MAN YU SHING SIMON v. SECRETARY FOR JUSTICE

HCA 1627/2012

[2025] HKCFI 666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1627 OF 2012

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J U D G M E N T

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Introduction

1.  Mr Man is an indigenous villager of San Tin, Yuen Long, New Territories. He brought this action to make claims in respect of a piece of unleased Government land in San Tin (“the Disputed Land”) pursuant to sections 7, 9 and 17 of the Limitation Ordinance, Cap. 347 (“the LO”).

2.  The Government opposes the claim of Mr Man and takes the position that Mr Man has wrongfully used and occupied the Disputed Land. By its counterclaim, the Government claims damages, mesne profits, interest and an order for delivery of vacant possession of the Disputed Land.

3.  Mr Szeto appears for Mr Man and Mr Miao appears for the Secretary for Justice at the trial.

Undisputed background facts

4.  The following account of the undisputed background facts are largely based on the opening submissions of the parties and the unchallenged matters appearing in the pleadings.

5.  Mr Man is presently the registered owner of two pieces of land known as Section A of San Tin Lot No 354 in DD 102 (“354 SA”) and the Remaining Portion of San Tin Lot No 354 in DD 102 (“354 RP”) (collectively “the Land”). The Disputed Land is located to the east of the 354 RP.

6.  There is a building erected on the Land and part of the Disputed Land (“the Building”). The Building was constructed in or about 1981 without approval granted by the Government and is the residence of Mr Man and his family.

7.  According to the inspection record of the District Land Office/Yuen Long (“DLO/YL”) in May 2008, the Building is of a height of about 12 meters straddled on the Land and part of the Disputed Land. A stairwell of the Building and a metal fencing with a pedestrian gate on the Disputed Land were observed.

8.  Mr Man became the registered owner of the 354 SA in 1995 by a Deed of Gift dated 31 August 1995 executed by his brother, Mr Keith Man. Mr Keith Man had been the registered owner since February 1982.

9.  Mr Man became the registered owner of the 354 RP in 1995 also by a Deed of Gift dated 31 August 1995. The Deed of Gift was executed by Man Kai Yan and Man Kai Chung who were the previous co-owners of the 354 RP and the cousins of Mr Man. They had been the registered co-owners since 1986.

10.  On 1 April 2010, the DLO/YL issued an advisory letter and required the occupier of the Disputed Land to cease occupation of the Disputed Land by the Building, a metal gate and a planter within 21 days.

11.  Absent any positive response, on 24 September 2010, the DLO/YL issued a notice (“the Notice”) under section 6(1) of the Land (Miscellaneous Provisions) Ordinance, Cap.28 (“the LMPO”), demanding the occupiers of the Disputed Land to cease occupation of the Disputed Land before 25 October 2010.

12.  On 8 April 2011, the Government laid a criminal charge of failing to cease unlawful occupation of Government land contrary to section 6(4) of the LMPO on Mr Man. The criminal proceedings have stalled.

Respective pleaded cases of the parties

13.  Mr Man’s pleaded case is simple and straightforward. His fundamental allegation is that since 1910, a house had been erected on the Land (“the Old House”). The Land was then registered under the names of and the Old House was possessed, occupied by the predecessors-in-title of Mr Man who were his ancestors and the members of the Man family.

14.  As for the Disputed Land, since 1910, the predecessors-in-title of Mr Man and Mr Man himself had as lessees and registered owners of the Land without permission and/or consent from the Government extended possession and/or encroach onto the Disputed Land and had enjoyed and maintained continuous and uninterrupted exclusive possession of the Disputed Land in the following manner:

(1)  Since at least 1910, the Disputed Land had been enclosed by the predecessors-in-title of Mr Man with a low stone boundary wall and fences and had been used as a garden ground attaching and/or annexing to the Old House for agricultural purposes such as sun-drying fertilizers;

(2)  The boundary wall and fences had been reinforced and improved on over the years and the state of possession of the Disputed Land remained the same unto 1981; and

(3)  In about 1981, the Old House was demolished and the Building consisting of three storeys was constructed on the Land. The Building was partially extended and/or encroached on the Disputed Land.

15.  Mr Man avers that the possession of the Disputed Land by his predecessors-in-title and he himself were and have been exclusive, continuous and uninterrupted and adverse to the Governments in excess of 60 years before the commencement of the present proceedings thereby invoking sections 7, 9 and 17 of the LO.

16.  Mr Man has another plea of acquiescence. He avers that the Government has since 1906 inspected the Land and the Disputed Land and produced several survey sheets from 1962 to 1989. The Government has had actual and presumed knowledge of the possession of the Disputed Land by his predecessors-in-title and him and yet it did not take any action until September 2010. Mr Man says that the Government is therefore barred from or estopped from denying the possession of the Disputed Land.

17.  Mr Man goes on to plead that the title of the Government to the Disputed Land is extinguished to the extent that no action for recovery possession can be taken against Mr Man.

