DCMP 370/2012
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 370 OF 2012
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BETWEEN
DRAGON SKY PROPERTY LIMITED
Plaintiff
and
YEUNG MEI HOI (楊美海)
1st Defendant
ALL OTHER OCCUPIERS of ALL THAT piece of ground situate lying and being at Yuen Long, New Territories and registered in the Land Registry as The Remaining Portion of Lot No 498 in the Demarcation District No 102 Together with the building erected on
2nd Defendant
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Before: Deputy District Judge Anthony Chow in Court
Date of Hearing: 9 to 13 and 16 to 18 June 2014
Date of Judgment: 8 July 2014
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JUDGMENT
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Background
1. The plaintiff is the owner of the property known as the remaining portion of Lot 498 in DD 102 (The “Property”).
2. After the plaintiff became the owner of the Property on 26.11.2010, it discovered the property was occupied by the 1st defendant and other unknown trespassers and filed Originating Summons under O 113 of the Rule of District Court, for possession.
3. The 1st defendant acknowledged service of the originating summons and contested the plaintiff’s claim. The 1st defendant raised a counterclaim on adverse possession and relied on his counterclaim as defence to the plaintiff’s claim.
4. By order of Registrar C Lee, dated 13.3.2012, the proceeding under O 113 was ordered to continue as if begun by writ.
The plaintiff’s case
5. It is undisputed that the plaintiff became the owner of the Property by way of assignment dated 26.11.2010.
6. Approximately one week before the date of the assignment, Mr Man Ping Nam, the director of the plaintiff (“Mr Man”), visited the Property. The Property was not fenced in and Mr Man was able to enter without hindrance.
7. After the assignment, the plaintiff commissioned Winner Surveying Co, its surveyor, to conduct a survey of the Property. On or about 21.1.2011, Winner’s surveying team was also able to entered and proceed with their survey work. It was observed that the Property was not fenced in.
8. The survey team worked for approximately 2 hours without incident, when they were about to hammer the fifth and final boundary marker nail on the ground, they were interrupted by a male. For safety reasons, the survey team left after they consulted Mr Man.
9. In or about mid-February 2011, Mr Man went to the Property and discovered that the Property was then enclosed by a fence with close circuit television installed.
10. The 1st defendant and other occupiers of the Property did not have consent from the plaintiff to occupy the Property. The plaintiff filed this action for an order for possession, injunction and mense profit against the defendants.
The 1st defendant’s case
11. When the 1st defendant was 11 years old, on 8.5.1973, his mother Madam Law (the “Mother”) purchased a farm, together with various structures there on, from Mr Lam Chung Bun.
12. Although the purchase agreement mentioned only Lots 415, 417, 418 and half of 419, which were lots leased from their owners (the “Leased Land”), the 1st defendant alleged the farm actually extended beyond the Leased Land and included the Property.
13. The 1st defendant married in 1981, one or two years later, in 1983, his father, Mr Yeung Chung (the “Father”) gave the farm to him and thereafter, the 1st defendant had sole, uninterrupted and exclusive possession of the whole farm, including the Property.
14. The 1st defendant alleged his parents were adverse possessors of the Property from 1973 and when he took over the farm in 1983, he continued his parent’s adverse possession. Accordingly, the paper title holder’s interest in the Property was extinguished 20 years later, in 1993.
15. In the alternative, the 1st defendant alleged that if his adverse possession period of the Property started in 1983, the paper title holder’s interest in the Property was extinguished in 2003.
16. Accordingly, the 1st defendant counterclaimed for adverse possession of the Property.
Preliminary issue
17. Because the 1st defendant alleged the farm includes the Leased Lands, the Property and other lots, at the pre-trial review hearing, Mr Tommy Lo, counsel for the 1st defendant, was concerned whether the interest of the owners of the other lots may be affected.
18. If Mr Lo was so concerned, the 1st defendant should have included the owners of all other lots in his counterclaim. As it was, Mr Lo had two choices: ask for an adjournment, add the other owners in the 1st defendant’s counterclaim; or proceed with the trial.
