ORIENTAL (CHINA) TRADING LTD v. THE OCCUPANTS OF PENG CHAU LOT NO. 204 AND OTHERS

DCMP 5935/2024

[2026] HKDC 1747

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 5935 OF 2024

--------------------------------

--------------------------------

BETWEEN

--------------------------------

--------------------------

JUDGMENT

--------------------------

A. INTRODUCTION

1.  This present case concerns a claim for possession of various portions of Lot No 204 in Peng Chau, New Territories (“Lot 204”) and for mandatory injunctions to remove unauthorized structures thereon. The Plaintiff (“P”) is the registered owner of Lot 204, having acquired the same in January 2016. The Defendants (“Ds”) are occupants of different sections of the land through their respective squatter huts (寮屋) who assert possessory title through adverse possession and, in the cases of D2 and D3, easements by prescription.

2.  The core of the dispute lies in whether Ds have met the burden of proving exclusive factual possession and the requisite intention to possess (animus possidendi) for the statutory limitation periods. Furthermore, the Court is also asked to consider P’s request for mandatory injunctions, which P argues are necessary to prevent Government re-entry.

B. THE PARTIES’ CASE

B1. P’s Case

3.  P is a limited company incorporated under the laws of Hong Kong and is the registered owner of Lot 204. P acquired its interest in Lot 204 by way of an assignment dated 8 January 2016.

4.  Lot 204 is characterized by the presence of several temporary structures, commonly referred to as squatter huts (寮屋). It is P’s primary case that these structures, and the occupation thereof by various parties, are unauthorized and exist without P’s license or consent. P contends that such occupation constitutes a continuing trespass on its property.

5.  On 13 January 2016, P’s solicitors posted formal notices in both English and Chinese on the structures within Lot 204. These notices formally notified all occupants of their status as trespassers. The letters demanded that the occupiers removed all their belongings and reinstated the relevant parts of Lot 204 to its original state and condition.

6.  Following the occupants’ failure to comply with these demands, by Originating Summons issued on 25 May 2016, P initiated these proceedings for the recovery of land in the High Court (later transferred to this Court). P seeks delivery of vacant possession and mandatory injunctions for the demolition of the unauthorized structures.

7.  The 2^nd to 5^th Ds (“D2 to D5”) have identified themselves as the occupants of various portions of Lot 204. They resist P’s claim for possession by asserting that they have acquired possessory titles through adverse possession. In their respective counterclaims, Ds seek declarations of possessory titles and, in certain instances, the recognition of easements and rights of way over footpaths on Lot 204.

8.  For the purpose of identifying the specific areas in dispute, the parties have adduced a plan entitled “Identification Plan of the Features inside the Disputed Areas on Peng Chau Lot No 204” which was annexed as Annex A to the Joint Expert Report dated 4 November 2020 (“JER/ Expert Plan”). At the commencement of the trial, Counsel for all parties agreed and accepted that the Expert Plan accurately depicts the relevant boundaries and structures of the disputed areas. Accordingly, this Court proceeds on the basis that the Expert Plan is the accurate geographical reference in this Judgment. A copy of the Expert Plan is also reproduced as an Annex to this Judgment.

9.  In addition to the claim for possession, P also claims damages against certain Ds for the unauthorised use and occupation of the land.

10.  As an alternative, P submits that even if any of the Ds were to succeed in establishing a claim for adverse possession, this Court retains the equitable jurisdiction to grant mandatory injunctions in favour of P. P argues that such an injunction is necessary to compel the removal of the unauthorised structures, which pose a direct and material risk of Government re-entry due to breaches of the Government Lease. P contends that a free-standing injunction should be granted as an independent remedy.

11.  There is also a plea by P for loss and damage arising from any potential re-entry by the Government. P confirmed during opening submissions that P is not pursuing this claim at this trial as the loss and damage have not yet crystallised.

B2. D2’s Case

12.  D2 claims possessory title over a portion of Lot 204 identified as a portion of land known as 17 Chung Tsai, Tung Wan, Peng Chau, New Territories, the area of which is delineated in the Expert Plan and coloured pink in Plan No. LSC/IS/3947/H17/M1 [D/71/658] (hereinafter referred to as the “D2 Disputed Area”).

13.  D2 asserts that he, along with his family members, has enjoyed undisturbed and exclusive possession of the D2 Disputed Area since 1987. It is D2’s case that through this long-term occupation, the title of P and its predecessors-in-title has been extinguished by the operation of sections 7 and 17 of the Limitation Ordinance (Cap 347).

14.  Procedurally, following the passing of D2 (Ma Chee Woon), an order to carry on was granted by the Court on 23 June 2021. Consequently, Ma Ho Fung, in his capacity as the administrator of the estate of Ma Chee Woon, deceased, was substituted to continue these proceedings on behalf of his estate.

15.  By a further order dated 14 June 2022, the Court granted leave for D2’s evidence comprising the Affirmations filed on 6 July 2016 and 4 April 2022, and the Witness Statement dated 8 October 2018 to be admitted into evidence without cross-examination. In addition to these statements, D2 relies on the testimonies of several factual witnesses i.e. Ma family members to corroborate the continuity and nature of the occupation.

16.  D2’s claim is further supported by contemporaneous documentary evidence, which includes electricity bills issued by China Light & Power (“CLP”) dating back to 1987 (albeit in the name of another person, which I will address below) and Water Authority records from 1988, all registered to the address of the D2 Disputed Area. The D2 Disputed Area can be subdivided into four sections (Sections ①, ②, ③, and ④). Section ③ corresponds to the main structure (House 17), while the other sections comprise the surrounding yard, a paved area, and a cultivated garden. D2 contends that these areas were physically demarcated and used exclusively for domestic and ancillary purposes for a period exceeding the requisite limitation periods.

17.  In addition to the claim for possessory title, D2 asserts a counterclaim for a right of way over Lot 204 to ensure continued access to the D2 Disputed Area from the public road. This claim is based on the doctrine of lost modern grant, asserting that the relevant footpaths have been used openly and as of right for over 20 years. D2 seeks a declaration that he is entitled to an easement.

B3. D3’s Case

18.  D3 asserts possessory title over the northeastern portion of Lot 204, which was described by D3 in his pleading as “No. 11 (also known as 11A) Property”. He claims that at all material times since in or about April 1980, he has been having exclusive possession of this area, which is identified and marked 11A and colored "yellow" in the site plan attached to his pleading.

19.  D3 asserts that following an expert land surveyor’s site visit, the exact possessed area of the land as claimed by him in this action has been accurately delineated and colored “blue” in another site plan attached to his pleading.

20.  The area encompasses a cluster of temporary structures and adjoining land, which is also delineated in the Expert Plan and coloured in pink in Plan No. LSC/IS/3947/H11/M1 [D/71/659] (hereinafter referred to as the “D3 Disputed Area”).

21.  It is D3’s case that his brother Law Fo Yat commenced his occupation of the D3 Disputed Area in early 1980. Since about April 1980, D3 joined his brother and had been residing there. Later D3’s brother retired and returned to China.

22.  D3 claims that he also made use of part of the land to carry out gardening works and cultivation works during his spare time and the gardening/ cultivation area(s) had been fenced off by him. However, the exact time that D3 began to do so has not been pleaded.

23.  D3’s family joined D3 from China over time. In or about 2001, D3’s wife and his eldest son joined D3 from China and had resided at the D3 Disputed Area. Since about 2011, D3’s other sons and daughters came to join D3 and resided in the D3 Disputed Area.

24.  Over the years, 4 “house-like” structures were erected on the said property, but 1 had collapsed subsequently. The remaining 3 structures have been occupied by D3, his wife and his son’s family.

25.  Over the ensuing decades, they utilised the structures for residential purposes and the adjoining land for ancillary cultivation. D3 contends that the cultivated areas were physically demarcated and fenced off, signifying an intention to exclude the paper owner and the public.

26.  D3 submits that he has established both factual possession and animus possidendi for a period exceeding either the 20-year or 12-year limitation periods prescribed by the Limitation Ordinance (Cap 347). Consequently, he seeks a declaration that P’s title to the D3 Disputed Area has been extinguished.

27.  In addition to the claim for possessory title, D3 asserts a counterclaim for an easement and right of way over Lot 204 to facilitate access to his residence. D3 maintains that he and his family have utilised specific footpaths over the part(s) of the land as colored “red” and marked as footpath in site plan attached to his pleading. The said footpaths are also identified as FP3 and FP4 in the Expert Plan.

28.  D3 alleges that he has been using these footpaths openly, peaceably, and as of right for a period exceeding 20 years.

29.  Procedurally, D3 filed a Witness Statement on 19 November 2018. However, due to D3’s subsequent incapacitation, the Court, by an Order dated 26 September 2023, appointed Luo Shimin (“LSM”) as D3’s guardian ad litem. LSM subsequently filed a Witness Statement on 6 October 2023 and testified at the trial on D3’s behalf.

30.  Leave was further granted for D3 to rely upon his previous affirmations and witness statements at the trial, notwithstanding his inability to be cross-examined. D3 relies on these statements and the findings of the expert surveyor Mr Leung Shou Chun (“Mr Leung”) for his adverse possession claim.

31.  Since the end of the trial but before the date of this Judgment, D3 passed away. An order to carry on was made for his estate to continue with this action.

B4. D4’s Case

32.  D4 and D5 are represented by the same legal team and the same Counsel. While their claims are distinct in terms of the specific areas occupied, they share a common legal framework regarding the burden of proof and the application of the Limitation Ordinance (Cap 347).

33.  D4 asserts possessory title over the southernmost portion of Lot 204, identified as the “No 25 Property”, the area of which is delineated in the Expert Plan and delineated and coloured “Blue” in “D4’s Land Surveyor’s Plan” as annexed to D4’s Re-Re-Amended Defence and Counterclaim at [A/108] (hereinafter referred to as the “D4 Disputed Area”).

34.  D4 contends that he, as the successor to his mother’s occupation, has maintained continuous and exclusive possession of this area since approximately March 2004. D4’s case is predicated on the 12-year limitation period.

35.  The factual basis of D4’s claim is as follows:

35.1 The D4 Disputed Area was initially occupied by his mother, Chan Ying, and his younger sister, Chen Po Yuk. At that time, D4’s mother oversaw the construction of a two-storey temporary structure to serve as the family’s residence.

35.2 D4 arrived in Hong Kong from Mainland China in early 2004 and formally applied for his Hong Kong Identity Card on 23 March 2004. He has resided at the D4 Disputed Area continuously since his arrival, treating it as his primary and only home.

35.3 Following the passing of his mother on 17 February 2011, D4 took over the sole possession of the property. He asserts that his mother, prior to her death, explicitly bequeathed the property to him.

35.4 D4 emphasizes that neither he nor his mother ever sought or obtained consent from P or its predecessors for their occupation. No rent or license fee was ever paid, and D4 has consistently maintained the property at his own expense.

35.5 D4 fenced off the majority of the D4 Disputed Area using wire mesh. A notable exception to this enclosure is the southern end of the property facing a natural rock formation. D4 explained that this rock is worshipped as a “Stone God” (石神) by himself and his late mother. The lack of fencing in this specific spot was a deliberate act of religious reverence.

35.6 D4 utilised the southern portion of the land for gardening and cultivation, planting a variety of vegetables and bitter gourds. He testified that the produce was for self-consumption and for distribution to neighbours.

35.7 D4 relies on the JER, which confirms the existence of the two-storey structure and the vegetation/trees area (consistent with cultivation), as well as the expert opinion of Mr Leung, to support his claim of continuous occupation for the requisite period.

35.8 At the commencement of the trial, D4 formally confirmed the abandonment of the claim for an easement or right of way, which had been pleaded in D4’s Re-Re-Amended Defence and Counterclaim. This abandonment was first indicated in D4’s Written Opening Submissions (at paragraph 31) and was verbally confirmed on Day 1 of this trial.

B5. D5’s Case

36.  D5 asserts possessory title over a portion of Lot 204 identified as “No 27, Chung Tsai”, the area of which is delineated in the Expert Plan delineated and coloured “yellow” in “D5’s Land Surveyor’s Plan” annexed to D5’s Amended Defence and Counterclaim at [A/143] (hereinafter referred to as the “D5 Disputed Area”).

37.  D5’s case is that he has maintained continuous and exclusive possession of this area, through himself, his family members, and his agents, for a period exceeding 20 years, commencing in approximately 1980.

38.  D5 was born in Mainland China in February 1953 and migrated to Hong Kong in October 1978. Following the arrival of his wife a year later, his family initially resided in Sau Mau Ping, Kowloon, before seeking a permanent residence in Peng Chau.

39.  In or about 1980, D5 was informed by Mr Chan Suen (陳宣), then a village representative in Peng Chau, that a plot of land within Lot 204 was available for occupation. Acting on this information, D5 moved to Lot 204 and, on his own initiative and without seeking the consent of any paper owner, took possession of the D5 Disputed Area.

40.  D5 initially constructed a modest shelter on the site, where he and his wife established their home. The residential nature of his occupation was acknowledged by the Government on 15 August 1983, when the District Lands Office (Islands) (“DLO”) issued a notice assigning the official address of “27, Chung Tsai” to his structure to facilitate postal service. D5 was instructed to display this address on a door plate, which he did.

41.  The residence evolved over time. In or about 1984, following the damage caused by a severe typhoon, D5 undertook significant repairs and reinforcements. He rebuilt the structure using concrete, creating a more substantial squatter house that included a cockloft, thereby increasing the habitable space for his growing family.

42.  D5 and his four sons, born between 1980 and 1984, resided at the D5 Disputed Area throughout their formative years. The children attended a local primary school in the vicinity. D5 further paid Government rates and rents associated with the property.

43.  Regarding utilities, D5 initially obtained electricity through a neighbour’s supply via a connected wire. However, in or about April 1997, he established his own account with the utility provider, further documenting his independent control over the premises.

