CHEUNG KWAN HING v. CHEUNG SIN SUN IP MING CHU

HCA 1000/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1000 OF 2014

______________

______________

_____________________

J U D G M E N T

_____________________

1.  This action is concerned with the title to part of a plot of land known as Lot 965 in Demarcation District No 107, Yuen Long in the New Territories. The plaintiff claims this on the basis of adverse possession over a period in excess of 20 years (pre-1991), alternatively 12 years (post-1991). [Limitation Ordinance, 1991, Cap 347]

2.  The plaintiff is the registered title holder of Lot 964 which is immediately adjacent to Lot 965 and is contiguous. The plan attached to this judgment illustrates the situation.

3.  The plaintiff’s uncle had originally acquired Lot 964 in November 1981 by purchase it seems from the 1^st defendant’s mother.  The plaintiff himself succeeded his uncle as title owner of Lot 964 by Letter of Succession dated 28 October 1997, the uncle having died in the 1990s but his occupation and possession is claimed to precede this.

4.  Prior to the purchase of Lot 964 by the plaintiff’s uncle in 1981 the uncle rented the lot from the 1^st defendant’s mother.  The plaintiff lived with him on Lot 964 from time to time until his uncle’s death.  By that time the former had married and he and his wife had a son.  However he continued to visit Lot 964 several times a year to keep it in good order and maintain control.

THE HISTORY OF LOT 965

5.  The 1^st defendant was the title owner of this lot from 1957.  Until the sale of Lot 964 to the plaintiff’s uncle, his parents managed both lots.  It is common ground that until that sale (in 1981) both lots were rented to the plaintiff’s uncle who was allowed by them to build a stone house on Lot 964 which stood in part on Lot 965.  The sale of Lot 964 having taken place in 1981 the plaintiff’s uncle continued to rent Lot 965 and at some time in the 1980s, after the death of his parents, the 1^st defendant waived the rental for all or part of Lot 965 and allowed the uncle to continue to occupy it and raised no objection to the encroachment of the stone house.  Sincethe stone house seems to have been acknowledged by the 1^st defendant and his parents as belonging to the plaintiff, albeit partially on Lot 965, it does not play any significant part in this dispute.

6.  The death of the plaintiff’s uncle in or about 1990 marked a turning point in the way the northern sector of Lot 965 was managed or handled.

THE PLAINTIFF’S CASE

7.  His contention is that the part of Lot 965 occupied by his uncle and his own family until the death of his uncle was always fenced, and was also walled off (by the large pigsty) from the rest of Lot 965.  When he moved away from Lot 964 and the relevant part of Lot 965, he continued to pay government rates and the rental.  The large and small pigsties which his uncle had built in or about 1970 had in part formed the boundary between that part of Lot 965 occupied by his uncle and the remainder of the Lot 965.

8.  There is a Modification of Tenancy approval dated March 1970 for the benefit of the then owners of Lots 964 and 965, Lai Ying and Cheung Siu-sang, relating to two pigsties, one larger than the other but that was mainly for the uncle who had made the application and built them.

9.  The plaintiff turned the larger pigsty into a storeroom and the smaller one into a kitchen and toilet in or about 1987. Running water was introduced in 1988 and the supply was invoiced to him thereafter.  At an earlier time he had helped his uncle lay a concrete courtyard on Lot 965 fronting the stone house.

10.  In April 2006, now some 16 years after the death of the plaintiff’s uncle (1990) and over 20 years since the plaintiff himself lived with his uncle at Lot 964 with the benefit of part of Lot 965, the plaintiff leased out Lot 964 and part of Lot 965 to the Federation of Vegetable Marketing Cooperative Societies for an initial period of two years with a renewal option for two years.  The rental was $1,000 per month.  The lease clearly identified the subject premises as Lot 964 and portion of Lot 965.  The coloured plan indicates that it was only part of Lot 965.  That is consistent with Lot 964 and part of Lot 965 being occupied and worked as a unit for some years.  The documents are unequivocal.

11.  The boundary between the leased part of Lot 965 and the remainder of the Lot 965 consisted of the wall of the old small pigsty (now kitchen/toilet), the storeroom and wire fencing.  The plaintiff had converted the pigsties.  He had arranged for the water supply in 1988 for which he paid.

12.  The lease was not renewed.  On examination the plaintiff found that the boundary fencing dividing Lot 965 had been removed.

13.  He was then approached by the 2^nd defendant who wanted to rent out the whole of Lot 965.  She agreed to restore the fencing to include a gate so that she could go freely between both parts of the Lot.  That lease of December 2008 clearly identified the two Lots, 964 and part 965, in DD 107.  

