PANG YIU CHOR AND OTHERS v. WONG WAI LEUNG AND OTHERS

HCMP 3972/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3972 OF 2000

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J U D G M E N T

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1.  This action concerns a dispute between the paper title holders of a piece of land (the Plaintiffs) and the occupiers thereof (the 1^st to 4 Defendants[1]). The land is situated at Wo Hop Shek Village, Fanling, and is known as the Remaining Portion of Lot No.3982 in Demarcation District (DD) No.51 (Land).

Background

2.  Originally, the Land was part of Lot 3982 in DD 51 (Lot).  By a conveyance dated 5 October 1972, the Lot, together with other pieces of land, were assigned to the Plaintiffs by their father.  At the time of the conveyance, the 3^rd to 5^th Plaintiffs were minors.  Their interests in the land were held by their mother as trustee on their behalf.

3.  The 3^rd to 5^th Plaintiffs attained maturity in 1979 and 1981.  By 3 Vesting Assignments in 1983 and 1987, the interests of these Plaintiffs in the land were vested in them.

4.  By a Notice of Resumption dated 12 February 1985, a portion of the Lot was resumed by the Government.  Henceforth, the part of the Lot owned by the Plaintiffs was reduced to the Remaining Portion.

5.  In January 1999, the Plaintiffs had a survey of the Land conducted and found that there were occupants and houses were built on the same.  There is an agreed plan (Plan A) produced by the Defendants’ surveyor showing the areas occupied by each of them which bear different colours for ease of identification [C/90].  With the exception of the land occupied by the 4^th Defendant and his family which has a “Temporary Structure”, there is a 2-storey building on the each of the areas.

6.  The Plaintiffs commenced these proceedings on 7 August 2000 against “The Occupiers” of the Land.

7.  By a letter dated 31 August 2000, the Plaintiffs were informed by the Government that “some of the houses in question” were covered by Government Land Licences (Licences), which permitted the licensees to occupy certain government land for a temporary period.  The Government proposed to exchange the Land with a piece of vacant Government land in the vicinity so as to “resolve the existing complicated situation”.

8.  On 16 April 2002, the Plaintiffs commenced proceedings against the Government in HCA1414 of 2002 (Action) for an injunction to restrain the Government from depriving them of the enjoyment of the Land and for damages.

9.  In May 2003, the Government terminated the Licences.

10.  By a consent order dated 4 November 2004, judgement on liability was entered with damages to be assessed in favour of the Plaintiffs in the Action.  The claim for injunction was dismissed.

11.  By an order dated 25 June 2012, the 1^st to 4^th Defendants (Defendants) were joined as the defendants in these proceedings.

12.  The above provides the background to this action, which is not controversial. 

13.  The Plaintiffs say that the Defendants are occupying the Land without their consent and are trespassers.  The Plaintiffs seek an order for possession against the Defendants; an injunction requiring them to demolish the houses on the Land; and damages for trespass.

Defendants’ case

14.  The Defendants contend that, at a time unknown to them and long before the Plaintiffs became owners of the Land in 1972, the Government had mistaken the Land for government land and given out Crown Land Permits[2] (Permits) to various permittees to occupy the Land, namely, Wong Sze Fai, Lo Hing, Wong Sum and Wong Yeung Sau (Permittees).

15.  Wong Sze Fai was the godfather of the 4^th Defendant.  A Permit was granted to him to take effect on 1 January 1961.  This Permit referred to an area of about 26.48 sq m.  The stated “Purpose for which land may be used” was “Temporary Structures Only”.  The “Structures permitted on the Permit Area” were a dwelling and a kitchen with measurements.  The aggregate of those measurements is consistent with the stated area.  There was a plan annexed to the Permit.  It was supposed to show the location of the “Permit Area” in red.  However, it was of rather small scale and the copy in the trial bundles (Bundles) is in black and white.  The plan is therefore of little assistance for the present purpose.  Wong Sze Fai and his wife passed away in about 1990 and 1994.

16.  Lo Hing was the grandfather of the 3^rd Defendant.  His Permit took effect from 19 June 1961.  The stated area was about 57.6 sq m.  Five structures were covered, namely, a dwelling, a kitchen, a shade, a chicken shed and a pigsty.  There is no plan attached to the copy found in the Bundles.  Lo Hing passed away in around June 2010.

