VIEW MAX INVESTMENT LTD v. 李萬康 AND OTHERS

DCMP 1286/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1286 OF 2014

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JUDGMENT

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Introduction

1.  This case concerns 5 pieces of land in Yuen Long, known as Lot 2129, Lot 2130, Lot 2136, Lot 2137 and Lot 2195 in Demarcation District 118, Yuen Long, New Territories (“the disputed land”).

The plaintiff’s case

2.  The plaintiff’s case is simple.  The plaintiff said the disputed land were acquired on 16 April 2013 and 4 November 2013 respectively.  The plaintiff has never granted or given any tenancy, licence or consent to the defendants to occupy the disputed land.

The defendants’ case

3.  The 4^th defendant (“D4”) and the 5^th defendant (“D5”) are husband and wife.  The 1^st defendant (“D1”), 2^nd defendant (“D2”), 6^th defendant (“D6”) and 7^th defendant (“D7”) are their children.  In addition, there are 3 other daughters.

4.  D4 became one of the registered co-owners of Lot 2126, Lot 2127, Lot 2196 and Lot 2200 in Demarcation District 118 (“the defendants’ land”).

5.  Lot 2126 and Lot 2127 are adjacent to each other and Lot 2126 is adjacent to the northern side of Lot 2129.

6.  Lot 2196 and Lot 2200 are adjacent to each other and Lot 2196 is adjacent to the eastern side of Lot 2195.

7.  D4 removed the weed on Lot 2195 from about 1981 and started to reside in a house built thereon from 1982.  D5 and the children of the family moved into the house from about 1982 and 1983.  D4 and his elder brother also built a driveway on Lot 2195 from the north-western boundary to the southern end.  In about 2001, D4 and D5 built a concrete driveway on Lot 2195.

8.  Since 1982 or 1983, D4 and D5 occupied Lot 2129, 2130, 2136, 2137 together with Lot 2133, Lot 2135, Lot 2191 and Lot 2194 for farming.  They also raised chicks and later pigs on Lot 2196 and Lot 2200 until about 1990 to 1991.  A house built on Lot 2196 and Lot 2200 was used for the storage of feeds for their farm before it was used as their residence.  They used Lot 2195 as their front yard where they had grown fruit trees, placed a swings for the children, parked cars and used as a storage area.

9.  Since 1997, D4, D5 and their children had occupied and used a shed built on Lot 2126 and Lot 2127 for storage purpose.  Part of the shed extended onto Lot 2129.  Between about 2003 and 2010, the shed was let out for rental income for D5.  In about 2012, the shed was converted into a residential house for D4, D5 and their children.

Legal principles on adverse possession

10.  To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E.

11.  Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person …”

12.  Section 8(1) of LO provides:-

“(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

13.  Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33.

14.  Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

15.  Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control.  It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly.  Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.  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.  In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion.  “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce.  It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole.  Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think 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.”

16.  Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“… What is really meant, in my judgment, is that the animus possidendi 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 processes of the law will allow … The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner … A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass … In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner … I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

Issues

17.  The following issues are for the determination by this trial:-

(1) whether the defendants have acquired possession of the disputed land;

(2) whether the defendants have the animus possidendi or requisite intention to possess; and

(3) whether the plaintiff is entitled to mesne profits and if so how much.

Whether the defendants have acquired possession of the disputed land?

18.  It is more convenient to consider the lots forming the disputed land separately.

19.  The evidence adduced by the defendants on the issues of factual possession and animus possidendi came from D6, who was born in 1984.  She has been residing on the disputed land since birth.  Her evidence also included the information she gathered from D4 and D5.

Lot 2195

20.  According to D6, when D4 came to Hong Kong in 1979, he resided in a small house on Lot 2195 together with his elder brother.  After D5 came to Hong Kong in 1982, D4 and D5 resided in a 2-storey stone house built on Lot 2200.  In 1987 or 1988, a small house was built on Lot 2195 for the storage of feeds.