18.  Lastly, Mr Man avers that the Notice was issued wrongfully.

19.  The pleaded case of the Government is equally simple and straightforward. First, the Government admits that at some stage, the Old House was built on the Land and that between 5 November 1980 and 17 May 1981, the Old House was demolished and replaced by the Building. The Government says that the Building is a 4-storey house.

20.  The primary case of the Government is that Mr Man and his predecessors-in-title have not ever maintained exclusive, continuous and uninterrupted possession of the Disputed Land. In the first place, the Old House was not erected on any part of the Disputed Land. Now the Building only straddles part of the Disputed Land and the remaining part of the Disputed Land is for garden purpose. In any event, any possession or encroachment over the Disputed Land could not exceed the requisite period of 60 years before the commencement of this action.

21.  Accordingly, the Government opines that it is entitled to recovery of immediate vacant possession of the Disputed Land and Mr Man being a trespasser has to pay damages, mesne profits and interests for his wrongful occupation of the Disputed Land. These are the reliefs the Government prays for in its counterclaim.

22.  In reply, Mr Man contends that even if the title of the Government to the Disputed Land was not extinguished, any right to claim for mesne profits, damages and interests shall be subject to section 4 of the LO.

Issues

23.  On the pleadings, the following issues emerge:

(1)  Whether and how Mr Man and his predecessors-in-title have maintained exclusive, continuous and uninterrupted possession of the Disputed Land for at least 60 years before the commencement of this action in September 2012;

(2)  Whether Mr Man can rely on the plea of acquiescence; and

(3)  In the event that answers to (1) and (2) are in the negative, whether and how much mesne profit is recoverable by the Government.

24.  Mr Man and his witness Madam Man (文慕貞) testified in support of his claim at trial. Mr Man filed a witness statement of 文水泉 (“SC Man”) and a witness statement of 文振賢 (“CY Man”) but they had passed away before the trial. Mr Szeto seeks to adduce their witness statements as hearsay evidence but Mr Miao raises objection to their admissibility. I shall resolve this dispute below.

25.  Mr Marco Cheng who is a Senior Land Executive of DLO/YL testified for the Government.

26.  Both parties have adduced expert evidence on the issue of liability. Mr Man’s expert is Mr Leung whereas the Government engages Mr Tse. Mr Leung and Mr Tse have compiled a joint report on liability dated 10 June 2021 (“the Joint Report”).

27.  The Government has also adduced expert evidence on the quantum of damages and/or mesne profits payable by Mr Man in the event of the rejection of his claim.

Applicable legal principles

28.  The law relating to adverse possession is well-settled. Both Mr Szeto and Mr Miao have helpfully drawn to my attention such principles pertinent to the issues calling for my determination.

29.  Wong Tak Yue v Kung Kwok Wai (1997-98) HKCFAR 55 remains the leading authority in this area of the law. The squatter must establish both factual possession and the requisite intention to possess (animus possidendi): Li CJ at 68E-69C.

30.  In the same case, Litton PJ said this at ,

“The law is clear. The owner of the land with the paper title is deemed in possession of the land. If the law is to attribute possession to a person who can establish no paper title to possession, and claims to be a mere trespasser, the burden is upon him to establish his intention to exclude the whole world: including the owner of the land. Only in this way can he establish ‘adverse possession’ in terms of s.13(1) of the Limitation Ordinance (Cap. 347).”

31.  In Poon Chi Hang v Lai Ho Sun [2019] HKCA 734, Barma JA said at §6,

“In brief, to succeed, the adverse possessor must prove both a sufficient degree of factual possession and an intention to possess. The necessary factual possession must be single and conclusive, and it must be exclusive, continuous, open, visible and notorious. It must not be equivocal, occasional, or for a special or temporary purpose. As for intention to possess, this refers to 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 reasonably practicable. Such intention will not easily be established by self-serving statements, but will be a matter of inference from the actions of the adverse possessor in the light of the circumstances of the case. The burden of proving both elements rests with the adverse possessor, and the evidence must be compelling, although the standard of proof is the normal civil standard based on the balance of probabilities. Occupation under a licence or otherwise with the permission of the paper owner does not amount to adverse possession.”

32.  The squatter must exercise an appropriate degree of physical control over the land. This depend on the circumstances having regard to the nature of the land and manner of possession. For example, while the enclosure of land may sometimes be regarded as strong evidence of adverse possession, such enclosure is not conclusive and has to be considered in light of all the other evidence. Erection of a fence to keep animals in might not demonstrate adverse possession. Similarly, the mere maintenance or repair of existing fences would not indicate an assertion of exclusive control over the land: Jourdan and Radley-Gardner, Adverse Possession (2^nd ed.) §13-18.