17.  Wong Sum was the father of the 1^st Defendant.  His Permit took effect on 1 June 1962.  The stated area was about 80.27 sq m.  Six structures were covered, namely, a dwelling, a kitchen, 2 storages, a pigsty and a shade.  The plan attached to the Permit is too small to be of much assistance.  Wong Sum passed away in around January 2000.

18.  Wong Yeung Sau was the father of the 2^nd Defendant.  His Permit took effect from 1 June 1965.  The stated area was about 24.15 sq m.  It covered only a dwelling.  The attached plan found in the Bundles is coloured, but save that the dwelling can be identified it is of little assistance.  Wong Yeung Sau passed away in around 1992.

19.  It is reasonably clear from the Permits that the Permittees had been living on various parts of the Land for some time before the grant of the Permits because the Permits referred to various existing structures.  However, save in the case of Wong Sum, there is no reliable evidence on when these Permittees began their occupation of the Land.

20.  Wong Sum’s wife gave evidence and said that her family began living on the Land in about 1958.  The evidence of the 1^st to 3^rd Defendants, who were born in respectively 1962, 1967 and 1979, is that they have been living on the Land with their family all their life.  In the case of the 4^th Defendant, he started living on the Land with his godfather and his wife in about mid-1978.

21.  Notwithstanding the passing away of the Permittees, the Permits were renewed yearly upon payment of the permit/licence fees until 2003, and the Defendants continued to occupy of their respective portions of the Land under the Permits/Licences until that time.

22.  The Defendants contend that the Plaintiffs’ title to the Land had been extinguished by reason of the adverse possession by the Government or the Government through its licensees for over 20 years prior to the commencement of these proceedings.  This is the kernel of the Defendants’ case.

23.  The Defendants counterclaim for: (a) a declaration that the Plaintiffs’ title to the Land had been extinguished by virtue of the provisions in the Limitation Ordinance, Cap 347 (Ordinance) or the Real Property Limitation Act 1833 (Act); and (b) a declaration that the Defendants have by adverse possession acquired possessory title to the Land before the commencement of these proceedings.

Issues

24.  There is little factual dispute in this trial. This is reflected in the brevity of the cross-examination of the witnesses of both sides.  Indeed, it should be said that: (a) much of the relevant facts can be found in the undisputed documents; and (b) the Plaintiffs are not in the position to contradict much of the evidence of the Defendants concerning the occupation of the Land because those matters are outside their knowledge.

25.  Despite the large number of issues in the List of Issues agreed by the parties[3], counsel have sensibly agreed with the court that there are in truth only 4 issues in this case, namely: (a) the Defendants’ claim of adverse possession by the Government; (b) the area possessed by the Defendants; (c) the Defendants’ claim that the boundary of the Land is unclear; and (d) the Plaintiffs’ case of estoppel against the Government to defeat any claim of adverse possession. 

Principles of adverse possession

26.  The adverse possession relied upon in this case began before the enactment of the Ordinance.  The governing statute is the Act, as opposed to the Ordinance which was enacted in 1965 (see Leung Kuen Fai v Tang Kwong Yu Tong [2002] 2 HKLRD 705 at 711H-714B).  However, for the present purpose, there is no material difference between the Act and the Ordinance.

27.  The basic principles of adverse possession are not in dispute.  They were helpfully summarised by Harris J sitting in the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy, CACV 178/2015 (28 October 2016), §22 :

“(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period … and the requisite intention to possess.

(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.

28.  One who asserts adverse possession assumes a heavy onus of proof.  In Birkenhead Properties and Investments Ltd v Lam Kai-Man, HCMP 1588/2012 (12 January 2016), To J stated in para 13 :

“The burden of proof … is on the squatter. The standard of proof is the civil standard. However, the burden is a heavy one. The squatter has to adduce objective and compelling evidence: Powell v McFarlane. Self-serving evidence is hardly likely to be of assistance. The court will scrutinize such evidence with great care. The squatter’s evidence of his subjective intention will invariably be given no weight as being self-serving evidence, but his statements against his interest will usually be accorded considerable weight. Objective evidence will be given such weight as they deserve.”

29.  It is common ground that the period of adverse possession which the Defendants are required to establish is 20 years, ie, the adverse possession must have started not later than 8 August 1980. 