21.  D6 said Lot 2195 was used by her family exclusively.  It was the passageway to the main road.  Her uncle’s family was permitted to pass through Lot 2195 by D5.  No one else would go into Lot 2195.  But D5 did not allow them to place anything on Lot 2195.  Before 2000, her family used to keep several dogs for the purpose of home security.  Those dogs were kept on Lot 2195.  They would bark at any strangers entering the lot.  In or about 2000, the defendants paved cement on the passageway on Lot 2195.

22.  In her supplemental witness statement, D6 added that in 1987, wire mesh fence and an iron gate were already erected at the entrance of her home which were on Lot 2195.  However, they were not shown in the topographic maps in the years of 1989, 1999 and 2003 but only shown in the one in 2013.  She produced a photograph, at page 188 of bundle 2 (“the iron gate photograph”), which she said was taken around 2000 at the said entrance, wherein a wire mesh fence and an iron gate can be seen in the background.

23.  The Court of Appeal in Gotland Enterprises Ltd v Kwok Chi Yau and others, CACV 260/2014, 19/1/2016, unreported, had this to say:-

“36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to   establish exclusive occupation, this is the classic way of doing so.  In the absence   of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”

24.  Therefore, the steps that have been taken by the defendants to exclude others from Lot 2195 have to be considered.

25.  Fencing off the land is strong evidence of exclusive possession.  In this connection, D6 said her family had put up a wire mesh fence with an iron gate on a portion of Lot 2195 on the western side of Lot 2196 as early as 1987.  The iron gate photograph was relied on by the defendants as evidence of their existence in the year of 2000, presumably for the purpose of rebutting the landscape features as depicted by the topographic maps in the years of 1989, 1999 and 2003, wherein those features did not appear.

26.  It is indisputable that a fence with a gate and a structure first appeared in the middle part of Lot 2195 in the topographic map in the year of 2013.

27.  Looking at the Survey Sheets in the years of 1983, 1989, 1999, 2003, 2006, 2008, 2009, 2010, 2011, 2013 and 2014, those features first appeared in the Survey Sheet dated 14 September 2010.

28.  Mr Leung Shou Chun, the expert engaged by the defendants, however, opined that the said fence and gate were found in the aerial photograph dated 25 October 1997.  Mr Leung based his finding on an object that appeared as a short black oblique line therein.  Upon comparison with the 2010 Survey Sheet and the up-to-date site plan dated July 2015, he concluded that it should be the gate of the entrance to the yard area of the structures erected on the defendants’ Lots 2196 and 2200.

29.  Mr Leung’s view is that the survey sheets failed to show the up-to-date situations.  He said some features may take several to over 10 years to update or even no update at all.  The Survey Sheet may not show minor and flimsy features comprehensively.  He therefore expressed his opinion based on the aerial photographs.  The survey sheets were used as supplemental evidence as they represented the on-site interpretations by the surveyors and their generalized simple lines and symbols provided a clear view of the complex features.

30.  Mr Leung said as the Survey Sheet may not show minor and flimsy features comprehensively.  He was of the opinion that the idea expressed by D6 in her supplemental statement dated 1 December 2015 on the discrepancy of the fence situation as known by the Li family and that shown on the survey sheets might be plausible.

31.  In her supplemental witness statement at paragraph 3, D6 said that between 1983 and the end of 2012, the land outside the wire mesh fence on the west of Lots 2129, 2130, 2131, 2136 and 2137 were full of weed as tall as 2 metres.  Therefore, the government surveyors could not observe the wire mesh fence thereat.  Further, D5 had erected a gate at the north of Lot 2127.  Government surveyors could not go in and observe the geographical features thereat.  Sometime around 1997 and 1998, D5 built a surrounding wall on Lots 2126, 2127 and 2129, government surveyors could not go in to make observation.  In 2003, there was a suspected case of trespassing in government land.  Government surveyors entered into Lots 2126 and 2127 for inspection.  They could observe the geographical features on south-eastern side therefrom.  Finally, she said between 1983 and 1989, government surveyors could observe the geographical features of Lot 2190 from the track on Lot 2195.

32.  On the other hand, Mr Tang Sze Kin, Eric, the expert engaged by the plaintiff, made no finding of the gate upon examination of the aerial photograph dated 29 October 1997.  As a matter of fact, he made no finding of the gate upon examination of the aerial photograph dated 3 May 2010 either.