19. Mr Lo elected to proceed with the trial and in case there is any doubt, my finding of facts in this matter solely affects the Property and parties to this matter and no one else.
The Law
20. It is agreed that the requisite period for adverse possession in this case is 20 years.
21. Legal principles for adverse possession are well settled. The 1st defendant has to establish both an intention to possess and factual possession of the Property for the requisite 20 years period.
22. I find the head notes on Li CJ’s judgment in Wong Tak Yue v Kung Kwok Wat & Anor [1998] 1 HKC 1 summaries the legal principles involved most succinctly. The commentator wrote:-
“A person claiming to be in adverse possession must have both possession and the requisite intention to possess. The question of intention to possess, as with any other question of intention, was one of fact. Whether the intention could be established depended on an assessment of all of the circumstances in a particular case. Where the occupier had made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinise the circumstances in which they were made and would give them such weight as they deserved. Conversely, where the occupier had made statements which were against his interest, the courts would usually accord to them considerable weight.”
The issues
23. As in most adverse possession claims, the issues here are: Does the 1st defendant have the requisite (1) intention to possess and (2) physical possession of the Property, for 20 years?
Intention to possess
24. The 1st defendant’s burden of proof is a heavy one. In Powell v McFarlane (1979) 38 P&CR 452, Slade J wrote:-
“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”
From 1973 or 1983?
25. Parties spend considerable time in arguing whether the 1st defendant’s adverse possession period should start from 1973, when his parents purchased the farm; or from 1983, when the 1st defendant alleged the Father gave him sole, uninterrupted and exclusive possession of the farm.
26. Mr Lo first argued that the 1st defendant and his parents adversely possessed the Property in 1973 as a family unit. However, In Ng Lai Sim v Lam Yip Shing and Anor , HCA 2963/1998, a case where a daughter-in-law married into the family in 1977 and the father-in-law passed away in 1995. In finding the daughter-in-law (the plaintiff in that case) cannot claim possession of the property from 1977, Mr Justice Cheung (as he then was) held:-
“When she married in March 1977, her father-in-law Lam Yuk Leung was the head of the household. From that time onwards until his death, the one in possession of the Property must be Lam Yuk Leung and not the Plaintiff. It is clear from the evidence that it was Lam Yuk Leung who permitted and asked the plaintiff to use the house for storage. I do not accept that in a traditional Chinese household in the New Territories in the 1970’s, the daughter-in-law would exercise such an assertive role as soon as she married into the family by acquiring possession of the Property.”
27. Similarly, under cross-examination, the 1st defendant admitted prior to 1983, he lived on the farm with the permission of the Father. This admission clearly placed his occupation of the farm before 1983, subservient to the Father.
28. Also in 1973, the 1st defendant was 11 years-old, I find it very difficult to believe he had the mental capacity to understand the concept of adverse possession, let alone to consider himself as an equal co-possessor with the Father. This is especially true in a traditional Chinese family in the 1970’s.
29. I am unable to accept Mr Lo’s adverse possession by family unit argument. I find before 1983, the Father was in possession of the farm and permitted the 1st defendant to use the farm. In other words, the 1st defendant’s legal status on the farm was nothing more than a bare licensee of the Father.
30. Mr Lo’s second argument was based on the successive squatter principle, where the parent’s adverse possession period was passed onto the 1st defendant when he allegedly took over the farm in 1983.
31. In Ng Lai Sim , quoting Megarry & Wade (at page 1036) Mr Justice Cheung (as he then was) continued:-
“However, the fact that the plaintiff was not in possession from 1977 to 1995 is not fatal to her claim. Because the law is clear that the second squatter can add the period of possession of the first squatter to her own period of possession in order to complete the period of possession.”
32. Mr Stanley CK Siu, counsel for the plaintiff, argued that the pleading does not support a case of successive squatters. Mr Siu gave the following reasons:-
(a) The 1st defendant did not plead that his parents were in exclusive possession of the Property between 1973 and 1983.
(b) The 1st defendant did not plead that his parents ceased to be in exclusive possession of the Property on 1983; or his parents were dispossessed by him in 1983.