33.  Mr Miao additionally invites my attention to the fact that the alleged possession of the Disputed Land by the predecessors-in-title commenced before the enactment of the LO in 1965 and the repealed Application of English Law Ordinance 1966, Cap.88, the applicable law should be the English law in force at that time on the application of the Supreme Court Ordinance: Leung Kuen Fai v Tang Kwong Yu Tong [2002] 2 HKLRD 705 at 711H-714B per DHCJ Johnson Lam (as Lam PJ then was).

34.  The parties are in agreement that the applicable limitation period is 60 years: Megarry and Wade at §7-023. Mr Miao is right in his submission that the time only stopped running when the Government made its counterclaim to assert its legal right over the Dispute Land on 31 July 2013: Li Kwok Ching v Secretary for Justice (unreported, CACV 88/2015, 13.1.2016) per Lam VP (as he then was) at §2. Thus, the applicable 60-year limitation period should start to run in 1953.

Evidence of factual witnesses

35.  Mr Man’s witness statement consists of only 13 short paragraphs. He adopted the contents of his witness statement as his evidence.

36.  Mr Man was born in 1968. Since his birth he lived with his family in a house built on the Land before he was gifted the Land in 1995. He said he had been told by his parents and believed that the Old House was built in 1910 and had been occupied by his ancestors. The Old House was redeveloped into the Building in 1981.

37.  All Mr Man said about the alleged exclusive, continuous and uninterrupted occupation of the Disputed Land is included in one single paragraph (§12) which reads,

“When I was told that [the Disputed Land] was used for keeping animals and fire wood purpose, it was also used for storage purpose by my family during my childhood. I remember that a wall was erected to delineate the area of [the Disputed Land] with the open area next to it.”

38.  Instead of calling his family members who have personal knowledge of the use of the Disputed Land from 1953 to 1981, Mr Man only had Madam Man as his live witness.

39.  Madam Man was born in 1949. From 1949 to 1979 she resided in a village known as Wing Ping Village. The late father of Mr Man (“the Late Father”) was her fellow village member. During her residence in Wing Ping Village, her grandmother resided at a place situated in front of the Old House. Whenever Madam Man visited her grandmother or bring water from a well on the right side of the Old Building, she walked past the Old House.

40.  Further, from 1955 to 1957, Madam Man resided for about one year at the residence of the Late Father, i.e. the Old House due to the reconstruction of her own house.

41.  All Madam Man said about the use and condition of the Disputed Land is also contained in one single paragraph (§9). In summary, Madam Man said that there was a stone barrier encircling the Disputed Land occupied by the family of the Late Father. The Disputed Land was first used as a cattle pen and later changed to keep chicken and store firewood with the addition of wire fence to the stone barrier. Madam Man further asserted that due to the encirclement of the Disputed Land by the stone barrier, her fellow villagers and she treated the Disputed Land belonged to the Late Father and his family and in the absence of their consent, her fellow villagers would not enter the Disputed Land.

42.  As mentioned, Mr Man seeks to rely on the two witness statements of SC Man and CY Man, the admissibility of which is under challenge.

43.  In his opening submission, Mr Miao submits that this court should exclude these two witness statements due to the absence of prejudice to the interests of justice arising from their exclusion: section 47 of the Evidence Ordinance, Cap.8 (“the EO”). He submits that if, irrespective of what shall happen at the trial, no weight could be attach to a piece of evidence after taking into account the matters set out under section 49 of the EO, its exclusion would not be prejudicial to the interests of justice.

44.  I have gone through the list of matters to be considered in section 49 of the EO. The major objection on the part of the defence is that Mr Man should have procured the evidence of the two gentlemen through depositions pursuant to O.39 r.1 of the RHC after their witness statements were filed in 2012 and 2013 and before their death in 2023.

45.  Further, Mr Miao points out that their evidence is inconsistent with each other and with those of Madam Man. Mr Miao contends that their witness statements were not contemporaneous accounts but only their purported recollections of the occupation and use of the Disputed Land. He argues that they were made for the specific purposes of the present action.

46.  Whilst there is validity in Mr Miao’s submissions, I do not think those matters should necessarily justify the exclusion of their witness statements given the particular circumstances in the present case. Here, Mr Man has the onus of proving the alleged exclusive use of the Disputed Land since 1953, which is 15 years before his birth. Naturally and logically, Mr Man could only rely on the evidence of some more elderly people who have personal knowledge of such matters to discharge his burden of proof. SC Man and CY Man seemingly were able to speak from their personal knowledge and tell their observations concerning the state of the Disputed Land at the material time. It is perfectly understandable for Mr Man to seek their assistance to produce their witness statements. Their witness statements only became necessary after the commencement of these proceedings or when Mr Man found it necessary to resist any adverse claim to the Disputed Land. Their witness statements could only contain their recollections about the use and condition of the Disputed Land from the 1950s onwards and hence they were necessarily made not contemporaneously with the occurrence or existence of the matters stated therein. I do not think that there is anything untoward that the witness statements were made for the particular purpose of establishing the possession of the Disputed Land by the Late Father and his family since the 1950s.