33.  The basis of Mr Leung’s finding of the existence of a gate on Lot 2195 in 1997 is that a short black oblique line is seen in the aerial photograph of that year.  His conclusion was reached after comparing with the 2010 Survey Sheet and the up-to-date site plan dated July 2015.

34.  I think the mere appearance of the short black oblique line is inconclusive that it was a gate on the ground for the obvious reason that the aerial photograph was taken at a few thousand feet above the ground.  Naturally, Mr Leung has to look for supplementary evidence as an aid in order to make a finding.

35.  With respect, however, the use of the 2010 Survey Sheet and updated site plan which were made 13 and 18 years later is unsafe and unsatisfactory.  Although Mr Leung maintained that it may take several or over 10 years to update the survey sheets or even no update at all, it does not follow that this is the case here. Indeed, Mr Leung has not demonstrated that despite a lapse of 13 years, it is still safe to rely on the 2010 Survey Sheet.

36.  The aerial photograph dated 20 August 2008 shows that a rectangular structure (“rectangular structure”) first appeared in the middle part of Lot 2195, which seemed to have extended from a structure on Lot 2196.  This rectangular structure was not depicted in the survey sheets dated 6 March 2008 and 11 February 2009 but first appeared in the survey sheet dated 14 September 2010.  In the 2010 survey sheet, a wire mesh fence with a gate was depicted as connecting to the to the outer boundary of the rectangular structure on Lot 2195.  It seems clear that although updating of the survey sheets were lagging in time, it was to the extent of 2 years only.  It was depicted in the 2010 Survey Sheet that the fence and gate were connected to the outer boundary of the rectangular structure, which of course is the function of the fence and gate.  It is more likely than not that the fence and gate were erected at the time the rectangular structure was built in 2008 or thereafter but not vice versa.

37.  D6 maintained that the fence and gate were erected in 1987, which of course is inconsistent with the finding of Mr Leung.

38.  Not only that.  I find the iron gate photograph the defendants are relying on to prove that the fence and gate were in existence in the year of 2000 sceptical.  At the background of the photograph, one can see an iron gate on the right hand side and a wire mesh fence which stretched from the pillar supporting the iron gate covered the rest of the background.  The pillar is made of cement.  D6 testified that she was the girl standing in the middle and the photograph was taken from the inside with their backs facing the iron gate and hence towards the track on Lot 2195.

39.  According to D6, the photograph at page 308 of bundle 3 was taken at the same location but from the other side of the iron gate.  In this photograph, however, the pillar that was supporting the gate was an iron bar and the wire mesh fence was attached to another iron bar.  They were not attached to a cement pillar as in the iron gate photograph.  Further, there was a green coloured iron pole standing next to the two supporting pillars which did not appear in the iron gate photograph.  The defendants have not led evidence to explain for the discrepancies.  I am not convinced that the iron gate photograph was taken at the location as claimed by D6.

40.  For the above reasons, I reject the claim of the defendants that the fence and gate were erected on Lot 2195 in 1987.  I also reject Mr Leung’s finding that they were erected in 1997.  I find as a fact that they were erected on Lot 2195 together with the rectangular structure in 2008.

41.  The defendants are alleging that Lot 2195 was used by her family exclusively.  It was the passageway to the main road.  Her uncle’s family was permitted to pass through Lot 2195 by D5.  No one else would go into Lot 2195.  But D5 did not allow them to place anything on Lot 2195.  Before 2000, her family used to keep several dogs for the purpose of home security.  Those dogs were kept on Lot 2195.  They would bark at any strangers entering the lot. In or about 2000, the defendants paved cement on the passageway on Lot 2195.

42.  It is the defendants’ case that since D5 came to Hong Kong in 1982, the couple moved to live in the ground floor of the stone house built on Lot 2200 whereas the elder brother of D4 (“D4’s brother”) lived in the floor thereabove.  That being the situation, as far as the use of Lot 2195 as passageway or the placing of personal objects thereon is concerned, both families were on equal footing.  D5 had no right to stop D4’s brother from using Lot 2195, be it for the purpose of passing through or placing of personal objects.  Even if D5 had attempted to stop D4’s brother from using Lot 2195, it must have been met with strong protest for the obvious reason that Lot 2195 belonged to neither of them.  In any event, such claim is only the words of mouth of D6.  Therefore, I do not find it credible.