Boundary of the Land

30.  The issue is raised by the Defendants based primarily on the discrepancy in area found in the earlier plans of the Land. In his final submission, Mr Sezto, who appeared for the Defendants, rightly accepted that it is not his strongest point.  However, I am satisfied on the evidence that there is no real doubt over the boundary of the Land.  It is shown on the plan (Plan B) annexed to the Statement of Claim, which is an agreed survey plan produced by the Plaintiffs’ expert (TC) in January 1999.   

31.  In respect of the boundary of the Land, the experts are in agreement that :

(a) The registered area of the Lot was about 0.15 acres (about 607 sq m).  However, the scaled-off plan area shown on an old DD Sheet (no original date) was only about 0.05 acres;

(b) There is a Cadastral Survey Sheet of the Lot dated 2 January 1970 which is consistent with the DD Sheet in terms of the area in question;

(c) In 1984, 62.2 sq m of the Lot was resumed by the Government and the reduced area is about 544.8 sq m;

(d) A Lot Index Plan was produced by the Survey and Mapping Office of the Lands Department dated 2 January 1999 (LIP), which shows the Land with correlated boundary.  The plan area of the Land shown in the LIP is consistent with the registered area;

(e) The Land was “re-established” (a term used in the Joint Report of the experts) by TC with Plan B after carrying out a survey and taking into consideration the LIP and the registered area.

32.  It appears to be self-evident from the DD Sheet and the Cadastral Survey Sheet that it is unlikely for them to yield precise information of the area of the land covered.  The former had a scale of 1:3960.  According to the Defendants’ expert (HC), the Cadastral Survey Sheet was produced with the intention to improve the accuracy of the land records.  It was enlarged by HC to the scale of 1:1000, which implies that the plan area reading is unlikely to be of great precision.

33.  The LIP has a scale of 1:1000 and is more detailed compared with the Cadastral Survey Sheet.  TC suggested[4] that the LIP was produced after the Government realised, due to the resumption exercise, that there was a discrepancy in the area of the Lot. 

34.  HC expressed a similar view as follows :

“… Lands Department seemingly amended the LIP to make the correlated boundary extend into the abutting Government Land at southern side in order to fit the registered area. One most probable presumption was Lands Department decided to rectify the land records on par with the registered area after discovering such substantial deficit in plan areas on either the D.D. Control Sheet or the then land record sheet with the grant area during the 1985 resumption exercise.”

35.  The only concern raised by HC in the Joint Report is that “such large discrepancy between the D.D. plan area and grant area is subject to legal point of view and adjudication of the Lands Department in case of disagreement of the grantee”.  However, there is no evidence to suggest, and no reason to believe, that the Lands Department would dispute the boundary of the Land as shown in the LIP.

36.  Further, as pointed out by Mr Ng, who appeared for the Plaintiffs, the Government had never disputed in the Action that the areas occupied under the Permits were within the boundary of the Land.  In a statement of Ng Kai Man filed by the Government in that Action, it was said that: “No clearance action has been taken by the Government against the said occupier because the Government has no locus to take action against occupiers of non-Government land”.

37.  Furthermore, Plan B was submitted to the Lands Department in February 1999 and no adverse comment has been received.

38.  In my view, given the undisputed area of the Land and the current record of the Land kept by the Government (there is a later Lot Index Plan dated 22 December 2014 [C/38] which is consistent with the LIP), there is no real doubt over the boundary of the Land.  Indeed, HC did not suggest that the boundary of the Land should be governed by the old records. His concern has been set out above and dealt with. 

Adverse Possession

39.  This issue turns on a question of law whether the mistake by the Government that the Land was Government land would have negatived the intention to possess the Land on its part.

40.  To begin with, there is no room to doubt the evidence that the Land (subject to any argument on the precise area of occupation) was occupied by the Defendants and/or their family (in the case of the 4^th Defendant, the family of his godfather) since the early 1960s at the latest (see Cheung Yat Fuk v Tak Tak Hong (2004) 7 HKCFAR 70, §4 for the aggregation principle in respect of adverse possession).

41.  Further, it is not disputed that since the Defendants and their family took possession of the Land as licensees of the Government, the Government is treated as being in possession (see para 27 above, principle (6)).

42.  Hence, the issue is whether the Government was in possession of the Land with the requisite intention.  The fact that the Government was under a mistake about the ownership of the Land is abundantly clear from the evidence.  So is the fact that the Government does not dispute the Plaintiffs’ title to the Land.  Unfortunately, that does not stop the Defendants from making an adverse possession claim here. 