(c) The 1st defendant’s pleaded case was since 1974 or 1975, the Property was in his and his parent’s joint possession and in 1983, the 1st defendant was allowed by his parents to operate the farm.
33. Whilst I agree with Mr Siu’s arguments on pleading, but these facts can readily be implied from the pleadings. The problem with Mr Lo’s claim for successive squatters is whether in 1983 the Father gave up possession of the farm and the 1st defendant’s status changed from a bare licensee to that of a possessor.
Did the Father give up possession of the farm in 1983?
34. The 1st defendant’s case is in 1983, the Father and the Mother lived in Germany for a few months. When they returned to Hong Kong they lived in 美樂花園with another son for a few more months and returned to live in their original dwelling on the farm.
35. The 1st defendant alleged that he “allowed” the Father and the Mother to return to the farm, implying the parents had to seek his permission to return to their original dwelling. Again, I find this hard to believe in a traditional Chinese family in the 1980’s.
36. In any event, the 1st defendant’s only evidence that the Father gave up possession of the farm in 1983 was his own testimony.
37. In his Defence and Counterclaim, the 1st defendant pleaded:-
"7. In or about 1983, the 1st defendant parents decided to allow the 1st defendant to enjoy sole, uninterrupted and exclusive possession of the Property and the aforesaid land
8. The 1st defendant's parents also allowed the 1st defendant to become the sole proprietor of the said farm."
(Emphases added).
38. In the 1st defendant's Witness Statement, he also stated:-
"24. I recall that about one or two years after my marriage, ie in or about 1983, my parents decided to allow me to enjoy sole, uninterrupted and exclusive possession of the whole farm and the land occupied by it. My parents told me that their decision was based on the following grounds. ...
25. In the circumstances, since the early 1980s, my parents allowed me to become the sole proprietor of the farm. I became responsible for running the farm. I enjoyed sole and uninterrupted and exclusive possession of the land over which the farm and its related structures were located. ..." (Emphases added).
39. Mr Siu argued according to the above pleadings and statements, after 1983 the 1st defendant’s sole, uninterrupted and exclusive possession was still only allowed by his parents. In other words, the Father never gave up possession of the farm and the 1st defendant’s status remained one of a bare licensee of the Father.
40. I agree with Mr Siu’s argument and because these are the 1st defendant’s statements against his interest and in accordance with the legal principle stated in Wong Tak Yue , I must accord them considerable weight.
41. Aside from the 1st defendant’s statements against his own interest, there are other considerations that go against the 1st defendant’s allegation that in 1983, the Father gave up possession of the farm and the 1st defendant’s status changed to that of the sole, uninterrupted and exclusive possessor.
42. Although the 1st defendant did not specify how the Father gave him sole, uninterrupted and exclusive possession, but upon his admission that no consideration was paid to the Father, the only logical conclusion is it must be by way of gift.
Was there a valid gift in 1983?
43. A valid gift must fulfill two requirements, as Plowman J stated in Thomas v Times Book Co Ltd [1996] 1 WLR 911 at 915D-E:-
“… in order to establish a gift the [donee has] to establish two things, first of all, the relevant animus donandi, or the intention of making a gift, and secondly, a delivery of the subject-matter of the gift …to the donee.”
44. Except his own words, the 1st defendant submitted no evidence in support of the Father’s intention to give him the farm as a gift. In accordance with the legal principle stated in Wong Tak Yue , I therefore must scrutinise the 1st defendant’s self-serving statement against the 1st defendant’s other evidence.
45. According to the 1st defendant’s other evidence:
(a) No documentation was executed by his parents to formalize this gift
46. I have carefully considered and rejected the 1st defendant’s explanation that because this was within family, no formal documentation was needed.
47. As far back as 1973, when the Mother purchased the farm from Lam Chung Bun, there were several documents executed. These were not formal sale and purchase agreements, but the intention of the parties was clearly expressed.
48. If the Father’s intention was to unequivocally give up possession and gift the farm to the 1st defendant, he could have easily recorded his intention in a simple document.