44.  D5’s assertion of exclusive control is also supported by his action as a landlord. In or about May 2015, D5 orally leased the D5 Disputed Area to a Filipino national for a monthly rental of HK$4,500. This tenancy lasted for approximately nine to ten months, during which D5 or his wife collected the rent. Following the conclusion of this tenancy, D5 and his wife resumed their occupation of the property.

45.  Based on this continuous history of occupation, structural improvement, and acts of ownership spanning over 35 years, D5 submits that P’s title to the D5 Disputed Area has been extinguished. D5 seeks a declaration of possessory title over the D5 Disputed Area.

46.  D5 also relies on the JER to corroborate the timeline and the physical existence and development of the relevant structures and land features.

C. A PRELIMINARY MATTER

47.  During the trial, there is a dispute between the parties concerning certain correspondence dated 17 September 2018 (the “Relevant Letters”). In its Re-Re-Re-Amended Statement of Claim, P has pleaded at paragraphs 15F and 17Q that it had agreed to possessory title being given to D4 and D5 respectively, on the condition that the unauthorised structures be removed or rectified to the satisfaction of the Lands Department.

48.  These references were further elaborated in the Witness Statement of Dr Chong Chi Hung (“PW1”), who characterized the Relevant Letters as “sanctioned offers” (附帶條款和解提議) at paragraphs 49, 55, 65, and 71. On the strength of these pleas and statements, D4 and D5 argued that P had made formal admissions and conceded their claims for adverse possession.

49.  D2 also refers to paragraphs 22 and 28 of the Witness Statement of PW1 for the same point.

50.  The Relevant Letters themselves are not included in the Agreed Trial Bundle. On the first day of the trial, when it became apparent that PW1’s statement referred to these letters as sanctioned offers, I asked whether any party objected to me continuing to hear the case. No such objections were raised.

51.  However, on the second day, leave was sought from me to produce the Relevant Letters and to cross-examine PW1 on their contents. P objected to their admissibility, although it took a pragmatic stance by not opposing questions to be put to PW1. Given the lack of prior notice, as a matter of fairness to P, I deferred my ruling and I directed the parties to render submissions to assist this Court.

52.  Having heard the parties on the third day and reviewed the relevant authorities, I ruled that the offending paragraphs in the pleadings and witness statements referring to the Relevant Letters shall be disregarded and no weight should be attached to such evidence. It follows from my ruling that the Relevant Letters should not be placed before this Court and that no questions should be asked of PW1 in respect of these letters.

53.  My reasons for this ruling are as follows.

54.  Despite PW1’s characterisation, it is unclear whether the Relevant Letters satisfied the formalities of Order 22, rule 5 of the Rules of the District Court (“RDC”) to qualify as sanctioned offers. However, the parties confirmed that the letters were, at the very least, Calderbank offers marked “without prejudice save as to costs.”

55.  The “without prejudice” rule is a fundamental principle of evidence based on the public policy of encouraging litigants to settle their disputes without the fear that their concessions will be used against them as admissions of liability: Gross Fortune International Limited v Set Win International Limited, unreported, CACV 192/1999, 29 October 1999 per Ribeiro J (as he then was) at §13 citing Cutts v Head [1984] Ch 290. It is also vital for the public perception of trial fairness that the adjudicating judge is not influenced by such materials: Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120 at §19.

56.  D4 and D5 contended that P had waived this privilege by including the references in its pleadings and PW1’s statement. However, it is well-established that mere reference to a privileged document does not constitute a waiver. The test is whether the privileged material has been “deployed” in the sense of being relied upon to support a party’s case: AXA China Region Insurance Company v Pacific Century Insurance, unreported, HCA 9093/2000, 18 May 2005 per Chu J (as she then was) at §§29-30.

57.  In my view, a fair reading of P’s materials shows that the references were part of a chronological summary of correspondence rather than a tactical deployment of the contents to gain a forensic advantage. Furthermore, the alleged “admissions” were clearly conditional and made in the context of settlement negotiations. It is often common that parties to litigation take a pragmatic view during without prejudice negotiations by offering conditional admissions or concessions with the hope of achieving an early settlement. Holding a party to such conditional concessions at trial would run directly contrary to the policy of encouraging free and frank negotiations.

58.  Ultimately, D4 and D5 bear the burden of proving their claims for adverse possession through evidence of factual possession and animus possidendi. A conditional offer made during negotiations cannot substitute for the discharge of this burden of proof.

59.  Finally, I considered whether my knowledge of these paragraphs disabled me from continuing the trial: Garratt v Saxby [2004] EWCA Civ 341. Since I have not read the Relevant Letters themselves, and as a professional judge I am capable of putting the excluded paragraphs out of my mind, I find that no injustice will result from me continuing to adjudicate this case on its merits. No party has suggested otherwise.

D. THE RELEVANT LEGAL PRINCIPLES

D1. Adverse Possession

60.  The legal principles governing a claim for adverse possession are well-settled. In the Court of Appeal decision in Wong Chee Sing v Hung Wah [2025] 3 HKLRD 202, the Court reaffirmed the twin requirements of factual possession and the intention to possess. These requirements, derived from the seminal English case of Powell v McFarlane (1979) 38 P & CR 452, were adopted by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai David (1997-98) 1 HKCFAR 55.

61.  As Lord Browne-Wilkinson clarified in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, legal possession requires:-

61.1 A sufficient degree of physical custody and control (“factual possession”); and

61.2 An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”).

62.  Factual possession signifies a sufficient degree of exclusive physical control. Whether the acts of a squatter constitute such control depends heavily on the circumstances, particularly the nature of the land and how it is commonly used (Powell v McFarlane at 470). The squatter must show that they have dealt with the land in a manner expected of an occupying owner, to the exclusion of all others (Powell v McFarlane at 471).

63.  It is important to note that factual possession need not be day-to-day or continuous in a literal sense. As noted by the Court in Lau Kwai Ping Joyce v Fulland International Limited [2020] HKCFI 1501 at §288, possession may subsist notwithstanding intervals between acts of user, provided the overall pattern of use is consistent with that of an owner. The Court must determine, on a balance of probabilities, whether there was uninterrupted adverse possession throughout the relevant period: Trustees of Michael Batt Charitable Trust v Adams (2001) 82 P & CR 406 at §13.

64.  The intention to possess involves the intent to exclude the world at large, including the paper owner, so far as is reasonably practicable and permitted by law (Powell at 471). Crucially, this is an intention to possess, not necessarily an intention to own or acquire ownership: Buckinghamshire County Council v Moran [1990] Ch 623.

65.  The Court must ascertain this intention objectively from the squatter’s physical acts rather than mere subjective assertions. As emphasized in Wong Tak Yue, the intention must be clear to the world. Where the squatter’s acts are equivocal, they will not be sufficient to establish the requisite animus possidendi.

66.  The burden of proof lies squarely on the squatter. While the standard of proof remains the civil standard of the balance of probabilities: Wan Kin Shing v The IO of City Centre Building [2023] HKCFI 815, the courts have consistently described this as a high burden of proof: Birkenhead Properties and Investments Limited v Lam Kai Man, unreported, HCMP 1588/2012, 12 January 2016 at §20.

67.  The paper owner is not required to plead a positive case or call witnesses. They may simply rely on their paper title and test the squatter’s case against contemporaneous documents. Consequently, the Court will approach self-serving statements by squatters with skepticism, seeking verification through cogent evidence, such as aerial photographs or utility records.

68.  Under sections 7(2), 17 and 38A of the Limitation Ordinance (Cap 347), no action shall be brought by any person to recover land after the expiration of the relevant limitation period. For private lands in Hong Kong, the period is:

68.1 20 years, where the right of action accrued before 1 July 1991; or

68.2 12 years, where the right of action accrued on or after 1 July 1991.

69.  Once the requisite period of adverse possession is completed, the title of the paper owner is extinguished by operation of law.

D2. The Acquisition of Easement and Right of Way

70.  In Hong Kong, the acquisition of an easement by prescription is governed exclusively by the doctrine of lost modern grant: China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at §71, per Millett NPJ.

71.  The doctrine is based on the legal fiction that a formal grant of the easement was made in modern times but has since been lost. To succeed in such a claim, the claimant must demonstrate that the use of the land has been “as of right” for a continuous period of at least 20 years.

72.  The requirement that use be “as of right” means that the user must not have been exercised by force, by stealth (secretly), or by the revocable license or permission of the owner of the servient tenement.

73.  To establish an easement, the use must be of such a character, degree, and frequency as to indicate to a reasonable owner of the servient tenement that a continuous right is being asserted: Yik Wai Pong v Yick Pak Kin [2019] HKCFI 21 at §75(1).

74.  While the use does not need to be constant (i.e. 24 hours a day), it must be sufficiently regular and uninterrupted to amount to an assertion of a right. Occasional or sporadic use will not suffice to create a prescriptive right.

75.  The burden of proof lies with the party asserting the easement. They must provide cogent evidence of the specific path used and the duration of that use. In cases involving multiple occupants and shifting structures, the Court must be satisfied that the use of a particular right of way has remained substantially the same in terms of its route and intensity for the requisite 20-year period.

E. THE PARTIES’ FACTUAL EVIDENCE

E1. P’s Factual Evidence

76.  P called three factual witnesses to testify at trial: PW1, the former sole director and shareholder of P, Chan Chi Kin (陳子健) (“Chan Chi Kin/PW2”) and Chan Chi Shing (陳志成) (“Chan Chi Shing/PW3”) (PW2 and PW3 hereinafter collectively referred to as the “Chan Brothers”).

77.  PW1 testified that P acquired Lot 204 by way of assignment on 8 January 2016. The purchase of Lot 204 was for rent-generating purposes. At the material time, he was the sole director and shareholder of P. However, in April and May 2024, just months before the original trial date, PW1 ceased to be a director or shareholder of P, having sold P to a person surnamed Yu. During cross-examination, PW1 refused to disclose the consideration for this sale but confirmed that Lot 204 was P’s sole asset.

78.  P has urged the Court to view PW1 as an independent witness following the sale of his interest in P. I am unable to accept this characterisation. PW1’s witness statements were prepared while he was still the sole shareholder of P, and his evasiveness regarding the details of the share sale further undermines his claim to independence.

79.  Overall, I found PW1 to be an unimpressive witness. He frequently resorted to evasive answers, claiming a lack of memory or refusing to disclose information when questioned on matters and issues relevant to the case. Furthermore, as PW1 only visited Lot 204 for the first time in approximately 2015, his evidence provides no factual insight into Ds’ alleged occupation prior to that date. He offered no positive evidence to contradict Ds’ claims of long-term possession.

80.  PW2 lived in House 6 from 1986 until 2002. He grew up in the area and played with other children, including Ma Wai Lok (the grandson of D2), with whom he attended the same kindergarten. He confirmed, inter alia, that the shrine (section ④ of the D2 Disputed Area to be further identified below) was located next to the home of Ma Wai Lok.

81.  PW2 claimed that he had no recollection of D3 or his family residing in the northeast part of Lot 204.

82.  I found PW2 to be an honest witness. While he struggled to recall specific details from the 1980s, he candidly admitted that as a child, he did not pay close attention to the activities of his neighbours. His testimony confirms a long-standing community presence but is limited by the perspective of his then young age at the time.

83.  PW3’s evidence largely corroborated the case for D2. He confirmed that D2 purchased House 17 from a person named Cheng Kam Fook (鄭金福) and began residing there since around 1987. He remembered that D2 had a metalwork and welding shop near Kam Ping Estate (金坪邨). He also remembered that D2 rode his bicycle from home to work.

84.  PW3 also recalled that a person known as “Chan Mai Chai” (陳賣仔) and his mother occupied the house in front of House 17 (“Chan’s House” (陳屋)) until approximately 1996 or 1997 when they moved to Kam Ping Estate. The said structure later collapsed. He did not know the use of Chan’s House after it had collapsed. PW3 also confirmed that the D2 Disputed Area was not accessible to others. D2 grew papaya trees in this area and put up fences himself.

85.  PW3 provided evidence that the structures in the northeast part of Lot 204 (where D3 claims to reside) were often seen as dilapidated or ruins rather than occupied dwellings.

86.  In my view, PW3 was also a credible witness, though his testimony regarding specific dates was occasionally inconsistent, a matter heavily criticised by D3 in his Closing Submissions. PW3 accounted for the inconsistency due to the significant passage of time. Assessing his evidence overall, I do not consider that the inconsistency affects his overall credibility and the essence of his evidence.

87.  In essence, the evidence of PW2 and PW3 provided support for the presence of D2 and his family members on Lot 204. P’s factual evidence, taken as a whole, does not materially undermine the core claims of long-term occupation asserted by Ds (except the claim by D3 which I will further address below).

E2. D2’s Factual Evidence

88.  D2’s case for adverse possession of the D2 Disputed Area was supported by the evidence of the Ma family. Their evidence focused on four distinct sections (Sections ① to ④) of the disputed land.

89.  The following witnesses were called to testify on behalf of D2:

89.1 Ma Wai Lok (馬偉樂) (grandson of D2);

89.2 Ma Ho Wah (馬浩華) (son of D2);

89.3 Ma Ho Fung (馬浩峰) (son of D2); and

89.4 Ma Ho Sze (馬浩詩) (daughter of D2).

(collectively “Ma family”)

90.  As mentioned above, D2 passed away before the trial commenced and his evidence was admitted into evidence without cross-examination.

91.  In assessing this evidence, I am mindful that it remains untested by cross-examination. As held in Shum Wing Lok v Shum Man [2022] HKCFI 2622 at §49, with which I agree, the lack of cross-examination does not render the evidence inadmissible or mean that no weight should attach to it. Rather, the Court must consider the weight of such evidence on a case-by-case basis, paying particular attention to whether such evidence is corroborated by contemporaneous documents or other witnesses.