14.  When the plaintiff examined the premises (on a visit) on three or four occasions per year during the total period of the tenancy he saw that the tenant had re-installed the fencing together with a gate between two parts of Lot 965.

15.  When the lease expired in December 2013 the 2^nd defendant did not give vacant possession on the agreed date (16 January 2014) but apparently vacated the premises on 13 January 2014, and allowed the 1^st defendant to take possession of the whole of Lot 965 and put up galvanised sheeting to separate Lot 965 from Lot 964.

16.  According to the plaintiff this was the first time that the 1^st defendant had acted to assert any claim to the part of Lot 965 which the plaintiff had occupied since at least the early 1980s, without paying any rent for it and without receiving any demand from the 1^st defendant.

17.  He therefore claims adverse possession of the southern part of Lot 965 from, at the latest, in or about 1982 when any rent (whether it be for Lot 965 as a whole or only the northern sector) ceased to be demanded.  Whether that rent was for Lot 965 as a whole or only for the sector of Lot 965 to be cultivated (the northern sector) I will deal with later.  From that time (1982) the uncle remained in possession of the disputed portion and continued to farm the northern sector, perhaps on an intermittent basis, until he died.

18.  The plaintiff had lived with his uncle since and, after his marriage in 1987, established his family home there.  It was not until 1997 that his uncle’s estate (essentially Lot 964) vested in him legally and was registered in his name.  This delay in formal recognition of his legal inheritance is of no consequence.

19.  After the death of his uncle in 1990 he moved the family home to Tsing Yi, a much more convenient base for work, but continued to visit Lot 964 and part Lot 965 from time to time.  With no occupancy of the buildings for a few years it is not surprising that there was some deterioration in the structures until the tenancy obtained by the Vegetable Federation.

20.  There was no challenge to his possession until 2014.  Adverse possession is therefore claimed up to that date.

THE 1^ST DEFENDANT’S CASE

21.  Both Lots (964 and the whole of 965) were rented out by his parents in the 1960s to the plaintiff’s uncle.  The uncle was allowed to erect a stone house on Lot 964 which projected in part onto Lot 965.  This may have originally been other than a stone house.

22.  After purchasing Lot 964 (sold to him in November 1981) the uncle continued to rent Lot 965 (in its entirety).

23.  The 1^st defendant’s parents died in 1981 and 1982.  At or about this time in 1982 the 1^st defendant says that he waived the rental due because the uncle was getting old and the land was relatively unproductive.  He allowed the uncle to continue to occupy the whole of Lot 965 and, it appears, raised no objection to the house encroaching upon the Lot, nor to any buildings on it which of course belonged to the plaintiff’s uncle.

24.  After the uncle of the plaintiff died (in 1990) the 1^st defendant contended that both Lots were vacant and unattended until 1998 when a Mr Ng approached the 1^st defendant with a view to renting Lot 965.

25.  There was some loose arrangement and no more than an oral agreement with Mr Ng Fai for a rental of $300 (which was less than half the rent the plaintiff’s uncle had been paying up to 1982).  The picture concerning Mr Ng Fai’s tenure is far from clear but he was succeeded by the Vegetable Federation in or about October 2003 which appears to have signed an informal lease of Lot 965 in October 2003 lasting until September 2008.  There is a reference by the 1^st defendant in his written statement to Ng Fai kept “the iron fencing on the land” with no further explanation.  I am not satisfied that Ng Fai had the use of more than the northern sector of Lot 965.

26.  The 1^st defendant said he was aware that the Federation rented what he described as Lot 964 and the stone house from the plaintiff.  The 1^st defendant said that he rarely visited the land and certainly made no contact with the plaintiff or with the Federation in relation to what it leased from the plaintiff.  This is surprising

27.  The Federation was succeeded in 2008 by the 2^nd defendant as a lessee, again on a relatively informal basis on the strength of a dubious handwritten agreement in her notebook.  Again the record, assuming it to becontemporaneous, referred to the land as simply “Lot 965” as the Federation’s document had done.

28.  In fact, after the 2^nd defendant became the tenant of the 1^st defendant, she installed a gate at ‘X’ on the coloured plan (yellow) (Exhibit P1) to close a gap between western end of the pigsty/storeroom and the boundary of 896.  Her tenancy endured until 2013/2014.

THE STONE HOUSE AND THE PIGSTIES

29.  The arrangements which brought these into being are probably critical to this action even though the period of adverse possession does not start to run until some years after their construction.