43.  The legal analysis should begin with the Privy Council authority of Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232.  The facts of that case were quite similar to those before this court.  In that case, the plaintiffs were the registered owners of the land held under a Crown lease.  The defendant went into occupation of the land in about 1955.  In 1961, he was granted a Crown permit which entitled him to occupy the land and to erect buildings.  The plaintiffs were unaware of the permit which was cancelled in 1988 when the Crown discovered that the land was in private ownership.  No communication took place between the Crown and the plaintiffs.  The defendant continued to occupy the land and in 1990 the plaintiffs brought an action to recover possession from him.  It should be pointed out that the issue in that case was whether an arguable ground of defence had been made out by the defendant. 

44.  The Privy Council held at 1235F-1236D that :

“For the purposes of limitation, therefore, possession from 1961 must be regarded as having been in the Crown, which possessed through its licensee, the defendant. Was that possession adverse to the plaintiffs? Their Lordships consider that it was. … The fact that the Crown was also the grantor of the lease under which the plaintiffs were entitled to the land is irrelevant. … Adverse possession is … ‘possession as of wrong’. Thus the grant of the Crown land permit transferred possession to the Crown but did not stop the running of the limitation period.

…

… Their Lordships consider, however, that, in cancelling the permit, the Crown did no more than to renounce, as between itself and the defendant, its right to license the defendant to occupy and therefore to take the benefit of the defendant’s possession. This could not rewrite the history of the past 17 years when the Crown had been in possession. Nor did it amount to a conveyance to the plaintiffs of the Crown’s title or an acknowledgment of the plaintiff’s title for the purposes of sections 23(1)(a) and 24 of the Ordinance.

…

It therefore appears to their Lordships that, on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiff’s title was extinguished in about 1975.  To all outward appearances, there was no change in possession throughout the period and the licensing arrangements between the defendant and a third party, the Crown, did not affect the adverse nature of the possession as against the plaintiffs.  At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years.  But this does not matter …”

45.  Sze To Chun Keung was considered by the Court of Appeal (CA) in Tsang Foo Keung, supra.  In that case, the squatters resisted the paper title holders’ claim on the ground that their title had been extinguished by reason of the adverse possession of the 1^st defendant’s parents who occupied the land in question under a hawker licence granted by the Government.  In the appeal, there was an alternative case advanced by the 1^st defendant that the plaintiffs’ title was defeated by the adverse possession by the Government through those parents.

46.  In respect of the alternative case, after referring to Sze To Chun Keung, the CA held at para 3.5 :

“The alternative case was not pleaded by the 1^st defendant nor advanced in the court below. The difficulty with the 1^st defendant’s alternative case is that he assumed that the long occupation by the Government must necessarily be in the nature of an adverse possession. This is clearly a factual issue. In my view the present case is different from Sze To Chun Keung. When the Judicial Committee discussed the adverse possession by the Crown, it was addressing it in the context of whether the proposed amendment disclosed an arguable defence. The long-standing practice of the Government about recognizing the rights of private land owners, cited by Keith J in Wu Chee Ling, at the very least, refuted any intention by the Government to dispossess the paper title owner. In addition there was correspondence in this case between the Government and the parties which had not been examined by the Judge which may also refute any such an intention.”

[Emphasis added]

47.  The relevant ratio of Tsang Foo Keung is that it is a matter of finding of fact by the court on the intention of the Government occupier, and that the Government’s recognition of the rights of private land owners is relevant for that exercise. 

48.  This is the exercise I now turn.  I have no doubt that, had it not been for the mistaken belief by the Government that the Land was Government land, no licence would have been granted by the Government over it.  The evidence and inference that the Government fully respects the Plaintiffs’ rights as paper title holders is not really open to debate. 

49.  On the other hand, the manner in which the Government was dealing with the Land reflects the fact that it was exercising all the power it had over any Government land.  Plainly, the exercise of such power was intentional.  There can be little doubt that the Government had every intention to exclude any person who was on the Land without its expressed or implied permission.  This can only be consistent with the requisite animus possidendi.  Such finding is supported by the authority of Cheung Yat Fuk, supra (a case where a squatter made a claim of adverse possession against the registered owner of land through the physical occupation by his tenant), at 74I-J and 77D-F (see also 75F-J) :

“The granting of a tenancy by a squatter is at least as much an act done in the assumed character of owner as the granting of a licence by a squatter.