92.  P argues that steps should have been taken to secure his evidence by deposition. That could have been done in an ideal world but no one could have accurately predicted one’s demise. The Court has to deal with the situation as it arose and bear in mind that D2’s evidence has not been tested by cross-examination.

93.  D2’s evidence stated that he purchased House 17 (Section ③) from Cheng Kam Fook (鄭金福) in 1987 in cash and moved in with his family that same year. He described the land as being in a wild state upon arrival, requiring him to clear vegetation and reinforce the existing structure. He maintained that his possession was exclusive and that he never sought permission from any paper owner. He claimed possession of the house and the surrounding area which he used for cultivation and storage.

94.  Ma Wai Lok was born in 1982. He moved into House 17 in 1987. Although Ma Wai Lok moved to Tseung Kwan O with his parents in 1989, he returned regularly to visit his grandparents. He testified that his grandparents cultivated the land and hung laundry in the area around House 17. I found his evidence to be unshaken under cross-examination and accept it in its entirety.

95.  Ma Ho Wah is the son of D2 and the father of Ma Wai Lok. He testified that although he moved out of Peng Chau in 1982, he and his wife returned to the house there frequently during holidays. He confirmed that D2 moved to Kam Ping Estate in 1997 but continued to use the D2 Disputed Area for storage and cultivation. He also noted that improvement works were performed on the property in 2003 and 2014. I also accept his evidence.

96.  Ma Ho Fung’s and Ma Ho Sze’s testimonies are consistent with the other family members. Ma Ho Sze’s school handbook confirmed her address as House 17 during her school years. Ma Ho Fung provided evidence regarding the expansion of the family’s occupation. In around 2000, the family began occupying the area previously held by “Chan Mai Chai” (陳賣仔) after the latter moved out in 1996. The Ma family cleared the debris from the collapsed structures and began using the space for gardening and storage. Ma Ho Fung said that he himself participated in the clearing of the debris from the collapsed structure. I also accept both of their evidence.

97.  Regarding the easement claim, the Ma family testified to the continuous and peaceable use of FP1 for access to House 17 since 1987. They stated that this was the only viable way to reach their home and that they used it without ever seeking permission from P or its predecessors.

98.  D2’s factual case is also supported by objective records including: (1) CLP electricity bills dating back to 1987, (2) water authority records confirming supply since 1988 and (3) school record: handbooks for the Ma children showing House 17 as their residence in the late 1980s.

99.  During cross-examination, P challenged the Ma family on the exclusivity of their possession, particularly in the unfenced areas. Further, P pointed out that the 1997 move to Kam Ping Estate by D2 suggested a cessation of residential use. P suggested that the Ma family had abandoned possession. P submitted that on the issue of abandoned possession, the burden is still on the squatter to prove continuous possession. The Ma family maintained that the property remained their “family home” and storage hub, with regular visits and maintenance.

100.  I found all of the Ma family witnesses to be credible, particularly Ma Wai Lok, whose childhood memories of playing in the area were corroborated by P's own witness, PW2. The strength of D2's case lies in the combination of this long-term family narrative and the supporting utility and school records that date back to the late 1980s. I will come back to D2’s case in detail below.

E3. D3’s Factual Evidence

101.  D3 provided evidence via his Affirmation dated 28 June 2016 and his 2^nd Affirmation dated 21 April 2017. These were originally filed in support of D3’s application for an interlocutory injunction. Subsequently, D3 filed and served a witness statement dated 19 November 2018 for the trial of these proceedings.

102.  Following D3’s mental incapacitation, his son, LSM, was appointed as his guardian ad litem by an order dated 26 September 2023. LSM, testifying on behalf of D3, adopted the previous witness statements of D3 and provided further evidence regarding D3’s long-term residence and intent to possess.

103.  As mentioned above, D3 subsequently passed away. An order to carry on was made.

104.  D3’s claim is that he possessed the D3 Disputed Area since approximately April 1980. He testified that he and his elder brother, Law Fo Yat, resided in House No 11 (also known as 11A) from that date. The relevant structures identified at No.11/11A are S5, S6, S7, S8, S14, and S15. D3 described their occupation as involving not only residence but also the use of adjoining land for gardening and cultivation. D3 maintained that these gardening and cultivation areas had been fenced off by him to exclude others.

105.  D3 further asserts an entitlement to an easement and right of way over FP3 and FP4 on Lot 204 based on the doctrine of lost modern grant. He claims that his family has openly used the relevant footpaths for access for over 20 years without interruption.

106.  I will return to D3’s and LSM’s evidence in more detail below.

E4. D4’s Factual Evidence

107.  D4 testified that he moved into the southern part of Lot 204 in March 2004, which is now identified as the D4 Disputed Area. He claimed that the area had already been occupied by his mother, Chan Ying, and his sister, Chen Po Yuk, who had built a two-storey structure (a squatter house) on this area. D4 stated that he applied for his HKID card on 23 March 2004.

108.  Following his mother's death on 17 February 2011, D4 claimed to have taken over the property as his own, as per his mother's wishes. He maintained that he never paid rent to anyone or sought permission from anyone for his occupation. He described his acts of possession as including the fencing of the property with wire mesh and the cultivation of vegetables (bitter gourds etc.) for personal use and for his neighbours.

109.  In respect of D4's evidence concerning the southern boundary of the D4 Disputed Area, he admitted that this area, facing a large rock, was not fenced off. He explained that this rock was worshipped by him and his late mother as the “Stone God” (石神), and they left the area open for worship. D4 argued that this specific lack of fencing does not negate his exclusive possession of the overall property.

110.  P challenges D4’s claim on the basis that he has not provided sufficient documentary evidence (such as utility bills or school records) to corroborate the full 12-year period of continuous occupation before the commencement of these proceedings in 2016.

111.  P also argues that D4's possession was not exclusive, as the lack of fencing near the “Stone God” (石神) allowed others to access the area. Furthermore, P also asks the Court to draw an adverse inference from D4's failure to call his sister, Chen Po Yuk, who allegedly occupied the land with him and could have corroborated the early years of their alleged possession.

112.  I will return to D4’s evidence below.

E5. D5’s Factual Evidence

113.  D5 testified that he migrated to Hong Kong from China in October 1978, with his wife joining him a year later. After a brief stay in Sau Mau Ping, he moved to Lot 204 in 1980 after being informed by the village representative, Chan Suen, that space was available. He built a small shelter and began residing in Lot 204 with his wife, which is now identified as the D5 Disputed Area.

114.  D5’s long-term presence is supported by a notice from the DLO dated 15 August 1983. This notice assigned the address “27, Chung Tsai” to D5’s structure for postal purposes. D5 also testified that his four sons, born between 1980 and 1984, grew up in the house and attended a nearby primary school.

115.  D5 described the structural evolution of his residence, noting that after a strong typhoon in 1984, he repaired and reinforced the house with concrete, adding a cockloft. He maintained that he consistently paid Government rates and rents in relation to the property. Furthermore, he established a formal electricity account in April 1997, having previously relied on a neighbour’s supply.

116.  To demonstrate his exclusive control, D5 testified that he leased the property to a Filipino tenant for approximately 9 to 10 months starting in May 2015 at a monthly rent of HK$4,500. He stated that he and his wife resumed living at the property after the tenancy had ended.

117.  P challenges D5's claim on the grounds of exclusivity, particularly during the period when he was allegedly working in China or when the property was leased. P argues that D5’s intermittent presence and the lack of a formal written tenancy agreement for the 2015 lease have undermined the quality of his alleged possession.

F. THE EXPERT EVIDENCE

118.  The Court received expert evidence from two land surveyors: Mr Chan Hon Kwan Henry (“Mr Chan”), instructed by P, and Mr Leung, instructed by Ds. The experts produced the JER dated 4 November 2020, which includes the critical Expert Plan identifying the various structures and footpaths on Lot 204.

119.  The experts reached a significant degree of consensus on the physical state of the land based on their analysis of historical aerial photographs (“APs”) and site inspections. Their primary agreements include:

119.1 The experts agreed on the existence and general dimensions of structures S1 to S16 as shown on the Expert Plan.

119.2 They reached consensus on the appearance of various structures in historical APs and also the years when the structures could be observed to exist within the Ds’ Disputed Areas.

119.3 They agreed on the location of six footpaths (FP1 to FP6) traversing Lot 204.

119.4 Both experts accepted the Expert Plan as an accurate depiction of the Disputed Areas and the physical features within them.

120.  Despite their broad consensus, several critical technical disagreements remain, inter alia:

120.1 Mr Chan characterized some structures as “ruins” or “dilapidated,” stating that they did not support a claim of continuous residential possession. In contrast, Mr Leung emphasized the historical usage and stated that even a partially collapsed structure could still be part of a larger possessory claim if the surrounding land was occupied and possessed.

120.2 The experts disagreed on the extent and continuity of historical fencing. Mr Chan highlighted gaps in fencing shown in certain APs to challenge the exclusivity of Ds' alleged possession. Mr Leung argued that in a rural setting like Peng Chau, complete fencing was not always necessary to assert possession, especially where natural features (like the “Stone God” (石神)) or clear agricultural patterns existed.

120.3 In general, in my view, Mr Chan was more cautious in attributing residential status to structures without clear evidence of roofs or active maintenance in the APs. Mr Leung was more willing to infer continuous occupation based on the presence of cultivation and domestic items observed.

121.  The expert evidence provides the objective skeleton of the case, upon which the factual flesh of the witness testimony should be placed. The Court finds the JER to be an invaluable tool for delineating the boundaries of various Ds’ Disputed Areas.

122.  D2 submitted that negative inference should be drawn against Mr Chan (P’s expert) because he had been instructed to prepare a survey report prior to the commencement of these proceedings. I do not consider that alone to be a reason to cast doubt on Mr Chan’s independence or his evidence. Overall, I find both expert witnesses to be honest and credible and that they have done their respective best to assist this Court.

123.  I also find that this is not the sort of case whereby the Court should accept or prefer the evidence of one expert witness over the other. Where the experts disagree, the Court must weigh their interpretations against the contemporaneous documentary evidence (like utility bills) and the evidence given by the factual witnesses. The factual question as to whether that possession was continuous and exclusive for the statutory period(s) remains a factual matter to be determined.

124.  As already mentioned, this Court accepts the Expert Plan as the map for the purpose of this Judgment and will use the structure numbers (S1-S16) and footpath numbers (FP1-FP6) therein throughout my analysis.

125.  In the paragraphs below, I will address the merits of each defendant’s case individually.

G. THE CASE OF D2

G1. P’s Pleading Objection

126.  P has raised a pleading objection regarding D2’s reliance on the 12-year limitation period. P argues that in the absence of a properly pleaded alternative case, it is doubtful whether D2 is entitled to rely on the 12-year limitation period for his adverse possession claim.

127.  I find this objection misplaced. The Court of Appeal in Asian Well Technologies Limited v Lee Yee Man & Others [2020] HKCA 65 §§5.1-5.3 rejected the notion that a claimant is strictly bound by a longer pleaded period of adverse possession. Where the objective evidence establishes a period of possession that is shorter than the one initially pleaded but still sufficient to satisfy the statutory minimum, the claimant is entitled to rely on that shorter period to establish their claim.

128.  In the present case, D2’s pleading at paragraph 9 of the Re-Amended Defence and Counterclaim asserts that P’s title had been “extinguished before commencement of the present action”. That formulation, in my view, is wide enough to cover both the 12-year limitation period and the 20-year limitation period. While D2 clearly aimed for the higher 20-year threshold as his primary case, this does not preclude the Court from finding that a 12-year period has been established on the evidence.

129.  Furthermore, I am satisfied that there is no prejudice to P. Extensive evidence was adduced, and thorough cross-examination was conducted, regarding the Ma family’s occupation from 1987 onwards. P was fully aware of the factual basis of D2’s claim and had every opportunity to test the continuity and exclusivity of that possession claim across the entire timeline.

130.  Accordingly, P’s pleading objection is without merit and is rejected. The Court will proceed to evaluate D2’s claim on the basis of whether either a 20-year or a 12-year period of adverse possession has been established by the evidence.

G2. P’s Allegation of Collusion

131.  P has also mounted a challenge to the credibility of the factual witnesses called by D2, namely the members of the Ma family. P’s primary contention is that their evidence is the product of collusion and should be given only minimal weight. P points to the alleged "strikingly similar" nature of their witness statements as evidence of a coordinated and collective narrative.

132.  Having carefully considered P’s submissions and the oral testimony provided at trial, I do not find P’s criticisms to be fair or sustained. My reasons are as follows.

133.  First, it is both natural and reasonable for members of the Ma family to have discussed the matters relevant to this litigation among themselves. Given that the dispute involves their family home for several decades, following the receipt of P’s formal demand for demolition in 2016, it would have been extraordinary if they had not done so. Their frank admissions during cross-examination regarding such discussions do not, in my view, impact negatively on their credibility. Indeed, all of D2’s witnesses confirmed that while they discussed the case, these discussions did not influence or alter the specific instructions they gave to their solicitors.

134.  Second, the similarities in their evidence (both in court and in their respective witness statements) may well be an indication that they are recounting the truth of the events they personally experienced together. In a family setting, shared memories of significant life events, such as moving house or performing major repairs, are likely to converge. As such, these similarities do not per se suggest improper collusion or the presentation of a fabricated collective narrative. I believe the Ma family members when they stated in court that their witness statements were prepared based on the instructions given by them to their solicitors.

135.  Third, even where witnesses have discussed the case, it does not follow that the Court should reject their evidence outright. As observed in Shum Wing Lok v Shum Man [2022] HKCFI 2622, while the Court must be more cautious when considering the weight of such statements due to the possibility of memories being influenced by others’ recollections, the evidence should still be evaluated carefully. The Court must look to the inherent probability of the events and, most importantly, the consistency of the testimony with contemporaneous documents to determine the appropriate weight to be given to such evidence.

