HCA 2170/2015
[2022] HKCFI 606
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2170 OF 2015
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BETWEEN
YEUNG WAI TONG (楊偉堂)
Plaintiff
and
SRIKORNVIT PRANEE (丘玉三)
1st Defendant
WONG HON SUN (黃瀚笙)
2nd Defendant
HO YUET MING (何悅明)
3rd Defendant
TERRY TING CHENG YING (應鼎成)
4th Defendant
LOTLINK DEVELOPMENT LIMITED
5th Defendant
LAM YAU (林有)
6th Defendant
LAM SUI KAU (林水球)
7th Defendant
____________
Before: Hon Au-Yeung J in Court
Dates of Hearing: 20-23 and 27 April 2021
Date of Judgment: 28 February 2022
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J U D G M E N T
______________
1. The Plaintiff claims to be in adverse possession of 8 Lots of land in Fanling. Part of the claim was settled or withdrawn. This trial only concerns 5 Disputed Lots which have since 2014 to 2015 been registered in the names of D1-D3 (collectively, “Defendants ”). They are Lot Nos.774RP (owned by D1), 764 & 765 (owned by D2), 768 & 771 (owned by D3),all in DD 78, North New Territories.
2. The Plaintiff claims to have been in adverse possession of Lot 771 and part of Lot 774RP since March 1985; and portions of Lot 764, Lot 765 and Lot 768 since March 1990 after expiry of the tenancy agreement. He seeks a declaration that the titles of the owners have been distinguished.
3. The Defendants dispute the claim and put the Plaintiff to strict proof.
4. Specifically, with regard to D1, only a portion in Lot 774RP is in dispute, ie the open area and the portion over which the Plaintiff built a pool and paved the yard. The Plaintiff fenced off the open area in about mid-2015 without D1’s consent.
5. D2 say that Lots 764 and 765 were waste or abandoned land but the Plaintiff claims to have used those Lots for planting mango trees and rearing pigs.
6. D3 accepts that Lot 771 has been used for the Plaintiff’s residence. He disputes the use of Lot 768 for pig rearing and claims that Lot 768 has been abandoned by the Plaintiff after surrender of the livestock licence. D3 also claims that at a meeting held in October 2014 (“the Meeting ”), the Plaintiff expressly denied his intention to possess the adversely possessed lots (“the Representation ”).
7. The 8 Lots of land, of about 7,253 square metres, which the Plaintiff claims to be in adverse possession of are:
Lot No.
Rented from Tsui But Yee
Registered owner
Date of becoming registered owner
764
Yes
D2
30.09.2014
765
Yes
D2
30.09.2014
768
Yes
D3
30.09.2014
771
D3
30.09.2014
774RP
Yes
D1
26.05.2015 (purchased from D3)
773
776
953
[I shall bold the Lot nos. of the 5 Disputed Lots throughout this judgment for easy reference.]
8. Tsui But Yee (“Tsui ”) was the landlord of 4 of the Disputed Lots before the Defendants became owners.
9. By a written agreement dated 18 March 1985, Tsui leased Lot Nos. 764 , 765 and 768 to the Plaintiff and his elder brother at $3,000 for 5 years from 18 March 1985 to 18 March 1990 (“the Tenancy Agreement ”). Tsui died on 31 December 1985.
10. The elder brother of the Plaintiff moved away from the rented Lots towards the end of 1988, leaving behind the Plaintiff as the only tenant in possession.
11. The Tenancy Agreement came to an end on 18 March 1990 by effluxion of time. The Plaintiff claims to have continued to use and occupy Lots 764 , 765 and 768 since.
12. It appears that the Plaintiff went into possession of Lot 771 at about the same time he leased the 3 Lots from Tsui. The Plaintiff married Madam Yeung Hiu Ping on 8 April 1986. They gave birth to 4 children between the years 1987 and 1995. The family has used Lot 771 as residence. There used to be a wooden house (of about 1,000 square feet) since about March 1985. The house was reconstructed with bricks and concrete in 1999. A separate brick and concrete house (of about 300 square feet) was erected on Lot 771 . The Plaintiff’s family is still residing there as of the date of the trial. Lot 771 has never been the subject of any lease.
13. The Plaintiff had used Lots 768 and 765 for rearing livestock. At about the same time, he allegedly started to occupy, use and fence off:
(1) Lot 771 , 774RP , 773, 776 and 953 without the consent of the registered owners and/or D6 and D7 (action against whom has been discontinued);
(2) Adjoining Government lands (“GL s”);
(3) Lot 769 and 753 in DD 78 pursuant to 2 leases signed with the respective registered owners, Ho Fai and Ho Ying Lam .
14. On 28 February 2002, the Plaintiff was granted a Licence by the then Agriculture, Fisheries and Conversation Department (“AFCD ”), which permitted him to use Lots 768 , 769, 771 , 773, 776 and 953 for rearing livestock. Lot 765 was not covered by the Licence.
15. The Plaintiff surrendered the Licence to the government in March 2007 and received ex gratia payment of about $3.7 million.
16. Despite surrender of the Licence, the Plaintiff claims to have remained in occupation of the 8 Lots as residence, keeping all concrete structures, and for cultivation.
17. In respect of Lot 764 , the Plaintiff planted 2 mango trees on them.
18. At the north western corner of Lot 774RP (adjoining Lot 771 ), the Plaintiff built a pool and paved a yard (“Pool/Yard Area ”) in 2003.
19. The Plaintiff claims to have been in adverse possession of the Lots 764 , 765 and 768 since 19 March 1990 (over 20 years) when the Tenancy Agreement expired; and in adverse possession of, amongst others, Lots 771 , and 774RP since about 18 March 1985 (over 20 years).
20. D1’s case is that she has been in possession of, amongst others, Lot 774 (which includes 774RP ) since the 1970s till now. At one time she had rented from Tsui but Tsui had not surfaced for a long time. D3 purchased Lot 774RP in 2014 but assigned it to D1 on 26 May 2015.
21. The disputed portion of Lot 774RP comprised:
(1) The Open Area which D1 claims to have been solely used by her, but the Plaintiff used it for storing utensils and appliances with her consent. The Plaintiff fenced off the Open Area in about June 2015 (some months after the Meeting).
(2) The Pool/Yard Area , which she puts the Plaintiff to strict proof of his claim.
22. D2’s case is that an inspection of Lots 764 and 765 in about August and September 2014 showed them to be waste/abandoned land. They were not fenced and there was no structure built on them.
23. D3 accepts that Lot 771 has been used as the Plaintiff’s residence and he had been granted the Licence. D3 asserts that the Plaintiff has abandoned Lot 768 after surrender of the Licence.
24. Shortly after the Defendants purchased their respective Lots, the Meeting was held. It was attended by the Plaintiff, D3 and 2 defence witnesses at D3’s office. Allegedly, the Plaintiff made the Representation. D3 then made a Sale Offer, Lease Offer and Move-out Offer to the Plaintiff. The Plaintiff opted for the Lease Offer. D3 proposed to lease “the relevant Lots” to the Plaintiff at the same rent that he paid to Tsui, to which the Plaintiff allegedly agreed. D3 then proposed to meet the Plaintiff again after the lease was ready for execution.
25. In about March to May 2015, D3 repeatedly requested the Plaintiff to meet and sign the lease documents but the Plaintiff refused.
26. The Plaintiff commenced this action on 17 September 2015 . At the trial, the Defendants no longer rely on promissory estoppel.
27. The core issues turn on the fact and extent of the Plaintiff’s possession of the 5 Disputed Lots, whether the Plaintiff had fenced them off as he claimed, and whether he had made the Representation.