47.  As regards the alleged inconsistencies in their witness statements and with the witness statement of Madam Man, it should be noted that their witness statements were made many years before Madam Man made hers. All of their evidence should be considered against other evidence. It is not the case here that by adducing the evidence of SC Man and CY Man, Mr Man seeks to change his case based on some evidence previously adduced.

48.  Hence, I do not think that in any event no weigh could be given to the witness statements. I decided to consider the admissibility of the witness statements after the trial and I did not exclude them at the outset of the trial.

49.  To make a claim of adverse possession, very often evidence containing recollections about the activities carried on at a particular piece of land in the distant past is essential. Those persons having personal knowledge about such matters are usually of advanced age and they may not be available to attend the trial physically and give live evidence. I agree with Mr Miao that Mr Man should have considered applying for their depositions to be taken soon after their witness statements were prepared. His legal advisors should have taken care of this in the first case management conference.

50.  Notwithstanding this, it appears to me that their evidence is relevant and genuine. SC Man and CY Man were actually unable to attend the trial due to their demise. I believe it would be prejudicial to the interests of justice if I simply exclude these witness statements. I decided to allow the admission of these witness statements though I would bear in mind that the defence is deprived of the chance to test their evidence when considering the weigh to be placed on them.

51.  In gist, the evidence of SC Man in his witness statement is that he was born in 1928 and resided in the same village with the Late Father. He farmed in the village and he walked past the Old House every day. The Disputed Land was adjacent to the Old House and was an open area. The Disputed Land was surrounded by a stone boundary. The open area between the stone boundary and the Old House was used by the Late Father and his family to dry grain. At the later stage, he could not see such a use but the family of the Late Father remained in possession of the Disputed Land and no one would enter or remain on the Disputed Land without their approval.

52.  The evidence of CY Man is that he was born in 1939 and was the neighbour of the Late Father. He left Hong Kong in 1957 and settled in the UK. He merely returned to Hong Kong in 1965 and 1990 twice. He was aware that the Old House was a one-storey building mainly for the storage of farming tools and dried grain. Adjacent to the Old House was a stone wall surrounding part of the Disputed Land. The Disputed Land was used for drying animal manures and timber and also used as a cattle pen. He claimed that the Late Father and his family were in possession of the Disputed Land and they could refuse to let anyone enter or remain on the Disputed Land.

53.  CY Man saw the Building when he came back to Hong Kong in the early 1990s. He confirmed that the Disputed Land had become part of the Building where the stairwell and the planter were constructed. He said that the planter was where the stone wall had been in his childhood. He believed that the stone wall was built by the family of the Late Father.

Expert evidence

54.  In the expert report of Mr Leung dated 3 February 2021 (“the Expert Report”), Mr Leung identified an open Government land (“Open GL”) which adjoins the Dispute Land in the east. From the aerial photo taken in 1924, the Disputed Land and the Open GL could be seen as a piece of open land.

55.  In the aerial photo taken in 1945, Mr Leung could see the Old House and a low fence/wall appeared to enclose the Dispute Land together with a strip of open area in the front, i.e., in the north, of the Old House. Another straight low fence/wall appeared in the north of the Open GL.

56.  In the aerial photo taken in 1956, Mr Leung observed that the Disputed Land and the Open GL became a continuous piece of open land again with the low fence/wall removed. Instead, a tall wall with a gate was built in the north of this area,

57.  In the aerial photo taken in 1961, Mr Leung observed that the Old House and the tall wall remained intact. In the south of the Disputed Land and the Open GL, it could be seen a straight free-standing wall extending from the corner of the Old House to only half of the side length of the combined Disputed Land and the Open GL.

58.  In his conclusion concerning the pre-1981 era, Mr Leung stated the Disputed Land was attached to the Old House since around 1910, It was fenced off, again as a distinctive area or as part of the joined area with the Open GL, since 1945 as evidenced by the aerial photos and survey sheets.

59.  In the Joint Report, Mr Leung and Mr Tse agreed that in the aerial photo taken in 1972, a wall at the northern side of the Disputed Land and a pile of materials on the southern part of the Disputed Land could be identified.

60.  Both experts further agreed that in the aerial photos taken from 1982 onwards, vegetation appeared in the southern part of the Disputed Land. By 1989, a line feature along the eastern side of the southern part of the Disputed Land could be seen thus turning this part as an enclosed area. This condition remained unchanged to at least 2019.

61.  Both experts also agreed that a fence could be identified along the eastern side of the southern part of the Disputed Land from the 2007 Survey Sheet and contemporary aerial photos.

62.  Mr Tse at the end of the Joint Report concluded that the Disputed Land was bound by the Old House to the west and two walls to the north and to the south. These walls were originally part of the walls used to enclose the Open GL to the east. The Disputed Land became identifiable and a line feature was first seen in the 1961 aerial photo which went along the eastern side to completely enclose the area.