136.  I find that the testimony of the Ma family witnesses is largely consistent with the objective evidence in this case. D2’s case that he moved to Lot 204 in 1987 is corroborated by the 1987 CLP bills and 1988 Water Authority records. Their evidence is also supported by the Chan Brothers, who confirmed D2’s occupation of House 17 from the late 1980s.

137.  Consequently, I reject the allegation of improper collusion. While I will continue to assess the weight of each witness’s evidence individually, I find the Ma family witnesses to be credible and reliable. Their collective narrative is consistent with both the contemporaneous documents and the independent testimony of the neighbourhood witnesses (PW2 and PW3).

G3. Whether D2 has proved adverse possession

138.  D2’s claim for adverse possession pertains to the area identified on the Expert Plan. I shall evaluate the evidence in respect of the four distinct sections (Sections ① to ④) of the D2 Disputed Area. P’s criticisms against D2’s case are also structured and dealt with in this manner.

139.  According to P’s expert, Mr. Chan, based on the aerial photo dated 14 February 1980, the D2 Disputed Area was mainly occupied by two structures (S1 and S2). A footpath (FP1) serving the public and the houses nearby was observed along the southern side of S1. Footpath FP1 was connected to the main road on the northern side of the D2 Disputed Area. Fences could not be observed from the said photo. In 1999, the occupation situation was similar to the previous year with the exception that FP1 at the southwestern corner of the D2 Disputed Area was roofed-over. In 2005, S1 still existed and S2 was in dilapidated condition. In 2007, S1 still existed and S2 was covered by vegetation.

140.  According to P’s expert, in November 2003, there was a new roof built on S1. According to Ds’ expert, it indicated that the roof might have been renovated. D’s expert confirmed that the aerial photos can only capture the top of a structure but not the condition underneath. That will be a matter of factual evidence.

Section ③: House 17 (Squatter Hut No 17)

141.  D2’s case is that he purchased House 17 from Cheng Kam Fook (鄭金福) in 1987 for HK$10,000 and has since enjoyed exclusive and undisturbed possession of the structure as his family residence.

142.  P has criticized D2’s failure to produce the formal written Sale and Purchase Agreement or any documentary record for this transaction such as the payment record of the HK$10,000. Ma Ho Fung testified that he heard about the existence of a signed document possibly from his mother, i.e. D2’s wife. He had never seen the document. Later on, he attempted to search for this document but to no avail. A similar account was also given by Ma Ho Sze under cross-examination.

143.  P also complains that the Ma family members’ evidence is hearsay as they have no personal knowledge of the purchase.

144.  I find P’s criticisms to be unfounded. Given the sale occurred many years ago, it is unsurprising for the relevant documents to have been misplaced or lost due to the lapse of time. Given their then young age, it is entirely reasonable that they were not kept informed of the details of the purchase. These matters do not undermine the credibility of D2’s overall narrative.

145.  In any event, the lack of production of the agreement or other documents evidencing the purchase does not negate the overwhelming evidence of the Ma family’s occupation and possession. As noted by the Ma witnesses, they learned of the purchase from D2’s late wife. The subsequent acts of the family such as moving in and paying for utilities are consistent with a claim of ownership and continued possession.

146.  In assessing the credibility of a squatter’s claim, the Court places importance on contemporaneous documents that came into existence before the litigation had arisen. In this regard, I find the documentary evidence supporting D2’s occupation of House 17 to be not only cogent but overwhelming. The Ma family produced a consistent trail of records dating back to 1987: -

146.1 School handbooks for Ma Ho Sze (since 1987) and Ma Wai Lok (since 1988) listing House 17 as their residential address;

146.2 Electricity Bills for the House 17 address since 1987 (albeit in the name of Cheng Kam Fook);

146.3 A Water Authority bill dated 23 September 1988 issued to D2’s late wife, Ng Yiu Ying for the House 17 address;

146.4 Telephone bills from February 1988 issued to D2 at the House 17 address; and

146.5 A series of family photographs from 1988 to 1996 showing the family’s daily life within and around the structure.

147.  P has challenged the utility bills on the basis that the electricity account remained in the name of Cheng Kam Fook. P suggests this indicates a lack of animus possidendi or that D2 was simply a licensee. I disagree. It is not uncommon in rural settings for certain utilities to remain in a predecessor’s name for convenience, provided the occupier continued to pay the bills, which D2’s family did. I accept D2’s explanation that he just “did not bother to do so” in this regard.

148.  The fact that the Water Authority bill (1988) and Telephone bills (1988) were later transferred to the Ma family members provides a clear objective indication that they treated House 17 as their own family home.

149.  P also attacked the family photographs produced by D2, arguing they were undated, taken by unknown persons, and thus unreliable. I find this objection to be particularly weak given that P failed to cross-examine the witnesses on the specific descriptions written on these photos during the trial. Although the photographs are not definitive proof of legal possession or its duration and would not, taken alone, discharge the burden, they provide corroborative evidence of the family’s presence and the physical state of the land.

150.  Furthermore, as already mentioned, D2’s occupation was corroborated by P’s own witnesses. Chan Chi Shing (PW3) confirmed that D2 purchased the house in 1987, and Chan Chi Kin (PW2) recalled playing with D2’s children in the late 1980s. This independent evidence from P’s side is highly persuasive.

151.  P’s submission that D2 might have been a licensee of Cheng Kam Fook is entirely speculative and unpleaded. There is no evidence of any rent payment to or permission being sought from Cheng Kam Fook.

152.  Accordingly, I find that D2 has established exclusive possession of Section ③ (House 17) since 1987. As this possession began prior to the 1991 amendment to the Limitation Ordinance, the 20-year period applies, which was satisfied long before the commencement of these proceedings in 2016.

153.  P argues that D2 moved to Kam Ping Estate in 1997, and thus any subsequent use of House 17 or the surrounding land was merely for storage, which P contends is insufficient to establish adverse possession. I disagree. Possession does not require 24-hour residential presence. The continued payment of utilities, the storage of family belongings, and the regular maintenance and clearing of the area (as testified by Ma Ho Fung and Ma Ho Wah) are sufficient acts of control to exclude the paper owner. The fact that the family used the area for storage and cultivation even after moving to public housing does not diminish the quality of their possession.

Sections ① and ②: The Garden and “Chan Mai Chai” Area

154.  These sections involve the area surrounding House 17, including a structure (S2) previously occupied by a neighbour known as “Chan Mai Chai” (陳賣仔). The evidence from the Ma family is that Chan’s family moved out in 1996/1997, after which Chan’s House began to collapse. There were contrary contentions from P and D2 as to whether Chan’s House was the area designated as “ruin” in the diagram above or whether it was structure (S2). On a fair reading of the evidence, I find that it was the latter.

155.  The JER shows S2 continuing to appear through 2004, dilapidated in 2005, and vegetated in 2007.

156.  The Ma family testified that they cleared the debris resulting from the collapse of Chan’s House and began using the area for storage and cultivation. Ma Wai Lok said that he saw tools being placed inside the structure. Ma Ho Wah said that his father used part of the inside of the structure to grow plants and store some miscellaneous items.

157.  Thus, D2’s evidence was of partial collapse at the base while the roof remained observable. I accept their evidence here as credible.

158.  P objects to this on the basis that D2 did not explicitly plead a phased occupation. However, I find that D2’s pleading regarding the growth of trees and erection of fences since 1987 in paragraph 7(g) of D2’s Re-Amended Defence and Counterclaim is sufficiently broad to encompass the gradual expansion into adjacent areas as they became vacant.

159.  Ma Ho Sze provided detailed testimony in court that "Chan’s House" actually occupied both sections ① and ②. She confirmed that the Ma family had already been using sections ① and ② areas at least in 2000. She remembered the timing because her mother suffered a stroke in about 2000. Before that, it was D2 and her mother who were responsible for taking care of the house. After the stroke, Ma Ho Sze went to help take care of the cultivated land there. Hence, she said that her family’s usage and occupation of that area began at least from 2000.

160.  While P criticized her evidence as uncorroborated or that her evidence was a desperate attempt to address a critical evidential gap, I nonetheless found her to be a truthful witness who provided a logical explanation for why the aerial photos showed an intact roof (S2) as late as 2004 even though the structure had partially collapsed at its base.

161.  I accept that D2 took factual possession of Sections ① and ② following the departure of Chan’s family in 1996/1997. I accept that D2 cleared up the waste left by the collapse of Chan’s House and then used the said area for storing tools. The Ma family members are all consistent in the usage of these areas and I find their evidence believable. I also accept their explanations as to why these matters were not covered in their witness statements.

162.  As such, by the time P acquired the Lot in 2016, D2 had been in possession of these sections for more than 12 years (since at least 2000). This satisfies the 12-year limitation period applicable to claims accruing after 1991.

163.  P further argued that Section ① appeared "wild" or covered in “vegetation” in aerial photos, suggesting a lack of possession. However, both experts agreed that “vegetation” can include cultivated plants or fruit trees. The Ma family’s evidence of clearing the debris from Chan’s collapsed house and using the area for gardening is a clear assertion of possession.

Section ④: The Area Behind the Shrine

164.  Section ④ is a relatively small area located behind the shrine, as identified in the Expert Plan. P has raised several objections to D2’s claim over this specific portion of the land, which I shall address in turn.

165.  First, P attacked the sketch plan adduced by D2 in his exhibit “MCW-1” pointing out that it did not explicitly include Section ④. The exhibit indicated section ④ as “road”. I do not find this to be a fair complaint. D2 made it clear in his evidence that the sketch was intended only as a rough illustration and was not meant to be a definitive or survey-accurate representation of the precise boundaries.

166.  Second, P submitted that because the public could visit the shrine, D2 could not establish exclusive possession of section ④. I disagree. The layout of the site shows that while the public could access the front of the shrine via a specific footpath, the area behind the shrine, which constitutes section ④, is not accessible to the public. The evidence from the Ma family establishes that they treated the rear of the shrine as part of their private garden and storage area, distinct from the public-facing portion of the shrine.

167.  Third, P relies on the absence of visible fences in historical aerial photographs to argue that the area was not enclosed. However, as P’s own expert, Mr Chan, conceded, the lack of visibility in aerial photos does not prove the absence of fencing, particularly where dense vegetation or low-resolution imagery is involved. D2 stated in his Affirmation that he had grown various trees and plants on the property and erected fences over the years. Ma Ho Fung provided details on this point, explaining that where natural vegetation was insufficient to form a barrier, D2 used corrugated boards, supported by two poles, to enclose the area. I find this evidence to be credible and uncontradicted.

168.  Furthermore, any arguments regarding the precise location of fences are less relevant when one considers that the full area occupied by D2 actually extends beyond the boundary of Lot 204 onto the adjacent Government land. This indicates a broader pattern of occupation that is not strictly confined by the Lot's paper boundaries.

169.  In evaluating section ④, I regard the principle of common character of locality as relevant. As noted in Lau Kwai Ping Joyce v Fulland International Limited [2020] HKCFI 1501 at §287, acts of possession on parts of a tract of land may serve as evidence of possession of the whole, provided there is a common character to the locality. The Court must consider the nature of the land and the kind of possession proved.

170.  In the present case, I have already found that D2 and the Ma family established factual possession of sections ①, ②, and ③ for the requisite periods. Section ④ is contiguous with these areas and shares the same character as part of the family’s overall residential and gardening holding. Given the overwhelming evidence of exclusive control over the primary structures and the surrounding garden, I find it highly probable that D2 exercised the same degree of possession over section ④.

171.  This Court finds that D2’s intention to possess was clearly manifested through several unequivocal acts. The initial purchase of House 17 from Cheng Kam Fook in 1987 is a powerful indicator that D2 intended to hold the property as his own. This intent was further evidenced by the immediate installation of utilities and the use of the address for official purposes, such as school registrations.

172.  The substantial works carried out in 2003 and 2014 to reinforce the roof and flooring of House 17 are the acts of an owner, not a temporary licensee or a casual trespasser. Such investment in the property’s long-term habitability and structural integrity is inconsistent with any intention other than to possess the land to the exclusion of others.

173.  The continuous maintenance of the garden and the enclosure of the peripheral areas (Sections ① to ④) with fencing and corrugated boards further demonstrate a clear intention to define the boundaries of his holding and to exclude others from it. The fact that D2 and his family continued to pay for utilities and use the property for storage and family gatherings even after moving to Kam Ping Estate in 1997 shows that their intention to possess remained continuous and uninterrupted.

174.  This also answers P’s criticism that the Ma family had abandoned the property in 1997.

175.  As such, the Court finds that D2 treated the D2 Disputed Area as an occupying owner might be expected to treat it. He did not seek permission from the paper owner, nor did he acknowledge their title in any way. His belief that he had bought the house, combined with his family’s long-term residential and storage use, satisfies the requirement of animus possidendi.

176.  In conclusion, I find that D2 has established:

176.1 Adverse possession of Section ③ (House 17) since 1987 and thus for a period exceeding 20 years before the commencement of these proceedings; and

176.2 Adverse possession of Sections ①, ②, and ④ for a period exceeding 12 years before the commencement of these proceedings.

177.  Consequently, P’s title to the D2 Disputed Area has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance. D2 is entitled to a declaration of possessory title in respect of the D2 Disputed Area.

G4. D2’s Claim for Easement

178.  D2 seeks a declaration of an easement, specifically a right of way over Lot 204 to gain access to the D2 Disputed Area. The specific route claimed is the reversed “C” shaped footpath, marked in green on Appendix 5 (Plan of the Occupation Area by D2) of the Survey Report prepared by Mr Leung dated 25 April 2018, see the diagram under paragraph 138 above.

179.  Both P’s and Ds’ experts confirmed that they could walk on the reversed “C” green footpath freely without interruption.

180.  The central question is whether D2 has adduced sufficient evidence to show at least 20 years of continuous, open, and uninterrupted use of the relevant footpath as of right. On this question, it is D2’s evidence that “We prefer to use this footpath because it is built by concrete and its surface is generally flat. As I would use to go in and out by my bicycle, I would invariably use this footpath. Moreover, as street lights are erected by the Government along this foot path, it is comparatively safer for us to use this route”.