28. In the course of his evidence-in-chief, the Plaintiff has marked up on a survey sheet the boundary of the fences over the area he occupied/occupies (Exhibit P1 ).
29. Based on the agreed list of issues and Exhibit P1, I have categorized the issues as follows:
(1) Whether Exhibit P1 is reliable as showing the fenced area?
(2) Whether the Plaintiff has been in exclusive possession of Lots 768 and 771 (1st issue in the agreed list)?
(3) Whether the Plaintiff has been in exclusive possession of the disputed portions of Lot 774RP (2nd to 4th issues in the agreed list)?
(4) Whether the Plaintiff has been in exclusive possession of Lot 764 (5th issue in the agreed list)?
(5) Whether the Plaintiff has been in exclusive possession of Lot 765 (5th issue in the agreed list)?
(6) Whether the Plaintiff had made the Representation and agreed to the Lease Offer (6th -8th issue in the agreed list)?
E(1). Legal principles on adverse possession
30. A person claiming adverse possession must be shown to have both possession and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai & anor (No 2) (1997-1998) 1 HKCFAR 55, 68E.
31. Factual possession signifies an appropriate degree of physical control. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. But broadly, what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so. See Powell v McFarlane (1979) 38 P & CR 452 at 470-471, Slade J.
32. The occupation should be exclusive, continuous, open, visible and notorious. It must not be equivocal, occasional, or for a special or temporary purpose: Tsang Foo Keung & anor v Chu Jim Mi Jimmy & ors ,HCA 7140/1995, unrep, 30th June 2015,
33. Examples of acts showing the doer to appropriate the land concerned includes the ploughing up and cultivation of agricultural land and enclosure of land by a newly constructed fence. Enclosure is the strongest possible evidence of adverse possession, though it is not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too is the locking or blocking of the only means of access. Powell v McFarlane, pp477-478.
34. Erecting a building or paving land is usually a clear act of possession, regardless of the use made of the building or land after work is completed, or that the building was not much used: Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Limited , [2020] HKCFI 1501 , at §30, M Ng J.
35. The intention to possess requisite for adverse possession involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow: Wong Tak Yue, at §68I-J.
36. Where the acts of physical occupation are unequivocal, ie the squatter “occupied the land and made full use of it in the way in which an owner would and in such a way that the owner is excluded”, a squatter need not adduce additional evidence to establish intention to possess, Gotland Enterprises Limited v Kwok Chi Yau & ors, CACV 260/2014, unreported, 19 January 2016, at §§31 & 56, CA.
37. Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinise the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight. See Wong Tak Yue ,§69A-C, CJ Li.
E(2). Legal principles on limitation period in adverse possession claims
38. The limitation period shall be 20 years if a cause of action accrued before 1 July 1991; and 12 years if accrued after that date. See sections 7(2), 17, 38A(1) of the Limitation Ordinance, Cap 347; and the Limitation (Amendment) Ordinance 1991; Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556, §30, CA, G Lam J (as he then was). The date of accrual of the cause of action is thus critical, at §§31 & 35.
39. Where the objective fact as found by the Court is that adverse possession began on or after 1 July 1991, the squatter may be able to rely on the shorter limitation period even though he had advanced a case of earlier adverse possession. Whether or not there may be valid pleading or procedural objections against that course will of course depend on the facts of each case but it is always a matter of degree, and it can be unnecessarily demanding to require the party to plead in the prayer every possible permutation of the ultimate findings. See Tang Moon Lam, §§39, 43 & 45.
E(3). Burden of Proof
40. The burden rests on the Plaintiff to prove adverse possession. The burden of proving the Representation rests on D3.
41. When assessing the credibility of a witnesses, the Court takes into account the inherent probabilities in his evidence, the contemporaneous documents and any evidence given by an independent witness. The fact that a witness has lied or exaggerated on one issue may have impact on his credibility on other issues.
42. In this case, the Plaintiff only had himself as a witness and the Defendants had 5.
43. The Plaintiff was clearly a smart witness who fully understood aerial photos and had been well advised as to what would constitute adverse possession. His answers were careful. He made clear distinction between the need to pay rent if there was a lease and adverse possession (霸地). He avoided committing to an answer as to whether or not he would renew the lease with Tsui if Tsui had resurfaced.
44. The Plaintiff produced photos principally taken in October 2014. He could not tell why he remembered the date of photo taking to be October 2014. But a little later in cross-examination, he admitted that he knew that D3 would seek to recover Lots 764 , 765 and 768 from him. The Plaintiff consulted solicitors before taking the photos. Those photos, taken with litigation in mind, did little in establishing his case of possession before 2014.
45. As I shall demonstrate under various issues below, the Plaintiff was not a truthful or reliable witness.
46. D1 was not a native speaker of punti. She was verbose and could be emotional at times in the witness box. She should not be blamed for not being able to read the aerial photos as they were confusing to her. Although she may be an honest person, her evidence was confusing and hence unreliable. This is particularly with regard to the existence or non-existence of fences around the Open Area.
47. D2 and D3’s evidence as regards occupation of Lots 764 and 765 is unreliable as being based on bare visual inspection.
48. D3 was an imprecise witness and not entirely reliable. His defence witnesses, Wong Cheung Hon (“Hon ”) and Wong Lok Chi (“Chi ”) were independent witnesses who have no interest in the 5 Disputed Lots. Hon did not appear to have independent memory. Chi was more credible.
49. Mr Eric Tang (the single joint surveyor) has given great assistance in explaining the land use of the 5 Disputed Lots and its changes over the years. He has produced useful survey sheets, aerial photos and photos of his recent site visit, which complemented one another. Given the unreliability of the parties and the defence witnesses, I place full weight on Mr Tang’s report (“SJER ”) and oral evidence.
50. I have borne in mind Mr Tang’s guiding principles:
(1) The survey sheets are correct to scale and contain annotations that facilitate interpretation. They are for use by laymen, not professionals, but they aid and supplement the aerial photos.
(2) The survey sheets may show features under trees which may not be revealed from the aerial photos. However, they are not as updated or informative as the aerial photos. The survey sheets may contain errors or omissions due to accessibility problem, cartographic generalization requirement and human errors. Whenever there are inconsistencies between the aerial photos and the survey sheets, the former should take precedence (§5, SJER).
(3) Only features of 7 inches in width or above can be seen from the aerial photos. Small objects or vertical features such as a fence may not be discernible unless under favourable conditions (§4, SJER).
(4) The fences discernible from the aerial photos can be iron wire mesh fences or steel frame hoarding. (Note: in this judgment, I shall use iron mesh and fences interchangeably.)
(5) It is difficult to distinguish between old and new fences. The humidity and fence material can affect the rusting. “Old” or “new” only refers to the appearance of the fences.
(6) There is a chance that the fences discernible from the aerial photos have collapsed or broken.
(7) There is a chance that Mr Tang may have mistaken something for a fence.
(8) Where trees appear between segments of fences in the aerial photo, it is possible that (i) the trees between the fences serve as natural barriers; (ii) the fences go under the trees; or (iii) there are no fences under the trees.
51. In the course of the evidence, the parties and Mr Tang have made markings on various survey sheets and aerial photos which have been produced as Exhibits. I am grateful to Mr Cheung (together with Ms Leung), counsel for the Defendants, for listing them out with short descriptions in their closing submission, which I adopt as an exhibit list.