The stone house

30.  This was built in or about 1960.  The earliest survey sheet available, that for 1977, shows the house occupying Lot 964 and projecting onto 965.  A significant part of the structure — perhaps as much as one-third, and certainly at least one-quarter — projected onto Lot 965.  The plans from 1961 and aerial photographs beginning in June 1980 clearly show this.  It had a canopy and a concrete forecourt, half of which extendedonto Lot 965.  There has never been any objection to this state of affairs by the 1^st defendant or his parents, nor any written demand that the structure be adjusted, or that the uncle of the plaintiff pay any rent in respect of that portion of Lot 965 occupied by that part of the stone house or canopy or forecourt.  He did however pay rent for Lot 965 until the early1980s when the 1^st defendant said that he ceased to demand any rent for Lot 965 as he considered the lot was not farmed productively and in any event the rent was so low as not to be worth collecting.  The 1^st defendant says he ceased to collect it in 1982.  When the payment of rent actually ceased, and how much it was, is not known precisely.  There is no documentation in relation to it.  It is a point of uncertainty as to whether the rent was for the whole of Lot 965 or only for the northern sector which was under cultivation.

The pigsties

31.  There were originally two, one appreciably larger than the other.  They were built at the expense of the uncle on the southern sector of Lot 965, as a result of an application for “Modification of Tenancy” by him.  The grant was made in March 1970.  The owners were identified as Lai Yingand Cheung Siu San (mother of 1^st defendant and the 1^st defendant).  The uncle is identified by his photograph.  The dimensions of the structures were set out.  Those buildings are clearly seen on the southern section of Lot 965 (the disputed land) both on the survey plan from 1977 and the photographs starting in June 1980.  The total area occupied by these structures, including the projecting part of the stone house, its canopy and the concrete forecourt which extends up to the front of the house, is approximately half of the total area of the southern sector of Lot 965.  They were of course all owned by the uncle and subsequently by the plaintiff.  That is a factor to be taken into account in the overall picture.

32.  In due course the plaintiff himself converted the two original pigsties into a storage building (the larger) and a kitchen and toilet facility (the smaller one), in or about the mid-1980s.

THE SCENE ON THE GROUND

33.  The plans and photographs over the years are informative about the two lots, 964 and 965, particularly the latter.

34.  The limited picture from the plans, show from the start, the stone house, substantially erected on Lot 964 encroaching on the southern part of 965 to the extent of 30 to 40 percent of its structure, at least.

35.  The 1961 survey sheet showed what was a building identical to what became the stone house (it may have been the original stone house), in front of which was a rectangular area marginally larger than the structure (or forerunner of the stone house) described on the plan as a “front yard”, and a “rectangular temporary structure” spanning almost the entire width of Lot 965 which eventually was converted into a large pigsty, in or about 1970, and ultimately into a storage building.  As we can see from the plans and the photographs the northern wall of this building became a natural border between the northern and southern sectors of Lot 965.

36.  There is also marked a “fence” running parallel to the “front yard” and seemingly cutting off the small extreme south-western part of the Lot 965 from the area on which the structures and yard existed.  As a consequence, on the plan the southern sector of 965 looks already merged with 964.  There is a very small area, marked “cultivation” at the southernmost tip but that description is not repeated on the subsequent plans.  It in no way equates with the cultivation of the northern sector as shown on many occasions in the aerial photographs.

37.  The 1972 plan shows that the “rectangular temporary structure” has now become “L-structure”.  This clearly represents the large and small pigsties built as a result of the plaintiff’s uncle’s application in 1970.  For some unknown reason the forecourt to the overlapping building (the stone house) is not marked.

38.  The only features worth nothing on the 1977 plan are two arrows pointing to fences, one of which borders the Lot 965 close to the smaller pigsty, and the other seems to link the north-eastern corner of the stone house with the south-eastern corner of the larger pigsty.

39.  The 1986 plan shows a line marked “cultivation pattern” on the northern sector of 965.  The aerial photograph of August 1986 makes it clear that the cultivation extends over the whole of the northern sector with a gap between it and the pigsty structure.  There is a water container at the top right (northern-most point) of the Lot 965, and a similar one at the bottom right of the northern sector adjacent to the pigsty/storage building.

40.  The plans for the years 1977, 1986, 1998, 2001 and 2007 are virtually identical.  Another point of interest, and possible significance, is that together with that of 1972 these plans mark a fence running from the western boundary fence of Lot 965, well to the south of the disputed sector, across to the front of the stone house (on Lot 964), finishing with a gate.