…

I turn finally to the decision of the Court of Appeal of Singapore in Soon Peng Yam v Maimon bte Ahmad [1996] 2 SLR 609. … (at p 615E-F):

It is clear to us that a possessor need not personally be in occupation of the land to be in factual possession or to have the requisite animus possidendi.  … This clearly contemplates physical possession but it certainly encompasses much more.  It is the exercise of acts of ownership which is crucial.  Receipt of rent or grant of licence in respect of the property by the respondent would be an act of ownership which is adverse to the title of the club.”

50.  Despite the valiant efforts by Mr Ng, I cannot see how it can be said that the Government had no intention to possess the Land.  Mr Ng’s submission, in effect, is that the mistake on the part of the Government had negatived such intention.  I am unable to agree.  It is against a number of authorities, from both Hong Kong and England.

51.  I first refer to Wong Luen Chun v Secretary For Justice [1998] 4 HKC 122 at 129C-H, per Barnett J :

“Mr Law submitted that if the second plaintiff acted on the assumption that he or his family owned the land he could not at the same time have had an intention to dispossess the owners. That argument was disposed of by the English Court of Appeal in Hughes v Cork (14 February 1994, unreported). At p 7 of that decision Beldam LJ who gave the leading judgment said:

The fallacy in Mr Downey’s argument lies in the failure to distinguish between an intention to possess, which is required, and an intention to dispossess which is not.

Mr Law’s submission, of course, was essentially the same as that of Mr Downey. The position was explained by Saville LJ in his short judgment at p. 10.

The learned Judge appears to have held that it is impossible for someone who believes himself to be the true owner to acquire title by adverse possession since such a person cannot, ex-hypothesi, have an intention to exclude or oust the true owner. If this were the law then only those who knew they were trespassing, that is to say doing something illegal, could acquire such a title, while those who did not realize that they were doing anything wrong would acquire no rights at all. I can see no reason why, as a matter of justice or common sense, the former but not the latter should be able to acquire title in this way. What the law requires is factual possession ie: an exclusive dealing with the land as an occupying owner might be expected to deal with it, together with a manifested intention to treat the land as belonging to the possessor to the exclusion of everyone else.

Obviously if the possessor knows or believes someone else has the paper title to the land he must intend to exclude that person along with everyone else.  But in the absence of such knowledge or belief it is in my judgment sufficient for this part of the second requirement simply to establish a manifest intention to exclude everyone.”

52.  Roberts v Swangrove Estates Ltd [2008] Ch 439 concerned a case where the Crown made a claim for adverse possession against its subjects.  Mummery LJ held at page 459D-F :

“… it is obvious that it is possible for a person who (albeit mistakenly) believes himself to be the true owner to have the requisite intention to exclude others and to acquire title by adverse possession. Adverse possession is not confined only to those who think or know that they are trespassing on someone else’s land. All that matters for limitation purposes is that the person claiming adverse possession is in factual possession together with an intention to exclude everyone else. There is no sensible reason why a person who mistakenly believes that he is the true owner of land and behaves accordingly should be denied the benefit of a limitation defence, which is available to a person who commits the wrong of taking and retaining possession of land which he knows belongs to another person.”

53.  In Topwell Corporation Ltd v Kwan Kam Kee, CACV 88 of 2013 (21 May 2013), giving the judgment of the CA, Kwan JA held at §24 :

“A squatter may still validly establish a claim of adverse possession even though he had acted in the honest but mistakenly belief that the subject property was in fact his …”

54.  Finally, the CA in Cheung Kwong Yuen v Sun Hui Fang [2016] 1 HKLRD 464 at §§11 to 13 affirmed the law as stated in Hughes v Cork (see para 51 above) :

“Whether a squatter could establish factual possession and the requisite intention for the purpose of adverse possession is a question of fact depending on the circumstances of the case. There is no rule of law that these elements cannot be established for a person who mistakenly believes that he has good title or that he is a lawful tenant and does not realise he is trespassing on another’s land. As stated by Lord Hope in JA Pye (Oxford) Ltd v Graham [2000] Ch 676 at [69], the use of the term “adverse” in this context is a convenient label only, in recognition simply of the fact that the possession is adverse to the interests of the paper owner. The right of action of the paper owner is treated as accruing as soon as the land is in the possession of some other person in whose favour the limitation period can run. In that sense, and for that purpose, the other person’s possession is adverse to his. But the question whether that other person is in fact in possession of the land is a separate question on which the word “adverse” casts no light.