181.  I find that D2 has met this burden. My reasons are as follows.

182.  First, I find the evidence of the Ma family’s residence in House 17 since 1987 to be established. Given that this structure served as their family home, the reasonable and compelling inference is that the family used the most direct and viable footpath to access their residence. The physical nature of the path (i.e. it is constructed of concrete and its surface is generally flat) makes it the natural and preferred choice for ingress and egress, particularly for the use of bicycles as mentioned in D2’s 2^nd Affirmation.

183.  Second, I accept D2’s evidence regarding why this specific footpath was used instead of the other possible routes. D2 explained in his Affirmation that the alternative route suggested by P was merely a “small mud path” on Government land, which was rarely used by his family. There was also a narrow gap to the shrine which measured about 1 foot, too narrow to provide a practicable route of access. In any event, I agree that the existence of an alternative path does not defeat a claim for easement, as there is no requirement for the use to be exclusive.

184.  Third, P argued that D2 failed to prove the right of way was used on a daily basis. I reject this submission. There is no legal requirement for a claimant to prove daily use. Rather, the use must be of such a character, degree, and frequency as to indicate the assertion of a continuous right. For a residential property, regular use for access clearly satisfies this test.

185.  Fourth, D2’s evidence is significantly bolstered by the testimony of P’s own witness, Chan Chi Kin (PW2), who confirmed that the public — including the neighbourhood children — had been using this green footpath freely and without interruption for decades. This independent corroboration from the P’s side confirms that the use was open. While the experts’ observations of free movement were limited to their site visits, the collective weight of the factual testimony covers the full 20-year period.

186.  Consequently, I find that D2 has established a prescriptive right of way over the reversed “C” shaped green footpath as delineated in Appendix 5 of Mr Leung’s report. This easement is granted by virtue of the doctrine of lost modern grant, having been used as of right for a period exceeding 20 years prior to the commencement of these proceedings.

H. THE CASE OF D3

187.  In support of his claim for adverse possession, D3 relies on, inter alia, a combination of photographic evidence, utility records, and the testimony of his son, LSM.

188.  The key documents are:

188.1 Photographic Evidence: D3 produced photographs depicting various structures and gardening areas.

188.2 CLP Records: A letter from CLP dated 11 February 2016 confirms that D3 has been a customer for electricity supply to “No 11, Chung Tsai” since 21 February 1997. While this provides an objective anchor for D3’s presence on the land, it only supports a claim from 1997 onwards.

188.3 Rates and Government Rent: A Notice of Interim Valuation issued on 20 May 2015 indicates an effective date of 28 June 1997 for the tenement at “No 11A, Chung Tsai.” Like the CLP records, this document fails to assist D3 in establishing possession prior to 1997.

188.4 Cultivation Photographs: D3 produced photos showing persons cultivating the land. These photos are undated, although D3 claims they were taken “over 12 years ago” and show him with his grandson. That statement was made in D3’s 2^nd Affirmation dated 20 April 2017. However, over 12 years ago from that date does not mean over 12 years ago from the commencement of these proceedings by the Plaintiff. In any event, this statement is very vague, without precise dating, these photos offer little support for a continuous 20-year claim or a 12-year claim.

189.  The testimony of LSM failed to provide the necessary detail for the period prior to 2012. While LSM confirmed he had lived at the property since September 2012, his evidence regarding the preceding decades was vague. He stated that he visited and lived there “from time to time” during summer holidays but could not elaborate on the specific years or the frequency of these visits. This lack of detail is significant given that the burden lies with D3 to prove continuous and exclusive possession.

190.  I find the absence of other contemporaneous documents to be quite alarming. LSM testified that D3 has been paying water bills for years, yet not a single water bill was produced. When questioned on this omission, LSM’s response was speculative and unsatisfactory, suggesting it “did not matter.” Similarly, despite LSM admitting that he received mobile phone, bank, and credit card statements at the address, none of these documents was adduced. Given that D3 is legally represented, it is unthinkable that such vital evidence would have been omitted if it truly existed and supported a claim of long-term residence and possession.

191.  While the expert evidence of Mr Leung is helpful in confirming that structures existed on the D3 Disputed Area as early as 1980, I agree with P that this does not assist in identifying who was in possession. The existence of a structure does not equate to physical possession or animus possidendi of a specific claimant. Without cogent factual evidence to link D3 to the structures for the requisite period, the expert findings are not sufficient to give rise to adverse possession.

D3’s shifting cases at different stages of these proceedings

192.  A significant factor impacting D3’s case is the progressive and unexplained enlargement of the area claimed to have been adversely possessed at various stages of these proceedings. As highlighted by P, D3’s case has evolved through three distinct variations, each expanding the geographical scope of the alleged possession:

192.1 Version 1: In his first Affirmation dated 28 June 2016, D3’s claim was confined to a small and singular structure/house identified as 11A on the “LSC-1” plan.

192.2 Version 2: By the time of the original Defence and Counterclaim on 11 October 2016, D3’s claim had expanded to encompass a larger structure/house.

192.3 Version 3 (Current): In the Amended Defence and Counterclaim on 8 May 2017, the claim reached its most expansive form, incorporating not only the residential structures but also extensive surrounding area.

193.  The magnitude of these discrepancies is striking. While this Court acknowledges that a layperson may require expert assistance to precisely delineate boundaries, the shift from a small hut to a substantial residential and agricultural cluster is not a matter of mere technical refinement. If D3 had truly possessed the entire area depicted in Version 3 since 1980, it is inconceivable that his initial claim (Version 1) would have been so restricted. In the absence of any reasonable explanation for this expanding case, I find that these expansions weaken D3’s overall credibility, particularly concerning the peripheral areas that were only late additions to his narrative.

194.  Cross-examination was conducted upon the said enlargement of the claimed areas. However, LSM was unable to give any meaningful or convincing explanation to account for the expansions.

The Evidence of the Chan Brothers

195.  To rebut D3’s claim of long-term, exclusive possession, P has adduced the evidence of PW2 and PW3. These witnesses, who resided in the immediate vicinity at House No 6 for decades, provided a narrative that directly contradicts D3’s claim of occupying the entire D3 Disputed Area since 1980.

196.  In evaluating this conflicting evidence, I adopt the following table which reconciles the nomenclature used by the factual witnesses with the structure numbers identified in the JER:

P’s witnesses [B/44/261]	Experts [E/76/1010]
“D”	S5
Ruin “C”	S4
R	S13
Ruin “Z”	S3
UTVW	S6, S7, S8, S14, S15
TS “X”	S16
Y	Open Space in W-Portion
G	E-Portion

197.  Chan Chi Kin testified that he lived at House No 6 (marked “B” on the plan) from 1986 until 2002. His evidence regarding the occupation of the D3 Disputed Area is based on his personal observation:

197.1 Ruin “C” (No 8 / S4): He confirmed that his brother Chan Chi Shing and his family lived here from at least 1986 until approximately 1998-2000. Following their departure, the structure was occupied by Chan Chi Tong (陳志棠) until September 2008. This directly contradicts D3’s claim of possessing this specific area.

197.2 TS “X” (S16): He identified the occupant(s) as an elderly man known as “Ah Bak” (阿伯) and subsequently his wife until her death around 1998-1999.

197.3 Area “Y”: He recalled a neighbour setting up a chicken shed in this open space during his childhood, and noted that he and other neighbourhood children could access this area freely. This evidence contradicts D3’s claim of exclusive possession of the land.

198.  Chan Chi Shing provided further corroboration and additional details regarding the fragmented occupation of this area:

198.1 Ruin “C” (No 8 / S4): Chan Chi Shing confirmed that he lived at this house since 1984. After he had left in about 1998 and 2000, the structure was occupied by Chan Chi Tong (陳志棠).

198.2 Area “D” (No 11 / S5): Chan Chi Shing admitted that while the structure was initially occupied by the son of “Chan Tai Hau” (陳大口), a Mr Law moved in sometime after 1984, and this Mr. Law and his family have been there since 2000. Notably, there was no other evidence showing the existence of any other Law family apart from D3 and his family. This admission is thus significant as it provides supporting evidence for D3’s possession of House 11, albeit later than D3’s claimed 1980 entry.

198.3 UTVW: PW3 in his oral evidence agreed that the UTVW area was used by the Law family for more than 20 years before 2016. He originally in his witness statement stated the area was occupied by "Ah Wat" (阿屈) until his passing. His evidence understood properly means that after the passing of “Ah Wat”, Mr. Law took over this area and expanded his holding.

198.4 Ruin “Z” (S3): He identified the occupant as one Cheng Shu Choi (鄭樹彩) until 1996. In 1996, they moved out of Ruin “Z” and the structure began to collapse. No one exclusively possessed this area since the collapse.

198.5 Area “R” (S13): He said in his oral evidence that that was a shed without a top (一個無上蓋棚仔), which was right outside Cheng Shu Choi’s home.

198.6 Areas “Y” and “G”: He described Area “G” as a wild banana grove (“野蕉林”) and noted that Area “Y” was initially an abandoned area not fenced off. No one exclusively possessed this area. He noted that the cultivations in these areas only appeared much later (in respect of the cultivation on Area “Y”, it only appeared after 2008 as he so stated in his witness statement)

199.  I have found both Chan Brothers to be honest and credible witnesses. Their evidence was given in a straightforward manner, and they were prepared to make admissions that were unhelpful to P (such as acknowledging D3 family’s presence at House 11/11A). Their recollection of the neighbourhood landscape, specifically who lived in which hut, is helpful to this Court.

200.  I will now deal with different parts of the D3 Disputed Area below.

“Ruin “C” (No 8)

201.  I find that D3 has failed to discharge the burden of proving exclusive possession of this area for the requisite period of time for the following reasons.

202.  The evidence of Chan Chi Shing is decisive. He testified that he and his family personally occupied Ruin “C” from 1984 until 1998. This was corroborated by Chan Chi Kin. Following PW3’s departure, the house was occupied by his brother, Chan Chi Tong, until September 2008. The fact that P’s witnesses personally lived in the very structure D3 claims to have possessed is the strongest possible rebuttal to any assertion of exclusive possession by D3.

203.  In his witness statement, D3 failed to specify the year in which he allegedly began to take factual possession of Ruin “C”. This vagueness is to be contrasted with the precise, personal recollections of the Chan brothers.

204.  As previously noted, LSM only began living on Lot 204 in 2012. He lacks any personal knowledge of the occupancy of Ruin “C” during the critical 1980s and 1990s, and his testimony can provide no assistance to D3 on this issue.

205.  In these circumstances, this Court finds no reason to doubt the testimony of the Chan Brothers that they were the ones living in House 8, not D3.

206.  Even if this Court were to set aside the contrary evidence from the Chan brothers, D3’s claim would still fail. He has produced no utility bills, photographs, or third-party testimonies specifically linked to Ruin “C.” Given the burden of proof required for adverse possession, the Court finds that D3 has failed to produce any cogent or compelling evidence of his factual possession of this area.

House Nos 11/11A/Area D

207.  The claim for House Nos. 11/11A is supported by a significant degree of corroboration, including admissions from P’s own evidence. The Court finds that D3 has successfully established adverse possession of this area for the following reasons.

208.  The most persuasive evidence in favour of D3 comes from Chan Chi Shing. During his testimony, PW3 frankly admitted that a Mr Law moved in sometime after 1984. I find, on the evidence, that the Mr Law to whom PW3 referred was D3. Given that P has put forward PW3 as a witness of truth and has asked the Court to rely on his testimony to defeat other parts of the claim, the Court gives significant weight to this admission.

209.  D3 has produced a letter from CLP dated 11 February 2016, confirming that he has been a customer for the supply of electricity to “No 11, Chung Tsai” since 21 February 1997. This provides an objective piece of evidence for D3’s residential presence for a period of at least 19 years prior to the 2016 writ.

210.  The Court finds that the payment for utilities and the identification of the Law family as the residents of House 11 by Chan Chi Shing demonstrate both factual possession and the necessary animus possidendi to exclude the paper owner. In coming to this conclusion, I have also taken into account the photographs depicting various structures on this area. Based on the aforesaid, I find that D3 has possessed House Nos. 11/11A adversely since 1984.

UTVW

211.  In respect of the UTVW area, this Court finds that D3 has successfully established adverse possession of this area for the following reasons.

212.  During cross-examination, Chan Chi Shing agreed with D3’s Counsel that the Law family had been using the UTVW area for a period exceeding 20 years prior to the 2016 writ. Given that PW3 was a long-term neighbour with intimate knowledge of the Lot’s history, the Court treats this as persuasive evidence showing D3’s possession.

213.  PW3 first identified a person known as “Ah Wat” (阿屈) as the occupant of this area. The Court finds that after the departure or passing of Ah Wat, the Law family, who were already established in the adjacent House 11, took over the UTVW area and integrated it into their residential holding.

214.  The UTVW area is immediately contiguous to House 11. Applying the principle of common character of locality as discussed in Lau Kwai Ping Joyce v Fulland International Limited [2020] HKCFI 1501, the Court finds it inherently probable that the Law family’s possession of their main residence extended to the immediately surrounding structures and open space that formed part of their domestic cluster.

215.  P pointed to the fact that structures S7 and S8 were visible in the 1980 aerial photos but had disappeared by 1986, arguing that this contradicts D3’s account. However, the Court does not find this fatal to D3’s case. The physical disappearance of a temporary structure from an aerial photograph does not necessarily equate to a cessation of factual possession of the land itself. An adverse possessor may continue to use the underlying land for storage, gardening, or other domestic purposes even after a specific structure has been demolished or has collapsed.