41.  That of 2009 shows a new L-shaped temporary structure on Lot 964, a relocation of the gate, a removal of the fencing shown on the five larger maps, a small temporary structure on the southern sector of Lot 965, a “solid line” whatever that may mean, and an additional structure attached to the larger former pigsty (by now a storage facility) on the northern sector of Lot 965 now making the structure, which has become a normal boundarybetween the two sectors of Lot 965, T-shaped.  It was explained in evidenceto be another toilet facility for the use of the Vegetable Federation, and these features were created by the Federation during its lease from the plaintiff.  These features still existed on the 2016 plan.

42.  The first aerial photograph (1979) reflects what the 1977 plan showed but of course, with more detail.  There is a natural division between the northern sector of Lot 965, which is clearly cultivated agricultural land, and the start of the southern sector (denoted by the pigsty/storage building). At that time the plaintiff’s uncle was still renting that northern sector.  The same is demonstrated by the 1981 and 1985 aerial photographs, and, though not quite so clearly, by that taken in 1990, the year of the uncle’s death.  These are of course only ‘snapshots’ but they show, in respect of the southern sector, vegetation only, not cultivation.  That is important.  The southern sector of Lot 965 was given over basically to piggeries not agriculture.

43.  Six years later, in 1996, the aerial photograph shows a distinct change in the northern sector.  There is a clear reduction in the area of cultivation with vegetation taking over the western and eastern boundaries.  Lot 964 and part 965 are relatively unchanged.  The photograph of 2000 shows little change but vegetation is more obvious than cultivation.

44.  By 2005 the Federation is on the scene and changes are taking place in the northern sector — with cultivation tunnels extending into the adjacent Lot 912.  A small structure has been added to the north-western end of the large pigsty (now storage building) which is probably the toilet facility referred to in the evidence as having been built by the Federation for its workers (mentioned earlier).  This suggests that the Federation was not using the kitchen/toilet facility on the south side of the storage building constructed by the plaintiff.  The Federation’s lease of Lots 964 and part 965 from the plaintiff did not start until the following year, 2006.

45.  In 2007 the Federation’s presence on the site as a whole shows features of its increased activity.  I can well see how any fencing from earlier years would have been removed to facilitate its activities and movements.

46.  By 2009, the Federation having surrendered its lease to the plaintiff in or about July 2008, there was some alteration to the features on Lot 964 but the clarity of the photograph is poor.  The additional toilet structure built by the Federation remains in situ effectively on the northern sector of lot 965 but at the border with the southern sector.  There is no real change thereafter.

The larger-scale photographs (1980 – 2015)

47.  These enlargements confirm the general picture indicated by the initial aerial views.  Cultivation of the northern sector appears to be continuous throughout the decade 1980/1990.  Lot 964 with part 965 appears as a self-contained unit separated from the northern sector of Lot 965 by the outer northern wall of the large pigsty and a gap where the pattern of cultivation of Lot 965 finishes at the southern end.  This is particularly marked from 1992.

48.  On the northern part of Lot 965, there is a good pattern of cultivation shown in 1992 and then again in 1996.  It then seems to change to vegetation in 1999 continuing through to 2003 when the Federation took over the northern sector of Lot 965 according to the 1^st defendant’s evidence. 

49.  The closer view of May 2005 shows the Federation’s cultivation tunnels on Lot 965 spilling over onto Lot 912, and the toilet facility it constructed on the northern side of the former large pigsty.  What is even more clear is that Lot 964 and part 965 form a self-contained unit with a path skirting Lot 964 from the south, around the east of the Lot and then striking west, and north and then west again delineating a clear border between the northern and southern (disputed) sectors of Lot 965.

50.  The photographs of December 2006, July 2007 and February 2008 clearly show the presence of the Vegetable Federation on a substantial part of the northern sector of Lot 965 and on the southern part of Lot 965.  There has been some clearance of vegetation at the extreme southern section to make way for some structures by the Federation.  By November 2009, over one year after the termination of the lease in July 2008, those structures had disappeared, but the Federation appears to have remained active in the northern sector of Lot 965 (still overlapping on Lot 912).  Lot 964 in conjunction with part 965 remains intact through to April 2014 (and April 2015, though that does not matter).

51.  Incidentally the experts’ hatching of the disputed area on the photograph of April 2014 is in error as it clearly reduces the area occupied by the old large pigsty (storage building) and should be ignored.

THE PLAINTIFF’S LESSEES

52.  In 2006 the Vegetable Federation took a four-year lease, at a rent of HK$1,000 per month, of Lot 964 and part of Lot 965.  Effectively it was a two-year tenancy with an option to renew for a further two years. 