52. A broad picture discernible from the aerial photos is that: Lots 768 and 771 had been fully built up even in 1982 or 1986. Substantial development of land could be seen in the following years:
(1) 1990 : A new structure was first observed on Lot 771 (D9/§13.1; D78).
(2) 1995 : New structures were first observed on Lot 768 and extended northwards to Lot 765 (D10, §15.2; D82). Another major development was the erection of a Gate at the Paved Vehicular Access.
(3) 1998 : A trapezium shaped fence first appeared, fencing off about half of 765 and 2/3 of Lot 764 .
(4) 2003 : New structures, including a pool, were first observed on Lot 774RP (D15, §32.3-32.4; D90), ie the Pool/Yard Area.
ST ISSUE – WHETHER EXHIBIT P1 IS RELIABALE AS SHOWING THE FENCED AREA
53. The Plaintiff claimed that the fences were in existence when he entered into possession of the 8 Lots and the GLs in 1985. He improved those fences. In 2003, he erected a red brick wall in between Lots 773 and 776 in place of the rusted iron mesh for 4 purposes:
(1) Separating the 8 Lots and GLs from the neighbouring land;
(2) Keeping out illegal immigrants and other trespassers;
(3) Preventing the reared pigs, chickens and dogs from leaving the 8 Lots and GLs; and
(4) Providing security to the Plaintiff’s family.
54. Those 4 purposes were probable, having regard to his residence, business and locality of Lots 768 and 771 . However, the Plaintiff has not shown photos or videos of where the fences were before October 2014 and what he had done to repair which part of the fences.
55. Exhibit P1 was his recent creation in the witness box. It shows:
(1) The original fence when he first moved into the Rented Lots in 1985 (“Green Fence ”); he left an area without fence, which adjoined the north western face of D1’s Iron Sheet House ;
(2) The Green Fence was extended to the north in 1998 (“Orange Fence ”);
(3) The fence was further extended to the north in 1999 (“Brown Fence ”).
(4) The Plaintiff erected the Blue Fence in 2015, in view of the litigation. He immediately corrected himself to say that the year was 2003.
(5) In 2003, before April, a small stretch of iron fence (“Pink Fence ”) was built, which marked off part of Lot 774RP . The Pink Fence used to be an iron mesh in 1985.
56. The Plaintiff’s evidence did not identify the fences with reference to the aerial photos or survey sheets. As Exhibit P1 is self-serving, its reliability must be tested against objective survey sheets, aerial photos and the SJER. In so doing, my observations are as follows.
57. Firstly , when he first rented land from Tsui, the Plaintiff had no idea as to which Lot was located where and the boundary of each Lot. He was taking over a chicken farm from Yeung and Yeung introduced Tsui to the Plaintiff. To the Plaintiff, the area and all structures built within “the fence” were rented from Tsui. He did not know whether Lots 764 and 765 were within the fenced area until he was told the location of Lots 764 and 765 in 1990 by the Lands Department.
58. The Plaintiff admitted that he did not have the survey plans and aerial photos when he first entered into possession in 1985. However, as pointed out by Mr Cheung, the Fences on Exhibit P1 completely matched the Enclosed Area marked by Mr Tang on the aerial photos, plans and survey sheets appended to the SJER (D7, §6). Even if the Plaintiff maintained and/or erected the fences himself, he, as a layman and after the long lapse of time, could hardly convert the three-dimensional locations of the fences in his memory to the two-dimensional plan so perfectly.
59. Secondly , Mr Tang has shown that the Green Fence was wrong when compared to the aerial photos and survey plans, in particular:
(1) In the north : a small segment of fence was shown on the northern boundary of Lot 768 in the 1982 aerial photo (D76). Similarly, a fence was shown on the northern boundary of Lot 768 in the 1984 survey sheet (D70). At that time, the fence did not touch or concern Lots 764 and Lot 765 or the GLs to the west of Lot 768 . To me, it made sense for that segment of fence to appear there, as it probably was to protect the then built up area and the cleared ground. In comparison, the northern end of the Green Fence was wrongly drawn beyond Lot 768 (by about 2 metres, according to Mr Tang), cutting across the middle of Lot 764 , the southern part of Lot 753, the southern part of Lot 765 and the GLs.
(2) To the west : the fence on survey sheet (D70) matched the fence on the 1982 aerial photo (D76). Further to the west of Lot 768 , there was no fence according to D70 because there was a slope. However, the western part of the Green Fence extended far beyond D70 and D76.
(3) To the east : the Green Fence did not match the survey sheet (D70) and 1982 aerial photo (D76).
(4) That survey plan on D70 shows that the then existing fence did not enter Lot 774RP .
60. When first drawing the Green Fence, the Plaintiff left an opening just in front of the rear wall of the Iron Sheet House. It was plain that he could not rely on the Green Fence to assert exclusive possession since 1985 or 1990 until he allegedly erected the Blue Fence in 2003.
61. Thirdly , the Blue Fence was built at the opening. Given that the action was commenced in September 2015, when the Blue Fence was built in 2003 (if ever) was critical, but the Plaintiff never mentioned the date or month. (He only mentioned before April 2003 in respect of the Pink Fence.)
62. Fourthly , Mr Tang has shown that the northern part of the Orange and Brown Fences to be wrong when compared to the aerial photos:
(1) He testified that, if the 1999 aerial photo (D86) was correct, the Brown Fence in 1999 looked more like the Orange Fence; and the Brown Fence was actually the same as the current. The incorrectness was reinforced by the 2001 aerial photo (D88) where no fence could be seen to be enclosing Lots 753 and 765 similar to the Orange or Brown Fence.
(2) In the 2001 aerial photo (D88), no fence could be seen at Lot 764 or Lot 765 .
(3) In the 2003 aerial photo (D90), a fence could be seen at the edge of the Cultivation Fields (which from part of Lots 753 and 763 alleged rented by the Plaintiff from Ho Ying Lam) but not as far up as the Brown Fence. This fence did not extend to Lot 764 of Lot 765 .
(4) The northern part of the Brown Fence first appeared in the current location only since in 2004 (aerial photo D91). However, the western part of the Brown Fence did not touch Lot 765 and the eastern part did not touch Lot 764 . One possibility (I can put no higher) was that the fence was underneath the trees. Mr Tang also says that some people use trees as a natural barrier.
(5) The 2006 aerial photo (D93) makes the picture clear beyond doubt. The western part of the Brown Fence was in between Lot 765 and the Cultivation Fields and did not enter Lot 765 . Mr Tang said that he could still see it now. Nor did the fence enter Lot 764 .
(6) The 2007 aerial photo (D94) clearly shows Lots 764 and 765 to be not enclosed by the Brown Fence. In the 2007 survey sheet (D73), the only fence shown is along the hillside on the east at the GL. As Mr Tang said, the survey sheet had updated the position regarding structures but not the fences. The survey sheet was only updated further in 2018 (D75). The Brown Fence to the north was similar to what Exhibit P1 depicted. However, it is plain that the eastern part of the Brown Fence did not enter Lot 764 , and broke into 2 segments.
(7) The 2013 aerial photo (D99) shows the same fence to extend south-westwards slightly into Lot 765 . Mr Tang was of the view that the fence might have been covered by trees. According to §33.5 of SJER (D16), “this fence was extended westward in 2013. This tally (sic) with the fence found during the site visit in 2018. The inference is that since 2013, Lot 765 was probably enclosed by the Brown Fence.
(8) The 2014 aerial photo (D100) shows a fence in the eastern border of the Cultivation Fields but it did not touch the boundary of Lot 764 .