(b) The father kept all records, leases and other documents related to the farm in his possession
49. Even if the Father’s education prevented him from recording his intention in writing, he could have signaled unequivocal handing over control of the farm by delivery of the deeds and documents, as symbolic tokens representing the farm, to the 1st defendant.
50. Under cross-examination, the 1st defendant admitted all documents he filed in this matter were found in one of the Father’s drawers, kept in the parent’s dwelling, which is separate from the 1st defendant’s own dwelling.
51. The Father keeping all documents relating to the farm is more consistent with his intention to keep possession of the farm rather than giving it to the 1st defendant as a gift.
(c) The mother remains the tenant for the Leased Land
52. In accordance with all tenancy agreements filed by the 1st defendant, including the last tenancy agreement dated 1.11.2003, the Mother remains the tenant for the Leased Lands.
53. During cross-examination, the 1st defendant admitted up to the date of trial, the Mother remains the tenant of the Leased Land and all rents paid were paid for and on behalf of the Mother.
54. The Mother remaining as tenant for the Leased Land does not support the 1st defendant’s argument that the Father gave up possession and gave him the farm as a gift.
(d) The Father claimed ex-grata allowance to give up pig rearing in 1994
55. In 1994, 11 years after the 1st defendant’s alleged gift, the Father claimed and received $384,836.42 from the Hong Kong Government as ex-grata allowance to give up pig rearing on the farm.
56. This is against the 1st defendant’s argument that in 1983, the Father gave up possession of the farm and gave it to him as a gift.
57. I have carefully considered the 1st defendant’s argument that he wanted to give the Father a pension and therefore “allowed” the Father to claim the ex-grata allowance.
58. This argument is nonsensical, because it was just as easy for the 1st defendant to claim the payment and then gift it to the Father.
59. Clearly, at least up to 1994, the Father remained the operator and, by necessary implication, the occupier and possessor of the farm.
(e) All utility accounts are still in the Father’s name
60. This again is clear intention of the Father to retain control of the farm and does not support the 1st defendant’s argument that there was a gift in 1983.
61. Having considered all of the above, I place no weight on the 1st defendant’s self serving statement that the Father intended to give him the farm as gift in 1983. There being no evidence the Father intended to give the farm to the 1st defendant, there was no valid gift in 1983.
62. Even if I found the Father had intended to give the farm to the 1st defendant in 1983, which is of course not my finding, there is no evidence that anything was delivered to the 1st defendant to fulfill the second requirement of a valid gift.
63. Accordingly, I find the 1st defendant’s status prior to 1983 was a bare licensee of his Father and this status did not change after 1983. The 1st defendant failed to prove he had the requisite intention to possess and the defence and counter claim must fail.
64. That should be the end of the 1st defendant’s case; however for completeness I will continue to analysis the issue of actual possession assuming I found the 1st defendant had the requisite intention to possess, which is of course not my finding.
Physical possession
65. The 1st defendant claims physical possession of the Property base on two grounds: (1) enclosure by fence and (2) usage as a farm. I will deal with these separately.
Enclosure by fence
66. The 1st defendant submitted two types of evidence in support of his allegation that the farm, which the Property forms a part of, was enclosed by a fence shortly after 1973.
67. The first type of evidence is the 1st defendant’s own words. The 1st defendant alleged in or about 1973, his family had exclusively possessed the Property and other lots by enclosing it with a wire mesh fence. The fence was about 5 to 6 feet in height and anchored by angle steel bars to the ground.
68. The 1st defendant said that his family's occupation limit in 1973 was reflected by blue markings on an aerial photograph dated 17.12.1973, and filed as appendix 5 of the 1st defendant’s expert report.
69. The 1st defendant then said that the farm expanded westward in 1977 and the fence enclosed parts of lots 483, 486, 487, 488 and all of lot 485.
70. In his final submission, Mr Lo, quoting the various statements and photographic evidence submitted by the 1st defendant, propose to take me on a visual tour of the farm. The problem with these evidences is the fact that the photographs only show me the condition of the farm, including part of the fence, as of the date of the photographs in late 2011 or early 2012 and was not helpful in determining when the fence was constructed.