63.  This line feature was missing from the aerial photos taken in 1972, 1978 and 1980, however. Since 1981, the northern portion of the Disputed Land was continuously occupied by the extension of the Old house while the southern portion was found to have signs of continuous occupation up to 2019.

Discussion

Mr Man’s claim

64.  Mr Man has serious difficulties in discharging his burden of proving the alleged exclusive, continuous, uninterrupted possession of the Disputed Land by his predecessors-in-title and he himself from 1953 to 2012.

65.  In the first place, Mr Man could not have any personal knowledge about the use and the state of the Disputed Land before 1968, his year of birth. He merely relied on what he had been purportedly told by his parents. The information allegedly given to him as stated in his witness statement, is very brief and lacks particulars. There is no mention about any enclosure of the Disputed Land at all.

66.  Nor did Mr Man produce any documentary evidence to prove the exclusive possession of the Disputed Land prior to 1981 by his predecessors-in-title and himself.

67.  The evidence of Madam Man, SC Man and CY Man could not assist Mr Man to establish any effective enclosure of the Disputed Land by the stone barrier or the stone wall observed by them in 1953. None of them said so in their evidence. It should be noted that Madam Man was only 4 years old in 1953. She accepted that she had no memory about any matters relating to the Disputed Land before she was 6 to 8 years old. She also accepted that she was not certain as to whether the stone boundary wall was removed after 1972.

68.  None of them could give any particulars about the construction of the stone barrier and how it came into existence. Only CY Man said that the stone barrier existed when he was small. His belief that it was built by the family of the Late Father is his sheer surmise.

69.  Nor could anyone of them tell the extent of the alleged enclosure by the stone barrier or the stone wall. Their allegation that the necessity of the consent of the family of the Late Father to enter and remain on the Disputed Land is merely speculative. Indeed, Mr Man agreed under cross-examination that he was not aware of any request for permission to enter the Disputed Land.

70.  While I do not doubt the bona fides of Madam Man and the two gentlemen, I could place little weight on their evidence.

71.  There is no evidence as to who actually built the stone barrier or the stone boundary wall. Even Mr Man himself did not identify the builder. His pleaded case that the Disputed Land had been enclosed by his predecessors-in-title with a low stone boundary wall and fences since 1910 is not supported by any evidence and must be rejected. It is noteworthy that only his brother Mr Keith Man and his two cousins were his predecessors-in-title in respect of the Land. None of them has given any evidence to support his claim in these proceedings and no explanation has been proffered for their failure to testify for Mr Man.

72.  The expert evidence does not take the case of Mr Man any further. Quite on the contrary, as pointed out by Mr Miao, the expert evidence negates the allegation of enclosure of the Disputed Land throughout the entire requisite period. This is a huge blow to the pleaded case of Mr Man.

73.  Mr Leung clarified in cross-examination that the low fence wall identified in the aerial photo in 1945 did not enclose the Dispute Land. He also accepted that the low fence was subsequently removed as shown in the aerial photo in 1956. The tall wall with a gate identified at the northern side of the Disputed Land alone could not enclose the Disputed Land.

74.  In any event, despite the presence of the tall wall and the gate, as accepted by Mr Man, there was an opening at the structure allowing free access to the Disputed Land.

75.  Moreover, the linear features along the eastern side of the Disputed Land shown in the aerial photos in the 1960s disappeared in the aerial photo in 1972. Such linear features cannot be taken as evidence of continuous enclosure of the Disputed Land.

76.  Mr Szeto complains about the quality of the aerial photos and their inability to reflect the actual status of occupation of the Disputed Land due to their limitations. I find no validity in this complaint.

77.  First and foremost, neither Mr Leung nor Mr Tse indicated that the quality of the aerial photos covering the requisite period had caused them any concern and hampered their analysis.

78.  It is futile to suggest that the wire fences might not be captured in the earlier aerial photos when the pleaded case is that the enclosure of the Disputed Land was done with low stone boundary wall.

79.  Mr Szeto seeks to rely on the thick dotted lines and double dotted lines in the House Block Plan circa 1906 to suggest that the Disputed Land was enclosed. As explained by Mr Leung, the area bound by the dotted lines was the Disputed Land and the Open GL shown as one single piece of open land only. The dotted lines themselves do not suggest any enclosures of the Disputed Land. Such an enclosure allegedly denoted by the dotted lines is never supported by any expert evidence.

80.  Mr Szeto in his opening submissions highlighted to this court that the acts of the squatter commonly establish possession of the land include erection of fences to exclude people from entering, installing gates or otherwise control the entrance to the disputed land and paving the land. Mr Man did not begin to prove any of these acts.

81.  There is no evidence let alone clear and compelling evidence as to how any of the predecessors-in-title of Mr Man had exercised any physical control of the Disputed Land since 1953 to claim any exclusive possession of the same.