63. Fifthly , according to §33.2 of the SJER (D16), “in 2013, asegment of a new fence in arc-shape was observed connecting the fences. In 2015, the fences were realigned. This tally (sic) with the fence found during Mr Tang’s site visit in 2018.” By realigning, Mr Tang meant that the fence which curved into a small part of Lot 765 was relocated to connect the western boundary of Lot 765 as shown in the aerial photo taken on 24th September 2015 (D101). Mr Tang agreed that the earlier fence which curved around Lot 753 and intruded slightly into Lot 765 had the effect of protecting crops on Lot 753. However, he could see no cultivation on Lot 765 for years on the aerial photos.
64. One notes that the writ was first issued on 17th September 2015 but the Plaintiff was aware of his adverse possession claim as early as in October 2014 when he took his photos. In my view, it was more likely than not that he only realigned the fences in the north to enclose Lot 765 shortly before action to boost his claim.
65. Sixthly , the Pink Fence of 2003 was incorrect as it did not match the fence in the 2003 aerial photo (D90).
66. Seventhly , under cross-examination, the Plaintiff mentioned for the first time that before the Gate was installed, there was a rolling iron mesh there built by him at the same location in 1985. He produced no photo in support. Mr Tang confirmed in his oral evidence that he could not see any structure appearing as a fence in any form at the position of the Gate before the 1995 aerial photo. Nor could he see fences next to the Gate or the Iron Sheet House in 2010 within the Enclosed Area.
67. Eighthly , in the same year as the erection of the Gate, one could see an L-shaped Fence (marked in pink by Mr Tang), with its shorter side representing the Gate and the longer side stretching out at 45ᵒ from the northern corner of the Iron Sheet House (Exhibit SJE-1, 1995 aerial photo).
(1) Mr Tang testified that the longer side represented the presence of iron mesh fence. At that time, the longer side was covered by vegetation.
(2) The vegetation leading from the Paved Vehicular Access was cleared. The Open Area was connected to more open space. The L-shaped Fence did not appear to have extended into the Open Area or fenced off the rear of the Iron Sheet House. That longer side of the L-shaped Fence was discernible up to 2009. There is no dispute that the Plaintiff replaced it with metal hoarding in 2015.
68. Ninthly , according to Exhibit SJE-1, the first sign of a fence appearing in Lot 774RP was in the 1996 aerial photo and an L-shaped fence more prominently appeared in the 1997 one. It did not fence off the Open Area. It stopped at the north-west corner of the Iron Sheet House and has never extended beyond, according to the aerial photos thereafter. That fence had been moved southwards according to the 2003 aerial photo, obviously because of the Plaintiff’s erection of the pool.
69. Given the analyses in this section and the guiding principles of Mr Tang in mind, I am of the view that Exhibit P1 is not reliable as showing the fenced area. I rely on the SJER and Mr Tang’s evidence instead.
70. It is also noteworthy that, at all times within the alleged fenced areas of Exhibit P1, the Cultivation Fields in the north, Lot 769 in the south-east, and 2 GLs have been included. The Cultivation Fields had been leased by Ho Ying Lam to the Plaintiff, at least up to 2009, according to the Plaintiff. In respect of Lot 769, the Plaintiff acknowledged that Ho Fai (or his son) could refuse to lease to him. There was nothing that the Plaintiff could do if Ho Fai required him to surrender possession of the land and the chicken farm (which the Plaintiff bought) at the end of the tenancy. The Plaintiff does not claim adverse possession over those Lots and the GLs in this action. The Plaintiff never intended to exclude those owners or occupiers from the fenced areas in Exhibit P1.
ND ISSUE – WHETHER THE PLAINTIFF HAS BEEN IN EXCLUSIVE POSSESSION OF LOTS 771 AND 768
I(1). Possession of Lots 771 and 768
71. The Defendants do not dispute that the Plaintiff has been using Lot 771 as residence since 1985 for over 20 years, that he had had a Licence to rear livestock and had had pigsties. However, they do not accept that the Plaintiff had actually reared chickens, followed by pigs or that the Plaintiff had built various structures on his land over the years since 1985. They also say that after surrender of the Licence, the Plaintiff had abandoned Lot 768 .
72. In respect of Lot 771 , the Plaintiff’s evidence was inconsistent. Mr Cheung queries the Plaintiff’s intention to possess and submits that:
(1) At one time, the Plaintiff said that the structures on Lot 771 (and 768 ) were sold to him by a Mr Yeung, but in P-WS[1] , §4, he said that Lot 771 and the structures thereon were obtained by adverse possession (霸回來的).
(2) However, under cross-examination, he said he thought that Lot 771 was included in the lease with Tsui (when it was not).
(3) He first came to know about Lot 771 being adversely possessed by him when he was so told by a surveyor at about the time when the government was recovering the Licence (ie about 2006-7).
73. Despite such inconsistent versions of the Plaintiff, I am satisfied that what the Plaintiff had bought were the structures on Lot 771 but not the land. He has been in possession without consent of the registered owner.
74. With regard to Lot 768, the Plaintiff has produced the Tenancy Agreement and Tsui’s acknowledgement of rent. I accept that he had first entered into possession of Lot 768 in accordance with the Tenancy Agreement and that the tenancy had expired by effluxion of time on 18 March 1990.
75. Lots 771 and 768 had almost been fully built up before the Plaintiff entered into possession (1982 and 1986 aerial photos and survey sheets). In 1994, the built up area had slight extension to the west of Lot 768 . From the 1995 aerial photo, the built up area was extended to fully use up Lot 768 , spreading into the Cultivation Fields, Lot 765 , and GL to the north-west of Lot 768 .
76. In §§5-20 of P-WS, the Plaintiff gave evidence in support of the pleaded particulars of his possession, ie building and re-building structures as residence, for storage and for rearing livestock, building a water tank on Lot 771 in 1989, installing a septic tank on Lot 773 in 1995, water pool, paving concrete on 4 of the 5 Disputed Lots (ie except Lot 764 ) and Lots 953 and 773 over the years. He obtained electricity supply in 1986 and water supply in 1998. In 2003, he erected a red brick wall between Lot 773 and 776. In 2003, he built a concrete swimming pool in front of his house, using a corner of Lot 774RP. The pool was later used for rearing fish and cultivating vegetables.
77. It was quite clear that the expansion in land use was to facilitate the Plaintiff’s residence and business on Lots 771 and 768 . The Licence and acceptance of compensation upon surrender of the Licence were the best proofs that the Plaintiff has been in occupation for business.
78. Viewing the extent of the original and new built up area, the Licence and the photos of the paved pigsties, I find that it is more likely than not that Lot 768 had been used for rearing livestock.
79. I also accept that after surrender of the Licence, the Plaintiff has kept his residence, the structures, and grew vegetables and fruits on the Cultivation Fields.
80. Mr Cheung accepts that he has a difficult part defending his case in respect of Lot 768 . However, he submits that although the Plaintiff had occupied Lot 768 from 1990 to 2007 for 17 years, he had abandoned it thereafter for about 14 years after he surrendered the Licence in 2007 up to now. The photos showed the pigsties to be in a state of dilapidation with damaged fences and collapse of roof (photos 18 [D28], 20 [D29], 21 [D30], 24 [D31], 25 [D32] and 26 [D32]). Photo 31 shows metal sheets to have been blown away by Typhoon Mangkhut in 2018, although the Plaintiff claimed to have done some repair and stored items on Lot 768 . Whilst accepting that abandonment is not pleaded, Mr Cheung clarifies that his submission is just to show that the Plaintiff does not have the requisite degree of continuous possession re Lot 768 .