216.  The intention to possess the UTVW area is inextricably linked to D3’s possession of the primary residence at House 11. By expanding their residential holding into the contiguous structures and open spaces of the UTVW area, D3 and his family demonstrated a clear and objective intention to treat this land as their own. The act of incorporating neighbouring ruins and structures into one’s own domestic sphere is a classic manifestation of an intent to exclude the world at large.

217.  The Law family’s use of the UTVW area was open and well-known, as evidenced by the admission of the neighbour Chan Chi Shing. This neighbourly recognition of their control over the area for over 20 years supports the finding that their possession was not merely a series of transient acts of trespass, but was based on a persistent intention to hold the land to the exclusion of others.

218.  There is no evidence that D3 or his family ever sought permission from the paper owner or acknowledged their title in any way during the period of their occupation. Their occupation was consistent with that of an owner-occupier who considers the land to be part of their established home.

219.  Accordingly, this Court finds that (1) D3 has possessed the UTVW areas adversely since 1996, (2) P’s title to the UTVW area has been extinguished and (3) D3 is entitled to a declaration of possessory title for this portion of the land.

TS “X” (S16)

220.  D3’s possessory claim for TS “X” (S16) is dismissed.

221.  The evidence of Chan Chi Shing and Chan Chi Kin provides a clear and comprehensive history of this structure that excludes D3. Chan Chi Shing testified that TS “X” was occupied by an individual known as “Ai Tsai Bak” (矮仔伯) until his passing (after 1984), which is consistent with Chan Chi Kin’s recollection although he called him “Ah Bak” (阿伯). PW3 recalled that the key to the structure was handed over to his family after they had assisted with repairs. Subsequently, the area was occupied by their grandmother “Suk Po” (叔婆) until she moved to an elderly home, and thereafter by their brother, Chan Chi Tong, until September 2008.

222.  The level of detail provided by the Chan brothers carries a high degree of inherent probability. The Court finds their testimony to be both credible and persuasive.

223.  In stark contrast to the detailed narrative of the Chan brothers, D3’s own evidence is entirely silent as to when he or any member of the Law family allegedly began to occupy or "operate" this specific area. This failure to address the history of a structure within the D3 Disputed Area is a significant evidentiary gap.

224.  Even if the Court were to disregard the testimony of the Chan brothers, D3’s claim would still fail. He has produced no documentary evidence, photographs, or specific witness testimony that establishes his factual possession of TS “X” for any periods of time. As such, the Court finds that D3 has failed to make out his case for this portion of the land.

Ruin “Z” (S3) and Area “R” (S13)

225.  D3’s possessory claims for Ruin “Z” (S3) and Area “R” (S13) are dismissed.

226.  The evidence of Chan Chi Shing is clear and persuasive. He testified that Ruin “Z” was occupied by a neighbour known as Cheng Shu Choi (鄭樹彩) and his family until 1996, when they moved to Kam Ping Estate. There were some questions as to whether Cheng Shu Choi’s entire family moved to Kam Ping Estate. But that does not affect the overall credibility of this part of the witness’ evidence.

227.  Area “R” represented the area right outside Cheng Shu Choi’s home. This specific identification of a competing occupant during the heart of D3’s alleged limitation period is detrimental to the requirement of exclusivity.

228.  D3’s Counsel raised several criticisms regarding inconsistencies between PW3’s written statement and his oral evidence in Court. However, the Court does not find that these minor discrepancies affect his overall credibility or the reliability of his core observations. The main gist of his evidence that the Cheng family resided at Ruin “Z” until 1996 remains unshaken.

229.  I note that when LSM was cross-examined, he stated that his family had begun using Ruin “Z” for cultivation purposes since about 1996. Photos showing the cultivation areas are also produced which were allegedly taken over 12 years ago. But LSM’s evidence remains a bare assertion on his part. D3’s description as to when the photos were taken is self-serving and not corroborated by other evidence. I find such evidence insufficient to discharge D3’s burden in proving adverse possession.

230.  Therefore, D3’s claim fails due to the lack of cogent evidence establishing his own factual possession and intention to possess these specific areas.

Areas “Y” & “G”

231.  D3’s possessory claims for Area “Y” (the western open space) and Area “G” (the eastern open space) are dismissed.

232.  Regarding Area “Y”, the evidence of Chan Chi Kin is again significant. He recalled that during his childhood, although a chicken shed existed in this area, he and other neighbourhood children were able to access the space freely. This lack of enclosure or restricted access directly contradicts the requirement that possession must be exclusive and manifest an intention to exclude the world at large.

233.  Regarding Area “G”, Chan Chi Shing described it as previously being a “wild banana grove” (野蕉林). While he noted it was later used for cultivation, he was unable to specify when this transition occurred. The description of the area as a wild grove for a significant period suggests a lack of human control and cultivation during the early years.

234.  Both P and D3 pointed to the expert evidence as to the usage and occupation on these areas, but as the experts correctly noted, while they can observe physical changes on the land, they cannot identify who was responsible for them. In the absence of specific, credible testimony from D3 or his family members regarding their activities in these areas during the 1980s and 1990s, the Court cannot find that D3 was the one in possession.

235.  D3 argued that because D3 possessed significant structures on the Lot, he should be deemed to possess the entire D3 Disputed Area, including the cultivated spaces. This Court rejects this submission. The D3 Disputed Area is large and historically consisted of fragmented uses and different occupants. In such a context, the principle of “common character of locality” does not automatically extend possessory title from one structure to a large, separate tract of open land. D3 bears the burden of proving factual possession for each distinct portion, which he has failed to do for Areas “Y” and “G.”

236.  Accordingly, the claims for adverse possession of Area “Y” and Area “G” are dismissed.

237.  In concluding that D3 has established adverse possession over House Nos 11/11A/Area D (S5) and the UTVW area (S6, S7, S8, S14, S15), I have considered the impact of his “expanding case” as referred to above. While D3’s changing narrative weakens his credibility regarding peripheral areas, it does not defeat his claim for these areas. The decisive factor is the admission by P’s own witness, PW3 who said that a Mr Law moved in sometime after 1984 and used the UTVW area for over 20 years. This is corroborated by objective CLP records from 1997. Rejecting an all or nothing approach, I find the evidence for these specific areas remains robust and has satisfied the burden required to establish adverse possession.

“Fences/Gates”

238.  P relies on the JER, submitting that the experts observed no perimeter fence enclosing the entirety of the D3 Disputed Area. However, the utility of this observation is qualified. During cross-examination, both experts candidly conceded the inherent limitations of aerial photography, acknowledging that wire mesh or low-lying fences might not be discernible from such an altitude.

239.  Further, D3 produced ground-level photographs depicting the construction of certain fences. The value of these photographs is, however, compromised by the fact that they are undated, rendering it impossible for this Court to ascertain when these fences were first erected.

240.  D3 also relies upon the existence of a gate situated on the southern side of Footpath 2 (FP2), adjacent to House 11/11A. During his oral testimony, LSM identified the location of this alleged gate by referencing a ‘butterfly’ mark on the plan at [D/72/659]. When directed to the photograph at [C/61/487-9], LSM elaborated that the gate consisted of a wire mesh that could be secured, emphatically stating that when closed, it effectively excluded others (「我地一閂門人地就行唔到」).

241.  He further asserted that this gate had been in continuous existence since the 1980s. I must approach this self-serving oral testimony with caution. While D3 was able to produce recent photographs of other structures, there is a conspicuous absence of any contemporaneous photographic evidence depicting this specific gate during the alleged period of possession. The burden of proving physical exclusion rests squarely on D3. In the absence of corroborating documentary or photographic evidence, I find that D3 has failed to discharge the burden of proving the historical existence of this specific gate. This finding is also consistent with the expert evidence from P’s expert that during his visit in 2015, the entire site was accessible to him.

242.  That finding, however, is not fatal to D3’s claim over the core residential cluster (i.e. House Nos 11/11A/Area D (S5) and the UTVW area (S6, S7, S8, S14, S15)). It is well-established that a complete physical enclosure, such as a continuous fence or a lockable gate, is not an absolute prerequisite for establishing factual possession. The degree of physical control required depends entirely on the nature, character, and location of the land in question. We are dealing here with a rural, village-type residential setting. The objective evidence establishes that House 11/11A and the immediately contiguous UTVW area functioned as an integrated domestic unit. Given the inherent residential character of these structures, coupled with the compelling and independent corroboration from P’s own witness regarding the Law family’s long-term occupation, I am satisfied that D3 exercised a sufficient degree of exclusive physical control over this specific cluster. The lack of a proven, formal perimeter fence or gate does not negate the manifest reality of their residential possession.

Whether D3 occupied the D3 Disputed Area in his own right

243.  P alternatively submitted that D3’s occupation was not as of right but was instead a derivative possession exercised with the permission of his brother, Law Fo Yat. P submitted that to establish possession for the purposes of the Limitation Ordinance, a claimant must demonstrate that they occupied the land in their own right, rather than as a licensee, agent, or representative of another party.

244.  I find that P is precluded from raising this contention. It is a well-established rule of pleading that if a party intends to rely on a license or a specific grant of permission to defeat a claim of adverse possession, such a matter must be expressly pleaded to allow the opposing party a fair opportunity to respond. As the Court of Appeal clarified in Cheung Kwong Yuen v Sun Hui Fang [2019] HKCA 225 (at §§16.1-16.3), the assertion that a squatter’s possession was permissive is a positive case that cannot be introduced for the first time in submissions. P’s failure to plead this point is, in itself, sufficient grounds for its rejection.

245.  Even if I were to consider the substantive merits of this argument, I find it to be entirely without foundation. P’s submission appears to be based on the fact that Law Fo Yat occupied House 11/11A shortly before D3 joined him in April 1980. However, the mere fact that two siblings reside together in a squatter structure does not, as a matter of law or logic, give rise to an inference that one is the licensee of the other. In the context of a family-run household in a rural setting, the more natural inference is one of joint or communal possession in their own right against the world.

246.  There is no evidence before this Court to suggest that Law Fo Yat ever asserted a superior title or granted a license to D3. P suggested that, under cross-examination, LSM agreed that D3 had lived in House 11/11A under the permission of his brother. I do not consider LSM’s answer to have an adverse effect on D3’s case if viewed in the context of his entire evidence.

247.  To the contrary, the evidence suggests that D3 occupied the premises as his primary residence for decades, paying utility bills and conducting himself as an independent possessor. Accordingly, I reject P’s submission in this regard.

D3’s Failure to call other relevant witnesses

248.  There was also a suggestion from P that D3 had failed to call evidence from his other family members and thus adverse inferences should be drawn against D3. Given my conclusions above that D3’s success in establishing adverse possession regarding House 11/11A and the UTVW area are based largely on the evidence from the Chan Brothers, I do not consider that D3’s failure to call his other family members to testify will change the evidential landscape. This is thus not an instance where the Court should draw any adverse inference as suggested.

P’s Claim for Loss and Damage against D3

249.  I now turn to P’s claim for loss and damage, specifically the costs incurred in the erection and subsequent dismantling of fences within the D3 Disputed Area.

250.  On 13 January 2017, P obtained a writ of possession for the recovery of possession of Lot 204, save and except the respective portions of Lot 204 as claimed by D2, D3 and D4. On 10 February 2017, various notices to quit were posted on various conspicuous places on portions of the Land, including the areas then claimed by D3.

251.  P received no notice or reply from D3 concerning any claim of him against the area at which the various notices to quit were posted. P then proceeded to erect fences surrounding portions of the Land.

252.  By Summons dated 19 April 2017, D3 sought leave to amend his Defence and Counterclaim, thereby significantly enlarging the area which he claimed to occupy on Lot 204. As such, P dismantled the fences surrounding the D3 Disputed Area (Version 3), allegedly incurring costs in the sum of HK$112,302.

253.  P’s claim arose out of the context of the interlocutory injunction granted by the Honourable A Chan J on 20 April 2017. That injunction was granted in favour of D3 upon his standard undertaking to abide by any order the Court might make as to damages, should it later be determined that P sustained loss by reason of an injunction that D3 ought not to have been granted.

254.  I enquired with P at the start of the trial and P confirmed that P’s cause of action in this regard is D3’s alleged breach of the undertaking. An undertaking to the court is a solemn promise made to the Court itself. Consequently, I take the preliminary view that the enforcement of such an undertaking and the assessment of any damages arising therefrom is a matter within the jurisdiction of the Court to which the undertaking was given.

255.  In P’s Closing submissions, P stated that, as to this claim, P would separately seek an inquiry as to damages after trial, if appropriate. As such, I will not deal with this matter further in this Judgment.

D3’s claim for easement

256.  D3 counterclaims for easements by prescription under the doctrine of lost modern grant, specifically asserting rights of way over two distinct access routes on Lot 204[1]:

256.1 A northern route along Footpath 4 (FP4); and

256.2 A southern route consisting of a portion of Footpath 3 (FP3) leading from the east.

257.  To succeed under the doctrine of lost modern grant, D3 must demonstrate open, continuous, and uninterrupted use of these specific paths “as of right” for a period of at least 20 years prior to the commencement of the action.

258.  D3’s claim for a right of way was added by amending his pleading to include a new relief. It should be noted that all the affidavit evidence and witness statement of D3 himself did not touch upon his claim for a right of way at all. LSM’s affirmation and witness statement are also silent on this matter.

259.  Regarding the use of the northern access along FP4, there is no evidence showing that the Law family has used FP4, which is not adjacent to the House 11/UTVW residential area, continuously for at least 20 years.

260.  In respect of the right of way over the portion of FP3 leading from the east, that route provides southern access to the House 11/UTVW residential area. The evidence in the JER supports the existence of this southern path. Both experts agreed that from the aerial photos taken as early as in 1980 and 1981, Footpath FP3 appeared in the southwest of and just outside the W-Portion.

261.  However, the expert evidence does not shed light upon who was using FP3 and thus does not assist D3’s claim for easement.

262.  As mentioned, neither D3’s evidence nor LSM’s evidence addresses D3’s alleged long use of FP3. LSM, under cross-examination, did not even know that D3 was claiming any easement in these proceedings and could not answer the relevant questions put to him in this regard.