Ms Pauline Leung, counsel for the registered owner, accepted on appeal that there is no principle of law by which a person who mistakenly claims to be the lawful tenant or purchaser would be precluded from invoking adverse possession and that the correct position is as stated by Saville LJ in Hughes v Cork [1994] EG 25 (CS) …

The law as stated in in Hughes v Cork has been applied in a number of cases of first instance in Hong Kong …”

55.  Finally, it should be noted that in Tsang Foo Keung, the CA was dealing with a case where it was argued that the Government was in possession of private land by reason of its granting of hawker licence (see Tsang Foo Keung, §3.6).  That is very different to the present case where the Permits allowed the Permittees to occupy the land (see also §8 where Yuen JA drew a distinction between these 2 types of licences). 

56.  In the premises, subject to the remaining 2 issues, I hold that the Plaintiffs’ rights as paper title holders of the Land had been extinguished prior to the commencement of these proceedings.

The area possessed by the Defendants

57.  The Plaintiffs are entitled to put the Defendants, who bear the burden of proof, to prove the area under their possession.  However, their evidence[5] in this regard was not subjected to any challenge, save it was put to some of the defence witnesses that no fence or boundary wall was built on the Land before 1989.  With the exception of the 1^st Defendant’s mother (Sung) who agreed with the suggestion, it was denied by the witnesses. 

58.  Mr Ng made 2 points here, namely: (i) there are variations between the areas stated in the Permits and the areas occupied by the Defendants as shown in Plan A; and (ii) the Defendants have failed to prove whether the structures they occupied had been moved over the years and where the boundaries of their occupied land lie.  With respect, I am unable to find merit in these arguments.

59.  Before dealing with the arguments, it should not be overlooked that the occupation here is that by the Government, which possessed the Land through its Permittees (see para 44 above).  Secondly, the Land is not very big in size[6], and for many years it has been occupied by 4 families, 2 of which[7] are related.  These families grew in size over the years. 

60.  Apart from living on the Land, some farming was carried out and livestock were raised by some of the occupants in the past. The 2^nd Defendant’s father ran a stone factory at the place his family occupied from 1986 to about 1992 when he passed away.  It was probably for the production of headstones used at the cemetery nearby. Likewise, the 4^th Defendant’s godfather ran a stone factory at his place, which was succeeded in about 1984 by another stone factory established by the 4^th Defendant and his friends (on the same location). 

61.  The agreed expert evidence is that settlement on the land occupied by the 3^rd and 4^th Defendants (on the southern portion in the case of the latter) first started in 1956.  In respect of the land occupied by the other two Defendants, it was started in 1961.  Further, based on HC’s evidence of the aerial photographs and survey sheets, which was agreed by TC, from at the latest 1963 to 1983 there was no noticeable change in occupation on the Land.  That is sufficient length of adverse possession to defeat the Plaintiffs’ title (of course the occupation continued).  These evidence are consistent with the Defendants’ evidence and go a long way to defeating the Plaintiffs’ arguments.

62.  As regards any change of individual areas occupied by the Defendants, common sense dictates that it is hardly surprising for them to have expanded the land they occupied to accommodate their needs. 

63.  On the question of boundary, all the Defendants, including Sung, referred to the fencing of their occupied land.  This is, again, unsurprising given the nature of the occupation.  Sung referred to the need for fences to keep the wild lives away from her home.  Looking at the totality of the evidence, I doubt whether she had understood correctly the question put to her when she agreed in cross-examination that there was no fence or boundary wall built before 1989. 

64.  The expert evidence is that fence and wall system could not be seen from the aerial photographs before 1990.  Firstly, there is a possibility that wire mesh fences (which were used on the land occupied by the 4^th Defendant[8]) might not be visible from such photographs.  Secondly, the absence of fences (if that be the case) is not conclusive on either the fact of possession or the intention to possess (see Gotland Enterprises Ltd v Kwok Chi Yau, CACV 260/2014 (19 January 2016), §§36-37).  Given the circumstances highlighted in paras 59 to 63 above, there is no reason to doubt the Defendants’ evidence on the existence of fencing, and that the land identified in Plan A had been occupied by the Government’s through its Permittees since not later than early 1960s.