81. With respect, I am unable to agree. The fact that a person has abandoned a business does not mean he has abandoned the land. The pigsties appear to be in a tidy state in that it was not overgrown with grass. The Plaintiff was still storing utensils and materials there (D37). Any dilapidation caused by Typhoon Manghkut in the few months before the date of the SJER could not give rise to an inference of abandonment.
82. The Plaintiff also alleged that he had rented the Cultivation Fields between 2007-2009 (B83) and had continued in possession without renewing the lease with Ho Ying Lam. Mr Chiu, counsel for the Plaintiff, submits that there was no abandonment because the Plaintiff had to pass through Lot 768 to reach the Cultivation Fields. I reject that submission for lack of evidence.
83. Overall, I am satisfied that the Plaintiff has been in possession of Lot 771 since 1985 and Lot 768 since 1990 without consent of the owners. By the time of the writ, he would have been in possession for well over 20 years.
I(2). Requisite intention to possess
84. Although I have rejected Exhibit P1, the evidence was overwhelming in showing that the Plaintiff had made full use of Lots 768 and 771 in the way an owner would. The structures extending beyond Lot 768 and the house near the front entrance to Lot 771 would have prevented entry to those 2 Lots. No additional evidence to prove intention is required.
85. The Plaintiff was asked that if Tsui’s representative Lee Suet Ying had asked for rent in 2010, what would the Plaintiff have done. The Plaintiff said that he had to calculate if he had been in adverse possession for enough years; if not, there was nothing he could have done. Contrary to Mr Cheung’s submission, I find this to be an indication that the Plaintiff had the requisite intention to claim adverse possession instead of acknowledging Tsui’s title.
86. Subject to Section M below about the Representation, the registered owner’s title to Lots 768 and 771 would have been extinguished.
RD ISSUE – WHETHER THE PLAINTIFF HAS BEEN IN EXCLUSIVE POSSESSION OF THE DISPUTED PORTIONS OF LOT 774RP
J(1). The disputed portions
87. The Plaintiff only claims adverse possession over part of Lot 774RP, comprising the Open Area and the Pool/Yard Area.
J(2). Possession of the Open Area
88. It is the Plaintiff’s case that he has always been in exclusive possession of the Open Area and he claimed to have fenced it off, with an iron mesh running through the space between the Iron Sheet House and what used to be a Container House installed by the Plaintiff. In June 2015, D1 dismantled part of the rear “wall” of the Iron Sheet House and intended to enter the Open Area. The Plaintiff immediately refused her entry and enclosed the Open Area with iron hoards to block her access. He denied that the Iron Sheet House had a rear door leading to the Open Area.
89. On the other hand, it is D1’s case that she had had unrestricted access to the Open Area and had placed items there. In about the 1980s, with her consent, the Plaintiff had put animal feed and agricultural utensils in the Open Space until he fenced off the Open Area in 2015. However, there is not a single photo of D1’s presence on the Open Area or what she alleged to be the Plaintiff’s items.
90. As stated in paragraph 70 above, the Fences in Exhibit P1 (even if accurate) included other Lots over which the Plaintiff does not claim adverse possession. None of the photos show the Plaintiff’s exclusive possession of the Open Area for the requisite 20 or 12-year period. The Plaintiff’s claim over the Open Area must fail.
91. If I am wrong, I have considered each party’s case in the sub-sections below.
J(3). Whether the Plaintiff required D1’s consent to use the Open Area
92. I have taken into account the following factors:
93. Firstly , both the Plaintiff and D1 had initially rented land from Tsui. Both of them did not have a clear idea as to the boundaries of their rented Lots. D1 only knew about the boundary of Lot 774RP after becoming an owner. As can be seen from the aerial photos, the Open Area appeared to have remained more or less an open space over the years.
94. Secondly , D1 claimed that she ran the business of rearing chickens. The lorries would transport chicken feed through the Vehicular Paved Access to unload at the Open Area and bring the chicken feed through the rear door to the Iron Sheet House. The Gate would have hindered access of the lorries.
95. Thirdly , the Plaintiff had installed the Container House between 1999 (D86) and 2007 (annotation to photo on C31). D1’s own testimony was that the space between the Container House and the Iron Sheet House was only 2 feet wide. (See photo on B88.) It would have greatly obstructed the transport of chicken feed from the Open Area into the Iron Sheet House. And yet, D1 had never raised objection to the Plaintiff’s erection of the Container House.
96. When cross-examined as to whether she saw the Container House there in 1996, she said she saw it in the aerial photos! When asked if she knew it was there, she said she knew a little (知知地). She insisted that she could have access in and out of the rear door.
97. Fourthly , the more probable version was the Plaintiff’s evidence, which I accept, that D1 had ceased rearing chickens and swapped to growing mushrooms in Mainland China before 1995 and thus had not used the Open Area for unloading. She used another door to the south-western side of the Iron Sheet House that would enable lorries to take a shorter route to the Iron Sheet House (Exhibit D1C ). That was why she might have been unaware of the erection of the Gate or the Container House and raised no objection to it.
98. These factors made it unlikely that the Plaintiff had to ask for D1’s consent to use the Open Area; and unlikely that D1 thought she needed to give or had given consent to the Plaintiff to use the Open Area. Each of them simply exercised free access as if it were public land. Seeing that no one had raised objection to his erection of the Gate, the Plaintiff did more to install a Container House on the Open Area for his son.
J(4). Did the Plaintiff fence off the Open Area?
99. D1’s witness statement never mentioned anything about erection of fences on her land. Her oral evidence in this aspect was confusing and unreliable. She denied that the Plaintiff had erected fences, including at the location where the Gate was. Her oral evidence mentioned that the area represented by the black circle on Exhibit P3 (same area as photo D20) had no fence because it was a slope with vegetation. Later, she said her husband did build irregular fences (有圍欄但不整齊). (She in fact changed her evidence to say that it was her husband to whom the Plaintiff made the request to use the Open Area.) Some parts of such fences might have collapsed as shown in the photo on B91, taken by D1’s husband in 2015. When it was put to her that there was an iron mesh fence at the Paved Vehicular Access before installation of the Gate, she testified that the iron mesh fence was there for a short period of time but had collapsed.
100. The Plaintiff’s evidence was equally unconvincing.
101. Firstly , the Plaintiff claimed that photo C31 (taken in June 2015) showed the remnants of the fence (with plants growing over it) that stood between the Container House and Iron Sheet House.
102. I find it incredible that the Plaintiff would need to erect the Blue Fence there, in 2003 according to him, when the Container House was already standing there to bar entry from Lot 774RP. By 2014, the Container House had been removed. Had there been a fence, the Plaintiff would have taken a photo before demolishing the fence but there was not a single photo. If C31 were that fence, he did not have to erect new fences/hoarding in 2015. I disbelieve the Plaintiff.
103. Secondly , the photo on B89 shows a round stump which the Plaintiff claimed was a “leg” of the Container House. Quite apart from being contradictory to the photo on B30 showing the Container House to have stood without legs, that leg(s) would hardly leave any space for a fence to stand in between the Container House and the Iron Sheet House.
104. Thirdly , according to the description on photo C31, after removal of the Container House, ceramic tiles were placed there and passion fruits were planted. That was in 2007. There were also fences built. On the fences were rotten climbers and passion fruits. There was also a pipe for draining away rain water. However, there was no objective evidence as to when the fences were first built, plants planted or the pipe laid. From 2007 to 2015, occupation was about 8 years only.