43.  In my view, the keeping of dogs is no proof that the defendants had asserted their right of possession on Lot 2195.  Dogs may show aggression to people entering into what they conceived as their territory.  However, their conceived territory cannot be equated with the boundary of Lot 2195.  Their presence on Lot 2195 cannot be regarded as stopping people from entering into the lot.  In my view, therefore, the keeping of dogs on Lot 2195 is no more than making use of the land for that purpose but short of asserting a right of possession to the land.

44.  Finally, paving the passageway on Lot 2195 with cement is for the enjoyment of the defendants only.  Such act cannot be regarded as step taken to exclude other people from the land.

45.  By reasons of the foregoing, I am unable to find that the defendants have established factual possession in respect of Lot 2195.

Lots 2130, 2136 and 2137

46.  Lots 2129, 2130, 2131, 2133, 2134, 2135, 2316, 2137 and 2191 are adjacent to each other.  Together with a strip of government land between Lots 2130 and 2191, they form a big piece of land.

47.  D6 said in or about 1983, one Mr Pang (“Mr Pang”) who used to live in a house on Lot 2135 and grew vegetables in the vicinity decided to cease farming thereat.  He handed over his house and farmland to D5.  D5 then commenced growing vegetables in the vicinity.  She also began to build wire mesh fence along the river in order to prevent wild dogs and boars.  The fencing was gradually extended up to 2000.  According to annexure 4 attached to D6’s witness statement (“annexure 4”), as at 2000, the fencing has surrounded a big piece of land including Lots 2129, 2130, 2131, 2133, 2134, 2135, 2136, 2137, 2191 and a strip of government land between Lots 2130 and 2191.  Around 1997, D5 gradually built walls and goods storage on Lots 2126, 2127 and 2129.  Before that, the north of Lots 2126 and 2127 and the west side of Lots 2131 and 2130 were full of tall and thick weed.

48.  D6 said the depictions of the fence in the topographic maps for the years of 1989 and 1999 were inaccurate because from the aerial photograph in the year of 1995, sign of cultivation can been seen on Lot 2130.  She claimed that the fence must have extended to cover Lot 2130.

49.  D6 said according to D5, prior to April 1983, Lots 2136, 2137 and 2190 were possessed by Mr Pang.  He had built wire mesh fence surrounding the land wherein he did his farming.  After D5 took over the land from Mr Pang, she dismantled part of the wire mesh fence and gradually extend the fencing with corrugated iron sheets and chicken wire mesh to cover Lots 2129, 2130, 2131, 2133, 2134, 2135, 2136, 2137, 2191 and a strip of government land between lots 2130 and 2191.

50.  At paragraph 3 of her supplemental witness statement[1], D6 put forward her reasons for the inaccuracy of the topographic maps.

51.  It is the defendant’s case that D5 grew vegetables on Lots 2129, 2130, 2131, 2133, 2134, 2135, 2136, 2137 and 2191 (collectively “the vegetable farm”) until the birth of D1 in November 1985.  But Lots 2129, 2130, 2131, 2136 and 2137 were still surrounded with corrugated iron sheets and wire mesh fence and were possessed by D4 and D5.  The situation continued until the birth of D2 in October 1987.  Later, D5 started to grow vegetables again in the vegetable farm for the consumption of the family including papaya, wolfberry, grapefruit tree, orange tree, banana tree, peach tree, sweet potato leaves and ginger.  Between 1992 and 1993, D5 grew wolfberry, Chinese cabbage, cabbage or choy sum, Chinese lettuce, Chinese long bean, spinach, Indian lettuce, coriander, water spinach or tung choi, papaya and sweet potato leaves for sale by hawking.  But she stopped doing so after she was arrested by hawkers control several times.  However, the family continued to grow all kinds of vegetables and fruits in the vegetable farm from 1983 to present.  D5 also reared chicken there.

52.  In 1998 or 1999, most part of Lot 2129 was used by D5 for storage of miscellaneous items.  Between 2003 and 2004, D5 rented out the storage house built on Lots 2126, 2127 and 2129 (“the storage house”) to a male for rearing dogs.  Between 2004 and 2010, D5 rented out the storage house to another male.  In 2006, D1 applied for electricity supply to the storage house.