263.  In these circumstances, I find that D3 has not discharged the burden of proving a prescriptive right of way over FP3.

264.  Accordingly, D3’s counterclaim for an easement over FP3 and FP4 is hereby dismissed.

I. THE CASE OF D4

265.  D4’s claim for adverse possession concerns the area identified as “No 25 Property” (delineated in blue in the graph below).

266.  D4, who is aged 80 at trial and illiterate, asserts that the No 25 Property was originally occupied by his mother, Chan Ying, and his younger sister, Chen Po Yuk. He maintains that the two-storey squatter structure on the land was constructed by his mother. In 2001, his mother applied for him to migrate from Mainland China to Hong Kong to care for her. D4 arrived in Hong Kong in 2004 and has resided at the No 25 Property since approximately 23 March 2004. According to D4, his sister had left the said property earlier in 1997.

267.  The expert evidence confirms that structures S9 and S10 existed from 1980 to 2016, and S11 from 1981 to 2016. Also, they confirm that the open space on the southern side was mainly covered by vegetation. While these findings establish the physical longevity of the structures, they are neutral as to the identity of the occupants.

268.  In support of his early residence, D4 relies on a certificate of registered particulars issued by the Immigration Department dated 21 June 2004 (登記事項證明書), which records his address as the No 25 Property. I accept the submission of D4 that this is a significant piece of contemporaneous evidence, demonstrating that as early as 2004 D4 had established the subject property as his settled home. It also shows that D4 considered such property as his home.

269.  D4’s mother passed away on 17 February 2011. According to D4, shortly before his mother’s death, she verbally gifted the property to him, stating that he should reside there permanently and treat it as his own. D4 further testified that his mother claimed to have held exclusive possession of the property since its inception without the consent of, or payment to, any third party. D4 himself maintains that he has never paid rent or sought permission for his occupation, and there is no evidence to the contrary.

270.  Regarding physical enclosure, D4 testified that since March 2004, he has maintained wire mesh fencing around the property, with the exception of the southern end. This southern boundary is marked by a large rock which D4 and his mother treated as a “Stone God” (石神), a site of regular religious worship and offerings. It was physically not convenient to fence off that part of the land. The “Stone God” (石神) also acted as a natural barrier separating D4’s house from the outside land.

271.  I note that while P’s expert photographs from December 2015 clearly show this wire mesh fencing, they provide only a snapshot of the property’s condition at that later stage.

272.  D4 also described his use of the southern portion of the land for gardening, cultivating vegetables such as loofah, beans, and bitter gourd. This oral evidence is consistent with the JER, in which both experts agreed that the southern open space was predominantly covered by vegetation during the relevant periods.

273.  On the issue of utilities, a CLP confirmation letter dated 24 February 2016 shows that the electricity account for the No 25 Property was held in the name of D4’s sister, Chen Po Yuk, from October 1981 until April 2014. That again supports D4’s case that his family had been possessing and occupying the No 25 Property since 1981.

274.  During cross-examination, D4 asserts that he personally bore the cost of the electricity bill and the water bills during his residence. The water bill demand notes, however, were not produced as evidence. D4 explained that he could no longer retrieve such demand notes.

275.  Having observed and considered D4’s testimony, I find him to be a candid and reliable witness. His account was largely unchallenged on its core factual points, as P’s cross-examination was relatively limited, a consequence of P’s lack of a positive case regarding the specific history of the No 25 Property.

276.  Given the internal consistency of D4’s testimony, which is also supported by the documentary evidence produced, and the absence of any compelling evidence to the contrary, I accept D4’s evidence in its entirety.

277.  P raised several contentions in its closing submissions to defeat D4’s claim for adverse possession. I shall address each of them in turn.

The Pleading Point: “Joint Possession” vs “License”

278.  P first submitted that D4’s claim must fail because he did not explicitly plead "joint possession" with his mother and sister, and therefore cannot rely on their occupation to prove adverse possession.

279.  I reject P’s argument. First, I find that paragraph 13 of D4’s pleading has clearly pleaded a case of joint possession.

280.  Second, in the context of a single family residing in a squatter hut, the law recognizes that possession can be exercised jointly or on behalf of several persons: Law Po Lin v Hau Kwai Fat & Ors [2018] HKCFI 1345 §23. Taking into account the overall circumstances of D4’s occupation and his answers under cross-examination, I am satisfied that D4 and his mother were joint possessors from 2004 until her death in 2011, after which D4 continued the possession in his own right. Contrary to P’s submission, there is no need to examine or for D4 to prove how D4’s arrival at the said property dispossessed his own mother.

281.  Insofar as it is argued that D4 was just a licensee of his mother, in my view, this point is not open to P. It is a well-settled principle of pleading that if a party intends to rely on a license or a specific break in the chain of possession, it must be expressly pleaded: Cheung Kwong Yuen v Sun Hui Fang [2019] HKCA 225 at §15. P has failed to plead that D4 was a mere licensee of his mother.

282.  P also seeks to characterize D4’s provision of food for his mother as a form of “rent” or payment in exchange for his occupation of the premises. D4 resisted this characterization, explaining that they shared these meals together as a family. In my view, in the context of traditional Chinese family values and the domestic reality of squatter life, providing food and care for a parent is a manifestation of filial piety, not a contractual consideration for a license to occupy land. I find P’s attempt to frame these acts as “rent” to be legally and factually unsustainable. The fact that they were sharing meals cannot be elevated as evidence that D4’s occupation was subject to his mother’s consent.

Succession of Possession

283.  In the alternative, even if one were to view D4 and his mother as successive squatters rather than joint possessors, P’s challenge still fails. As established in Young Ivy Shui Heung v Yau Koon Sum & Ors [2019] HKCA 221, a squatter may aggregate their period of possession with that of a predecessor, provided there is no break in the chain of possession. There is no evidence of (and P has not pleaded any) such break between the mother’s death and D4’s continued occupation. Thus, the 12-year period is satisfied. I do not accept P’s submission that D4’s right to occupy No 25 Property only arose upon his mother’s death in February 2011.

Contemporaneous Documentary Evidence

284.  P criticizes the lack of utility bills in D4’s name. However, D4 has produced a Certificate of Registered Particulars from June 2004, which I consider to be significant and independent evidence for his residence. Furthermore, the CLP records showing his sister as the account holder since 1981 do not undermine D4’s case; rather, they corroborate his family’s long-standing occupation of the house. In a domestic squatter setting, it is common for utility accounts to remain in the name of a single family member while others bear the actual costs.

Adverse Inference

285.  I decline P’s invitation to draw an adverse inference from D4’s failure to call his other family members such as his wife, his son and his sister as witnesses. In my view, a party is not required to call every possible witness to prove a fact, provided the evidence actually adduced is sufficiently cogent. On this topic, I am also guided by the principles laid down by the Court of Appeal in Anz Commodity Trading Pty Ltd v Excellence Raise Overseas Limited & Ors [2025] HKCA 701 at §121 where the Court of Appeal emphasised that the drawing of adverse inference is a very fact-specific exercise. Tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances.

286.  For instance, where an event is witnessed by thirty individuals, the law does not mechanically require a party to call every single onlooker to establish what occurred, nor will an adverse inference be drawn from a failure to do so automatically. To hold otherwise would mistake quantity for cogency and place an absurd, disproportionate burden on litigants. In the present instance, D4’s own testimony and the documentary evidence already clearly establish the timeline of the relevant events, calling his wife or son merely to repeat the same narrative would be redundant and unnecessarily prolong the trial.

Exclusive Possession and Enclosure

287.  Finally, P challenged D4’s exclusive possession of the southern garden area due to the lack of a complete perimeter fence. I reject this submission. As noted by Recorder Whitehead SC in Winpo Development Ltd v Wong Kar Fu & Ors, unreported, HCA 3541/1993, 26 May 2017 §65, the law does not require full enclosure. The presence of a residential dwelling and the use of the contiguous land for subsistence gardening, consistent with the “Stone God” (石神) worship described by D4, demonstrate an intention to exclude others from the occupied area.

Conclusion on D4

288.  Regarding the element of animus possidendi, I am satisfied that D4 has manifested a clear and unequivocal intention to exclude the world at large, including the paper owner. This intention is not merely a subjective assertion but is evidenced by D4’s objective conduct since his arrival in 2004. By maintaining the residential structures as his sole and permanent residence, maintaining wire mesh fencing to delineate his holding, and actively cultivating the garden, D4 has conducted himself as the de facto owner of the No 25 Property. Of particular significance is D4’s religious devotion at the “Stone God” (石神) located at the southern boundary; such a spiritual act is a manifestation of an intention to treat the land as his own and to exclude others from his domestic and sacred space.

289.  Furthermore, D4’s evidence that he paid the utility charges and his long-term investment of labour in the land speak to a settled intention to possess in his own right, rather than as a temporary guest or licensee. I find that D4’s conduct throughout the 12-year period prior to the Writ was consistent only with an intention to possess the No 25 Property to the exclusion of others, thereby satisfying the test for adverse possession.

290.  I find that D4 has established factual possession and the requisite animus possidendi over the No 25 Property for a continuous period exceeding 12 years.

291.  D4’s counterclaim for adverse possession therefore succeeds.

J. THE CASE OF D5

D5’s Case on Adverse Possession

292.  D5 asserts adverse possession over the structure identified as ‘27, Chung Tsai’ and its immediate surroundings (depicted in colour yellow below) (the “D5 Disputed Area/No 27 Property”). D5’s case is that he, through himself or his family members, has been in adverse possession of the No 27 Property since in or about 1980.

293.  D5 was born in Mainland China in February 1953. In or about October 1978, D5 migrated to Hong Kong and his wife joined him one year later. At first, he stayed in Sau Mau Ping, Kowloon. Later, D5 learned about a place in Peng Chau from the then village representative. He therefore moved to Peng Chau and began to occupy No 27 Property from that time.

294.  At that time, the said area was still a piece of farmland and he caused a small shelter-house (棚屋) to be built and began to reside therein together with his wife. On or about 15 August 1983, his residence and usage of the No 27 Property was made known to the Government.

295.  D5’s narrative of long-term occupation is supported by a notice from the DLO dated 15 August 1983. This notice assigned the postal address ‘27, Chung Tsai’ to D5’s house. In order to facilitate postal services, D5 was asked to display such address in the door plate which should be put at a conspicuous place of his house. D5 did follow the said advice and did so.

296.  I find this document to be of high probative value, as it provides an independent, official record of D5’s presence on the land and the Government’s recognition of his structure for administrative purposes as early as 1983. This is further corroborated by the expert evidence which confirms the physical existence of the relevant structures since 1981.

297.  Regarding the physical character of his possession, D5 described the structural evolution of his home, specifically noting that he reinforced the building with concrete and added a cockloft following a severe typhoon in 1984. I agree with D5 that such acts of substantial repair and improvement are manifestations of animus possidendi, demonstrating a settled intention to treat the structure as a permanent family home.

298.  D5 and his family initially relied on kerosene lamps (火水燈) for nighttime illumination. Subsequently, with a neighbour’s consent, D5 arranged for an electrical wire to be connected to that neighbour’s supply, thereby “borrowing” electricity for his own household. This arrangement persisted until approximately April 1997, when D5 established a personal account and secured an independent electricity supply for his premises. The establishment of the account in 1997 is confirmed by a CLP letter dated 30 December 2016

299.  D5 has four sons, born between 1980 and 1984. His four sons had been living with D5 and they were all brought up there. D5 has produced his sons’ home entry permits dated May 1989 which set out the address of the No 27 Property as their address. D5 also received notices from the then Department of Health, Peng Chau Family Health Service dated 26 October 1984 and 12 January 1990 informing D5 that he had to bring one of his sons to receive inoculations. In the said notices, the address of “27, Chung Tsai, Peng Chau Lot No 204, Peng Chau, New Territories, Hong Kong” was expressly set out.

300.  In or about 2001, D5 and his wife were allocated a public housing flat in Fu Cheong Estate (富昌邨). By that time, D5’s sons had already grown up and they had their girlfriends. The flat there was comparatively small to accommodate all of them. Therefore, D5, his wife and his younger sons still lived in the No 27 Property, while D5’s two elder sons lived in the flat in Fu Cheong Estate.

301.  It is D5’s case that he was demanded to pay and did pay Government rates and rents in relation to the No 27 Property. But he was unable to retrieve or produce any of such record except and save those issued to him more recently in 2014 and 2015.

302.  In or about April 2015, a Filipino domestic helper was seeking rental accommodation in the area. Through a mutual friend’s referral, D5 leased the subject squatter House to a Filipino female in or about May 2015 at a monthly rent of approximately HK$4,500. This oral tenancy agreement lasted for roughly 9 to 10 months, during which D5 or his wife personally collected the rent from the tenant at the premises. Throughout this tenancy, D5 and his wife resided nearby at his aunt's property, located at No 50 Chung Tsai, Peng Chau Lot. Following the expiration of the tenancy, D5 and his wife resumed occupancy of No 27 Property.

303.  The act of leasing one’s property to a third party is, in fact, one of the strongest possible pieces of evidence of possession over land. D5’s ability to grant a right of occupation to a tenant for rent is a clear exercise of possessory title against the world.

P’s challenge to D5’s Case

304.  P does not have any positive evidence contradicting D5’s case and narrative. Instead, P submits that the documentary evidence produced by D5 is insufficient to discharge the burden of proof, asserting that an evidential gap exists between 1990 and 2000.

305.  I reject this submission. In my view, the evidence adduced by D5 is overwhelming. It is unrealistic to expect an adverse possessor of a squatter structure to produce an unblemished, year-by-year record tracking the continuous usage of the land. P’s arguments seek to cherry-pick individual pieces of documentary evidence in isolation to argue their insufficiency. I decline to adopt such a compartmentalized approach. The Court must evaluate the weight and effect of the evidence as a whole, which collectively paints a clear picture of D5 and his family’s exclusive possession of the area since the early 1980s.