105. Fourthly , D1 agreed that, when facing the Iron Sheet House (standing on the Open Area), there was an iron mesh to the right, with metal boards behind (iron fence marked in pink in the aerial photos from 1995 onwards (D82-103); lower photo on B89). Photo D122 plainly shows worn out fences, compared to the light green iron fence to the left of the photo. Even taking such evidence into account, I am unable to find that the iron mesh ran behind the Container House and when.
106. Fifthly , the Plaintiff has lied about there being no rear door.
(1) As shown on the upper photo on B85 and as confirmed by D1, the rear door had a door frame. The rear door was opened by pulling into the house on the left and had silver locks on the right.
(2) As confirmed by D1, in the upper photo on B87, the upper photo on B88 and the lower photo on B89, the light-coloured zinc metal board on the right was starkly different from the other metal boards on the left which had nails running horizontally along the middle to secure these boards to a horizontal wooden post or plank on the inside. Comparatively, the zinc metal board on the right had no nails running across its middle because it was not removed from the wall of the Iron Sheet House as alleged by the Plaintiff. In the opening/hole seen in the upper photo on B85, there was no horizontal post or plank to which the zinc metal board could be affixed.
107. I reject the Plaintiff’s evidence about fencing off Lot 774RP. Accordingly, the Plaintiff has not discharged the burden of showing exclusive possession of the Open Area.
J(5). Possession of the Pool/Yard Area
108. The aerial photo of 20 October 2003 first shows existence of the pool and some structures. Before that, the Pool/Yard Area was covered by vegetation.
109. The pool and paved yard would have unequivocally shown exclusive possession. Whilst the unchallenged evidence of the Plaintiff is that he built the pool in 2003, no date was specified. The Plaintiff has not discharged the burden of showing that he has been in possession for the requisite 12 years before the date of the writ, ie 17 September 2015.
J(6). Summary
110. In summary, the Plaintiff has failed to prove that he has had exclusive possession of the Open Area, or that he has been in possession of the Pool/Yard Area for over 12 years before the writ was filed. The claim against D1 must fail.
TH ISSUE – WHETHER THE PLAINTIFF HAS BEEN IN EXCLUSIVE POSSESSION OF LOT 764
K(1). D2’s evidence (common to Lots 764 and 765 )
111. D2 and D3 had gone in August and September 2014 to inspect Lots 764 and 765 before purchasing them. D2’s oral evidence showed that the Gate had barred entry to Lots 764 and 765 . So he and D3 went uphill to look down. D3 pointed out the so-called Lots 764 and 765 to D2. D2 “inspected” with his bare eyes. He could only see vegetation and those Lots appeared to be waste and abandoned land with no fences and structures built on them. The survey plan that D2 and D3 brought along did not show “TS”, ie temporary structure, on those Lots.
112. Such “inspection” with a survey plan was unreliable because:
(1) There was no evidence as to the year when the survey plan was made. It might not have been properly updated.
(2) D2 was short-sighted, and from the hills, he would not be able to see if there were fences around Lots 764 and 765 .
(3) He was probably mistaken as to where the 2 Lots were. In his oral evidence, he said that from where he stood (as marked on Exhibit D2A), Lot 764 was on his right and 765 was on his left. He subsequently agreed with the Court that, from that position, the 2 Lots should have been parallel, and Lot 765 was further off. But he said he was not sure what was in between the 2 Lots.
(4) He said he could not see roofs of structures on Lot 765, but the 2014 aerial photo clearly shows that about 50% of Lot 765 was occupied by structures then.
K(2). Plaintiff’s evidence
113. The Plaintiff claimed not to know where Lots 764 and 765 were, until he was told in 1990 by the Lands Department. That may explain why there was no sign of land use from the aerial photos until 1998 when the vegetation at the southern portion of Lot 764 was cleared SJER (§29.1). A fence (probably the Orange Fence) cut across Lot 764 . However, by 2000, Lot 764 was covered by vegetation which formed part of the surrounding natural vegetation. The fence on Lot 764 was no longer visible.
114. In my view, putting a fence across (as opposed to encircling) a piece of land in the middle of vegetation, without other signs of land use, is not sufficient to show possession. In any case, the fence has not excluded owners or occupiers of the Cultivation Fields, Lot 769 and the GL (paragraph 70 above).
115. In the background to photo C2 (taken in October 2014), there was an iron mesh but the Plaintiff did not correlate it to the aerial photos.
116. The only land use claimed by the Plaintiff was planting of 2 mango trees, but he could not remember when he did so. In my view, such minimal use of land at an unspecified time could hardly show intention to possess. Accordingly, the Plaintiff has failed to discharge the burden of proof. The claim in respect of Lot 764 must fail.
TH ISSUE – WHETHER THE PLAINTIFF HAS BEEN IN EXCLUSIVE POSSESSION OF LOT 765
117. The evidence in Section K(1) above apply to this Lot.
118. The Plaintiff claimed to have used Lot 765 for pigsties. Together with Lot 768 , he had had 2 pigsties. The photos on D31 and 32 show what appeared to be pigsties on Lot 765 , consistent with the style of those on Lot 768 in photos C49-51 produced by the Plaintiff. `
119. In my view, paving the ground and erection of low concrete fenced could be signs of exclusive possession but there is no evidence as to when those were done. What appears to be a metal roof from an aerial photo does not give rise to any inference as to what lay at ground level.
120. Further, the pigsty on Lot 765 was not covered by the Licence issued in 2002. It was no answer for the Plaintiff to say that the AFCD did not put down Lot 765 into the Licence. It was up to him to point out the location of his pigsties and let AFCD identify the Lot number for him as AFCD did for the rest of his Lots.
121. The irresistible inference is that the pigsty, if any, on Lot 765 did not come into existence until after the date of the Licence. In any case, the Plaintiff did not claim that Lot 765 had been used for rearing pigs after revocation of the Licence on 28 March 2007.
122. Photos on D31 and 32 show that structures (especially the iron fence) to have been partly damaged and a tree to have fallen. The submission and my finding as regards Typhoon Mangkhut and abandonment in paragraphs 80-81 above apply.
123. Anyway, judging from the aerial photos, I accept that the Plaintiff moved the fence northwards in 1998, enclosing more of Lot 765 and the Cultivation Fields, with more structures erected.
124. After leasing the Cultivation Fields, the Plaintiff extended the fence of Lot 765 to the edge of the Cultivation Fields. He said he did all fences in 1999 and had not added any afterwards. The Court has not been shown a copy of the lease.
125. Mr Tang testified that in 2001, cultivation had taken place in the middle portion of Lot 765 but it ceased in 2002. Since 2003, trees could be observed at the northern portion and cultivation was only seen again in Lot 765 in 2017.
126. Despite finding out the locations of Lot 765 (and 764 ) in 1990, the Plaintiff has only had limited use of Lot 765 . Assuming what occurred at ground level was proved (which was not), I find his possession to be about 10% since 1995, but increased to 50% by 1999 till now (1999 aerial photo, D52). As possession commenced after 1 July 1991, the requisite 12-year possession would have been satisfied.
127. However, exclusivity of possession is not established because of my finding as to the Orange and Brown Fences in paragraphs 59(1), 62-64 above. I have come to this conclusion even bearing in mind the guiding principles of Mr Tang in paragraphs 50(3), (6) and (8) above. The Plaintiff’s claim against D2 as regards Lot 765 must fail.
TH ISSUE – WHETHER THE PLAINTIFF HAD MADE THE REPRESENTATION AND AGREED TO THE LEASE OFFER
M(1). Burden and standard of proof
128. Although D3 appeared to have represented others at the Meeting, this issue only affects Lots 768 and 771 belonging to D3 because:
(1) Neither D1 nor D2 ever stated that D3 represented her or him.