82.  Despite the discrepancies of the evidence among Madam Man, SC Man and CY Man, I can accept that the Late Father and his family had at certain points of time used some part of the Disputed Land to raise chickens, keep their cattle, dry animal manures and grain and store their firewood even the aerial photos do not show such activities. This explains why some fences were once erected to keep the animals/livestock in. However, there is no credible and reliable evidence about the commencement times and the continuity of such activities. I do not accept that such activities could assist Mr Man to prove exclusive possession of the Disputed Land since 1953.

83.  In the absence of any evidence of enclosures of the Disputed Land and exclusive physical control of the Disputed Land exercised by the predecessors-in-title of Mr Man and he himself throughout the requisite period, I am unable to find their continuous factual possession of the Disputed Land for 60 years since 1953.

84.  Another problem with Mr Man’s claim of adverse possession is that he fails to prove that his predecessors-in-title had been in singular possession of the Disputed Land from 1953 to 1995.

85.  Lord Hope in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at §70 explained the general rule of singularity in the follow terms:

“The general rule, which English law has derived from the Roman law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of property simultaneously. As between themselves they have separate rights, but as against everyone else they are in the position of a single owner.”

86.  Cheung JA in Leung Chi Cheong v Liu Che Wan [2022] 4 HKLRD 633 cited the foregoing passage and said this at §54,

“… the constant principle in cases of adverse possession is that when more than one squatter have possession simultaneously, the title acquired is held by the squatters as joint tenants, in the absence of evidence of a contrary intention, but one alone of the joint squatters cannot claim title alone. In other words, possession of land by the squatters must be single in that it can be held jointly but not severally.”

87.  The pleaded case of Mr Man is that the predecessors-in-title (who were the ancestors of Mr Man) and/or he himself had been in possession of the Disputed Land since 1910. His evidence is that his family including the Late Father and him had been in exclusive, continuous and uninterrupted possession of the Disputed Land.

88.  Thus, prior to 1995, there were more than one person in possession of the Disputed Land. Man Kai Yan, Man Kai Chung, the Late Father and his family members including Mr Keith Man and Mr Man had possession of the Disputed Land. It must be proved that they possessed the Disputed Land jointly and not severally. The evidence of Mr Man, however, does not begin to prove singular possession of these alleged possessors. There is nothing to show that the control over the Disputed Land was exercised jointly.

89.  Without proof of exclusivity and singularity, the alleged factual possession of Mr Man and his predecessors-in-title of the Disputed Land from 1953 onwards cannot be made out.

90.  In light of my conclusion that Mr Man has failed to prove factual possession of the Disputed Land, which is one of the essential requirements in a claim of adverse possession, strictly speaking, I need not consider the other requirement, i.e., the requisite intention to possess.

91.  Indeed, the issue of the intention to possess does not arise if there is no proof of factual possession. Suffice it for me to say that there is no clear and affirmative evidence to suggest that the predecessors-in-title of Mr Man had an intention to exclude the world at large including the Government from the Disputed Land at large at least from 1953 onwards. There is no convincing evidence that any of his predecessors-in-title had done anything to exclude the world at large during the relevant period.

92.  Mr Szeto submits that this court should adopt an open-minded approach in dealing with the evidence of Mr Man regarding proof of possession when the relevant limitation period is 60 years.

93.  I am unable to accept this submission. To start with, the quality of the evidence adduced is so much below the requisite standard that whatever approach is adopted, it is not sufficient to establish a claim of adverse possession.

94.  Further, the lengthier period required to extinguish the title of the Government is there for a reason. Its purpose will be defeated if the court is ready to lower the threshold for the squatters in their claim against the Government. His suggestion is not supported by any authorities too.

95.  Next, Mr Szeto submits that even in the event that Mr Man fails to prove his plea of adverse possession, he is still able to invoke the provisions in the LO to resist the recovery claim of the Government.

96.  In outline, Mr Szeto’s argument runs as follow. Section 7 of the LO provides that the Government shall be debarred from bringing an action to recover land after the expiration of 60 years from the date on which the right of action accrued to the Government. Section 17 of the LO further provides that at the expiration of such a period, the title of the Government to that land shall be extinguished.

97.  Mr Szeto points out that these provisions do not provide for any grant of a possessory title to that land. Indeed no mention of possessory title is made in these provisions.

98.  Mr Szeto then submits that a squatter could only acquire a possessory title to a piece of land by the common law doctrine of adverse possession. To rely on the doctrine of adverse possession, the squatter has to prove an additional element of his possession of that land, i.e. his intention to possess.

99.  Mr Szeto refers to Pang Yiu Chor v Wong Wai Leung [2017] 4 HKLRD 761 to support his submission that a squatter can successfully rely on the LO to defeat the paper owner’s claim for possession but still be denied a possessory title due to his failure to establish adverse possession.