53.  In 2006, D5 moved the fish pond from Lot 2191 to Lot 2130.  In 2012, D5 again moved the fish pond from 2130 to Lot 2136. In 2013, D5 filled the fish pond in Lot 2130 with soil.

54.  It is the defendants’ case that when D5 took over the land from Mr Pang in 1983, the land was already surrounded by fence which formed a closed circle, as indicated in annexure 4.  It is worth remembering that the enclosed area includes Lots 2129, 2130, 2131, 2133, 2134, 2135, 2136, 2137, 2191 and a strip of government land between Lots 2130 and 2191.  The defendants also claim that D5 gradually enlarged the fence.  In the result, as at 2000, the enlarged fence formed another closed circle which, as shown in annexure 4, is in fact similar in shape to the original fence but somewhat reduced in size on the east side.

55.  However, none of the survey sheets for the years of 1983, 1989, 1999, 2003, 2006, 2008, 2009, 2010, 2011, 2013 and 2014 shows that there has ever been an enclosed fence as such.

56.  From the above survey sheets, one can discern the following evolution of fences:-

(1) The shape of the fence had largely remained the same from 1983 to 1999.

(2) The fence that was depicted in the 1983 Survey Sheet   commenced from a point to the south of Lot 2137 and travelled north-westward, then cut across Lot 2136 along its boundary in the north-eastern direction up to the north of Lot 2133, and then made a u-turn ending at the southern tip of Lot 2195 (“Fence A”).  In other words, it was a U-shape fence enclosing Lots 2137,   2135, 2136, 2133 but not the other lots as claimed by D6 on behalf of D5.

(3) In the 1989 Survey Sheet, the fence was cut short and ended at a point to the south of Lot 2191 (“Fence B”).

(4) The 2003 Survey Sheet shows that 2 new fences were built to the    north of the old fence.  The first one commenced from the south-western side of Lot 2195    and travelled north-westward stopping at the south-eastern side of Lot 2129 (“Fence C”).

(5) The other one was a U-shape fence enclosing Lot 2127 on its north-eastern side (“Fence D”).  Fence D had reduced in size from the 2006 Survey Sheet onwards.

(6) Another fence (“Fence E”) was seen in the 2008 Survey Sheet.  It appears that it was built within the boundary of Lot 2134 stretching from south to north.

(7) The 2010 Survey Sheet shows Fence E was re-positioned in that its southern end commenced at the southern end of Lot 2133 but ended at the same point of Fence E (“Fence F”).  A fence was built along the river on the west side, which started from Lot 2135 cutting across Lot 2136 and then travelled northward up to the south-west side of Lot 2129 (“Fence G”).  In the same survey sheet, it can be seen that a stretch of Fence B had disappeared.

(8) Finally, a new fence (“Fence H”) is seen in the 2014 Survey Sheet which commenced from Lot 2135, travelled north-eastward into Lot 2133 and ended at the south of Lot 2191.  Further, the northern end of Fence B was cut short by half.

57.  The fencing as revealed by the survey sheets is very different from the picture painted by the defendants.  Firstly, there is no closed circle fence at all times.  Secondly, Fence A only enclosed Lots 2137, 2135, 2136, 2133 with a wide opening facing the south-east.  Thirdly, the fences scattered in different parts of the vegetable farm and were not connected to each other.

58.  In relation to the appearance of Fence G in the 2010 Survey Sheet, D6 guessed that the government surveyors observed from a footpath at the south-west side of the survey sheet.  In 2008, the river bank by the side of Lot 2130 was full of weed.  Therefore, the view of the fence thereat was obscured.  In 2010, D5 removed the weed thereat, the fence along the river bank by the side of Lot 2130 could be seen and was therefore recorded in the 2010 Survey Sheet.

59.  It is immediately apparent that D6 has contradicted herself because at paragraph 3 of her supplemental witness statement, she said between 1983 and the end of 2012, the land outside the wire mesh fence on the west of Lots 2129, 2130, 2131, 2136 and 2137 were full of weed as tall as 2 metres.  She said the government surveyors could not observe the wire mesh fence thereat.