71. As to the 1st defendant’s statements, there are numerous inconsistencies that made his statements unreliable.
72. Mr Siu submits that concerning the area of the farm as from 1977, the 1st defendant gave 5 different versions as follows:-
Version
Expansion of the farm after 1977
Remarks
Version 1
In about 1977, the area of the farm had expanded to cover the entire areas of the Property and had encroached on the eastern boundary of Lot 487 and Lot 486.
Annexure 5 to the Answers to the Request for Further and Better Particulars of the Defence and Counterclaim
Version 2
In about 1977, the area of the farm had expanded to cover nearly the entire area of Lot 487, and the entire lots of Lot 486 and Lot 485. The western limit of the farm had reached Lot 488RP.
Appendix 6 to 1st defendant’s expert report
Version 3
In about 1988 or 1989, the Farm then expanded and reached Lot 488 RP and Lots 487, 486 and 485. The 1st defendant explained in detail why he remembered that the expansion was in about 1988 and 1989. He said that in 1970s, Lot 488, Lot 487, Lot 486 and Lot 485 were used by his neighbour who lived on a temporary structure on government land. He referred to two aerial photos in 1984 and 1985 respectively and said that his neighbour was still there in 1985. He then referred to an aerial photo in 1986 and said that his neighbour had moved away and his house on the government land had been demolished. Finally, he said that in about 1988 or 1989, he and his father enclosed those lots previously occupied by his said neighbour with steel angle bars and wire mesh of about 5 feet tall.
1st defendant's examination-in- chief
Version 4
The farm had already expanded to include Lot 488, Lot 487, Lot 486 and Lot 485 in 1970s. The 1st defendant pointed out in photographs on page 485 (all page numbers refer to the evidence bundle) and page 497 and said that the fence on page 485 upper photo was the barrier on Lot 488 RP as indicated on the aerial photo 1991in page 148). The fence shown on photographs on page 485 and page 497 were erected in 1970s
1st defendant's examination-in- chief
Version 5
Version 1, Version 3 and Version 4 are incorrect. Version 2 might be inaccurate.nd layer of fence behind the fence shown on photographs on 485 & 497.
1st defendant's cross-examination
73. Furthermore, in paragraph 13 of his witness statement the 1st defendant stated:"the perimeter of our farm was marked by fences, field bunds or other materials". Under cross-examination however, the 1st defendant maintained that the farm's perimeter was marked by steel angle bars with wire mesh fencing only.
74. Mr Siu submits that in view of all these inconsistencies, the 1st defendant’s evidence should not be believed. I agree with Mr Siu’s submission and in accordance with the principle in Wong Tak Yue, I place no weight on the 1st defendant’s self serving statements.
75. The second type of evidence is the expert opinions of two surveyors.
76. Mr Leung Shou Chun of Leung Shou Chun Land Surveying Consultants Ltd (“Mr Leung”) was instructed by the 1st defendant’s solicitors to study the history of the farm. Mr Leung, due to instruction by the 1st defendant, only studied aerial photographs in arriving at his conclusions that the farm was enclosed by ‘barriers’ as early as 1977.
77. Mr Helicon Ma of Helicon Ma Surveying Ltd (“Mr Ma”) was instructed by the plaintiff’s solicitors. Mr Ma relied on a series of government survey sheets and concluded that although the Property, together with other lots, is now fenced off, with the sole exception of the fence on the east side of the Property, all others were erected around 2010 or 2011.
78. The issue here is whether Mr Leung’s conclusion based solely on the aerial photographs or Mr Ma’s conclusion based on government survey sheets are more reliable on reflecting when fences were erected.
79. Aerial photographs are of course photographs taken by airplanes in high altitudes and needs no further explanation.
80. Under cross-examination Mr Leung conceded that he did not see any fence on any of the aerial photos, therefore he used the word "barrier" to describe some features he found on the aerial photos; however, these features may just as likely be field bunds, trees, vegetations or merely shadows due to the position of the sun.