100.  It follows that so long as sections 7 and 17 of the LO should be invoked on the evidence, the Government is debarred from taking recovery action against Mr Man and its title to the Disputed Land shall be extinguished regardless of whether Mr Man is able to establish his claim of adverse possession.

101.  I do not accept that there is such a distinction between the LO and the doctrine of adverse possession. The analysis of Mr Miao provides a complete answer to the submission of Mr Szeto.

102.  Sections 7(1) and 8(1) must be read together. Section 8(1) stipulates when time starts to run under section 7(1). It only runs upon the date of dispossession or discontinuance of its possession of the land in question.

103.  Mr Miao then draws my attention to Powell v McFarlane and Anor. (1979) 38 P & CR 452 in which Slade J said this at pp.469-470,

“Neither the word “possession” nor the word “dispossession” is defined in the 1939 Act.

… I would for my own part have regarded the word “possession” in the 1939 Act as bearing the traditional sense of that degree of occupation or physical control, coupled with the requisite intention commonly referred to as animus possidendi, that would entitle a person to maintain an action of trespass in relation to the relevant land; likewise I would have regarded the word “dispossession” in the Act as denoting simply the taking of possession in such sense from another without the other’s licence or consent; likewise I would have regarded a person who has “dispossessed” another in the sense just stated as being in “adverse possession” for the purpose of Act.

… In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.”

104.  In the premises, the words “possession” and “dispossession” in the LO should bear the same meaning as “adverse possession”. Both physical control and the requisite intention of animus possidendi are required.

105.  Since the Government as the paper owner is deemed to be in possession of the Disputed Land, to invoke section 7, Mr Man has to prove that the Government has been dispossessed for the requisite period. It is not enough to show that he and his predecessors-in-title have occupied the Disputed Land. They must have dispossessed the Government the Disputed Land by being in adverse possession therein.

106.  Without dispossession or discontinuance of possession of the Disputed Land on the part of the Government, section 7 is not engaged and the Government’s action to recover the Disputed Land is not subject to any limitation issue. Mr Man cannot rely on sections 7 and 17 to defeat the claim of the Government without proving the alleged adverse possession of the Disputed Land.

107.  On a proper analysis, Pang Yiu Chor cannot support the proposition of Mr Szeto. There, Anthony Chan J dismissed the plaintiff’s claim for recovery of possession of land and made a declaration that his title to the land had been extinguished by reason of the Real Property Limitation Act 1833 but refused to grant to the defendants a declaration that they had possessory title to the land. Yet, the decision was not made on the basis of any distinction between the LO and the common law doctrine of adverse possession.

108.  Rather, the decision was made on the particular facts in that case. The Government mistook the land for government land and granted a licence to the defendants to occupy the land. The judge found that the Government should be the adverse possessor entitled to possessory title to the land, having been in factual possession of the land through its licensees and having the intention to possess excluding anyone at large from the land by granting the licence to the defendants. The judge refused to grant to the defendants a declaration of possessory title because they were mere licensees of the Government without animus possidendi. The judge did not consider any distinction at all.

109.  For the sake of completeness, I should dispose of the plea of acquiescence made in Mr Man’s pleading. Mr Szeto said nothing about this plea in his opening and closing submission. I take that as an abandonment of the plea. In any event, I agree with Mr Miao that the plea is seriously defective in that there is no allegation, let alone evidence, of any detriment, reliance or misapprehension of legal right on the part of Mr Man. The plea is a non-starter in my view.

110.  I should make it clear that the focus of my analysis is clearly on the evidence relating to the condition of the Disputed Land and the activities purportedly carried on therein from 1953 to 1981 when the Old House was replaced by the Building. Whatever happened after 1981 to the use of the Disputed Land could not be sufficient to entitle Mr Man to a possessory title to the Disputed Land.

111.  Having concluded that Mr Man has failed to prove adverse possession, I find that sections 7 and 17 cannot be invoked and the flip side is that the Government’s counterclaim for delivery of vacant possession of the Disputed Land and damages for trespass or mesne profits should be allowed.

Counterclaim

112.  Apart from vacant possession of the Disputed Land, the Government asks for mesne profits and has adduced expert evidence on the quantum. Mr Man has adduced no relevant evidence in this regard.

113.  Mr Miao submits that a trespasser is liable for mesne profits even if no financial loss caused to the landowner can be proved. The landowner is still entitled to recover from the trespasser damages with reference to the benefit he received from his wrongful use of the land: AG v Blake [2001] 1 AC 268 per Lord Nicholls at 278E-279E, Stoke on Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406 per Nourse LJ at 1410-1411 and Incorporated Owners of Percival House v Fusion Advertising Solution Ltd [2012] 5 HKC 94 per HH Judge M Wong at §9.

114.  Ms Wong is the Estate Surveyor of the DLO/YL in the employ of the Government and she does valuation for land for the Government. She has been a professional surveyor since 2012.