60.  Further, it seems to me that the explanation put forward by D6 is tailor-made to suit the depiction of Fence G in the 2010 Survey Sheet.  Such explanation can only be valid if the survey sheets were up-to-date.  However, this is not the view of Mr Leung, who said it may take several to over 10 years to update the survey sheets or even no update at all.  I have also found that the survey sheets were behind time to the extent of 2 years only.  In this respect, Mr Tang observed that in the aerial photograph dated 1 June 2003, a structure was erected on Lot 2129.  In Mr Leung’s report, no reference was made to the aerial photograph for the year of 2003.  By referring to the aerial photograph dated 11 June 2004, he observed that a diamond shaped structure was erected over the area of Lots 2129 and 2126.  The survey sheets for the years of 2004 and 2005 were not produced by either parties.  From the available evidence before me, the said structure was not depicted in the 2003 Survey Sheet but in the 2006 Survey Sheet.  This is a clear indication that the survey sheets were consistently behind time.  Nevertheless, the depictions in the survey sheets are, and I accept, reliable.  I reject the suggestion put forward by D6 as to why Fence G only first appeared in the 2010 Survey Sheet.  I have already found that the updating of the 2010 Survey Sheet was 2 years behind time.  Therefore, I find as a fact that Fence G was built sometime in 2008.

61.  In the light of the evidence before me, I must reject the case of the defendants that there had ever been a fence enclosing the vegetable farm.

62.  D6 claimed that her parents grew all kinds of vegetables in the vegetable farm for the consumption of the family since 1983.  In other words, they all along treated the vegetable farm as their own.  To my mind, the building of fences within the vegetable farm in the course of time does not lend support to their case.  If the vegetable farm was wholly occupied by the defendants, the building of fences, which served to divide the land into different parts, made no sense at all.

63.  It should be noted that among all those fences, only Fence G was built along the alleged boundary of the vegetable farm which, as I have found, was only built in 2008.  Fence C arguably can be said to form the northern boundary of the vegetable farm but it also enclosed part of Lot 2190, which belonged to D4’s brother whom D6 said was not on good terms with D5.  Fence B, Fence E or subsequently Fence F, and Fence H were crossing each other.  They were built within the alleged boundary of the vegetable farm. Fence D was away from the vegetable farm and it has diminished in size through the passage of time.  In any event, the fences were not connected to each other forming a continuous barrier.

64.  Furthermore, the cultivation that had taken place in the vegetable farm cannot be said to be active and continuous.  According to the joint statement of the experts, the cultivation pattern of the disputed lots is as follows:-

Lot 2129

65.  No sign of cultivation was observed.

Lot 2130

66.  Cultivation was observed in 1992 and 1995. Cultivation activities was observed again in the southern part in 2001 which extended northward till 2004.  In 2013, cultivation was observed at the southern end.

Lot 2136

67.  In 2002, about 5% of the lot in the northern end became a part of the cultivation area.  In 2005, the cultivation area expanded.  In 2008, 2/3 of the northern portion became cultivation area.  In 2009, the cultivation area further expanded southward.

Lot 2137

68.  From 1981 to 1984, it was under cultivation.  In 2009, the cultivation area covered the north-eastern 3/4 portion of the lot.

69.  It is fair to say that the cultivation of the disputed lots, if at all, was sporadic and limited in scope.  Most of the time, the disputed lots were covered with weed and shrubs.

70.  Cultivation of the land is an act of deriving benefits from it.  In the present case, the farm produce from the cultivation was for the consumption of the defendants’ family.  In my view, therefore, cultivation of the land alone is not evidence of factual possession. In order to establish possession, the defendants must show to the satisfaction of the court that they have taken steps to exclude others from the disputed lots: see Gotland (supra).  However, apart from the alleged fencing of the vegetable farm which I have already rejected, the defendants have failed to show the steps that have been taken to exclude others.

71.  In her witness statement, D6 said D5 have grown all kinds of fruit trees in the vegetable farm.

72.  It is of course very convenient to say that fruit trees were being grown on the lots in disputed.  This is however self-serving and cannot be verified by the experts through the observation of the aerial photographs.