53.  The area leased was clearly identified on a plan which accompanied the lease itself, highlighted in yellow and signed or initialled by the plaintiff and by the Administration Manager of the Federation, a Mr Chung.  The Secretary of the Federation who gave evidence in the trial, Mr Ling Fan Ying, although claiming to be present at the signing of the agreement and to having read the documents, insisted that his belief was that only Lot 964 was the subject of the lease. As I will deal with later,this is untenable.  The lease was formally surrendered by a letter of consent,again identifying the area as Lot 964 and part of Lot 965, dated 22 July 1998. 

54.  In 2009 the plaintiff concluded a tenancy agreement with Madam Ip, the 2^nd defendant, in identical form. The tenancy was for five years and the rent to be paid was HK$1,000 per month.  On the plan, the area was coloured in yellow, clearly identifying Lot 964 and the southern sector of Lot 965 (described as part of Lot 965).  The plaintiff and the 2^nd defendant signed the plan alongside the area identified.  The wording in the tenancy agreement was consistent with the designation on the plan and signed by the parties.

55.  Madam Ip, in seeking to support the case of the 1^st defendant, put forward an explanation to the effect that she did not pay attention to what she was signing, and did not read the wording and tried to suggest that the plaintiff had misled her.  I reject her evidence entirely.  I am satisfied that both she and Mr Ling on behalf of the Vegetable Federation were both trying to do their best to support the 1^st defendant. In that respect they were either misguided or dishonest.  The documents speak for themselves.  There could have been no confusion concerning the reference to Lot 965 (portion).  The bases of both tenancies referred to “three house roofs” which included the pigsties on Lot 965.

THE 1^ST DEFENDANT’S LESSEES

56.  These are the same lessees that featured in the plaintiff’s tenancies with some overlapping of the duration of the leases he granted.

57.  The grant to the Vegetable Federation in 2003 is evidenced by an informal agreement in manuscript in a pink notebook obtained it seems for the occasion.  The writing is for the most part that of the 1^st defendant. It is a questionable document in its form and content.

58.  The term is stated to be five years with a rental of HK$500, the period for the rent being unstated.  Included in the writing is a purported record of the rent received for 2004, 2005 and 2006 on the basis of HK$500 per year.  The 1^st defendant’s evidence was that all this note of payment was made on 15 March 2006. Surprisingly there is no record of any rent paid for the years 2007 and 2008.

59.  The Vegetable Federation surrendered the tenancy by letter dated 22 July 2008.  This is in identical form to that sent to the plaintiff on the same date, the only difference in content being that whereas the letter to the plaintiff referred to “Lot no. 964 / portion of 965”, that to the 1^st defendant referred to “Lot 965”.  I have no doubt that the Vegetable Federation intended to draw a distinction between the land subject to the two tenancies and that they recognized the plaintiff as the owner of Lot 964 and part/portion of Lot 965.  What they had rented from the 1^st defendant was the northern section of Lot 965, clearly excluding the portion included in their tenancy with the plaintiff.

60.  The document which the 1^st defendant managed to obtain from the Vegetable Federation, dated 14 April 2014 purporting to be a “Certificate” of the tenancy between 2003 to 2008, is also questionable.  It appears to rent “farmland (including the storeroom as a superstructure)” but there was no mention of this in either the manuscript form of tenancy agreement at the outset, nor is it mentioned in the Consent Letter of 22 July 2008.  This “Certificate” mentions the tenancy as being from 1 October 2003 to 30 September 2008 but according to the Letter of Consent, the tenancy was surrendered on 22 July 2008.  I am satisfied that the form of this document reflected what the 1^st defendant wanted viz some reference to a structure on the portion of Lot 965 (the disputed southern section) so as to suggest that the Federation had rented that area from himself and not from the plaintiff.

61.  The oddity of this is even more apparent bearing in mind that the Federation took its formal and explicit tenancy from the plaintiff three years after the lease from the 1^st defendant (in 2006), confirmed in the Consent for Surrender dated 22 July 2008 and nearly six years before the purported certificate.  I am satisfied that there was some form of connivance on the part of the Federation to produce the so-called Certificate.  It is not an honest document.  It was contrived by the 1^st defendant to lend some support to his belated claim that throughout he occupied and possessed the whole of Lot 965, in order to defeat the plaintiff’s claim. 

62.  The “lease” between the 1^st defendant and Madam Ip (the 2^nd defendant) which is dated 10 November 2008, is for a term of five years at an annual rental of HK$1,000.  The land is described as Lot 965.  It is recorded in a notebook, originally said by the 2^nd defendant to be the 1^st defendant’s then later claimed by her to be her notebook.  The writing is said to be that of the 1^st defendant.  Other odd pages contain the writing of the 2^nd defendant herself.