81. According to Mr Ma, and agreed by Mr Leung, government survey sheets are documents published by the Lands Department and are recordings of ground features measured by surveying technicians in accordance with a set of standardized procedures using precision scientific instruments. These survey sheets are then updated in accordance with the department’s standard procedures.
82. When updating the survey sheets, the surveying technicians would:
83. First, visit the site and compare a specific set of land features on the ground, including fences, with those described on the last survey sheet. If there is no change of the land features, surveying technicians would put a tick on the last survey sheet. If new land features were found, including new fences, the surveying technicians would record them in red on the last survey sheet. If ground features were found removed, they would record the deletion by tracing symbol on the last survey sheet in green.
84. Second, the surveying technicians would draw up the record in his office and return to the site to take precise measurements.
85. Third, after measurements, they would update the new land features on a draft plan and submit it to the senior survey officer for verification.
86. Fourth, the senior survey officer would go to the site for verification. If the senior survey officer was not satisfied with the draft plan, surveying technicians would have to take measurements again and re-submit the draft plan. If the senior survey officer was satisfied with the draft plan, he would submit the draft plan to the District Land Surveyor for approval.
87. Fifth, if the District Land Surveyor approves the draft plans for all of the areas within the survey sheet, all of the draft plans would be sent to the drawing office of the Lands Department for final drawing up of a new survey sheet.
88. Sixth, the new survey sheet would be sent to the Printing Office for printing and publication.
89. There is generally a time lag of about 1 to 2 years between the date of the first field visit and the date of publication of the survey sheet.
90. Both experts agreed that the survey sheets covering the Property were repeatedly updated from 1972 to 2012 and none of the survey sheets support the 1st defendant's allegation that the Property was fenced off.
91. Mr Leung conceded that although the surveying technicians were instructed to ignore fences that are small, broken or temporary, the 5 feet tall wire mesh fences anchored by steel angle bars to the ground, as alleged by the 1st defendant, were highly unlikely to be missed or deliberately omitted on the government survey sheets.
92. This is especially true when the survey sheets were repeatedly updated by the Lands Department over the years and on some of these survey sheets, new fences and other features were added.
93. For example, on the 1999 survey sheet, a new fence and gate just outside the eastern boundary of the Property was added. To be able to include this new fence and gate on the 1999 survey sheet, the government surveying technicians must have inspected, measured and verified the new fence on site, all in accordance with the updating procedure as described by Mr Ma.
94. Before I came to any conclusions, I have carefully considered the 1st defendant’s allegation that the ground level around the first set of fence he and the Father erected was later raised and therefore the first set of fence became obscured. A second set of fence was build next to the first set of fence.
95. Even if true, the 1st defendant testified that both set of fences were similar, both 5-6 feet tall wire mesh fences anchored by steel angle bars to the ground. I find either fence, if there were in fact two fences, were highly unlikely to have been missed or deliberately omitted on the government survey sheets throughout the years.
96. Accordingly, I find Mr Ma’s conclusion based on government survey sheets is more reliable and the fence now enclosing the Property was erected sometime between 2010 and 2011.
Usage as a farm
97. One must remember there is no presumption of continued possession, whether legal or evidential, in favour of a squatter once adverse possession has begun. The 1st defendant must proof continuous usage by cogent and sufficient evidence for the whole of the requisite 20 year period.
98. In On Yip Property Development Company Limited, HCMP 3192/2013 & HCMP 3223/2013. The Court of Appeal held:-
"8. ... He has to discharge the burden of proof by cogent and sufficient evidence. Whilst such evidence can take many forms, including direct oral evidence, documentary evidence and inferential evidence, and the parties’ cases must be considered in light of inherent probabilities and commonsense, there is no place for any presumption, whether legal or evidential, in favour of the squatter. ..
"9. We do not believe that the single sentence found in Lord Hope’s concurring judgment in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, 445H (para 70) (“Once possession has begun, as in the case of the owner of land with a paper title who has entered into occupation of it, his possession is presumed to continue”) is any authority for the existence of a presumption of continued possession, whether legal or evidential, in favour of a squatter once adverse possession has begun. We have not been referred to any other authorities which suggest the existence of such a presumption in favour of a squatter. Rather, textbooks such as Gray & Gray, Elements of Land Law (5th ed), para 9.1.40 and Megarry & Wade, The Law of Real Property (8th ed), para 35-018 (p 1467) only refer to a presumption of continued possession in favour of the paper owner , but not the squatter. ..."