306.  Further, P invites the Court to draw an adverse inference against D5 for his failure to call his wife or sons to corroborate his testimony regarding the family’s long-term occupation. I decline to do so. As I have explained above, a party is not required to call every possible witness to prove a fact. In this case, D5’s oral testimony was not merely a bare assertion. It was supported and evidenced by independent and contemporaneous documentary evidence. Where a party’s case is supported by such evidence, the failure to call additional family members as witnesses does not give rise to the kind of material gap that would justify the drawing of any adverse inference.

307.  Critically evaluating the evidence as a whole, I find D5 to be a credible witness whose oral testimony is well-supported by objective documentary evidence from various sources including the DLO and CLP. D5 and his family have demonstrated a continuous residential occupation of No 27 Property for a period exceeding the 20-year statutory requirement since about 1980.

308.  In conclusion,

308.1 I am satisfied that D5 has demonstrated a clear, continuous, and unequivocal intention to dispossess the paper owner and exclude the world at large. D5’s structural reinforcement of the property with concrete following the 1984 typhoon, the long-term upbringing of his four sons on the premises, and his subsequent decision to let the property to a tenant in 2015 all manifest a settled intention to treat No 27 Property as his own. Accordingly, D5’s continuous, open, and adverse possession of the subject premises has effectively extinguished P's title, satisfying the statutory requirements for adverse possession.

308.2 I find that D5 has established both factual possession and the requisite animus possidendi.

308.3 Accordingly, D5’s counterclaim for adverse possession succeeds.

P’s and D5’s claims for damages against each other

309.  Following the issuance of P’s Originating Summons in May 2016, D5 did not initially take steps to defend the proceedings. D5 states that he did not appreciate the legal consequences at the time. Furthermore, he asserts that throughout May 2016 and the subsequent months, P’s representative engaged in settlement discussions with him.

310.  D5 contends that during these discussions, he consistently repeated to P that he had held exclusive possession of the area since the 1980s.

311.  P subsequently obtained a writ of possession on 13 January 2017 and issued a notice to quit dated 10 February 2017, leading to execution by a bailiff on 14 March 2017. While D5 and his wife protested the recovery process based on their asserted rights, they complied with the execution.

312.  D5 subsequently obtained legal advice. D5 took out a summons on 17 March 2017 to join this action and to set aside the default judgment. Prior to the resolution of this application, P’s contractor carried out demolition works on the squatter house at the alleged cost of HK$550,000, after which D5 could no longer reside at the said property.

313.  Master K C Chan issued an order on 19 October 2017 setting aside the prior possession order. Leave was also granted to D5 to be joined as a party to the proceedings.

314.  In these proceedings, P thus claims the costs of the rectification and reinstatement works in the sum of HK$550,000 against D5 as loss and damage.

315.  On the other hand, D5 claims loss and damage regarding the demolition of the structure on the basis that he spent significant time and energy building the structure. In D5’s Closing Submissions, he indicated that he is prepared to claim nominal damages only in respect of this loss.

316.  I take the view that success on proving possessory title does not itself decide whether P’s earlier demolition was necessarily wrongful. I have found that D5 established adverse possession of the No. 27 Property. That does not, however, without more, determine whether P’s earlier demolition works constituted an actionable wrong. At the material time, P had obtained and acted upon a writ of possession. D5’s ultimate success at trial, do not by itself establish that P acted unlawfully when it caused the demolition works to be carried out. The concession to claim only nominal damages does not dispense with the need to establish an actionable infringement. D5 still bears the burden of making good his claim for damages both in liability and in quantum. In my view, D5 has not discharged that burden. D5’s claim for nominal damages is therefore dismissed.

317.  Given my conclusion above on D5’s successful counterclaim, as fairly accepted by P in its Closing Submissions, it follows that there is no basis for P to seek damages from D5. P’s claim for damages against D5 is therefore dismissed.

K. P’S CLAIM FOR A MANDATORY INJUNCTION/ DEMOLITION ORDER AGAINST DS

The Parties’ Contentions

318.  P seeks a mandatory injunction against all Ds, compelling the demolition and removal of the unauthorized structures erected on Lot 204. P claims that because of Ds’ refusal to remove the unauthorized structures, they have exposed the entire lot to the risk of Government re-entry due to breaches of the Government lease.

319.  P’s primary contention is that if it is successful in recovering vacant possession of the relevant area from Ds, it is as of right entitled to such injunctive relief. Alternatively, even if P is unsuccessful in the sense that Ds’ adverse possession claims are successful, P would still pursue the relief of mandatory injunction based on the Court’s equitable jurisdiction, so as to prevent Government re-entry.

320.  P frames this as a "rotten apple" scenario, where the continued presence of even a single non-compliant structure threatens the integrity of the entire Lot and P’s title thereto.

321.  On the issue of jurisdiction, P submits that the Court has the power to grant a free-standing mandatory injunction even in cases where P’s claim for possession might be unsuccessful. Reliance has been placed on the Court of Final Appeal’s recent decision in Sir Elly Kadoorie & Sons Ltd v Bradley (2026) 29 HKCFAR 1.

322.  P argues that the potential injury to Ds, namely, the loss of their unauthorized dwellings, is outweighed by the risk to P, namely that it will lose not only the portions affected, but the rest of Lot 204. In addition, P will be exposed to further claims for damages. P maintains that damages would not be an adequate remedy because the Government’s power of re-entry cannot be quantified or compensated by the squatters.

323.  P further submits that Ds’ conduct has been oppressive in their persistent refusal to rectify the breaches despite repeated warnings and the commencement of these proceedings.

324.  P argues that any hardship to Ds is not real or that any such hardship is disproportionate to P’s position. P emphasizes that the public interest in upholding the integrity of the Government Lease system and preventing unauthorized land use should prevail over the personal circumstances of the individual Ds.

325.  Ds oppose the grant of a mandatory injunction on the grounds of hardship and lack of proportionality. They argue that if P had failed in their possession claims against Ds, P would have lost the standing to seek such an injunction. Further, they submit that any hardship to P is self-induced because it was P who made complaints to the Government causing it to act. They state that the structures in question are not merely unauthorized buildings but are their homes where they have resided for decades. They submit that such an order would be a disproportionate response to a potential breach of a Government Lease, especially where the risk of re-entry has not been proven to be imminent or inevitable. They submit that the injury to P (the theoretical risk of re-entry) is small compared to the injury to Ds.

326.  They contend that the risk of Government re-entry is exaggerated and speculative. They point out that the Government is not even a party to these proceedings.

327.  Ds argue that P’s claim for a free-standing injunction is legally flawed. They contend that if the Court finds that Ds have established possessory title, then P no longer has the standing to enforce the Government lease against them. In such circumstances, P’s right to seek an injunction is extinguished along with its title to the land.

My View

328.  I shall address P’s contention that the Court possesses the jurisdiction to grant and should grant a free-standing mandatory injunction (i.e. an injunction where the plaintiff had no underlying cause of action against the opposite party) for the demolition of structures, even in the absence of a successful claim for possession. While it is true that the Court’s equitable jurisdiction to grant injunctive relief is broad and flexible, it is not exercised in a vacuum.

329.  A mandatory injunction is a remedy intended to protect or enforce a recognised legal or equitable right. It exists to provide an effective remedy where legal remedies are inadequate to protect or enforce rights or interests, and may be invoked when it is "just and convenient" to do so. As recognised by the Court of Final Appeal in Sir Elly Kadoorie & Sons Ltd v Bradley (2026) 29 HKCFAR 1 at §25:-

“25. This does not mean that an injunction may be granted merely in accordance with a judge’s personal sense of justice or subjective inclination. Rather, the power to grant an injunction must be exercised consistently with established equitable principles and subject to any limitations imposed by judicial precedent, legislation and the rules of court.”

330.  In evaluating P’s claim for a mandatory injunction, the Court must decide whether P retains a legally protected interest that justifies the particular order sought. It should balance P’s interest in protecting its title against the hardship that demolition would impose on Ds.

331.  Where P’s title to the underlying land has been extinguished by adverse possession, the foundation of P’s right to enforce lease covenants or seek the removal of structures against Ds is uprooted. In such circumstances, there is no subsisting right upon which a free-standing injunction can be anchored. To hold otherwise would allow a paper owner whose title has been terminated to continue to exert control over the land through the back door of injunctive relief, a result that would be inconsistent with the finality intended by the Limitation Ordinance.

332.  Therefore, for the areas where P’s title has been extinguished by operation of the Limitation Ordinance, P no longer possesses the standing to enforce lease covenants against these Ds on that land. Once P’s title is lost, the right to dictate the use of that land, or the removal of structures thereon, is lost with it.

333.  Where relief is sought because of a future risk (i.e. Government re-entry), P’s claim is substantially quia timet. While the risk of Government re-entry is a serious concern for any leaseholder, I do not agree with P that this risk is imminent. P has referred this Court to a number of notifications and warning letters issued by the Government regarding breaches of the Government Lease and the need to purge such breach. P submits that there is no evidence to suggest that the Government will simply leave the matter as it stands or will not proceed further. The reverse is also true. Bearing in mind that the Government is not a party to these proceedings, it is currently uncertain what the Government will do in light of the findings and conclusions made in this Judgment. For this reason, the rotten apple argument remains a possibility rather than a proven necessity for the drastic remedy of demolition.

334.  Viewed this way, the injury to P is a potential financial and legal risk that has not yet materialized. On the other hand, Ds have demonstrated that they and their families have been using their parts of the land as their homes for many years, granting a demolition order now would no doubt cause substantial prejudice to Ds. The long history of occupation and the absence of earlier enforcement steps by P’s predecessor are relevant to proportionality.

335.  In these circumstances, I am not satisfied that this Court should grant such a mandatory injunction.

336.  In coming to this conclusion, I have not lost sight of the fact that when P purchased Lot 204, the relevant agreement expressly provided for the existence of squatter structures on the said Lot and the potential adverse possession claims. Thus, the existence of squatter structures on the Lot was a matter fully known to P before it decided to purchase Lot 204.

337.  In conclusion, I find that a just and fair resolution is to dismiss P’s claim for a mandatory injunction.

L. DISPOSITION, ORDERS AND COSTS

338.  Based on the aforesaid, I hereby grant the following orders:-

In respect of D2

338.1 A declaration that (1) P’s title to the area identified as the D2 Disputed Area has been extinguished as against D2 by virtue of section 17 of the Limitation Ordinance (Cap 347) and (2) D2 has acquired possessory title of the same by way of adverse possession.

338.2 A declaration that D2 has acquired the right of way or easement in the form of an access over the reversed “C” shaped footpath, marked in green on Appendix 5 (Plan of the Occupation Area by D2) of the Survey Report prepared by Mr Leung dated 25 April 2018.

338.3 P’s claims against D2 are dismissed.

In respect of D3

338.4 A declaration that (1) P’s title to the area identified as the House 11 cluster (comprising structures House Nos. 11/11A and the UTVW areas identified as S5, S6, S7, S8, S14, and S15 on the Expert Plan) has been extinguished as against D3 by virtue of section 17 of the Limitation Ordinance (Cap 347) and (2) D3 has acquired possessory title of the same by way of adverse possession.

338.5 D3’s counterclaim for easement over FP3 and FP4 is dismissed.

338.6 D3 shall deliver up vacant possession of the remaining portions of the D3 Disputed Area (i.e. the D3 Disputed Area apart from S5, S6, S7, S8, S14, and S15 on the Expert Plan) (“Remaining Area”) to P within 72 days of this Judgment. As to the length of time required to deliver vacant possession, I grant liberty to apply to D3 if more time is needed. Such application should be taken out by way of Summons supported by affidavit evidence.

338.7 In the event that vacant possession is not delivered within the stipulated duration or within any extension of such duration as appropriate, I grant liberty to apply for the Plaintiff to apply for an order that the Plaintiff be at liberty to proceed with the demolition or removal works to recover vacant possession of the Remaining Area with all such costs incurred for those works be paid by D3 to P.

In respect of D4

338.8 A declaration that (1) P’s title to the area identified as the D4 Disputed Area has been extinguished as against D4 by virtue of section 17 of the Limitation Ordinance (Cap 347) and (2) D4 has acquired possessory title of the same by way of adverse possession.

338.9 P’s claims against D4 are dismissed.

In respect of D5

338.10 A declaration that (1) P’s title to the area identified as the D5 Disputed Area has been extinguished as against D5 by virtue of section 17 of the Limitation Ordinance (Cap 347) and (2) D5 has acquired possessory title of the same by way of adverse possession.

338.11 P’s claims against D5 are dismissed.

339.  As for costs, given that D2, D4 and D5 are successful in these proceedings, costs should follow the event. There shall be a costs order nisi that P shall pay costs of this action and their respective counterclaims to D2, D4 and D5, to be taxed if not agreed. Whilst I benefit from the assistance from two counsel acting for P and D2 (for which I am grateful), I do not consider that this case warrants a certificate for two counsel to be given. The costs order nisi is therefore made on the basis of certificate of one counsel only.

340.  As for the costs between P and D3, I take the preliminary view that they are both partially successful in these proceedings, and thus there should be a costs order nisi that there be no order as to costs between P and D3.

341.  As for the parties who are funded by the Director of Legal Aid, there should be the usual costs order that their own costs be taxed in accordance with the Legal Aid Regulations.

342.  I understand that there might be arguments as to whether the costs incurred should be awarded in the High Court scale or in the District Court scale. If there is any such application, it should be made within 14 days of this Judgment as part of the application to vary the costs order nisi.

343.  Any party seeking to vary the Order Nisi as to costs shall do so within 14 days of this Judgment, failing which the Order Nisi shall become absolute.

344.  Finally, I thank all parties and Counsel for their assistance in this matter.

Annex – The Expert Plan