115.  Ms Wong has produced a valuation report dated 24 July 2024. An actual summary of her evidence by Mr Miao is as follows:

(1)  The mesne profits figure is assessed on the basis of the Disputed Land being let out for private domestic use (which reflects the 10 m² portion used as a stairwell) and private garden use (which reflects the 13 m² portion used as a garden) at full market rate.

(2)  The rental value is assessed by reference to rental comparables of New Territories Exempted Houses, which is the dominant type of use found in the area.

(3)  The rental rates are assessed at 2-year intervals. The rental value per m² adopted gradually increased from HK$1,000 to HK$2,000 for the domestic use portion, and from HK$167 to HK$333 for the garden portion (i.e., 1/6^th of the domestic portion unit rate).

116.  Ms Wong’s latest assessment covers the period from 1 August 2007 to 31 May 2024. The aggregate market rental figure is assessed at HK$1,039,870. The Government’s claim for mesne profits from 1 August 2007 onwards cannot be time-barred.

117.  In the absence of any contrary evidence and valid challenge, I accept the evidence of Ms Wong in its entirety.

118.  Mr Szeto argues that the Building has only 3 storeys whereas the witnesses of the Government including Ms Wong insist that it has 4 storeys. Mr Szeto submits that the top floor of the Building is used for rooftop access only.

119.  I have studied the photos of the Building annexed to the expert report. I agree with Mr Szeto that the structure above the 3^rd floor of the Building seems to be for rooftop access only.

120.  But I also agree with Mr Miao that the nature or the user of the top floor of the Building has no bearing on its valuation. It is still a part of the Building for residential use and there is no expert evidence to the effect that valuation of the rooftop access should be different from that of other parts of a residential building.

121.  The valuation of Ms Wong is based on the rental comparables collected in Yuen Long district and references were made to rental comparables of New Territories Exempted Houses in Wing Ping Tsuen and Fan Tin Tsuen, Yuen Long. Ms Wong pointed out that in the vicinity of the Disputed Land, a number of New Territories Exempted Houses could be found and so they should be appropriate comparables.

122.  Mr Szeto does not challenge the valuation of Ms Wong and he only argues that the comparables should be government properties rather than privately owned properties.

123.  I accept the submission of Mr Miao that the focus should be on what Mr Man has gained from his trespass and not on the basis of a hypothetical licence to be granted by the Government. The Building is being used as a private residential property and valuation should be done on that basis.

124.  As indicated, I accept Ms Wong’s assessment of the aggregate market rental figure of HK$1,039,870 from 1 August 2007 to 31 May 2024. From 1 August 2019 onwards, Ms Wong adopts the unit rates of HK$1,900/square meters p.a. and HK$317/square meters p.a. for private domestic use and private garden use respectively and I agree that Mr Man should pay mesne profits at these rates from 1 June 2024 to the date of his delivery of vacant possession of the Disputed Land to the Government.

125.  The Government should also be entitled to interest on the mesne profits payable from the date of this Judgment to the date of full payment.

Conclusion and order

126.  The evidence adduced by Mr Man relating to his claim of adverse possession of the Disputed Land is far from clear, compelling and affirmative. Throughout the long period from 1953 to the year when he was born, Mr Man cannot have any personal knowledge of the Disputed Land. He could only rely on the causal observations of his three witnesses. Their assertion that the Disputed Land was surrounded by a stone barrier cannot be accepted as evidence of enclosure. The expert evidence does not support this assertion, either.

127.  I conclude that Mr Man has failed to prove exclusive and singular possession of the Disputed Land from 1953 to 1981 at least. The Government could not have been dispossessed of the Disputed Land by Mr Man and his predecessors-in-title for the requisite period of 60 years. Mr Man’s claim of adverse possession must be dismissed. I so order.

128.  Mr Man now remains a trespasser on the Disputed Land. The counterclaim of the Government must be allowed. I order that Mr Man do pay the Government mesne profits from 1 August 2007 up to 31 May 2024 in the amount of HK$1,039,870 and thereafter at the unit rates of HK$1,900/square meters p.a. and HK$317/square meters p.a. for private domestic use and private garden use respectively until full payment.

129.  I allow interest on mesne profits payable from the date of the Judgment until full payment.

130.  The Government is entitled to vacant possession of the Disputed Land. A part of the Building is erected on the Disputed Land and I am alive to the complication of removal of such part from the Disputed Land. Mr Man should have made plans when the Government first demanded vacant possession, however. I order that Mr Man do deliver vacant possession of the Disputed Land to the Government within 6 months from the date hereof. Any application for an extension of time to comply with this order must be supported by cogent evidence and made to this court.

131.  There is no reason why costs should not follow the event. I make an order nisi that costs of this action including any costs reserved be paid by Mr Man to the Government, to be taxed if not agreed.

132.  Lastly, I thank Mr Szeto and Mr Miao for their assistance in this matter.