel (Mr Siu’s fee). Such costs order nisi are to be made absolute if no application is made to this Court to vary the same within 14 days from the date hereof.