63.  Interestingly, in her writing are details concerning the plaintiff including his bank account number and a rental figure of HK$1,000.  On another page, far removed from these others, are records of payments in her writing, relating to 2008 through to 2010, which must be payments to the plaintiff which she said were made by bank transfer.  But there is no record in the book of payments since March 2010, whereas she vacated the premises under the lease from the plaintiff in January 2014.  There is no record at all of any payments of rent to the 1^st defendant.

64.  As I have indicated the records relating to these two tenancies are at best suspicious, and are not to be relied upon as supporting any part of the 1^st defendant’s case in relation to the disputed part of Lot 965.

THE PLAINTIFF’S EVIDENCE

65.  The plaintiff gave his evidence in a very moderate manner, without exaggeration and without seeking to adopt matters which may have been more advantageous to him.  I believed him.

66.  He sought to assert that the move to adverse possession was initiated by his uncle when the sector of Lot 965 incorporating Lot 964 was fenced off sometime before rent was waived in 1982 for, as I find, only the northern sector from 1982.  The combination of Lot 964 with the overspill into Lot 965 delineated by the northern wall of the larger pigsty and the fencing, as I find, which existed to enclose Lot 964 and the south sector of Lot 965, had been accepted by the 1^st defendant’s parents as they had accepted the intrusion of the stone house, canopy and forecourt.  There exists no written agreement in relation to what was leased and when rent waswaived in 1982.  There was no formal document and there is no evidence as to the extent of the pre-existing arrangement.  The 1^st defendant never sought to clarify this formally, or to demand that the plaintiff remove or assign the ownership of the buildings on Lot 965.  In fact, the 1^st defendant never made any claim in this regard until 2014, some 32 years later.

67.  The formal leases to the Vegetable Federation and Madam Ip are clear confirmations that despite the inactivity in relation to the unit of Lot 964 and part 965, the plaintiff asserted his ownership and possession of that unit: he was asserting ownership of the unit and that it was recognised and accepted by both those lessees who had or were to have close contact with the 1^st defendant in addition.  Furthermore he paid government rates and rent for the unit as evidenced by the records for the years 2000 to 2014.

THE 1^ST DEFENDANT’S EVIDENCE

68.  Although he made a general claim of ownership and possession of the disputed part of Lot 965, it was totally lacking in substance.  He relied essentially on the leases he granted to the Vegetable Federation in 2003 and to Madam Ip in 2008 but, as I have set out earlier, they related only to the northern sector of Lot 965.

69.  I reject his evidence that after he waived rent for, as I find, the northern sector of Lot 965 only, the deceased uncle, every year for seven yearsor so, came to him with the rent, which he rejected.  It sounds unrealistic and, quite simply I do not believe him.

70.  According to the 1^st defendant it was not until 2013 when he commissioned a survey of the Lot 965 (and no doubt contiguous lots) that he became aware of the extent of Lot 965.  It is thus clear that no reliance can be placed upon his evidence as to what he demonstrated to his lessees was the area covered by his informal lease to them.  I have serious doubts as to whether these informal documents were in fact created at the time he and they allege.

71.  There was no reliable support for his case from Mr Ling, the Secretary of the Vegetable Federation.  He failed to produce any of the documentary records of the Federation upon which he relied for his evidence.  He said that he saw the lease between the plaintiff and the Federation but did not focus on it.  He could not account for the fact that there was no record of payment by the Federation to the 1^st defendant for 2007 and 2008, when the lease was surrendered.  Nor could he explain why the expression “including the storeroom as a superstructure” appeared in the “Certificate” dated 14 April 2014 generated by the Federation at the request of the 1^st defendant in 2014 as some evidence of the extent of the Federation’s lease of Lot 965 from October 2003 to 30 September 2008.  The only reference to the land leased in the informal and questionable document of 2003 was “Lot 965”.  It is clear in my judgment that the 1^st defendant had asked for the inclusion of the reference to “the storeroom as a superstructure” in the certificate to strengthen his claim that he had leased to the Federation the whole of Lot 965 and not simply the farming sector.

THE 2^ND DEFENDANT’S EVIDENCE

72.  I am satisfied that her approach and evidence have been coloured by a desire to assist the 1^st defendant as much as she can.  Her explanation that she did not pay attention to the wording of the lease granted to her by the plaintiff, nor notice the coloured identification of the area leased to her — which she initialled — lacked common sense and was contrived.  It is clear from her letter of 8 December 2013 to the plaintiff’s solicitors that she was a precise lady who liked to get her facts right and so well knew what was included in her lease from the plaintiff.