73.  In relation to the growing of fruit trees, the case of Wai Wah Traders Ltd v Wong Yim trading as Creative Advertising Design Company and others, HCMP965/2000, 8/12/2011, unreported, is relevant.  In that case, Deputy High Court Judge M Chan (as she then was) considered in depth this very issue.  In that case, the land concerned was planted with lychee trees.  It was not enclosed by fence at any time though fence was erected on the southern boundary adjoining an adjacent lot.  The trespassing defendant claimed that he and his father had cultivated the land in terms of weeding the land, trimming the trees, applying fertilizer and reaping lychees for sale.  The learned judge took the view that land in Hong Kong is and was always valuable.  It is distinguishable from the case of Cadija Unna v S Don Maris Appa [1939] AC 136, where, in Ceylon, grass was the only or main advantage accruing from the land, therefore, the cutting and selling of grass was held to be an act of possession.  The learned judge did not accept that the mere picking of lychee fruit from trees, the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, can constitute continuous and exclusive possession or control of the land.  The learned judge took the view that there should be some other act of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.

74.  I respectfully adopt the reasoning of the learned judge and likewise hold that the mere growing of fruit trees on the disputed lots is insufficient to establish possession.

75.  By reasons of the above, I hold that the defendants have failed to establish factual possession of Lots 2130, 2136 and 2137.

Lot 2129

76.  Lot 2129 requires a separate consideration.

77.  D6 said in 1998 or 1999, most part of Lot 2129 was used by D5 for storage of miscellaneous items.  Between 2003 and 2010, the storage house was rented out for rental income for D5.

78.  Both experts are of the common view that since 1999, the majority of the lot was paved and walled together with the adjoining Lots 2126 and 2127 at its north except the south-east corner of the lot was still covered by weed and shrubs.  The paved area was then turned into a storage area in 2001.  In 2003, a structure was erected on the paved area.  This structure had been renovated in 2005/2006.  In 2012, the roof of the temporary structure had been changed from gabled to flat top.

79.  D4 used to be one of the co-owners of Lots 2126 and 2127.  As Lot 2129 was paved and walled together with Lots 2126 and 2127 forming a bigger piece of paved ground, it is more likely than not that this was done by D5 as claimed byD6.  It is also highly probable that the subsequent building of the storage house was done by D5 as well.  In my view, the building of surrounding wall and the storage house are clear acts of asserting control of and excluding others from the land.

80.  As D5 utilized the 3 lots as a whole, 2 of which belonged to her husband (ie D4).  Her act as such has demonstrated that she had dealt with Lot 2129 as the occupying owner thereof since 1999.

81.  In relation to Lot 2129, I am satisfied that D5 has established factual possession to the extent of the paved area whereon the storage house was subsequently erected.  As possession must be single and I find that it was D5 who has established possession, the claim of possession by the other defendants must be rejected.

Whether the defendants have the animus possidendi or requisite intention to possess?

Lot 2195

82.  In my judgment, the use of Lot 2195 as passageway, keeping of dogs thereon and paving the passageway with cement are not demonstration of the defendants’ intention to exclude the world at large.  Such acts only show that the defendants are making use of the land.

83.  Nevertheless, the building of the rectangular structure in the middle part of Lot 2195 coupled with a mesh wire fence and gate did show the intention to exclude the world at large.  However, such intention was only exhibited in 2008 as I have found.

Lots 2130, 2136 and 2137

84.  There is no evidence as to who built Fence E, Fence F and Fence H which were situated in the middle part of the vegetable farm.  It is not the defence case that they were built by D5.  Those fences, though within the vegetable farm, were situated in Lots 2133, 2134, 2135 and 2191, which belonged to other owners.  It is probable that they were built by people other than those from the defendants’ family.  By allowing those fences to be built within the vegetable farm, to my mind, is definitely contradictory to the defendants’ alleged intention to possess.

85.  In relation to Lots 2130, 2136 and 2137, which form part of the vegetable farm, there is only evidence of sporadic farming which was limited in scope.

86.  In my judgment, cultivation and growing of fruit trees are acts of deriving benefits from the land.  They are not manifestation of an intention to exclude the world at large.