99. On usage, the 1st defendant’s evidence are as follows: soon after the Father took over the farm in 1973, they started using lot 498 to rear ducks; in or about 1975, his parents ceased rearing ducks on lot 498 and used the northern portion of lot 498 for farming.
100. I have carefully reviewed all of the aerial photographs and found the photographs between 1975 and 1979 too unclear for any reasonable person to conclude if there were any farming activities on lot 498. The aerial photograph of 1980 however, did show regular lines, which supports some farming activities on the northern part of lot 498.
101. The farming activities however, did not last very long. The aerial photographs after 1980 showed the lines that indicate farming activities gradually fading out. In the 1988 aerial photograph, all traces of the regular lines that indicate farming activities disappeared. This leads me to conclude that the farming activities had been abandoned soon after 1980. In any event, there is no evidence of any farming activities after 1988.
102. Accordingly, even if the successive squatter principle applies and the 1st defendant’s possession of the Property began in 1973, the 1st defendant failed to prove 20 years of continuous physical possession by usage.
103. The 1st defendant however, stated that the Father also cultivated longan trees on the Property in or about 1975 and his family collected fruit from the trees on the Property.
104. There are 2 problems with the 1st defendant’s allegation of longan tree cultivation as evidence of factual possession of the Property:
105. First, apart from the 1st defendant’s own allegation, there is no evidence to substantiate or corroborate that:-
(a) The longan trees on the Property were cultivated by the Father or the 1st defendant and not by other villagers;
(b) The longan trees on the Property were cultivated trees as opposed to uncultivated trees; and
(c) The longan trees were cultivated by the 1st defendant or the Father as part of a commercial farming activity.
106. It is also important to note that in his pleadings, the 1st defendant never stated that he and the Father had ever cultivated any trees on the Property.
107. In the 1st defendant's Answers to the plaintiff's Request for Further and Better Particulars of the Defence and Counterclaim, the 1st Defendant only mentioned the Father used the Property to cultivate vegetables and melons and not longan trees. The 1st defendant stated:-
“(1) The 1st defendant and his parents were in possession of the Property before about 1983.
(2) The 1st defendant and his parents ceased to rear ducks in the Property in the late 1970s. The Property was then used for growing vegetable and melons.”
108. Being statements against his interest, according to the principle stated in Wong Tak Yue , I must accord to the 1st defendant’s Answers to the plaintiff’s Request for Further and Better Particulars considerable weight.
109. Second, even if longan trees were cultivated by the 1st defendant or the Father on the Property, the mere picking of fruit does not constitute physical possession of the land.
110. In Wai Wah Traders Limited v Wong Yim t/a Creative Advertising Design Company and others HCMP 965/2000, a case with facts very similar to this, Deputy High Court Judge Mimmie Chan (as she then was) held, mere picking of fruits does not constitute physical possession of the land. Deputy High Court Judge Chan wrote:-
"I do not accept that the mere picking of lychee fruit from trees on the Land, or the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, can constitute continuous and exclusive possession or control of the Land. It is mere trespass, at most persistent trespass, and unauthorized destruction and appropriation of property"
111. Under cross-examination, the 1st defendant admitted the longan trees were not planted as a commercial activity. If there was an abnormally large harvest, fruits were sometimes used by the Mother for bartering, but mostly they were merely for their own consumption or as gifts to friends and families.
112. Also the mere presence of longan trees without evidence of systematic planting and tending throughout the requisite 20 year period, does not constitute physical possession.
113. In On Yip Property Development Company Limited v Kwok Tai Kuen Alan, DCCJ 1154/2010, HH Judge Alex Lee held:-
"The defendant's evidence was that he kept the habit of tree planting after the death of his mother, although he no longer planted for commercial purpose. However, I do not accept that the defendant and his wife carried out any systematic and regular planting or tending of trees between 1982 and 1996. My reasons are as follows:-
“(a) the defendant has been in full time employment ever since he had graduated from secondary education.