(2) In D1-WS, D1 categorically denied knowledge of anything discussed between D3 and the Plaintiff until she sought help from D3 about the Plaintiff’s fencing off of the Open Area.
(3) D2 was not present and only learnt about the Meeting from D3 sometime in late 2014.
129. The burden of proof is on D3 and the standard is on balance of probabilities.
130. As the Plaintiff has not filed a reply, he can only challenge the credibility of D3’s case on this issue but cannot put forth a positive case.
131. I bear in mind that the Plaintiff had been told about being in adverse possession of Lot 771 . He would have some concept of adverse possession before the Meeting. It requires cogent evidence to show that the Plaintiff would have lightly given up his interest in land.
M(2). D3’s case
132. There is no dispute that the Plaintiff was asked to attend the Meeting through Chi, a common friend of the Plaintiff and D3. Chi and Hon also attended the Meeting.
133. According to D3, at the Meeting, the Plaintiff allegedly said that he knew D3 and his friends had recently acquired titles to a number of Lots (“Subject Lots ”[2] ). The Plaintiff was expecting them to approach him. The Plaintiff told D3 that he first possessed Lots 764 , 765 , 768 and 771 as trespasser but was later granted a lease from Tsui.
134. The Representation made by the Plaintiff was:
(1) As pleaded, that the Plaintiff had stayed there with no intention to claim adverse possession of “the Land[3] or any Lot thereof”.
(2) That the Plaintiff did not own any of the land and had never treated the land he had been using as his own; since D3 now became the new owner, he was prepared to discuss the future arrangement about living thereat with D3 (§12 of D3-WS).
(3) That if the Plaintiff had wished to adversely possess the relevant lots of land, he would not have attended the Meeting (§19 of D3-WS).
135. D3 claims that he had proposed to the Plaintiff that:
(1) The Plaintiff shall purchase the “Subject Lots” from D3 and his friends at a fee (“Sale Offer ”);
(2) The Plaintiff shall enter into a lease agreement with D3 and his friends to continue to stay and use the “Subject Lots” at a definite duration and at a fee (“Lease Offer ”); or
(3) The Plaintiff shall move out of the “Subject Lots”; D3 would purchase the existing structures and crops on top (“Move-Out Offer ”).
136. According to D3, the Plaintiff immediately responded by querying how he could have afforded to buy. So D3 offered to lease “the land” to him at a nominal rent of $100 per year on condition that he agreed to enter into a tenancy agreement with D3.
137. As D3 had not prepared the lease at that time and it was close to Chinese New Year, D3 told the Plaintiff that he would invite him to sign the lease after it was prepared.
138. After the lease in respect of Lots 764 , 765 , 768 and 771 was prepared in about March 2015, Chi had repeatedly tried to contact the Plaintiff in vain. No lease was eventually signed.
139. The evidence of D3 was purportedly corroborated by Hon and Chi.
M(3). The Plaintiff’s evidence
140. The Plaintiff claimed that in the telephone call, Chi told him to attend a meeting to talk about agricultural land, and to bring the lease along. The Plaintiff thought that it was about the only land he had rented at that time for growing vegetables, ie the Cultivation Fields. He did not know the Lot number then but learnt that they were Lots 753 and 763 after instructing a surveyor. He brought the Purported Lease with Ho Ying Lam to the Meeting.
141. The Plaintiff did not know that D3 had bought some of Tsui’s land until D3 told him at the Meeting that he had bought Lots 764 , 765 and 768 . D3 claimed to be the nephew of Ho Ying Lam. The 3 Proposals were about agricultural land. The Plaintiff denied accepting the Lease Offer. He said he had to discuss with his wife. After discussing with his wife, the Plaintiff decided not to discuss with D3 but with Ho Ying Lam. As Ho Ying Lam was in Holland, the Plaintiff could not get in touch with him.
M(4). The issues
142. The issues are therefore:
(1) Whether Chi told the Plaintiff to bring along the lease of agricultural land to the Meeting;
(2) Whether the Meeting was about lease of agricultural land;
(3) Whether the Plaintiff had made the Representation; and
(4) Whether the Plaintiff had agreed to the Lease Offer.
M(5). Whether Chi told the Plaintiff to bring along the lease of the agricultural land to the Meeting
143. Chi denied asking the Plaintiff to bring along a lease. In fact, there was nothing to show that Chi (or D3) knew that the Plaintiff had leased land, let alone agricultural land. I answer this issue with a “no”.
144. Chi agreed under cross-examination that the Plaintiff and D3 had been studying a lease but Hon said that the Plaintiff had not brought along anything. I am not surprised that the Plaintiff had brought a lease along on his own volition in case the discussion would cover it.
M(6). Whether the Meeting was about lease of agricultural land
145. Chi was very clear that the discussion was not about vegetable land (菜地).
146. The Plaintiff admitted that D3 had shown him a survey plan and pointed to Lots 764 , 765 and 768 . The Plaintiff asked D3 what those numbers were and from whom D3 had purchased but D3 did not answer. So the Plaintiff and D3 turned to talk about the Cultivation Fields.
147. That was totally incredible. There was nothing that D3 needed to hide and no reason why he would not talk about the Lots he had bought but the Cultivation Fields that he had not. Moreover, D3 and Ho Ying Lam were not related. D3 did not have to lie about this.
148. If the discussion was really about the Cultivation Fields, there was no reason why the Plaintiff had to evade signing a lease after the Meeting. He would have known that he had not met the requisite period for claiming adverse possession then, the Purported Lease (on his evidence) having expired only in 2009.
149. If Ho Ying Lam had entrusted D3 to discuss the lease with the Plaintiff, it was strange that Ho Ying Lam had not contacted the Plaintiff for renewal of lease or recovery of the Cultivation Fields after the Meeting.
150. The Purported Lease was most dubious. It did not mention any Lot number at all. Further, Lot 753 alone has an area of 8,756 square feet (see the plan attached to the ASOC). Ho Ying Lam was allegedly in Holland. There was simply no reason why he only leased out 300 square feet to the Plaintiff, leaving 8,456 non-income generating.
151. I am not satisfied that the Meeting was about lease of agricultural land.
M(7). Whether the Plaintiff had made the Representation
152. The last paragraph of P-WS was carefully crafted. It stated that what D3 alleged the Plaintiff to have agreed to rent the above adversely possessed land was not the truth.
153. The Plaintiff never denied making the Representation in his witness statement or filed a supplemental witness statement. His counsel has never put to Chi or Hon that the Representation was not made.
154. The Plaintiff’s assertion that the Meeting was about agricultural land first featured in P-WS only 2 years after the defence. I find it to be an afterthought and digression to cover up the fact that there had been discussion of a lease relating to some other Lots.
155. Mr Cheung put to the Plaintiff that he (the Plaintiff) had said that if he had wanted to adversely possess the land, he would not have come for the Meeting. The Plaintiff, who had all along been prompt in answering questions (especially the series of questions that put the defence case to him immediately before this question), became very hesitant and asked Mr Cheung to repeat the question (day 2). I have made a special record of this in my notes.
156. In my view, the Plaintiff was trying to cover up the truth of what had happened at the Meeting. He was not a reliable witness.
157. D3’s evidence was thus crucial. In D3-WS, §§9-27 described the making of the Representation, the 3 Proposals and the Plaintiff’s agreement to the Lease Offer at nominal rent of $100. Those paragraphs were adopted by Hon and Chi in their witness statements.