Lot 2129

87.  In my judgment, the paving of Lot 2129 together with the adjoining Lots 2126 and 2127, the building of surrounding wall, and the subsequent building of the storage house are the clearest manifestation of D5’s intention to exclude the world at large.  Such act commenced in 1999.

Whether the plaintiff is entitled to mesne profits and if so how much?

88.  With the exception of a portion of Lot 2129, the plaintiff has succeeded in its claim for possession of Lots 2130, 2136, 2137 and 2195.  The plaintiff is therefore entitled mesne profits thereof.

89.  However, no evidence is adduced by the plaintiff as to the market value of those lots although leave was given for the parties to adduce expert evidence on quantum by order of Master D Ho dated 22 May 2015.  There is no order for a split trial.

90.  That being the case, I would only award mesne profits at the nominal rate of $1 per month from the date of the statement of claim (ie 22 September 2014) to the date of vacant possession.

Alternative counterclaim of D4 and D5

91.  In the counterclaim of D4 and D5, an alternative claim is pleaded in the following terms:-

“a declaration that all the estate, right, title, interest, term and terms of years, claims and demands and all rights of way (if any), privileges, easements and appurtenances in or to the said Properties, or such extent thereof as determined by the Court, are vested jointly in the 4^th and 5^th Defendants absolutely”

92.  It is fair to say that the prayer was drafted in vague and imprecise terms.  Worse still, no fact upon which the said cliam was based was pleaded in their defence and counterclaim.  Only facts relating to the defence of adverse possession were pleaded therein.  No application for amendment to the pleadings was made by Mr Simon HW Lam, counsel for the defendants at the trial.  In his closing submission, Mr Lam only made a brief mention of this alternative claim without further elaboration on the evidence and the legal principles involved.  Mr Thomas Lai, counsel for the plaintiff, made no submission touching upon the said prayer at all.  The evidence adduced by the defendants at the trial was on the limitation defence only.

93.  It is trite that the function of pleadings is to identify the issues in dispute between the parties.  To that end, all the material facts must be pleaded.  Ma CJ in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at 672 had this to say:-

“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on the other issues: Wing Hang Bank Ltd v Crystal Jet International Ltd. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced.”

94.  The issue of easement is a question of mixed law and fact: see Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building Mongkok Kowloon (IO) [2011] 4 HKLRD 623 at para 54.  Without pleading the facts relating to the issue in the pleadings, this court is not in a position to treat it as an issue in dispute in this case.  This is so even if evidence touching upon the issue was adduced at the trial. But it is not the case here.

95.  In any event, neither D4 nor D5 has locus standi in making such claim.  They were not one of the owners of the defendants’ land.  The land search records of the defendants’ land show that D4’s interest in the defendants’ land was assigned to D1 and D2 by way of a Deed of Gift dated 12 April 2006.

Conclusion and order

96.  By reasons of the foregoing, I give judgment in favour of the plaintiff for:-

(1) vacant possession of Lots 2130, 2136, 2137, 2195 and the portion of Lot 2129 the title of which has not been extinguished by this judgment in Demarcation District No 118, Yeung Long, New Territories, Hong Kong; and

(2) mesne profits in respect of Lots 2130, 2136, 2137, 2195 and the portion of Lot 2129 the title of which has not been extinguished by this judgment in Demarcation District No 118, Yeung Long, New Territories, Hong Kong at the rate of $1 per month from 22 September 2014 to the date of delivery of possession to the plaintiff.

97.  In respect of the counterclaim, I make a declaration in favour of D5 that the plaintiff’s title to Lot 2129 in Demarcation District No 118, Yuen Long, New Territories, Hong Kong to the extent of the area depicted in Survey Sheet No 6-NE-16C dated 16 December 2014 as “TS” is extinguished.  The remaining counterclaim of D1, D2, D4, D5, D6 and D7 is dismissed.

Costs

98.  Costs should follow the event.  I make an order nisi that the defendants shall pay the plaintiff 90% of the plaintiff’s costs of this action (claim and counterclaim included), to be taxed if not agreed, with certificate for counsel.

99.  In the absence of any application by summons to vary the same within 14 days from the date of this judgment, the order nisi shall become absolute.