65.  In respect of the northern portion of the land occupied by the 4^th Defendant, there is no reason to doubt his evidence that he had built the foundation for the temporary structure standing on that part of the land before this action was instituted (2000).  Bearing in mind also my acceptance of his evidence that there were all along wire mesh fences at the boundary of the land he occupied, there is no reason for different treatment in respect of the land occupied by him. 

66.  Finally, on Plan A, there is a small portion of the Land which has not been identified as occupied by the Defendants.  From a visual estimate, it is less than 10% of the total area.  Part of the “unoccupied” land is in fact a paved footpath, which obviously has been used by the 4 families and possessed by the Government through them.  If the footpath is discounted, the “unoccupied” area is de minimis.  There is no good reason to distinguish that rather small area[9] as falling outside the Government’s possession (see also Powell v McFarlane (1977) 39 P&CR 452 at 471).

Estoppel

67.  In their pleading, the Plaintiffs rely on a case of estoppel by representation against the Government (which would prevent it from denying the Plaintiffs’ title to the Land).  The legal requirements for the same are well-established.  Three elements have to be proved by the Plaintiffs: representation, reliance and detriment (see Adverse Possession, Jourdan & Radley-Gardner, 2^nd edn, §§19-23 and 19-24).

68.  I regret to say that there is a good deal of indiscriminate deployment of this principle by legal practitioners.  This case is an example of it and the argument has no substance.

69.  With respect, the argument should have been abandoned, at the latest, when the Plaintiffs had sight of the Defendants’ written opening submissions which exposed the fragilities of the argument and to which the Plaintiffs have no answer.  It is quite wrong for the Plaintiffs to adopt a happy-go-lucky attitude to litigation.  Such an attitude results in costs inflation and wastage of the court’s resources to the prejudice of other court users.  Those advising the Plaintiffs should have informed them about the lack of merit in the argument in order to, inter alia, fulfill their responsibilities under O 1A, r 3 of the Rules of the High Court.  Henceforth, the court must look at this kind of situation critically so as to give effect to the Civil Justice Reform.  Persistence in running an unarguable case or the failure by the professionals in discharging their duties may result in costs sanctions.

70.  As submitted by Mr Szeto, the Government was at all material times acting under a mistake that the Land was Government land. Save for possibly a letter dated 24 January 2002 from the District Lands Office to the Plaintiffs’ solicitors[10], the Government has never denied the Plaintiffs’ title to the Land.  It is therefore superfluous to advance an estoppel argument. 

71.  Apart from the force of Mr Szeto’s criticisms of the inadequacy of the pleas on the alleged estoppel, I am unable to see how the averments pleaded in paras 4A, 5, 7, 7A, 7C, 17, 17A and 17B of the Amended Reply and Amended Defence to Amended Counterclaim can support an estoppel.  For instance, the Government’s acceptance of the Plaintiffs’ applications for building small houses was a matter of their status as male indigenous villagers, and the payments by the Plaintiffs of Crown/Government rent over the years was a matter of their obligations. 

72.  There can be little doubt that the Plaintiffs conducted themselves as owners of the Land not because of any representation by the Government but their knowledge and belief that they were such owners.

Possessory title

73.  As indicated above, the Plaintiffs’ title in question had long been extinguished.  On the other hand, I see no good justification to grant a declaration that the Defendants have acquired possessory title over the Land.  It is an opportunistic case.  A licensee can have no reasonable expectation of acquiring such a title by virtue of his occupation of land as a licensee.  It must be noted that the Defendants had refused the Government’s suggestion to re-house them so that the Land can be returned to the Plaintiff.

74.  Further, on the face of the evidence, it is the Government who has acquired the possessory title.  For reason better known to the Plaintiffs, they have chosen to sue the Government in a separate action. The matter cannot be taken further in the absence of the Government’s participation.  Indeed, it should be said that the Government has every interest to be heard on the issue of possessory title in light of its liability to compensate the Plaintiffs under the Action.  It is conceivable that the Government may have the Plaintiff’s title to the Land restored to mitigate its exposure on damages. 

Conclusions

75.  For the above reasons, I dismiss the Plaintiffs’ action.  I grant a declaration that their title to the Land had been extinguished by virtue of the provisions of the Act before the commencement of these proceedings on 7 August 2000.  I make an order nisi that the costs of these proceedings, including the Counterclaim, be to the Defendants, to be taxed if not agreed.

76.  In light of the Government’s interest in these matters, I direct that a copy of this judgment be sent to the Department of Justice.

77.  Last but not least, I am grateful to counsel for their assistance.