158. D3’s own evidence was imprecise and confusing as to which Lots were discussed at the Meeting:
(1) In the Amended Defence, §7(c) (of which Mr Cheung and Ms Leung were not the drafters), 10 Lots were allegedly mentioned.
(2) In D3-WS, it was stated that the Plaintiff did not mention the Lot numbers but only mentioned his “residence and adjacent Lots”. When cross-examined, D3 evaded the question and stated that the Plaintiff knew the purpose of coming for the Meeting; that he knew D3’s capacity; that he admitted using “D3’s land”; and that the Plaintiff did not mention Lot numbers.
(3) In his oral evidence, D3 claimed not to know where the Plaintiff was residing. It was the Plaintiff who told him he was occupying 4 Lots – Lots 768 , 771 , 764 , and Lot 765 ; and D3 confirmed that the Meeting was about those 4 Lots. This evidence was inconsistent with the Amended Defence. This evidence could not be true because (i) even in the telephone conversation, Chi was able to tell the Plaintiff that D3 had purchased “the Plaintiff’s land”; and (ii) the Plaintiff was in occupation of more than 4 Lots. Further, Lots 764 and 765 were not purchased by D3 but his friends . D3 had to correct himself and testified that he did tell the Plaintiff that D3 had purchased Lots 768 and 771 .
159. Further, D3-WS stated that D3 would compensate the Plaintiff for, amongst others, crops. When cross-examined as to this, D3 appeared to be taken by surprise and asked, “Were there crops?” He could not see any crops; there was no mention of crops. In re-examination, he said that according to his knowledge, the Lots that were discussed with the Plaintiff did not have crops but had roofs.
160. Hon purported to support D3’s case. Though honest, Hon did not appear to have independent memory. He admitted under cross-examination that he did not know most of the contents of the conversation between the Plaintiff and D3 at the Meeting. He had not heard any mention of crops. These beg the question of how he could have adopted §§9-27 of D3-WS. However, he was able to deny some of the allegations which Mr Chiu put to him.
161. Chi could, in answer to questions under cross-examination, very naturally recount the substance of §§9-27 of D3‑WS. Despite his age, he was firm and clear in his answers. I give full weight to his evidence.
162. With Chi’s corroboration, I find that the Plaintiff had made the Representation. The wide wording of the Representation would have covered all the Lots that the Plaintiff was in possession of but did not have title over, including D3’s Lots. Hon also suggested that the Plaintiff should do title search if he was not sure of D3’s title, indicating that the Meeting did cover D3’s Lots.
M(8). Whether the Plaintiff accepted the Lease Offer
163. With the corroboration of Chi, I accept that D3 had made the 3 Proposals. The Plaintiff had queried whether he had money to buy but discussed a lease with D3.
164. The scope of the lease was not clear from D3’s evidence. In the Amended Defence, §7 used various abbreviations to cover land – “Subject Lots”, “the Land”, “relevant lots”. Some of the land belonged to D3’s friends . D3-WS appeared to suggest that only D3’s Lots were covered. Again, I accept Chi’s evidence that D3’s Lots were covered by the discussion to lease although Chi was not able to state the Lot numbers. He said that the Plaintiff and D3 had a satisfactory discussion (傾得很圓滿) and had roughly come to terms.
165. As for the rent, the Amended Defence pleaded that D3 proposed to charge the same rent as Tsui (ie $3,000 for 5 years). However, D3-WS mentioned that D3 offered a lease at $100 per year. When asked which version was correct, D3 said both were, as he did not know what rent Tsui charged was but eventually he agreed to charge a nominal $100 per year. To D3, it was about the same matter. He cared more about clarity than rent. Again, it was based on Chi’s evidence that I accept that the nominal rent was stated to be $100 per year.
166. D3 said that there was an agreement reached. Chi’s evidence at first appeared to agree with him. However, when Chi was asked what the Plaintiff’s response to the Lease Offer was, Chi said that the Plaintiff remained silent (默默無言); but said that he had to wait till after Chinese New Year to do title search. I find that the Plaintiff had discussed but had not yet accepted the Lease Offer.
167. D3 had not prepared the lease until 5 months after the Meeting, after Chinese New Year. Despite wanting clarity, D3 left the lease in a state of abatement instead of promptly tying the Plaintiff to his word. And D3 has never produced the draft lease, claiming to have misplaced it.
168. Again, I accept Chi’s evidence that a lease was prepared and that it was he who had tried to contact the Plaintiff to sign it but in vain. From Chi’s narration, one could sense that the lease was a natural product of the Meeting.
169. The failure to enter into a lease was irrelevant, because implicit in a discussion over a lease was an acknowledgement that someone other than the Plaintiff had title over the subject matter of the lease.
170. In respect of verifying the title, Hon said he had told the Plaintiff to verify the title if he was not sure that D3 was the owner. Chi also testified that the Plaintiff did mention about some searches to understand if D3 was the owner. I so not consider this piece of evidence as conclusive one way or another. An adverse possessor may still wish to verify title so as to decide who to sue, like what the Plaintiff did in this case.
M(9). Summary
171. In summary, I find that Chi had not asked the Plaintiff to bring a lease to the Meeting. The Meeting was not about agricultural land but various Lots including those belonging to D3. The Plaintiff had made the Representation. D3 and the Plaintiff discussed a lease of D3’s Lots and mentioned the rent of $100 per year but no lease was signed in the end. The irresistible inference from paragraphs 152-156 is that the Plaintiff wanted to cover up the truth that he had made the Representation.
172. The Plaintiff has failed to establish exclusive possession of the Open Area through the use of fences. The Plaintiff has failed to establish that he has been in possession of the Pool/Yard Area for 12 years before issuing the writ. The claim against D1 as regards Lot 774RP fails.
173. The Plaintiff’s use of Lot 764 , if at all, was minimal. He has failed to establish when he had planted the mango trees, that he has had possession or the intention to possess. The claim again D2 fails.
174. The Plaintiff has failed to establish possession of Lot 765 and that he has the requisite intention to exclude the whole world through the use of fences. The claim again D2 fails.
175. Although the Plaintiff has been in exclusive possession of Lots 771 and 768 for over 20 years before action, his intention to adversely possess those 2 Lots was refuted by the Representation and discussion of a lease with D3 over his Lots at the Meeting. The Plaintiff has not agreed to the Lease Offer or signed a lease with D3; he even wanted to do title search to verify D3’s title. However, these do not undermine the effect of the Representation. The claim against D3 fails.
176. I therefore dismiss the claim against each Defendant.
177. On costs, on a nisi basis, the Plaintiff should bear the costs of each Defendant, with certificates for two counsel. The Defendants’ own costs should be apportioned equally amongst them.
178. A copy of this judgment is to be given to the Department of Justice so that a decision can be made on whether to recover possession of the Government land to the west of Lots 768 and 771 and to the east of Lot 769 in DD 78 from whoever is occupying them.
179. I thank Mr Chiu, Mr Cheung, Ms Leung and the surveyor Mr Eric Sze-Kin Tang of Eric Tang & Associates Ltd for their assistance.
(Queeny Au-Yeung)
Mr Victor K H Chiu, instructed by Paul Kwong & Co, for the Plaintiff
Mr Lawrence Cheung and Ms Teresa Leung, instructed by Francis Kong & Co, for the 1st to 3rd Defendants
[1] This abbreviated form stands for a party’s witness statement.
[2] I adopt the term “Subject Lots” from the Amended Defence. As shall be explained below, which Lots were discussed was confusing.
[3] Defined as the 8 Lots and GLs in §3 of the amended statement of claim.