(b) …
(c) …”
Whilst I accept that the defendant and his wife might have done some gardening and picking of fruits as leisure activities, I am not satisfied that the defendant has proved that what they did constitutes a sufficient exclusive control and possession of the land and/or evidences an intention to exclude others. In view of the judgment of Wai Wah Traders Limited v Wong Yim trading as Creative Advertising Design Company & Ors , supra and also the judgment of the English Court of Appeal in Lorna Ellett-Brown v Tallishire Limited , 29 March 1990, unreported, as approved by Hawkes v Howe (2002) EWCA Civ 1136 at para 56 of the judgment, I agree with the submission of Mr Shum that with the evidence of the defendant that very little time and efforts were required to take care of the trees once they were grown and the fact that no one was living on Site B at the time, the presence of fruit trees on the land is not sufficient to establish the two elements of adverse possession."
114. The decision of HH Judge Alex Lee in On Yip Property Development Company Limited was upheld by the Court of Appeal.
115. Under cross-examination, the 1st defendant admitted at least since 1990, he has had full time employment outside of the farm.
116. In view of the fact that the longan trees were not cultivated for commercial purposes, the 1st defendant had full time employment outside of the farm and there is no evidence of any systematic or regular planting or tending of the trees, even if the 1st defendant and the Father planted longan trees on the Property, I am not satisfied that the 1st defendant has proved what they did constitutes a sufficient degree of exclusive control and physical possession of the Property.
117. Before my conclusion on physical possession, I must address the issue of the well. At trial, parties spend a considerable amount of time on whether a well was located within the Property. I am afraid that was a red herring.
118. First, under cross-examination, Mr Leung admitted although his staffs saw a well, no survey was done to confirm whether it was located within the Property.
119. Second, even if the well was within the Property, there was no evidence that it was used by the 1st defendant for a continuous 20 years period. Without this evidence, the mere existence of a well within the Property will not advance the 1st defendant’s case.
120. Therefore, even if I found the 1st defendant had the requisite intention to possess (which is of course not my finding), I would have found the 1st defendant failed to prove he had physical possession of the Property for the requisite 20 years period.
Orders
The 1st defendant’s counterclaim
121. The 1st defendant’s counterclaim is dismissed.
Possession
122. As against the 1st defendant, there be an order for possession in favour of the plaintiff.
123. Apart from the 1st defendant, no one applied to join in as a party to these proceedings, therefore there should be an order for possession against the 2nd defendant.
Mesne profit
124. The plaintiff and the 1st defendant agreed mense profit is to be calculated at HK$3,522 per year and Mr Siu agreed to accept HK$9,685.50 as mense profit up to and including the date of delivery of this judgment.
125. In addition, the 1st defendant shall pay the plaintiff additional mense profit, at the rate stated above; together with post judgment interest, at the judgment rate; from the day after delivery of this judgment until vacant possession of the Property is delivered to the plaintiff.
Injunction
126. Under cross-examination, the 1st defendant said that unless the court restrains him from entering onto the Property, he would continue. An injunction order should be granted to prevent the 1st Defendant and his agent or servant from entering onto the Property.
Costs
127. In accordance with the usual Order 113 principle, there is no order as to costs against the 2nd defendant.
128. As against the 1st defendant, this trial is essentially a trial on the 1st defendant's counterclaim; accordingly, costs of this action, from and including the preparation for and attending the 1st defendant’s summons to be joined as a defendant, shall be to the plaintiff, to be taxed on party/party basis, if not agreed.
129. I am grateful for the assistance of both Mr Siu and Mr Ho during the trial, there shall be certificate for counsel.
130. The 1st defendant’s own costs be taxed in accordance with Legal Aid Regulations.
( Anthony Chow )
Mr Stanley CK Siu, instructed by Wong, Kwan & Co, for the plaintiff
Mr Tommy Lo, instructed by WK To & Co, for the 1st defendant
2nd Defendant : Absent