73.  She, I am satisfied, restored some of the fencing — together with the gate separating the northern sector of Lot 965 from the portion which she had leased from the plaintiff — which had been removed during the occupancy by her preceding tenant from the plaintiff, the Vegetable Federation.  The gate, as opposed to continuous fencing, was a concession to her by the plaintiff so as to permit her to have access out of the Lot 964 part 965 unit to the north, but otherwise to maintain the integrity of the unit.  By reason of the clear documentation to which she had no answer, her evidence was unreliable.  It is a matter of some surprise that she never approached the 1^st defendant concerning the lease she had signed with the plaintiff.  She is not credible. I am satisfied that she too has adopted a stance to favour the 1^st defendant.

74.  I have not yet dealt with the case for or against the 2^nd defendant, as it is simply to decide and will be included in my conclusions.

THE LAW TO BE APPLIED

75.  The plaintiff has of course to satisfy me that he has established adverse possession for the requisite period or periods.

76.  The most comprehensive survey of the approach to be adopted is that in Powell v McFarlane (1979) 38 P & CR 452, Slade J, which has been followed and approved in a number of leading cases.

77.  The aphoristic starting point is that a person claiming possession, without having the paper title, must show that he has both factual possession and the intention to possess, the animus possidendi. The question to be asked is “does he have an appropriate degree of physical control?”  It is necessary to look at all the circumstances to ascertain whether or not his actions and activities constitute a sufficient degree of exclusive physical control.  Acts of possession of parts of the land in question may be evidence of possession of the whole.  Again it will be a matter of degree.  For example inactivity in relation to part of the land which is deliberately left fallow so as to regenerate fertility in order to be used productively in a later season or seasons does not terminate possession of the whole.  To argue otherwise would be to turn the agrarian revolution on its head.

78.  Slade J (as he then was) said (at p 471):

“ … 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.”

This is an attractive and practical alternative exposition of his earlier more legalistic definition of “factual possession” (at p 470):

“ It must be a single and exclusive possession [the original word was ‘conclusive’ but was corrected as a typographical error by Slade J in Buckinghamshire County Council v Moran [1990] Ch 623 at 641A and adopted as such in later authorities], 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.”

79.  In JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, Lord Hope of Craighead said:

“ The general rule, which English law has derived from the Roman law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of property simultaneously. As between themselves they have separate rights, but as against everyone else they are in the position of a single owner.”

80.  There may be circumstances where a squatter is deemed to be in actual possession of the land providing he is the only person in effective control of it despite the fact that the true owner makes some limited use of the land, not amounting to effective control of it: see Hounslow London Borough Council v Minchinton [1997] 74 P & CR 221.

81.  Neuberger LJ (as he then was) in Tower Hamlets London Borough Council v Barrett [2006] 1 P & CR 9 said:

“ Factual possession involves some sort of physical presence or at least being in physical control in some real way. It self-evidently cannot assist the paper owner to show that he had the right to go on the land during the 12 years the squatter was in occupation. (In a sense it is because the paper owner has that right that he is at risk of losing his title to the squatter.) It is hard to see why a contingent obligation of the paper owner, performance of which would require him to go on the land in certain circumstances, which did not arise during the 12 year period, should make any, let alone all, the difference to the issue of whether he enjoyed possession during that period.”

82.  These decisions, approved and adopted in subsequent cases in England and Hong Kong, form the rationale and framework against which vying contentions are to be tested.

83.  Can the plaintiff prove exclusive possession and the intention to possess for 20 years prior to 1991 or at least 12 years prior to 2014?

CONCLUSIONS

84.  I accept in its entirety the plaintiff’s evidence.  His uncle had fenced off the southern sector of Lot 965 with Lot 964 probably after the pigsties were built in or about 1970/1971.  He had not been faced with any demands from the parents of the 1^st defendant, or the 1^st defendant himself.  His actions indicated enclosure from about that time.  It is possible that such enclosure had existed before 1970 but it would not be safe to assume that his adverse possession of the disputed sector commenced before the 1^st defendant (and his mother) sold him the Lot 964 in November 1981.  However, the significance of that purchase (well before that time he had built the stone house and acquired the pigsties on Lot 965) and the abandonment of any claim for rent after 1982 suggests on the balance of probability that no objection was raised to the fact that he was establishing adverse possession at that stage.  That portion of Lot 965 was, I find, abandoned to him at some stage between 1981 and 1982.  I think too that it is more than likely that the rent paid up to 1982 on the basis of an informal arrangement was for the northern sector of Lot 965, the agricultural land only.  This of course is consistent with the leasing arrangements by both parties (such as they were in the case of the 1^st defendant).

85.  Although the plaintiff ceased to live on the premises from about 1990, for good reason, I am satisfied that he did not abandon or give up possession of the property at any time thereafter but continued to assert his possession of part Lot 965 (with Lot 964 as a unit) and demonstrated this by the leasing of the premises as a unit, unchallenged, when the opportunities arose, and did so in a formal, unequivocal fashion, and the efforts he made to have the premises preserved as a unit by clear demarcation.

86.  As far as the northern sector of Lot 965 is concerned, there is clear reliable evidence of agricultural activity in the 1980s whilst the plaintiff’s uncle was still alive and later in 1992, 1996, 1998 and from 2004 to 2008.  The Vegetable Federation seems to have left some of its ‘tunnels’ in situ on the eastern perimeter after that year but without obvious evidence of cultivation.

87.  The picture of the southern disputed sector of Lot 965 is very different.  It is self-contained, with minimal evidence of any activity on the land itself and with a clear division between it and the northern sector.  Lot 964 and this part of Lot 965 are clearly a unit dominated by the buildings themselves.

88.  I do not agree with all the observations of the experts, as the interpretation of the aerial photos does not require the services of ‘experts’ — it is open to a reasonable observer, including a judge, to draw its own conclusions (see my approach in HCA 558/2007 — approved by the Court of Appeal in CACV 238/2013, 26 September 2014, paras 41 – 42). However some of the features identified by them have been helpful (I refer to these) but I am satisfied that the aerial photographs are by their very nature incapable of identifying all features referred to in evidence which I have accepted.  The overall picture is one which supports the notion of Lot 964 plus the disputed portion of Lot 965, existing separate and apart from the northern sector of Lot 965 from 1982 at the latest.

89.  The Vegetable Federation and Madam Ip both recognised by the details of their leases that the plaintiff was the owner/occupier of the southern sector of Lot 965 and Lot 964 as a unit, and that their leases from the 1^st defendant related only to the northern sector of Lot 965.

90.  I am satisfied that the 1^st defendant did not assert any claim to the southern sector of Lot 965 until 2014, by which time it was too late to challenge the plaintiff’s incumbency and adverse possession.

91.  The plaintiff has therefore established adverse possession to the southern sector of Lot 965 since 1982.  He had not therefore been able to prove it for a period of 20 years prior to 1991 but it has continued until 2014 so he has clearly established adverse possession for 12 years since 1991 — and therefore for a period overall of 32 years.

92.  It matters not that it was not until 1997 that he formally inherited Lot 964 from his uncle’s estate.  He assumed his uncle’s claim from 1990 with the benefit of the adverse possession of the part Lot 965 since 1982 at the latest.

93.  The plaintiff is therefore entitled to the following orders:

(1)   a declaration that the 1^st defendant’s title to the said Portion of Lot No 965 as identified and shown in yellow on Plan 2 annexed to the Statement of Claim has been extinguished pursuant to sections 7 and 17 of the Limitation Ordinance, Cap 347;

(2)   a declaration that the plaintiff has acquired an indefeasible possessory title to the said Portion of Lot No 965 to be registered to the Land Registry;

(3)   an order for possession of the open space of the said Portion of Lot No 965 and the said Structures;

(4)   damages for trespass at such rate as the court may determine from 18 January 2014 until possession is restored to the plaintiff together with interest thereon;

(5)   an order that the defendants do forthwith remove and/or pull down the said galvanized iron sheets as identified and shown on Plan 2 annexed to the Statement of Claim;

(6)   an order that the defendants do restore and/or repair the damaged part(s) of the floor of the Premises caused by installing and/or removing of the said galvanized iron sheets to its original condition; and

(7)   an order that the defendants do unblock and/or restore the original condition of the said door.

94.  I give judgment for the plaintiff accordingly together with an order for costs against the 1^st defendant. The 1^st defendant’s counterclaim is dismissed with costs.

The position of the 2^nd defendant

95.  Her position has been compromised by the fact that she has beenrepresented by the solicitors for the 1^st defendant. There was obviously a conflict of interest and she should have been separately represented.  She has been used, as a consequence, to support the case of the 1^st defendant by giving evidence for him.  She was used by him to facilitate his actions to assert belatedly his claim to possession and to take steps to interfere with that part of Lot 965 to which the plaintiff has successfully established adverse possession.

96.  Whilst she was unwise, to say the least, to involve herself in any part of the 1^st defendant’s activities in 2013/2014, there is no basis for any judgment against her.  Therefore she is entitled to have the claim against her dismissed and I do so.  However there will be no costs order in her favour as she was used as part of his co-defendant’s case and he is liable for any such costs to which in other circumstances, she might be entitled.